very day, there are nursing home patients suffering from abuse and neglect. Does this happen in Wisconsin ? Yes. Does it happen in the nicely-landscaped nursing home down the street from your office? Yes. Do elderly persons – grandmas and grandpas – really die from lack of care in a nursing home? Yes.
Lawyers often call me to ask if one of their clients, whose mother or father or aunt or uncle or grandparent is in a nursing home, has a case. There are numerous steps that I go through in determining whether or not there is a viable case. The purpose of this article is to help you, the Elder Law Lawyer, recognize when a neglect and abuse situation rises to the level of a lawsuit.
First, you should know what types of abuse and neglect cases we see in our office. This list covers the most common issues that we see: Falls, decubitis ulcers (pressure sores), choking, serious infections (including MRSA), wandering, assault/rape, medication errors, failure to prevent suicide, intestinal obstruction/weight loss, burns, malnutrition, dehydration, accidents and factures, and abuse or neglect.
The Legal Issues to Consider
Fault
The first issue is whether the nursing home is liable for the injury. This includes evaluating common law negligence as well as statutory violations. The typical negligence case requires the services of an expert – either a nurse or a nursing home administrator, depending on the issue – and an analysis of whether or not the nursing home’s staff fell below the standard of care. Did the staff do less than the average staff would do in the same or similar circumstances? It is a typical negligence analysis.
In addition to hiring experts, there are numerous publications you can consult to assist you in determining whether or not the facility was negligent. These include books on care and prevention of pressure sores, avoidance of falls, and the use of unnecessary medications.
In addition, since nursing homes are heavily regulated, there are regulations to consider. These include federal and state regulations. Federal regulations center around 42 C.F.R. § 483, commonly known as OBRA. Nearly every aspect of a resident’s care is addressed in OBRA. Here are some random examples:
(1) 42 C.F.R. § 483.10(b)(11)(i): Requires that a facility must immediately consult with the resident’s physician when there is a significant change in the resident’s physical status and when there is a need to alter treatment.
(2) 42 C.F.R. § 483.13 (c)(2): The facility must ensure that all alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source…are reported immediately to the administrator of the facility and to other officials in accordance with State Law through established procedures (including to the State Survey and Certification Agency).
(3) 42 C.F.R. § 483.30 (a)(1): The facility must provide services by sufficient number of licensed nursing and other nursing personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans.
(4) 42 C.F.R. § 483.15 (a): A nursing home must care for its residents in an environment that promotes maintenance or enhancement of each resident’s quality of life, dignity, and respect in full recognition of his or her individuality.
(5) 42 C.F.R. § 483.25: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well being, in accordance with the comprehensive assessment.
(6) 42 C.F.R. § 483.20 (b)(4)(iv): The facility must conduct an assessment after a significant change in resident’s condition.
(7) 42 C.F.R. § 483.20(d)(1) 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.
(8) 42 C.F.R. § 483.75(1): Requires that the facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete and accurately documented.
In addition, there are state regulations, including HFS 132.31 (residents’ rights), HFS 83 for CBRFs and Wis. Stat. § 51.61 for protection of patients.
The nursing home records and any available medical records from outside the facility are key to reviewing the case. For a complete review, you will need the patient’s complete chart from the nursing home, including any incident reports, which are often kept outside the chart. A careful review will help you determine whether or not the facility violated statutes, was negligent, or both. Ambulance and emergency room records often provide critical information.
State inspection reports, called “surveys,” are also helpful and can reveal information otherwise unavailable to you.
Cause
When you have determined that there is negligence on the part of the facility, then you must find a medical doctor to function as your expert to prove causation. This is often difficult in nursing home cases because the typical patient usually has numerous other ailments. The negligent act of the nursing home need only be a substantial factor in causing the injury … but many doctors are reluctant to testify on this issue.
In a death case, it is often difficult to prove that the negligence was a cause of the death when many other life-threatening conditions existed at the same time. An autopsy is very important.
Damages
When you have determined that the case meets the standards for negligence and cause, the next step is damages. What are the damages? The main damage items include pain, suffering, disability, loss of dignity, and medical bills. Usually you do not have loss of wages. Although a common view is that cases for the elderly are “not worth enough,” I have found that juries place value on the precious last years – or months – of a person’s life.
The Practical Issues
Even when the case looks like it will fulfill the legal criteria, you have to go a step or two further in a nursing home case because there are other critical issues which can and do arise. Here are some questions to keep in mind when screening a nursing home case:
1. Who is the client? Usually the injured person is not the one sitting in your office, speaking with you. You are talking to a spouse or a son or daughter, niece, sister, or some other relative. If the injured person is competent, that is who you will represent, if you take the case. If the injured person is not competent, or is deceased, you must ensure that you are talking to the person who has authority to proceed. There are significant ethical issues involved in sorting out whether you can communicate with the people who want to communicate with you.
2. In the case of a death, is there a will? This often provides the answer to many questions.
3. Will there be family squabbles? It is not uncommon for the heirs to be several brothers and sisters. Usually one or two were very involved with “Mom” and the others were not. They may, however, all have their hand out at the time of the disbursal, wanting their share. I believe it is a good idea to work with the heirs at the beginning to establish whether they are “in” or “out.” Those who are “in” should share in the costs and work of the lawsuit and those who are “out” should not.
4. Is it a medical malpractice case? If it is, then there are particular statutes that must be complied with and fee limitations which apply. Generally, cases must have fairly high damages to warrant the high costs of a medical malpractice case. As a guideline, if the care which caused the harm was custodial, it is not a medical malpractice case. If it was medical, then it does. There is a wide range of situations in between which have to be evaluated on a case-by-case basis. Any nursing home affiliated with a hospital, even if not physically attached, is automatically brought within the rules of medical malpractice cases.
5. Is it a death claim? Do you have someone who is competent to bring the death claim? It can be brought by the spouse, children or parents of your nursing home resident. It can also be brought by the personal representative or the person to whom the money belongs, but the only claimants who can be compensated for loss of society and companionship are the spouse, children or parents. Even more important, do they have a legitimate claim? Did they visit? Did they care? Are they mentioned in the records?
6. Is there a pain and suffering claim? This claim can only be brought by the injured person, or his or her estate. Who will be the personal representative?
7. What risks are there to opening an estate? The biggest risk is that the deceased person owes debts. If there are debts, they will have to be paid out of the recovery. Generally, the biggest debt is to the state for the injured person’s care in the nursing home. This is usually Medicaid or Title 19. If the injured person has been in a nursing home for a long time, this debt can be huge – sometimes over $100,000. This is a huge disincentive for the family to bring a lawsuit, and in my opinion, must be disclosed up front.
8. How big are the other liens? Medicare and other health care insurers must be paid back for related medical payments.
9. Is the nursing home in bankruptcy? Bankruptcy is a common issue in nursing home cases. Bankruptcy may stay your case, if it applies to your action, and it may or may not effectively bar your action.
10. Who owns the nursing home? A new trend is for nursing home “ownership” or “management” to change hands frequently, with the new operator or owner expressly not assuming liability for acts before the transition date. This has brought successor liability to the forefront of many nursing home cases, with some of the transition agreements withstanding scrutiny and others not.
It is important to consider all of these issues when reviewing a nursing home case.