FAQs

Nursing home Law

FAQ

Colorado Nursing Home Law FAQs

Please note that every legal case is different. We are not medical professionals and cannot give medical advice. If you have any concerns about the care your family member is receiving, seek skilled medical assistance and advice right away. Please do not rely on any legal advice given online, anywhere. If you wish for specific legal advice on your situation, please call us at 303.860.1331.

What are Arbitration Agreements?

Nursing homes routinely seek arbitration agreements with patients and family members to protect themselves from lawsuits in Court. They often request or coerce family members or residents into signing arbitration agreements. Signing such an agreement is a mistake. In our experience, nursing home workers often tell residents and family members that they have to sign these documents as a condition of admission to the facility. This is not true. 

These agreements keep patients out of Court and, in some cases, nursing homes attempt to use them to even bind non-signing family members and heirs in the event of a wrongful death claim. In our opinion, there is no advantage to arbitration agreements for family members or residents in the nursing home context. You lose your rights to conduct important discovery and you have to pay, often times large amounts, for the arbitrators in the event of a claim. 

Arbitrators are often conservative business people without sufficient feeling for the rights of injured and upset or outraged family members, especially compared to jurors who are much more the conscience of the community when people have been abused or neglected in long term are setting.  

Nursing home cases involving you or your loved ones should be presented to a jury of your peers in open court, not to commercial lawyers behind closed doors who will charge you to hear the case and likely undervalue it.

YOU NEVER HAVE TO SIGN AN ARBITRATION AGREEMENT FOR HEALTH CARE IN COLORADO AND A NURSING HOME CANNOT LEGALLY MAKE YOU SIGN ONE AS PART OF ADMISSION.

What Can You do if You Have Already Signed an Arbitration Agreement?

Colorado's health care arbitration statutes permit residents and their representatives to rescind (cancel) arbitration agreements within 90 days of their signing. In many cases, there is still time to rescind these agreements. We can assist you in evaluating whether there is still time to rescind and help you with the process of rescinding. We are willing to assist you in rescinding even if you do not have a claim or do not want to move forward with a lawsuit at that time, so as to help you preserve your rights.

If you have signed an arbitration agreement and it is past the 90 day period, you may still be able to proceed in court. Often the agreements are illegal and not enforceable. If you feel that you have a case, we will be happy to review any arbitration agreement you may have signed and discuss your options.

We feel strongly that serious abuse and neglect cases involving elderly and disabled persons should be publicly heard in Court and not hidden behind closed doors, and we can help you rescind your arbitration agreement or evaluate whether it is valid without charge.

Is the Nursing Home or Assisted Living Facility Insured?

Nursing homes have taken to creating complex corporate schemes to avoid being held financially accountable in lawsuits. Increasingly, they are improperly insured such that they can avoid liability by going bankrupt or making judgments extremely difficult to collect. We firmly believe that lawsuits play an important role in keeping nursing homes accountable and maintaining high quality nursing and rehabilitative care standards. When you are considering placing a loved one in a nursing home, you should ask that the nursing home demonstrate to you that it has insurance as required by law under Colorado Revised Statute 13-64-301. 

This law generally mandates that each and every nursing home have $500,000 of dollar one (no deductible) insurance per incident or $3 million per facility each year. Informed consumers should ask to see proof of coverage because nursing homes are often created with worthless financial shell corporations so they can hide from lawsuits behind their lack of coverage. 

Our recent Hise settlement with the State of Colorado will close the loop hole that has been allowing nursing homes to avoid financial responsibility and will now be requiring proof of insurance. However, we believe that individual consumers also have a role to play in enforcing this change by demanding proof of compliance with applicable laws as part of their placement decisions.

What is the Fee Agreement?

We almost always represent people on a contingent basis. This means we are compensated for our time only from the proceeds that we obtain for you in settlement or through litigation. If we take your case it is because we believe that we can help you win it. We do not charge by the hour because we are willing to take the risk of losing our time if we cannot. We are happy to discuss the details of our contract.

What do We Expect from Our Clients?

We simply ask you to help us figure out everything important that you and others available to you know about the case and support the case work we do by getting records, contacting witnesses and doing other things that could help your case when you can. We want you to be yourself, be reasonable and listen to and carefully consider our advice.

What Should You do if You Are Not Yet Sure You Want to Pursue a Lawsuit?

Even if you never do anything about it, document what has happened that is concerning you while it is happening. We can't tell you how many people wish they had. Facilities often deny what happened, or don't accurately record incidents in their records. It is important that you photograph and video what you are seeing both at the facility and in any subsequent care settings. If there are pressure ulcers, bruises, fractures or people sitting in their waste or covered in urine, document this. Complain to the administrator. Consider complaining to the Colorado Department of Health and Environment.

Use high quality cameras, not your phone, if possible. Consider videoing or tape recording your loved one (not other residents) where appropriate, having them say what happened if you are worried that they might not make it to tell their story.

What Should You Bring with You to Meet Us?

Anything that you have. From bills from Medicare and other payors to current photographs to medical records. X-rays, CT scans and MRIs are often of great value. Hospitals and clinics will often copy them or put them on a CD. The technicians can help you decide if you need them all. If we think we need more, we can get them. Pictures showing the family's history and closeness are also important as are pictures showing your loved one's functional status or demeanor before injury. Please bring facility brochures and contracts you have signed as well as power of attorney, guardian and conservator documents. Any advertising that you reviewed on the Internet, any actual brochures that you read or considered as part of your placement decisions could be very important. Please look for and keep all such materials.

If you don't have any of these, we can help you collect them, including the important records.

Do You Have a Right to Obtain Medical Records?

Yes. Colorado Health Regulations expressly allow a designated representative of a patient to obtain records. Under Colorado Regulations, a designated representative is a person authorized in writing, or by Court Order. In the case of a deceased patient, the personal representative of the estate or, if no one is appointed, an heir is the designated representative.

Despite this regulation, in our experience, facilities frequently refuse to promptly provide records to family members. This violates the health regulations.

If you are having trouble obtaining records, please give us a call for assistance. You can also complain directly to the Colorado Department of Public Health and Environment, who will investigate and assist you in making the facility follow the law.

Can You Call Us?

Of course. Please do. If we are currently handling your case and something happens in it we will contact you with an update right away. We might not be able to respond immediately to your call or email but we will try very hard to get back to you promptly. We realize that you may be contacting us because something important has occurred and that your matter may need to be dealt with quickly. 

Our paralegal, Brooke, is generally available even when we are not. She is encouraged by us to not just take a short message but to find out exactly what you need or want us to know. Please feel free to confide in her the way you would any of our attorneys. She is sympathetic to your situation and the attorney-client privilege will apply to discussions that you have with her as well. We do not charge for any client conversations because we feel that the free flow of information is paramount to properly handle your case.

Are There Caps on What You Can Win in Court?

Usually, but not always. Negligence claims against health care facilities in Colorado are governed by the Health Care Availability Act, which currently caps claims for pain and suffering, including family wrongful death claims at $300,000 for non-economic loss.  You can also recover economic losses. Some cases are so egregious that punitive damages may be available. Some cases involve deceptive advertising or other deceptive trade practices such that lawsuits under the Colorado Consumer Protection Act (CCPA) are possible. Some cases can be so aggravated as to involve civil racketeering made actionable under the Colorado Organized Crime statute (COCCA). CCPA and COCCA claims can involve treble damages.

Can You Sue Them So This Will Never Happen Again?

You probably cannot. All of us collectively may be able to do so. It is our belief that if these facilities cannot afford to operate negligently they will stop operating negligently. But your individual case cannot do it alone. The country has tolerated this scandal for almost 40 years, since Medicare was created in 1965.

We need to rethink the models of care for elderly and disabled persons which overly rely on unfeeling, generic programming administered often by poorly paid, severely over worked CNA's which fits no better than very ill-fitting clothes. Who amongst us goes through their lives hoping to end up eating cold food and living in small rooms with hard linoleum floors and bedrails on a high bed from which we can fall with roommates next to us who are also in pain or suffering?

Standing up for yourself or your family member can be an important step in holding facilities accountable.

What Are Common Types of Negligence Claims in Nursing Homes and Assisted Living Facilities?

Pressure ulcers (also known as decubitis ulcers or bed sores) - One of the most tragic things we often see as nursing home lawyers, is bed sore or pressure ulcer related injuries and deaths. It has long been understood by the nursing industry and medicine that, for the most part, pressure ulcers and bed sores are very often the result of negligence. The government has become so disturbed at hospitalizations for preventable bed sores and pressure ulcers that it has also passed regulations refusing to pay for pressure ulcers caused by nursing homes. 

John's work in this field actually began with the observation of a pie-sized pressure ulcer on his own mother's back while she was dying from cancer in a nursing home. All she needed at that time was someone to make sure she was turned frequently. Patients have the right to be free from preventable ulcers. Unfortunately, the cockroaches of microbiology, including staph bacteria, often march through these preventable holes and cause life threatening infections, including sepsis and pneumonia. 

If your family member is developing a bed sore, it is imperative that it be treated aggressively to prevent worsening. These are urgent matters and you should call the physician and make sure skilled wound care experts are involved right away. Often, in our experience, family members don't know that bed sores have started until it is too late. It is important to be informed about your family member's care. It may be somewhat difficult emotionally to inspect your loved one's skin, but it can be life-saving to do so. Often, pressure ulcers form on bony prominences, especially in the coccyx area and on heels.

Preventable falls - As nursing home abuse and neglect attorneys, we have also seen many injuries and deaths from falls. We have handled cases involving more than 30 falls in one year. Recently we handled a case involving a resident that fell 12 times in a three month period. Often, falls are recurring in precisely the same manner because there is no progressive care planning once they start. Nursing homes sometimes seek to have family members sign documents, saying that they accept the idea that their family member will fall or that they do not want them restrained, when a simple releasable seat belt or other remedies like pressure alarms may sometimes save lives by preventing falls on to the head or severe fractures. 

It is a known medical fact that numerous deaths among the elderly occur within a year of hip fractures that resulted from a fall. It is imperative that nursing homes and assisted living facilities not be allowed to run programs that permit residents to fall while under the pretext that falls are not preventable. There are a large number of care planning measures that can readily be implemented, ranging from assistance with walking, the use of adaptive equipment, to lowered beds, or the placement of mattresses on the floor by beds, to the employment of sitters or companion care. It is an axiom in nursing home and assisted living care systems that you cannot admit or keep a resident whose needs you cannot meet.

Residents have a right to be free from preventable accidents. Often nursing homes accept post-surgical patients for rehabilitation and allow them to fall again by failing to employ simple precautions. A single fall causing severe injury or death can sometimes be as negligent as a pattern of previous falls.

Degradation - Residents have the right to quality of life, dignity and to be free from warehousing. It is said by nurses sometimes that you can smell bad care. Residents have the right to be free from such neglect. We often hear that residents are being left degradingly in their own waste. This is totally unacceptable in a civilized society and cannot be excused by short staffing. 

Nursing homes and assisted living facilities often insist on using incontinence products rather than taking the time to answer call lights and assist residents to the bathroom. One frequent citation of nursing homes by CDPHE is for failing to respond timely to call lights.

Dehydration - As experienced nursing home lawyers, we unfortunately have also frequently seen cases involving death and serious injury from dehydration and even starvation. We have handled cases involving patients starving to death or dying from dehydration while supposedly being fed by facility staff through scheduled tube feedings. We have seen instances where people have gone as long as eight days without fluids. 

Patients have a right to adequate nutrition and hydration. While we are not doctors, doctors regularly state that signs of dehydration can include lethargy, dry mucous membranes and laboratory tests which show significantly increased sodium levels or other changes. Nursing home staff often fail to take the time to assist people with eating or fluid consumption even when they are known to be failing to obtain adequate nutrition and hydration. Sometimes people only need temporary IVs to recover from dehydration. 

If you suspect serious dehydration or nutrition problems, demand a care conference or call the physician, it is often treatable. You may want to become directly involved with assisting your family member with eating and hydrations.

Sexual, physical and emotional abuse - One of the most shocking and tragic areas of nursing home abuse and neglect involves resident on resident violence or sexual assaults by staff members on elderly and disabled residents. These events are not uncommon and can be fatal or profoundly traumatic. Failure to sufficiently staff dementia units, in our experience as nursing home attorneys, has actually resulted in residents killing each other. Failure to investigate staff criminal backgrounds has too often resulted in grim staff abuse of residents, including even sexual assault and rape. 

If you suspect that your family member has been the subject of sexual assault, you should insist on their being taken promptly for a rape kit at a hospital so that perpetrators can be identified. The police and the State Health Department should be promptly contacted in these types of cases to investigate complaints of assault. Nursing homes and assisted living facilities have a duty to properly protect and supervise residents to ensure their safety and freedom from such abuse, neglect and criminal conduct.

Other common types of nursing home or assisted living abuse and neglect – Other factors that are considered abuse and neglect include:
  • Untreated Infections
  • Delay in Timely Transferring of Residents to Hospitals
  • Medication Errors
  • Wandering and Elopement
  • Reckless Transfers
  • Preventable Immobility Leading to Pneumonia
  • Other Serious Failures to Respond in a Timely Fashion to Changes in Condition

What Resources are There for Families Looking for Nursing Homes?

Nursing homes are one of the most heavily regulated social programs. There is a lot of free information available online as you are considering which nursing home to select for your family member.Please click here for links

What Are Some of the Things You Have Learned That Might Help Us Prevent Abuse and Neglect of Our Family Member?

1. Be there. Of all the things that we have learned over the years about abuse and neglect prevention, the single most important one is family involvement. If you have more than one family member in the area, you should consider working out formal visitation schedules to try to ensure that someone is present as often as possible, ideally daily. Don't always go at the same time, go on weekends and nights, and during shift changes, so you can see what is going on at all times.

2. Don't wait. Far too often family member complaints are blown off and not taken seriously. When you feel you must complain, do it effectively and in writing, make sure your complaints are being addressed by high management at the facility, including the DON and administrator. When you see truly significant deviations from proper care, report them to the health department.

3. Get to know and relate to the people who work there. Know the names of the nurses and CNAs who work with your family member. Get to know the administrator and the DON.

4. Every facility has a medical director. That person's name will be posted in the facility and can be found at the CDPHE website. (Link to http://www.cdphe.state.co.us/hf/index.html) Those doctors are supposed to ensure quality nursing and rehabilitative care. If your complaints are not being taken seriously by staff, call the medical director directly.

5. Educate yourself. Talk to your family member's doctors. Find out what kind of care they need and frequently ask to see records to make sure it is being done. Does your relative need to be repositioned frequently? Do they need assistive devices or other accident prevention methods? What interventions might work better that haven't been tried? 

6. Attend care conferences whenever possible and voice your concerns. Don't be passive. 

7. Involve care givers that you trust. Nursing homes routinely assign treating physicians to their residents. These doctors often do not even know your family member's history and have little time as they are assigned to numerous residents. Involve consulting or treating doctors who you know. 

8. Insist on emergency care when you feel it is necessary. You have the right to call 911 or your loved one's doctor. In our experience, family members are often told that residents cannot be sent to the hospital without a doctor's order. Far too many times we have heard family members sadly lament that they should have just taken their parent to the hospital or called 911. If you are concerned that your family member's life and well-being is in danger without proper medical care, you should act, not wait for permission. 

9.Document failures of care so that you can show the Administrator or the Colorado Department of Health and Environment what is happening.
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