Nursing Home Resident’s Wrongful Death Leads to National Ban on No-CPR Policies

In March of 2013, the wrongful death of 87-year-old nursing home resident Lorraine Bayless made national headlines.  Bayless did not succumb to natural illness, sustain a deadly injury, or pass away quietly in her sleep.  She died because a nurse at her California nursing home, Glenwood Gardens, refused to perform life-saving CPR — even as 911 operator Tracy Halvorson urged the nurse to intervene.  So why did the nurse refuse?  Are other seniors at risk of receiving the same treatment? What sorts of CPR laws and policies are nursing homes required to follow?  Philadelphia nursing home abuse lawyer Brent Wieand from a PA nursing home law firm explains.

CA Nursing Home Resident Dies After Nurse Refuses to Violate No-CPR Policy

After Bayless’ death, audio recordings of the 911 call placed to Tracy Halvorson were aired on countless news reports.

“Is there anybody that’s willing to help this lady and not let her die?” Halvorson can be heard asking the nurse, who has been identified only as Colleen.

“Um, not at this time,” comes the response.

“We need to get CPR started,” Halvorson urges later in the call, which lasted for approximately seven minutes.

“Yeah, we can’t do CPR,” Colleen replies.

As the call draws to a close, Halvorson seems to be losing patience.  “I don’t understand why you’re not willing to help this patient,” she says.

But for the nurse, the reasoning was clear: she was simply not permitted to help under Glenwood Gardens’ no-CPR policy.  But, whether ethically unwilling or legally unable to take a personal stand against the rule, Colleen eventually concedes.  Saying she’s “feeling stressed,” she finally asks Halvorson to dispatch EMTs from the Bakersfield Fire Department.  But by then, it’s already too late.

“They’ve been on the way all this time,” says Halvorson.  “But we can’t wait.  This lady is going to die.”

“Yeah,” says Colleen.

In the aftermath of the incident, news columnists, legal advocates, and medical professionals — many of them openly appalled — condemned the moral implications of Colleen’s response.

Dr. Joseph Fins, the chief of the division of medical ethics at Weill Cornell Medical College, remarked that “[the nurse is] confused about where their ethical north star is.”

Pat McGinnis, founder of California Advocates for Nursing Home Reform, stated that nursing homes “should not have a policy that says you can stand there and watch somebody die,” adding that Colleen’s conduct was “beyond comprehension.”

“I hate to judge anyone who might be worried about losing a job in this economy,” said Robyn Grant, director of public relations and advocacy for The National Consumer Voice for Quality Longterm Care, “but you’d really hope human decency would stand above policy.”

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Confusion and Contradictions Follow Bayless’ Death

It is tempting to simplify this incident by placing the blame squarely on the individual nurse, disregarding the role of the corporate policies which contributed to Bayless’ needless wrongful death. However, the fact remains that regardless of whether or not Colleen should have defied the no-CPR rule, it was Glenwood’s legal policies which allowed for this situation to occur, as PA nursing home lawyers can explain.

Glenwood was initially a staunch defender of Colleen’s implementation of policy.  Executive director Jeffrey Toomer stated, “In the event of a health emergency at this independent living community our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives.  That is the protocol we followed.”

However, the facility later backtracked on its support for Colleen, issuing a very different official statement: “This incident resulted from a complete misunderstanding of our practice with regards to emergency medical care for our residents.”

The investigation following Bayless’ death did not uncover any evidence of nursing home abuse, and the victim’s daughter, Pamela Bayless — a nurse herself — declined to sue the facility.  However, reactions from Pamela and the Bayless family have been sharply mixed.

“We understand that the 911 tape of this event has caused concern,” said the family in one public statement, “but our family knows that mom had full knowledge of the limitations of Glenwood Gardens and is at peace.”  Bayless, who had a do-not-resuscitate or “DNR” order on file, did not wish for her life to be prolonged in the event of a medical emergency.

Yet in another instance, when reporters from CNN called Pamela to discuss the incident, the response was dramatically different. When CNN informed Pamela that news station KGET was reporting her satisfaction with her mother’s medical care, Pamela responded, “I never said I was fine with that.  That was completely taken out of context, and I have no further comment.”  She then ended the call.

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Centers for Medicare and Medicaid Services Bans No-CPR Policies, Mandates Certification

The Bayless family described their loss as “a lesson we can all learn from.”  So what lessons have been learned?

Maribeth Bersani, who serves as senior vice president of the Assisted Living Federation of America (ALFA), indicated plans to overhaul CPR policies nationwide.  “Our members,” said Bersani, “are now looking at their policies to make sure they are clear.  Whether they have one to initiate [CPR] or not, they should be responsive to what the 911 person tells them to do.”  The ALFA describes itself as America’s “largest national association exclusively dedicated to professionally-managed, resident-centered senior living communities.”

On October 18, 2013, the Centers for Medicare and Medicaid Services (CMS) — which is part of the U.S. Department of Health and Human Services — issued a new directive addressed to state survey agency directors on the subject of “Cardiopulmonary Resuscitation (CPR) in Nursing Homes.”  The Memorandum Summary with which introduces the memo breaks the 21-page directive down into five basic points:

  • Revisions to Guidance — This portion simply states that the CMS is revising the old policies under Appendix PP under F155 of the State Operations Manual.
  • Initiation of CPR — This portion states that until EMTs arrive with an ambulance, nursing homes “provide basic life support, including initiation of CPR, to a resident who experiences cardiac arrest,” provided the resident does not have a DNR order on file.  This portion also states that nursing homes must always keep CPR-certified staff on hand to care for residents at all times — seven days a week, 24 hours a day.
  • Facility CPR Policy — This is arguably the most impactful portion of the updated CMS policies, bluntly stating, “Some nursing homes have implemented facility-wide no-CPR policies.  Facilities must not establish and implement facility-wide no CPR policies.
  • Surveyor Implications — This portion instructs surveyors to determine whether individual facilities’ policies comply with appropriate, CMS-approved CPR procedures.
  • CPR Certification — This portion states that nursing homes must stay up-to-date with staff CPR certification.  It also specifies mandatory “hands-on practice and in-person skills,” adding that “online-only certification is not acceptable.”  Exclusion of online certification is also enforced by the Occupational Safety and Health Administration, or OSHA.  The CMS allows that partial online certification is permissible, but still requires an additional in-person component to ensure proper use of technique.

CPR requires a much greater degree of physical force and medical knowledge than most media portrayals suggest, and the emphasis on proper technique is particularly critical to patients’ survival. The memo reports that the American Heart Association (AHA) states that unless effective CPR is applied within the four- to six-minute window following cardiac arrest, brain damage will begin to occur. Considering the approximate seven-minute duration of Colleen and Halvorson’s conversation, the grim but inescapable medical conclusion is that even had Colleen or EMTs proved able to save Bayless in time, she would likely have experienced serious limitations to her physical and/or mental functioning, as a nursing home abuse lawyer in Philadelphia, PA knows.

Surprisingly, the memo later mentions, “Research generally shows that CPR is ineffective in the elderly nursing home population.” The memo cites as evidence a 2006 study conducted by the Journal of the American Medical Directors Association (JAMDA), which found that post-CPR survival rates among the elderly plateaued around a maximum of just 11%.

However, the study also concluded that because the average age of the U.S. nursing home population is steadily decreasing, “policymakers and nursing home administrators will need to consider the effect of limited resuscitation on these potentially more viable and younger patients.”

The memo was specified to take effect immediately, which means its terms and provisions are applicable to all CPR incidents in nursing homes taking place on or after October 18, 2013.

For more information, feel free to refer to the original text of the CMS CPR memo.

Contact a Nursing Home Abuse Lawyer

If your parent, spouse, or elderly loved one passed away after their nursing home failed to provide CPR or other life-saving medical care, or if you are concerned about caregiver neglect, elder abuse, or under-staffing, the time to speak up is now.  Elderly residents have protected legal rights by state, and homes found in violation of state and/or federal laws may be liable for compensating victims and their family members for their pain and suffering, and expenses.

To schedule a free and private legal consultation, call Bucks County nursing home neglect attorney Brent Wieand at (888) 789-3161.  Your family’s information will always be kept confidential, and you will never be charged any attorneys’ fees unless Brent wins your case. Nursing home lawyer in Philadelphia, PA Brent handles personal injury claims, wrongful death lawsuits, and whistleblower lawsuits, and proudly serves seniors and their loved ones throughout the states of Pennsylvania and New Jersey, including Philadelphia and Atlantic City.

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