What can I do if my healthcare employer is neglecting patients care?
Full Question:
Answer:
According to the Massachusetts Office of Health and Human Services, you are required by the Patient Abuse Statute (M.G.L. c.111, 72F-L) to report whenever you suspect there has been an instance of patient abuse, neglect, mistreatment, or misappropriation of a patient's property to the Massachusetts Department of Public Health. You can do so by writing or sending a fax to:
Complaint Unit
Massachusetts Department of Public Health
Division of Health Care Quality
99 Chauncy Street
Boston, MA 02111
Fax number: 617-753-8165
DPH Hotline: 1-800-462-5540
The following are Massachusetts statutes:
G.L.c. 111, § 72F. Definitions applicable to secs. 72F — 72L
Section 72F. As used in sections 72F to 72L, inclusive, the following
words shall, unless the context clearly requires otherwise, have the
following meanings:
"Abuse", the willful infliction of injury, unreasonable confinement,
intimidation, including verbal or mental abuse, or punishment with
resulting physical harm, pain or mental anguish or assault and battery;
provided, however, that verbal or mental abuse shall require a knowing and
willful act directed at a specific person.
"Facility", an entity required to be licensed under section 71.
"Home health aide", an employee of a home health agency or a hospice
program who provides health services to individuals in a home setting.
"Home health agency", an entity, however organized, whether conducted
for profit or not for profit, which is advertised, announced, established
or maintained for the purpose of providing health and homemaker services
to individuals in a home setting.
"Homemaker", an employee hired by a home health agency or a hospice
program to perform homemaking tasks in an individuals home, including the
essential nutritional and environmental needs of the individual, such
as, meal preparation, cleaning and laundry.
"Hospice program", an entity required to be licensed under section 57D
or a hospice service of a hospital licensed under section 51.
"Misappropriation of patient or resident property", the deliberate
misplacement, exploitation or wrongful, temporary or permanent use of a
patients or residents belongings or money without such patients or
residents consent.
"Mistreatment", the use of medications or treatments, isolation, or
physical or chemical restraints which harm or are likely to harm the
patient or resident.
"Neglect", failure to provide goods and services necessary to avoid
physical harm, mental anguish or mental illness.
"Nurse aide", an individual who is not a licensed health professional
but is employed by a facility which provides nursing or nursing-related
services to residents.
"Patient", an individual who receives health, homemaker or hospice
services at home from an individual employed by a home health agency or a
hospice program.
"Religious accommodation", no person shall be considered to be abused
or neglected for the reason that such person, in accordance with his
express or implied consent, is being furnished or relies upon treatment
by spiritual means through prayer alone in accordance with a religious
method of healing in lieu of medical treatment.
"Resident", an individual who resides in a long term care facility
licensed under section 71.
G.L.c. 111, § 72G. Reports of abuse of patients
Section 72G. A physician, medical intern or resident, physician
assistant, registered nurse, licensed practical nurse, nurse aide,
orderly, home health aide, hospice worker, homemaker, administrator,
responsible person, medical examiner, dentist, optometrist, optician,
chiropractor, podiatrist, coroner, police officer, speech pathologist,
audiologist, social worker, pharmacist, physical or occupational
therapist or health officer, paid for caring for a patient or resident,
who has reasonable cause to believe that a patient or resident has been
abused, mistreated or neglected or had property misappropriated, shall
immediately report such abuse, mistreatment or neglect or
misappropriation of patient or resident property to the department by
electronically transmitted report, facsimile or oral communication and,
if by oral communication, by making a written report within 48 hours
after such oral communication. Any such person required to make such oral
and written reports who fails to do so shall be punished by a fine of not
more than $1,000.
In addition to those persons required to report pursuant to this
section, any other person may make such a report if such person has
reasonable cause to believe that a patient or resident has been abused,
mistreated or neglected or had property misappropriated. Any person
making an oral or written report pursuant to this section shall not be
liable in any civil or criminal action by reason of such report if such
report was made in good faith. In a civil action commenced against a
person making such report, if the court finds in favor of the defendant,
the court shall order the plaintiff to pay the defendant reasonable costs
and expenses including, but not limited to, attorneys fees, lost wages
and court costs.
No facility, home health agency or hospice program shall discharge, or
in any manner discriminate or retaliate against any person who, in good
faith, makes such a report or testifies or is about to testify in any
proceeding about the abuse, mistreatment or neglect of a patient or
resident or the misappropriation of a patients or residents property. A
facility, home health agency or hospice program which discharges,
discriminates or retaliates against such a person shall be liable to the
person so discharged, discriminated or retaliated against, for treble
damages, costs and attorneys fees.
A written report shall contain the following information where
applicable:
(i) the name and gender of the patient or resident;
(ii) the
home address of the patient;
(iii) the name and address of the facility
in which the resident resides;
(iv) the name and address of the home
health agency or hospice program;
(v) the age of the patient or
resident, if known to the reporter;
(vi) the name and address of the
reporter and where such reporter may be contacted;
(vii) any information
relative to the nature and extent of the abuse, mistreatment or neglect
or the misappropriation of patient or resident property;
(viii) if known
to the reporter, any information relative to prior abuse, mistreatment or
neglect of such patient or resident or misappropriation of such patients
or residents property;
(ix) the circumstances under which the reporter
became aware of the abuse, mistreatment or neglect or misappropriation of
property;
(x) if known to the reporter, whatever action, if any, was taken
to treat or otherwise assist the patient or resident;
(xi) any other
information which the reporter believes might be helpful in establishing
the cause of such abuse, mistreatment or neglect or misappropriation of
property and the person or persons responsible therefor; and
(xii) such
other information as may be required by the department.
Any privilege established by section 20 or section 20B of chapter 233,
by court decision or by professional code relating to the exclusion of
confidential communications and the competency of witnesses may not be
invoked in any civil action arising out of a report made pursuant to this
section.
For the purposes of this section, the term "written report" shall
include, without limitation, an electronically transmitted report and
facsimile.
G.L.c. 111, § 72H. Duties of department
Section 72H. The department shall, subject to appropriation:
(1) notify the attorney general forthwith upon receipt of an oral or
written report made under the provisions of section 72G;
(2) investigate and evaluate the information reported in any such
report. Such investigation and evaluation shall be made within 24 hours
if the department has reasonable cause to believe the patients or
residents health or safety is in immediate danger from further abuse or
neglect and within seven days for all other such reports. The
investigation shall include a visit to the facility, the home health
agency, the hospice program or the home of the patient, an interview with
the patient or resident allegedly abused, mistreated or neglected or
whose property was allegedly misappropriated, a determination of the
nature, extent and cause or causes of the injuries, the identity of the
person or persons responsible therefor and all other pertinent facts. Such
determinations and evaluations shall be in the form of a written report;
(3) evaluate the environment of the facility named in the report and
make a written determination of the risk of physical or emotional injury
to any other residents in such facility;
(4) forward a copy of the departments written report to the attorney
general within a reasonable time after a case has been investigated;
(5) if it has reasonable cause to believe that a patient or resident
has died as a result of abuse, mistreatment or neglect, immediately
report such death to the attorney general, the district attorney for the
county in which such death occurred and the medical examiner as required
by section 3 of chapter 38; and
(6) promulgate such regulations as may be necessary to implement the
provisions of sections 72F to 72J, inclusive.
G.L.c. 111, § 72I. Filing of reports; confidentiality
Section 72I. The department shall, subject to appropriation, maintain a
file of the written reports prepared pursuant to sections 72G and 72H.
The report submitted by the mandatory or nonmandatory reporter to the
department and the report prepared by the department following its
investigation shall be confidential.
The patient or resident or counsel therefor, the reporting person or
agency, the appropriate professional board of registration or a social
worker assigned to the case may, upon written request and the approval of
the commissioner, receive a copy of the departments written report.
The departments written, report shall not be made available to any
person other than those authorized herein without the written, informed
consent of the patient or resident or the written approval of the
commissioner or an order of a court of competent jurisdiction.
The reports prepared by the department shall contain no identifying
information relating to a patient or resident.
A person who causes any information which is contained in the
departments files maintained pursuant to section 72I to be released
without authorization to persons or agencies other than those specified
in this section shall be punished by a fine of not more than $1,000 or by
imprisonment for not more than two and one-half years, or both such fine
and imprisonment.
G.L.c. 111, § 72J. Registry; establishment; documented findings of patient
or resident abuse
Section 72J. The department shall, subject to appropriation, establish
and maintain a registry of all individuals who have met the federal
requirements for competency contained in 42 U.S.C. §1396r and have been
certified as nurse aides for employment in a facility. A facility, other
than a rest home, shall only hire or employ on a paid, unpaid, temporary
or permanent basis, a nurse aide who is listed in said registry as having
demonstrated competency as defined by department regulations.
The registry shall also contain specific documented findings, made in
accordance with the provisions of this section, by the department of
patient or resident abuse, mistreatment or neglect or misappropriation of
patient or resident property involving:
(1) an individual listed on the
registry,
(2) a home health aide, and
(3) a homemaker and a brief
statement by the individual disputing such findings. In the case of
inquiries to the registry concerning a nurse aide, a home health aide or
a homemaker, any information disclosed concerning such a finding shall
also include disclosure of any statement in the registry relating to the
finding or a clear and accurate summary of any such statement. All
facilities, home health agencies and homemaker agencies shall contact the
registry prior to hiring an employee to ascertain if there is any finding
of patient or resident abuse, mistreatment, neglect or misappropriation
of patient or resident property against a nurse aide, home health aide or
homemaker. No facility, home health agency or homemaker agency shall hire
an individual whose name appears in the registry with an adjudicated
finding of patient or resident abuse, mistreatment, neglect or
misappropriation of patient or resident property if such individual is
under a suspension imposed by the department under the terms of this
section.
The department shall, after notice to the nurse aide, home health aide
or homemaker involved in an allegation of patient or resident abuse,
mistreatment or neglect or misappropriation of patient or resident
property and a reasonable opportunity for a hearing for the individual to
rebut such allegations, make a finding as to the accuracy of the
allegations. If the department finds that a nurse aide, home health aide
or homemaker has abused, mistreated or neglected a patient or resident or
misappropriated patient or resident property, said department shall
notify the nurse aide, home health aide or homemaker and the employer
thereof and the registry of such finding. The department shall not make a
finding that an individual has neglected a patient or resident if the
individual demonstrates that such neglect was caused by factors beyond
the control of the individual. Upon making such finding, the department
may suspend the right of such individual to work as a nurse aide, home
health aide or homemaker. The department shall include the terms of any
such suspension in the registry and no facility, home health agency or
homemaker agency shall hire said individual until such suspension has
been served to its completion.
G.L.c. 111, § 72K. Definitions; civil penalties; recovery by attorney
general.
Section 72K. (a) As used in this section, the following words shall,
unless the context clearly requires otherwise, have the following
meanings: —
"Bodily injury", substantial impairment of the physical condition
including, but not limited to, any burn, fracture of any bone, subdural
hematoma, injury to any internal organ, or any injury which occurs as the
result of repeated harm to any bodily function or organ, including human
skin.
"Serious bodily injury", bodily injury which results in a permanent
disfigurement, protracted loss or impairment of a bodily function, limb
or organ, or substantial risk of death.
"Sexual assault", a violation or attempt to commit a violation of
section 13B, 13F, 13H, 22, 22A, 24 or section 24B of chapter 265 or
section 3 of chapter 272.
(b) The attorney general may file a civil action against a person who
commits abuse, mistreatment or neglect of a patient or resident or who
misappropriates patient or resident property, or against a person who
wantonly or recklessly permits or causes another to commit abuse,
mistreatment or neglect of a patient or resident or who misappropriates
patient or resident property. The civil penalty for such abuse,
mistreatment, neglect or misappropriation shall not exceed: $5,000 if no
bodily injury results; $10,000 if bodily injury results; $20,000 if
sexual assault or serious bodily injury results; and $50,000 if death
results. Section 60B of chapter 231 shall not apply to an action brought
by the attorney general pursuant to this section. Nothing in this section
shall preclude the filing of any action brought by the attorney general
or a private party pursuant to chapter 93A or any action by the
department pursuant to this chapter.
G.L.c. 111, § 72L. Abuse by licensed or registered professional; any
necessary disciplinary action including suspension or revocation of license
Section 72L. Upon a finding by the department of patient or resident
abuse, mistreatment or neglect or misappropriation of patient or
resident property or a failure to report such instances by a licensed or
registered professional, the department or the attorney general shall
notify the appropriate board of registration as provided in chapter 112.
If a licensed or registered professional has abused, mistreated or
neglected a patient or resident or misappropriated patient or resident
property or has failed to report such instances, the appropriate board
shall take any necessary disciplinary action, including suspension or
revocation of such persons license as provided in section 61 of chapter
112, subject to the prescribed procedures.
