Some South Carolina Department of Disabilities and Special Needs facilities have medicine error rates as high as 25 percent, according to a recent survey.
Despite the fact that almost a quarter of the homes which an area newspaper examined had dangerously high rates, DDSN Director Beverly Buscemi insisted that the agency’s medication administration procedures were “superior” to the ones in nursing homes and hospitals. The figures may be artificially low, because under current law, DDSN and other medical facilities must only report incidents that cause “serious adverse reactions.” Such errors include giving the wrong medication, administering the wrong dosage, not giving the medication, or giving it at the wrong time.
Nursing home administrators usually blame inadequate training for such errors. Thrive Upstate Executive Director John Cocciolone commented that medication errors were unacceptably high when he took over in 2013, but after extensive training, there have been no related deaths or serious injuries. But such success stories may be the exception rather than the rule, as state regulators determined that a third of DDSN facilities have inadequate training protocols.
In response to such criticism, Director Buscemi issued a memo ordering facilities not to allow untrained workers to issue medication.
Nursing Home Economics
About 20 years ago, regulatory changes triggered a domino effect that changed an industry. The last domino may have fallen in 2012, when nursing homes lost an average of $25 per patient per day in Medicaid reimbursements.
In the 1990s, federal lawmakers enacted the Fair Credit Reporting Act, the Health Insurance Portability and Accountability Act, and several other measures which forced nursing care facilities to shift resources to compliance. Large healthcare corporations could handle the transition, but smaller, individually-owned facilities could not, and that shortfall ushered in the era of corporate ownership in this industry.
That change had two major impacts. First, remote nursing home administrators who are not in the facility every day are less in tune with patient needs. Second, in many companies, there is a profit-first mentality. As a result, patients become statistics as opposed to people.
Because of the profit-first mentality in many facilities, patient population went up, in order to increase revenue. At the time, facilities catered to high-risk patients that required constant attention, because Medicaid usually reimbursed by the intervention as opposed to by the patient. So, facilities could charge more for patients who needed constant attention. But then overall rates started to decline, and the government changed to a per-patient reimbursement. With less revenue per patient, facilities had to look elsewhere to maximize profits, and administrators trimmed operating expenses wherever possible.
As the above story shows, many facilities cut back on training. Instead of formal programs, many employees learned on the job with little or no supervision. Many employees do fine in this kind of environment, but some do not. Moreover, administrators sometimes neglected physical facilities. Even though the elderly population was going up and more patients were coming into nursing homes, they were sometimes squeezed into existing facilities because there was no money for expansion. Finally, administrators targeted direct human resources costs as well, by trimming hours, increasing workloads, and assigning less qualified workers, patient technicians, to perform tasks that more qualified (and more highly-paid employees), such as licensed vocational nurses, should have handled.
In many facilities, these cuts have created a fertile ground for nursing home abuse.
- Instead of learning proper procedures, some nursing home workers do what more experienced employees tell them to do, and this action may or may not be in the patients’ best interests.
- Small rooms and common areas diminish patient privacy, creating territorial squabbles between residents that sometimes become violent.
- There are fewer workers on hand, especially during non-peak times, like holidays, weekends, and overnight hours. So, if there is an emergency, there is either no one to respond or the workers on duty must neglect their regular chores.
- When people work outside their comfort zones, morale often declines or workers simply lack the tools to perform their assigned tasks.
If workers negligently perform their duties, nursing home management is responsible for damages, under the respondeat superior (“let the master answer”) rule, which is discussed below.
Kinds of Abuse
Nursing home abuse is present in about a third of the facilities in South Carolina. The underlying statistics are quite disturbing.
- Over 90 percent of facilities have at least one worker who has a criminal past;
- As many as 30 aggressive acts between residents can occur in a single eight-hour shift at a single facility,
- The caregiver/patient ratio, which should be about one to three during peak times and one to six during non-peak times, can be as high as one to 30, and
- Only about 20 percent of victims report abuse cases.
Given these limitations, staff-on-resident abuse or neglect is quite common, as is resident-on-resident abuse.
Liability in Nursing Home Abuse Cases
As mentioned earlier, large healthcare corporations own and operate many South Carolina nursing homes, and these companies are generally liable for the negligent acts or omissions of their employees, because of respondeat superior.
There are two prongs. First, the tortfeasor must be an employee, a term that is very broadly defined in negligence cases. As opposed to an accountant’s definition of “employee,” which is usually someone who works regular hours and receives a W-2, most South Carolina civil courts use some variation of the Department of Labor’s definition, and that is “suffer or permit to work.” So, in nursing homes, unpaid church volunteers, temporary workers, independent contractors, and almost all other workers, regardless of their economic or legal status, are employees.
Second, the employee must act within the course and scope of employment. In South Carolina, this phrase refers to the normal time and circumstances of a person’s job. The actions do not have to be part of the worker’s job description, but simply have to be foreseeable. So, in a nursing home context, a front desk receptionist who negligently administers medication is probably acting within the course and scope of employment.
Count On an Assertive Attorney
For prompt assistance with a nursing home neglect matter, contact an experienced personal injury attorney in Charleston from the David Aylor Law Offices today, because you have a limited amount of time to act.