How to Deal With ‘Mysterious Bone Breaks’ in Nursing Home Cases
Why are unexplained bone fractures in nursing homes a red flag for abuse? These mysterious injuries can often be the first sign of deeper, systemic issues within a facility, yet they are frequently overlooked or misattribated to patient frailty. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Atty. Aaron D. Eiesland to discuss how to investigate and approach cases involving unexplained bone fractures in nursing homes, focusing on the legal implications and the rights of the residents and their families.
EIESLAND:
It was a veteran. He showed up with a broken shoulder. These aren’t insufficiency fractures or spontaneous fractures. You’re not going to break a shoulder. You are being picked up and get dropped. This case dropped vertically, a tibial plateau fracture. Ursuline like your femur smashes into your tibia and breaks it.
SCHENK:
Hello out there, everybody. Welcome back to the podcast. My name is Rob. I will be your host for this week. We have a really interesting and niche. Topic this week, talking about cases in which the mechanism for a bone fracture is unknown. How do we maneuver around the argument or how do we address the argument that this individual resident?
Has had a spontaneous break, not due to any negligence, perhaps not even due to any interaction or any interface with the nursing home staff themselves. But we’re not doing that alone. We have the fantastic trial lawyer all the way from South Dakota, Aaron Eastland with the city to talk about that.
We have the fabulous trial attorney, Aaron Eiesland. Aaron is a dedicated trial lawyer specializing in personal injury, wrongful death, and nursing home abuse cases in South Dakota, a graduate of the university of Wyoming. And nuts in the law school. He has decades of experience in state and federal courts.
Aaron has secured millions in compensation for clients and has served on multiple legal committees, a committed advocate. He continues to fight for justice while staying active in his local community. And we’re so happy to have him today. Aaron, welcome to the show.
EIESLAND:
Thank you. Thank you for having me.
I saw in your bio that you sent to us that you are a baseball fan, longtime baseball aficionado. As we are recording this, I believe the current president is possibly going to pardon Pete Rose. And there’s talk of him becoming eligible for the Hall of Fame. Do you have an opinion on that?
EIESLAND:
I think Pete Rowe should be in the Hall of Fame just because of what he did on the field.
But I don’t think a pardon is going to get him anywhere. The Major League Baseball Writers Association has a different set of rules they play by.
SCHENK:
I hear you. All I know is that, I grew up in the eighties playing baseball, little league baseball. And it was, and I’m from Nashville, so our triple eight team was the farm team for Cincinnati.
And so like you’d have Pete Rose day and things like that. So I grew up, we grew up idolizing him. So can’t go wrong
EIESLAND:
with Charlie hustle.
When is the break mysterious?
SCHENK:
Yeah, that’s right. That’s right. One of my friends, I was envious of him because he had a video cassette and I think it was playing baseball, the Pete Rose way.
And it taught you like, it taught you how to play pepper, like to practice before the games and such like that. So anyway, I digress. So Aaron, I thought that you’d be the perfect person to have on the podcast to talk about this subject. You are awesome. Definitely experienced in cases involving situations in which our resident has a broken bone.
Usually I would say a leg, but there’s no history like we just, oh the resident has now presents in pain and there’s bruising, but wasn’t found on the floor. There, there was no incident to speak of, but we have this individual with a broken leg. So I just wanted to start from there.
Like what, when the when you had that type of case and the facility is telling you We don’t know. So you can’t know either. Where do you go from there?
EIESLAND:
Yeah, that’s a, unfortunately it’s a very common situation that you run into when some family members come in with their person that has, be whatever loved one it is with an unexplained injury.
Typically, the first thing, of course, you’d get the records, but the records will just recite basically what the hypothetical that you just laid out, which is this person just presented with an unexplained injury. So the very first place to go is to go check into the staffing needs after you get the nursing home records.
In particular, the what’s required of that resident, if it’s they’re an assist person, a two person assist, or anything along those lines, or if there’s a lift involved, right away you want to get to the staffing. Because what you usually can quickly find out, there’s a lot of moves that are made with only one staff member where they were required to.
And that’s usually a quick and dirty way to find out. What we’re looking for, because unexplained injuries for immobile people, something happened to them. Now I’ve had the cases where there’s been spontaneous, where they’ve claimed spontaneous fracture, and I know that’s Oh, insurance companies, and I had a case against the federal government for a veteran in a veteran’s home with, they claimed spontaneous injuries.
Those type of things, it’s the same issue, you go right to what was the staffing, when was it first noticed, can this person even get around to cause themselves an injury, so that’s the real hallmark is how many people are working and who was there. Whichever days, because usually the person can’t hurt themselves.
Examine the clinical approaches to diagnosing and managing fractures in the elderly as discussed in this article.
SCHENK:
And so that would be, that would be that’s the crux of it. If an individual is immobile, they, it’s not like they can get up and walk around and they fell and hurt themselves. In other words your analysis is that this happened more than likely during some type of transfer or some type of movement.
And so let’s start from there then. How do you know? So how do you know which shift to look at and how do you know, let me even back up, let me back up for a second. How do you even know how many people should be helping a resident do any particular thing?
EIESLAND:
The care plan will always state how many, if a person’s a one person assist, a two person assist, a standby assist.
So the care plan is the very first thing you’re going to look at. Those are all required. They’re all followed. CMS guidelines, and they’re all set out in CFR so you can quickly find out how many people should be helping if it’s a transfer, so for bed to chair, bed to wheelchair, bed to get down the hall, whatever it might be, or even if it’s turning and positioning, if you have a large individual.
Sometimes it’s a two person assist because nursing home beds are only so wide that you might need two people just to even turn a resident or if they’re a non compliant resident, maybe they fight people. Sometimes there’s a two person assist for that, but that will all be found in the care plan.
So when you get the records, the nursing home records, trick is always getting the full and complete record, but they have to have it. Because they have to use the care plan and what they submit to get paid. And so the easiest way to find information, I can circle back to this in different ways, but always follow the money is the golden rule.
So they want to get paid. And so they have to record certain things to get paid either by private insurance. Or by the government, state, federal government through Medicare, Medicaid, whatever it might be, follow the money. And so you will know in the care plan on how many people should be there. Then it’s a matter of tracking on how many people were likely there.
SCHENK:
And how do you, and like how do you typically do that? Is it just a matter of okay, let’s look at. Maybe the ADL logs, if there are any, and you can see, okay, this happened with this many people. Is that kind of where you’re going?
EIESLAND:
Yeah.
Medication logs are really good. Any one of the ones that have, where people are jotting down initials, handwritten. Initials on in most cases now, everything’s moved to electronic records, but you can still usually find everyone has to initial off. Yes. I gave them these, these medications after dinner or whenever it may be a big, another big hallmark or just big gaps in the care plans or not in the care plans, but in the nursing notes, so if there’s no notes for somebody that’s immobile.
Say that they’re essentially bedridden. If there are no notes for that person for a couple of days. Then go to the drug pages and go see when they were or go to the food, their intake and output, look at those, there’ll be initials by each person because they want to get paid for that activity by either the insurance company or by the federal government, doesn’t really matter that will tell you who’s working because there’ll be initials by it.
And now you know which employees were working that day, so you know who to depose, but you also can start seeing if there are gaps. And so those turning repositioning, there’s always a log. And so you go through the logs and find where they’re actually turning and repositioning. Now, a lot of times that’s where you can find the scams where people don’t get their paycheck unless they come in and initial a whole bunch of blanks.
Charting parties. Yeah. We’ve had that. We used to be Beverly Healthcare, but we’ve had that instance where they would line everybody up. And if you want to get your paycheck here’s these, here are these logs you’re working these shifts. You better initial these. You did them, right? Yeah. I think I did.
I always do all my stuff. Okay. Initial.
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SCHENK:
I feel definitely in my experience that’s happened, but I guess it’s I think at this point now a little bit more easily traceable with EMRs I’ve had making sure, for example, on the show, talking about audit trails, and you can tell when people log in and when people do think so, if you’re, in suit, And you’re overcome the objections from the judge and you actually get that it’s a process, but yeah, definitely charting parties.
You just come in and just click everything that you need to click to show that you’ve, you were there.
EIESLAND:
Tell me that have the records. There are also other websites and things, especially that you can go to. They still want to get paid. And if it’s coming from the federal government, the money is or any part of the facility.
They have to log with the federal government of how many people were working that day. So what they’re telling you doesn’t match up. Believe me, they’re gonna put down everybody that was working that day because they want to get paid for every employee that’s there. And so if search through data.
cms. gov is a good website for a lot of those kind of things. There’s, a few other websites. You can find out exactly Whatever, whichever day or whichever week you can track how many nurses and how many RNs and how many CNAs and everybody else that they are receiving funds for that day, or even break it down into shifts and find out how many of their staying are getting paid.
It’s funny if the names don’t, if they don’t produce enough names for how many people are getting paid there’s obviously a red flag and your. Nursing home experts should be able to have a field day with some of that.
Learn about the types, causes, and treatments of bone fractures on the Better Health Channel.
SCHENK:
It’s funny that you mentioned that. So what Aaron is talking about, at least in part, is what’s called the payroll based journal.
It’s essentially the facility has to upload to CMS a journal of who they’re paying in terms of nursing and nursing hours on per day per shift. And I had an entire episode where I did it myself, no guest. I pulled up the website, went through it like picture pages, and then I was done. I was so proud of the job that I did on this episode of the podcast that you could walk through it.
And I, just from start to finish, how can you determine how many nurse hours are in a place? And I had forgotten to turn my microphone on.
EIESLAND:
Apologies right now. I am we got some snow last night. And so my, one of my dogs is barking because a work truck went into the ditch earlier this morning. So there’s a lot of activity going on across the road from us. So no worries. You got impressed with the tow truck drivers, apparently.
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What info or testimony do you like to get to overcome?
SCHENK:
No worries. No worries. We had Dawn Smith on maybe not last week, maybe the week before last and her dog visited the show as well. So the, we’re the nursing home abuse podcast is open to, to, to animals of all kinds, dogs and cats.
So let me ask this. So you talked about. The facility sometimes will say sure, you’ve got all this data about people. Not, maybe we don’t have enough people on staff on a particular shift, but that’s not what happened. What happened is that this individual had a spontaneous break. So in your experience, tell me about that.
What is their position? Like how, what is the science behind, or at least what is the argument behind a spontaneous break? And how do you overcome that argument?
EIESLAND:
Sure. The best way and the most successful way I guess I had in a particular case was against the Department of Veterans Affairs for a gentleman who was a veteran and was completely immobile in bed, couldn’t move, couldn’t do any, had to be turned, those kinds of things.
He showed up with a broken shoulder and he previously was complaining of knee injury. So when he, when his shoulder was causing him so many problems and he wasn’t, He had dementia and so he couldn’t communicate very well, and it’s included in the notes Although he did tell it’s in the notes and did tell a family member.
They dropped me he does not also he was not a good historian of himself because he had severe dementia So in that case what we do is go to a radiologist And then the radiology reports and the types of injuries that were done I took those to a radiologist and the radiologist then can establish these aren’t insufficiency fractures or spontaneous fractures.
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You’re not going to break a shoulder. In this case, he also had A healing tibial plateau fracture, which is something you’ll see with somebody that’s been jumping possibly, it’s a, not the kind of injury that just breaks if you’re turning someone in bed. So once you have the radiologist on, they can come in and go, okay, is this an acute fracture?
Is it, has it been healing like the knee injury had been healing for a little bit of time, but that type of injury isn’t the type of injury you would sustain just being turned over in a bed or placed into a wheelchair. It will be if you are being picked up and get dropped, in this case dropped vertically.
So you’re a tibial plateau fracture occurs when like your femur smashes into your tibia and breaks it. So it’s a vertical. So you’re not going to get that rolled over. And so that’s why you use a radiologist and they’ll go, this isn’t the kind of fracture you would ever see. It’s more likely than not to a reasonable degree of medical certain, and this person’s been dropped probably because they’ve been stood up or picked up.
Drop, and they blend it with their legs straight and bang their femur into their tibia and their bones are obviously weak and that’s why they use the defense of insufficiency, but the bones are weak and they break shoulder. Fracture is more consistent with the usual type of deal, taking somebody out of bed and dropping them on the floor, fall broken shoulder.
This was an upper humerus right at the ball with the shoulder.
SCHENK:
I see. So I guess, I guess the idea from their standpoint, is that this mysterious break is occurring during normal, non negligent movement of the resident, either by the resident on their own or during a transfer? Because the, I guess they’re saying the resident even with limited mobility might can ship themselves in bed and that based on the fact that their shoulders, deteriorated and they’re, and they might be elderly or have whatever clinical condition.
That’s what causes the break. And I guess then the radiologist, as you say, comes in and goes, no, the to break like this requires much more force. Then you can muster by just rolling on your own or just simply non negligent maneuvering of the resident,
EIESLAND:
right? You know in that case in particular the gentleman was about a hundred and forty pounds So just rolling on to one shoulder in a bed I mean he even lacked the strength to really reposition himself for the most part But just rolling over onto the shoulder.
That was their experts excuse. I probably just turned over and it broke, and that was a federal tort claim. So it’s in front of a federal judge. Judge just rejected that. In this findings after trial that. Went along with our radiologist going, that is not the kind of fracture that happens, a spontaneous fracture of somebody, it’s very little movement and something might break, a bone just doesn’t suddenly snap and these folks have so little muscle mass anyway, so they’re not putting big loads on any of their joints.
So the radiologist, you get a good radiologist, they can handle these things.
Discover how nursing homes can be held liable for injuries from falls in our podcast, How Nursing Homes Can Be Liable for Injuries from Falls.
What is RES IPSA?
SCHENK:
Tell me about, and this is like this is going to give me nightmares of first year of torts class. But rest IPSA, the idea of, is it possible that you can say, which I guess it’s not, but is it possible to say a fracture of a femur, a fracture of a shin or shoulder that doesn’t just happen without IPSA argument in the situation?
EIESLAND:
In that case, in the Hauser versus United States case, that’s precisely how we won the case and that’s precisely a theory we went on because no one would fess up to the injury, but this person is using the nursing home expert says, and the met going through the medical records as well. This person is 100 percent dependent on the care given by the nursing home.
Basically, this person can’t hurt themselves. So it took an outside force. You’re the nursing home you have specifically laid out you need a two person assist, this is what has to happen for this person to even move. You’re the complete custodian of the person. So it the fact that it’s a person isn’t any different than if it had been a Fabergé egg.
And all of a sudden it turns up broken. The egg can’t break itself. The person can’t break itself in this case. And so that was actually the judge’s finding, this is you’re in complete control of the care of this person. So even if we can’t point to an exact specific person, your duty is where to make sure this person does not get injured in an unusual way.
Therefore, the fact that this injury showed up, you’re at fault. You didn’t protect that person.
Learn about the legal responsibilities of nursing homes in employee-related negligence in our podcast, Can a Nursing Home Be Held Liable for Employee Negligence?
SCHENK:
Interesting.
EIESLAND:
And I can send, I think I sent it to the nursing home litigation group board, but the decision on it, Judge Pearsall did a very nice work on the decision, laying out the findings in that case, but they can be applied to, any other of these mysterious injury ones, because that’s typically the case when we circle back to the start.
Explore the key insights from Judge Pearsall’s decision document on a recent nursing home lawsuit regarding unexplained injuries.
The understaffing, who knows who ran to the room and maybe moved the person, they might have gotten banged around. This person’s always whining and complaining anyway. And then they put them back into bed and off they go. We’ve had, in previous cases, 101 year old lady or a hundred year old lady, almost 101, she turns up in bed with a broken hip.
Now that one, we finally got a confession out of uh, CNA as to a drop. But that was, a similar kind of thing. I’ve had another case where somebody turns up with a pelvic fracture, and that one, it was, that case ended up settling, but that was more than likely because of the personnel.
There was probably a sexual assault. But There was a pelvic fracture to them. I always screw this up. I think it’s the ilium. I think it’s what it’s called. Don’t ask me. It’s not a hip fracture. It’s a pelvic fracture. That’s, a hallmark of only certain kinds of injuries, and she wasn’t a person. Riding a bike and fell hard onto her seat kind of thing.
Learn about the conditions under which a nursing home can evict a resident and the legal implications of such actions in our podcast, When Can a Nursing Home Evict a Resident?.
Common arguments the nursing home makes.
SCHENK:
I feel like these cases, they, it’s almost, they almost have to be filed. You’re going to have to get things that you wouldn’t, that wouldn’t be available to you pre suit. Like you’re going to have to depose people, things like that.
EIESLAND:
Typically. Unless, quite a bit. Once you have the nursing home records. That usually tells you exactly, okay, where do we need to go, do we I know you’ve probably done a lot of depositions as well. Former employees are always your best friend because they may or may not have any, stock or trade or anything else with the facility.
They don’t care about that facility anymore. And it’s probably not the bad actor, but somebody else that was working with those ships can go. Oh yeah, we never had. There’s one CNA assigned to 15 rooms and some of the rooms are double rooms. So there’s 30 some people. And so lots of times we went and turned people just by ourselves.
Okay the person’s a two person assist and now they’ve turned up with a broken bone. Okay, you’re gonna only find that in discovery, or you might be able to talk to that person, if they’re a former employee, if you can find it in the record, but the record is going to get you so far down the road. If you get a complete nursing home record, I like to have the family request the nursing home records first.
Explore the tactics nursing homes use to cover up abuse or neglect in this insightful podcast episode, What Are the Ways That Nursing Homes Attempt to Cover Up Abuse or Neglect?.
And then go through it, because I know it’s supposed to be in there. And when it’s not, then we come back and ask for records again. And when the two sets don’t match up, once you file suit and things, those are always a nice little piece of evidence to have it going. You’re not giving us, when the release said give us the full record, you didn’t.
You didn’t give us the care plans. You didn’t give us any of the stuff you sent to CMS. You didn’t give us any of those things. You gave us medication reports. And those, where’s the dietary stuff? Where’s the medications? Where are all those things? Where are the CNA notes? Where are the daily logs?
SCHENK:
Yeah, I think they don’t give those over a lot of time. I feel like it’s often time with having the resident family request the records you’re dealing with two layers of problems. 1 is when it’s nefarious sometimes they’re directed not to give categories of documents. And other times, I think it’s most of the time, at least in my experience, it’s just, you’re dealing with people that aren’t, they don’t have any skin in the game and don’t care and don’t do a good job and it’s not on purpose. You’re not getting the Mars or Tars. It’s just incompetence.
EIESLAND:
But but yeah, no, it’s getting used to be the worst problem when there was mostly paper records. Now, with electronic records, it’s a little easier.
’cause if somebody had to go in the basement and copy and then they’d wanna send you a bill for a thousand dollars for copying the record. Exactly. Or are they still trying to do that to the family? To scare ’em off? The game is played when you just have to put in their social security number and hit, find the resident, hit print or download it onto a CD
Up to a Dropbox or whatever it might be.
SCHENK:
Exactly. Aaron, I really appreciate you coming on the show and sharing your knowledge with us today. Thank you so much.
EIESLAND:
I’m happy to do so and I can forward along, later on some of these other websites and things that I guess I utilize. Obviously, like the five star system and some of those, they don’t provide you a whole lot of information, but nursing home surveys.
Depends on what state you’re in. South Dakota has a pretty decent nursing home survey system set up on the Department of Health. You can find a lot of information about a facility and complaints and things like that. That’ll get you a long ways down the road to see. If your case fits when one particular thing was going on during a survey period.
So I’m happy to, I’m glad you reached out and good luck to you out there on, on nursing home cases.
Understand the dynamics and prevention of resident-to-resident incidents in long-term care facilities through our detailed discussion, Resident to Resident Incident.
SCHENK:
Thank you. Folks, I hope you found this episode entertaining and educational. If you have any ideas for a topic that you would like for me to talk about, please let me know. If you have an idea for a guest that you would like for me to talk to.
Let me know that as well. New episodes of the nursing home abuse podcast come out every single Monday. And we appreciate your viewership. We appreciate you listening. And with that folks, we’ll see you next time.