Understanding the Basics of Nursing Home Negligence Matters

According to government statistics, as of Jan. 1, 2011, more than 10,000 Americans reach the age of 65 on a daily basis. That is going to keep happening every day for the next 19 years. This is in addition to the over 35 million Americans already over the age of 65, according to the 2000 U.S. Census data. Many of these Americans may end up with medical conditions that require placement in long-term care facilities. Either due to lack of resources, lack of skill, lack of dedication or lack of compassion, too many times the long-term care facilities that house these individuals fail to properly care for the residents. As a direct consequence of this, nursing-home negligence claims are consistently on the rise.

What types of claims are most plaintiff attorneys likely to see, and what are some of the basics they should know about them?

The Participants

There are federal regulations that govern long-term care facilities. Title 42 of the Code of Federal Regulations entitled “Public Health” creates, in Part 483, the “Requirements for States and for Long Term Care facilities.” More specifically, Subpart B is directed toward requirements for “Long Term Care facilities.”

With that background, it is important to understand the parties in a nursing-home negligence claim. The plaintiffs are the injured party (the resident of the long-term care facility) and his or her spouse. In situations where the injured party is deceased or incompetent, the legal guardian or representative of the estate must bring the claim on behalf of the injured party. When the negligence causes the death of the resident, the representative of the estate may also bring a claim on behalf of those family members who can state a claim for wrongful death.

From a practical standpoint, gathering the proper plaintiffs when the injured party has died can create several hurdles. Many times the injured party dies intestate and leaves several heirs. All the heirs must renounce or cede their right to be the representative of the estate in favor of one particular person. This does not mean the heirs are renouncing their right to their fair portion of the settlement, only that they are giving up their right to be the person bringing the claim. The injured party is not necessarily someone of advanced age; he or she can be anyone, including the elderly and younger adults with physical or mental disabilities, who requires constant nursing care and has significant deficiencies with the activities of daily living,

The defendant is, almost without exception, a Skilled Nursing Facility (SNF) or Nursing Facility (NF). It is important that the plaintiff's attorney not confuse a hospital defendant, an assisted-living defendant or home-healthcare defendant with a long-term care facility. The regulations define an SNF and NF specifically. There are criteria that establish an entity as an SNF or NF. An SNF is a nursing home certified to participate in, and be reimbursed by Medicare, the federal program primarily for the aged who contributed to Social Security and Medicare while employed. An NF is a nursing home certified to participate in, and be reimbursed by, Medicaid, the federal program implemented by each state to provide health care and related services to the “poor.” Each state defines “poverty,” and, therefore, Medicaid eligibility. Those eligible for Medicaid may be aged, disabled or children (e.g., those covered through Children's Health Insurance Programs ' CHIPs and Maternal-Child wellness and food programs).

There are also entities called long-term acute care facilities, which are hospitals specializing in treating patients requiring extended hospitalization, with an average length of stay of at least 25 days. These may also become defendants in nursing home-type negligence lawsuits.

Common Claims: Pressure Ulcers and Accidents

Although nursing home cases can stem from actual physical abuse to over-medicating to malnourished residents, the overwhelming majority of nursing home cases involve situations where the long-term care facility allowed the resident to develop pressure ulcers (bed sores), or where the facility permitted the resident to fall and sustain injury.

Pressure Ulcers

Title 42 Section 483.25(c) directly addresses pressure ulcers. The regulations define a “pressure ulcer” as any lesion caused by unrelieved pressure that results in damage to the underlying tissues. The regulations further specify that, although friction and shear are not primary causes of pressure ulcers, they are important contributing factors to the development of these ulcers.

The presumption in most cases is that pressure ulcers are preventable. In fact, Medicare takes the position that all are preventable. Nonetheless, many times the long-term care facility will defend the claim on the ground that, despite all reasonable precautions having been taken, the pressure ulcer developed either due to an end-of-life situation, where the skin necessarily deteriorates; or due to an underlying medical condition, such as diabetes.

Generally speaking, the case will be decided on the issue of documentation and procedures.

It is the responsibility of the long-term care facility to indentify the individual resident at risk for developing pressure ulcers, including identification of risk factors and changes in condition. In addition, it is the duty of the long-term care facility to identify any pressure ulcers that have developed, and to treat them in a timely fashion. To identify residents at risk for pressure ulcers, the long-term care facility must conduct an assessment known as the Braden scale, or some equivalent.

The Braden scale rates a resident's likelihood of developing pressure ulcers by weighing risk factors related to sensory perception, moisture, activity, mobility, nutrition, friction and shear. Once an individual has been identified as being at risk for developing these ulcers, it is the duty of the long-term care facility to adjust his or her environment and treatment appropriately. The most commonly used method of reducing the risk of pressure ulcers is regular nursing intervention and a “turning schedule” that ensures the weight of the immobile patient is redistributed, reducing sustained pressure on a vulnerable area. Aside from this precaution, there is also equipment available to help prevent pressure ulcers. For instance, there are specifically designed beds and chairs, such as low'air-loss beds and alternating pressure mattresses, as well as topical skin protections and mechanical devices to mimic the effects of movement.

Long-term care facilities are obliged to take note when pressure ulcers do develop. The ulcers are categorized into four stages (I-IV), with I being the least and IV being the most severe. Typically, a strong claim against a long-term care facility exists only when the pressure ulcer reaches stage IV because, logically, if a pressure ulcer is stage IV when first identified, it necessarily follows that the care facility failed to recognize its presence at previous stages.

A common defense move is to dispute the above contention. Experts for the long-term care facility will typically attempt to assert that what occurred was a “deep tissue injury.” Under this theory, the defense will argue that damage from a deep tissue injury (DTI) pressure ulcer occurs deep within the tissue from constant pressure, and the earliest sign of damage is a change in skin color, thus indicating that the damage at the surface of the skin is much less than the damage in the subcutaneous tissue and muscle. Essentially, the defense position will be that the patient arrived at the facility with the deep tissue injury and that the injury did not reveal itself until a later date ' therefore, the care facility is blameless. This is a difficult defense to overcome if the admitting nursing assessment documents a DTI or its typical characteristics (a maroon or deep purple color and blistered top layer) or calls the wound unstageable, and the wound rapidly deteriorates to Stage III or IV within a few days of admission. In most cases, however, the DTI defense is something thought up by counsel or defense experts as an exculpable explanation for progression of a minor lesion to Stage IV, and is easily overcome by showing that the nursing staff at the time failed to document the characteristic appearance and progression of a DTI wound.

Accidents

Section 483.25 (h) specifically addresses an “accident,” defining it as any unexpected or unintentional incident that may result in injury or illness to a resident. This does not include adverse outcomes that are a direct consequence of treatment or care that is provided in accordance with current standards of practice (e.g., drug side effects or reaction). Just as with a pressure ulcer, the presumption is that an accident is avoidable. As a result, it is the responsibility of the long-term care facility to identify individuals at risk for an accident (especially those prone to falling), to identify environmental hazards, implement interventional techniques and to monitor and evaluate the effectiveness of any interventional techniques.

A “fall” is defined as a sudden, uncontrolled, unintentional, downward displacement of the body to the ground or other object, excluding falls resulting from violent blows or other purposeful actions. With respect to fall risk assessment, each facility should have a check list completed that identifies a number of risk factors. These can be found in the Morse Fall Risk Assessment or the Hendrich Fall Risk Assessment. Included among the factors for analysis are the resident's history of falling down, medical diagnosis, use of ambulatory aides and use of IVs. The facility must also consider whether the resident has an impaired gait and whether he or she has an altered mental status.

Once it has been determined that the resident presents a fall risk, it is the responsibility of the long-term care facility to implement a prevention plan. Fall-prevention methods include low beds; non-slip footwear; assigning patients to beds that allow them to exit toward their stronger side; locking movable transfer equipment prior to transferring a resident; individualizing equipment to accommodate patient needs; installing non-skid floor matting; conducting regular medication reviews; implementing exercise programs; completing toileting worksheets; administering color-coded arm bands; placing perimeter mattresses; using hip protectors; and using bed and chair alarms.

The typical defenses in a fall case are that the correct fall assessment was performed, the appropriate interventions were in place, and the staff did everything that reasonably could have been done to prevent the fall. For example, if the resident was alert, oriented to person, place and time, and able to follow commands, the home will argue that it was reasonable to assume that he or she would follow an instruction to use the call bell for bathroom assistance. If a resident falls while attempting to use the bathroom,
the case may hinge on proof that he or she had to use the bathroom unassisted because the staff ignored the call bell. For residents at known high risk of falls, the nursing home may argue that all appropriate interventions were in place, but the fall could not have been prevented; for example, the resident got out of bed and fell immediately, giving the staff no time to respond to the bed alarm. Those defenses may be overcome through an accident reconstruction as well as analyses of the different interventions that may have been warranted, and, how they would have made a difference if performed properly.

Conclusion

Of course, claims against long-term care facilities, like all medical malpractice claims, are complex; each individual injury must be analyzed and pursued on its own merits. But as stated above, the bulk of the injuries that lead to claims fall into two categories ' pressure ulcers and accidents. It helps to understand the regulations and the norms that have developed to prevent these injuries because, when they occur, it is highly likely that the cause is failure to follow the regulations or adhere to the standard of care. When this is the case, the attorney to whom the complaining party turns must be ready to identify the proper plaintiff(s) and defendant(s), and work to ensure that the responsible parties are held accountable.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, P.C., Newtown, PA.

According to government statistics, as of Jan. 1, 2011, more than 10,000 Americans reach the age of 65 on a daily basis. That is going to keep happening every day for the next 19 years. This is in addition to the over 35 million Americans already over the age of 65, according to the 2000 U.S. Census data. Many of these Americans may end up with medical conditions that require placement in long-term care facilities. Either due to lack of resources, lack of skill, lack of dedication or lack of compassion, too many times the long-term care facilities that house these individuals fail to properly care for the residents. As a direct consequence of this, nursing-home negligence claims are consistently on the rise.

What types of claims are most plaintiff attorneys likely to see, and what are some of the basics they should know about them?

The Participants

There are federal regulations that govern long-term care facilities. Title 42 of the Code of Federal Regulations entitled “Public Health” creates, in Part 483, the “Requirements for States and for Long Term Care facilities.” More specifically, Subpart B is directed toward requirements for “Long Term Care facilities.”

With that background, it is important to understand the parties in a nursing-home negligence claim. The plaintiffs are the injured party (the resident of the long-term care facility) and his or her spouse. In situations where the injured party is deceased or incompetent, the legal guardian or representative of the estate must bring the claim on behalf of the injured party. When the negligence causes the death of the resident, the representative of the estate may also bring a claim on behalf of those family members who can state a claim for wrongful death.

From a practical standpoint, gathering the proper plaintiffs when the injured party has died can create several hurdles. Many times the injured party dies intestate and leaves several heirs. All the heirs must renounce or cede their right to be the representative of the estate in favor of one particular person. This does not mean the heirs are renouncing their right to their fair portion of the settlement, only that they are giving up their right to be the person bringing the claim. The injured party is not necessarily someone of advanced age; he or she can be anyone, including the elderly and younger adults with physical or mental disabilities, who requires constant nursing care and has significant deficiencies with the activities of daily living,

The defendant is, almost without exception, a Skilled Nursing Facility (SNF) or Nursing Facility (NF). It is important that the plaintiff's attorney not confuse a hospital defendant, an assisted-living defendant or home-healthcare defendant with a long-term care facility. The regulations define an SNF and NF specifically. There are criteria that establish an entity as an SNF or NF. An SNF is a nursing home certified to participate in, and be reimbursed by Medicare, the federal program primarily for the aged who contributed to Social Security and Medicare while employed. An NF is a nursing home certified to participate in, and be reimbursed by, Medicaid, the federal program implemented by each state to provide health care and related services to the “poor.” Each state defines “poverty,” and, therefore, Medicaid eligibility. Those eligible for Medicaid may be aged, disabled or children (e.g., those covered through Children's Health Insurance Programs ' CHIPs and Maternal-Child wellness and food programs).

There are also entities called long-term acute care facilities, which are hospitals specializing in treating patients requiring extended hospitalization, with an average length of stay of at least 25 days. These may also become defendants in nursing home-type negligence lawsuits.

Common Claims: Pressure Ulcers and Accidents

Although nursing home cases can stem from actual physical abuse to over-medicating to malnourished residents, the overwhelming majority of nursing home cases involve situations where the long-term care facility allowed the resident to develop pressure ulcers (bed sores), or where the facility permitted the resident to fall and sustain injury.

Pressure Ulcers

Title 42 Section 483.25(c) directly addresses pressure ulcers. The regulations define a “pressure ulcer” as any lesion caused by unrelieved pressure that results in damage to the underlying tissues. The regulations further specify that, although friction and shear are not primary causes of pressure ulcers, they are important contributing factors to the development of these ulcers.

The presumption in most cases is that pressure ulcers are preventable. In fact, Medicare takes the position that all are preventable. Nonetheless, many times the long-term care facility will defend the claim on the ground that, despite all reasonable precautions having been taken, the pressure ulcer developed either due to an end-of-life situation, where the skin necessarily deteriorates; or due to an underlying medical condition, such as diabetes.

Generally speaking, the case will be decided on the issue of documentation and procedures.

It is the responsibility of the long-term care facility to indentify the individual resident at risk for developing pressure ulcers, including identification of risk factors and changes in condition. In addition, it is the duty of the long-term care facility to identify any pressure ulcers that have developed, and to treat them in a timely fashion. To identify residents at risk for pressure ulcers, the long-term care facility must conduct an assessment known as the Braden scale, or some equivalent.

The Braden scale rates a resident's likelihood of developing pressure ulcers by weighing risk factors related to sensory perception, moisture, activity, mobility, nutrition, friction and shear. Once an individual has been identified as being at risk for developing these ulcers, it is the duty of the long-term care facility to adjust his or her environment and treatment appropriately. The most commonly used method of reducing the risk of pressure ulcers is regular nursing intervention and a “turning schedule” that ensures the weight of the immobile patient is redistributed, reducing sustained pressure on a vulnerable area. Aside from this precaution, there is also equipment available to help prevent pressure ulcers. For instance, there are specifically designed beds and chairs, such as low'air-loss beds and alternating pressure mattresses, as well as topical skin protections and mechanical devices to mimic the effects of movement.

Long-term care facilities are obliged to take note when pressure ulcers do develop. The ulcers are categorized into four stages (I-IV), with I being the least and IV being the most severe. Typically, a strong claim against a long-term care facility exists only when the pressure ulcer reaches stage IV because, logically, if a pressure ulcer is stage IV when first identified, it necessarily follows that the care facility failed to recognize its presence at previous stages.

A common defense move is to dispute the above contention. Experts for the long-term care facility will typically attempt to assert that what occurred was a “deep tissue injury.” Under this theory, the defense will argue that damage from a deep tissue injury (DTI) pressure ulcer occurs deep within the tissue from constant pressure, and the earliest sign of damage is a change in skin color, thus indicating that the damage at the surface of the skin is much less than the damage in the subcutaneous tissue and muscle. Essentially, the defense position will be that the patient arrived at the facility with the deep tissue injury and that the injury did not reveal itself until a later date ' therefore, the care facility is blameless. This is a difficult defense to overcome if the admitting nursing assessment documents a DTI or its typical characteristics (a maroon or deep purple color and blistered top layer) or calls the wound unstageable, and the wound rapidly deteriorates to Stage III or IV within a few days of admission. In most cases, however, the DTI defense is something thought up by counsel or defense experts as an exculpable explanation for progression of a minor lesion to Stage IV, and is easily overcome by showing that the nursing staff at the time failed to document the characteristic appearance and progression of a DTI wound.

Accidents

Section 483.25 (h) specifically addresses an “accident,” defining it as any unexpected or unintentional incident that may result in injury or illness to a resident. This does not include adverse outcomes that are a direct consequence of treatment or care that is provided in accordance with current standards of practice (e.g., drug side effects or reaction). Just as with a pressure ulcer, the presumption is that an accident is avoidable. As a result, it is the responsibility of the long-term care facility to identify individuals at risk for an accident (especially those prone to falling), to identify environmental hazards, implement interventional techniques and to monitor and evaluate the effectiveness of any interventional techniques.

A “fall” is defined as a sudden, uncontrolled, unintentional, downward displacement of the body to the ground or other object, excluding falls resulting from violent blows or other purposeful actions. With respect to fall risk assessment, each facility should have a check list completed that identifies a number of risk factors. These can be found in the Morse Fall Risk Assessment or the Hendrich Fall Risk Assessment. Included among the factors for analysis are the resident's history of falling down, medical diagnosis, use of ambulatory aides and use of IVs. The facility must also consider whether the resident has an impaired gait and whether he or she has an altered mental status.

Once it has been determined that the resident presents a fall risk, it is the responsibility of the long-term care facility to implement a prevention plan. Fall-prevention methods include low beds; non-slip footwear; assigning patients to beds that allow them to exit toward their stronger side; locking movable transfer equipment prior to transferring a resident; individualizing equipment to accommodate patient needs; installing non-skid floor matting; conducting regular medication reviews; implementing exercise programs; completing toileting worksheets; administering color-coded arm bands; placing perimeter mattresses; using hip protectors; and using bed and chair alarms.

The typical defenses in a fall case are that the correct fall assessment was performed, the appropriate interventions were in place, and the staff did everything that reasonably could have been done to prevent the fall. For example, if the resident was alert, oriented to person, place and time, and able to follow commands, the home will argue that it was reasonable to assume that he or she would follow an instruction to use the call bell for bathroom assistance. If a resident falls while attempting to use the bathroom,
the case may hinge on proof that he or she had to use the bathroom unassisted because the staff ignored the call bell. For residents at known high risk of falls, the nursing home may argue that all appropriate interventions were in place, but the fall could not have been prevented; for example, the resident got out of bed and fell immediately, giving the staff no time to respond to the bed alarm. Those defenses may be overcome through an accident reconstruction as well as analyses of the different interventions that may have been warranted, and, how they would have made a difference if performed properly.

Conclusion

Of course, claims against long-term care facilities, like all medical malpractice claims, are complex; each individual injury must be analyzed and pursued on its own merits. But as stated above, the bulk of the injuries that lead to claims fall into two categories ' pressure ulcers and accidents. It helps to understand the regulations and the norms that have developed to prevent these injuries because, when they occur, it is highly likely that the cause is failure to follow the regulations or adhere to the standard of care. When this is the case, the attorney to whom the complaining party turns must be ready to identify the proper plaintiff(s) and defendant(s), and work to ensure that the responsible parties are held accountable.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, P.C., Newtown, PA.