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Creative discovery in nursing home cases.

Photographic evidence and witness testimony can help the jury understand the patient's experience.

Damage recoveries in nursing home cases can often be limited by statutory caps, lack of lost income claims, and difficulty demonstrating significant economic losses. To counteract these factors, discovery should be tailored to develop advantages that may be unavailable in traditional medical negligence cases.

Careful investigation may uncover photographic evidence of injury, neglect, or abuse that can make the nursing home resident's pain and suffering vivid for the jury. The nursing home may have a policy that requires it to photograph pressure ulcers and other injuries, or family members may have taken pictures. Former nursing home employees are sometimes the best witnesses a plaintiff can have, and nursing home administrators may seem indifferent or arrogant to a jury.

The nursing home industry is one of the most heavily regulated in the country. Homes must agree to abide by complex federal and state laws to be licensed, certified, and paid. A working knowledge of the pertinent statutes and rules is essential for planning effective discovery.

First, the plaintiff attorney should be familiar with the federal Omnibus Budget Reconciliation Act of 1987 (OBRA 1987).(1) Violations of its provisions can form the basis of a case.

Homes that receive federal funds must comply with federal laws stipulating that residents receive a high quality of care. The requirements are, in part, detailed in the Code of Federal Regulations.(2)

Under the regulations, nursing homes are required to

* develop comprehensive care plans for each resident;(3)

* conduct initial and periodic comprehensive assessments of each resident's functional capability;(4)

* prevent the deterioration of the resident's ability to bathe, dress, groom, transfer, ambulate, toilet, eat, and use speech, language, or other functional communications systems;(5)

* ensure that residents do not develop pressure ulcers and, if they do, provide the necessary treatment to promote healing, avoid infection, and prevent new ulcers from forming;(6)

* have sufficient nursing staff to attain and maintain the highest practical physical, mental, and psychosocial well-being of the resident;(7) and

* ensure that residents maintain adequate nutrition.(8)

The attorney should determine if there are any violations of these or any other regulatory requirements and then list them in the pleading.

States have also adopted regulations to govern nursing homes.(9) These rules can provide fertile ground for causes of action. For example, in Missouri, a consumer can report a nursing home violation to the attorney general's office within 180 days of an incident and request an investigation and prosecution. If the attorney general fails to investigate and prosecute, the consumer may file a separate cause of action regarding the violation and request damages and attorney fees.(10) If the attorney general does investigate, the plaintiff attorney should acquire the file.

Missouri, Kansas, and other states with Freedom of Information statutes allow discovery of public records relating to investigations of nursing home regulation violations. Complaint investigation reports and other public records regarding a facility or its parent company should be obtained. These records may show a pattern of resident mistreatment and regulatory noncompliance by the facility. This information can support allegations of breach of contract; inadequate staffing; or negligent hiring, training, and retention against a nursing home or its owner.

Getting started

Useful information about the nursing home industry is available from a wide variety of sources to attorneys who are beginning work on a negligence case.

Support and advocacy groups. Several organizations provide information to the public about the nursing home industry. They also provide updated information regarding state legislation affecting the industry and publicize violations and investigations of specific homes and ownership groups. Plaintiff attorneys should take advantage of these resources.

For example, one issue of the newsletter published by the Missouri Coalition for Quality Care(11) listed all nursing homes in the state cited in the previous quarter by the Missouri Department of Family Services for violations of state regulations regarding patient care and treatment. The newsletter provided the name of each facility, the operating company, the registered agent for service of process, a description of the violation, and an account of the legal action taken. This information could lead to discovery of public records regarding those nursing homes and their operating companies.

Government resources. The federal government, particularly the U.S. Department of Health and Human Services, can be a source of useful information. Its Agency for Healthcare Research and Quality (AHRQ), formerly the Agency for Health Care Policy and Research, was established in December 1989 under OBRA 1989 "to enhance the quality, appropriateness, and effectiveness of health care services and access to these services."(12) The agency publishes clinical practice guidelines on topics such as treatment of pressure ulcers.(13) These guidelines, written by blue-ribbon panels, can be used to prepare and cross-examine experts.(14)

The Guidelines Technical Report contains complete supporting materials for the clinical practice guidelines, including background information, literature reviews, research recommendations, and a comprehensive bibliography.(15)

The Internet. The Internet can provide mountains of background information on the nursing home industry generally, as well as specific information about medical issues and potential defendants.

The Web site of the U.S. Administration on Aging is a good place to get general information about national and state long-term care organizations and associations.(16) This site provides links to organizations such as the Joint Commission on Accreditation of Health Care Organizations. On its Web site, the commission provides a form for making complaints about health care organizations and posts its monthly newsletter, which discusses quality of care and accreditation issues.(17)

Other useful sites include the National Citizens' Coalition for Nursing Home Reform, which is devoted to "consumers and advocates who define and achieve quality for people with long-term care needs."(18) This organization offers publications and links to state ombudsmen and citizen advocacy groups.

The Web site of the Nursing Home Abuse and Neglect Information Center recognizes that "nursing home abuse and neglect have become widespread and a growing epidemic."(19) The site calls itself a place for consumers to "gain important information on nursing home abuse and neglect, what to look for, and what can be done about it"--information that can be helpful in pursuing a nursing home case.

The Internet is also useful for tracking down information about the corporations that own nursing homes. Often, these companies publicize themselves on the Web and may list financial data, members of the board of directors, and other information that could help during a deposition.

After doing some research, it is easier to form a discovery plan that can be used before and after filing suit.

Discovery before filing

Consumers injured in products liability, personal injury, or medical negligence cases generally do not contact an attorney until the negligence has occurred and damages have been sustained. This is not always true in a nursing home claim.

It is not unusual for the loved ones of a nursing home patient to contact an attorney within days of a negligent or abusive act, while the patient is still a resident in the home and subject to the same conditions. The negligence may be recent or still in progress. The patient's visitors may have witnessed the acts, or a staff member may have notified relatives of a problem.

The trial lawyer should begin discovery as soon as he or she is contacted by a potential client or client representative. Someone at the scene may be able to gather critical information and documentation while the patient is still in the care of the home.

Discovery before filing should focus on the following sources of information.

Medical chart. Under federal law, a nursing home must, upon the request of an authorized representative, produce a patient's medical record within 48 hours.(20) Frequently, patients have given power of attorney to a close relative who can make medical decisions for the patient. That person can require the home to produce records within the 48-hour limit, or an attorney can acquire the records with proper authorization.

The medical records authorization form used to request records should contain the following language:
 If you are a Medicare or Medicaid-certified nursing home or long-term care
 facility, please be advised that this request is made pursuant to 42 C.F.R.
 [sections] 483.10, which states in pertinent part: "The resident or his or
 her legal representative has the right (1) upon an oral or written request,
 to access all records pertaining to himself or herself, including clinical
 records, within 24 hours (excluding weekends and holidays); and (2) after
 receipt of his or her records for inspection, to purchase at a cost not to
 exceed the community standard, photocopies of the records or any portion of
 them upon request and two working days advance notice to the facility.


Early acquisition of a patient's medical chart may lead to the discovery of altered records. In a recent case, the author's firm was contacted by the 70-year-old daughter of a nursing home patient. Her mother had been admitted to the facility for rehabilitation after an above-the-knee amputation of her left leg.

Hours after her arrival at the home, nurses performed a complete admission physical. However, the record was inconsistent--one part indicated that the patient did not have any decubitus ulcers, yet Stage I-II decubitus ulcers were described elsewhere on the same page.

The patient remained in the home for 14 days. During that time, the original Stage I-II decubitus ulcers progressed to infected Stage III ulcers, which required her to be treated for sepsis in the hospital. She died a few weeks later.

The daughter came to us shortly before her mother was transferred to the hospital because she was concerned that her mother's condition appeared to be deteriorating rapidly. We advised the client to request the medical chart immediately, and she got the chart the day her mother went back to the hospital.

After filing suit, we obtained a second set of records. They included an altered copy of the admitting physical record. In the initial set of records, a nurse indicated there were no pressure ulcers at admission, however, another nurse described ulcers. On the same form in the second set of records, the first nurse had gone back to the chart after the patient was transferred to the hospital and indicated there were Stage II ulcers present at admission. The record became a central issue in the case. The nurse who had altered it did not know the plaintiff had both the original and altered versions.

Alterations are most likely to be made when the staff becomes aware of the potential for litigation. If the plaintiff obtains a set of the records before that realization sets in, it is easier to determine whether alterations were made after the patient was discharged or died.

Family and witness interviews. Witnesses to abuse are often shocked that such things could happen to their loved ones. They are also frequently guilt-ridden because they have entrusted a family member to what may now appear to be the uncaring staff of an indifferent corporation. Witnesses should be encouraged to report the violation to the appropriate state agency and request an investigation or prosecution.

These witnesses may be able to produce invaluable information for later use. They can tell how the resident has been affected by the neglect or abuse. They may have had discussions with staff members about the problem. They should put their recollections in writing as soon as possible. If they made a written complaint to the facility administrator, they should get a copy for the plaintiff attorney and keep the attorney advised of the complaint's resolution.

Witnesses may be able to provide the names of sympathetic or involved staff and describe their actions. If the resident remains in the nursing home after the incident and can be interviewed, the interview should be arranged immediately while the memory is fresh. For future reference, witnesses should also begin keeping detailed notes on the resident's condition and the treatment he or she receives.

Photographs. Most people have never seen a decubitus ulcer, and verbal descriptions seldom do them justice. Photographs are compelling evidence when physical abuse or ulcers are involved. Photographs of an elderly patient's broken nose, black eyes, and split lips are more vivid than a clinical discussion about nursing home abuse or a fall in the bathroom.

Nursing homes or long-term care facilities may have protocols that require them to photograph ulcers and other physical wounds or injuries. An early set of photographs can graphically illustrate how much a patient's condition had been allowed to deteriorate.

Former nursing home employees. One challenging aspect of handling these cases involves locating staff members who were involved in the patient's care. Day-to-day care in a nursing home is generally provided by a cadre of licensed practical nurses (LPNs) and certified nurse assistants (CNAs) who are often undertrained, underpaid, and highly mobile. These workers, who see the inner workings of the facility, are sometimes hostile to the facility's administration.

As witnesses, they can be a gold mine of information--if they can be found. LPNs and CNAs often work for agencies that provide temporary or contract workers to the facility. They move from place to place and job to job, making them difficult to track down. Once they are located, however, they should be extensively interviewed, preferably by an investigator or paralegal who can testify about their statements, if that becomes necessary.

However, some state laws limit a lawyer's ability to contact former and current employees of a potential defendant. Some states, like Kansas, follow a less-restrictive federal interpretation based on the Rules of Professional Conduct.

In Missouri, attorneys are prohibited from contacting current employees of a corporate defendant as well as former management-level employees who can make binding admissions against the interest of the corporation.(21)

California has, in at least one case, held that counsel's communication with a former general manager who owned 25 percent of the corporate stock was prohibited by Professional Conduct Rule 2-100.(22)

Discovery after filing

After the complaint is filed, a nursing home case can generate large amounts of documentary evidence. Often, residents have been in the facility for years, and they may have had several significant hospital admissions. Because nursing homes usually claim that residents' age and preexisting medical conditions caused or contributed to the deterioration of their health, it is advisable to collect and review all records.

Medical records are not the only pertinent documents to collect. If possible, documentary evidence collected through discovery should include the following:

* the entire medical chart from the facility, including lab reports, medical correspondence, and all records from any hospitalizations;

* all administrative documents, such as contracts and insurance information relating to the resident;

* the patient's Social Security medical file, if applicable;

* the facility's procedure and protocol manuals and videotapes;

* staff training manuals and videotapes;

* incident reports relating to the involved resident;

* photographs and surveillance videotapes;

* state inspection or review reports and responses by the facility;

* personnel records of involved staff members;

* billing records;

* notes from meetings of committees, such as "family counseling committees" or "patient grievance committees," in which residents or family members made complaints or discussed issues relating to care;

* visitors logs or sign-in sheets;

* job descriptions of the director, nursing director, charge nurse, LPN, CNA, and other key personnel;

* names of board of directors members for the facility or parent company;

* organizational chart; and

* financial and other documents filed with the secretary of state.

Nursing home staff members do not keep notes the way hospital staff do. Nursing home doctors may only see a patient every 30 to 60 days. They give most of their orders by telephone and sign them during infrequent visits to the facility, which may be one of many they visit on a rotating basis. Physician progress notes are usually sparse.

There may be gaps of days or weeks in nursing progress notes as well. When they are written, the notes may consist of brief, general statements about the resident's condition. Sometimes they are only standardized check-off sheets completed by LPNs or CNAs.

State regulations usually require periodic assessments of a patient's condition, and the chart should be thoroughly reviewed to determine if the regulations have been satisfied.

Further, nursing staff members are required to timely note in the chart and notify the patient's doctor when there is a significant change in the patient's status. Look for nurses' notes indicating they called the doctor and when the doctor responded, notes describing a change in status when no action is taken, and physicians' progress notes to see if the doctor has altered medication or treatment in response to the patient's changed status.

The attorney should ask the defendant to provide the names and last known addresses of all LPNs and CNAs who provided any care to the resident during the pertinent period. The defendant should also identify and provide tables of contents and indexes for all manuals, protocols, policies, and procedures. After reviewing the tables of contents and indexes, the attorney should request production of those sections of the manuals needed. The defendant should also be asked to identify and provide all computerized data and notes concerning the resident.

Requests for admissions can be used liberally to obtain admissions of undeniable medical facts. For example, a defendant might be asked to admit that a patient was "transferred from defendant's facility to XYZ Hospital on January 1, 1999, with an admitting diagnosis of severe dehydration and Stage III decubitus ulcers on the sacrum."

Requests for admissions provide great charts and exhibits for trial if properly phrased and drafted.

From the secretary of state's office, the attorney should obtain all corporate filings and documents related to the nursing home and its ownership. Information about transfers of ownership should be investigated. The investigation might indicate that the previous owner was in financial difficulty, which might explain why shifts were understaffed and workers were disgruntled.

Records at the local courthouse should be checked for other suits against the nursing home, its ownership, and board of directors members--including suits that do not on their face appear relevant. A recent suit check regarding a nursing home revealed that there were approximately 20 cases filed, some for breach of contract claims by unpaid vendors, others for employment discrimination.

In an employment discrimination suit, there is obviously a disgruntled employee who may be happy to share information about the corporate defendant and the inside workings of the nursing home. This employee might provide information to which the plaintiff attorney may not otherwise have access.

Suits against the corporation's board of directors, administrators, nursing directors, and other personnel may also turn up useful information, such as employment discrimination, sexual harassment, and worker's compensation cases that may indicate unhappy employees or provide information about working conditions inside the facility. And it does not hurt to check driver's license information for as many employees as possible. If a person has several drunk driving arrests, it might indicate a drinking problem. This information might be relevant to how the employee performs on the job.

Discovery in these cases is full of opportunities to be creative. Accounts from relatives, early discovery of medical records, and interviews with current and former employees can uncover powerful evidence for trial.

Federal regulations

Under the regulations, nursing homes are required to ensure that residents maintain adequate nutrition.

ATLA program educates public on senior safety

Educating the public about what lawyers do to protect and help the elderly has been a focus for ATLA President Richard Middleton. The Safety for Seniors public education campaign is being developed to help protect against physical abuse, neglect, and consumer scams aimed at the elderly.

"One of the areas of focus this year has been our increased recognition of the need to provide a safe and healthy environment for the elderly," said Middleton. Areas of concern include medical services, nursing home abuse, problems with assisted living facilities, guardian ad litem issues, and monetary schemes to separate the elderly from their assets.

ATLA has formed a Safety for Seniors Committee, cochaired by Leslie Nixon of Manchester, New Hampshire, and Jim Ronca of Harrisburg, Pennsylvania. The committee has discussed a number of actions, such as creating People's Law School education modules on elder law, developing a model caregivers contract, reviewing state laws on nursing home residents' rights, and forming liaisons with state and national groups that serve the elder population.

"Through the identification and recognition of issues important to the elderly and through support of the rights of senior citizens, we hope to work with seniors and organizations representing them to improve our society for this segment of the population," said Middleton.

At the Annual Convention in Chicago, July 29-August 2, ATLA will hold an education seminar focusing on medical issues and consumer scams that regularly plague the elderly. The Safety for Seniors Committee will present a session to train lawyers on how to effectively represent the elderly in their communities. Experts and lawyers will discuss how to represent these clients in cases involving premises liability, medical errors, and consumer fraud, and how to help clients obtain and retain their Medicare/Medicaid and Social Security benefits.

At the January 2000 Winter Convention in San Juan, the education program also touched on issues affecting the elderly. A session on "Proving Damages in the Nursing Home Case" covered overcoming defense arguments for limited damages, dealing with the client's life expectancy, and obtaining punitive damages.

Notes

(1.) Pub. L. No. 100-203, 101 Stat. 1330 (codified as amended in scattered sections of 42 U.S.C. [subsections] 1302-1395 (1994)).

(2.) 42 C.F.R. [sections] 483 (1999).

(3.) Id. at [sections] 483.20.

(4.) Id.

(5.) Id. at [sections] 483.25.

(6.) Id.

(7.) Id. at [sections] 483.30.

(8.) Id. at [sections] 483.35.

(9.) See, e.g., MO. REV. STAT. [subsections] 178.003-198.186 (1994); MO. CODE REGS. ANN. tit. 13 [subsections] 73-2,010-73-2.130 (1994).

(10.) MO. REV. STAT. [sections] 198.093 (1994).

(11.) P.O. Box 7165, Jefferson City, MO 65102, (888) 262-5644. Information on violations may also be found at http://www.mcqc.com.

(12.) Pub. L. No. 101-239, 103 Stat. 2106 (codified as amended in scattered sections of 42 U.S.C. [subsections] 1302-1395 (1994)).

(13.) Nancy Bergstrom et al., Treatment of Pressure Ulcers, CLINICAL PRACTICE GUIDELINE NO. 15, AGENCY FOR HEALTH CARE POLICY AND RESEARCH, Pub. No. 95-0652 (Dec. 1994).

(14.) Guidelines can be obtained by contacting the AHRQ Publication Clearinghouse, P.O. Box 8547, Silver Spring, MD 20907, (800) 358-9295, or by visiting Clinical Practice Guidelines Online at http://www. ahrq.gov.

(15.) The Guideline Technical Report is available from the National Technical Information Service, 5285 Port Royal Rd., Springfield, VA 22161, (703) 553-6847.

(16.) Go to http://www.aoa.gov.

(17.) Go to http://www.jcaho.org.

(18.) Go to http://www.nccnhr.org.

(19.) Go to http://www.nursinghomeabuse.com.

(20.) 42 C.F.R. [sections] 483.10.

(21.) See Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo. 1993).

(22.) Naalian Truck Lines, Inc. v. Warehouse & Transp. Co., 8 Cal. Rptr. 2d 467 (Cal. App. 1992).

Sylvester James Jr. practices in Kansas City, Missouri.
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Author:James, Sylvester, Jr.
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Geographic Code:1USA
Date:Jul 1, 2000
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