DEFENDING LONG TERM CARE FACILITY PATIENT MALPRACTICE AND WRONGFUL DEATH CLAIMS

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1 DEFENDING LONG TERM CARE FACILITY PATIENT MALPRACTICE AND WRONGFUL DEATH CLAIMS I. INTRODUCTION : A. Reasons for Increase in Tort Litigation for Injury to the Elderly: 1. Increase in percentage of over-65 population, particularly in over-85 range. 2. Increase in number and complexity of federal and state regulations with which facility must comply, including resident rights regulations. 3. Increased interest by plaintiff's bar. 4. Development of more creative identification of damages for torts to the elderly. 5. Publicity surrounding large punitive damage awards against nursing homes. 6. Increased involvement of patient advocacy groups. B. Why are Nursing Home Patient Malpractice/Maltreatment/Patient Injury Cases Difficult to Successfully Defend? 1. Negative public image of nursing homes. 2. Shock value of facts. 3. Contemporaneous investigations of complaints by state survey agencies provide ammunition for plaintiffs. 4. Difficult to assess potential for damages under traditional damages theories, i.e., difficult to know when to settle. 5. High staff turnover rate in nursing homes makes it difficult to find fact witnesses; witnesses who have personal knowledge may not make good witnesses. 6. Difficulty in finding good, qualified expert witnesses willing to testify for defense. 7. Tendency of insurance companies to choose defense counsel based upon economic factors rather than familiarity with nursing home industry. II. LEGAL REMEDIES FOR PATIENT INJURY OR PATIENT DEATH : The following causes of action are available for patient injuries or death occurring in Texas. Each state law varies as to the available remedies and damages that may be sought. Some state laws provide damage caps for personal injury/malpractice claims while others do not. In Texas, there is no cap on damages for personal injury/malpractice claims where the injury individual is alive at the time of the lawsuit. Although damage caps were enacted legislatively, the Texas Supreme Court has held damage caps in such cases to be unconstitutional. However, a damage cap for the wrongful death cause of action has been upheld in Texas. Obviously, familiarity with the legal remedies available in the venue of any nursing home litigation is a must. Scenario 1: Patient X suffers an injury at Loving Care Nursing Home. Injury was due to the negligence of a nursing home employee. Patient is paraplegic as a result of the injury. Patient does not die.

2 Legal Remedy: Personal injury claim based on common law liability in tort. Damages: Unlimited damages for an injured nursing home patient can include: Past and future medical expenses, past and future pain and suffering, past and future mental anguish, past and future disfigurement/embarrassment, possible loss of consortium, loss of mental/intellectual function, punitive/exemplary damages. Scenario 2: Same as above, however, patient dies before lawsuit is filed. Death is not due to injury received in nursing home. Legal Remedy: Survival cause of action by heirs, legal representatives and estate of injury person. Damages: Damage cap set by Texas Medical Liability and Insurance Improvement Act probably applies. Texas Supreme Court upheld damage cap as to wrongful death (Scenario 3) claims. Same reasoning arguably applies to survival causes of action although issue has not been directly decided. Damage cap currently equals approximately $1.2 million per defendant. Damage cap does not apply to medical expenses. Same as Scenario 1 except that patient dies as a direct result of the injury. Legal Remedy: Wrongful death cause of action. This cause of action can only be brought by: the surviving spouse, children and parents of the deceased (or by the executor of the deceased estate unless requested not to by those entitled to sue.) Damages: Capped at approximately $1.2 million per defendant, excluding medical expenses. (Damage cap is adjusted by CPI-consumer price index.) III. WHO CAN RECOVER IN A NURSING HOME CASE? : A. Non-death cases 1. Nursing home resident. 2. Resident's spouse and children - loss of consortium. 3. Parent of minor - loss of services. 4. Bystander recovery for mental anguish - parents, siblings, grandparents, children and spouse may recover if there is a close family relationship and the plaintiff was in the zone of danger or experienced contemporaneous perception of the accident. B. Death cases 1. Survival statute: A cause of action for personal injury survives to the heirs, legal representatives and estate of the injured/now deceased person. 2. Wrongful death: A wrongful death claim is brought in the plaintiff's individual capacity and survives to the spouse, children and parents of the deceased. IV. NEGLIGENCE AND THE STANDARD OF CARE : A. Negligence The common threat running through the causes of action available for injury to a patient is negligence. Without negligence there is no liability. 1. Did the nursing home (through its employees or agents) fail to use ordinary care in providing for the needs of plaintiff/resident; that is, did it fail to do that which a nursing home of ordinary prudence would have done under the same

3 or similar circumstances, or did it do that which a nursing home of ordinary prudence would not have done under the same or similar circumstances? 2. Was such negligence the proximate cause of the occurrence in question? 3. More specifically: (a) the negligent conduct of the nursing home produced the complained of event in a natural and continuous sequence, and without such conduct, such event would not have occurred; and (b) the act or omission complained of must be such that a nursing home exercising ordinary care would have foreseen that the event or some similar event might reasonably result therefrom. B. Standard of Care 1. Nursing home is not insurer of safety of its residents.[fn2.] a. Must use ordinary care to protect patients from any danger reasonably anticipated.[fn3.] b. Standard of care is based upon each patient's specific mental and physical condition.[fn4.] 2. Standards established by statute or regulation. a. Stature or regulation establishes the standard of care but does not necessarily create a private cause of action.[fn5.][fn6.][fn7.] b. Most courts find that the facility's compliance with federal and state regulations satisfies the legal standard of care, even if resident injury took place anyway.[fn8.] c. In at least one case, court held that requirement of Nursing Home Care Reform Act to provide adequate general supervision did not raise rebuttable presumption in favor of plaintiff who had fallen that defendant had failed to provide adequate care.[fn9.] 3. Negligence per se and its relationship to survey findings. Negligence per se: The unexcused violation of a law or administrative regulation that is designed to protect or prevent injury to a class of persons to which the injured person belongs. For example, the Texas Long Term Care Licensing and Certification Requirements contain rules designed to protect residents of nursing homes. In a negligence per se case, the statute or rule defines the standard of care required of a nursing home. The only issues presented to the jury will be: a) Whether the defendant violated the statute or rule; b) Whether the violation proximately caused the injury to the patient; and c) Whether defendant has a legally recognizable excuse for violation the statute or rule. For this reason, plaintiff's cases can be helped by survey findings that nursing homes have violated specific rules or statutes. Consequently, it is extremely important that survey findings that indicate that a facility has violated a statute or rule not go unchallenged. Even when no punitive actions are recommended, facilities should include disclaimer language on plans of correction and when appropriate should include rebuttal

4 documentation on plans of correction. Disclaimer Preparation and submission of this Plan of Correction does not constitute an admission or agreement by the provider of the truth of the facts alleged or of the correctness of the conclusion set forth on the Statement of Deficiencies. This Plan of Correction is prepared and submitted solely because of requirements under state and federal law. State Operations Manual Provisions Allowing Rebuttal on Plan of Correction: 2728(B) The provider or supplier enters on the right side of the HCFA- 2567, opposite the deficiency, its planned action to correct the deficiency and the expected completion date. Alternatively, the provider or supplier may enter its disagreement with a finding. 4. Standards established by contract - several state laws require that statutory provisions regulating nursing home care be incorporated in admission agreements, thereby contractually establishing a standard of care.[fn10] 5. Standards of care established by experts. a. Expert testimony may be required if the standard of care is not set by statute or if the court does not believe that the jury can determine the appropriate standard from care law. In these situations, the court may require that the plaintiff provide an expert to testify that the standard or duty was breached. [FN11.] b. Circumstances where expert testimony held unnecessary to establish standard of care: 1) Expert not need to show breach of duty to exercise reasonable care to avoid resident to resident injury where resident had a history of hurting others.[fn12.] 2) Use or failure to use restraints.[fn13.] 3) ausal relationship between reduction in food portions and weight loss.[fn14.] c. Expert testimony needed: 1) To determine reasonable period patient allowed to remain soiled.[fn15.] 2) To establish the condition of the resident.[fn16] 3) To establish standard of care concerning the appropriate amount of observation necessary to prevent patient from wandering.[fn17.] V. PATIENT INJURIES THAT LEAD TO MALPRACTICE :[FN1.] A. Injuries that may be caused by recurrent failures to provide adequate care or omissions of care over an extended period of time: Decubitus ulcers - Stage III or IV. Infected decubitus ulcers. Gram negative septicemia, secondary to decubitus ulcer or wound sepsis. Severe protein-calorie malnutrition. Septic shock.

5 Gangrene. Osteomyelitis secondary to State IV decubitus ulcer. Gram negative septicimia, secondary to urinary tract infection or other urinary catheter (e.g., failure to appropriately and change urinary catheter). Gram negative septicimia, secondary to urinary tract infection or other localized sepsis. Aspiration/pneumonia. Gram negative or positive septicemia, secondary to pneumonia. Emotional trauma and distress arising out of inhumane conditions and care of persistent and long-standing nature. B. Injuries resulting from medication errors: Mental or physical deterioration secondary to inappropriate psychotropic medication administration. Digoxin toxicity. Untreated congestive heart failure (such condition may be recognized by the following symptomolgy; edema, difficulty in breathing - especially in a prone position, chronic cough, swollen ankles, and/or bloated abdomen). Dilantin toxicity. Insulin shock/coma resulting from inappropriate administration of insulin. Improper antibiotic therapy resulting from: 1) the inappropriate prescription and continuation of a broad spectrum antibiotic coupled with the failure to obtain culture and sensitivity or the failure to track the effectiveness of the antibiotic; or 2) the failure to adjust the antibiotics therapy in response to the sensitivity report. Severe fall resulting from the failure to monitor the effects of any hypertensives and anti-arrhythmia drugs or from negligent use of psychotropic drugs. Hyperkalemia resulting from dehydration coupled with the use of any hypertensives, diuretics and/or potassium supplements. Any adverse drug reaction identified in the Physician's Desk Reference or product literature of the drug manufacturer. C. Injuries resulting from out-of-the ordinary events: Strangulation (e.g., strangulation resulting from the failure to either monitor restraints or the improper use or application of restraints such as posey restraints). Drowning. Scalding. Wander-off cases, wherein death or serious injury occurs after the resident has wandered away from the facility. Falls and fractures resulting from the failure of nursing home staff to follow accepted protocols and implement necessary preventive measures. Rape and/or sexual assault. Physical abuse and assault resulting in wounds, bruising or disfigurement. VI. TYPES OF OMISSIONS IN PATIENT CARE THAT PLAINTIFF'S ATTORNEYS LOOK FOR AS THE BASIS FOR LIABILITY : [FNA1.]

6 Failure to provide sufficient numbers of licensed nurses to meet the minimum requirement for licensed nurses established by law. The failure to provide nurses and nurse's assistants sufficient in number to provide 24-hour nursing service to the residents so as to assure that said resident received treatment, medication and diet as prescribed by his or her attending physician. Failure to provide nurses and nurse's assistants sufficient in number to provide proper care to said resident so as to keep him/her clean and comfortable and to prevent the formation of decubitus ulcers, lesions and sores on the body of said resident. The failure to provide sufficient non-attendant personnel, to wit: laundry personnel on duty to keep an adequate supply of clean linens for the care of said residents. Failure to provide 24-hour nursing service seven days a week, adequate in quality and amount, to assure that the resident receives, in accordance with the mandate set forth in federal law, state law, and the nursing home policy and procedure manual the following care: Adequate water, fluids, nutrition and therapeutic diet. Adequate skin care, turning and repositioning so as to prevent the formation of decubitus ulcers, lesions and sores on the body of said resident. Adequate sanitary care, cleansing after each incontinent episode and changing of said resident's bed linen as needed so as to prevent urine and fecal contract with his or her skin for unsafe periods of time. Adequate examination and assessment by nursing home personnel for skin breaks and decubiti so as to timely and adequately intervene in order to prevent the formation of ulcerated, pus-infiltrated, festering and necrotic lesions on the body of said resident. Adequate examination and assessment by nursing home personnel of decubitus and open sores so as to timely and adequately intervene to prevent the systemic invasion of bacteria into the bloodstream of said resident. Adequate nursing care for decubitus after development. Observation and examination of the responses, systems and progress of the physical condition of said resident. Notification of the attending physician of said resident of significant changes concerning resident's physical condition and concerning persistent unresolved problems relating to the care and physical condition of said resident. Adequate and sanitary catheter care so as to prevent urinary tract infections. Timely and adequate nursing intervention to alleviate pain and suffering of the resident. Timely and adequate nursing intervention to alleviate edema, swelling and accumulation of excessive fluids developed by the resident. Adequately trained and qualified nurses and nurse's assistants to administer to the nursing needs of said resident and to protect said resident from injury. Objective evaluation by nursing home personnel of the health status of said resident by frequent monitoring of temperature, pulse, respiration, blood pressure and weight.

7 Objective evaluation of the health status of said resident through acquisition and submission of laboratory specimens obtained from said resident as ordered by his or her attending physician. Nursing plan of care as required by state and federal law, based on the needs of said resident at the time of admission to the facility. Nursing plan of care revisions and modifications as the need of said resident changed. The failure to provide sufficient quantities and quality of food, nutrition, medications, nursing supplies, linen, bandages, catheters, catheter irrigation supplies, heat lamps, egg crate mattresses, sheep skins, soap and rubber gloves to enable the nursing home staff to assure that the needs of said resident were met. The failure to adequately assess, evaluate, and supervise registered nurses, licensed vocational nurses, nurse assistants, medications assistants, dietary personnel or laundry personnel in said facility as to assure that said resident received care in accordance with the nursing home's policy and procedure manual and state and federal law. The failure of high managerial agents and corporate officials to adequately assess, evaluate and supervise the administrator and director of the nursing home and the director of the nursing home so as to assure that the resident received care in accordance with the nursing home's policy and procedure manual and state and federal law. The failure of high managerial agents and corporate officials, including the administrator and director nurses, after receiving notice that patients accepted for care in the nursing home were not receiving needed care in accordance with the nursing home's policy and procedure manual and state and federal law, failed to recommend direct action and implement strategy designed to correct known deficiencies and prevent their future occurrence. Failure to report and document, in said resident's medical record, the resident's symptoms, responses and progress. Failure to affect the transfer of said resident to a hospital when said resident developed symptoms, conditions and illnesses beyond the treatment capabilities of the nursing home. Failing to report, as required by law, that residents at the facility had been abused and neglected prior to and during plaintiff's residency. VII. LIABILITY FOR DEFECTIVE OR MALFUNCTIONING EQUIPMENT : The Federal Safe Medical Devices Act of 1990 imposed new reporting obligations on nursing facilities concerning incidents involving defective medical devices. The Act requires that deaths, serious illnesses and serious injuries resulting from a medical device used at a facility or by facility personnel must be reported. Incidents involved residents of the facilities resulting from defective medical devices must be reported, as well as any incidents which involve employees of the facility or other affiliated persons such as volunteers. Whenever reporting requirements such as these are imposed, one concern is whether the reports can be used by plaintiff's attorneys to establish a facility's liability for an injury. Federal law provides that the medical device incident reports cannot be used in a civil proceeding for the purpose of establishing liability of

8 facility staff for an injury. However, in addition to the reports required to be filed with the FDA or the device manufacturer, nursing home facilities are now required to maintain incident files of all written and oral communications regarding possible medical device reportable events. These files must be maintained for a period of two years after the information has been submitted to the FDA or the manufacturer. Unfortunately, while the reports filed with the FDA may be excluded from public disclosure, the facility's incident files do not enjoy such express protection. Consequently, in litigation relating to defective medical device incidents, it can be expected that there will be discovery battles over the disclosability of information maintained in the facility's incident files concerning possible medical device reportable events. Scenario 4: Patient X is being placed in a whirlpool bath by means of a chair lift. The chair falls seriously injuring the patient. The chair portion of the lift is a molded plastic chair that locks on to the lifting mechanism by means of a locking device on the back of the chair. The facility's maintenance man is supposed to check the chair lift monthly to make sure it is in good working condition. However, he has not checked the lift in 3 months. The last time he checked the lift was after a similar incident 3 months before. Maintenance man found nothing wrong with the locking device but advised the administrator who called the manufacturer's representative who never showed up. No follow-up was done. The facility safety committee had reviewed the incident report but relied on the maintenance man's report that he could find nothing wrong. It turns out that the locking device on these particular types of chairs were prone to popping open, particularly when the locks became worn with age. In this case who would be liable for the damages suffered by the patient? a) The equipment manufacturer b) The nursing home c) Both. VIII. WHO CAN BE HELD LIABLE FOR DAMAGES IN A NURSING HOME CASE AND ON WHAT GROUNDS? : A. Direct claim of negligence: 1. Plaintiffs may assert a direct claim of negligence against the nursing home, the parent corporation, the resident's physician, the nursing home's medical director and the employees of the nursing home. 2. Direct liability claims as to the nursing home or its parent corporation can be based on such omissions as: a) failure to provide safe and adequate environment; b) failure to provide sufficient staff to provide adequate care; c) negligent hiring or failure to adequately supervise employees; d) failure to have necessary and appropriate policies and procedures to safeguard residents; e) failure to enforce existing policies and procedures; and f) failure to provide safe equipment.

9 B. Vicarious liability: A nursing home may be held liable for the negligent acts of its employees while acting within the course and scope of their employment even if the nursing home itself was not directly negligent in causing the resident's injury. C. Corporate liability: The parent corporation of a nursing home subsidiary may be held liable for the subsidiary's negligence when there has been a blurring of identity between the parent and subsidiary. Courts will generally look at the following factors in determining whether the two corporations are alter egos of one another: 1. The amount of common ownership, financial interest and control of the subsidiary by the parent; 2. The commingling of assets; 3. The undercapitalization of the subsidiary; 4. Whether corporate formalities have been followed; and 5. Whether one corporation is used by the other for its own purposes. IX. LIABILITY FOR THE ACTS OF MEDICAL DIRECTORS. PHYSICIANS. INDEPENDENT CONTRACTORS AND CONSULTANTS : The general rule of law in Texas, at least until recently, has been that the relationship between a health care facility and its medical staff physicians is that of independent contractor. See, e.g., Hunte v. Hinckley, 731 S.W.2d 570, 571 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.) (clinic not liable for acts of independent contractor doctors); Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 750 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.) (doctor with staff privileges at hospital held to be independent contractor); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex. Civ. App.--Houston [14th Dist.], writ ref'd n.r.e.) (no respondeat superior liability where physician is independent contractor and not employee or servant of the hospital.) A good example of a case where a physician was found to have independent contractor status is Gladewater Municipal Hospital v. Daniel, 694 S.W.2d 619 (Tex. App.--Texarkana, 1985, no writ). In Gladewater, the patient brought a medical malpractice action against both the hospital and treating physician after the patient developed osteomyelitis while in the hospital and alleged that the negligence of both the doctor and the hospital caused his condition. Id. at 620. Although there was evidence supporting a finding of liability on the part of the doctor, the appellate court held that the hospital was not vicariously liable for the doctor's tortious acts. Id. at 621. The court found that there was insufficient evidence to support a jury finding that the doctor was an agent or employee of the hospital. Thus, the hospital was not vicariously liable and the role of the respondeat superior did not apply. Id. In finding that the physician was not an employee or agent, the court applied the control test. The court held that when an employer is interested only in the results of the work and the contractor controls the details and the method used to accomplish the results, then an independent contractor rather than a master-servant relationship exists. Id. In this case, the hospital had no right to control the details of the physician's work, so there was no evidence to support a finding that the physician was the hospital's agent. Although there are no Texas cases directly on point, in light of the significant

10 increase in the duties and responsibilities of a Medical Director under OBRA, it is certainly possible that the medical director will be determined not be an independent contractor and that the nursing home will be held liable for the medical director's acts and omissions as medical director. For example, David Theodore Marks notes in Pleading and Discovery Strategies in a Nursing Home Maltreatment Case that a ministerial omission that may serve as a basis for imposing liability on a nursing home for negligence is: The failure of high managerial agents and corporate officials, including the administrator and director of nurses, after receiving notice that patients accepted for care in the nursing home were not receiving needed care in accordance with the nursing home's policy and procedures manual and state and federal law, to recommend direct action and implement strategy designed to correct known deficiencies and prevent their future occurrence. X. DAMAGES: FACTORS IN EVALUATING INTANGIBLE DAMAGES TO A NURSING HOME RESIDENT : A. One of the most difficult aspects of defending a claim for injury to a nursing home resident is evaluating the damages. Unfortunately, many defense attorneys have tended to take this element of the plaintiff's case far too lightly, i.e. what can a 92 year old with Alzheimer's who has no future earning capacity and who cannot remember what happened three minutes ago be worth? On the other hand, plaintiff's attorneys have astutely focused on intangible elements of damages. Intangible damages, while difficult to prove, are even harder to rebut. Further, the mere planting of the seed regarding the likelihood that intangible damages occurred may be sufficient to result in a jury finding that such damages did occur. Finally, unlike lost wages or loss of earning capacity, the dollar value of intangible damages can be virtually any amount the jury can be convinced to assess. B. Elements of intangible damages ([FN18] ): 1. Mental suffering including the following factors: a) Fear of the consequences of an injury while waiting for rescue; b) Fear experienced in the time between realization that an injury or death is going to occur and the time of occurrence; c) Fear arising after an injury about what might have occurred; d) Anxiety concerning physical health and future well-being; e) Fear that future surgery may be necessary as a result of injuries sustained; f) Fear of increased susceptibility to future injury; g) Post-traumatic stress disorder. 2. Pain. 3. Disfigurement. 4. Loss of enjoyment of life. a) Loss of sensory perceptions, smell, taste, sight, feel. b) Loss of ability to participate in and enjoy daily activities, even if those are the limited activities available to a nursing home resident. Arguably, the more limited a resident's activities, the more important the continued ability to participate is. 5. Loss of ability to engage in sexual relations (although this may not normally apply,

11 sexual capacity is extending to older persons and should be considered, particularly where a spouse is still living) and loss of consortium. 6. Loss of earning capacity. Many attorneys do not realize that it is possible for even retired persons to recover for impairment of earning capacity where the plaintiff still possesses the capacity to earn a living.[fn19.] Thus, unless the patient's condition totally excludes the possibility of future earning capacity this element of damages should be investigated. C. Demonstrative Evidence: Many plaintiff's attorneys use day-in-the-life films of the injured patient to vividly demonstrate the limitations on daily life resulting from the injury. Sometimes the defendant will be able to combat the impact of such a film with testimony and clinical records showing that the resident's current condition is not significantly diminished from the condition prior to the accident. XI. FOLLOWING A PATIENT INJURY - WHAT YOUR CLIENTS SHOULD AND SHOULD NOT DO : DO Provide immediate nursing assessment to resident, report results to resident's physician, obtain immediate medical treatment, if necessary, and report injury to resident's family. Report injury to state survey agency if required by state regulation. Secure, barricade or isolate the scene. Collect transient or perishable evidence. Take samples of any unknown chemical spills, residues or other substances. Identify anyone who was involved or on duty including eye witnesses or persons who came up to the scene immediately following the accident. Identify any others who may have useful information. Take statements immediately. People forget and adjust their stories as more time goes by. Determine the extent of damage to equipment, material or building facility. Make comprehensive visual records, photographs, videotapes, diagrams, sketches, etc. of the accident scene as it occurred without disturbing any evidence. Note: You should discuss this step with your legal counsel. Many defense attorneys prefer to send in their staff or to direct the collection of evidence so as to try to protect the information gathered from discovery. Restore the area to normal operations as soon as possible, making sure that any hazard has been removed. Conduct follow-up evaluations of resident's condition. Even when injury appears minor at first, more serious conditions may become apparent after time. Notify physician at first sign of complications or change in condition and seek immediate medical treatment orders. We recommend that our client contact their legal counsel after any serious accident, injury, incident or patient death. These cases all have the potential to result in litigation. Often nursing homes will wait for their insurance company to appoint legal counsel. Many times it will then be too late for the attorney to have any significant input as to the follow-up procedures.

12 DO NOT Hesitate in bringing in an outside investigator if there is no one that can devote the time and effort necessary to conduct a thorough investigation. Assume that because there was an accident that something went wrong or there was an oversight. Such an assumption can hinder your investigative abilities. Place blame on anyone or any procedure during your investigation. Get emotionally involved in your investigation. Overlook any data or information or ignore information which may be detrimental to the nursing facility. Aim your investigation at proving or disproving any particular theory. Attempt to identify trends or problem areas or make comparisons until all information is gathered. Attempt remedial action until your investigation is complete, unless necessary to remove an immediate hazard. Evade any authority or government agency. If there's a problem it will only make the facility look worse. Be afraid of high management visibility during an investigation as this promotes the idea of excellence and safety performance. Let any error in procedure go uncorrected following your investigation. When not required by law, do not keep accident and incident reports on file for long periods of time. Unless required by statute or regulation, accidents and incident reports should be disposed of after they have been reviewed by the facility's QA or safety committee (usually meets quarterly). (In Texas, state regulations require that incident reports be kept for at least two years.) XII. THE ROLE OF INSURANCE : In most cases, patient injury, wrongful death and survival causes of action will be covered by the facility's malpractice liability insurance. Administrators should be familiar with the insurance policy's requirements for reporting claims and potential claims. Most policies require that the insurer be notified immediately upon receipt of a claim. Scenario 5: Patient X's (the one who was injured on your chair lift) daughter walks into the administrator's office of the Loving Care Nursing Home and states: My mother is going to get a lawyer and sue you for everything you are worth for what you did to her. Question: Should you notify the insurance carrier of a potential claim? The answer is yes. Company procedure may call for the administrator to notify someone up the chain-of-command rather than the carrier directly. Sometimes company management tends to discourage immediate reporting out of concern for increased premiums or policy cancellation. However, failing to notify the carrier of a claim as required by the insurance policy means risking later denial of coverage by the carrier. Generally, plaintiffs must give written notice of a patient injury claim a certain number of days prior to filing suit as required by state law. Definitely, the carrier

13 should be notified when a facility receives written notice of a claim. The insurance carrier will generally assign a claims adjuster to conduct a preliminary fact investigation and to try to resolve the claim, if possible, prior to litigation. If the claim is not resolved, the insurance carrier should retain legal counsel to represent the facility and covered personnel. Many insureds do not understand their rights with regard to legal representation. Although the terms of policies vary as to the amount of influence afforded to the insured in choosing legal counsel, the client should insist on competent legal counsel knowledgeable in defense of nursing home torts. XIII. DEFENSES TO LIABILITY : A. Demonstrate that despite resident's injury, facility was in compliance with state standards. B. Intentional physical abuse: 1. By nursing home staff a) Demonstrate management had no prior knowledge; b) Demonstrate staff had no history of abuse; c) Show that staff had received training and instructions not to abuse residents; d) Demonstrate that facility followed all appropriate procedures upon learning abuse had occurred. C. Wandering. 1. Show that patient had no prior history of wandering, if applicable; 2. Show that facility had taken precautions against wandering that comply with reasonable standard of care: a) Had installed alarm system that was in good working order; b) Had patient monitoring devices that triggered exit alarms; c) On Alzheimer's units - had coded exit panel; d) Had recognized potential for wandering in care plan and implemented appropriate responsive action; e) Had alerted staff potential for wandering and trained staff to keep a particular lookout for wanderers; and f) Had checked residents whereabouts on a routine basis and had notified facility management immediately when patient could not be located. D. Development of decubitus ulcers. 1. Establish that due to resident's condition development of decubitus ulcers was unavoidable. This should be established both by documentation in the patient's medical record and by expert testimony. 2. Establish that facility was engaging in all appropriate preventative measures: a) That potential for skin breakdown was addressed in care plan; b) That patient was properly hydrated, preferably through recorded intake and output documentation; c) That patient was receiving adequate nutrition through recorded meal and supplement intake and/or tubefeeding intake;

14 d) That resident was turned and repositioned every two hours or more frequently if ordered; e) That resident was provided appropriate protective devices including eggcrate mattresses, heal and elbow protectors, etc. f) That resident received skin treatments such as lotion application to prevent dryness and breakdown. g) That resident was changed and cleaned after an incontinent episode at least every two hours. h) That resident's skin breakdowns were immediately reported to nursing staff. That nursing staff assessed that patient's skin condition on a regular basis for signs of breakdown, that breakdowns were reported to physicians within a reasonable period and were receiving treatment as ordered. That treatment's ineffectiveness was promptly reported to physician to receive new treatment orders. E. Falls/Fractures/Skin Tears. 1. Establish that if resident had tendency for falls or skin tears, it was addressed in care plan. 2. That reasonable procedures were used to prevent falls while still allowing the resident the least restrictive environment. 3. That generally restraints are prohibited except as necessitated by the resident's medical condition. 4. That the resident did not have physician orders for restraints. 5. That the resident did not have family permission for restraints. 6. That the resident was receiving adequate assistance from facility staff in transferring when the accident occurred. 7. That if the fall was caused by an equipment malfunction, the equipment was properly maintained and had no prior history of malfunction. 8. Establish appropriate standard of care for resident through expert testimony in rebuttal to higher standard sought by plaintiff. F. Injury due to use of restraints. 1. Establish that restraints were properly ordered for patient's condition or personal safety; 2. Establish that restraints were checked and released on a regularly scheduled basis; 3. Establish that restraints were properly applied, if possible; 4. Establish that staff were trained in proper application of restraints; 5. Establish that need for restraints is addressed in care plan and authorized by family; and 6. Establish through expert testimony that even properly applied restraints can cause injury if patient loosens restraints through movement. G. Additional Defense Theories. 1. Statute of Limitations. Statutes of limitations vary between states for medical malpractice and wrongful death claims. In Texas there is a two year statute of limitations on health care liability claims. The two years runs from the date of the occurrence of the injury or from the date that the health care treatment that is the subject of the claim

15 or the hospitalization for which the claim is made is completed. Thus, if a claim is for the overall negligent treatment of a resident rather than a specific injury, the two years will not begin to run until the patient is discharged from the nursing home. 2. Sole Proximate Cause. The nursing home would demonstrate that the act omission of someone unconnected with the nursing home was the sole proximate cause of the resident's injury and, therefore, the nursing home's acts or omissions could not be the sole proximate cause of the resident's injury. For example, where a pharmacy mislabels a drug and injury results, it might be argued that the pharmacy's acts were the sole proximate cause of injury. 3. New and Independent Cause. A new and independent cause is the act or omission of a separate, independent entity, that is not reasonably foreseeable and that destroys the causal connection between the nursing home occurrence and the injury. The new and independent cause thereby becomes the immediate cause of the resident's injury. For example, a resident falls and badly bruises his leg. The resident is then sent to the ER for evaluation where the ER physician misdiagnoses the bruise as gangrene and amputates the patient's leg. 4. Comparative Negligence. The nursing home may show that the plaintiff, or other entities, were negligent and that their negligence was one of the proximate causes of injury in order to limit the nursing home's liability. For example, where a mentally competent resident refuses to take insulin doses despite encouragement, intervention and counseling by the facility, the resident's own acts may be all or part of the cause of any resulting adverse condition. 5. Unavoidable Accident It may be possible to avoid liability by showing that the alleged injury was unavoidable. For example, it is recognized by the HCFA guidelines in the State Operations Manual, that certain conditions will predispose a patient to development of decubitus ulcers so that when the resident has such conditions and/or is moribund and life-sustaining measures have been withheld or withdrawn, the patient's development of or the worsening of decubitus ulcers may be unavoidable. 6. Pre-existing Injury. The defendant may escape liability by showing that the plaintiff's injuries were pre-existing. Alternatively, a defendant's liability may be limited to exacerbation of a pre-existing injury. 7. Emergency. In some cases, when the nursing home or its employee has caused an injury by acting in an emergency situation where there was not time for deliberation, if the person acted as a normal and prudent person would have acted in an emergency, his conduct will not be considered negligent. XIV. DEFENSE CONSIDERATIONS REGARDING DAMAGES : A. Employ expert economics consultant to evaluate an find holes in plaintiff's expert's economic analysis. B. In a death case, make sure that the consumption expenses of the deceased are offset

16 against the recovery. For example, plaintiff demonstrates that, but for the injury to the resident that resulted in death, the plaintiff could have been expected to live another ten years. However, if the resident would have been in a nursing home during those years, the costs of the nursing home care should be deducted from the loss. C. Exceptions to the you take the plaintiff as you find him/her rule: If the plaintiff was already incapacitated or had a pre-existing condition that would inevitably worsen when plaintiff suffered the injury, defendant is liable only for the additional harm or aggravation to the pre-existing condition. D. Plaintiff must exercise reasonable care to minimize the consequences of the injury. Thus, if a patient's condition worsens due to the patient's noncompliance with treatment, defendant may not be liable for the exacerbation to the injury. E. Factors used to evaluate a nursing home case: 1. Nutritional status and weight loss of the resident; 2. Mental status of the resident; 3. How long the resident had conditions making the development of decubitus 4. Whether the resident had conditions making the development of decubitus ulcers difficult or impossible to avoid; 5. Whether any nursing home records were falsified; 6. The completeness of nursing home records; 7. The mobility of the resident. 8. The facility's history with regard to employee turnover and, specifically, were any employees terminated as a result of injury to a resident; 9. The attitude of the survivors and beneficiaries; 10. The attitude of the physician and whether the physician was kept well-informed of changed in the resident's condition; 11. Whether the family was close to the resident and visited frequently; 12. The presence of photographs; 13. Any documentation from hospital records regarding pain and suffering that corroborates plaintiff's claims; 14. The compliance history of the facility with licensing and certification requirements; 15. Specific findings of the state survey agency that pertain to the plaintiff or pertain to time periods when the plaintiff resided within the facility. 16. In a decubitus ulcer case, can the facility document that: a. the resident was turned, changed and repositioned in a timely manner; b. pressure relieving devices were utilized; c. proper treatment was provided in a timely manner to prevent worsening of any skin problem; d. the patients nutrition was adequate. XV. ADDITIONAL THEORIES OF RECOVERY - DECEPTIVE TRADE PRACTICES, INTENTIONAL TORTS (Fraud, Assault, Battery), BREACH OF CONTRACT, VIOLATIONS OR RESIDENT RIGHTS : A. Deceptive Trade Practices.

17 Although the Texas Medical Liability Act specifically provides that DTPA shall not apply to health care providers (including nursing homes) with respect to personal injury or death resulting, or alleged to have resulted, from negligence on the party of any physician or health care provider, plaintiff's attorneys have continued to urge courts that there should be a separate and distinct cause of action based on false representations by the nursing home as to quality of care. Recently, several appellate courts have allowed plaintiff to bring such claims in seeming contradiction of the Medical Liability Act provisions. For example, in Chapman v. Wilson, 826 S.W.2d 214 (Tex. App.--Austin 1992, writ denied), the Austin Court of Appeals refused to read 1201(a) of the Medical Liability Act as a complete exemption for health care providers from actions brought under the DTPA. Id. at 219. Instead, the court determined that 1201(a) exempts health case providers only from DTPA claims based on negligence. Thus, a DTPA cause of action exists against health care providers for personal injuries when that claim is based upon a knowing misrepresentation. Id. The Chapman court's holding was adopted and extended in Rhodes v. Sorokolit ; 846 S.W.2d 618 (Tex. App--Fort Worth 1993). Contra, Waters v. Del-Ky, Inc. 844 S.W.2d 250, (Tex. App.--Dallas 1992). This court applied the reasoning of the Chapman court and extended the holding recognizing a DTPA cause of action against health care providers when it is based upon the breach of an express warranty. Id. at 2. The successful DTPA claim can result in either double or treble damage awards. How many of your client's facilities have advertising brochures? What representations are made as to quality of patient care, as to staffing, as to patient protection, etc.? Before Chapman, the courts were less willing to allow any DTPA claims against health care providers. For example, the court in Easterly v. HSP of Texas, Inc., 772 S.W.2d 211 (Tex. App.--Dallas 1989, no writ)held that the relationship between a hospital and a patient fundamentally involved services, thus no implied warranties existing covering an epidural kit sold by the hospital. Consequently, the DTPA had no application to plaintff's claim. A second example is the holding of Knapp v. Eppright, 783 S.W.2d 293 (Tex. App.--Houston [14th Dist,] 1989, no writ). In this case, the court made a very broad and general holding that the plaintiff's deceptive trade practice and breach of warranty claims were invalid issues in health care liability cases. B. In addition to lawsuits involving negligence, actions may be brought against nursing home based on intentional torts such as fraud, assault and battery. Further, plaintiff's can seek punitive damages if gross negligence can be proven. C. Civil actions may also be brought against nursing homes for breach of contract, fraud, misrepresentation and absence of informal consent. D. Exemplary damages or punitive damages are intended to punish the defendant in order to deter similar future acts of negligence. May states have enacted caps on punitive damages. However, there may be exceptions to the punitive damages cap in the case of intentional or malicious torts. In order to award exemplary or punitive damages, there were must generally be a finding of fraud, malice or grass negligence. XVI. MALPRACTICE/WRONGFUL DEATH JUDGMENTS OR SETTLEMENTS ON NURSING HOME CASES : Provided courtesy of: Marshall & Gonzalez A Partnership of Professional Corporations

18 Attorneys at Law 3040 Post Oak Boulevard, Suite 550 Houston, Texas (713) FAX (713) The Lindberg Center 312 Lindberg McAllen, Texas (210) (800) FAX (210) CASE STATE; COURT; CASE NUMBER PRIMARY ALLEGED INJURIES AMOUNT OF VERDI SETTLEMENT (S) *Conley, et al. (as representative of Tennessee; Circuit Court, Davidson Decubitus $350,00 (S) Maggie Conley) v. I. Biron Pennington, d/b/a Belmont Health Care Center County; No. 85C2318 *D.S.F., Inc., v. Mary Sue Sagor, et al. California; Superior Court, Los Angeles Medication Failure/Decubitus $199,781 (V) Davis v. Montrose Bay Health Care Center Donson Nursing Facilities v. Dixon Drassler v. Crown Manor Health Care Center *Edwards, by next friend and brother James Edwards, v. Beverly Enterprises, d/b/a Franklin County Health Care Center County; No. c Alabama; Circuit Court, Mobile County; No. CV (Related case: Pettus, Estate of v. Vari-Care) Negligent supervision: death from strangulation by improperly applied restraint Georgia; Superior Court, Fulton County; Wrongul death: injuries from fire after Case number not listed being allowed to smoke unattended Illinois; Circuit Court, Lake County; No. Death: failure to monitor resident; 91 L 1386 overdose of Coumadin Tennessee; Circuit Court, Franklin Malnutrition County; Case number not listed $2,500,000 (V) (Combine both cases) $25,000 (V) $500,000 (S) $250,000 (S) Emmerechts v. Edgewater Nursing and Illinois; Circuit Court Cook County; No. Death: failure to supervise; resident $250,000 (S) Geriatric Center 85L2386 burned by another resident Faison v. Hillhaven Corp. North Carolina; Superior Court, Hertford Extreme pain resulting from the $15,000,000 (V) County; No. 89 CVS 64 withholding of morphine Foster v. Healthsouth Rehabilitation Florida; Circuit Court, Dade County; No. Buttocks injury: massive ulcer caused Defense verdict Center, et al CA 21 by negligence *Guinn v. Medicalodge, Inc. Kansas; District Court, Wyandotte Decubitus $600,000 (S) County; No. 86C1832 Frye v. Silver Palm Nursing Center, Inc., Florida; Circuit Court, Pasco County; Bilateral amputations: severe decubitus $1,000,000 (V) d/b/a National Healthcare Center of Hudson, National Health Corp. and McGuire, D.O. No. CA ulcers *Hackman v. Professional Care Centers, Missouri; Circuit Court, City of St. Louis; Decubitus Inc., d/b/a Oak Park Professional Care No Nursing Home; and Dr. Dandamudi Harrell, Pro Ami, Stalley v. Beverly Florida; Circuit Court, Hillsborough Enterprises, Inc., d/b/a Manhattan County; No Convalescent Center Hernandez v. Ara Living Centers California; Los Angeles County; Court and case number not listed Hofelich v. Manor Care North Olmstead; Ohio; Court of Common Pleas, Suntala, MD Cuyahoga County; No Honek v. Cuyahoga County, Ohio Ohio; Court of Common Pleas, Cuyahoga County; No Negligence: bedsore and deteriorated condition $400,000 (V) Defense Verdict Hip injuries: fractured hip from fall; total $75,000 (S) hip replacement needed Bedsore; bedridden Alzheimer's patient $13,085 (V) Wrongful death: failure to diagnose fecal $30,000 (S) impaction which led to death

19 *Johnson v. Golden Age Convalescent California; Superior Court, Los Angeles Decubitus; Contractures; Dehydration; Homes County; No. NEC Weight Loss Jones v. Clearwater Convalescent Florida; Circuit Court, Pinellas County; Failure to provide proper nourishment, Center, Inc. No repositioning, and monitoring: diabetic suffered below knee amputation, hip fracture, skin ulcer Kulwinski, Estate of, v. Parklane Nursing Illinois; Circuit Court, Cook County; No. Death: ulcers, anemia, pneumonia, & Diplomat Health 89L1672 malnutrition, dehydration Levit v. Country Villa Westwood California; Superior Court, Los Angeles Wrongful death: digestion problem Convalescent Center County; No. WEC caused by NH staff giving wrong food *Lewis v. National Health Care Affiliates, Florida; Circuit Court, Duval County; No. Gangrene/Leg Amputation Inc., d/b/a Eagle Crest Nursing Center CA *Lowe v. Rock Creek Manor District of Columbia; Superior District Malnutrition *Matlock, Individually and as Administrator for Alger Matlock, v. Ohio Convalescent, Inc., Summit Health, Ltd., Inc., d/b/a Baldwin Park Health Care Center and Sierra View Convalescent Hospital, and Dr. Bruce Jackman McCarthy, Estate of, v. The Grand Manor; Castro, M.D. Newton v. Basic Amer. Retirement Communities, Inc. Court; Case number not listed California; Superior Court, Los Angeles Decubitus County; No. SOC70861 Missouri; Circuit Court, St. Louis City; No Indiana; Circuit Court, Newton County; No. 56C CT-58 Above knee amputation $100,000 (S) $600,000 (V) $250,000 (S) $225,000 (V) $576,000 structured value present value) $200,000 (S) $400,000 (S) Hand and hip fractures while restrained $69,500 (S) Defense Verdict: pre-exist Footnotes [FN2.] 1971). Nichols v. Green Acres Rest Home, 245 So.2d 544, 545 (La. Ct. App. [FN3.] Bezark v. Kostner Manor, 172 N.E.2d 424, 426 (1971). [FN4.] 1988). Kildron v. Shady Oaks Nursing Home, 549 So.2d 395, 397 (La. Ct. App. [FN5.] Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. 1983). [FN6.] Kujawski v. Arbor View Health Care Center, 407 N.W.2d 249 (1987). [FN7.] Bergandy v. Richardson, 510 N.Y.S.2d 984, 985 (N.Y. Sup. Ct. 1987). [FN8.] Kapp, Marshall B., Malpractice Liability in Long Term Care, A Changing Environment, 24 Creighton Law R. 235, June [FN9.] Flinn v. Four Fountains, Inc., 536 N.E.2d 89 (5th Dist. Ill. 1989). [FN10] Larson, Kira Anne, Nursing Homes: Standards of Care, Sources of Potential Liability, Defenses to Suit, and Reform, 37 Drake L. Rev. 699 (1989). [FN11.] Id. [FN12.] Juhnke v. Evangelical Lutheran Good Samaritan Society, 634 P.2d 1132.

20 [FN13.] Kujawski, FN6 [FN14.] State v. Serebin, 350 N.W.2d 76, 77. [FN15.] Makas v. Hillhaven, 589 F.Supp. 736, 739 (M.D.N.C. 1984). [FN16] Oswald v. Rapides Iberia Management Enter, 452 So.2d 1258 (La. Ct. App. 1984). [FN17.] Rosemont Inc. v. Marshall, 481 So.2d 1126 (Ala. 1985). [FN1.] Marks, David Theodore, Pleading and Discovery Strategies in the Nursing Home Maltreatment Case. [FNA1.] Marks, David Theodore, Pleading and Discovery Strategies in the Nursing Home Maltreatment Case. [FN18] Day, John A, Intangible Damages for Injury to an Elderly Person, 5 Am. Jur. Proof of Facts 3rd 323, 331. [FN19.] El Paso E.R. Co. v. Murphy, 109 S.W.2d 489 (Tex. Civ. App. 1908), writ ref'd.). [1]The cases in this chart were selected at random, primarily from multiple verdict and settlement data services. (Note that cases marked with an asterisk were compiled from David T. Marks, Pleading and ] Discovery Strategies in the Nursing Home Maltreatment Case, Association of Trial Lawyers of America Reference Materials 351, 406 (Table 1) (1990).) This chart is not intended as a comprehensive survey of verdict and settlement amounts; nor is the ratio of defense verdicts to plaintiff verdict and settlement amounts intended to reflect the ratio of actual outcomes in nursing home negligence cases.texas cases are listed first, in alphabetical order. Cases from other jurisdictions follow, also listed in alphabetical order. [2]Revised May 17, 1994

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