With the aging population, retirement of the baby boomers and increasing population of nursing homes, Maine lawyers undoubtedly will face a growing number of questions from clients concerning negligence, abuse and neglect of nursing home residents. Elders who reside in nursing homes are among the most vulnerable members of our society. As lawyers, we have a responsibility to help champion and protect them. To do so, we must understand the duties and obligations of the nursing home and use our civil justice system to ensure that those duties and obligations are met.
NURSING HOME CASES ARE NOT MEDICAL MALPRACTICE CASES
It is a mistake to view a nursing home case as a medical malpractice case. Medical malpractice cases typically concern discrete acts of negligence, such as a failed surgery or missed diagnosis. By contrast, most nursing home cases do not involve a discrete act of negligence. Rather they involve a pattern of sub-standard care, abuse or neglect. A nursing home resident does not become malnourished or dehydrated in a single day. Bed sores do not develop and grow into Stage IV flesh wounds overnight. Even falls often occur as a result of a pattern of poor planning, monitoring or supervision of the resident.
In many ways, the lack of a discrete malpractice event makes nursing home cases more challenging than pure medical negligence cases. The substandard care, abuse and neglect suffered by a nursing home resident may be the product of poor care by numerous staff and other medial providers—the resident’s treating doctor, the nursing home administrator, the nursing staff, the CNAs, physical or occupational therapists, speech pathologists, wound care doctors, dieticians and others. Consequently, while medical malpractice cases typically focus on the conduct of one or more individual doctors, the emphasis in nursing home cases often is on the facility as a whole—the nursing home company and its policies, practices, and business decisions relating to resident care.
THE STANDARD OF CARE
Unlike medical malpractice cases, the standard of care in a nursing home is not defined exclusively—or even primarily—by individual professional standards. Rather, nursing home standards of care are dictated by Federal and State statutes, regulations and interpretative guidelines. The most important of these are the Federal nursing home regulations at 42 CFR § 483, the State regulations at 10 – 144 CMR, Ch. 110, and the State Operations Manual, a set of guidelines published by the Centers for Medicare & Medicaid Services (CMS), which are utilized by governmental surveyors to enforce compliance with the statutes and regulations. The Federal nursing home regulations and interpretive guidelines are often referred to collectively as the “OBRA standards.” OBRA stands for the Omnibus Budget Reconciliation Act of 1987, which was the implementing legislation for much of the Federal nursing home regulation. In Maine, most of the State regulations track closely to the OBRA standards, although in some instances they provide additional details.
The OBRA regulatory regime establishes a prescriptive approach to ensuring a minimum standard of care for nursing home residents. This prescriptive approach contemplates that elders in nursing homes are often vulnerable, confused and completely reliant upon the nursing home for their well being. The regulations recognize that nursing home residents are elderly, fragile, carry multiple medical diagnoses, and therefore require a high level of vigilance of care and supervision. Even temporary lapses or failures can have catastrophic results—such as the failure to monitor a resident who is at risk of falling, resulting in a bad fall which causes serious injury or death. Nursing homes are regularly evaluated for compliance with the OBRA standards, and non-compliance can result in citations or fines. Accordingly, all nursing home administrators and staff are well versed in the OBRA standards, trained to comply with them and understand that they establish a standard for the delivery of care to residents of the facility.
The OBRA standards cover almost every aspect of care delivery within a nursing home. They require that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25; 10 – 144 CMR, Ch. 110-13.A.8. They specify that the nursing home may not “neglect” its residents, with “neglect” defined as “a threat to an adult’s health or welfare by physical or mental injury or impairment, lack of protection or prevention from these, or the deprivation of or lack of essential needs.” 42 CFR § 483.13(c); 14-144 CMR Ch. 110-1. They provide specific standards addressing staffing levels, governance and operation of the facility, hydration and nutrition, diet and food preparation, reporting and record keeping, assessment and care planning, prevention of pressure ulcers, and the prevention of other types of accidents such as falls and elopement from the facility.
EVALUATING THE EVIDENCE
There are several available sources of evidence to consider in evaluating whether a client has a viable claim against a nursing home.
The Nursing Home Resident and Family Members
If the resident is still living, he or she may be an important source of information about the care provided by the nursing home. More often than not, however, the resident is deceased or suffering from cognitive deficits. In these cases, the resident’s story is best told by the family member who has the most knowledge about the resident’s experience in the nursing home. If this family member visited the resident in the nursing home, he or she may be able to offer observations about the care provided. Did staff ignore pleas to assist the resident to the bathroom or into and out of bed? Was the resident fed nutritious meals and offered meal replacements or supplements? How was the resident’s hygiene? Where did the resident spend most of his or her time? Did the nursing home keep the resident’s physician and family informed of significant changes in the resident’s condition?
The Nursing Home Chart
In order to properly evaluate a nursing home case, it is critical to obtain the entire chart for the resident’s stay at the nursing home. The full chart will include intake records, resident assessments, care plans, nursing progress notes, physicians orders, CNA daily entries tracking resident mobility, food and liquid intake, and other activities of daily living, therapist notes, laboratory studies, legal documents, social and religious activities, dietary consultations and other records.
In meritorious cases, a thorough review of the nursing home chart often will provide important documentation of the claim. For instance, if a resident is not being turned or repositioned with adequate frequency to heal worsening pressure ulcers, the chart likely will reflect an absence of close monitoring and attention to the wound. Gaps in charting may demonstrate that the facility was understaffed. It is also important to identify any instances of false charting—that is, situations in which entries were made at a time when the resident was not present at the facility or had already passed away. In some instances, false charting may indicate that the facility was improperly billing Medicare or Medicaid for services it was not providing, an independent violation of law.
Employees and Former Employees
The employees or former employees who were involved in the resident’s care are important witnesses. In some instances, current employees may be off limits for pre-litigation investigation, because they may be deemed to be represented by counsel. Former employees, however, are almost always fair game. Fortunately, in the nursing home industry, staff often turn over frequently, so it is not unusual for some of the employees involved in the resident’s care to have left the facility. Former employees may be quite willing to share information, particularly if they believe that the nursing home failed to provide adequate staffing and resources to meet resident needs. After all, when a nursing home is short staffed and without the necessary resources to properly care for the residents, it is the front-line staff who are forced to shoulder this burden.
Every nursing home facility that receives Medicare or Medicaid payments is evaluated annually for compliance with the OBRA standards. If violations are identified, the nursing home must develop a plan of correction to remedy the problem and ensure that it does not happen again. The surveys provide valuable insight into the overall quality of care in the nursing home. In some cases, they may be admissible evidence that the nursing home was on notice of the problem which caused harm to the resident and failed to change its policies or practices to prevent the harm.
Medicare & Medicaid Cost Reports
All nursing homes that receive reimbursements from the Medicare or Medicaid programs are required to file cost reports with the government. The cost reports identify the services for which payment is sought and show how the monies obtained from the government are allocated. The reports also show how much money is used to pay related parties, such as a parent or affiliated corporation, and how much is devoted to overhead and management expenses, as opposed to direct resident care. This information is vital if there are issues in the case about whether the nursing home devoted sufficient resources to resident care. For instance, if the nursing home claims that it could not afford to hire more staff, it would be significant to learn from the cost reports that it transferred millions of dollars each year to its corporate parent for unspecified “administrative services.” This information may help to establish a failure of budgetary priorities. It may also help demonstrate that the corporate parent exercised control over the budgetary process, thereby supporting a direct negligence claim against the parent in addition to the claims against the nursing home subsidiary.
TYPES OF CASES
Any set of circumstances in which a resident has suffered from substandard care, abuse or neglect should be investigated. Most nursing home cases fall into one of several categories: avoidable pressure ulcers (bed sores); failure to adequately nourish or hydrate a resident; physical abuse or improper use of restraints; negligent administration of prescription medications; failure to notify a physician or family member of a significant change in condition; failure to properly develop and implement a plan to meet the resident’s unique needs; failure to properly supervise or monitor the resident, resulting in falls, wandering, elopement or other accidents; and failure to protect the resident from the hostile or belligerent acts of another resident.