Nursing Home Malpractice
Brien Roche
Identifying The Injuries
Claims against nursing homes may be for falls, bed sores, lack of hydration or other forms of neglect. Patients have a right to treatment with respect.
Bed sores, also called pressure sores, are a common problem in nursing homes. U.S. rules set standards as to how to prevent them and how to treat them.
Nursing home falls are all too common. The Omnibus Budget Reconciliation Act of 1987 (OBRA) sets the standard of care for nursing homes. A quick way to learn about this statute and its rules is through the Health Care Financing Administration’s state operation manual.
An issue in nursing home cases is general staffing. The fewer the number of staff on duty the greater the profit. Therefore the staffing to patient ratio needs to be closely looked at.
Nursing Home Malpractice Warning Signs
If you suspect the quality of care at a nursing home is subpar search Medicare’s site. This site has info about all homes that are Medicare or Medicaid certified.
Any home which accepts Medicaid funds must also abide by the rules. These rules set forth standards for care. Many of these rules are published by the Health Care Financing Administration(HCFA). However they are overseen by the states.
There is an annual review of Medicaid certified homes.
Nursing Home Malpractice-Pressure Sores
Pressure sores can be deadly for the patient. Their presence may be a form of nursing home abuse.
They arise in tissue that is near some bony structure. That is the spine, the hip or the knee. These bony points and the bed or seat apply pressure to the tissue in between. Most of these sores are in the lower part of the body. That is the lower back and the hips.
Staging
Pressure sores are staged. Stage I is a red mark which heals quickly. Stage II is blisters like a rash. The third stage is a wound that has gone deeper to destroy tissue below the first level of the skin. Finally Stage IV is a wound all the way down to the bone.
Standard of Care Issues
U.S. rules deal with pressure sores but state that they are only for licensing and rate reimbursement purposes. They are not to a basis for a lawsuit. However under Virginia law they may be a basis for setting a standard of care. The question to any nursing home is whether good nursing home practice requires compliance with these rules. Of course the answer is yes.
What these rules say is that a patient who enters a nursing home without pressure sores should not develop such. There may be cases where they cannot be avoided. Patients with pressure sores must receive needed treatment to promote the healing and to prevent new sores. Some basic measures are the use of special mattresses, setting turning schedules of at least every two hours and use of medications when needed. If the care plan is lacking that may be the root cause of the subpar treatment. Call, or contact us for a free consult.
Required Reporting
A nursing home must file a minimum data set (MDS) with Medicare and Medicaid for payment. This sets forth the status of the patient.
Also there is a 24-hour report. This describes the hand off of a patient from one shift to another. Many nursing homes do not keep this info for long. Also the activities of daily living (ADL) flow sheet has a wealth of info. In addition some nursing homes say this info does not have to be retained. These documents are the sources of proof of the subpar care.
The bottom line is that pressure sores should not exist.
A common defense is that these bed sores are terminal ulcers. They will argue they cannot be avoided. However under F-tag 314 a bed sore should not be described as unavoidable unless all reasonable efforts have been made to prevent and heal it.
Nursing Home Malpractice-Standards
The so-called watermelon book (a reference to its color) is formally known as the Long Term Care Survey. It is published by the American Health Care Association. It contains the U.S. rules from the Centers for Medicare and Medicaid Services (CMS) that guide nursing home staff. The rules within this book are called F-tags. Also they are published in the Federal Register. Furthermore these F-tags set forth basic standards as to nursing home care.
In the course of a nursing home case, you need to take the deposition of the nursing home’s medical director. Her job is defined in F-tag 501. The medical director will be your best witness. Furthermore she will confirm that the F-tags set the standard of care for nursing homes. These rules are at 42 C.F.R. §483.
The Legal theories
The legal theories of fault against a nursing home range from negligence to breach of contract to res ipsa loquitur. Negligence in many cases begins with the home’s lack of staff. This impacts the first assessment of the patient. They must have a plan to prevent falls, pressure sores and dehydration. There must be safety devices such as bed alarms in place. These alarms tell the staff when a person gets out bed. In addition there must be a good toileting program in place.
Breach of contract occurs with the lack of safe and reasonable care as seen above.
Res ipsa loquitur arises where the home has exclusive care and control of the patient. This gives the plaintiff the benefit of fault being presumed.
In addition, you must look at any applicable adult protection statutes to support the claim.
Pursuing Your Claim
Some basic things that the lawyer must obtain or retain are:
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- Copy of the state’s annual survey of the nursing home along with the complaint survey. These are all available to the public.
- A complete copy of the chart. This must be provided within two days of the request. Request a colored copy of the chart. This shows any changes in the use of pens.
- The complete copy of the care plan of the patient.
- All documents as to assistive devices. These protect the patient from harm.
- Retain the services of a nursing home expert to advise whether the care plan was enough to protect this patient. Also did the home comply with it. In most nursing home cases the first expert you need is a long term care nurse. The nurse will need all of the records. They should be prepared as follows:
Treatment Records
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- Hospital records that preceded the nursing home stay.
- Admission sheets required under U.S. rules. They must have the plan of care prepared within fourteen (14) days of admission. These include statements as to problems such as risk of fall, nutrition status or bed sores.
- Progress notes reflect how the care has changed and any resulting harm to the patient.
- Doctor notes are required by U.S. rules. The doctor has to manage the medical care. There must be an admitting exam and admitting orders. There should be doctor’s orders during regular exams every 30 days for the first 90 days of admission.
- Records of therapy.
- Medication records.
- Lab and imaging studies.
ADL and MDS
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- Activities of Daily Living (ADL) Flow Sheets.
- Minimum data sets (MDS) containing medical condition, functional capacity, care needs and many other factors.
Investigation
- Investigation reports.
- Photos in the file as evidence of the patient’s condition.
If you or a loved one have a claim for a nursing home fall contact us.
Nursing Home Malpractice-Finding The Owner
The nursing home industry is very smart. So smart that many outfits set up a complex network where the nursing home operation is done by one legal entity. The building and grounds are owned by another. Finally the staff is employed by a third legal entity. That creates a difficult network that you may have to pierce if there is not enough insurance. In addition to decide who controls the nursing home you should
- Depose employees from the bottom up to find out who is really in control.
- Request the pay stubs of all employees you depose.
- Show the policy and procedure manual to all employees you depose to get them to confirm who prepared it and that the manual governs their conduct.
- Ask all employees if they are on a bonus system. If so how the bonus is set and who pays it.
- Get the email address of all the employees you depose as this may show who is in charge
Nursing Home Malpractice-Focus On The Nursing Home, Not On The Patient:
What this means is you must:
- Show the number of rule violations committed.
- Lay out the number of cases where the internal rules and admissions contract were breached.
- Show the lack of staff by obtaining employee lists, employee files, census and acuity records. Be ready to show the home was putting profits before patient care.
- Show the pay level of the nursing home staff and how it compares with the local fast food restaurants.
- Obtain incident and accident reports involving the patient pursuant to 42 CFR483.10(b)(2).
- Show the jury they have the power to make the defendant take blame for its conduct.
- Show the jury how the nursing home has hurt the patient and that the patient has a right to be paid for this hurt.
Nursing Homes Arbitration Demands
Nursing home arbitration clauses are a hot topic. Many nursing home contracts require the patient to arbitrate any disputes. These include abuse issues or otherwise. This deprives the patient of his right to a jury trial. Call, or contact us for a free consult.
Unconscionable
This waiver may be unconscionable. The patient may not be the one who is making the choice about admission. At admission the family and/or decision maker may be under the gun to make a prompt decision. The patient has to go somewhere. There may not have been a lot of planning in deciding where to go.
This waiver also means increased cost of having to pay one or more arbitrators to decide the case. In addition the patient has to pay for an attorney. Arbitration awards tend to be smaller than awards from a Judge or jury. In addition, these awards are private. There is no public record as to what has gone wrong at this nursing home. However a Court case is out in the open. If there is a settlement that may contain limits on what can be disclosed. However if there is no settlement then the court file is open to the public.
In looking at unconscionability there are several factors. Do the terms of the contract grossly favor one party over the other? Do they prevent one party from exercising basic rights? Is there a vast disparity in rights and power between the parties? Shortening of limitation periods is another factor. Also imposing travel on the patient is a factor. Likewise putting increased burdens on the plaintiff to prove her case must be factored in. If the nursing home agreement has a right to opt-out of the arbitration after signing this gives you a chance to “cool off”. This too is a factor.
One plus to arbitration as opposed to a lawsuit is that the former is quicker.
CMS Acts
On September 28, 2016 the Centers for Medicare and Medicaid Services (CMS) issued a final rule on these clauses. It bars nursing homes from using pre-dispute forced arbitration agreements in admission contracts dated after November 28, 2016. This rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid. This includes most nursing homes in the U.S.
Enforceability of Arbitration Requirements
Other factors to look at in deciding if such an agreement can be enforced:
- Does the contract call for arbitration by the National Arbitration Forum. This entity has refused to partake. The absence of an arbitrator voids the clause
- Does the contract call for the American Health Lawyers Association to be the arbitrator. This is a pro-defense group. This bias undermines the deal.
- Was a contingent power of attorney used to sign the contract? If so and the person was not disabled then the POA was not in effect.
Nursing Home Malpractice-Proving Damages
You must look at several factors:
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- Can you separate the physical and emotional injury caused by the nursing home from the patient’s underlying disease or disability?
- How has the injury affected the patient’s prognosis?
- In a case of improper use of restraints did the patient asphyxiate? Asphyxiation is a slow and painful way to die. It may produce small spots of bleeding in the eye. That will be seen on the autopsy.
- With bed sore cases photos and videos must be used early in the case and throughout to get the home’s focus.
- Where the patient has roamed outside the home and been exposed to the elements you need a geriatric psychologist or psychiatrist to describe the fear, hopelessness and pain of the patient.
- In a case of physical assault by another patient you must prove foreseeability. Should the home have foreseen the assault?
Nursing Home Malpractice Consult
If you have a question about a nursing home case, contact us. See also the pages on Wikipedia.