Nursing Homes, Long-Term and Advanced-Care Facilities

Last month, we looked at the development of the law of corporate negligence as it is applied in the realm of medical malpractice. We continue that discussion herein.

Where, and How, Is Corporate Negligence Found Today?

In light of corporate negligence's history with state courts, the question becomes: What types of duties have been found to flow directly from nursing homes, long-term and advanced-care facilities (hereinafter “NLAs”) to a potential plaintiff, bypassing employees and agents entirely? Presently, the most frequent application of corporate negligence stems from credentialing physicians prior to admitting them to treat patients. See Fridena v. Evans, 127 Ariz. 516 (1980); Johnson v. Misericordia Cmty. Hosp., 99 Wis. 2d 708 (1981); Fiorentino v. Wenger, 19 N.Y.2d 407 (1967); See also When Doctrines Collide: Corporate Negligence and Respondeat Superior When Hospital Employees Fail to Speak Up, 61 Tulane L. Rev. 85-140 (1986).

However, when dealing with other NLAs such as nursing homes, which do not credential physicians, the courts have instead focused upon administrative failings of the facility's staff. For example, in Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 585 (Pa. 2012), where the deceased suffered from dehydration, malnutrition, bedsores and urinary tract infections as a result of the inattentiveness of the employees of the chronically understaffed facility, the court determined that the health care facility could potentially be found directly liable for the negligence of its actors if the plaintiff could establish a resident/entity relationship that would give rise to a duty of care owed to the resident. The facility could not rely on any catagorical immunity from such direct liability cliams, said the court. Alabama, Tennessee and Arkansas adopted similar positions. See Montgomery Health Care Facility v. Ballard, 565 Sdo.2d 221 (Al. 1990) (patient at nursing home suffered from infected bedsores); Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) (subsequently abrogated by statute, 2015 Tenn. LEXIS 827) (immobile patient suffered from pressure ulcers due to inattentiveness of staff); Bailey v. Rose Care Center, 307 Ark. 14 (1991) (patient was struck by a car and killed after leaving nursing home in a wheelchair).

Consequently, despite the common history giving rise to corporate negligence against hospitals and other NLAs, their trajectories have begun to pull in separate directions. While hospitals are primarily being held responsible for the actions of their administrators, bureaucrats and occasionally physicians ' in essence the decision-making organs of an organization ' other NLAs are being successfully prosecuted for the actions of attendants, nurses and other low-level workers who would compromise the limbs. All three of the cases cited above, Scampone , Ballard and French , could just as easily be conceived of as respondeat superior actions, thus further muddling what exactly is corporate negligence.

Courts have begun to notice this deepening gray area and have attempted to draw a distinction. South Carolina's high court, for one, has explained, “Vicarious liability attaches to a parent company or employer as the result of negligence on behalf of its employees, such as through the doctrine of respondeat superior . Conversely, direct corporate liability attaches due to a breach of a duty which runs directly between a parent company and a patient, arising from negligence in actions such as leaving a hospital underfunded, understaffed or under-trained so as to provide substandard care.” Morrow v. Fundamental Long-Term Care Holdings, LLC, 412 S.C. 534 (2015) (internal citations omitted).

In practice, however, the line drawn by courts such as South Carolina remains elusive to implement, even for other courts. Minnesota recently ran afoul of this conundrum in Bothun v. Martin LM, 2012 Minn. Dist. LEXIS 158 (2012) (affirmed, 2013 Minn. App. Unpub. LEXIS 408), in which the district court was tasked with deciding whether a plaintiff could pursue a theory of “direct corporate liability” against the defendant for negligently operating a long-term care facility. The court in this case began by addressing a previous case, Larson v. Wasemiller, in which the Minnesota Supreme Court had discussed corporate negligence against hospitals under multiple theories, such as negligent credentialing. Id. at 19-20. The court dismissed Larson , however, as having only recognized a theory of negligent credentialing and not corporate negligence generally. Id. The court used this limitation on Larson's holding to conclude that Minnesota law does not recognize theories of corporate negligence. Id. at 19, 21-22 (“None of the cases recognize the separate tort of corporate negligence.”).

Despite this holding, however, the court felt the need to add that the cases cited by the plaintiff “all apply the well-established rule that a hospital may be held liable for its negligent acts under a common law negligence theory.” Id. As the review of corporate negligence, supra , makes explicit, however, a direct theory of negligence against a hospital is corporate negligence. Thus, the Minnesota's Supreme Court, despite a thorough review of its state's literature, condemned corporate negligence as a theory of liablity with one-hand and upheld it with the other.

The Impact of Corporate Negligence Definitions on Liability

Despite over 50 years of case evolution, from total immunity to Darling to the rise of NLAs and their immunity, to Scampone, Morrow and Bothun, no court in America has come close to establishing a clear definition of “corporate negligence,” particularly in the case of NLAs. The only consensus that has emerged is that the central question confronting your parent's case, as in the hypothetical described in Part One of this article, will be whether the harm your father suffered arose from a duty owed by the facility or a duty owed by the individual caring for him.

If you are in a state like Pennsylvania, then a pattern of understaffing and overworking employees could allow relief against the facility directly, as in Scampone. If you are in a state like Tennessee, then your task will be simply to look to the statutory framework created by your legislature. Ellithorpe v. Weismark, 2015 Tenn. LEXIS 827 (2015). If you are in Minnesota, you may have to aid the court in understanding the nature of the action itself. Only one thing is certain: You will not have the same experience anywhere.

Nathan C. Volpi is an attorney in the York, PA, office of Goldfein and Joseph, P.C.