Nursing Home Negligence

Transcription

1 WHAT IS A CASE FOR NURSING HOME ABUSE OR NEGLECT? Michael R. O Connell The O Connell Law Firm, P.C., and thanks to Law Office of David A. Couch (Arkansas) 1780 S. Bellaire St., Ste 584 Denver, CO (303) mro@coloradoinjuryattorney.net The prosecution of a nursing home claim is unlike the pursuit of any other type claim. These claims should not be pursued in the same manner as medical malpractice claims. If the lawyer approaches a nursing home case in the same manner as he or she would a medical malpractice case, the client will likely not prevail. The focus of a nursing home case should be on circumstances that lead to the injury or death and not necessarily on the medical aspects of the injury or death. The trial lawyer must focus on the corporate philosophy and the resulting corporate decisions, to show that the corporate philosophy is responsible for the harm that occurred in the nursing home. The family of the victim of nursing home neglect entrusted their loved one to a nursing home which promised the family and society that it would take care of that person to the best of its ability. The case against the nursing home must be for a breach of that promise. To be successful, the lawyer must make the case that this promise was broken because the corporate ownership of the nursing home cared more about profits than people. Overview The operation of a nursing home is a business. Nursing homes serve an important function in our society. They take care of our elderly and infirm citizens when we no longer have the ability to care for them at home. Many nursing homes are owned and staffed by very good and caring individuals. However, as with any business, the goal of a nursing home is to operate at a profit. In and of itself there is nothing wrong with operating to make a profit. Obviously, businesses have to operate at a profit in order to survive. Unfortunately, some nursing home owners place more emphasis on making an excess profit than they do on providing for the needs of their residents. The most obvious way that business decisions made by the ownership affect the level of care given to the residents is in the understaffing of the facilities. Nurse and nurse aide staffing is the largest single expenditure in a nursing home s budget. It is also the easiest expenditure to control. A dollar not spent or budgeted for staffing directly increases the company s bottom line. The other major expenses which directly affect patient care are supplies and food costs, and these are also expenses which are easy for management to control. A well-managed nursing home can make a reasonable profit without sacrificing resident care. However, when the ownership makes business decisions to increase profits and these decisions result in injury or death to your client, the nursing home ownership should be punished for their profit-over-people mentality.

2 Using traditional methods to evaluate a personal injury claim would lead one to believe that a claim for nursing home neglect is not worth much in terms of financial value. The victim in the typical case has a limited life expectancy; likely suffers from numerous pre-existing conditions and has little in the way of medical expenses. Recently, at a nursing home seminar in New York, when asked how he evaluated a nursing home claim, an insurance adjuster commented along these very lines. Incredibly, he compared an individual dying from abuse or neglect in a nursing home to the death of a young child after being run over by a bus. He stated there were simply limited economic damages in each instance. However, with the right approach you can show that even an elderly or infirm individual s life is worth more than a nominal amount. Research shows that juries do not find sympathy to be a good motivator to move them toward a verdict in favor of the injured plaintiff. However, passion can be a very good motivator. The trial lawyer needs to make the jury angry about why the client was harmed and then the lawyer must empower the jury to effectuate a change. The lawyer s job is to show that the nursing home broke its promise to take care of the vulnerable person entrusted to the nursing home s care. Most importantly, the lawyer must demonstrate that the reason the decision-makers made the choices that they made was a result of corporation s undue emphasis on increasing its profit. Then, the lawyer can gently and generously hand the jury the opportunity to right this wrong. The lawyer must give the jury hope that its verdict will not only right a personal wrong for his client, but he or she must also educate the jury that it has the power to change the way the corporate ownership does business. In this way, the lawyer instructs the jury that its verdict will have lasting impact. The most common injuries that a lawyer who litigates nursing home cases will find are bedsores, (also known as pressure sore or decubitus ulcers), broken bones, contractures, fractures, infections, dehydration and malnutrition. Often times, these injuries tragically and unnecessarily lead to the death of the resident. If the lawyer entrusted with these types of cases does adequate discovery, he can often easily tie these common torts directly to the lack of adequate staffing or resources not meeting the statutory standard of care for the residents of the nursing home. This discovery will more likely than not lead to evidence of staffing deficiencies, and that is where a lawyer handling this type of case will likely want to focus his energy. Staffing is the largest single expenditure in a nursing home and it is the easiest and most tempting expense for the corporation to shave.. A dollar not spent on employing a person charged with making sure an incapacitated senior is safe is one more dollar that falls to the bottom line. It goes without saying that the better patient-to-staff ratio there is, the better care nursing home residents receive. There have been several government and private reports which verify this obvious proposition. GAO R 13-Jun-02 Nursing Homes: Quality of Care More Related to Staffing than Spending. GAO Nov-2002 Skilled Nursing Facilities: Available Data Show Average Nursing Staff Time Changed Little after Medicare Payment Increase.

3 Regulations Nursing homes are highly regulated. The first government regulation of nursing homes came in 1965 when the Medicare and Medicaid programs were started. Nursing homes that elect to participate in Medicare and/or Medicaid must follow the federal standards. The first set of nursing home standards and regulations were promulgated in These standards have since been updated and revised on several occasions. Most significantly, in 1987 the U. S. Congress enacted a comprehensive set of reforms to the nursing home regulations. They were adopted in the Omnibus Budget Reconciliation Act (OBRA 87). These reforms were in response to complaints and reports criticizing nursing home quality and government regulation. The majority of those adopted were contained in a congressionally mandated study by the Institute of Medicine on how to improve the quality of care in nursing homes. The stated goal of OBRA-87 is that each resident receive care that will enable that resident to attain or maintain the highest practicable physical, mental and psychosocial well-being. If nursing homes actually followed this mandate, there would be no basis for a claim for nursing home neglect. A nursing home s responsibility to its residents is set forth in the code of federal regulations. The nursing home regulations which relate to the quality of care to be provided to residents are found in 42 C.F.R Some of the regulations that typically serve as the basis for a claim for nursing home neglect are as follows: Quality of life. A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident s quality of life Quality of care. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with the comprehensive assessment and plan of care. (a) Activities of daily living. Based on the comprehensive assessment of a resident, the facility must ensure that- (1) A resident s abilities in activities of daily living do not diminish unless circumstances of the individual s clinical condition demonstrate that diminution was unavoidable. (2) A resident is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section. (3) A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene. (c) Pressure sores. Based on the comprehensive assessment of a resident the facility must ensure that -

4 (1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual s clinical condition demonstrates that they were unavoidable. (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. (d) Urinary Incontinence. Based on the comprehensive assessment of a resident the facility must ensure that (1) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident s clinical condition demonstrates that catheterization was necessary. (2) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible. (e) Range of motion. Based on the comprehensive assessment of a resident, the facility must ensure that (1) A resident who enters the facility without a limited range of motion does not experience reduction in range of motion unless the resident s clinical condition demonstrates that reduction of range of motion is unavoidable. (3) A resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion. (h) Accidents. The facility must ensure that (1) The resident environment remains as free of accident hazards as is possible, and, (2) Each resident receives adequate supervision and assistance devices to prevent accidents. (i) Nutrition. Based on a resident s comprehensive assessment, the facility must ensure that a resident (1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels unless the resident s clinical condition demonstrates that this is not possible; and (2) Receives a therapeutic diet when there is a nutritional problem. (j) Hydration. The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. (l) Unnecessary drugs (1) General. Each resident s drug regimen must be free from unnecessary drugs. (2) Antipsychotic Drugs. Based on a comprehensive assessment of a resident, the facility must ensure that (i) Residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specified condition as diagnosed and documented in the clinical record

5 (ii) Residents who use antipsychotic drugs receive gradual dose reductions, and behavioral interventions, unless clinically contraindicated, in an effort to discontinue these drugs. (m) Medication Errors. The facility must ensure that (1) It is free of medication error rates of five percent or greater; and (2) Residents are free of any significant medication errors Nursing services. The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care Dietary services. The facility must provide each resident with a nourishing, palatable, wellbalanced diet that meets the daily nutritional and special dietary needs of each resident Administration. A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. (a) Compliance with Federal, State, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes and with accepted professional standards and principles that apply to professionals providing services in such facility. (l) Clinical Records. (1) The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are (i) Complete; (ii) Accurately documented; (iii) Readily accessible; and (iv) Systematically organized. (2) Clinical records must be maintained for (i) The period of time required by State law; or (ii) Five years from the date of discharge when there is no requirement in State law. (d) Governing body. (1) The facility must have a governing body, or designated persons functioning as a governing body, that is legally responsible for establishing and implementing policies regarding the management and operation of the facility; and (2) The governing body appoints the administrator who is

6 (i) Licensed by the State where licensing is required; and (ii) Responsible for the management of the facility. Pre-Suit Considerations When a potential client comes to you with an allegation of neglect at a nursing home there are several steps that you should take to verify the claim and assess it potential. The first thing you should do is to request the medical records. A facility is required to supply the medical records within 2 working days. 48 CFR (b)(2). You should expect delays, but it is in your client s best interest to obtain copies of the records as soon as possible. If the records are not provided within 2 working days consider filing a complaint with the state oversight agency, and send a copy of the complaint letter to the facility. If an estate has been opened then it is possible to subpoena the medical records. The medical records not only contain information that will help you assess the merit of your client s allegations of neglect; they will provide you with valuable leads to determine how and why your client was harmed. For example, the medical records will have the names of the nurses and certified nursing assistants ( CNA s ) as well as other individuals who may have come in contact with your client. You should begin to locate these individuals as soon as possible in order to obtain statements from them. In addition, the medical records of the facility will also contain information regarding other medical providers. Some of the most important medical records are the hospital records. You should always compare the assessment of your client s condition done by the nursing home with any assessments done by the hospital. Look for discrepancies. Also be sure to check to see if the nursing home records reflect care as being given in the nursing home when your client was actually in the hospital. Evidence of false charting can be powerful leverage. In addition to obtaining medical records, you will want to obtain the facilities survey history. Surveys are inspections that are performed annually and additionally when complaints are filed. Surveys are available pursuant to a freedom of information ( FOIA ) request. In addition, abbreviated versions of these surveys can be found on Medicare s website, Select the link to nursing home compare to find this information. You should pay attention to see if the facility has been cited for problems similar to those suffered by your client or if the facility has a history of repeated offenses. In addition to the survey history, the site lists certain quality measures regarding the nursing home as well as provides an indication as to the level of staff. Medicare and Medicaid cost reports are another valuable source of information. Medicare cost reports can be obtained from the regional CMS office and Medicaid cost reports can be obtained from your state agency that is charged with regulating nursing homes. These documents have a wealth of information regarding the nursing home. From these documents you can get a very good idea of the level of spending at the facility, which has a direct correlation to the quality of care. In addition, you can determine the profitability of the nursing home from these reports as well as the identity of any related companies.

7 Another group of documents that you should obtain from the state regulating agency is the licensure file. The licensure file should contain the name of the person with an ownership or controlling interest in the nursing home, the officers, directors and managing employees, the corporation responsible for managing the nursing home, and the name of the administrator and director of nursing. Finally, for companies that are publicly traded, you can obtain much information from the Securities and Exchange Commission ( SEC ). Most of this is found on the SEC website. In addition, most nursing home chains have websites of their own where useful information can be found. Once you have assembled and reviewed all of these records, you should have a clear idea as to the merits of your claim as well as an indication as to the reasons for your client s suffering. You should be able to determine whether the injury was an isolated incident or if it was the result of the decision of the corporation to put its on financial well-being over that over its residents. Complaint The typical complaint filed for nursing home neglect should include most of the following causes of action: (1) Negligence custodial care as well as neglect in not providing adequate resources; (2) Medical Malpractice; (3) Outrage; (4) Violation of Resident Rights Statutes; (5) Breach of Fiduciary Duty; and (5) Deceptive and Unfair Trade Practices. It is important to make sure that your complaint details with specificity the reasons why the injuries happened and clearly explains how this is linked to the corporate philosophy of profits-over-people. A complaint against the nursing home should include as defendants all corporations that are responsible for the decisions that led to the harm. Most large forprofit corporate chains are organized in essentially the same manner. There generally is one corporate entity that holds the state license to operate the nursing home. There usually is a second entity that manages the facility and a third entity that owns one or both of the other entities. In addition to these entities, there are numerous other corporations that may be owned and/or implicated. Look for entities that (1) own and/or lease the real property; (2) are used to purchase and sell supplies to the nursing home; (3) provide rehabilitation and/or therapy services; and (4) provide staffing services to the nursing home and/or other facilities. Generally, you should not include the staff at the facility as a defendant. Many times, while these individuals are the people who actually made the mistake or failed to give the care required, they were put in the position to do this by the decisions made by the corporation. Most of these people are good caring individuals and are doing the best that they can under the circumstances. They may turn out to be some of your best witnesses against your corporate defendants! Discovery The focus of discovery in nursing home case should be on determining why the resident was harmed. You goal is to uncover the evidence to show that the company s philosophy and the corporate decisions are what lead to the injuries or death of the

8 resident. With the information that you have gathered prior to the suit being filed, you have a great start and should be able to justify your discovery requests to the court when, and not if, the defendant objects. You should already have a copy of the medical record, obtained prior to filing your complaint. However, it is important to request and receive a complete set of the records in your initial discovery requests. Once you obtain these medical records, compare the two sets of documents to determine if there have been any alterations to the records. One of the most important medical records that you should obtain are the activities of daily living ( ADL s ). These are the records in which the nursing assistants record the activities of daily living of the residents. These records along with the treatment administration records ( TAR s ), medication administration records ( MAR s ) and nurses notes should give you an indication of when things were done or not done with regard to your resident. The two major issues that a thorough review of these medical records will reveal are (1) did the nursing home staff follow physician orders and (2) was there false charting to cover up mistakes or neglect. First, compare the physician orders with the staff s actions to determine if the physician s orders were followed. Then, to determine if there is false charting, prepare a listing of when each person made an entry in the chart and compare that time with the staffing records. Do not rely on staff sign in sheets or schedules to do this! Instead obtain a copy of the payroll records and/or time cards and work off of these records. If someone was not on the clock and yet there is a notation in the medical record indicating that this person gave care, you have strong evidence of false charting. In addition, another way to determine if there has been false charting is to compare the nursing home records with the hospital records. Surprisingly, it is not unusual for there to be entries in the nursing home records when the resident was actually in the hospital. Other records that you should seek in discovery are the nursing home s financial records, especially its budgets. Generally the budgeting process is controlled by an entity other than the entity that owns and/or operates the nursing home. The budget is generally set by the management company pursuant to final approval by the corporate ownership. Obtaining evidence of who has control over the budgeting process will help you establish that it was the management corporation and the corporate ownership that were actually responsible for the harm inflicted at the nursing home. The budget is also important because it may provide evidence that the facility did not have adequate resources to give the care needed. You will likely discover that the budget is monitored intensely by management and ownership and strict compliance with the budget is demanded. Often the compensation of the administrator is tied to compliance with the budget. The budgeting process and the process of making sure that the nursing home adheres to its budget can produce a wealth of memoranda and correspondence. Many of these documents demand strict compliance with the budget even in face of complaints from residents, staff and even state regulators that more staff is needed.

9 When you have the financial records from the facility, carefully compare those records with the cost reports you have obtained. Sometimes the amounts reflected in the budget are distinctly different than what is reported on the budget. Most of the budgets and the cost reports are broken down on a per patient per day ( PPD ) basis. By carefully studying the financial reports you can determine the amount that the nursing home budgeted and spent PPD on supplies, staffing and even food costs. It is shocking to see records that prove a facility spends a total of less than two dollars PPD to feed a resident three meals, including snacks! In addition to the actual financial reports themselves, you should seek the documents that track the nursing home s compliance with its budget. The number of the reports in existence on this topic can be overwhelming. As a strategy move, when requesting the financial reporting tracking information, you should at the same time request the reports that track the clinical condition of the facility s residents. The lack of reports on this topic will be surprising. By comparing the huge differential in the number of reports concerning finances versus reports concerning residents health and well being, the lawyer can easily make it clear to the fact finder exactly what the primary interest of the management and ownership of the nursing home is. This primary interest will not work in the nursing home defendant s favor. The clinical reports are also valuable for reasons other than this. While the number may pale in comparison to the financial reports, what these records may say is very important. One of the most important issues in the nursing home case is notice. Use these clinical records to prove that the nursing home, its management and ownership had notice that there were problems in its facility and yet did little or nothing to correct them. Some important reports for this purpose are incident and accident reports. If your discovery request is denied for quality assurance reasons, and you are unable to obtain these reports, be sure to ask for summary reports as these types of reports should not be objectionalbe. Most of the information reported up the corporate chain is done so in summary form. The clinical reports help establish that the ownership was on notice of problems at the facility and did little or nothing to help correct them. In addition to the clinical reports, the previously mentioned survey histories of the facility are valuable for establishing notice. While you should have received the surveys from the state agency pursuant to a FOIA request, you should request them, along with the accompanying documentation, from the facility as well. The facility receives more information and data than is available to the public. The survey obtained from the facility, in addition to proving notice, also helps establish the trial theme of broken promises. Not only did the nursing home break its promise to take care of your client, it also broke its promise to the state. Every survey must have a plan of correction. The plan of correction is a promise by the nursing home company to the state as to how the nursing home intends to correct the problems documented in the survey. Often the same problem or type of problem appears in survey after survey, evidence of broken promises.

10 The above are just a few of the important types of documents you should request and review. The two issues to keep in mind when requesting documents are notice and follow the money. The trail of money generally leads to the party responsible for the injuries to your client. Depositions The first deposition I suggest taking is that of the administrator. The administrator is the crucial link between the corporate ownership where decisions are made and the local nursing home where individuals are trying to care for the residents. It is the administrator who is responsible for implementing and monitoring the corporate decisions which directly affect the care received by the residents. The deposition of the administrator provides you with the opportunity to show that the harm suffered by your client was the result of the corporation s philosophy and systemic business decisions and was not merely an isolated incident. Proper questioning of the administrator can provide proof that the corporation was on notice of its problems and yet continued on the same course without regard to the well-being of the residents. The federal regulations provide that, A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 42 CFR The administrator is the individual who signs the plan of correction on behalf of the facility. He is the person who is most able to produce, and if not produce at least identify, the reports that you will need to help prove your case. The administrator can also provide you with the names of his superiors and with statements that he or she generally defers to them on all important decisions, thereby helping you establish more responsibility on those higher up the corporate chain. In addition the lack of knowledge on behalf of the administrator justifies your attempt to take the depositions of officers higher up the corporate chain. Other important depositions to take are those of any former employees that you have identified who are willing to testify regarding the conditions that existed at the nursing home. Their names will be found in the medical records and it is likely that your client s family will recall the names of some of the caregivers. In the event that you do not wish to take their depositions, have them sign an affidavit or take a recorded statement. These individuals will provide you with testimony that you will need to establish that the facility was understaffed or that the facility did not have the resources needed to adequately care for the residents. In addition to use at trial, this information is important when the defendants resist your attempts to get discovery or take depositions. Attaching the statement of a former employee outlining the conditions that existed at the facility and the requests for help that went unanswered to a motion to compel discovery will go a long way to establish the need for some types of information that the court otherwise might not believe should be produced.

11 Defenses One of the primary and most predictable defenses nursing homes use is the argument that your client was old and/or sick. The defense somehow wants the plaintiff and fact-finders to accept the proposition that the old and/or sick are not entitled to quality care. However, this defense must fail because it is because your client is old and/or sick that they were placed in the nursing home in the first place! You can die at home, you don t need a nursing home to hasten the process. Remember that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with the comprehensive assessment and plan of care. 42 CFR Also it is important to remind the fact-finder that when the nursing home accepted your client as a resident, it did so with notice and knowledge of all his conditions and it promised that it had and would provide the resources to give adequate care. If the nursing home feels as if it is not able to provide adequate care to your client then pursuant to 42 CFR (a)(2)(i), it should discharge the resident. Conclusion Individuals in nursing homes, regardless of their age or physical or mental condition, are ENTITLED to quality care. When a family decides that it can no longer care for a loved one at home, it entrusts that individual to the nursing home. The nursing home represents to the family, to the state and to the general public that it possesses the ability and resources to provide quality care. A nursing home makes a solemn promise to take care of the person when it accepts that person as a resident. When an individual is harmed in a nursing home, and that harm is the result of a corporate philosophy that places too much emphasis on profit and not enough emphasis on resident care, then that corporation should be made to answer for that mentality. A jury empowered by a lawyer who presents the right evidence will see to that.