Recognizing and Evaluating Nursing Home Cases

by: IRA H. LEESFIELD
Leesfield & Partners
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

Nursing Homes. The very term evokes images of neglect, abuse, fear, and suffering. Unfortunately, and quite frequently, these images are manifested in real life tragedies. A system of care that was originally designed to aid the elderly all too frequently results in serious injury and sometimes even death. As the "baby boomer" generation enters their golden years, society, and lawyers in particular, must focus their attention on curing the ills of this sector of health care. Nursing homes can and should play a valuable role in the lives of the elderly as well as the lives of the families of the elderly. In order to ensure that this happens, it is imperative that trial lawyers learn to recognize nursing home cases and be prepared to litigate these cases. The material in this presentation will assist you in recognizing and evaluating nursing home cases.

There is no substitute for knowing the law. In order to recognize the value of any case you must be thoroughly familiar with both the case law and the statutes. A must read is Title 42, Part 483 of the Code of Federal Regulations. In addition, Florida lawyers must be cognizant of the Florida Statutes, in particular Chapter 400. The Florida Administrative Code 59A-4, should also be referenced as well.

A. Title 42, CFR Part 483

Any nursing home that receives federal funding must comply with federal nursing home laws. In 1987 Congress enacted the Omnibus Budget Reconciliation Act of 1987, also known as the Nursing Home Reform Act. This act specifies that a nursing home "must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care . . ."

The nursing home must:

483.30: Have sufficient nursing staff to provide nursing and related services or maintain the highest practicable physical, mental ans psychosocial well-being of each resident as determined by resident assessments and individual plans of care

483.20: Develop a comprehensive plan of care for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs within 14 days of admission and periodically at least once every 12 months

483.25: Ensure that residents do not develop pressure sores and, if a resident has pressure sores, must provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing

483.25: Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections

483.25: Prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat and to use speech, language or other functional communication systems

483.25: Ensure that the resident receives adequate supervision and assistive devices to prevent accidents

483.25: Ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels

483.25: Ensure that residents are free from any significant medication errors

483.15: Care for its residents in an environment that promotes maintenance or enhancement of each residents quality of life, dignity, and respect in full recognition of his or her individuality

Subpart D: Requirements That Must be Met by States and State Agencies: Nurse Aide Training and Competency Evaluation

B. Florida Law - (1) Chapter 400, Florida Statutes

One of the few areas of law unscathed by recent tort reform is the portion of Chapter 400 of the Florida Statutes dealing with Florida's Nursing Home Law.⁽¹⁾

The key provisions you should be concerned with are §§ 400.022, 400.023. Most importantly, § 400.022, popularly referred to as the "nursing home resident's bill of rights," codifies the statutory rights afforded to each nursing home resident in the State of Florida. In pertinent part, nursing home residents have the right to:

Receive adequate and appropriate healthcare and protective and support services including social services, mental health services if available

Be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the licensee, including those required to be offered on an as-needed basis

Be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those authorized in writing by a physician for a specified and limited period of time or as are necessitat4ed by an emergency

Be transferred or discharged only for medical reasons or for the welfare of other residents, and the right to be given reasonable advance notice of no less than 30 days of any involuntary transfer or discharge

Section 400.023 is the civil enforcement statute. It provides that any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages. Additionally, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident.

Chapter 59A-4 of the Florida Administrative Code sets out minimum standards for nursing homes. It details the nursing home's requirements for many key areas including:

• Licensure and Administration
• Physician Services
• Nursing Services
• Resident Assessment and Care Plan
• Dietary Services
• Pharmacy Services
• Medical Records
• Evaluation of the Nursing Home and Rating System
• Fire Prevention and Line Safety

Anything can happen in a nursing home. Residents have entered nursing homes in good health and come out with broken hips, severe loss of weight, decubitus ulcers, subdural hematomas and even in body bags. Others have wandered off the grounds and drown or choked on there own feces or been sexually molested.

What is your client's injury? Conduct a comprehensive initial interview with your client's family and determine what the injury is or what was the cause of death. The easiest way to figure out what went wrong at the nursing home is to work backwards. Keying in on the injury will help you focus your search through the nursing home chart as you attempt to prove statutory violations of the resident's rights and common law negligence.

For example, if your client suffered a subdural hematoma while residing at the nursing home you can safely conclude that she fell. Nursing homes will make the argument that they are not insurers and can't be responsible every time a resident sustains an injury from a fall. To show that they violated 42 CFR 483.25 (accident prevention) and were also negligent start with the resident's physical and mental history. You should be looking for:

• Falls at prior facilities
• Other falls at the nursing home
• The amount of assistance required to ambulate
• Psychotropic medications

If the initial resident assessment triggers a care plan for a resident's risk for falling this means that they know she is in danger of falling and, thus, in danger of sustaining a severe injury. Additionally, if the resident did not trigger for a fall protection plan at the initial assessment, but suffered some falls after entering the nursing home or was subsequently placed on psychotropic medications, then that resident should have been reassessed and triggered a care plan for fall prevention. If the nursing home did nothing in response to the resident's worsening condition then it is liable for failing to monitor their changed condition and provide the necessary support services.

Nursing home cases are rarely clear-cut at the inception, rather they tend to evolve during the course of discovery. Thus, during your initial evaluation you should key on the injury, and then as discovery progresses, leave no stone unturned.

A. Essential tasks for recognizing nursing home cases

Identify your defendant

• Nursing home
• Assisted living facility
• Large chain nursing home
• Out of state licensee

B. Research and determine the history of the facility

• Obtain the complete survey and licensure file at AHCA office in Tallahassee
• Newspaper accounts
• Jury Verdicts
• Is it on the Florida Nursing Home Guide - Watch List
  http://ahca.myflorida.com/
• Obtain and read the depositions in other cases against the nursing home

C. Construct a time-line of treatment and care; including:

• Hospital charts prior to your clients arrival at the nursing home
• All disciplines at the nursing home
• All hospital stays after the nursing home
• All specialists seen before, during and after residing at the nursing home

D. Determine who can TELL you what happened

• Talk to the family members
• Visit other residents if your client was sharing a room
• Talk to sympathetic staff members
• Disgruntled former employees

E. What does your investigation tell you?

• Overt abuse
• Preventable accident
• Undocumented and unexplained injury
• Inherent institutional abuse

F. Determine the type of case you have

• Decubitus Ulcer
• Physical/Sexual Abuse (improper chemical or physical restrains)
• Falls
• Wandering Off Premises
• Medication Errors
• Neglect (malnutrition and dehydration)
• Loss of Dignity

G. Who is your Plaintiff?

• Resident Alive Competent?
• Married?
• Video deposition
• Photographs
• Power of attorney
• Resident Deceased Statutory survivors?

Did the resident die as a result of the abuse/negligence/statutory violations?

YES First Healthcare v. Hamilton, 24 Fla. L. Weekly D1511 (Fla. 4th DCA 1999), limited to wrongful death damages only - personal representative of the deceased may not recover damages for the decedent's pain and suffering arising from the same injuries causing death.

Beverly Enterprises-Florida, Inc. v. Spillman, 661 So.2d 867 (Fla. 5th DCA 1995), personal representative of the deceased may recover for the decedent's pain and suffering between the injury and the time of death

What if the resident died but not as a result of the abuse/neglect/statutory violations?

Beverly Enterprises-Florida, Inc. v. Knowles, 24 Fla. L. Weekly D1986 (Fla. 4th DCA 1999), if the resident rights violations do not result in death, the personal representative of the resident's estate can bring a Chapter 400 claim

H. Obtain a complete nursing home chart

• Have the chart reviewed by a qualified geriatric nursing expert who is familiar with the nursing home statutes and nursing home care.

• Review the chart yourself, break up the records according to disciplines, and tab everything suspicious or anything that reflects notice of your client's condition.

• Compare the records to the allegation of the resident's family.

• Compare the records for each discipline to the others and determine if there are any internal inconsistencies - this will either tell you that someone was engaging in fraudulent charting or was incompetent in their assessments.

• Compare the Minimum Data Set to the Initial Assessment and Resident Assessment Protocol.

• Was there a care plan developed for all areas which were triggered?

• Was the care plan implemented and was there monitoring for the risk?

• Was there a change in condition that required a new assessment and care plan?

• Compare the physicians orders to the orders transcribed in the nurses notes.

I. Falls

• How many

• Assessed as 'at risk'

• Was the assessment proper based on resident's history?

• Was there a care plan implemented for fall prevention?

• What was the resident's ability to ambulate?

• Nurses notes must document each fall and there must also be an incident or event report for each fall - compare to what the family says.

• What psychotropic medications was the resident taking?

• Were physical restraints or bed rails used as ordered?

• Wanderer

• Was the resident's condition reassessed?

• Should it have been reassessed

J. Decubitus ulcer cases

• Where did wound occur?

• What Stage is the wound?

• Was the resident properly assessed for risk of developing pressure sores?

• Did the wound worsen?

• How was the wound treated?

• Is there a wound care log/record which recorded the turning and repositioning of the resident; whether a pressure relief mattress, heel protectors or cushions were used?

• In light of the developed ulcer are the records fraudulent?

• Was the wound responsive to the treatments - if not, were other treatments considered?

• Residents medical condition - peripheral vascular disease - makes decubitus ulcer prevention and treatment more difficult.

• Was the resident incontinent?

• Was healing promoted by proper diet and hydration? Malnutrition leads to increased risk for developing ulcers and prevents healing of existing ulcers.

• Take pictures

• Have a wound care nursing expert review the chart

K. Medication Errors

• Was the error the cause of your client's current condition?

• Did the resident die because of a failure to administer a medication?

• Were the physician's order documented and correctly and timely carried out?

• Review the medication administration record

• Compare the medication administration record with bills and order forms from the pharmacy

L. Neglect (malnutrition/dehydration)

• Weight at admission

• Weight monitoring - Was there a significant loss in weight? See Guidance to Surveyors - Long Term Care Facilities.

• Residents suffering from dementia are also at risk for suffering a rapid loss in weight.

• What was the resident's weight loss assessment?

• Was there an ideal body weight assigned to the resident? The Guidance to Surveyors - Long Term Care Facilities states that ideal body weight charts have not been validated for the institutionalized elderly and that actual weight loss or gain is the guide to use in determining nutritional status.

• Was there tube feedings given because of the resident's decreased swallowing ability?

• Was there any advance directives prohibiting tube feedings?

• Look at the flow sheets to determine the percentage of the meals that were consumed.

M. Loss of dignity claims

• Leaving residents in soiled clothing or failing to use diapers or change bed linens.

• Verbal abuse and threatened action if resident continues to "misbehave." There is often no misbehavior, just short-tempered untrained staff that does not recognize some of the characteristics of Alzheimer's and dementia.

Trial lawyers play a unique role in society. Not only are we advocates for our clients, but we are watchdogs over society, protecting individuals from each other and from industry abuses and neglect. Nursing home cases must be vigorously prosecuted so as to encourage the industry to provide adequate resources for the protection of their residents. As we have seen time and time again, trial lawyers are the last bastion of support and protection for individual rights. We can not leave the task of protecting Florida's elderly nursing home population to the State of Florida. More often than not, State administrative remedies prove wholly inadequate for the severity of some of the violations and neglect that is rampant throughout the nursing home industry.

We have the opportunity with each case to provide an incentive for the nursing home industry to develop better procedures and provide better and additional resources to care for the elderly population. These cases are very time and labor intensive but worthy struggles. Completing the essential tasks outlined above will assist you in recognizing the full value of all your potential nursing home cases.

1. Section 400.023 was amended to add subsection (6). Basically, as a condition precedent to recovering attorney's fees for causes of action accruing after October 1, 1999, the case must be mediated within 120 days after the filing of a responsive pleading or defense motion on the complaint. A mediator must be selected and the mediation scheduled within 60 days of the responsive pleading or motion. The 120 day limit can be extended by agreement.

If the case is not settled at mediation, the mediator will record the last offer of the defendant. If the matter proceeds to trial and the plaintiff recovers an amount equal to or less than the last offer than the plaintiff is not entitled to attorney's fees.

The tort reform on punitive damages does not apply to claims on "abuse of the elderly" and any civil actions arising under Chapter 400." However, punitive damages may not exceed three times the amount of compensatory damages unless the claimant demonstrates by clear and convincing evidence.