Focus on Nursing Homes |
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| Defense
Perspective Litigating Nursing Home Cases |
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| by Patricia Sievers Harris | ||
| Plaintiff attorneys have
traditionally rejected potential claims of nursing home malpractice because of the
mistaken belief that their clients' age combined with their pre-existing medical problems
would result in limited opportunity for damages sufficient to justify bringing a claim. In
addition, nursing home cases are for the most part no less expensive than the traditional
medical negligence claim. Experts, depositions and time are substantial in both types of
cases. However, in the past three years, nursing home malpractice suits have become the
new focus of many personal injury lawyers nationally and in Arkansas. In a recent edition of the Wall Street Journal, it was reported that the average award in nursing home negligence cases nearly doubled between 1987 and 1994 from $238,285.00 to $525,853.00. In addition, approximately twenty percent of all cases against nursing homes result in punitive damages, compared with five percent in other types of personal injury cases. Nursing homes have been the subject of a great deal of publicity, both nationally and in Arkansas. It is not uncommon to see television advertising, investigative shows, and other media productions focusing on the alleged abuse and neglect in nursing homes. Understandably, all this attention and focus has heightened the public's awareness of what many people have described as a systemic problem with nursing home care. As a result of these and other factors, attorneys who typically defend medical negligence cases have found that defense of nursing home negligence cases has become much more challenging. What makes a nursing home case different from a typical medical malpractice claim? Several experts suggest that it is the wide expanse of statutory law that has been enacted; others believe that theories of elder abuse, greedy corporate behavior, and fraud and abuse make nursing home cases different and potentially capable of high verdicts. Historically, a common law negligence cause of action against the long term care provider was the primary claim made by a plaintiff. In that regard, long term care liability was evaluated in the same light as medical negligence. Now, in addition to making a claim for medical negligence, plaintiff's counsel will allege violations of statutory laws, patterns of prolonged neglect and intentional acts as a basis for the injury or death of the resident. |
Because nursing homes
are dependent upon Medicare and Medicaid financially, the nursing home industry is
regulated by federal law and regulations. These regulations are typically referred to as
"OBRA" which are regulations set forth in the Omnibus Budget Reconciliation Act
of 1987. 42 C.F.R. § 483. Many plaintiff's lawyers contend in their civil case on behalf
of a resident that these OBRA regulations set out the minimum standards of care, which the
nursing home must provide in its nursing care of residents. In addition to the substantial
federal regulations, state laws have been passed which in many cases mirror the federal
regulations. The state statutes range from requirements for licensing, staffing and
resident's rights to specifics concerning the physical structure of the nursing home. All
of the regulations and statutes become relevant in defending a nursing home malpractice
case. It is very likely that when a lawsuit is filed against a nursing home, plaintiff's counsel has already conducted an extensive investigation. If you represent the facility, you should assume that plaintiff's counsel has already obtained and reviewed Office of Long Term Care surveys on the defendant facility, and will be familiar with deficiencies cited in those surveys. Plaintiff's counsel will already have obtained the medical records from this facility on the patient. Plaintiff's counsel probably will have already employed an investigator to identify and contact any former employees that can be located. In fact, by the time defense counsel is hired to begin an investigation, plaintiff's counsel may already have in hand videotaped statements from former disgruntled employees who will testify that the defendant facility is short staffed, that they were overworked, that they did not have appropriate supplies, and that there was not enough staffing to turn patients every two hours and to keep them clean and dry. The goal of plaintiff's counsel would be to offer the testimony of these former employees, some of whom may have never provided care or treatment to the patient in issue, to establish a "course of conduct" within the facility that ultimately resulted in damage to the patient. Plaintiff's goal will be to try the facility by putting on evidence of poor survey results, including those not related in any regard to the patient in issue, and juxtapose both survey findings and the former employee testimony with a theory of corporate profits over people. |
It is impossible in this
short space to identify each and every factor that a defense lawyer should consider in representing nursing home facilities in these matters. However, several such factors can be briefly highlighted. First, defense counsel should identify, locate, and interview current and former personnel from the facility who provided hands on treatment to the resident. Jurors would much rather hear from the actual care givers with regard to the type of treatment the resident received, as opposed to an expert who has simply reviewed the records and formulated opinions. Second, defense counsel should consider if Office of Long Term Care survey findings can be used in the defense of the facility. The defense lawyer should always request underlying documentation supporting each and every Office of Long Term Care survey in which the care of the resident in issue may have been evaluated. Those underlying documents may contain interviews with the resident in issue and a review of the resident's records that may have very helpful information indicating that the resident is happy, and indicating that the investigator found appropriate care and treatment of the resident in various areas of inquiry. Third, particular care should be given to the "medicine" in the case. Defense counsel should identify particular medical specialties that might be of assistance in understanding the underlying medical conditions which contribute to and/or cause many of the resident's ongoing difficulties, including vascular specialists, endocrinologists, geriatric specialists, orthopedic surgeons, and plastic surgeons. Such specialists, when appropriate, can explain to a jury, for example, why the resident's underlying diabetes and peripheral vascular disease caused stasis ulcers to develop on the resident's extremities, through no negligence on the part of the nursing home. CONCLUSION |
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