Ensure justice in nursing home cases: substandard care of nursing home residents makes jurors angry. Know what to focus on so jurors feel empowered to right the wrongs your client suffered.

Cases of nursing home abuse abound, and juries often hold these facilities and their parent corporations accountable. Earlier this year, a North Carolina jury ordered a nursing home to pay compensatory damages for the death of an Alzheimer's patient who had been trapped in a freezer. In 2004, a Mississippi jury told a nursing home to pay compensatory and punitive damages to the family of a 72-year-old woman whose leg was amputated because of pressure ulcers. In 2001, an Arkansas jury re turned a verdict in favor of a patient who suffered from dehydration. How can you make sure the jury in your case will be willing to give your client the compensation he or she deserves?

Because of research conducted by jury consultants, we know what the jurors in those cases were thinking and what jurors like them will think in the future: Many nursing homes place making profits ahead of providing quality care to residents. Of the jury pool walking into the courtroom, 36 percent already believe that statement, and 44 percent strongly agree with it. (1) In addition, 75 percent of the jury-eligible population nationwide believes nursing home abuse is a significant problem today. The jurors walking into your courtroom already dislike nursing homes and think these facilities value profits more than the residents in their care--and you haven't said a word yet.

When talking to the jury, make sure the fundamentals are clear. First, retrain your thinking on damages. After all, what are they? Damages are money. Don't be afraid to tell the jury that you are asking them to award your client money, but make it clear that the money is representative: It either takes the place of something your client has lost or acts as a penalty for the defendant's willful misconduct. You will gain credibility by being candid but lose it if you fail to address the issue directly.

Why would jurors be willing to punish the nursing home company? Remember what they were thinking before they walked into the courtroom: 54 percent of potential jurors agree with the statement, "If I had to put a loved one in a nursing home, I would be afraid he or she would not be treated well," and 78 percent say the thought of living in a nursing home frightens them. (2) Jurors already are receptive to hearing about the damage the nursing home caused. In fact, most of them are so receptive to the idea, you may not need to cover these issues in voir dire.

The defendant's conduct

Nursing home cases often involve deaths and horrible injuries: pressure sores, dehydration, malnutrition, fractures, and brain injury. What is the best way to prove these damages?

Under the "old-school" analysis, popular 5 to 10 years ago, the focus was entirely on the plaintiff. But that's exactly what the defendant wants you to do--to talk about your client's injuries the whole time, including his or her medical condition while in the nursing home and the circumstances that brought him or her there.

Although this old-school theory plays on juror sympathy, it is a poor motivator. When you feel sorry for someone, you feel uncomfortable and powerless, like you can't do anything for them. If you can't do anything for them, why give them money? (3) Jurors feel so sorry for the plaintiff that they think money will not be enough to make up for the damage done, but it also makes them so uncomfortable that they view the plaintiff unfavorably.

Instead of focusing on the "what" of the nursing home injury, prove damages by focusing on the "why." Under the "new-school" analysis, show the jury why the injury occurred and why the nursing home conducts business as it does. You want your jury to be angry: "Anger motivates one who feels it to attack the source of the anger or, if that is not possible, to displace the attack onto another object.... In the context of legal judgment, the tendency to attack may take the form of an urge to punish a ... civil defendant." (4)

Nursing homes are chronically understaffed. According to a study commissioned by Congress and conducted by the Centers for Medicare and Medicaid Services, more than 91 percent of nursing homes in the United States have insufficient nurse aide staffing. (5) This study--sponsored by the federal government, not by plaintiff lawyers--found that more than 40 percent of nursing homes would have to hire 50 percent more nurse aides and nurses to reach minimum federal standards. (6)

Understaffing makes jurors angry, especially when you can show that the corporation is making a big profit--and therefore chooses to understaff its facilities. Seventy-four percent of the public agrees that nursing homes do not have enough staff. (7) In many instances, fastfood restaurants pay a better hourly wage than nursing homes do. That simple fact says a lot, and the jury needs to hear it. Jurors listen when you focus on the defendant's conduct: "In determining liability, jurors look to factors such as the defendant's hiring practices, staff treatment of patients and communication with family members, distribution of profits to patient treatment, and the defendant facility's 'report cards' from state inspections." (8)

Fraudulent charting--documenting care while the resident is out of the facility, for example--also makes jurors mad. According to one survey, 67 percent of jurors evaluating a company's conduct give greater weight to whether the conduct was ethical, while 30 percent give greater weight to whether it was legal. (9) One or two mistakes in a patient's record are not enough; to show fraudulent charting, there must be a consistent pattern. But false charting can be established in almost every case.

Show the jurors that your case is not about just one plaintiff; it is about how the community treats the elderly and infirm. Juries in nursing home cases set the standard for acceptable care. Use your case to reveal systemic problems. Is this the first time this has happened? What do the state surveys say about past conduct?

Showcase the nursing home's refusal to take responsibility. The harder the defendant fights you on the easiest steps in the litigation, the angrier the jury will be. Show how the nursing home chooses not to accept responsibility in the answer to your client's complaint, depositions, and requests for admissions. In your opening statement and throughout the trial, show that the plaintiff gave the defendant many opportunities to own up to its conduct, but it chose not to do so.

In some cases, a nursing home will, in fact, take responsibility for its actions. If the defense offers a stipulation to liability in your case, consider the consequences carefully. A stipulation in a strong case can actually weaken your case on damages, because it usually quells the jury's anger and plants the idea that the harm your client suffered might not happen again. Remember, there is no rule that you have to stipulate to liability. Even if you do stipulate, if you can show the nursing home has a history of refusing to take responsibility, the jury will know someone else probably will be harmed and will likely award appropriate damages.

In one example, an elderly man was placed in a nursing home because of his problems with balance. He couldn't walk, and he used a wheelchair for mobility. The nursing home held a wheelchair race as a social activity, and it put this man in the event. The first race went well, and the man won. The second race, however, took place on the grass, and the man wasn't buckled into his chair. During the race, he fell from his chair and broke his neck.

In the nursing home administrator's deposition, she adamantly and repeatedly swore that she would hold the same wheelchair race this very day because she felt so strongly the nursing home had done nothing wrong. That was exactly the point: The nursing home was not going to change its practice. In the end, the case settled.

Emphasize the nursing home's broken promises. When a family places a loved one--whether a parent, grandparent, spouse, or sibling--in a nursing home, they trust the home to care for and protect that person. All admissions contracts state what the nursing home promises to do for the resident: take care, protect, keep free from abuse, and enforce rights. If a nursing home promised the family it would take good care of their loved one and the nursing home breaks that promise, you want your jury to know it.

If you focus on the defendant's conduct throughout the case, what will the jurors think? They didn't like nursing homes in the beginning, and you have validated their suspicions: Nursing homes place profits over care.

Juror decision-making

Damages expert David Ball writes that four basic principles shape juror decision-making about damages: the degree of harm, the worthwhileness of a money award, the jurors' job (for example, to fix, help, and make up for), and the proportion of time plaintiff counsel spends focusing on harm and money. (10) Two of these are particularly important in nursing home cases: the degree of harm and the jurors' job (also known as empowerment).

Physical harm. Show any harm the resident has suffered. The severity of the harm, regardless of what it is, always drives the damages.

Empowerment. Unless you empower jurors to alleviate the harm done to your client by awarding damages, they will not give your client anything. Why should they? Jurors may think, "You and I are not like the plaintiff. That person was really sick. He didn't want to eat. He was going to die anyway. That's why he was in the nursing home in the first place--and his family voluntarily put him in the nursing home they're now suing."

To counter this attitude, you must convince jurors they will make a difference. As one litigation consultant has written,

   [J]urors are thinking of damages beyond
   the simple and tangible loss of economic
   support.... It appears that plaintiffs have an
   avenue for suggesting that the parameters
   of an award can extend more readily to
   noneconomic losses, such as loss of companionship,
   but also to the extent of empowering
   jurors to send a message to negligent
   nursing home operators and to even
   up the economic calculus by showing nursing
   home operators that saving money in
   the short term (by understaffing, for example)
   will not amount to saving money in the
   long term. (11)

Explain to jurors that the only way they can make a difference is to make the defendant take responsibility for its conduct and to refuse to let the defendant profit from its calculated negligence. Point out that pressure sores do not have to happen. Dehydration and malnourishment do not have to happen. No one needs to suffer or die this way. Remind jurors that if they award damages, they will send a message to the nursing home, and it might change the way it does business.

During jury selection, tell jurors why they should award punitive damages. It is important to let the jury know as soon as possible that the corporation's conduct was egregious. Tell them that what happened to your client is not an isolated event. Make sure they understand that the defendants have been doing this for a long time, they will continue to do this, and they will not stop unless the jurors make them answer for their conduct. (12)

Show patterns of wrongdoing and broken promises. From jury selection all the way through closing, you must make the nursing home's conduct personal to the jury, linking it to their community, parents, and friends.

Anchors and links

An anchor is an idea or set of facts used to firmly ground an issue into the juror's mind. The most important anchor in nursing home cases is the facility's policies and procedures. Of course, the jury's decision must be based on sound law, but the policies and procedures are more important to them. To nonlawyers, the violation of an esoteric statute is not necessarily egregious, but if the nursing home breaches the very policies and procedures it imposed on itself, jurors will be upset. Also, the law and the defendant's policies are often the same.

Links are the connections between facts in your case and the anchors. These are the facts you come back to time and again, in discovery and in trial, so the jury will remember them. For example, policies and procedures--and violations of them--can be linked to your client's injury. If you have a pressure sore case, for instance, look for violations of the protocol for skin care. The violations actually have to cause the injury, and the injury and violation have to be consistent with your overall case theme, including the all-important "why."

A case in point

The following case, successfully mediated in Kentucky, illustrates the impact of focusing on the nursing home's conduct and using anchors and links to calculate the damages. An elderly woman was admitted to a nursing home for rehabilitation of a broken hip. While there, she developed a stage IV pressure ulcer on her heel and another less severe pressure ulcer under her left calf from a catheter. Her chart showed that the ulcers went unreported for days and then, all of a sudden, according to the record, she had a stage IV ulcer. By that time, the woman's foot had to be amputated.

What are the damages in this case? The woman lost her foot, but she was doing relatively well. The case was going to mediation. The chart, the law, and the nursing home's policies and procedures were anchors in this matter, and the plaintiff's injuries were linked to the defendant's negligent conduct and its violations of policy, procedure, and the law.

The violations of law and regulations stacked up as follows (notice there's not a lot of focus on the plaintiff here):

* Kentucky law and federal regulations indicate that nursing home residents have the right to receive necessary nursing, medical, and psychosocial services to attain and maintain the highest possible physical and mental functional status. The records in this case indicated that there was a different nurse on each shift. Taking the number of shifts and adding up the instances in which the nursing home violated its duty to keep residents at the highest possible functional status amounted to 36 violations.

* The law on pressure ulcers states that a resident who enters a facility without pressure sores should not develop them; the nursing home is supposed to prevent new sores. The fact that the nursing home didn't prevent the woman's two pressure sores also indicated 36 violations of the law.

* The facility did not implement a regular program to prevent pressure sores, which meant 36 more violations.

* A nursing home is supposed to change a resident's position in bed every two hours. The records showed the facility-violated this law 19 times.

* The physician must be consulted in case of a serious accident or injury. The nursing home staff never told the doctor about the pressure ulcers until the day before the plaintiff's foot was amputated, which meant 36 more violations of law.

* The family has a right to be fully-informed of the resident's medical condition. The daughter had no idea about the pressure ulcer, adding 36 more violations to the list.

This is not rocket science. You can add up the violations, and so can the jury. In this case, these and other missteps by the nursing home amounted to a total of 313 violations of Kentucky law, and each violation was linked not only to the plaintiff's injuries but also to understaffing at the facility.

Violations of nursing home policies and procedures were equally numerous. As in many cases, most were the same as the violations of law.

The nursing home's policy requires that a skin assessment be conducted when the patient enters the home. It did not conduct one when the woman arrived; that was one violation. Staff is supposed to turn the patient every two hours; their failing to do so resulted in 13 more violations. The policy that the doctor be notified of skin problems is so important that it appears in the nursing home's procedures twice, but staff tried to blame the physician--an additional 31 violations.

In all, there were 364 violations of the nursing home's own policies and procedures in this case. Like the violations of law and regulations, these violations were linked to the woman's injuries and to the understaffing problem. Because the law is the same as policy and procedure, they clearly reflect the standard of care.

How many opportunities did the nursing home have to help this woman? Almost 700, but they simply did not have enough staff to ensure she received the minimum standard of care. That made the jury mad, and the defense did not see it coming.

To arrive at a reasonable figure for punitive damages in this case, a specific dollar amount was assigned to each of the 677 violations. Then the compensatory damages and attorney fees and costs were added. (In Kentucky, attorney fees and costs may be included if the nursing home did not tell the doctor or the family of the problem.) After the nursing home was faced with these costs, the case settled without going to trial.

What's the lesson here? To get full damages in a nursing home case, focus on the defendant's conduct (whether the defendant is the individual nursing home or its parent corporation), why the injuries occurred, and what could have been done to avoid them. Use anchors and links to show jurors what went wrong, and empower them to hold the defendant accountable and provide fair compensation and justice for your client.

Notes

(1.) Kenneth Broda-Bahm, Jury Selection in Nursing Home Cases, MARCH 2005 ATLA LITIGATING NURSING HOME CASES SEMINAR, at R-2.

(2.) Id.

(3.) See generally NEAL FEIGENSON, LEGAL BLAME: HOW JURORS THINK AND TALK ABOUT ACCIDENTS 74-80 (2000).

(4.) Id. at 81.

(5.) CTRS. FOR MEDICARE & MEDICAID SERVS., APPROPRIATENESS OF MINIMUM NURSE STAFFING RATIOS IN NURSING HOMES; A REPORT TO CONGRESS, PHASE II FINAL REPORT 1-20, 3-33 & 3-35 tbl.3.7 (2001), available at www.cms.hhs.gov/medicaid/reports/rp1201-1.pdf (last visited Aug. 23, 2005).

(6.) Id. at 3-33 & 3-35 tbl.3.7.

(7.) KAISER HEALTH POLL REPORT, VIEWS OF NURSING HOME MANAGEMENT 8 (June 2005), available at www.kff.org/healthpollreport/june_2005/8.cfm (last visited Aug. 23, 2005).

(8.) SHELLEY SPIECKER & KEVIN BOULLY, THE CURRENT CLIMATE FOR TODAY'S NURSING HOME DEFENDANT, at 2, available at www.persuasionstrategies.com/Docs/ NursingHomeLitigation.pdf (last visited Aug. 23, 2005).

(9.) Id. at 4.

(10.) DAVID BALL, DAVID BALL ON DAMAGES 1-3 (2001).

(11.) Broda-Bahm, supra note 1, at R-5.

(12.) See BALL, supra note 10, at 123-30.

RELATED ARTICLE: ATLA offers tools for nursing home cases.

ATLA provides a variety of resources for member attorneys handling nursing home negligence cases.

Litigation packets. Available from the ATLA Exchange, nursing home litigation packets include "Inadequate Staffing at Nursing Homes: Dunson v. Blue Ridge Nursing Homes, Inc.," "Nursing Home Management Deposition Collection: Reaves v. Manor Care, Inc.," "Lavalis v. Copperas Cove," "Standard of Care: Beverly Enterprises Deposition Collection," and "Discovery Abuse: Lessons Learned from Nursing Home Cases."

Document library. The Exchange houses the Nursing Home Litigation Group document library, open to all group members. Users can browse, access, and download materials from the library, which contains more than 1,500 court documents and depositions.

Recorded seminars and teleseminars. ATLA Education and the Nursing Home Litigation Group recently cosponsored a two-day nursing home seminar that addressed valuing your nursing home case, using focus groups in your practice, and uncovering nursing home assets. Also, a recent teleseminar series of six two-hour programs addressed topics ranging from corporate structure and accountability to juror bias and punitive damages.

Audio and video recordings of ATLA Education seminars and audio recordings of teleseminars can be purchased by calling PlaybackNow at [phone] or by visiting www.playbacknow. com/atla. For information on litigation packets and the document library, call the Exchange at [phone] or log on at www.exchange.atla.org.

MARTHA MARIE EASTMAN practices law in the Eastman Law Office in Louisville, Kentucky.