Defending Nursing Homes
When this firm was invited to start defending nursing homes, twenty years ago, I was struck by how different it was from the medical malpractice work we had been doing. Representing nurses is different from representing doctors. Doctors implement orders and nurses follow them, so their mindset is different. Doctors are more likely to have their own insurance policies, and because some require the doctor’s consent to settle, medical malpractice cases are more likely to go to trial. Nurses on the other hand are less likely to be familiar with, and more apprehensive about, being the subject of litigation since they are but one employee among many on the same nursing home policy. Though the jury will be given a bleak picture of the “big bad nursing home”, the witnesses at trial, the human faces of the facility, will be nurses, which is fortunate. A recent Gallup poll showed that, for the 15th straight year, nursing topped the list of professions viewed as the most honest and ethical. We have seen attorneys representing co-defendant doctors treat our clients with condescension. That is a mistake.
Legally the main difference in the defense of nursing homes is that, in New York and New Jersey and several other states, liability has become statutory. Public Health Law §2801-d makes nursing homes liable for depriving any “right or benefit” established by any statute, rule, regulation or code. Usually it is federal regulations that are cited. For example, 42 CFR §483.25 requires the facility to take care to prevent pressure sores (subsection (b)) or “accidents” (i.e., falls) (subsection (c)). Section 2801-d then goes on to state that it is “an affirmative defense” that all care was given reasonably necessary to prevent or limit the claimed injury. What all this means is that in effect, the usual burden of proof is reversed. All plaintiff has to show is that a pressure sore appeared, or the resident fell. It then becomes the task of the defense to show that all care reasonably necessary was taken. This is not to say that such cases cannot be won. It is not unusual for us to get a case dismissed based on a showing of reasonable care. But the classic “two-part question” in a medical malpractice trial – 1) “was there a departure from accepted standards of medical care?”; 2) “did this departure cause injury?”– is not relevant.
Due to §2801-d, defending nursing homes thrusts one into the maze of regulations promulgated by Medicare, and their state equivalents. A recognized (and admissible in evidence) resource is the Long Term Care Survey put out by the American Health Care Association (sometimes called the “watermelon book” because of its red and green coloring). This massive tome has extensive commentary on each federal regulation (“F-tag”). The section on pressure sores, for example, runs to over 70 pages in the copy we have.
Another feature of nursing home litigation is the effect of penalties assessed against the nursing home by regulators for various deficiencies as to the treatment or the facility. Such penalties are often grossly out of proportion to the trivialities uncovered, and in the regulatory environment it is often not advantageous for the nursing home to appeal them. Unfortunately by statute such findings are often admissible in evidence.
If it is a pressure sore case, photographs of the sores make an impression on the jury and will get into evidence even if the sores were completely unavoidable. Some years ago at a deposition plaintiff’s attorney waved such photos at me and said, “Yes, your facility saved my client’s life, but all I have to do is show these to the jury and I get a million dollars!” He might have been incorrect as to the amount but he basically had a point. And suing nursing homes has become a growth business. In recent years, with the help of negative publicity as to a few abuses, large verdicts have been obtained in places like Florida and Texas. Plaintiff’s firms in these states started financing plaintiff’s firms in New York with the hope that similar verdicts could be reached here. Defense firms like ours have been able to manipulate things so that verdicts were held under control – mostly by working up the defense to settle cases for a reasonable amount and refusing to take verdicts on dangerous cases. We have been very selective as to the cases that would go to trial and the motions we would make.
Finally defending nursing homes involves psychological factors not present in other litigation. These facilities, providing long-term care for the elderly, are the setting for the trajectory of decline marking the end of life. The plaintiff is usually the family representative in charge of the estate, and the other witnesses are family members who visited the deceased in the nursing home. Even nurses sometimes make mistakes, and some cases against nursing homes have merit. But often we find that the children (or grandchildren) just cannot face the fact that their mother or grandmother is no longer with them and look to blame the nursing home. This should be a task for therapists but unfortunately in today’s society it gets played out via litigation, sometimes to great expense. The plain fact is, with an elderly person who is no longer able to move around in bed, pressure sores become unavoidable. Falls also are unavoidable. Some residents are not physically able to stand but due to dementia they think they can, and the facility is not permitted to restrain them. Despite the placement of bed alarms or chair alarms, the resident gets up (and falls) before staff can rush to their room. And finally the plain fact is that at some point death cannot be forestalled.
With all this in mind, defending nursing homes is its own specialty. A doctor is responsible only for a few pages in a resident’s chart, mostly lab reports and his own orders, and will not be expected to have looked at the (often voluminous) nursing and therapy notes. But in defending a nursing home every page of the chart is at issue, and some charts run to 10,000 pages or more. Almost every chart has minor inconsistencies, and we have to prepare the witnesses for getting badgered by plaintiff’s counsel even if the inconsistencies are irrelevant to the resident’s care or the issues in the case. Sometimes the problem is good nursing but bad doctoring, and because the facility is not liable for the acts or omissions of the attending physician, it has to be established that if there was a bad result the quality of nursing was not at fault. Arbitration clauses, which (despite the back-and-forth in Washington) are still permissible in residency agreements, might have to be invoked. Care plans have to be shown to be established and implemented. Finally witnesses have to be interviewed and prepared for testimony. This last is not usually problematic. A nursing home chart is a novelette of one person’s life over the space of months or years. We get a sense of the resident’s personality, his/her likes and dislikes, how they interacted with others. Our nurses may have seen hundreds of persons pass through their care, yet we are struck by how often they have a distinct memory of the resident at issue. This is also true of other nursing home employees such as the social workers, physical therapists and CNA’s. Their testimony, which shows the extent they cared for the resident not only as a patient but as a person, strengthens our defense.