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Nursing Home Neglect and Abuse – Bedsores

In most nursing homes today, where the emphasis is on profit over the quality of care, bedsore injuries are far too common. While there’s an easily explainable medical reason why people develop bedsores—when you sit or lie in the same position for too long a period of time, the pressure from your bones inflames the underlying skin—there is simply no excuse anymore for a person to develop bedsores.

The simplest way to minimize the risk of bedsores is to ensure that a resident doesn’t sit or lie in the same position for extended periods of time. Most experts recommend that patients be repositioned at least every two hours. Sometimes, a nursing home facility doesn’t have a set of procedures in place to ensure that residents get the care they need. Often, the nursing home is understaffed or their employees lack the skill, training or supervision to make certain that appropriate steps are taken to prevent bedsores.

A number of other tools are available to nursing homes and nursing home employees to help fend off
bedsores, including:


  • Specialized mattresses that prevent bedsores
  • For patients with enough upper body strength, a trapeze bar can allow self-repositioning
  • To minimize friction and risk of bedsore from regular movement, caregivers can use bed linens to move you
  • Pillows and cushions
  • Air boots
  • Specialty wheelchairs

A number of other strategies can help reduce the risk of bedsores:

  • Studies show that smokers are more likely to develop bedsores than non-smokers, so quitting smoking can help.

  • Bedsores can develop if your skin is too dry, as well as if it is too moist. If your skin is dry, ask a caregiver to apply lotion or moisturizer. (Dry skin can also be a sign that you are not getting enough fluids). If your skin is too moist, use some talcum powder to dry it.

If your loved one has developed bedsores at a nursing home facility, it’s important that you retain
an experienced lawyer to handle your nursing home neglect and abuse claim. These cases involve complex state and federal regulations, including Medicare and Medicaid issues. Even an experienced personal injury attorney may be uncertain of the process, and lack the appropriate knowledge to fully protect your rights.

Nursing Home Neglect and Abuse – Falls

Many residents in nursing homes lack the mobility, balance and strength to safely walk or move about the facility. Accordingly, it’s important that nursing home employees and caregivers properly monitor residents so that they don’t fall. Unfortunately, in most modern nursing homes, where profits are valued more than the quality of care, the kind of monitoring necessary to avoid injury simply doesn’t take place. Most nursing homes are under-staffed, and a large percentage of nursing home workers lack the necessary skills or training to ensure a safe environment for residents.

One of the biggest risks for a nursing home resident is injury in a fall, whether from a bed or while trying to cross a room or walk down a hall. Under Medicare rules, when a person is admitted to a nursing home facility, the nursing home is required to conduct an assessment to determine their potential fall risk. Many facilities simply don’t perform this assessment or they fail to conduct it properly. As such, they have no idea of the potential for injury in a fall.

Many other nursing homes know of potential fall risks, but fail to take appropriate precautions to minimize the risk. Alarms are available that can be placed on a patient’s bed, indicating risk of a fall. Many nursing homes have slippery linoleum or tile floors, and could reduce the risk of falls simply by installing mats or by providing residents with non-slip socks.

Studies also show that nursing homes seldom engage in patient or family education, helping residents take the initiative to minimize the risk of injury.

When you are looking for an attorney to help you hold a nursing home facility accountable for injuries suffered by a loved one, it’s extremely important that you retain someone with extensive and recent experience handling these types of claims. Nursing home neglect and abuse claims involve working with a complex set of state and federal regulations, including Medicaid and Medicare issues. A personal injury lawyer without meaning experience handling nursing home abuse claims will likely lack the knowledge and experience to fully protect your interests.

Nursing Home Neglect and Abuse

Home Neglect and Abuse—An Overview

When you have to make the difficult decision to put a loved one into a nursing home, you want to know
that they will be well-cared-for in their final years. Unfortunately, most nursing homes today are run by hedge funds, with the focus on profit over quality of care. As a result, nursing homes are
chronically understaffed, and the people they do hire are under-qualified and are motivated by little more than a paycheck. The consequence—your family member suffers.

The Common Types of Nursing Home Abuse and Neglect Claims

Residents in nursing homes need regular care and monitoring to minimize the risk of serious injury. Some of the more frequent injuries that arise in nursing homes include:

  • Falls—Many nursing home residents have challenges with balance, strength and stamina, and may lack the capacity to move about on their own.Nonetheless, without proper restraint or monitoring, they may try to do so, leading to risk of serious injury in a fall. Furthermore, many bedridden patients may fall out of bed, if not properly secured or protected with bed rails.
  • Bedsores—Bedsores, known as decubitis ulcers, are almost entirely preventable. The most common cause of bedsores among nursing home patients is the failure to reposition or move bedridden residents on a regular basis. This may stem from understaffing, lack of training or lack of proper procedures.
  • Dehydration and malnutrition—Without proper monitoring, nursing home patients may forget to eat or take in the liquids they need.
  • Medication errors—Most nursing home residents have a specific regimen of drugs they need every day. Often, mistakes can be made in dosage or timing of medications, or residents may be given the wrong drug.
  • Physical or mental abuse—Nursing home residents are often subjected to slaps, hitting or other physical abuse by untrained, unqualified or vindictive employees. They can also be berated, called names or made fun of by caregivers.
  • Physical or hygienic neglect—Caregivers frequently fail to help residents stay clean and healthy.

When you are looking to hire an attorney to handle a nursing home neglect and abuse claim, the most important thing to look for is recent experience handling this type of claim. Nursing home negligence claims involve complex state and federal regulations, including Medicaid and Medicare provisions. It’s not enough to have a good personal injury attorney. Your lawyer needs to understand the process and the laws governing nursing home neglect and abuse.

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Birth Injuries

The birth of a child can seem like a miracle, but it can also be the source of unbearable heartbreak, if doctors, nurses and other medical professionals act carelessly or negligently. The failure to follow generally accepted procedures before, during or after delivery can lead to serious injury and even death.

The most common types of birth injury claims result from negligence in the delivery room, and can include:

  • The failure to properly monitor the birthmother and the fetus—This may result in an unnecessary delay in the decision to deliver the child through a Caesarean section. Such a delay can affect the flow of oxygen to the unborn child’s brain, causing serious injury.
  • The improper use of forceps, suction or other devices to extract a fetus—Medical professionals may be too quick to use forceps or Kiwi suction devices, causing injury to the unborn child (such as shoulder dystocia, Erb’s palsy or brachial plexus injuries). With proper
    care, a delivering physician should be able to predict a breech birth, and should take steps to minimize the risk of injury to
    birthmother and child.
  • Deprivation of oxygen to child or mother—A number of conditions, including the prolapse or pinching of the umbilical cord, can cut off or diminish the levels of oxygen to the unborn child or to the birth mother, leading to hypoxia or asphyxia, and potential brain damage and other medical complications.
  • Medication errors—Doctors and nurses may administer inappropriate medications, may provide incorrect dosages for certain medications, or may fail to give drugs when needed.

If you or your child has suffered needless injury because of the carelessness or negligence of a medical professional, you want to make certain that the attorney you hire to protect your rights has considerable recent experience with medical malpractice claims. The rules and procedures for medical malpractice claims are constantly in flux, and the standard of care applied to medical professionals is continually being modified and adapted. If your lawyer has little or no recent experience handling a medical malpractice claim, important issues may be missed.

Surgical Errors

Modern surgical procedures have dramatically improved the lives of many people. While the incidences of injury as a result of surgical malpractice have diminished,surgeons still make mistakes. When they do, you have a right to pursue compensation for their negligence or carelessness.

When you are looking for an attorney to help you pursue compensation for the careless or negligent acts of a doctor, nurse or other medical caregiver, it’s important that you hire an attorney with significant recent experience handling medical malpractice claims. The standards of care for physicians are constantly changing, as are the rules governing the filing of a medical malpractice lawsuit. If your attorney has handled personal injury claims, but has no experience with medical malpractice lawsuits, they may be unaware of the procedures, and what could potentially be a valid claim may be lost.

The Common Types of Surgical Mistakes

The most frequent types of errors made during the surgical process include:

  • Perforation of or nicks to other internal organs—If proper care is not taken during a surgical procedure, the surgical tool can perforate or puncture another internal organ, such as the spleen or the bladder. In some circumstances, because of the proximity of the organ to the focal point of the surgery, such an outcome is nearly unavoidable. However, surgeons and support staff must pay close attention and
    monitor patients carefully to determine whether other organs have been inadvertently nicked or injured.
  • Operating on the wrong body part—If proper procedures are not put in place or followed, surgeons can operate on the wrong arm, leg or other body part.
  • Performing the wrong surgery or operating on the wrong person—Charts may be misread or patients may be mixed up, leading to disastrous consequences.
  • Failing to conduct necessary surgery—During a routine operation, a surgeon or supporting staff may ignore clear signs that additional surgery is required.
  • Leaving a surgical tool or implement in a body cavity—In the haste to complete a surgical procedure, surgeons may leave a sponge or other surgical tool inside a patient.

Negligence

Negligence
Though you can file a personal injury claim for injuries sustained as a result of the intentional act of another personal, most personal injury claims are litigated under a legal theory of negligence or carelessness. To successfully recover damages under a theory of negligence, an injured party must show that:

  • The person causing the injury did not act as a reasonable person would
  • The failure to act reasonably caused the injury
  • The injured party actually suffered loss because of the accident

The Standard of Care
The law of negligence assumes that every person has a duty, in all conduct in their daily lives, to act as a reasonable person would. When driving a car, when building a home, when maintaining property, when designing or marketing a product—in all these instances, a person engaged in the activity must act reasonably. The concept of the “reasonable person” evolved in English common law, through opinions written by judges over centuries of jurisprudence. The “reasonable person” standard does not look at what a “typical” or “average” person would do, but instead is based on a sort of composite of community standards. In a personal injury case, the jury has the responsibility to determine whether or not the actions of the defendant were reasonable, or violated the standard of care.

Causation
Negligence law requires two types of causation:

  • The wrongful act of the defendant must have been the actual, or “but for” cause, such that the injury would not have occurred if the defendant had not acted improperly
  • The wrongful act must also be the “proximate” cause of the injury—This essentially means that the type of injury that occurred must have been reasonably foreseeable by a person committing the wrongful act attributed to
    the defendant. In other words, the injury must not have been the result of a wholly unpredictable event, or chain of events.

Damage
Negligence law provides a basis for recovering actual losses. Even though a defendant may have acted carelessly, if there is no actual or provable loss, there will be no financial recovery.

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After DOMA – Cultural and Legal Changes Ahead?

The Commerce Clause was given a rather wide interpretation in providing the Civil Rights Act of 1964 with the teeth thought necessary to prevent businesses from discriminating against Black Americans. Now that Supreme Court has found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, will the decision be used in a manner similar to the Commerce Clause to leverage legal action against businesses, property owners, churches, schools, or organizations that refuse to recognize homosexual marriage?

The Overturn of DOMA – the Shape of things to Come?

In 2008, Guadalupe Benitez sued her Christian doctors who refused to artificially inseminate her after learning she was a lesbian and having treated her for some time with fertility drugs. The Supreme Court of California sided with Benitez, ruling doctors cannot deny treatment to homosexuals and lesbians due to personal or religious beliefs.

There is also the story of Harriet Bernstein and Luisa Paster. After meeting at a retreat in the Poconos, they developed a relationship and eventually decided they wanted to wed after New Jersey legalized civil unions. Bernstein wanted to exchange vows in an outdoor pavilion commonly used for Methodist Bible studies and church services. When their request was denied, they contacted the New Jersey Division of Civil Rights claiming they were unlawfully discriminated against. Their attorney argued that, just as a restaurant can’t refuse service to a Black customer, the owner of the pavilion could not refuse use of the property to Bernstein and Paster.

Businesses, Retailers, and Property Owners

If the examples mentioned above are any indication of emerging cultural and legal trends – and there are many more like them as a simple Google search will reveal – the legal profession can expect an increase in lawsuits alleging discrimination against homosexual couples. Similar to what happened during the Civil Rights Era, homosexuals and lesbian couples will likely find property owners that do not want to rent a room to them; a wedding planner or cake maker that refuses their business; or a church that refuses to allow them the use of their property for a ceremony.

Oppositely, businesses, property owners, and churches will likely push back against attempts to make them participate in something they object to, usually in terms of the First Amendment protection of free speech. If homosexual and lesbian couples are considered “officially married in the eyes of the State,” it will become increasingly difficult to deny them the same prerogatives as heterosexual couples in these areas of life, business, and property use.

Schools – Sex Education and Parental Rights

Sex education in public schools has been a hotly contested issue ever since Kinsey disciples and inspired advocates exerted institutional power in the medical, psychology, and education professions to advance so-called sex education. While not all sex education programs are the same, many have their roots in the Sexuality Information and Education Council of the United States (SIECUS), a creation of followers of Alfred Kinsey and his views on sexuality.

SIECUS has influenced thinking at the level of the United Nations Educational, Scientific and Cultural Organization (UNESCO). Critics of UNESCO’s “International Guidelines on Sexuality Education” claim it seeks to expose children as young as 5 to the concepts of masturbation and, in later years, to oral and anal sodomy. As more parents learn about these kinds of sex education programs in their child’s school, legal action may be taken if schools move in the direction of what has already happened in England where parents are denied the right to prevent their children from being exposed to these programs.

Possible Changes over the Next Few Decades

Although few on the political left or right want to talk about it, the overturning of DOMA may pave the way for the legalization of polygamy and incest. If the courts have decided that there is, in principle, no reason why same sex couples can’t marry, what reason is there to deny the same right to adult brothers who want to wed or a collection of couples who prefer a polygamous lifestyle? Given the Court’s apparent cultural evolutionary view of things, it may be only a matter of time before legal action is brought by these other groups as well.

In the end, civil rights attorneys, family law lawyers, estate planning attorneys, even employment law attorneys can expect an ever-increasing number of cases related to the recent decision to essentially legalize same sex marriage.

And, what will happen if an attorney refuses to represent one of these couples based on their own conscience?

Beware IP Scams!

Beware IP Scams!

By Malcolm Pipes

There appears to be an uptick in the numbers of IP scams circulating around. A commonly encountered scam uses official-looking notices that claim to originate from governmental trademark and/or patent offices or legitimate vendors advising the recipient to pay fees in order to maintain their trademark and patent rights. However, in most cases, these notices are rather sophisticated scams or solicitations seeking payment for unnecessary services.

Domain Names

A frequent scam involves an email originating from a domain name registrar or IT consulting company based in China that purports to notify a trademark holder that another entity is seeking to register your trademark or business name as a domain name in China or some other locale in Asia (e.g., clientbrand.cn, clientbrand.hk, clientbrand.tw, etc.). Our firm was recently the target of such a scam, which typically starts with an email giving the mark owner a short time to apply for and secure the domain name for their own use. The email may even include a warning that someone else is applying to use your mark as a domain name. While perhaps not a scam per se, these notifications are essentially thinly veiled solicitations seeking your business to register your domain name. If you receive such a solicitation, you should consult us.

Trademark and Patent Services Scams

Another scam involves official looking documents received from an entity with a faux-government sounding name. For trademarks, these may take the form of official sounding organizations such as the “United States Trademark Agency” or the “Trademark Monitoring Service.” These notices often offer monitoring services to track the progress of your trademark application or third-party watch services, renewing a registration, or providing another related service such as obtaining or maintaining a registration, or recording your mark with a trademark “registry” or corporate names/marks database. All of these services require a fee.

These notices are not from the United States Patent and Trademark Office (“PTO”). The PTO will never contact you soliciting fee, other than when a specific service is utilized. Similarly, notifications sent from trademark service companies that seek to provide prosecution services relating to pending trademark applications may be encountered. These notifications often contain alarming language about upcoming deadlines, and sometimes quote a (high and excessive) fee for handling the deadline on the client’s behalf.

While maintenance requirements and fees are due during the term of a patent or trademark registration, owners of these patents or trademark registrations should ensure communications regarding these issues are from the USPTO or their legal counsel, and not from an unaffiliated company. All official correspondence from the USPTO will be from its office in Alexandria, Virginia, or from the domain “@uspto.gov.”

For patents, there are reports of notices from the “Patent & Trademark Office Register of Patents,” that are essentially fraudulent invoices requesting payment of a “filing fee” to a bank located abroad. Please be aware that the US government typically uses the Treasury Department and WILL NEVER request sending funds to a foreign bank.

Other Employment Law

Other legal issues that frequently arise in the employment context include:

  • Minimum Wage disputes, such as disagreements over whether or not employers complied with state or federal minimum wage laws when paying workers
  • Problems with Pensions, from illegal or improper investment of pension funds to disputes over vesting and eligibility for retirement funds
  • Labor Law challenges, such as the rights of workers to form collective bargaining units, to engage in strikes and similar actions to try to obtain certain benefits, and to require union membership for workers