Posts Tagged ‘nursing home aides’

Nurse’s Aide Disciplined Based On Deceased Patient’s Affidavit

JULY 8, 2002 VOLUME 10, NUMBER 1

Identifying and protecting against abuse of nursing home residents is a difficult and continuing problem for authorities. The frailty and dependence of residents, coupled with high turnover and, too often, poor training and supervision, make it a challenge to prove cases of abuse or neglect. A recent incident in New York illustrates some of the common problems of proof in such cases.

Cindy M. King was a certified nurse’s aide working in a skilled nursing facility in Clinton County, New York. She was charged with forcibly grabbing an elderly resident’s arm and pulling her out of her bed. After a hearing before the State Department of Health she was found to have engaged in behavior constituting patient abuse and patient neglect.

Ms. King appealed the determination. Among other things, she argued that the hearing officer should not have accepted hearsay evidence. The appellate court rejected that assertion and upheld her discipline.

By the time of the hearing the patient Ms. King was accused of abusing had died. While the patient’s death was not a result of Ms. King’s treatment, it nonetheless points up a common problem in investigating and prosecuting cases of abuse in nursing homes: because the residents tend to be both elderly and frail, they often die before the legal proceedings can be resolved. In other cases residents may be dependent on caretakers and anxious about accusing anyone of misbehavior, or their mental abilities may be so diminished that their testimony is unreliable.

In Ms. King’s case, the resident had signed an affidavit about the incident. Other staff members testified about her descriptions of the events at the time. Both kinds of testimony were introduced.

Ms. King argued that the resident’s statements should not be admitted or considered because she did not have any opportunity to cross-examine the resident, and the resident’s mental status made her testimony inherently unreliable. The appellate court upheld the hearing officer’s consideration of the resident’s statements, pointing out that other staff members described her as alert and coherent. In any event, the court noted, the resident’s version of the events was corroborated by other sources—including Ms. King herself, whose version of the incident differed from the resident’s in only one key respect.

According to Ms. King, she had assisted the resident to get out of bed by supporting her back; according to the resident and other witnesses, she had grabbed the patient’s arm and pulled her out of bed. There was some evidence that Ms. King had admitted that the resident’s version was more accurate. With substantial evidence to support the Department of Health’s determination, Ms. King’s objections were denied and her appeal dismissed. King v. New York State Department of Health, June 13, 2002.

Neighbor Who Volunteered Help May Not Sue For Injuries


Wilbur Kloepping wanted to stay in his home even though he knew he was dying. The 80-year-old man was confined to a wheelchair most of the time, but his wife Marguerite helped take care of him. Sometimes Mr. Kloepping would fall out of his wheelchair, however, and Mrs. Kloepping was simply not strong enough to get him back into the chair on her own.

On several occasions a neighbor of the Kloeppings, Norma Struempler, helped Mrs. Kloepping get her husband back into his wheelchair. One day in November, 1997, Mrs. Kloepping asked for Ms. Struempler’s help yet again. Mr. Kloepping had fallen forward out of his chair and was unable to stand on his own.

While the two women lifted Mr. Kloepping back into his chair Ms. Struempler suddenly heard a popping sound and realized that she had hurt her back. She returned to her own home sweating and nauseated; when she sought medical help she learned that she had a compressed fracture to her T12 vertebra below the beltline.

According to Ms. Struempler Mr. Kloepping had assured her that he and his wife would pay her for any injury she had received while helping them. Mr. Kloepping died about four weeks later, and Ms. Struempler initiated legal proceedings against his estate and his widow, Mrs. Kloepping.

Ms. Struempler’s lawsuit made a novel claim which, if successful, could have a chilling effect on the elderly who choose to die at home. She argued that Mr. Kloepping placed himself in a position of peril by choosing to stay at home when he knew he needed skilled care, and that he therefore “invited” her to rescue him. Under her theory Mr. and Mrs. Kloepping would automatically be liable for her injury, essentially because Mr. Kloepping should have known he needed to be in a hospital or other institution.

The Nebraska Supreme Court disagreed. In ruling that Mr. Kloepping was not liable for Ms. Struempler’s injuries, the Court pointed out that she had both the opportunity and a duty to exercise care. She could have called the fire department or paramedics, or even declined to help altogether. It was not, according to the Court, foreseeable that Ms. Struempler might be injured while trying to help Mr. Kloepping, and his estate should not have to pay her for that injury. Struempler v. Estate of Kloepping, May 25, 2001.

If Ms. Struempler had been employed as a nursing aide, of course, the result would likely have been very different. Because Ms. Struempler was a neighbor simply trying to help out she did not receive the same legal protection an employee would have been afforded. Mr. Kloepping had no duty to go to a nursing home to prevent injuries like the one Ms. Struempler suffered.

Injuries to Nursing Home Aides

MARCH 27, 1995 VOLUME 2, NUMBER 38

While significant attention has been paid to injuries sustained by nursing home residents lately, little has been said about injuries to staff members. A recent Wall Street Journal article described in some detail the kinds of problems aides in nursing homes may face.

According to the WSJ, “nursing homes have become more dangerous to workers in recent years with an increase in residents who are sicker and less independent than in the past.” By far the largest number of injuries are caused by lifting residents to and from their beds, and to and from the bathroom. In many (perhaps most) facilities, aides may perform dozens of lifts a day, often unassisted.

According to Bureau of Labor statistics, “nursing care facilities” average 17.3 injuries per 100 workers per year. The logging and construction industries experience 13.8 and 12.2 injuries per 100 workers, respectively. Industries with higher injury rates than nursing homes include meat processing (27.6) and motor vehicle manufacturing (24.0).

One contributor to the problem, according to the WSJ, is the fact that nursing home aides nationally earn an average of $6.30 per hour. With wages at those levels, aides often feel that they can not afford to skip work to recover from minor injuries.

Many facilities utilize mechanical lifts to reduce the number of back strains. But many in the industry resist the use of machines which are usually viewed as impersonal, and which convey an undesirable factory-like feeling.

In the face of the growing problem, some facilities have developed a comprehensive program to reduce injuries. Such a program may rely partially on mechanical lifts and partly on rules requiring two or more aides to perform a non-mechanical lift. Some facilities have also added provisions for slightly injured workers to perform light duty work rather than be sent home.

One such facility cited by the WSJ, the Kennebec Long Term Care facility in Augusta, Maine, reported a dramatic reduction in its injury rate when a comprehensive program was implemented. Among its 270 workers, Kennebec had lost 573 workdays in 1991 to injuries. After the program was in place, the number of lost workdays dropped to 25 in 1994. But the costs of the program were also substantial; Kennebec paid approximately $60,000 for 12 new mechanical lifts for its 245 residents as part of the program.

Meanwhile, the problem continues to grow worse. Today’s rate of injuries among nursing home aides represents a 55% increase since 1983, and the trend is expected to continue as the number of nursing home residents and the severity of their illnesses increases.

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