Part III, Legal Rights:  Protecting Elderly Dementia Patients from Nursing Home Misuse of Antipsychotic Drugs

What can you do, if you feel your loved one is being over-medicated?

For patients suffering schizophrenia, bipolar disorder, and other psychotic symptoms, antipsychotic drugs can be necessary and helpful.  However, the same drugs threaten elderly dementia patients with an increased risk of death or severe side effects, when nursing homes use them to sedate dementia symptoms like anxiety, wandering, or irate behavior.  What do you need to know to protect these elderly loved ones in nursing homes?

Know your nursing home.

Choose a clean, friendly, fully-staffed facility with a record of high-quality care.  Statistics have linked staffing shortages with greater use of antipsychotics on elderly dementia patients, for whom proper care normally consumes a lot of staff time.  Compare nursing homes on factors like the number of direct-care staff, staff time spent per patient, health inspection results, and others.

Look for your nursing home on Medicare’s Nursing Home Compare website, offering information about every U.S. Medicare/Medicaid-certified nursing home.  For a resource focusing specifically on the use of antipsychotic medications among elderly dementia patients in nursing homes, check for recent statistics about many Kentucky nursing homes in the Boston Globe’s national database.

Know your medical care needs.

Learn about the causes and symptoms of your loved one’s dementia.  Because elderly people have unique reactions to antipsychotics, elderly dementia care should first be approached with alternative treatments.  Dementia symptoms like agitation or confusion may be eased by involving elderly dementia patients in a variety of activities, keeping a consistent routine, and using other behavior management techniques.

Peruse care records.  Every nursing home resident (or decision-maker for a resident) has the right to access medical records and other records.  You can and should be involved in helping create the nursing home’s “care plan” for managing your loved one’s dementia symptoms in a way that promotes the most functional lifestyle.  Ask questions.  Visit your loved one frequently, at varying times of day, to see whether the nursing home staff treats your loved one (and others) with care and respect and whether the nursing home follows the care plan.

Know your legal rights.

Learn about federal and state law legal rights that protect nursing home residents.  A basic list of federal legal rights is published on the Center for Medicare and Medicaid Services (CMS) website.   The office of the Kentucky Attorney General offers a guide to protecting Kentucky nursing home residents from harm.  On the issue of antipsychotic drugs, some of the most important patient rights include:

  • Informed consent.  Every nursing home resident has the right to an explanation of the medical risks posed by new medications or medical procedures, before giving written consent to that treatment.  Read everything you sign.  Ask questions.  If in doubt, get a second opinion.
  • Proper medical care.  Antipsychotics are dangerous for elderly dementia patients.  Ask about alternatives.  If you’re told there are none, get a second opinion.
  • Freedom from restraint.  Every Kentucky nursing home resident has the right, under state law, to be free from physical or chemical restraint unless there’s an emergency, which must be:

­   Justified in writing by a doctor;

­   Limited to a specific time period; and

­   Documented in medical records.

  • Freedom from neglect/abuse.  In Kentucky, the wrongful use of antipsychotic medications to sedate elderly dementia patients is a form of nursing home neglect.

Know how to enforce legal rights.

If your loved one becomes unable to make his or her own medical decisions, and there is no health-care surrogate document designating a person to make decisions, you should obtain legal advice about seeking a guardianship through a court order.  This allows the appointed guardian to access to the patient’s confidential medical information, make decisions about care, and enforce the resident’s legal rights.

A nursing home resident’s legal rights can be enforced in several ways.  First, you should report problems to the nursing home staff or administrator.  The law requires a nursing home to investigate and respond.  You can report unresolved problems to state or federal authorities that regulate nursing homes.

For Kentucky help with suspected neglect or abuse, you should contact Adult Protective Services, operated by the Kentucky Cabinet for Health and Family Services, by calling 1-800-752-6200; or contact the Kentucky Attorney General’s office at 1-877-228-7384 (877-ABUSE-TIP).  For complaints about nursing home facilities, call the Office of the Inspector General, at 1-502-564-7963.

A Kentucky nursing home resident has a private legal right to sue a nursing home in court for negligence, neglect, abuse, or other violations of legal rights that cause injury or death.  Not every nursing home mistake will support a lawsuit, but rights can be enforced.  Money damages for actual losses as well as punitive damages can be awarded in personal injury or wrongful death cases.

Contact me at (502) 650-8791, for more information about nursing home resident legal rights.  If someone you care about has been hurt under circumstances that you suspect were the nursing home’s fault, seek legal advice immediately from an experienced Kentucky attorney who cares about the safety of nursing home residents.  I’m here to help.