Proving damages in nursing home cases.

For too long, too little has been done to protect the oldest and most vulnerable members of our population. Plaintiff lawyers can help change the status quo.

The burning candle of life is such a precious light in anyone's existence that no one has the right to extinguish it before it flickers out into perpetual darkness and oblivion.(1)

As the percentage of our elder population has grown steadily in the past two decades, the number living in senior care facilities has increased as well. Unfortunately, the number of reported cases of abuse and neglect in nursing homes has kept pace with the rising elder population.

Families with loved ones in nursing homes, shocked at the inadequate care their family members sometimes receive, are turning to the courts for redress. So, it is more likely now than ever that a personal injury lawyer will be asked to take on a nursing home negligence case.

The evolution of nursing home litigation in the last two decades has been dramatic and dynamic. This once niche practice has gone mainstream. Nevertheless, certain litigation techniques and strategies that work well in other personal injury cases do not cross over to the nursing home litigation arena. Traditional damage models simply do not work in these cases.

The maxim "You take the plaintiff as you find him or her" is one that is familiar to most attorneys. It is especially applicable in the nursing home negligence case.

Generally, the resident will have suffered no lost earning potential or lost wages. A resident already severely physically impaired is limited in requesting compensation for physical impairment. And a resident who has died may have few surviving beneficiaries to bring claims for wrongful death.

Assessing the potential for damage awards in these cases involves an analysis of the following factors:

* Can the physical and emotional injury caused by abuse or neglect be separated and proven apart from the resident's underlying disease or disability?

* How has the injury affected the resident's prognosis, including his or her life expectancy and ability to enjoy life?

* Is it possible to prove that a deceased resident's statutory beneficiaries are deserving recipients of compensation for wrongful death?

A nursing home resident's preexisting conditions are often so debilitating that any injuries caused by abuse or neglect may be irrelevant to the resident's condition, life span, or quality of life. Separating the harm caused by the alleged neglect or abuse from that caused by preexisting conditions involves detailed examination of the resident's condition not only at the time of the neglect or abuse but also in the days, weeks, and months preceding it.

The plaintiff's lawyer should investigate how long any preexisting conditions existed and whether they were successfully treated or controlled with medication. The lawyer should also determine whether these conditions were known to the defendant at the time of the resident's admission to the home. A nursing home that has accepted a patient with known preexisting conditions has, in effect, asserted that it can provide adequate care for that patient.

If medical testimony can show that a preexisting condition would have eventually led to the resident's death, the lawyer must determine whether the defendant's conduct lessened the ability to enjoy the life that remained or hastened the death. If it can be shown that the abuse or neglect accelerated death caused by a preexisting condition, defendants are generally held accountable. In Texas, a nursing home defendant can be held liable for a death that was accelerated by no more than a hour, a minute, or even a few seconds.(2)

Injuries caused by negligent or intentional omission of care fall into six primary categories:

* restraint injuries;(3)

* decubitus ulcers;

* severe dehydration and malnutrition;(4)

* exposure to the elements;

* falls and fractures;(5) and

* physical abuse and assault.

Restraint injuries

In these cases, it is important to emphasize the agonal nature of the restraint-related injury or death.(6) Deaths in these cases are often caused by asphyxiation--the resident hangs to death by the restraint. It is often a slow and painful way to die.

Death by hanging has for centuries been a punishment for those who commit heinous crimes. Plaintiff lawyers should stress this during trial. After establishing that the resident was not a person deserving of cruelty, testimony from a medical expert can highlight the agony associated with death by mechanical asphyxia.

The primary defense in these cases is based on evidence that the resident had heart disease. The defendant will claim that a heart attack caused the resident to slump or fall into the restraint and that the asphyxia was secondary to the primary cardiac event.

To combat this defense, plaintiff lawyers should look for physical evidence of asphyxiation. A common finding in the autopsies of people who have died by strangulation is conjunctival petechiae, small hemorrhagic spots in the eye.(7) Evidence of this in an autopsy report can lend credence to a claim of mechanical asphyxia.

Sometimes it is difficult for jurors to understand how a person could strangle in a vest restraint or the bars of a bed rail. The use of graphic visual aids to demonstrate how this happens is essential.

Decubitus ulcers

In no other type of elder care case is the cause of the alleged injuries disputed more than in a decubitus ulcer case. Peripheral vascular disease, diabetes, and other circulatory disorders are common among the elderly, and defendants often assert that these conditions contributed to the development of a resident's pressure sores. This is particularly true where residents have developed sores in their extremities.

The defense will often argue that bemuse the resident suffered circulatory or related disorders, the development of pressure sores was inevitable, regardless of the care rendered. An analysis must be made as to when the pressure sore developed and whether it can be proven that the sore appeared while the resident was in the defendant's care. Expert testimony and textbook evidence should be presented at trial showing how sores can be prevented, even in patients with compromised circulation.

Defendants also often claim that the patient developed similar injuries while a resident at another facility. Again, the implication is that the sores were inevitable. However, this defense can backfire, especially if the plaintiff's counsel can demonstrate that the resident's sores were effectively treated in the other institution.

Photographs, videos, and, to a lesser extent, descriptions of pressure sores contained in pathology reports are graphic and persuasive evidence. Jurors are often motivated more by anger than sympathy, and evidence of long-standing, unrecognized, inappropriately treated sores resulting in gangrene and septic shock is certain to anger most jurors.(8)

These pictures should be used early in litigation--for example, at depositions of the defense fact witnesses and experts during questioning regarding liability and causation. The repeated use of the pictures during these depositions will be especially valuable later at trial should the defendant assert that they are only being introduced for their inflammatory nature and that they are unduly prejudicial to the defendant. The plaintiff attorney can then counter that the pictures are admissible to show that the nursing staff knew of the deterioration of the resident's condition and failed to take appropriate action.

If pictures of the resident's wounds are not available, plaintiff's counsel can illustrate the severity of these ulcers by introducing textbooks containing pictures or by using anatomical models that can be customized to show the types, locations, and sizes of pressure sores. Witnesses' descriptions-such as "It was large enough to hold a grapefruit"--are useful too. While seemingly coarse and insensitive, this type of analogy will help jurors understand the nature and magnitude of the injury.

Medical records showing how often the staff reported an ulcer's status to the resident's doctor are essential to proving damages. The general rule is that the physician should be notified not only of the development of a pressure sore but of any change in the condition of the sore. The plaintiff's attorney should note any failure by the staff to do this.

Severe dehydration and malnutrition

Dehydration and malnutrition go hand in hand. Generally, one will not exist without the other.

A primary piece of evidence is the nutritionist's recommended nutritional intake quotas, which should be in the resident's records. A resident who has suffered dehydration and malnutrition is most likely not receiving the nutritionist's recommendations. If these records are not in the resident's chart, the plaintiff's attorney can argue that the staff was negligent in failing to establish a nutritional/dietary plan.

A common defense is that the recommendations are just that--they are not a physician's orders. This is a false defense. Almost every physician will testify that when a qualified nutritionist recommends, for example, 2,400 cc of fluid per day, that is the amount the resident needs to maintain good health.

A detailed review of records showing the resident's fluid intake and output will generally be of great assistance in determining whether the staff was meeting the resident's needs. These records can also help justify an award of punitive damages if the plaintiff's lawyer can establish that a resident was repeatedly given a small fraction of the recommended daily amount of fluid. The lawyer should also highlight any failure to perform clinical tests, like skin turgor and resiliency exams, to determine hydration levels.

The nutritional status of the resident can be determined by examining the records showing when the resident was fed and how much was consumed. Comparing these records to the nursing home's policies and procedures regarding feeding will punctuate the plaintiff's allegation that the resident's nutritional needs were neglected. These records can illustrate neglect if they reflect that the resident was undernourished for a continuous period leading up to or encompassing the time during which the alleged injuries occurred.

In cases where the resident has been moved from the nursing home to a hospital, the hospital records also may include two pieces of strong evidence of malnutrition and dehydration--low serum albumin and high levels of sodium in the blood.

Exposure to the elements

Relatives of nursing home residents often are unable to visit frequently. Therefore, they place an enormous amount of trust in the home's staff to monitor the resident and provide care and comfort.

The betrayal of this trust should set the tone for any case alleging a resident wandered away from a home or was improperly allowed outdoors. Where residents suffer from mental infirmities like Alzheimer's disease and were negligently exposed to the elements, jurors have been persuaded to award punitive damages.(9)

Evidence showing a resident was allowed to wander and suffer or die due to prolonged exposure to extreme elements is compelling. Testimony from geriatric psychiatrists who are able to describe the fear, hopelessness, and pain experienced by the elderly person can be severely damaging to the defendant's case.

Falls and fractures

Falls are common among the elderly,(10) and the resultant injuries can have a significant impact on a resident's health.(11) Many falls cause fractures, with hip fractures being the most commonplace. Hip fractures have a long recovery period, frequently require surgical intervention, and can result in long-term disability.

A typical defense is the claim that nursing home staff simply cannot watch every resident every minute of every day. To counter this, plaintiff counsel can assert that while the defendant's statement is correct, the home's staff-to-resident ratio was inadequate to provide sufficient monitoring to prevent falls.

If inadequate staffing is not an issue, the plaintiff's lawyer should determine whether there was adequate assessment of the resident's risk of falling and whether appropriate precautions like vest restraints, bed rails, and wheelchair lap belts were in place to prevent falls. Incident reports documenting a resident's prior falls can help show the nursing home's knowledge of the resident's risk of injury from a fall.

Physical abuse and assault

As in inadequate security litigation, forseeability is a crucial issue in any case alleging a resident was assaulted by a staff member or fellow resident. If no evidence shows that the home knew or should have known that the perpetrator would commit an assault, the case is substantially weaker than one in which this evidence exists.

Every state has regulations requiring nursing homes to conduct background checks on potential employees. In a staff assault case, hiring records can show whether the staff member was asked questions that might reveal violent propensities and whether appropriate background and reference checks were performed.

Because of low salaries and difficult working conditions in the industry, staff turnover in many homes is high. To fill positions quickly, many homes cut corners in the hiring process. Any evidence of laxity in performing background checks is helpful to the plaintiff's case.

The key to proving a patient-to-patient assault case is establishing foreseeability. Rather than directing the jurors' anger toward the aggressive patient, the plaintiff's attorney should try to present the patient as yet another victim of the nursing home's neglect. When a resident exhibits violent behavior, his or her physician should be alerted so that the resident can be tested, treated, and closely supervised.

Where a resident suffers from dementia or another mental disorder, the defendant may claim the resident could feel no fear, pain, or loss of self-worth associated with the assault. This is simply not true. It is of vital importance to establish that people who suffer from mental disorders can feel and express a variety of emotions.

Medical records showing prescriptions for pain medication can help to prove the resident suffered. These records may also contain notations of the resident's moaning or groaning or otherwise indicate feelings of emotional or physical pain and a need for relief. Pain management experts can provide helpful testimony in this area.

Our society values the right of every person to live and die with dignity. Publicity of cases involving elder abuse and neglect in nursing homes has increased awareness that many residents are denied this privilege and are simply "warehoused."

A resident's friends, relatives, and former coworkers can testify about how much that person was valued. This testimony, when juxtaposed with evidence of the neglectful or abusive care the resident received at the hands of the defendant's employees, can be very persuasive. Photographs, videos, and eyewitness descriptions of less than desirable living conditions are the plaintiff lawyer's best weapons and the defense lawyer's greatest fears.

It has been said that a society's strength can be measured by the way it treats its youngest, most helpless, and oldest citizens. This axiom reflects poorly on our nation, considering the care that many of our elderly citizens receive in nursing homes.

For too long, too little has been done to protect the oldest and the most vulnerable members of our population. It is time for a change. By ensuring that nursing home residents who suffer neglect and abuse receive adequate compensation for their injuries, plaintiff lawyers can help make that change happen.

Nursing home negligence documents from the ATLA Exchange

The documents listed below are available from the ATLA Exchange. For more information, visit the Exchange Web site at http://exchange.atla.org, or contact the Exchange by phone at [phone] or by fax at [phone].

Butler v. Brian Center Health & Rehabilitation/Tampa, Inc. Trial transcripts and expert depositions in a case alleging negligent care and treatment of a nursing home resident. (No. PN610.)

Cagle v. PeopleCare Heritage West Hills, Inc. The plaintiffs' complaint and the defendant's answer in a case alleging improper care of a nursing home resident. (No. PN493.)

Cliff v. KBC Health Center, Inc. Depositions of the plaintiff and the parties' experts in a case alleging a nursing care facility had failed to diagnose deep vein thrombosis. (No. LR431.)

Doe v. Ashwood Healthcare Center. Deposition of the plaintiff's nursing home expert in a case alleging failure to investigate employee backgrounds. (No. LR513.)

Doe v. Roe. The parties' motions regarding whether to introduce evidence of health department surveys and photographs of the plaintiff's decedent in a case alleging failure to adequately reposition a nursing home resident. (No. PN560.)

Foster v. Evergreen Healthcare, Inc. The parties' briefs in a case holding punitive damages are recoverable under Indiana's survival statute. (No. LR3533.)

Friday v. Texas Health Centers., Inc. The parties' settlement agreement and the plaintiffs' petition, interrogatories, and requests for production and admissions in a case alleging a nursing home had failed to diagnose and treat a resident's bowel obstruction. (No. PN539.)

Gibson v. Appleton City Manor. Deposition of the plaintiff's geriatrics expert in a case alleging failure to care for a nursing home resident's cast. (No. PN612.)

Rice v. Skyline Nursing Home. The plaintiff's second amended petition, attorney information sheet and request for information, and damage summary and analysis in a case alleging improper care. (No. PN522.)

L149 1MMB 

Notes

(1.) Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d 111, 116 (Tex. Ct. App. 1982).

(2.) See id.

(3.) See, e.g., Smith v. Gravois Rest Haven, Inc., 662 S.W.2d 880 (Mo. Ct. App. 1983).

(4.) See, e.g., Beverly Enters.-Fla., Inc. v. Spilman, 661 So. 2d 867 (Fla. Dist. Ct. App. 1995).

(5.) See, e.g., Hoover v. Innovative Health of Kan., Inc., 998 P.2d 287 (Kan. Ct. App. 1999).

(6.) See Steven Miles & Patrick Irvine, Deaths Caused by Physical Restraints, 32 GERONTOLOGIST 762 (1992).

(7.) See V.J. Rao & C.V. Wetli, The Forensic Significance of Conjunctival Petechiae, 9 AM. J. FORENSIC MED. PATHOL. 32 (1988).

(8.) See Beverly Enters.-Fla., Inc., 661 So. 2d 867 (awarding punitive damages for severe bed sores).

(9.) See First Healthcare Corp. v. Hamilton, 740 So. 2d 1189 (Fla. Dist. Ct. App. 1999).

(10.) NATIONAL SAFETY COUNCIL, INJURY FACTS (1999) (falls are the seventh leading cause of death among the elderly over 65 years of age).

(11.) See L.J. Melton & B.L. Riggs, Risk Factors for Injury After a Fall, 1 CLINIC GERIATRIC MED. 525-39 (1985) (finding 27 percent of elderly persons who suffer hip fractures die within a year of the injury).

J. Thomas Rhodes III is a partner in Lyons & Rhodes, San Antonio, Texas. Juliette Castillo is a nurse consultant with the firm.