Focus on Nursing Homes |
||
Plaintiffs
Perspective: |
||
by Susan N. Childers |
||
|
In many respects, nursing home litigation is easy. It is easy to feel compassion for the
growing numbers of neglected elderly in our society. It is easy to be appalled hearing the
heart-wrenching stories of the family members and loved ones of those who have been abused
by a system that is failing those it purports to protect. It is easy, and in fact almost
impossible, not to become emotionally involved in the anguish of those harmed and their
loved ones. It is because of the almost certain feelings of compassion that each of those
stories evokes that the pre-suit stage of nursing home litigation is possibly the most
important, and most difficult, phase in the process. While the concerns and complaints of the family members of a loved one who has suffered injury or even death while residing in a long-term care facility are certainly real and valid, they do not always indicate neglect that forms the basis for a successful lawsuit against the facility. The nursing home industry will contend that almost all of the injuries suffered by a nursing home resident are attributable to pre-existing medical conditions and the natural aging process. It is the plaintiff's attorney's responsibility to identify injuries and incidents that are the result of chronic institutional neglect. Nursing homes that admit residents with a known medical condition, such as Alzheimer's disease or diabetes, have a duty to undertake efforts to treat or minimize those medical outcomes. By mere virtue of admission, nursing home residents do not "assume the risk" of being neglected or abused. Because most lawyers are sorely lacking in the area of geriatric medicine, using medical experts to review the nursing home chart and other medical records is crucial to determining whether the facility has committed any acts or omissions that will warrant the filing of a lawsuit. Some potential clients have resided in the facility for many years, often with numerous intermittent hospital visits. Obtaining all of the relevant and often voluminous records can be expensive and time consuming. It is rare that an initial interview with a family member will provide an adequate picture of what has really occurred from a medical standpoint. Therefore, the importance of an appropriate review cannot be overlooked. Another important part of the pre-suit process is to evaluate the facility itself. The Arkansas Office of Long Term Care regularly surveys nursing facilities using standard guidelines. This review results in a survey document that cites the |
facility for any substandard conduct, thus the Office of Long Term Care is an invaluable
resource to determining whether the facility or its management has exhibited a past
pattern of providing inadequate care. Obtaining this information is fairly simple because
these documents are a matter of public record and are required to be posted in the nursing
home itself. Unfortunately, most family members are unaware of these inspections and never even learn of their existence until after litigation has commenced. Not surprisingly, most nursing homes do not tout their survey performances to prospective family members seeking to place their loved ones in a nursing home. When a resident is unable to speak for him or herself, it is also important to consider the family members involved. Unfortunately, during contentious litigation against a nursing home the resident's loved ones will most likely find themselves under attack by defense counsel who seek to place blame on the family for failing to complain more often to facility management or for failing to move the resident to another facility. To an emotional family member who viewed the placement of the resident in a nursing home as a last resort or who was unaware of the extent of the neglect being suffered by their loved one until it was too late, this can be a shocking and difficult accusation to bear; nonetheless, this fact of nursing home litigation must be considered by both the family and the attorney before going forward with litigation. In most cases filed against nursing homes, the defendants are not the actual caregivers hired by the facility, but rather the corporations who have failed to provide necessary and available resources in order to prevent injuries to the residents of the nursing homes they own. Many times discovery will reveal a complicated web of corporate entities that comprise management companies, parent companies, the licensee of the facility, the real property owner and other related entities. Determining which of these corporations actually made decisions that resulted in your resident's injuries can be difficult. In addition, defense counsel will most likely refuse to provide discovery from these corporations absent an order compelling them to do so by the court. It may be only after taking the depositions of various corporate representatives and facility administrators that sufficient proof of the various corporations' |
relationships exists to warrant a
motion to compel. However, it is crucial at an early stage of the litigation to educate
both the court and defense counsel regarding the claims against the corporation.
Attorneys for defendants will attempt to shift blame from the corporation by claiming that
the case is really against the caregivers of the facility. It is important to remember
though that it is the corporate decision makers who set the budget and force nursing homes
to operate with inadequate staff and supplies. The determination of what parties are actually responsible for the damages is also important in deciding what causes of action to allege in your complaint. Arkansas courts have held that acts and omissions occurring in a nursing home are not automatically medical malpractice. Therefore, certain portions of your client's claims may fall under the definition of ordinary negligence while others may fall under the Medical Malpractice Act. For example, the failure to adequately staff a facility would logically be a claim for ordinary negligence rather than medical malpractice. Other potential causes of action include outrage, wrongful death, breach of contract (based on the Admission Agreement signed by the resident upon entry into the facility) and a claim for punitive damages. In 1999, the Arkansas Legislature passed the Resident's Rights Act codified at Ark. Code Ann. § 20-10-201, et seq. The purpose of the Act is to provide basic standards and enforcement for health, care and treatment of persons in long term care facilities and applies to causes of action accruing after July 31, 1999. The sad reality is that these lawsuits are necessary in order to protect the lives of nursing home residents. The suits are one of the few ways residents and their families have to hold the nursing home industry accountable. The pre-suit phase of a nursing home case can be challenging and frustrating for the plaintiff's lawyer. However, a positive result for the plaintiff will certainly make the process worthwhile. See Bailey v. Rose Care; 307 Ark. 14, 817 S.W. 2d 412 (1991); Brown v. St. Paul; 292 Ark. 558, 732 S.W. 2d 130 (1987); Wyatt v. St. Paul; 315 Ark 547, 868 S.W.2d 505 (1994); Howard v. Ozark Guidance Center; 326 Ark. 224, 930 S.W.2d 341 (1996); McQuay v. Gunthorp; 334 Ark. 534, 986 S.W.2d 850 (1999). |
| Home | AR Findalawyer | Law
Links | Calendar | New and
Noteworthy Continuing Legal Education | Handbooks | Annual Meeting | Public Service Information | Mock Trial Disaster Legal Assistance | About the Association | AR Bar Foundation | Contact Us |
||