claims against long-term care facilities: negligence, damages, and individual criminal...

Claims Against Long-Term Care Facilities:

Negligence, Damages, and Individual Criminal

Liability

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TUESDAY, OCTOBER 22, 2019

Presenting a live 90-minute webinar with interactive Q&A

Margaret Battersby Black, Partner, Levin & Perconti, Chicago

Nicholas Emerson, Attorney, Levin & Perconti, Chicago

Monica C. Fillmore, Attorney, Burns White, Cherry Hill, N.J.

Bryan A. Ruggiero, Attorney, Levin & Perconti, Chicago

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Claims Against Long-Term Care Facilities:Negligence, Damages and Individual

Criminal Liability

Bryan A. Ruggiero & Nicholas EmersonLEVIN & [email protected]@levinperconti.com

Monica Chheda Fillmore, Esq.

Burns White LLC

[email protected]

PRESENTED BY:

The justice system’s role in protecting residents from injury or death

• Nursing home lawsuits fix a broken system by focusing on individual violations

• Lawsuits help individuals and their families hold nursing homes accountable for substandard care and abuse

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Claims Against Long-Term Care Facilities:Negligence, Damages and Individual Criminal Liability

The Role of the Judiciary:

• Assessing all facts and legal arguments to assign liability as indicated without emotional attachment.

• Applying the standard of care to assessing liability

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I.Governing Laws, Regulations,

and Oversight

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Federal Guidelines

42 U.S.C. §1396r (1990) et seq., as amended by the Omnibus Budget Reconciliation Act of 1987 ("OBRA") and Volume 42, Code of Federal Regulations, Part 483 setting forth Medicare and Medicaid Requirements for Long Term Facilities

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The Central Purpose of OBRA

“to improve the quality of care for Medicaid eligible nursing home residents and to either bring substandard facilities into compliance with Medicaid quality of care requirements or to exclude them from the program.”

H.R. Rep. No. 100-391, pt. 1, at 452 (1987)

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OBRA ‘87

• Establishes standards of care required for facilities who are reimbursed by Medicare

• Medicare recipients must undergo a thorough assessment process called the MDS process, or Minimum Data Set

– Basis for nursing home’s reimbursement from Medicare

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OBRA ‘87

• Unavoidability – a common defense or nursing home theme

• Nursing homes will claim that injuries “unavoidably” developed

– Many things required to show actual unavoidability

– Can’t keep a resident they can’t care for

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OBRA ‘87

• OBRA will not let them get away that easy:– 483.25 Quality of Care - Each 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.

– This section defines standards to be used by State Surveyors in determining if quality care is provided.

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OBRA ‘87

• OBRA defines unavoidability as:– A determination of unavoidable decline or failure to

reach highest practicable well-being may be made only if all of the following are present:

• An accurate and complete assessment (see §483.20);

• A care plan which is implemented consistently and based on information from the assessment;

• Evaluation of the results of the interventions and revising the interventions as necessary.

• In a nursing home case that will likely materialize into a lawsuit, at least one or more of the above are present

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Nursing Home Rule Book• 42 C.F.R. § 483.25 et. seq.

The Long Term Care Survey, Phase IIAmerican Health Care Association

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Claims of Negligence Per Se vs. Negligence

• Plaintiff ’s will often try to employ the Federal and State Regulations to attempt to show claims of negligence.

• However, the Federal Regulations (F tags) and OBRA Regulations do not offer a private cause of action.

• Instead the Plaintiff may only use the Regulations as evidence of the standard of care through competent expert testimony.

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State Regulations

http://www.hpm.umn.edu/nhregsplus/NHRegs_by_State/By%20State%20Main.html

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Ex: Illinois Nursing Home Care Act• The Illinois Nursing Home Care Act, 210 ILCS 45, is

intended to protect the rights of nursing home residents who may be vulnerable to exploitation, neglect or abuse. – Rights regarding spousal impoverishment.

– Right to manage your own finances.

– Right to your personal property

– Right to your own physician.

– Right to participate in your medical care and to refuse treatment.

– Right to respect and privacy in medical care.

– Right to rescreening when admitted with serious mental illness.

– Right to be free of physical or chemical restraints unless medically necessary.

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Use of State Regulations

• Many states have their own state regulations, including Nursing Home Acts.

• Plaintiff ’s often like these because they may allow for recovery for attorneys fees and treble damages.

• However, these too have limitations in private causes of actions.

• The defense may also try to limit the use of these regulations under the theory of double recovery.


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Use of State Regulations

• For example, New Jersey ruled that Plaintiff ’s are only allowed to recover under the Nursing Home Residents Rights section of the Nursing Home Act because the Nursing Home Responsibilities section did not have a private cause of action.

• The Courts also limited recovery under the Residents Rights, if the claimed damages were the same as the underlying negligence claims because this would amount to double recovery.

Ptaszynski v. Atlantic Health Systems, Inc., 440 N.J. Super. 24 (App. Div. 2015)


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• Health Care Financing Administration (HCFA)

– State Survey Process Requirement

• monitor and assess compliance by nursing homes with Medicare and Medicaid requirements for participation

• HCFA relies on a survey and certification process administered under contract by state agencies

• E.g. Illinois Department of Public Health– Complaint

– Survey

– Administrative Hearing

Oversight: Long-Term Care Organizations

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Use of State Surveys

• Plaintiffs may also try and equate state surveys to evidence of systemic bad care.

• However, Defendants can challenge this as impermissible character evidence and being unduly prejudicial.

• There may also be a hearsay challenge for the survey results.


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Use of State Surveys

• State Surveyors only look at a group of residents to show a sample population of the facility.

• The facilities keep a list of the residents included in this group.

• Often in these cases, the residents have been at the facility for multiple years, so it is important to determine if they were a part of the surveys from any of the years of the residency.


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• Department of Health and Human Services (DHHS)(1) consumer protection, specifically, ensuring safety, quality of the care received, and legal rights of consumers

(2) accountability for public funds used for care

– With government accounting for 61 percent of nursing home and home health care expenditures, it has a responsibility to hold providers accountable for fiscal integrity and for the quality of

care provided to beneficiaries.


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• Assisted Living Quality Coalition (ALQC, 1998).

– The coalition has engaged in consensus building among representatives of consumers, providers, regulators, purchasers, and financiers of long-term care.


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II. Standard of Care Requirements

for Long-Term Care Facilities

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Standard of Care:

Comply with the federal and state nursing home regulations

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What parameters define Neglect or Abuse for purposes of a lawsuit?

• Recognized standards of care – These standards typically set forth guidelines for all of

the most common instances of nursing home abuse and neglect: bed sores or pressure sores, dehydration, malnutrition, choking, falls, accidents, medication errors, physical or sexual abuse, infection, wandering or elopement, physical and chemical restraints, verbal abuse, special treatments and procedures such as g-tubes and tracheostomy care

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Standards of care

• State and federal regulations

• Facility’s own policies and procedures

• Widely recognized industry standards

– Eg. National Pressure Ulcer Advisory Panel

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The “Model” nursing homes are required follow

• Assess

• Care plan

• Communicate care plan

• Implement care plan

• Reassess and try new things

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Expert Review

• There are often multiple specialties involved in long-term care: • Nursing• Internal Medicine/Geriatrics• Nutrition• Physical , Occupational and Speech Therapy• Pharmacy• Podiatry• Nephrology• Respiratory Therapist• Infectious Disease• Orthopedics


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Expert Review

• Want to get appropriate expert review to opine on the needed areas of medicine.

• Also look at the credentials and information on the Plaintiff ’s experts.

• People in glass houses, shouldn’t throw stones– often a Plaintiff ’s expert will make criticisms based on surveys.

• You can obtain information on the Plaintiff ’s facility surveys through discovery or FOIA requests.


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Expert Review

• Nursing Care in the nursing home is also different than in acute care settings.

• Important to assess nurses who are currently active in long-term care.

• Standards/Nursing Practices also differ between long term, subacute rehab, acute rehab, assisted living and independent living.

• Wound Care has a separate certification as a wound ostomy continence nurse (WOCN)


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III. Key Considerations & Mishaps to Avoid in the Pursuit & Defense of

Long-Term Care Facilities

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Key Consideration #1: Depositions

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The Purpose of a Deposition

• The main purpose of a discovery deposition is NOT discovery.– Gain admissions

– Prove your case

– Develop a roadmap for your adverse examination

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Gaining admissions of Rule violations

• Admissions of standard of care violations

• Admissions of policy and procedure violations

• Admissions of violations of custom and practice

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Depositions

• Ask open ended questions when trying to elicit background information.

• Ask directed questions when inquiring specific factual questions at issue to prove your case.

• Obtain admissions to support your claims.

• Pin down caregivers involved and timeline of care.


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Key Consideration #2: Understaffing

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What?Hit Iceberg

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Why did 1503 People Drown?

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Needed 64 lifeboats

Only had 20

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Staffing Levels

• Plaintiff ’s attempt to use the 5 star system to show claims of understaffing.

• However, CMS has stated that this system is faulty.

• The determination is often based on the levels of nursing –NP vs. RN vs. LPN vs. CNA– however this alone does not show that care was not appropriate.

• Also takes into account the medication and restraints in use, regardless of the type of facility– i.e. pysch unit would have more restraints and medication, but this is not factored in the score.


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Staffing Levels

• Each facility has to report their daily staffing levels to the State– if understaffed they would be cited.

• The staffing schedules and acuity/census documents show the staffing required.

• Important to look at the staffing for the units at issue– not the entire facility.


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AVOID: Common Myths of Long-Term Care Litigation

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Myth #1: The Records Are True and Accurate

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Myth #1: The Records Are True and Accurate

Strong likelihood they actually contradict themselvesExample: February 31 / Patient not in facility

Contradict factsExample: Admission assessments w/mentation

Always compare MDS reports to Nurses notes, records, etc.

Always compare records to dates in facility / home / ED etc.

Always compare records to employee records

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Myth #2: If we didn’t note a change in condition, then one did not occur

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Myth #2: If we didn’t note a change in condition, then one did not occur

Treating physicians / EMS crew can helpExample: Septic without warning / pneumonia no s/s

Pressure ulcer developed overnight

Contradict facts and medical literature


PT records reflect this condition – but no one else?

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Myth #3: The patient was sicker than you realize

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Myth #3: The patient was sicker than you realize


PT ? OT?

Hospice called in?

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Myth #4: They were old, no life expectancy so no real harm

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Myth #4: They were old, no life expectancy so no real harm

The shorter your time to live, the more important your dignity, right to live injury and pain free are.

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Myth #5: We are adequately staffed

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Cost ReportsGuide StarFinancial RecordsMedicare.GovEx- staffState inspections

Myth #5: We are adequately staffed

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IV.Gathering Supporting

Documentation:Evidentiary and Discovery Issues

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Documents from the medical record

• Request and ask for the entire record

• Pressure ulcer case

– Wound care notes

– Treatment records

– Braden scores

– Care plans

– Any unavoidability documentation

– MDS assessments - inconsistencies

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Documents from the medical record

• Fall Case

– Risk Assessment

– Care plans

– Therapy notes/records

– Restorative documentation

– Nurses notes that speak of any prior falls/near fall incidents

– MDS assessments – inconsistencies

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Underlying Medical Conditions

• Obtain prior medical records from treaters, prior facilities and hospitals.

• Get records from all consults the resident saw at the facilities.

• Get EMT/Ambulance transport records– look at the length of the ride and any issues for wound care cases.


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Documents needed outside of the medical record• Pressure sore case

– Weekly wound reports

– Wound trends

– Invoices for specialty mattresses

• Fall cases

– Committee meeting minutes

– Interviews or conclusions

– Documents sent to the State Health Dept.

– Staffing/assignment and census

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Documents needed outside of the medical record• ADL (Activities of Daily Living) Sheets or

CNA Charting

• 24 Hour Reports

• Policies & Procedures

• Staffing Sheets and/or time punch cards

• Census Reports

• Incident/Accident Reports

• Audit Trail: EMR: Point Click Care

• Job Descriptions61

DON Job Description

Effective March 2004 1

Job Description DIRECTOR OF NURSING

Location: Department: Administration Hourly, Non-Exempt Salaried, Exempt FT PT PRN

BASIC FUNCTIONThe Director of Nursing assumes authority, responsibility, and accountability for the delivery of nursing services in the facility. In collaboration with facility Administration, allocates department resources in an efficient and economic manner to enable each resident to attain or maintain the highest practical physical, mental, and psychosocial well-being. Collaborates with other departments, medical professionals, consultants, and organizations, including governm ent agencies and advocacy groups, to develop, support and coordinate resident care, related administrative functions, and to represent the interests of the facility.

RESPONSIBLE TO: Administrator/Executive Director, Director of Clinical Services, and Director of Operations.

EDUCATION, QUALIFICATIONS, AND CREDENTIALSMust possess a current Indiana license as a Registered Nurse and have graduated from an accredited school of nursing. Two years of professional nursing experience in the long-term care setting is required, and a minimum of three years experience in nursing administration or a comparable management position. Must possess and demonstrate a high degree of leadership, organizational ability, and communication skills. Knowledge of long-term care management, policies, budgeting, personnel management, and census development is required. Current CPR certification is preferred.

ESSENTIAL JOB FUNCTIONS The employee must be able to perform each essential function effectively to be successful in this position.

1. Develops, maintains, and implements nursing policies and procedures that conform to current standards of nursing practice, facility philosophy, and operational policies while maintaining compliance with state and federal laws and regulations.

2. Communicates and interprets policies and procedures to nursing staff, and monitors staff practices and implementation.

3. Participates in all admission decisions, and may visit prospective residents before admission. 4. Participates in daily or weekly management team meetings to discuss resident status, census changes,

personnel, or resident complaints or concerns. 5. Evaluates the work performance of all nursing personnel, assists in the determination of wage increases,

and implements discipline according to operational policies. 6. Ensures delivery of compassionate quality care and nursing supervision as evidenced by adequate services

and staff coverage on unit, absence of odors, gene ral cleanliness, prevention of pressure wounds, and apparent maintenance of optimal resident functions.

7. Demonstrates knowledge of and application of Key Clinical Quality Indicators, and proactively monitors and implements systems to achieve and/or surpass company thresholds.

8. Exercises overall supervision of resident assessments and care plans. 9. Oversees or is responsible for the CNA and QMA certification programs, competency testing, and all

related records10. Reviews 24-hour report from every unit daily to monitor and ensure timely, effective responses to

significant changes in condition, transfers, discharges, use of restraints, unexplained injuries, falls, behavioral episodes, and medication errors.

11. Collaborates with physicians, consultants, community agencies, and institutions to improve the quality of services and to resolve identified problems.

12. Coordinates nursing services with all other departm ents including Therapy.

• Develops, maintains, and implements policies and procedures that conform to current standards of nursing practice and operational policies while maintaining compliance with state and federal regulations.

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Administrator Job Description

• Accountable for the total operation of the assigned home in compliance with local, state and federal regulations.

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Asserting Privileges

• Privilege Log

• Long Term Peer Review and Quality Assessment and Assurance Protection Act, 745 ILCS 55/4

• Medical Studies Act, 735 ILCS 5/8-2101

– Webb v. Mount Sinai Hospital and Medical Center of Chicago Inc., 347 Ill. App. 3d 817, 825 (1st Dist. 2004)

– “The act does not protect against disclosure of documents generated in the ordinary course of business, even if the documents are subsequently used by a committee in the peer review process. Webb, 347 Ill. App. 3d at 825 (2004)

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Gathering Supporting Documentation

• Meet with the care givers in charge as soon as possible.• When going through the chart, look at the care providers

involved in any falls, wound care nurses, and anyone involved in infection control.

• Also look at whom was regularly assigned, even if not at a time in question (i.e. fall).

• They can talk about the resident’s overall condition and interactions with the family.


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• Obtain the address/contact information for former employees and try to speak with them at the onset of the case.

• If they are not willing to participate obtain their personnel file. It may show bias against the facility.


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• Obtain the letters inviting the family to care plan meetings and all sign-in sheets to see if the family attended.

• Obtain sign-in sheets for the visitor to confirm how often the family came and who visited.

• Look at photos from the activities department to see the resident and family’s participation in activities.


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Social Media Abuse in Long-Term Care Facilities

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Types of Social Media

• Snapchat

• Facebook/Facebook Live

• Instagram

• Twitter

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Criminal Prosecution in Nursing Homes

• Staff Members

– Nursing Staff engaging in criminal activity;

– Negligent supervision;

– Negligent Hiring;

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Social Media & Gathering Supporting Documentation

• Look at the social media searches for the family members and decedents.• Check to see posts from the relevant time• Whether they “checked in” at the facilities• Posts about the care

• Obtain the obituaries for the Decedent. See whom they directed donations to go to.

• Look at online surveys for the facility to see if the family left favorable reviews.


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V.Settlement Options & Negotiation Strategies

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Assessing Damages

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Pain and suffering damage testimony

• The Defense argues no documentation of pain means the resident did not suffer any pain

• Turn that Defense against them from the get-go

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Rules of the Road for pain documentation

• Establish rules regarding the frequency and documentation of pain assessments

• Initial Pain assessment

– Resident able to express pain?

• Family observations

– Pressure sore assessments

– Pain evaluations

– Orders for pain

– Monitor effects of pain medication

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Disability and disfigurement damage testimony

• Wounds

– Photos

– Smells

– Can’t be turned or placed on certain areas

– Restrictions on sitting

• Falls

– Photos of surgery, scars, swelling, discoloration

– Compare functional status before and after

• MDS

• Therapy notes76

Potential day in the life videos

• Where significant observable injury

• Plaintiff living

• Do right away

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Wrongful Death Damages

• Obtain any social security disability applications– often require certifications about whom the Decedent financially supported and what services they provided.

• Get receipts for services the family has had to buy to replace those provided by the Decedent.

• Question the valuation of services that can be financially replaced vs. companionship claims– is the only intrinsic value in their having that time with the Decedent.


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Questions?

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