Eating Difficulties and Weight Loss

If a resident has difficulty eating, the facility must establish an individualized care plan to maintain the resident’s ability to eat food orally. There are specific therapeutic programs which can be used to help improve a resident’s ability to swallow or to help a confused resident maintain a fixed eating routine.

If despite the above efforts a resident loses a significant amount of weight, the law has specific requirements. Nursing homes must notify a resident’s physician immediately if there are signs of malnutrition, such as a weight loss of 5 pounds or more within a 30 day period. Federal guidelines urge nursing homes to reassess nutritional status whenever a resident experiences unplanned or undesired weight loss of 5 percent or more in one month, 7.5 percent or more in three months, or 10 percent or more in 6 months.

Food and Nutrition

Generally nursing homes must provide each resident a nourishing, palatable, well–balanced diet that meets daily nutritional and special dietary needs. Specific legal requirements include requiring the nursing home:

  • Serve at least three meals daily, at regular times, with not more than a 14–hour span between the evening meal and breakfast;
    Offer snacks at bedtime;
  • Reasonably accommodate resident food and mealtime preferences;
  • Offer a food substitute of similar nutritional value if a resident refuses food;
  • Serve food attractively, at the proper temperature, and in a form to meet individual needs;
  • Prepare and follow menus that meet national dietary standards;
  • Plan menus with consideration of the residents’ cultural backgrounds and food habits;
  • Post the current and following week’s menus for regular and special diets;
  • Prepare food using methods that conserve nutritive value, flavor and appearance;
  • Provide therapeutic diets to residents with nutritional problems, subject to physician orders;
  • Ensure that a resident’s ability to eat does not diminish unless it is medically unavoidable;
  • Provide individualized help to residents who need assistance with meals, offering enough assistance and time so that residents can finish meals;
  • Provide special eating utensils to residents who need them;
  • Provide table service to all residents who desire it, served at tables of appropriate height;
  • Store, prepare, distribute and serve food under sanitary conditions.

Representing Elder Physical Abuse Victims

Litigation involving the physical abuse of an elder is a complicated but rewarding area of practice. Families will be contacting you after something terrible has happened to their loved one. Whether they express it or not, these families are filled with remorse over choosing the wrong health care facility or failing to recognize what was happening at the facility or failing to move their loved one to a better facility. These families come to you devastated and shamed by their own situation, yet time and again the single biggest emotional motivation for these families to seek an attorney is the desire to prevent their tragedy from happening to others.

On the other side of any physical abuse litigation is the health care facility. It has the task of caring for numerous residents with serious medical conditions. In spite of this, these facilities employ the fewest, least-skilled, and least-trained staff that they can get away with as part of their standard business model.

In the early years of elder physical abuse litigation, the mere fact that something terrible had happened to an elderly person while in the care and custody of a facility seemed enough to shock jurors and prevail in a case. Over the past ten years, the defense bar and its experts have become far more adept at persuading arbitrators, judges, and juries to focus not on their facility’s failings but on the elder’s “pre-existing conditions” as the basis for the unfortunate medical outcome. Even when defense counsel do not prevail with this tactic, they believe it to be effective in dulling the impact of the facility’s poor care and the elder’s resulting injury. In between the elder’s suffering, the family’s guilt, and the facility’s denial lies the drama of the case.

The Basics of Elder Physical Abuse Cases
Although there are numerous types of elder care facilities in different jurisdictions, they really break down into two categories: those facilities that can provide skilled nursing care and those that provide non-skilled, custodial care. At a skilled nursing facility there will be 24-hour licensed nurses on duty who actively manage ongoing medical conditions and provide skilled nursing assistance such as wound care and injections. There are also likely related services available such as dietary services, physical therapy, and occupational therapy.

All other elder care facilities fall under the heading of residential care facilities. These typically include assisted living facilities and residential board and care homes. Most often they will not have licensed nursing staff on duty and will provide only “custodial care” for elders. Custodial care includes assistance with an elder’s daily living activities such as bathing, dressing, toileting, meal preparation, and general safety oversight.

A core concept that often gets lost in the individualized facts of an elder physical abuse case is that all skilled nursing facilities are subject to a federally mandated level of care such that residents attain and maintains the highest practicable level of physical, mental, and psycho-social well-being. Thus, a facility should be providing residents with far more than “common warehousing.” In addition to this general high bar for resident care, there exists a low-bar list of absolutely unacceptable occurrences for licensed health care facilities—so-called “never events.” These are events that should never occur in a licensed health care facility.

Some examples of “never events” include death or serious disability associated with patients wandering away from a facility; death or serious disability associated with a medication error; death or serious disability associated with a fall; stage 3 or stage 4 pressure ulcers (where the sore has broken the skin and goes into the muscle and may go as deep as the underlying bone); suicide or attempted suicide resulting in serious disability; death or serious disability associated with a burn; death or serious disability associated with the use of physical or chemical restraints or bedrails; death or significant injury of patients from physical assault; and death from sepsis, septic shock, failure to thrive, or other terminal events caused by an egregious failure to provide patients with the basic elements of care including hydration, nutrition, mobility, hygiene, and socialization. Sadly, these horrific events lead to some of the most commonly litigated elder physical abuse cases against skilled nursing facilities. And while residential care facilities are not licensed health care facilities, there really is no good reason why these events should occur in those facilities, either.

Failing to Follow the Nursing Process
So what makes an elder abuse case? It is generally encompassed by the significant failure to follow the three steps of the “nursing process.” First, were the care needs of the resident properly assessed? Second, was a written plan of care developed to provide for these care needs? Third, was the plan of care implemented and followed by the staff? A few common examples will be helpful in understanding how a facility followed or neglected to follow these three essential steps in providing care to residents.

Fall cases. One of the most common problems affecting elder residents is falls. According to statistics from the Centers for Disease Control and Prevention, more than 250,000 seniors suffer falls each year, and common injuries resulting from these falls are serious, including broken hips, closed head injuries, and death. Key risk factors for falls include past falls, inactivity, cognitive impairment, and the taking of four or more medications or any psychoactive medications. Using these factors, a nursing home should be able to assess a resident’s risk of falls; if the resident is being placed in a non-skilled facility, a doctor will assess.

After assessment, the facility needs to develop and implement a plan of care to lessen the risk of a fall. Common ways to reduce the risk of falls include locating a resident near the nurse’s station, providing frequent, time-specific monitoring, use of bed or wheelchair alarms, a decrease in resident medications where appropriate, an increase in safe resident activities, scheduled toileting times, and lowering of a resident’s bed or utilizing rubber mats by a resident’s bed where feasible.

Although it is a basic truth that none of these interventions can absolutely prevent a fall from occurring, it is a higher truth that there is no reason for failing to consider and implement all these interventions as appropriate in the effort to lessen a resident’s risk of falling.

Wandering cases. Wandering cases in particular tend to have tragic outcomes that often could have been avoided if the nursing process had been fully utilized. The first step in such a case is to see if a proper resident assessment had been done on the topic of wandering risk. In a skilled nursing facility this will be done by the nursing staff, and for other types of facilities it will be done by the resident’s physician. If an assessment shows the potential for wandering, then a care plan must be created and implemented in order to lessen or eliminate the risk. This care plan must include an initial and ongoing determination that the facility can meet all the safety and care needs of the resident. Assuming that the facility can do this, it is essential that the facility locate the resident in a part of the facility where frequent, time-specific monitoring is done. Additionally, residents at risk for wandering should be located away from obvious dangers such as doors, stairwells, and windows. The use of various alarm systems should be considered and likely implemented, including door, bed, and wheelchair alarms. Staff needs to be sufficient in number and training to detect agitation or other potential signs that a resident may be at heightened risk for wandering as well as trained in how to redirect residents to safety if they attempt to wander.

Because wandering cases often have especially tragic endings, it is important to be wary of potentially false accounts of how a resident got out of the facility or how an injury was incurred. In one recent case the elder was said to have gotten out of the facility through a window. Later we learned that the window in question was a second-story window; according to biomechanics experts, exiting through this window would have resulted in serious bruising and fractures, none of which the elder had suffered. In another recent case, the elder was said to have suffered full thickness burns caused by sun exposure after wandering out of the secured, interior portion of their facility. In this case everyone testified that the resident was found wearing a sweater and jacket. Thus, we were able to prove that the full thickness burns she had across her shoulder blades were impossible to have been the result of sun exposure, which would certainly have resulted in burns to her exposed skin, not her covered shoulder area.

Bedsore cases. Finally, bedsore cases illustrate the importance of following the nursing process. The risk factors for bedsores include lack of sensory perception, moisture (commonly from urine and feces), lack of activity and mobility, and poor nutrition and hydration. Once these risk factors have been assessed, an appropriate care plan can be created and implemented. At a minimum the plan should include turning and repositioning of the resident off his or her bony prominences at least every two hours while in bed and every hour when seated in a chair, the use of a pressure-relieving mattress or wheelchair cushion, maintenance of clean and moisturized skin, nutritious meals, and adequate hydration.

A common facility defense in bedsore cases is that the resident was non-compliant in being turned or repositioned, and, thus, the bedsore was unavoidable. Non-compliance by a resident is not a justification for a facility to give up on bedsore prevention but instead should trigger activation of the facility’s “interdisciplinary team” to conduct meetings with the patient, the family, and the doctor, as well as the entire facility health care team, in order to develop written weekly goals that must be set, measured, and reset until the patient is moving forward in a positive fashion. So rather than non-compliance being the end of the discussion, it should be the beginning of a bigger, more urgent discussion that might lead to the prevention of future injury, to the benefit of both the patient and the facility.

In the instance where a bedsore occurred despite all necessary care and treatment being documented by a facility, there are two distinct possibilities. If the resident has a terminal condition such as cancer or AIDS, then the facility may very well be correct that the bedsore was unavoidable. In almost all other situations where the facility’s chart reflects proper care and the resident’s bedsore reflects lack of care, you will have what I call a “liar, liar, pants on fire chart”: a medical chart indicating that all necessary care was provided but a medical outcome telling you this is essentially impossible. This situation also frequently occurs with nutrition and hydration problems, where the chart reflects that the resident is consuming all the necessary food and fluid requirements and yet the resident shows up in the emergency room severely dehydrated and malnourished. If this is your elder’s case, you, too, probably have a situation of false charting.

There are excellent national and state organizations committed to improving elder care in general and investigating specific instances of potential elder abuse. Additionally, I have found that attorneys experienced in this field have been exceedingly generous in their willingness to consult informally on cases as well as to formally co-counsel cases where beneficial.

Feeding Tubes

The law disfavors the use of feeding tubes. They are to be used only as a last resort because they lead to a loss of functioning and can cause serious medical and psychological problems. If a resident is able to swallow and can get adequate nutrition by eating, no matter how long it takes, then no tube should be used. Lack of staff time is not a legally acceptable reason to utilize a feeding tube.

Only where there is the resident’s consent can a feeding tube be used and then only if there is a demonstrated medical need to prevent malnutrition or dehydration. Additionally, residents fed by tube must receive the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, and other adverse symptoms. And if a feeding tube is being used, the nursing home must do what it can to help the resident take food by mouth again as soon as possible.

Dehydration and Inadequate Fluids

Far too many nursing home residents become dehydrated because they are not given sufficient fluids. Symptoms of dehydration include dizziness, confusion, constipation, fever, decreased urine output, and skin problems. Severe dehydration can lead to serious illness and death.

Nursing homes must provide each resident with sufficient fluids to maintain proper hydration and health. If a resident requires help drinking or reminders to drink more fluids, then the nursing home must provide such prompts. Watch for dehydration and infections as classic symptom of neglect by understaffed or under-motivated facilities.

Resident’s Rights

Many elders and their families are unaware of residents’ rights in nursing homes. Under both California and Federal law, residents are given a “bill of rights” which the nursing facility must uphold. In fact, nursing homes are required by law to inform residents of their rights.

There are many rights, however, there are a few key rights that are continually violated by nursing homes. One such right is the “right to receive the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being.” Another right we see violated is the “nursing home shall employ an adequate number of qualified personnel.” Lastly, the “right to receive care to prevent bedsores and incontinence.”

There are many more rights that you or your loved ones should be aware of. I encourage you to visit www.canhr.org for a more extensive list. If you or a loved one has had their rights violated by a nursing home, we are here to help.

Preventing Falls and Accidents

Falls and other accidents are a serious concern for nursing home residents. Almost 50 percent of nursing home residents fall annually. Over 10 percent of these falls result in serious injury, especially hip fractures.

The law requires nursing homes to examine risk factors that cause falls and accidents and take these steps to limit the risks including:

  • Keeping the resident’s environment as free of hazards as possible,
  • Give each resident adequate supervision to prevent accidents and,
  • Use assistive devices that help improve resident safety.

If a resident has fallen or been injured, or is considered at risk, his or her care plan must individually address this concern and identify steps that will be taken to improve safety.

Personal Care

The law mandates that nursing homes provide residents with all necessary assistance for bathing, dressing, eating and other personal needs. Unless it is medically unavoidable, the nursing home must ensure that residents’ abilities to carry out activities of daily living do not decline. Activities of daily living include bathing, dressing, grooming, eating, walking, communicating, using the toilet, and transferring to or from a bed or chair.

Some examples of care mandated for nursing home residents includes:

  • Provide care to maintain clean, dry skin;
  • Change soiled linens, clothing and other items so that residents’ skin is free from urine and feces;
  • Provide needed personal care services including bathing, shampooing and grooming of hair, oral hygiene, shaving or beard trimming, and cleaning and cutting of fingernails and toenails;
  • Ensure that residents are free of offensive odors;
  • Answer call signals promptly;
  • Ensure privacy during treatments and personal care.


Nearly all nursing home residents receive medicine to treat illness and maintain their health. Detailed federal and state rules instruct nursing homes and physicians on how to properly order, record, store, administer and monitor medications. Some other common medication issues include the following topics.

Consent: Residents and their legal representatives have the right to consent to or to refuse any treatment, including use of medications. Physicians must seek consent before ordering or changing medications.

Choice of Pharmacy: Residents have the right to choose their own pharmacy, subject to certain limitations.

Timely Availability: Nursing homes must have 24–hour arrangements with one or more pharmacies to ensure that residents receive ordered medications on a timely basis.

A drug, whether prescribed on a routine, emergency, or as needed basis, must be provided in a timely manner. This requirement is not met if the late administration of a prescribed drug causes the resident discomfort or endangers his or her health and safety. Doses shall be administered within one hour of the prescribed time unless otherwise indicated by the prescriber.

Unnecessary Drugs: Over–prescribing medications is a dangerous but common problem in nursing homes. Federal law addresses this problem by prohibiting nursing homes from using unnecessary drugs. An unnecessary drug is any drug given: (1) in excessive dose; (2) for an excessive period of time; (3) without adequate monitoring; (4) without adequate justification; or (5) in the presence of adverse consequences which indicate the dose should be reduced or discontinued.

Restricted Drugs: Federal regulations place special restrictions on the use of certain drugs. Sedatives, tranquilizers and similar drugs can only be used if the medical need is clearly documented. Federal guidelines discourage nursing homes from using a detailed list of drugs that have a high potential for severe adverse outcomes when used to treat older persons.

Residents cannot be given antipsychotic drugs unless they are necessary to treat a mental illness that has been diagnosed and documented in the resident’s clinical record. If antipsychotic drugs are used, the nursing home must try to discontinue them by using behavioral interventions and gradual dose reductions, unless clinically contraindicated.

Drug use to treat behavior symptoms is highly restricted. Except in an emergency, it is generally illegal to chemically restrain a resident, which means to control a resident’s behavior through drug use when other forms of care and treatment would be more appropriate. Nursing homes cannot sedate residents to cover–up behavioral symptoms caused by: (1) environmental conditions such as excessive heat, noise, and overcrowding; (2) psychosocial problems such as abuse, taunting, or ignoring a resident’s customary routine; or (3) treatable medical conditions such as heart disease or diabetes.

Infection Control

The law requires that nursing homes must have an organized infection control program that prevents diseases and infections from developing and spreading. This means that nursing homes must:

  • Investigate, control and prevent infections in the facility;
  • Screen residents and employees for tuberculosis;
  • Decide what procedures should be applied to an individual resident;
  • Isolate residents only to the degree needed to isolate infecting organisms, using the least restrictive method possible;
  • Require staff members to wash their hands after each direct contact with a resident;
  • Prohibit employees who have communicable diseases or infected skin conditions from having direct contact with residents or their food;
  • Handle, store, process and transport linens in a way that prevents the spread of infections;
  • Clean and disinfect contaminated articles and surfaces; and
  • Maintain a record of infections and corrective actions.
  • Report to local and state health official cases of communicable disease and outbreaks of infectious or parasitic diseases or infestation.