In children’s novels and television commercials, the golden years include rocking on a beautiful porch with a nice cold glass of iced tea, fresh flowers and a steady stream of well-wishing passersby. Friendly white-haired ladies help children find their way in life while dispensing loving and welcome advice to their caring and patient family members. Kindly gray-haired men take fatherless boys fishing and work on public service projects, like parades and fundraising events. The community, in turn, loves and respects them.
The “golden years” look much different when viewed through the jaded eyes of someone handling nursing home litigation. The golden years become a sad and lonely road to death, marked only by an inevitable loss of abilities and function. The lucky ones fade away in nursing homes with no acute events. For the unlucky ones, their years in a nursing home are filled with pain, fear, suffering and despair.
There are likely many happy residents of nursing homes, but the nursing home negligence practitioner sees none of those … only the disasters.
Until recently, many nursing home negligence cases went untried. Justice was unavailable to the elderly neglect victim, or the distraught family members of the diseased. The conventional method of reviewing cases (liability/damages) usually resulted in nursing home cases simply not being “worth it.” On paper, it is simple: There is no loss of earning capacity. If there is permanence, it is of short duration, and usually by the time an attorney sees the case, the person is deceased, (likely from other, unrelated causes).
Those of us who practice in the area of nursing home abuse and neglect have decided that if we as a society allow this type of mistreatment of our elderly citizens, then we have failed. The changes in how nursing home cases are viewed have been the result of hard work on the part of the plaintiffs’ bar to raise awareness on the part of the nursing home, but more importantly, in the community and among the trial judges. Juries have spoken nationwide and they have emphatically said that elder neglect and abuse will not be tolerated.
Practically speaking, however, we all must turn away cases that we may wish to handle but, as an economic decision, cannot. This article is designed to help lawyers who have been turning away nursing home cases to evaluate them and decide whether to proceed.
Cases generally fall into several categories:
• Falls and fractures
• Pressure ulcers
• Failure to report medical condition (or change of condition) to physicians
• Restraint injuries (physical or chemical)
• “Wander off” cases
• Physical abuse and assault
• Rape and sexual assault
In reality, for settlement purposes, all cases fall into certain regulatory violations. For trial purposes, all cases become issues of money and staffing. The jurors respond well to the argument that the injury happened because the nursing home did not provide sufficient money to hire enough staff to properly supervise/care for/feed the residents. Falls often times occur because a resident can no longer wait for help to get to the bathroom. Or doesn’t remember, due to mental impairment, that he is supposed to use the call light.
Malnutrition can occur because staff does not have time to manually feed the residents. Or, the plate is half-empty, but most of the food has been spilled on the resident because of poor coordination. Staff is supposed to assist, but often does not.
Pressure ulcers develop because the patient was not turned as often (every two hours) as required.
Most nursing homes cases require a nursing care expert or a nursing home administrator expert on liability. However, beware, when screening: you can find yourself in need of a medical expert on cause. This can become costly.
What Are the Damages?
While nursing home negligence cases do not require the amount of damages that a medical malpractice case does, you still need legitimate damages in order to justify proceeding. The following comments are intended to help you avoid overlooking important damages.
Your review of the case must begin with the perspective that the nursing home has promised to take care of the resident. This promise is made in the contract to house the client, and is made with the federal government in order to qualify for Medicare funds. The nursing home knows, when it accepts the resident, that he or she has certain problems, and that those problems will worsen and others will develop as time passes. The preexisting conditions, which become so important in the defense case, are fully known to the defendant at the time of admission.
Nothing that develops during the resident’s stay should be a surprise to the nursing home. In fact, decline is expected to occur. View the damages in terms of the breach of trust, which results in the injury.
The burden of persuasion in representing the victim of a nursing home abuse or neglect case is fraught with complications and challenges. The difficulty encountered in these cases begins at the evaluation process given the certainty that the defense will formulate its primary attack on the preexisting diseases, conditions, and frailties of the plaintiff. Traditional damage models simply do not work in a nursing home case. Generally there will be no lost earning potential or lost wages, many times a dearth of wrongful death beneficiaries (see below), and often times, a lack of physical impairment injuries due to the fact that the resident is already severely impaired.
The primary damage item is the pain and suffering of the resident. It is important to spend more time on proving pain and suffering here than in other types of cases.
Pain: Especially in the instance of impaired residents – which your client often is or was – the defendants will work very hard to tell the jury that the plaintiff was not aware of his surroundings. The defense plan is that even if he was neglected, he (luckily) didn’t feel anything,
You will want to teach the jury that pain is a brain stem function. Although Alzheimer’s Related Dementia (ARD) affects the capacity to communicate, it does not affect the capacity to experience pain. Chronic pain is expressed in a different manner than acute pain. The lack of capacity to communicate pain does not preclude the ability to experience pain. Pain is difficult to assess in patients with ARD. (See accompanying Checklist of indicators of pain, suffering and mental anguish).
There are several sources available to prove pain:
• Nursing home clinical record
• Subsequent hospital record
• Nursing home employees
• Hospital employees and physicians who attended the resident following the injury
• Administration of pain medication
• Regular visitors of the resident
• Nursing home inspectors
• Ambulance personnel
• Photographs, videotapes or audio recordings
• Attending physician of resident at nursing home
• Expert witness
Humiliation and Emotional Trauma: This is an important part of any nursing home case. There is a vast difference between impaired mental/communicative capacity and loss of dignity. Consider the patient who is found soaked with her own urine. Her undergarments, her pants to below the knees, and her shirt up to her shoulders are all soaked with stale urine. She smells. It burns. Her clothes are so wet that when she is helped out of her bed, urine drips onto the floor. It is difficult to peel off her clothes. This is loss of dignity and it has a value.
As you review the case, you must conduct an analysis which includes the following factors:
1. Can the physical and emotional injury, resulting from abuse or neglect and its sequelae, be separated and proven apart from the underlying disease processes and conditions of the resident?
2. How has the injury affected the prognosis, life span, and ability to enjoy a quality of life?
3. Can you prove damages for the statutory beneficiaries of the resident, and more importantly, prove that they are deserving recipients of such damage awards?
The first of these factors is determined by a causation expert, usually the treating physician who patched up or at least relieved the pain of the resident when she was brought to a hospital. Sometimes it is a hired expert. The second one is determined by the quality of testimony you will be able to extract from family and friends. The third opens another area of inquiry.
Who Are Your Clients?
The first issue, and it can be a slightly sticky ethical one, is: who is your client? The first step you must take is to identify (1) the client to whom you owe your ethical duty and (2) the capacity of the client(s). It is rare that the nursing home victim comes into your office. More often it is a family member, but not necessarily the family member with the claim, or authority to represent the victim.
If the victim is alive and competent, then you want to represent that person as the client. The issue of competency is tricky, however, and you are warned to be cognizant of this issue throughout your representation, because it can change.
If the victim is deceased, then you want to represent the family member or members who own the wrongful death claim. If the victim suffered before dying, then you need a personal representative to open an estate. It is good to be sure all relevant family members are aware of the suit and either opt in or out (in writing) at the beginning. You want to avoid being involved in dividing up the money at the conclusion of the case.
One more issue is that jury research has shown that jurors do not like family members who put their loved ones in a nursing home. Whether true or not, a majority of jurors polled believe that they would not put their parent in a nursing home. As you screen the case, consider whether there is a good reason for the family’s placement of mom into the nursing home. Some reasons that juries have found acceptable are:
• Mom was only in there for rehabilitation and was going to come back home when her hip/leg/arm was better
• Mom was so difficult to move that no family members could do it – professionals (or a hoyer lift) were needed
• We tried having mom at home but it simply did not work
Which Regulations Were Violated?
Few areas are as heavily regulated as nursing home care. Therefore, nursing home cases are regulation intensive. Because the regulations are usually quite consumer friendly, it is essential that you review and understand the many regulations and laws that potentially apply to any nursing home case.
There are numerous federal and state regulations that the nursing home practitioner must be aware of. This article’s scope is such that it cannot cover every regulation and what it does. However, becoming familiar with the following would be a good start for anyone considering practicing in this area:
42 U.S.C. Section 1396r: The federal requirements for nursing facilities are primarily contained at this cite. They are interpreted and enforced by the Health Care Financing Administration of the Department of Health and Human Services.
42 C.F.R. Part 488 and Part 483 may be the two most important sets of rules relevant to quality of care in nursing homes. Part 488 is the Survey and Certification Procedures, and Part 483 includes the Requirements for Long Term Care facilities.
OBRA is the Omnibus Budget Reconciliation Act of 1987 in which the Nursing Home Reform Act (NHRA) was included. Congress enacted NHRA, in response to widespread criticism of nursing home abuse in the mid–to late 1970s, to reform the nursing home industry. Any nursing home receiving federal funds through Medicare and Medicaid must comply with federal laws requiring nursing homes to provide high quality care to residents. The laws, which are referred to in shorthand as OBRA, requires that nursing homes seeking reimbursement from Medicare and Medicaid must “care for residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident,” 42 USCA Sec. 1396r(b)(1)(1998), and “attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care.” 42 USCA Sec. 1396r(b)(2). The NHRA’s Requirements of Long Term Care Facilities governs the operations of nursing homes with Medicaid patients and mandates residents’ rights and facilities’ duties.
State Remedies: Congress specifically said that the federal remedies are in addition to those available under state law. Various state regulations are also helpful in pursuing these cases.
Chapter HFS 132 contains Wisconsin’s administrative rules governing nursing homes. Residents have a “Patients’ Bill of Rights.” HFS 132.31. Many other aspects of nursing home care are regulated in this chapter.
Section 51.61 sets forth detailed requirements for the protection of patients. Significantly, this Section provides for recovery of actual attorneys’ fees and costs if you represent a victim for a violation that fits within the definition, and win.
Examples of Regulations that are often Violated:
The regulations cover every aspect of the resident’s life at a nursing home. If you have an injury, a careful analysis of the regulations will reveal a relevant provision, allowing you to allege a violation. Here are some commonly-used examples:
Falls: The facility must ensure that the resident’s environment must remain as free of accident hazards as is possible, and each resident must receive adequate supervision and assistive devices to prevent accidents. 42 C.F.R. Sec. 483.25(h).
Comprehensive Care Plans: The facility must develop a comprehensive care plan that includes measurable objectives and timetables to meet a resident’s medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The Plan of Care must deal with the relationship of items or services ordered to be provided (or withheld) to the facility’s responsibility for fulfilling other requirements in these regulations. 42 C.F.R. Sec. 483.20(d)(1).
Infections: The facility shall exercise adequate means to help keep the resident free from infection. 42 C.F.R. Sec. 483.65.
Pressure Sores: Based upon a comprehensive assessment of a resident, the facility must ensure that: (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; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. 42 C.F.R. Sec. 483.25(c).
What Claims Should I Make?
As you review the case, you will want to think about which claims are available to you. Depending on the facts of your case, there are many types of claims you can make in a nursing home case. The most obvious, of course, is negligence. You will include this claim in every nursing home case. But, there are other claims that may be less obvious, especially as you begin practicing in this area.
Other claims include breach of contract, which arises out of the Resident Admission Agreement between the resident and the facility. This claim rests on the many representations made in the agreement, which were not followed through. These claims are usually not covered by insurance, which means the nursing home has to defend and pay these claims itself – which often helps settle cases.
Wrongful death claims are involved when your resident is deceased. It can be difficult to find a doctor to testify that your elderly patient died as a result of the injury or neglect, rather than the myriad of other problems she had. The concept of “a cause” versus “the cause” becomes very important when talking to the doctor.
False Claim Act is a potential theory which is that the nursing home violated federal law by submitting inflated bills, bills for services that were not provided, and other false claims. Medicare fraud involves penalties and treble damages.
Violation of OBRA: Either include these violations in the negligence allegations, or allege them separately, but spell out every violation that you believe you have.
Wisconsin Statutory Violation Claims must always be plead in addition to the federal violations. Some cases have facts which allow you to file a claim for violation of the Consumer Protection Act. Others can be plead in battery, fraud, and other creative theories.
Why Should I Accept a Nursing Home Case?
You should accept a nursing home case to right a wrong, to make nursing homes accountable, and to carry out the mission of plaintiffs’ lawyers on behalf of the most vulnerable members of our society.
“The primal principle of democracy is the worth and the dignity of the individual.”
– Edward Bellamy (1850-1898)
Checklist of Reliable Indicators of Pain, Suffering and Mental Anguish
1. Inarticulate cries, screams, groans or facial contortions
6. Restricted movement
7. Declarations by the patient of pain or anguish
8. Contemporaneous judgment by nurses or physicians that the resident is in pain
9. The nature, extent, severity and duration of the injury
13. Warm to touch
15. High pulse rate
16. Anxiety and emotional trauma resulting from the failure of staff to bathe, change or clean the patient after incontinent episodes
17. High blood pressure
18. Anxiety and emotional trauma resulting from the failure of staff to provide resident with bedpan, or to provide other needs such as water
19. Pain or anxiety occasioned by treatment of the injury
20. Anxiety and fear relating to the inadequate care provided to the resident
21. Anxiety and emotional trauma resulting from the failure of staff to respond to pleas for help (e.g. failure to respond to call light)
22. Mental dysfunction or disability following injury to resident
23. Resident despondency, withdrawal, fret and doom after the injury or incident
24. Side effects of drugs administered to alleviate pain or to alleviate problems caused by the injury
25. Impairment of the ability to engage in activities which were an important part of the resident’s life prior to the injury.
• Complete set of the nursing home’s records
• Hospital records pertaining to the underlying condition prior to transfer to the nursing home
• Hospital records related to the injury suffered in the nursing home
• Photographs of the injured individual
• Police report
• Police photographs
• Investigation materials by the State