Nursing Home Litigation

I. The Increasing Nursing Home Population

Approximately 1.5 million Americans live in 16,700 nursing facilities.

About 5% of persons 65 and older are in a nursing facility at any one time.

An estimated 43% of 65 year olds will use nursing facilities at some point in their remaining years.

90% of the nursing facility population is over the age of 65.

More than 35% of the nursing facility population is over 85.

75% of nursing facility residents are women.

II. The Nursing Home Client

Nursing facility residents are among the most helpless members of our society.

Typically have chronic disability beyond others of similar age.

Often lack a family member to care for them or provide help when needed.

Are usually female.

Beyond physical disabilities, are more likely to have deteriorating cognitive functioning.

Often have multiple diagnosis of serious illness, disability or impairment.

III. Nursing Home Reform – A Brief History

Congressional reports and media accounts over the last 30 years have documented repeated substandard care in nursing facilities.

Groups such as the Long Term Care Ombudsman Program (Federally Mandated per 42 U.S.C. § 3027(a)(12) and National Citizens Coalition for Nursing Home Reform have driven new standards.

In 1983, the U.S. Department of Health and Human Services commissioned the Institute of Medicine to study nursing home care and to recommend improvements.

In 1986, the Institute of Medicine published its study which found nursing care facilities to be “grossly inadequate” and “appallingly bad”. Market abuse of residents was observed.

In 1987, Congress passed specific standards for nursing facilities that participate in Medicare and Medicaid programs. (Omnibus Budget Reconciliation Act of 1987, 42 U.S.C. § 1396.)

Federal and State regulatory agencies are jointly responsible for monitoring residents care and ensuring that substandard care is upgraded.

Generally, states have contracts with Federal governments to survey nursing homes to determine whether they meet minimal governmental quality standards.

Each state participating in Medicare/Medicaid is required to pass laws conforming to those established by the Federal government.

IV. The Need for More Reform ( and Lawsuits)

Enforcement of minimum standards for nursing facility care continues to fall short.

Generally, the enforcement of minimum standards system is under staffed.

Even if the enforcement of Federal and State regulations were effective, the system is generally not designed or intended to monitor and ensure compliance in individual cases.

In 1995, Consumer Reports reported that approximately 40% of all facilities certified by the Healthcare Financing Administration had repeatedly violated Federal standards of the previous four years.

Billions of tax dollars are spent annually on damage resulting from poor care, such as treating Decubitus Ulcers (bed sores), hydrating residents who should not have become dehydrated, treating broken bones sustained by patients walking unassisted or otherwise abused, etc.

V. Standards Applicable to Nursing Facilities

Federal Nursing Home Reform Amendments to OBRA 1987/ “Nursing Home Reform Act” (42 U.S.C. § 1396)

Federal Implementing Regulations – – Requirements for Long Term Care Facilities (42 C.F.R. § 483.1-75)

Federal Implementing Regulations – – Survey and Certification of Long Term Care Facilities (42 C.F.R. § 488.300-335)

“Accepted professional standards and principles that apply to professionals providing services in such a facility” (42 C.F.R. § 483.75)

Georgia law O.C.G.A. 31-8-100 et seq.

Rights to notification of rights.

Rights to certain information (ie. Daily rates, monthly rates, facilities basic services, right to inspect copy of non-medical records kept by facility, etc.)

Rights to non-discriminatory admission.

Rights to care, treatment, and services (“With reasonable care and skill”; in compliance with applicable laws and regulations; without discrimination in the quality of service based on the source of payment; with respect for the resident’s dignity and privacy; etc.)

Rights to freedom from restraints, isolation or restriction.

Rights relative to pharmaceuticals.

Rights of citizenship.

Rights of personal choice.

Rights to personal property.

Rights to physical management.

Rights relating to transfer or discharge.

Use of State or community Ombudsman.

Actions for damages.

VI. General Theories of Liability and Specific Standards

Negligent failure to provide an adequate number of nursing personnel (nurses and nursing assistants).

Failure to ensure that competent nursing personnel are hired and monitored throughout their employment.

Negligence in failing to adequately plan individualized care for residents.

Negligence in failing to continuously assess each resident and notify the attending physician when necessary.

Negligence in failing to keep an adequate and effective record-keeping system to accurately document clinical conditions and progress of residents.

Negligence in failing to establish an adequate quality assurance program that identifies and corrects deficiencies in systematic and individualized care.

Negligence in failing to “Care for its residents in a manner and in an environment that maintains or enhances each residents dignity and respect in full recognition of his or her individuality.’ 42 C.F.R. § 483.15

Negligence in failing to provide “each resident …necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with comprehensive assessment and plan of care.” 42 C.F.R. § 483.25.

Negligence in failing to administrate the facility, “In a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 42 C.F.R. § 483.75.

Negligence in failing to notify the resident and resident representative of changes such as:

An accident resulting in injury that has potential for requiring physician intervention;

Significant change in resident’s physical, mental or psychosocial status;

A decision to transfer or discharge the resident from the facility.

Negligence in failing to establish a comprehensive assessment/plan of care. This is the foundation upon which the resident care is built. It provides a benchmark against which the care actually received by the resident may be evaluated. See, 42 C.F.R. § 483.20 which details the requirements of the comprehensive assessment.

Comprehensive assessment must be done no later than 14 days after admission and at least once every twelve months. 42 C.F.R. § 483.20 (b)(4). The care plan must be developed within seven days after completion of the assessment and must be periodically reviewed and revised after each assessment. 42 C.F.R. § 483.20 (d).

Services provided under the care plan must meet “professional standards of quality” and must be provided “by qualified persons in accordance with each resident’s plan of care.” 42 C.F.R. § 483.20 (d)(3).

Adequate staffing is required by Federal law. 42 C.F.R. § 483.30.

Must provide a sufficient number of “licensed to nurses” and “other nursing personnel.” 42 C.F.R. § 483.30 (a).

VII. Understaffing, The Common Cause of Neglect

Insufficient staffing, or lack of qualified staff, often can be connected to all kinds of abuse, mistreatment, neglect or other forms of substandard care in nursing facilities. Federal law requires adequate staffing. 42 C.F.R. § 483.30.

Required staff include, but are not limited to the following:

a. Medical Director; b. Director of Nursing: the facility must designate a Registered Nurse to serve as Director of Nursing on a full-time basis; c. Licensed Nurses: at least one registered nurse must be used “for at least eight consecutive hours a day, seven days a week.”. 42 C.F.R. § 483.30(b)(1); and the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. Id.

“Nurse Aides” are not licensed. Responsible for hands on care and the administration of daily living needs such as bathing, grooming, feeding, bowl and bladder function.

Facility has general duty to “ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents needs…” 42 C.F.R. § 483.75 (f). Generally, before allowing a nurse aid to serve, facility must receive verification from the State Nurse Aide Registry that she/he has met competency evaluation requirements. 42 C.F.R. § 483.75 (e)(5).

Facility “must complete performance review for every nurse aide at least every 12 months, etc…” 42 C.F.R. § 483.75 (e)(8).

VIII. Suspected Abuse or Neglect/Duty to Report and Investigate

Facility must report all alleged violations involving mistreatment, neglect or abuse. Reports are made to State agencies. 42 C.F.R. § 483.13 (c)(2).

Facility must have evidence that all alleged violations are thoroughly investigated… 42 C.F.R. § 483.13 (c)(3).

Results of the investigations must be reported within 5 working days of the incident.

IX. Injuries Commonly Caused By Nursing Home Neglect

Decubitus Ulcers – Stage III or IV

Infected decubitus ulcers

Severe dehydration

Severe protein-calorie malnutrition

Septic shock

Gangrene

Aspiration pneumonia

Strangulation

Drowning

Scalding

Falls and fractures resulting from failure of staff to follow accepted protocols and implement necessary preventive measures.

Rape and/or sexual assault

Physical abuse and/or assault

X. Caveats, Defenses, and Concerns

Witnesses: because other residents are potential witnesses, the likelihood of memory failure and ability to be percipient is an obvious concern.

Client can be a difficult witness on her own behalf as well due to the same concerns, which include mental impairment.

Facility employees “code of silence.”

Causation: can be difficult to distinguish between injuries caused by neglect from prior disease processes.

Eggshell Plaintiff Theory applies. Aggravation of pre-existing injury, both physical and mental.

Expert testimony is required.