Tort Law: Nursing Home Liability
Summary
A tort lawyer who avoids nursing home liability cases under the mistaken belief that elderly claimants will receive minimal damages are doing a disservice to a highly vulnerable section of our society. Nursing homes are licensed and subject to government rules and regulations and contractually promise that all their residents will be well taken care of.
Tort Lawyers And Nursing Home Cases
Many tort lawyers refuse to accept nursing home cases because of their belief that due to the age of the victim damages will be minimal. This attitude leaves a significant and vulnerable portion of our society at risk. In fact, tort lawyers should protect the elderly and educate juries so that fair recoveries can be obtained by them.
Elderly individuals, even those in nursing homes, have lives which have value. Taking the last years or even days from a person’s life constitutes a real compensable injury. It can be argued that each day becomes more important the older you get.
Role Of Nursing Homes
Nursing homes are licensed and therefore subject to governmental rules and regulations. Additionally, almost every nursing home receives a portion of its funds from Medicaid and/or Medicare which brings it within the realm of federal mandates.
To participate in federal programs, nursing homes contractually promise that all of their residents will be well taken care of in compliance with federal and state regulatory standards such as those promulgated under the Omnibus Reconciliation Act of 1987 (OBRA). Failure to follow these standards may give rise to liability.
Identifiying Potential Nursing Home Liability Cases
Certain types of injuries are repetitive in nursing home cases and raise red flags to indicate that negligence may have occurred. For example, the development of decubitus ulcers; malnutrition; improper use of medication; and failure to prevent accidents.
If you have a potential nursing home case, you should not only examine traditional negligence issues but also determine whether OBRA has been violated. OBRA requires the facility to take affirmative steps to insure that the residence environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistance devices to prevent accidents.
The facility is obligated to conduct an assessment after any change in a resident’s condition. After that assessment a comprehensive care plan that includes measurable objectives and timetables to meet a resident’s medical, nursing, mental, and psychosocial needs as identified in the comprehensive assessment must be developed.
Each resident must receive, and the facility must provide, necessary care and services to attain or maintain the residents’ highest practicable physical, mental and psychological well-being in accordance with the comprehensive assessment. Those facilities that continue to merely be “holding tanks” are in violation of OBRA.
OBRA is very specific with regard to the use of restraints. It is specific in its definition of what constitutes abuse or neglect. The comprehensive assessment and the follow-through to see that it is utilized are often the vulnerable aspects in a nursing home case. All too often residents are not treated with respect, the comprehensive plan is not appropriately done, or there is no real effort to follow it.
Identifying Medical Malpractice Claims
Nursing home cases may give rise to medical malpractice cases against physicians. When a patient enters a nursing home, he usually gives up his regular treating doctor. Most nursing homes have physicians on staff or on call who specialize in geriatrics. These physicians are recommended or chosen by the nursing home. They assume responsibility for patient care and obtain payment from the resident or from Medicare/Medicaid. A nursing home physician may have as many as 90% or more of the nursing home residents as patients. She may visit the patient only once every 30 to 60 days.
In some cases, it will be important to determine whether the nursing home met its requirement of calling a physician and, if so, whether the physician responded appropriately. If the nursing records indicate a telephone call to a physician, records should be checked to see whether the physician entered any orders. It may be that he was not reached, did not return phone calls or did not bother to visit the nursing home patient until his next scheduled visit. A nursing home physician is held to the same standards as any other physician, and any deviation which causes injury can give rise to a malpractice claim. OBRA also has regulations related to the duties of medical directors and the responsibilities of the nursing facility.
Suing Under The Federal False Claim Theory
As I have written previously in these pages, it may also be possible to sue the nursing home and/or treating physician under the Federal False Claim Act Theory. If you can find that either the nursing home or the physician billed for services that he did not provide, a separate claim for fraud under the qui tam statute can be prosecuted.
Nursing homes or physicians who submit false claims to Medicare can be held liable for treble damages, plus a penalty of five to ten thousand dollars per claim, plus attorney’s fees. When there is such a situation, the qui tam plaintiff is entitled to a contingent percentage of any recovery.
Conclusion
Whenever you start a nursing home case, you should always keep in mind that there may be more claims than you are initially aware of. It is therefore very important that you obtain complete copies of all the medical records and read them carefully. The Code of Federal Regulations provides that a nursing home facility must return medical records to the party requesting them within 48 hours of the receipt of the request.
Numerous laws require certain injuries to be investigated, and these injury reports should be demanded. They are not privileged because they were done to comply with the statute and not in anticipation of litigation. OBRA requires that nursing homes have a process under which complaints of mistreatment, neglect or abuse are reported immediately to the administrator of the facility and to other officials in accordance with state law. The facility must have evidence that all alleged violations are thoroughly investigated.
In order to process a nursing home case, you need to become familiar with OBRA (42 U.S.C. § 1302 and 1395) and the regulations promulgated under it (42 C.F.R. § 483 et seq.).
Plaintiff’s lawyers have a unique responsibility to represent the victims of our society. The helpless elderly person lying in a nursing home is at great risk, and we as lawyers need to protect them. The senior citizen who is abused or injured or who suffers a broken hip or an ulcer, not only could be your father or mother, it could be the juror’s father or mother. The assumption that because they are old and sick, they have no social value is outrageous and erroneous. Everyone’s life has value. When negligence fills the last stages of life with pain or markedly shortens them, there should be compensation.