Proving pain and suffering in nursing home abuse or neglect cases

Proving pain and suffering in nursing home abuse or neglect cases

My St. Louis personal injury law firm has seen it all too often in both Missouri and Illinois: many nursing home facilities fail to properly document a resident’s pain in their medical charts. Later, they often try to use the fact that there is no documentation of pain in the chart as proof that the resident did not experience any pain. Statistics suggest otherwise, however. One 1998 study indicated that at least 60 percent of long-term care residents who had been diagnosed with at least one painful medical condition were not given pain medication in an appropriate manner. This can lead to unnecessary pain and suffering in nursing home abuse or neglect cases.

Even worse, that study showed that residents who suffered from cognitive impairment — and thus could not clearly communicate their levels of pain — were given significantly fewer amounts of pain medication. This is contrary to federal mandates dictates by the Omnibus Budget Reconciliation Act of 1987 (OBRA), which calls for clear standards to be followed when it comes to managing nursing home patients’ pain. Many states have also established guidelines that require nursing home facilities to cooperate with federal regulations.

Pressure sores are one of the biggest dangers for nursing home residents, and a significant cause of pain for many of these residents. OBRA demands that nursing home staff members assess, regularly monitor and treat pain that is associated with pressure sores. It also requires other types of pain to be monitored and treated.

Specifically, nursing home facilities should engage in:

• Initial assessment of each resident;
• Planning for pain treatment;
• Implementation of the pain treatment; and
• Reassessment any time resident’s condition changes.

Any time that nursing staff members are unable to appropriately implement the pain treatment plan, both a supervisor and attending physician should be notified. A failure to document pain or notify physicians of the inability to enact a pain management plan can be detrimental to a nursing home resident. In the event that there is a clear pattern of a failure to document pain, it can be a warning sign that there is systemic negligence taking place.

Nursing staff are also required to administer the pain scale measuring a patient’s level of pain upon admission, readmission, on a quarterly basis, upon patient resident discharge, and any time that a resident undergoes some significant change in medical condition. They must also assess any pressure sores on least a weekly basis. Unfortunately, these are also rarely documented — and often not even done at all. This can be yet another sign to help establish nursing facility negligence that can cause pain and suffering in nursing home abuse or neglect cases.

Our St. Louis personal injury law firm can assist victims who have experienced pain and suffering in nursing home abuse or neglect cases determine the best way to prove that this has taken place.

Some methods for demonstrating this sort of nursing home negligence has taken place include:

• Demonstrating a failure to document pain;
• Using medication administration records (MARs) to show that only-as-needed pain medication was administered — meaning that pain clearly existed;
• Using nurse’s notes mentioning pain complaints to establish pain and suffering, especially if a resident complained of pain but no medication was administered; and
• Obtaining family member testimony to show that a resident, especially one with cognitive impairment, demonstrated behaviors such as: Crying out, restlessness, grimacing, clammy or sweaty skin; and/or, involuntarily groaning or calling out.

Those in Missouri or Illinois who feel their loved ones have experienced pain and suffering in nursing home abuse or neglect cases have a right to seek financial restitution in a civil lawsuit. The Dysart Law Firm, P.C. offers free, no-obligation consultations to victims and their families who wish to learn more about their rights under the law.

Disclaimer: The choice of a lawyer is an important decision and should not be based solely upon advertisements.
Source: “Nursing Homes: Proving pain in nursing home cases,” by Steven M. Levin and Cari F. Silverman. October 2013, Volume 49, No. 10.

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