Nursing Home Liability


I.          General Thoughts on Handling Nursing Home Cases

            A.        This is a fertile new ground for litigation          because:

1.         Increasing elderly population – by 2020 it is estimated that 5.8 million Americans age 85 and older will need long-term care.

2.         Labor shortage.

3.         Ineffectiveness of most state regulatory agencies.

4.         Juries sympathetic to victims of nursing home negligence.

5.         Managed care groups moving patients more quickly out of hospitals into nursing homes.

6.         The number of Americans age 65 and over is expected to double by the year 2030.

            B.        Difficulties in Handling Nursing Home Cases

1.         Nursing home cases are complex and require a great deal of time and effort.

            (a)       Nursing homes are governed by voluminous federal and state             regulations.

(b)       They typically involve a resident who has been in the nursing facility for a number of months or years.

(c)       The resident usually has multiple           chronic medical conditions, difficulty performing two or more activities of daily living and some degree of cognitive impairment.

            (d)       Medical issues involved may be extremely complex.

2.         Damages can be limited by virtue of cognitive impairment, physical condition and age.

II.        Nursing Homes are Heavily (but Ineffectively) Regulated

A.        The federal regulations are contained in and created by the Omnibus Budget Reconciliation Act of 1987 (OBRA).

1.         The federal agency responsible for its enforcement is the healthcare financing administration of the Department of Health and Human Services (HCFA).

2.         HCFA can enforce regulations by:

                                    (a)       Monetary penalties.

                                    (b)       Closing down nursing homes.

3.         Some sample OBRA regulations:

(a)       42 C.F.R. §483.25(h)(1)

            The facility must ensure that the resident environment remains as free of accident hazards as is possible;

(b)       42 C.F.R. §483.25(h)(2)

            The facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.

(c)       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).

(d)       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.

(e)       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;

(f)        42 C.F.R. §483.20(b)(4)(iv)

            The facility must conduct an assessment after a significant change in resident’s condition;

(g)       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.

B.        State regulations are contained in the Wisconsin Administrative Code HSS (Health and Social Services).

1.         There are different provisions for nursing home units and community-based residential facilities (CBRFs).

2.         Regulations include those through:

            (a)       medical assistance,

            (b)       the residents’ rights and protections provisions,

            (c)       special rules for housing residents in locked units,                 

            (d)       specific prohibitions of abuse of residents,

            (e)       lengthy regulations regarding resident care, and

            (f)        numerous others.

III.       Important Documents to Obtain 

            A.        Incident/accident reports:  

1.         This defines an incident as a happening which is not consistent with the routine operation of the facility.  

2.         It may be an accident or a situation which might result in an accident.

            B.        The governing body of facility:

1.         The governing body is responsible for establishing and implementing policies regarding the management and operation of the facility.

2.         Very important to ascertain the precise entity which owns the facility.

(a)       Some facilities may automatically bring you under Chapter 655.

                                    (b)       Non-Profit vs. For-Profit Facilities.

            C.         Policy and procedure manuals:

                        1.         Sometimes there are separate ones:

                                    (a)       Personnel policies

                                    (b)       Communicable diseases policies

                                    (c)       Resident care policies

                                    (d)       Administrative policies and procedures

                        2.         Sometimes all are in one binder

            D.        Log books

1.         Facility investigations (required by numerous state and federal laws).

            E.         Personnel Files

            F.         Staffing Pattern Documents:

1.         This is to enable you to identify who cared for the resident and worked in that area at the time of the injury/incident (time sheets and work schedules can be helpful also).

                        2.         Job Descriptions of Personnel

                        3.         Copy of Medical Records

4.         Quality assessment reports which are required by law and which a facility must maintain.  The Quality Assessment committee must consist of a director of nursing, a physician and three other members of the facility.

G.        Any case dealing with nursing home abuse and/or neglect will be document intensive.

IV.       Types of Nursing Homes

            A.        Free Standing (not associated with other licensed health care facilities).

            B.        Nursing homes can vary from 4 beds to 1,000 beds.

            C.         May be for profit or not for profit.

D.        Can be owned by communities, churches, individuals, partnerships or corporations.  Some are publicly traded on the major stock exchanges.

            E.         The care level can vary:

1.         Custodial care for those who need assistance mainly with the activities of daily living.

2.         Sub-acute services where recovering persons can receive care, monitoring and rehabilitation before returning home or to a lower level of care.

3.         Some have specialties such as Alzheimer’s programs or neurological or geriatric psychiatric services.

                        4.         There are few long-term care pediatric nursing homes.

V.        Custodial Care Versus Medical Care        

A.        Whether the case fits under Chapter 155 as medical malpractice or if it is under plain old negligence depends on whether or not the damages arise from physician’s orders, diagnoses and evaluations of residents’ conditions or from custodial care from the staff.  

            B.        Nursing homes provide medical care but are also residences.

C.         Chapter 155 of the Wisconsin Statutes mandates that if a nursing home is connected to a hospital, the facility is by definition a “health care provider.”

D.        Any change of patient condition must be reported to the attending physician.

1.         If it is correctly stated in the record that the doctor was notified about a change of condition and the doctor failed to take action that could have prevented the outcome, it is obvious that the liability lies with the doctor.

2.         If no note is made of changes of condition or deterioration, then the physician has not met the standard of care for nursing home evaluation and management and for billing for services.

VI.       Common Nursing Home Events Leading to Liability Are:

            A.        Pressure ulcers.

            B.        Malnutrition.

            C.         Dehydration.

            D.        Urosepsis.

            E.         Accidents and fractures.

            F.         Abuse or neglect.

VII.     Nursing Liability Issues

            A.        Falls.

            B.        Decubitus ulcers.

            C.         Choking.

            D.        Development of infections.

            E.         Wandering.

            F.         Assault/rape.

            G.        Medication errors.

            H.        Failure to prevent suicide.

            I.          Gasteral intestinal obstruction/weight loss.

            J.         Burns.

VIII.    Miscellaneous Damages Issues

A.        Be aware of the existence of Wis. Stat. § 51.61, which has an attorney fees and costs provision which can make an otherwise “too small” case worth handling.

                        1.         Wis. Stat. § 51.61 provides in relevant part:

(1) In this section, “patient” means any individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter … [i]n private hospitals and in public general hospitals, “patient” includes any individual who is admitted for the primary purpose of treatment of mental illness, developmental disability, alcoholism or drug abuse….  

(7)(a) Any patient whose rights are protected under this section who suffers damage as the result of the unlawful denial or violation of any of these rights may bring an action against the person, including the state or any political subdivision thereof, which unlawfully denies or violates the right in question.  The individual may recover any damages as may be proved, together with exemplary damages of not less than $100 for each violation and such costs and reasonable actual attorney fees as may be incurred.  (Emphasis added).

            B.        Punitive damages are available.