Case Management of Plaintiff’s Nursing Home Malpractice Cases Introduction to Nursing Home Malpractice Passing years and declining health tend to increase the susceptibility of seniors to abuse and neglect, particularly for those who reside in long-term carecoh facilities. Having lost the capacity to live independently, seniors may find themselves the victims of the negligent or reckless actions of their caregivers. The shortage of qualified and adequately trained staff, the stressful working conditions, the isolation of residents, and a natural reluctance to report abuse leave many nursing home residents suffering in silence. Until recently, nursing home negligence attorneys have failed to recognize the monetary value of injuries suffered by seniors, especially those who live in long-term care facilities. For them, the antiquated methods of evaluating personal injury or wrongful death claims were completely inadequate. Those methods discriminated against plaintiffs who did not suffer lost earnings, who enjoyed limited life expectancies, and who could no longer provide counsel and advice to their children. Because of those self-imposed limitations, claims arising out of the injury or death of a nursing home resident were assumed to have little or no financial value. Jury verdicts over the past few years have proven those old assumptions wrong. The inadequacy of the system was particularly troubling in light of estimates that project the number of seniors to comprise 20% of the U.S. population within 20 years. As the population ages, the demands on the long-term care system will continue to intensify, with the number of nursing home residents expected to quadruple by the middle of this century. Most nursing homes are operated as profit making ventures, with a clear trend toward consolidation under the ownership of large national chains. As the demand for greater profits increases, the pressure on nursing home staff keeps building. A 1986 report by the Institute of Medicine detailed widespread abuses in nursing homes. It concluded that residents were receiving inadequate and deficient care, were likely to have their rights ignored or violated, and were at risk of being physically abused. 1987 Legislation Although Congress passed legislation in 1987 (42 U.S.C. 1396r) establishing new standards for nursing homes, health and safety violations have continued. A 1999 report by the U.S. General Accounting Office found serious deficiencies in one-quarter of all nursing homes. The report found pressure sores, broken bones, severe weight loss, and death, with complaints against nursing homes not being investigated for weeks or months. A report by the Special Investigations Division for Congressman Henry A. Waxman found that nearly one-third of all nursing homes were cited for abuse in calendar years 1999 and 2000. A 2002 U.S. Department of Health and Human Services study found “strong and compelling” evidence that nine out of 10 U.S. nursing homes are understaffed. The 1987 legislation did, nonetheless, establish standards for the operation of long-term care facilities. Together with administrative regulations promulgated by the U.S. Department of Health and Human Services, it established a comprehensive set of standards for the operation of nursing homes. The legislation sought to ensure that residents of nursing homes receive care in a manner and environment that will promote the quality of their lives. It required facilities to use their resources effectively and efficiently to attain the highest practicable physical, mental, and psycho-social well-being of each resident. Standards of Care To that end, the statute and regulations establish standards of care in many areas. The standards relating to resident care and treatment address such areas as: Resident’s right to a dignified existence Physical or chemical restraints Verbal, sexual, physical, and mental abuse Corporal punishment Involuntary seclusion Anti-psychotic and other drugs Medication error Pressure sores Catheters Naso-gastric or gastrostomy feeding Disease and infection control Resident performance of activities of daily living (ADL) Range of motion Mental or psycho-social behavior Social interaction Depressive behaviors Nutritional status Fluid intake Injections Parenteral and enteral fluids Colostomy, ureterostomy and ileostomy care Tracheostomy care Tracheal suctioning Respiratory care Foot care Prostheses Environmental safety, cleanliness, and comfort Disaster and emergency preparedness Emergency safety intervention Some of the standards relate specifically to staffing issues at facilities, such as: Sufficiency of nursing staff Staff history of abusing, neglecting, or mistreating residents Use and training of nurse aides Use and training of feeding assistants Statewide registry of nurse aides Medical Director and Director of Nursing requirements Licensing of nursing home administrators Some of the standards relate specifically to areas of clinical records and care management, such as: Written plan of care for each resident Maintenance of clinical records Contents of clinical records Quality assessment and assurance requirements The standards establish a resident assessment protocol (RAP) to assess each resident in the following areas: Delirium Cognitive loss Visual function Communication ADL functional/rehabilitation potential Urinary incontinence and indwelling catheter Psycho-social well-being Mood state Behavioral symptoms Activities Falls Nutritional status Feeding tubes Dehydration/fluid maintenance Dental care Pressure ulcers Psychotropic drug use Physical restraints The standards also mandate initial and periodic assessments of a resident’s functional capacity, using a resident assessment instrument(RAI) to be specified by each State. The RAI must include a minimum data set (MDS), which addresses the following areas: Identification and demographic information Residential history Education Purpose of the assessment Guardianship status Advance directives information Mental health history Customary routine Cognitive patterns Communication Vision pattern Mood and behavior patterns Psycho-social well-being Physical functioning and structural problems Continence Disease diagnoses and health conditions Dental and nutritional status Skin condition Activity pursuit Medications Special treatments and procedures Discharge potential A summary of the RAP Common Law Tort Actions – Standard of Care Neither the Federal legislation, nor the Federal administrative regulations contain any provision establishing a private right of action against a nursing home for injuries sustained as a result of the facility’s failure to meet the standards established. Nonetheless, a violation of those standards may be used to form the basis of a common law negligence action. While the requirements of common law tort actions may differ from state to state, Section 286 of the Restatement (Second) of Torts endorses the right to prosecute a private tort action based on the failure to meet the standard of conduct mandated by statute or administrative regulation. It states: The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. Section 288B of the Restatement goes a step further by providing: The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself. The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct. Although it is still in draft form, the Third Restatement of Torts, Section 14, strengthens the right to bring a private action by providing: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. In a nursing home negligence case, the third Restatement would clearly deem a violation of the standards of care established by the Federal statute and regulations to be negligence per se. Nursing home residents are not limited to relying on common law in States whose legislatures have created a specific private cause of action. Not only do such statutes simplify the burden of proof, but laws like New Jersey’s statute (N.J.S. 30:13-1 et seq) establish a right to actual and punitive damages, treble damages, and entitle a prevailing plaintiff to recover attorneys’ fees and costs. Whether pursuing a statutory cause of action or one based on a common law violation of Federal or State regulations, nursing home residents and their families are beginning to see juries demonstrate a willingness to return substantial verdicts in their favor. Assisted Living Facilities The statutory causes of action against nursing homes may not apply to assisted living facilities in every state. The New Jersey statute establishing a cause of action for nursing home negligence defines permissible defendants to include assisted living facilities: …any institution, whether operated for profit or not, which maintains and operates facilities for extended medical and nursing treatment or care for two or more non related individuals who are suffering from acute or chronic illness or injury, or are crippled, convalescent or infirm and are in need of such treatment or care on a continuing basis. Infirm is construed to mean that an individual is in need of assistance, bathing, dressing or some type of supervision. Pre-Suit Investigation Prosecuting nursing home malpractice claims requires a substantial commitment of time and resources to ensure the proper development and presentation of the resident’s claim. The out-of-pocket costs in these cases typically cost tens of thousands of dollars and require hundreds of hours to review charts, interview witnesses, conduct discovery, and try the case. The undertaking cannot be completed without sufficient support staff to assist with the document intensive work required. Most law firms engaged in this area of law, representing plaintiffs and defendants, have hired in-house nurse consultants to organize and review the voluminous documents. An alternative is for the practitioner to retain an independent consultant for the sole purpose of assisting with document management. Identify the Client As in other areas of Elder Law practice, identifying one’s client is often a difficult undertaking. Family members may approach an attorney concerning an injury sustained by an incompetent or deceased nursing home resident before the appropriate legal representative has been appointed. With a durable power of attorney or last will and testament, identifying the proper party should be simple. Otherwise, family members could disagree on a guardian for an incompetent resident or a personal representative for a resident who dies intestate. In wrongful death actions, there may also be disputes among family members as to the division of any recovery. To maintain the attorney-client privilege, family members who will not be parties to the claim should be excluded from conversations intended to remain confidential. Defense attorneys will often depose non-party family members about discussions between the plaintiff and counsel. In a wrongful death case, it may help for all of the estate’s heirs to become named plaintiffs to avoid this problem. Identifying the individuals with standing to bring an action must be completed immediately, since medical records cannot be obtained without an authorized legal representative. Unless a durable power of attorney exists, a guardian must be appointed for an incompetent resident. For a deceased resident, only the estate’s duly qualified personal representative can request the medical records. Get the Full Story The next step in the pre-suit investigation is to conduct a detailed interview of the resident (if appropriate) and the resident’s family. At this early stage, there is so much information being offered that it may be impossible to separate the important details from the irrelevant ones. All details, therefore, should be assumed to be significant. The health and memory of older clients demand that all information presented be recorded as soon as possible. The resident and his or her family are often the best sources of information regarding the medical history and injuries suffered. The family should be encouraged to detail all medical information, even if they believe it to be unrelated. Nursing homes do not always notify family members when injuries occur and family members may be unaware of less obvious incidents. Even when family members are notified of lesser injuries, their severity may have been understated by the nursing home staff. Many of the injuries sustained by nursing home residents are only discovered by comparing the statements of the resident and his or her family against the medical records. These initial discussions, therefore, will often create a road map to follow in reviewing the medical records and in interviewing potential witnesses. Obtain, Organize and Review the Nursing Home Chart Counsel’s initial letter of representation should include a request for a color copy of the resident’s entire chart. Federal law mandates that the chart be made available within 24 hours of a request and copies of the chart must be provided within two working days. Those deadlines are rarely met. Understandably, nursing homes will be reluctant to provide a color copy of the chart prior to suit, often because it requires the facility to release the original records to an outside copying agency. The additional cost incurred is well worth having a full color copy of the resident’s chart. It can disclose details that a black and white copy cannot. A court order may be necessary to obtain a copy of a resident’s chart from an uncooperative facility. Even then, copies of the chart are often supplied piecemeal, sometimes with sections missing. It is essential for counsel to be familiar with the data that should be contained within the chart. Unless it has already been done, the nursing home chart will be impossible to review without first being organized. The chart should be separated by categories, with each category organized chronologically. Some law firms utilize paralegals or nurses to organize the chart, while others use third party agencies instead. In addition, each page of the chart should be scanned and date stamped to allow for digital access. Scanning will make it much easier to present portions of the chart at trial or to incorporate them into a videotaped deposition. Virtually all practitioners insist on reviewing the entire chart themselves in an attempt to identify every bit of crucial information. Medical records in nursing home cases are so voluminous that the only way to ensure thoroughness is to have them reviewed by several different people. Too often, the records will contain information that is easy to miss, such as entries on nonexistent days (February 30), entries by an employee who was on vacation at the time, and entries dated after the death or discharge of a resident. Obtain the Resident’s Entire Medical History Counsel should work with the resident and his or her family to establish a time line of all treatment received by the resident, beginning before admission to the facility. The resident may have a history of multiple hospitalizations, all of which must be investigated. The pre-suit investigation should also identify all of the physicians and other health care providers who treated the resident. The objective is to establish the resident’s health before admission, the health care received after admission, and the resident’s health upon discharge or removal from the facility. Family physicians are uniquely positioned to describe the pre-admission medical condition of a patient. While they sometimes continue to follow the progress of their patients even after admission to a nursing home, many family physicians will lose contact with their patients. Family physicians are often willing to get involved when they learn of the mistreatment or neglect of their patient while in a nursing home. If another physician treats the resident’s injuries after discharge or removal from the facility, that physician’s willingness to testify on behalf of the resident must be determined. Interview Witnesses Former employees are often the greatest source of information about problems at a facility. Counsel is cautioned, however, to carefully review the Rules of Professional Conduct before interviewing any nursing home employee. New Jersey’s Rule of Professional Conduct 4.2 prohibits counsel from interviewing anyone within the “Litigation Control Group” without a court order. When counsel is uncertain whether a particular witness falls within that group, it may be wise to seek judicial clarification. Current and former employees who are not within the Litigation Control Group may be interviewed without court approval. Obtain Public Records and Available Research Material Relating to the Facility The State Department of Health file, the nursing home’s licensing file and its complaint file are all freely available public records. Federal law requires the States to maintain a system of reporting any adverse action taken against a nursing home. These public documents can provide critical information concerning the facility, including inspection results and any history of complaints. Finding inspection results or complaints that raise concerns similar to ones that caused the resident’s injury are vital, especially if they existed prior to the resident’s injury. Not only would such documents help prove negligence, but they would also establish prior notice to the facility of similar problems. These files can also point to relevant systemic problems at a facility, but there is some debate regarding the admissibility of inspection reports in private actions. The internet is an excellent tool for researching a facility, with many maintaining their own websites. It is also useful to obtain any marketing information that was supplied to the resident prior to admission. These materials, which often establish explicit promises that were made to the resident, may be used in support of the litigation. Because facilities change the information on their websites and in their marketing material, the resident’s family is the best source of information regarding written promises that were made before admission. Facilities often do not retain old marketing material that was disseminated to prospective residents. Local nursing home advocates are also an excellent sources of information. They tend to have extensive knowledge of individual nursing home practices, policies and procedures, along with contacts within the local communities who may have additional information. Statute of Limitations As in every tort action, the applicable statute of limitations must be determined before proceeding. Unlike a typical medical malpractice claim, nursing home cases usually involve multiple acts of negligence at different times. Counsel must determine which of the acts are actionable as deviations from the proper standard of care. Compounding the difficulty, the negligent acts may have occurred months before the resulting injuries. There are often separate claims for different injuries resulting from acts of negligence committed over an extended period of time. To further complicate matters, a nursing home resident may suffer from cognitive impairment that is insufficient to toll the statute of limitations. Because of the progressive nature of cognitive degeneration, a geriatric psychologist or psychiatrist might be needed to establish the resident’s competence at various points in time. Counsel must determine whether a facility is publicly owned since many do not have names which reveal themselves as public entities. If a public entity is a potential defendant, the best practice is to comply with the requirements of a State’s tort claims act, although there is some authority for the proposition that a State’s nursing home liability statute supercedes its tort claims act. Any responsive pleadings filed must be meticulously reviewed to determine whether any reference is made to previously unknown defendants. The discovery process will often reveal previously unknown hospitalizations or other medical care. If an additional party or theory is discovered after suit has been filed, one could argue that the statute of limitations should not commence until such discovery. Nonetheless, counsel should remain alert throughout the discovery process for such revelations. Evaluation of Liability Before filing suit, counsel must assess the potential liability and causation issues. Although the care rendered may appear to have been substandard, many nursing home residents suffer from multiple health conditions. Counsel must determine, therefore, whether the resulting injury would have occurred even if the facility met the appropriate standard of care. It is always necessary to obtain the opinion of one or more experts about the merits of the claim. Most commonly, a nursing expert is utilized since most claims tend to center on the actions of the nursing staff. The nursing expert must be familiar with geriatric and nursing home standards of care. There are experts who are qualified in the field of nursing and nursing home administration. Such an expert may be uniquely positioned to provide insight into the proper standard of care and into the proper operation of the nursing home. More often, however, separate experts will be needed to address each of the areas. Nursing experts are not permitted to express opinions as to whether the negligence caused the resident’s injuries. That opinion can only be rendered by a physician, ideally with expertise in geriatrics. In-House Case Evaluation Separate from the issue of liability, counsel must evaluate the resident’s circumstances, the potential expense of litigation, and the likely size of any recovery. Nursing home negligence cases consume countless hours and require substantial financial outlay. Additionally, an evaluation of any potential Medicaid or Medicare liens is critical to determine whether a lawsuit will produce any net result for the client. Identify Defendants to be Named Even with extensive pre-trial investigation, nursing home cases tend to be unpredictable. The defendant listed initially may be joined by several other defendants after the pre-suit investigation is completed. For example, the injury may have occurred, or have been exacerbated, during an intervening hospital stay. A physician with an overwhelming patient load could have neglected to properly diagnose a resident’s condition during nursing home rounds. Physicians must be separately named as defendants since they are not typically employees of the facility. Affidavit of Merit Nearly every individual whose conduct is alleged to deviate from the appropriate standard of care will be a licensed professional for purposes of State Affidavit of Merit statutes. Although certified nurse aides and others may be outside that statute, the better practice is to obtain an Affidavit of Merit in all cases. Timely service of the Affidavit of Merit must be carefully tracked to ensure that an appropriate Affidavit of Merit is secured as to each named defendant prior to filing suit. Many attorneys serve the Affidavit of Merit with the complaint. Some even reference the Affidavit of Merit on the title page of the complaint. Case Management While many practitioners manage nursing home matters as they would medical malpractice claims, they are better managed as general professional malpractice cases instead. In nursing home cases, deviations from the proper standard of care by physicians are usually minimal in comparison to the allegations of negligence against nurse aides, nurses, dieticians and other non-physicians. This issue is particularly significant in states, like New Jersey, where an improper case track could adversely impact the plaintiff’s discovery rights. Medical malpractice interrogatories are often poorly suited for nursing home malpractice claims. An improper case track could also affect the case’s eligibility for mandatory mediation. Mediation offers significant benefits in nursing home liability cases because it permits counsel to reassess the merits of the case before devoting more time and resources to the case. Drafting the Complaint Drafting a complaint with hundreds of alleged acts of neglect, multiple injuries, and several theories of recovery can be a daunting task. Even in notice pleading States, a complaint that is overly general may be meaningless to defense counsel, thereby affording no benefit to the plaintiff. The better practice is to include a fair amount of detail to convey the substance of the claims and the severity of the injuries. It is counterproductive, however, to draft a complaint with an overwhelming amount of detail. There are several potential theories of recovery in most nursing home liability cases. Besides the common law negligence claim, counsel may plead violations of the State nursing home liability statute (if one exists), the State nursing home regulations (which are required by Federal law), and the Federal nursing home standards of care. Claims can also be pled for breach of contract, consumer fraud, and negligence per se. Discovery Issues Form interrogatories are generally insufficient to obtain sufficient information in preparation for depositions. Custom interrogatories should be drafted for each case, eventually developing interrogatories which can be used repeatedly in nursing home malpractice cases. It is unlikely that a defendant’s first set of answers to interrogatories will provide all of the information requested. To maintain momentum, counsel should follow up with letters requesting more complete answers and, if necessary, seek a court order to strike the defendant’s answer or to compel more complete answers. That may be an appropriate occasion to ensure that all portions of the resident’s chart have been received. It is also an excellent time to identify those portions of the chart that are missing or that were never completed. As with Interrogatories, a very detailed demand for document production is essential. Although the titles of some documents can vary from facility to facility, the following is a partial list of some of the records which must be obtained: Intake and output records Skin assessment sheets Decubitus ulcer reports Nursing notes Minimum data set (MDS) Physician orders Dietary assessment Progress notes Medical Administration Record (MAR) Resident Assessment Protocol (RAP) Incident reports Comprehensive care plans A site inspection to view the original chart always produces results. There is no better way to determine whether there have been alterations in the chart or falsified records. There is no substitute for seeing the original ink. Observing the colors used or an unusually consistent color or handwriting pattern can prove to be enlightening. When irregularities are suspected, experts should be retained to evaluate the handwriting and date the ink. Depositions Once written discovery has been exchanged, the experts should be consulted to identify the witnesses who should be deposed. At a minimum, depositions of the administrator and director of nursing will usually be needed. The deposition of other witnesses will depend on how much relevant knowledge they have. It is generally preferable to videotape discovery depositions of key witnesses, especially when the witness may be confronted with potentially embarrassing records or other evidence. While nurses will usually have the best knowledge of the care rendered, deciding whether to depose a particular nurse is a matter of strategy. It is usually important to schedule depositions quickly because of the high rate of turnover among nursing home staff. On the other hand, a staff member may be a better witness after leaving the employ of the defendant facility. Often, the nursing home staff whose depositions are sought will be employed elsewhere and be difficult to locate. Lien and Eligibility Issues The recovery of monetary damages by a nursing home resident becomes much more complicated if the resident is receiving (or intends to apply for) public benefits. The precise effect of a recovery on a nursing home resident’s Medicaid eligibility is beyond the scope of this paper. There are, however, three potential sources of liens that need to be addressed. The first lien, which appears in most cases, is for all medical expenses paid by Medicare to treat the injuries claimed in the lawsuit. Medicare is usually willing to deduct procurement costs (attorneys’ fees plus trial costs) from the lien. The second lien is similar to the first, but represents Medicaid payments for medical expenses incurred in the treatment of the injuries which form the basis of the lawsuit. Both the Medicaid and Medicare liens should be reviewed carefully to ensure that only payments related to treatment for the injuries asserted in the lawsuit are being claimed in the respective liens. The third type of lien, and the one with the greatest potential impact, is the Medicaid Estate Lien. Because it is not limited to expenditures for treatment of the injury claimed in the lawsuit, the lien tends to be extremely large and could deplete the entire recovery. This lien must be addressed before instituting suit. Conclusion As family members become more involved in the health care decisions of their parents and other senior family members, they are inundated with press reports describing the abuse and neglect of seniors in long-term care facilities nationwide. As a result, families will not allow their loved ones to enter a facilities blindly. They have become much more proactive in protecting their loved one, scrutinizing the activities of the long-term care staff as never before. The dramatic rise in the number of lawsuits filed against long-term care facilities should, therefore, come as no surprise. Those lawsuits remind us that even a nursing home resident’s life has tangible value and serve as powerful incentives for long-term care facilities to ensure the safety and well-being of their residents.