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Self-Protection Against Lawsuits.

An experienced defense attorney tells how to fend off today's escalating legal attacks on nursing homes

Twenty years ago lawsuits involving nursing homes were rarely taken seriously by attorneys. In the minds of most, nursing home residents were old and frail, and the public generally accepted the inevitability of death. Today, this sentiment has shifted dramatically. Juries now have a new frame of mind, with an eye toward punishing nursing homes that do not comply with today's government regulations--or an even higher standard of care: not just what facilities do, but what they know, or should have known. And, these days, it's costing nursing homes millions in judgments and legal fees.

In a recent case, a Houston jury awarded $65 million to the estate of a 98-year-old woman and to her 80-year-old daughter, who saw her mother raped by a fellow resident in a LaPorte, Texas nursing home. In this case, the nursing home was aware, through its own employees, that the perpetrator had been previously observed masturbating in public places and displaying other odd sexual behavior. A memo from the man's psychiatrist stated that this individual could pose a danger to nursing home residents. On the other hand, testimony by the facility's staff, including its top administrator, indicated they had been told by the admitting physician of the alleged rapist that, even though the patient had one prior incident of sexual misconduct, he would be a model of behavior.

The jury, recognizing that the home's employees were disgusted with the lack of care shown by the facility's upper management, awarded $2.5 million for the 98-year-old's conscious physical pain and emotional torment and suffering. The jury further found that both the admitting physician and the facility had sufficient awareness of the risk and the possibility of substantial injury to the resident. The jury also found that the facility and physician had actual subjective knowledge of the risk involved but, nevertheless, had proceeded with conscious indifference to the rights, safety and welfare of others. The finding against the doctor was $10 million in punitive damages, and against the facility, $50 million in actual damages.

There was one more significant finding in this case for both defendants. The jury found malice in the conduct of the defendants, based on a "knowing injury" to an elderly or disabled individual.

Scenarios like this are all the more disconcerting when one factors in the role of a nursing home's insurance carrier. After a $5 million settlement was reached in a Galveston County case, the defendant's insurance company filed for a declaratory judgment that stated its "habitual neglect" clause had been violated under the facts and circumstances of the case. The insurance company, therefore, voided its coverage. This lawsuit is currently pending before the courts.

There is a rarely acknowledged truth in this case: These sometimes harsh exclusionary clauses protect the public in very significant ways. Insurance carriers that underwrite coverage or rate a facility at high premium levels for habitual neglect actually force nursing home operators to elevate their standards.

In the end, nursing homes must decide whether compliance with the law is cheaper than any possible jury award for habitual neglect. In the end they will find, in all cases, that compliance is cheaper.

Compliance begins with a fundamental understanding of the role of nursing homes and its impact on residents and families:

* A nursing home must be viewed as a home. This philosophy must be shared with a resident's family at the initial contact.

* Nursing homes must realize that, although families and residents are likely to assume that their physician will provide quality medical care, this same level of confidence does not necessarily extend to the ancillary staff.

* Admitting a resident is an emotional traumatic experience for the adult children, as well as for the resident. The two major negative emotions for the children are guilt and the sense of losing control.

* A resident might struggle with his/her new surroundings, with some feeling a sense of abandonment, loss of control and depression.

* The nursing home staff needs to be aware of the resident's likes and dislikes, such as food choices, and functional problems, such as swallowing difficulty.

There are a number of other practical issues nursing homes should address in order to minimize risks of litigation:

* The nursing home's administration must identify nursing assistants and CNAs who are able to function as surrogate caregivers. An environment as close to "at home" as possible and a chain of command from RNs to the CNAs should be established to identify problem areas promptly and accurately. A CNA should assume care for the same resident on an ongoing basis and not be switched from floor to floor. As a resident's problems are identified, they should be flagged and promptly addressed.

* The MDS and RAPs are required anyway; make them work for you.

* Family emotions must be dealt with early on and with sensitivity. If the children cannot accept the reassurance of the facility administrator, then an avenue for referral should be available for counseling--either at the nursing home or in the community. However, follow-up by the administrator is critical.

* Early intervention by the nursing home staff and physician is critical to addressing negative emotions. Identifying residents' depression and dementia early on and providing proper treatment will alleviate major problems in the future.

* The family should be encouraged to point out appropriate food choices and advise staff of the resident's personal preferences, such as favorite magazines, TV and/or radio stations or nicknames. If the resident has swallowing difficulties, then evaluation by a speech therapist is critical. Residents who are at a high risk for malnutrition, pressure ulcers, falling and wandering should be targeted for more intensive monitoring.

* CNAs must be trained to recognize subtle changes in the resident's mental status, skin condition and breathing patterns, and when and how to inform supervisors of these changes. It is imperative that the attending physician be notified of such matters in a timely manner and that this notification be documented in the resident's records.

Some other suggestions:

* Do not chart by exception, i.e., recording only unusual events. This leaves the impression that you are not consistently observing and caring for the resident. Even a weekly note will help in the defense at trial.

* Care for your documents. Records should not be housed in the parking lot storage shed. Keep a close account of resident charts, census reports, payroll records, staff schedules and reports required bylaw. You can be sure that these documents will be sought by plaintiffs attorneys at the initiation of a suit. Routine document organization will save enormous tension and time when discovery gets under way.

* A facility's daily, hands-on care can present the biggest challenge for a nursing home's defense. Therefore, training should be focused on day-to-day care providers as much as on RNs and other skilled individuals. The facility should focus on having hands-on personnel trained in looking for basic changes and in observing ongoing characteristic changes in a resident's daily activities.

* The facility should have, ideally, a full-time medical director and a full-time nurse practitioner with the ability to monitor and evaluate residents for change and irregularities. The nurse practitioner should evaluate each resident each week. A competent clinical pharmacist should be part of the team looking for signs of dementia, depression and medication-related problems. The pharmacist should be more than a consultant; he/she should be actively involved in the ongoing treatment of all residents. The same goes for the dietitian/nutritionist. All of these professionals must work closely with each other and use the observations made by those employees who see the residents daily.

* The same group of CNAs and other staff should be assigned to the same residents shift by shift.

And the best advice for a nursing home administrator? Don't get lulled into a false sense of security. Just because your facility hasn't been the target of civil litigation before doesn't mean that it won't happen. You can never be completely shielded from the prospects of civil litigation. You can, however, minimize your risks.

Jay D. Hirsch is a shareholder with the Houston-based civil law firm of Hirsch Robinson, P.C.
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Author:HIRSCH, JAY
Publication:Nursing Homes
Geographic Code:1USA
Date:Oct 1, 2000
Words:1364
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