NURSING HOME CLAIMS: AN OVERVIEW

Nursing home cases have become increasingly prevalent in recent years. In the author's opinion, the nursing home industry is exposed to claims because of several factors. One factor is that government payments which make up the bulk of industry revenues leave only modest profit margins for providers who undertake to provide the high level of patient care mandated by fairly strict state and federal regulations. (OBRA, an acronym for the federal regulations, was passed during the Reagan administration.) In an effort to make a profit, some providers seem to try and cut costs at the expense of patient care. Another factor seems to be that many homes, particularly in rural areas, have lagged in acquiring the staff expertise needed to adequately address the sometimes complex but well identified needs of geriatric patients. Finally, the plaintiffs' bar has learned that juries take these cases quite seriously and award large sums in meritorious cases, despite the advanced age of many claimants. This recognition, coupled with the strong sense of moral outrage in both lawyer and client prompted by neglect or abuse of the elderly, has made lawyers more willing to take on what are often laborious and time consuming cases requiring a high degree of industry knowledge. Hopefully the industry will respond to civil claims by changing its practices so as to provide the requisite level of patient care.

There are many care providers in the nursing home, some of whom are employed by the home and others who are not. In order to evaluate potential claims, one initial obstacle is to identify the care provider(s) responsible for the treatment in question. It is also necessary to determine if the care providers in question are employees of the home or independent contractors. (The home is responsible for negligence by its employees but not independent contractors.)

The nursing home is typically managed by an Administrator who is responsible for staffing, managerial functions, governmental compliance and overall operations. Nursing homes have governmental reporting requirements and are periodically inspected by government officials. Any identified deficiencies must be corrected promptly in order for the home to remain eligible for government funding. Analysis of government reports can be a valuable source of evidence.

The Medical Director is a physician who has management duties for the home but also typically acts as treating physician for many of the patients at the facility. The physician issues medication and treatment orders for each resident which the staff is obligated to follow. Some patients may alternatively choose to hire a local physician other than the Medical Director. Residents may only be seen by their treating physician once every 30-60 days, and the physician may visit the facility only a few days a month. A Medical Director will be on site more often, to allow time to accomplish his management duties. Based on the infrequency of physician visits, it is incumbent on the staff to identify situations where a physician or other outside consultation is needed, and to secure appropriate treatment orders for the resident.

The highest level care provider who is on-site on a full time basis is the Director of Nursing. The facility will likely have several registered nurses on staff as well. Licensed Practical Nurses (LPNs) perform most of the daily nursing functions, and Certified Nurse Assistants (CNAs) perform daily cleaning, laundry and related services. Other care providers will typically include a Dietician or dietary consultant, physical therapists and wound care nurses. Social workers are also available to address medical-legal issues with the resident's family.

From a legal standpoint, there is a separate standard of care for each type of care provider. In order to prove negligence, an independent expert familiar with the standard of care for the care provider in question must testify that negligence occurred. Depending on the factual circumstances of the case, it may be necessary to consult with a number of different experts (i.e. a physician, a nurse and a dietician) to evaluate whether a particular patient was treated properly and to assemble the necessary evidence.

From a claimant's standpoint it is desirable to consult counsel with experience in handling nursing home cases. The financial burden on the firm pursuing such a case can be substantial, owing to the significant amount of expenses which the firm must spend out-of-pocket for experts and the like. While many practitioners seek out such cases, not all are experienced in handling what are fairly complex cases to litigate.

Coming soon, some articles on common types of nursing home cases including pressure sores and elopement.

Copyright 2004 by Schulten Ward & Turner LLP. All rights reserved.

THE INFORMATION PROVIDED HEREIN IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A PARTICULAR MATTER, CONTACT COUNSEL OF YOUR CHOOSING.