GPSOLO July - August 2008
Litigating Nursing Home Malpractice
More than 20 years ago, Congress passed OBRA (Omnibus Budget Rec-onciliation Act of 1987), legislation designed to improve the quality of nursing home care. Despite this legislation, systemic problems persist in the nursing home industry. Today in America approximately 1.5 million people reside in 17,000 nursing homes. Too often these homes are understaffed, and what staff they have is poorly trained and overworked. Because a significant part of nursing home care involves physical work—for example, turning and repositioning bed-bound patients takes time and can be exhausting—insufficient staffing leads to insufficient care and injury. Patients regularly develop avoidable conditions such as bed sores, dehydration, malnutrition, urinary tract infections, and sepsis. Nursing homes fail to take the most basic precautions to prevent patients from falling and breaking bones—often a terminal injury in the elderly. Patients receive the wrong medication, leading to unfortunate but predictable results. Patients are left sitting in their own waste for hours, wondering when help will come, while their skin becomes irritated and infection takes root. Patient advocates are outraged, but the nursing home industry claims that these and other conditions are unavoidable. When a resident’s family seeks legal advice after such mistreatment, suddenly the solo or small firm practitioner finds himself or herself on the front line of elder care.
The nursing home industry has a great deal of money at stake. In the year 2000, public and private spending on long-term care was approximately $137 billion. Last year the first wave of the 80 million-strong baby boom generation started retiring. As a result of baby boom retirements, spending on long-term care is expected to increase by two and one-half times in coming decades. By the year 2050, that number is expected to quadruple, in constant dollars reaching $379 billion (see www.gao.gov/new.items/d02544t.pdf). Although regulators do what they can, tort law has become the most effective vehicle for ensuring that systematic nursing reform occurs. Lawsuits arising from nursing home abuse and neglect put pressure on the industry to reform its bad practices.
Despite the fact that the nursing home industry regularly settles cases of abuse and neglect for large sums, it continues to try and hide its assets behind labyrinthine corporate structures. Often, it takes a tenacious plaintiff’s counsel to cut through shells of corporate protection to reach the solvent entity beneath. For the most part this is a David-and-Goliath struggle, with the plaintiff’s counsel fighting against an industry that treats patients as little more than entries in a balance sheet.
Because the nursing home industry knows that it cannot hide its wrongdoing and that the courts will hold it accountable for the neglect and abuse of patients, it perpetuates the myth that most bad outcomes for patients are unavoidable consequences of aging. The industry argues that the elderly are a difficult population to care for and that despite their best efforts, injuries will occur. The solo or small firm practitioner must understand how to counter these arguments in order to ensure that elderly clients receive full justice. The elderly deserve to live the remainder of their lives in dignity. Being old does not mean that they should unnecessarily suffer or that their suffering is in any way diminished. Such arguments amount to age bias. If made about any other group, these arguments would be denounced, as they attempt to undermine the system of justice for a large and vulnerable portion of the population. In this light, the importance of skilled counsel to represent the aged comes into clear focus.
In 1987 Congress passed OBRA—landmark legislation intended to address the divergent standards then existing in nursing home care. Although critics argue that OBRA did not go far enough to address the rampant neglect in long-term care facilities, it no doubt made progress for patient care. At a minimum, OBRA’s regulations set standards by which to judge the quality of nursing home care. As a result, any lawyer practicing in this area should be familiar with its requirements. In addition, most states have corollary laws to OBRA. Solos and small firm practitioners should familiarize themselves with the regulations for their jurisdiction or should partner with an experienced nursing home malpractice firm.
One key aspect of OBRA is its requirement that a resident’s condition should not worsen as a result of being placed in the nursing home. In short, nursing homes have a duty to ensure that they keep their patients at the highest functioning level possible for that patient. Whether or not they are experts in OBRA or its state law corollaries, lawyers can use the following road map to determine if there is a case and to prosecute the case if one exists.
The Road Map
Because nursing homes must keep their residents at the highest functioning level possible, the facility must understand and plan for the resident’s specific medical conditions and risks. In other words, the facility must properly assess the needs of the resident, must properly plan for those needs, and must properly execute the plan. For more than a decade, our firm has successfully based its case strategies on this roadmap, and the solo or small firm practitioner can, too.
Assessment. Assessment is the foundation on which all patient care is based. The purpose of assessment is to determine a patient’s potential health risks so that the nursing home can take action to address these risks before they become a problem. If the nursing home fails to properly assess the patient, identifying his/her potential health risks, then the patient’s future care will be compromised.
The minimum data set (MDS) is the assessment tool that nursing homes use in order to determine what care a patient requires. The MDS covers various aspects of patient health including, but not limited to, skin integrity, ability to ambulate, history of falls, and the presence of dementia. Depending on the patient’s condition, as reflected on the MDS, a resident assessment protocol (RAP) is generated.
A RAP sheet is a listing of the patient’s medical conditions that require care planning. It is notable that under federal law, the nursing home has no discretion over when a RAP is generated: It is automatically triggered by certain conditions on the MDS—a clear indication that Congress did not trust the professional judgment of all nursing homes. When preparing a nursing home case, the patient’s MDS and RAP sheets are the starting point for the lawyer because they indicate the needs of the patient as understood by the nursing home.
That being said, every lawyer has encountered cases where documentation was not properly completed, and nursing home cases are no exception. Often the nursing home chart cannot be relied on for an accurate reporting of the patient’s condition and treatment. False charting does occur, and the attorney must review the original chart with a skeptical eye.
Planning. Once a patient has been assessed and the patient’s medical needs are understood, it is the nursing home’s responsibility to plan for those needs. The home does so by generating a care plan for each patient. A patient’s care plan lists the patient’s medical conditions and the interventions intended to address them. The care plan should be specifically tailored to the needs of each patient—it should not be general. The care plan becomes the guide for patient care that nurses and nurse assistants follow. It is, therefore, critical that the care plan is proactive and that it outlines as many appropriate interventions as possible.
Execution/reevaluation. The next step in patient care is the communication and execution of the care plan. It is not enough for a nursing home to have a care plan in place. The best care plans do nothing to improve patient care unless they are communicated and executed. Accordingly, the attorney must understand how the care plan was implemented and what steps were taken to ensure that it was properly executed. Just like a general who gives an order that his troops never get, a perfect care plan means nothing without clear communication, solid employee training, and consistent execution.
The process of assessment, planning, and execution never stops. Good nursing homes continually reassess their patients’ needs. Doing so is important because it informs the staff about which treatment modalities are working and which ones are not. When an approach is not working, the nursing home must reevaluate the patient to see if there is another approach that would be effective. Put simply, if a bad outcome occurs, then the process of assessment, planning, and execution should reoccur until the patient’s needs are addressed.
In any lawsuit, it is important that the lawyer know where he or she is going—know the endgame. In nursing home litigation, the endgame is proving that the nursing home failed to take steps that it should have taken (or that it took steps it should not have taken) in treating the patient. Rarely will nursing home employees willingly admit that they violated a standard of care. Therefore, it is critical that the lawyer get the employee to commit to the “Rules of Patient Care”—assessment, planning, execution, and reassessment.
Once a witness is committed to the Rules of Patient Care, the witness is faced with the choice of agreeing that there were times where the rules were not followed or defending the nursing home at every turn. From the plaintiff’s point of view, the witness can go either way. The first choice proves the plaintiff’s case, and the second choice hurts witnesses’ creditability, making them less useful for the defense.
For example, in a fall case involving a dementia patient in her 80s, the defense will argue that the nursing home cannot watch a patient night and day. This is true. Twenty-four-hour surveillance of the patient is unlikely to happen. Nevertheless, knowing that the resident is at risk for falling, the nursing home can use many interventions to limit the likelihood of a fall. The question is whether the Rules of Patient Care were followed. Was a proper assessment done? Was the patient’s fall risk adequately planned for? Was the plan correctly executed? For example, did the nursing home determine when the patient had fallen in the past? Was it in the morning when she was getting ready for the day? If so, did the nursing home care plan call for having someone with the patient at that time? Did the care plan provide her non-skid shoes? Did the care plan provide for a low bed or mats around the bed in case she were to fall out of bed? Did the care plan provide her with a bed alarm or wheelchair alarm to alert the staff when she was trying to move about unassisted? Did the nursing home have her placed in a room close to the nurse’s station so that she could be observed? There are scores of potential interventions that could prevent a fall by such a patient. The nursing home cannot argue that a fall was unavoidable unless it took all reasonable steps to address the patient’s fall risk. If there was one thing that the home could have done, and did not do, then unavoidability is a hollow defense.
It is easy to see that the Rules of Patient Care—assess, plan, execute, and reassess—puts the defense in a bind. As nursing homes cut corners by limiting their staff numbers, reducing training hours, or overworking the staff they retain, it will become more difficult for them to defend these cases. Where a nursing home did not properly assess a patient’s condition it cannot argue that bad outcomes were unavoidable. Where a nursing home did not properly plan for known conditions—or did not consistently execute the plan—it cannot argue unavoidability. Finally, where a nursing home ignores what interventions were failing to address a resident’s medical risks—and does not create a care plan for new interventions—it cannot argue unavoidability. In fact, if there were things that were not even tried, a nursing home’s argument that nothing could have been done to prevent a patient’s injury defies common sense and angers juries.The solo or small firm practitioner should welcome these cases as an opportunity to make lasting and positive change in the lives of the elderly, ensuring that seniors are allowed to live in dignity.
Steven M. Levin is a senior partner at Levin & Perconti, a Chicago law firm specializing in nursing home malpractice and catastrophic injury. He was one of the pioneers in nursing home malpractice claims. He may be reached at firstname.lastname@example.org. John M. Rushing is a senior associate at Levin & Perconti, where he represents victims in wrongful death cases. He may be reached at email@example.com.