It is a tragedy in the making, a train wreck. A problem of epic proportions that simply does not get the oxygen that the story deserves.

Channel 8 in Dallas recently ran a story about the “quality” care nursing homes routinely dispense in Texas. The findings, 96 percent of Texas nursing homes admit they’re giving drugs to residents who don’t need them. 96 percent. The conclusion, it is cheaper to numb our elderly with antipsychotic drugs than it is to pay caregivers to actually care for the elderly.

Click here to read the article.

How do they do it?

It is easy really. Just document a condition in medical records that the home controls to justify the prescription, issue the prescription and control the patient with anti-psychotic drugs. How do we know it is occurring? It is a simple matter of looking at the most common diagnosis’ that will support a prescription for antipsychotics and compare the percentage to the general population of folks of the same age. The result, diagnosis of schizophrenia has skyrocketed in the elderly population when most of the population with legitimate schizophrenia is diagnosed when the patients are in their 20s. The intentional misdiagnosis of mental illness to justify drugging our elderly is at best a dangerous practice, at worst it is fraud.

It is not problem without real world consequences. Not only does this type of misdiagnosis result in unnecessarily higher Medicare payments for drugs which affects us all; immobilizing and numbing the elderly put them at risk of unnecessary falls and all manners of side effects from these drugs that is resulting in unnecessary injury and untimely death.

What about the lawyers? Why don’t they sue and stop the abuse?

Good question. The answer is that for all but the most heinous examples, cases of this type are only marginally economically feasible, if they are feasible at all. The law in Texas changed in 2003 to limit or put upper caps on recovery of non-economic damages at $250,000.00 while at the same time creating expensive and unnecessary procedures that must be followed to prevent the case from being dismissed and the defense cost taxed against the Plaintiff. In most nursing home cases, economic damages are really limited because the injured person is in the nursing home and not working, so they do not have lost earnings as an element of damages. So, the upper end recovery goes down and cost to get them goes up. There is a legislatively mandated disincentive to prosecution of these cases. In addition, most nursing homes ownership and operation occurs through a complex web of entities that essentially separates the money coming into the facility from the management and operation of the facilities. Because Texas has no requirement that these homes has any liability insurance (much less enough of the right type of coverage to force viability), while the corporate entities controlling the homes get a fortune in rent and consulting fees, the entity responsible for providing care is always undercapitalized and is usually, by design, functionally bankrupt. When there is any insurance, it is usually a very small declining balance policy that uses the policy benefits in one or two claims a year, leaving the home functionally uninsured. When you put it all together, a perfect storm of irresponsible conduct causing sometimes life ending injuries without significant consequences. Care not only does not improve, careful nursing homes are put at a competitive disadvantage in a race to the bottom when it comes to quality of care. We all lose and we fail those who cared for us when we were helpless.

Why can the operators just drug the elderly? Why can’t this be stopped?

It is because you and I have not demanded that our state make and enforce laws to protect our elderly instead of the profits of those who are controlling these homes. Nursing homes could be required to have per occurrence liability policies in a reasonable amount. Nursing homes could be exempted from the medical malpractice laws or those laws changed to allow a jury to find that the injuries were the result of fraudulent diagnosis of a mental condition and be fully responsible for all damages caused. If a local government entity is the owner of the facility, the legislature can create an exception to limitations found in the Texas Tort Claims Act when injuries were the result of drugs provided pursuant to a fraudulent diagnosis of a mental condition. The bottom line is that if you give private lawyers the tools to stop this madness, the free market will stop it. It is up to our representatives in Austin to give private lawyers the tools to put an end to the lunacy.

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If you are in need of a personal injury attorney in North Texas, please contact the team at McCraw Law Group today. We are ready to help you in a broad range of serious accident and injury legal issues, and offer multiple ways to reach us.

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