CREATIVE DISCOVERY IN THE NURSING HOME CASE
by Sylvester James, Jr.
Despite inherent limitations, verdicts in nursing home cases can sometimes be enhanced by unique factors. Damage recoveries in nursing home cases can be limited by statutory caps, the unavailability of lost income claims, and difficulty demonstrating significant economic losses. Graphic or photographic evidence of injury, neglect or abuse can make pain and suffering visual and incite a jury. Angry or resentful nursing home employees are sometimes the best witnesses a plaintiff can have. Nursing home administrators may seem indifferent and arrogant to a jury. Discovery in the nursing home case should be tailored to take advantage of some of these unique aspects.
I. DO YOUR HOMEWORK
Nursing home cases present unique challenges. The nursing home industry is one of the most heavily regulated industries in the country. Nursing homes must agree to abide by complex state and federal statutory schemes and regulations in order to be licensed and certified. A working knowledge of the pertinent statutes and regulations is essential to handling the nursing home case and planning effective discovery.
A. OBRA
At a minimum, the practitioner must have some familiarity with the Omnibus Reconciliation Act of 1987 (OBRA). 1 Violations of OBRA provisions can form the basis of a cause of action against a nursing home facility. Nursing homes who receive federal funds are required to comply with federal laws that specify that residents receive a high quality of care. The quality of care is, in part, specified 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 to use speech, language, or other functional communications systems. 5
- Ensure that the resident does not develop pressure ulcers and, if they do, they must provide the necessary treatment to promote healing, avoid infection, and prevent new ulcers from forming. 6
- Have sufficient nursing staff to provide nursing and related services to attain and maintain the highest practical physical, mental, and psychosocial well-being of the resident. 7
- Ensure that residents maintain adequate nutrition. 8
The practitioner should review the case to determine if there are any violations of these or other regulatory requirements and, if there are, they should be described in the pleading.
B. Know Your State Law
States have, of necessity, adopted their own regulations to govern nursing homes. 9 These regulations can provide fertile grounds for causes of action. For example, in Missouri, a consumer can report a nursing home violation to the Missouri Attorney General's Office within 180 days of an incident or violation and request an investigation and prosecution. If the Attorney General fails to investigate and prosecute, the consumer may then file a separate cause of action regarding that particular violation and request damages and hourly attorneys fees. 10 If the Attorney General does investigate and prosecute, the file should be acquired for use in the private civil action.
Missouri, and undoubtedly other states as well, allows discovery of public records relating to investigation of incidents and violations of nursing home regulations. The Missouri Department of Family Services will copy and forward these records upon a written request. Complaint Investigation Reports and other public records regarding a facility or its parent company should be obtained. These and other public records may provide information regarding the pattern of mistreatment and regulatory non-compliance of the facility. This type of information can help to form the basis of or support allegations of breach of contract, inadequate staffing, negligent hiring, training and retention, or other types of actions against a nursing home or its ownership group.
C. Join Support and Advocacy Groups
When we became serious about pursuing nursing home litigation, we joined several organizations that routinely provide information to the public at large about the nursing home industry. These organizations also provide updated information regarding legislation affecting the industry in the state and publicize violations and investigations of specific homes and ownership groups.
One recent issue of the newsletter published by the Missouri Coalition for Quality Care 11 was devoted to listing all of the nursing homes in the state cited in the previous quarter by the Missouri Department of Family Services for violations of various state regulations regarding care and treatment of nursing home patients. The newsletter provided the name of the facility, the name of the company operating the facility, the name of the registered agent for service of process, a detailed description of the regulatory or statutory violation, and a statement of the legal action taken in response to the violation. Obviously, this type of information could lead to the discovery of the public records and files of those nursing homes and the companies that operate them.
D. Use the Government.
The Federal Government, particularly the U.S. Department of Health and Human Services, can be quite a source of useful information. The Agency for Health Care Policy and Research (AHCPR) was established in December 1989 pursuant to the Omnibus Budget Reconciliation Act of 1987 (OBRA) 12 "to enhance the quality, appropriateness, and effectiveness of health care services and access to these services." The AHCPR publishes "Clinical Practice Guidelines," one of which is "Clinical Practice Guideline Number 15, Treatment of Pressure Ulcers." 13 Besides being written by blue ribbon panels, these Guidelines can be used to prepare and cross-examine experts on the subjects covered. 14
In addition to the Guidelines themselves, the "Guidelines Technical Report" contains complete supporting materials for the Clinical Practice Guidelines, including background information, literature review, research recommendations and a comprehensive bibliography. 15
E. Use the Internet.
The internet can provide you with mounds of background information about the nursing home industry generally, as well as specific information about medical issues and potential defendants involved in your case. The U.S. Administration on Aging - Department of Health and Human Services web site 16 on aging is a good basic web site to obtain general information regarding national and state long term care organizations and associations. This web site provides links to such organizations as the Joint Commission on Accreditation of Health Care Organizations. The Joint Commission web site even provides a form on which to make complaints about health care organizations. It also provides access to the Commission's monthly newsletter in which quality and accreditation issues are discussed and reviewed.
Other sites such as the National Citizens' Coalition for Nursing Home Reform 17 are devoted to "consumers and advocates who define and achieve quality for people with long-term care needs." This organization offers publications, books and links to State Ombudsmen and citizen advocacy groups.
The Nursing Home Abuse and Neglect Information Center 18 web site recognizes that "nursing home abuse and neglect has become widespread and a growing epidemic." The site is publicized as 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." Clearly, the same type of information can be helpful in evaluating and prosecuting a nursing home case.
You can also use the internet to track down information about nursing homes and the corporations that own them. Often corporations publicize themselves on the net. They may list financial information, names of the Board of Directors, and other information that may come in handy during a deposition.
After the basic homework has been done, it is easier to start to visualize and formulate a discovery plan that can be used both before and after a lawsuit is filed.
II. PRE-SUIT DISCOVERY
Consumers injured in products liability, personal injury, or medical negligence cases generally do not contact an attorney until the negligent acts have been completed and the damages have been sustained. That is not always true in a claim of nursing home abuse or neglect.
It is not unusual for the loved ones of an abused or neglected nursing home patient to contact an attorney within days of a negligent or abusive act and while the patient is still a resident in the nursing home and subject to the same abusive or neglectful conditions. The negligence may be in progress or only recently completed. The acts themselves may have been witnessed by relatives or visitors of the patient or they may have received notification of the injury or problem directly from a staff member of the facility.
As soon as the trial lawyer is contacted by a potential client or client representative, he should begin the discovery process. The fact that there may be someone at the scene presents unique opportunities to gather the type of information and documentation that can be critical to the successful prosecution of the nursing home case.
A. Obtain the Medical Chart
Under federal law, a nursing home must, upon the request of an authorized representative or party, produce the medical records of the nursing home patient within 48 hours of the request. 19 Frequently, nursing home patients have given power of attorney to a close relative which allows that person to make medical decisions for them. If such a person exists, they can request a copy of the medical chart immediately and require the nursing home facility to produce it within the 48-hour time limit. If no such person exists, an attorney can acquire the records with a proper authorization.
When our office collects medical records, we use a Medical Records Authorization form that contains 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. 483.10 which states in pertinent part: "The resident or his or her legal representative has the right (i) 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 (ii) 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 2 working days advanced notice to the facility."
Early acquisition of a patient's medical chart can lead to the discovery of altered records. In a recent case, we were contacted by the 70-year-old daughter of a nursing home patient while her mother was alive and a patient in a facility. The patient had been admitted to the facility for purposes of rehabilitation after a left above-the-knee amputation. Upon her arrival at the nursing home and within hours thereafter, facility nurses performed a complete admission physical. The admission physical record was totally inconsistent. One part of the record indicated that the patient did not have any decubitus ulcers, while Stage III decubitus ulcers were described on the same page.
The patient remained in the nursing home for 14 days, during which time the original Stage I-II decubitus ulcers progressed to become infected Stage III decubitus ulcers which required her to be transferred back to the hospital for treatment of sepsis where she died a few weeks later.
When we first consulted with the daughter, our client, we advised her to immediately request and obtain the medical chart. She obtained the chart on the day her mother was transferred back to the hospital. Subsequently, after entering the case and filing suit, we obtained a second set of records. Interestingly, the admitting physical record had been altered. That record became a central issue in the prosecution of the case because the nurse who altered the record did not know we had both the original and the altered versions of the record.
Alterations are most likely to be made in the record when the staff becomes aware of the potential for litigation. By obtaining a set of the records before that realization sets in, it is easier to compare the records to determine whether alterations or late entries have been made after the patient has been discharged or died.
B. Interview The Family and Witnesses
Family and witnesses to nursing home abuse are often shocked that such things could actually happen to their loved ones. They are also frequently guilt ridden because they have trusted their family member to what now may appear to be the uncaring staff of a distant and indifferent corporation. They should be encouraged to report the violation to the appropriate state agency and request an investigation or an Attorney General prosecution.
The witnesses may be able to produce invaluable information for later use in the case. They can tell you how the resident has been affected by the neglect or abuse. They may have had recent and direct discussions with staff about the incident or problem. They should reduce their recollections to writing as soon as possible. They may have made a written complaint to the facility administrator. They should obtain a copy to provide to you and keep you advised of the resolution of the complaint. They may be able to provide you with the names of sympathetic or involved staff and describe their actions. If the resident remains in the nursing home after the incident and if they can be interviewed, that should be done immediately to avoid faded recollections. The witnesses should also begin to keep detailed logs or notes of the resident's condition and the treatment they receive for future reference.
C. Get Photographs
The old saying holds true - "One picture is worth a thousand words." Most people have never actually seen a decubitus ulcer and verbal descriptions seldom do them justice. Photographs are compelling evidence in the cases where physical abuse or decubitus ulcers are involved. Photographs of grandma's broken nose, black eyes and split lips are more compelling than a clinical discussion about nursing home abuse or a fall in the bathroom. Frequently, nursing homes or long-term care facilities have protocols that require them to photograph decubitus ulcers and other physical wounds or injuries. Having an early set of photographs can graphically illustrate exactly how much a patient's condition has been allowed to deteriorate.
D. Track Down as Many Former Employees of the Nursing Home as Possible.
One of the most challenging but important aspects of handling the nursing home case involves locating the facility staff who were involved in the patient's care. Generally, day-to-day patient care in a nursing home is provided by a cadre of Licensed Practical Nurses (LPNs) and Certified Nurse Assistants (CNAs) who are often undertrained, underpaid, and highly mobile. These workers see the inner workings of the facility and they are sometimes hostile to the facility administration.
These witnesses 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 frequently and they are often difficult to track down. Once they are located, however, they can provide a wealth of information on the inside workings of the facility. They should be extensively interviewed, preferably by a competent investigator or paralegal who, if necessary, can testify about statements made to them.
Individual state laws can affect your ability to contact former and current employees of a potential defendant. In Missouri, attorneys are prohibited from contacting current employees of a corporate defendant as well as former, management level employees who, by reason of their prior employment or position, can make binding admissions against the interest of the corporation. 20
III. POST-SUIT DISCOVERY
Nursing home cases can be expensive and time-consuming to pursue. The costs of locating and deposing all necessary witnesses as well as the costs of retaining multiple experts can be prohibitive.
Nursing home cases can also generate unusually large amounts of records and documentary evidence. Often, nursing home residents have been in a nursing home for a number of years and, during their residency, they may have several significant hospital admissions. Because nursing homes usually defend cases by claiming that the resident's age and pre-existing medical conditions caused or contributed to cause the deterioration or failure of the resident's health, it is advisable to collect and review all the records.
A. Collecting Records
Medical records are not the only types of pertinent documents to collect. When collecting documentary evidence through discovery in the nursing home case, that documentation should include, if possible:
- The entire medical chart of the facility, including lab reports and medical correspondence, as well as all of the records from any hospitalizations;
- All facility administrative documents or files such as contracts and insurance information relating to the resident;
- The patient's Social Security medical file, if applicable;
- All facility procedure and protocol manuals and videotapes;
- Staff training manuals and videotapes;
- Incident reports relating to the resident;
- Accident reports;
- Photos and surveillance videotapes, if any;
- State inspection or review reports and responses by the facility;
- Personnel records of involved staff members;
- Billing records;
- Notes and/or minutes of any committees or groups in which family and residents are allowed to participate to make complaints or to discuss issues relating to care such as "Family Counseling Committees" or "Patient Grievance Committees," etc.;
- Visitors logs or sign-in sheets;
- Job descriptions of the Director, Nursing Director, Charge Nurse, LPN, CNA, and other key personnel;
- List of the Board of Directors of the facility or parent company;
- Organizational chart; and
- Financial and corporate filing documents of the corporation.
B. Review the Documents
Nursing home staff and doctors do not chart like hospital nurses and doctors. Nursing home doctors may only see and examine a patient every 30-60 days. Most of their Orders are made on the telephone and then signed during their infrequent visits to the facility which may be one of many that they visit on a rotating basis. Physician Progress Notes are usually sparse and infrequent.
There may be gaps of days or weeks in Nursing Progress Notes. When they are written, Nursing Progress Notes may consist of brief and general statements about the resident's condition. Sometimes Nursing Progress Notes are confined to standardized check-off sheets which are perfunctorily completed by LPNs or CNAs.
Periodic assessments of a patient's condition are usually required by state regulations and the chart should be thoroughly reviewed to determine if the applicable regulations have been satisfied. Further, nursing staff is required to timely chart and to notify the patient's doctor when there is a significant change in the patient's condition or status.
The sporadic charting of nursing home doctors and nurses lends itself quite well to creative timeline exhibits for trial. It is not uncommon to find that there is no meaningful charting during a time period in which the patient's condition is deteriorated. This type of juxtaposition creates a visual and graphic display of indifference to the patient's condition.
Use Interrogatories and Requests for Production of Documents creatively. Have the defendant do some of your legwork for you. Ask them to provide the names and last known addresses of all LPNs and CNAs who provided any care and treatment to the resident during pertinent time periods in the case. Have the defendant identify all manuals, protocols, policies and procedures and provide Tables of Content and Indexes for each for your initial review. After reviewing the Tables of Content and Indexes, request production of those sections of the manuals you need. Specifically request that the defendant identify and provide all computerized data and notes concerning the resident.
Use Requests for Admissions liberally. We often use this underused discovery device to obtain admissions of undeniable medical facts. For example, we may request that a defendant admit that a patient was "admitted 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.
C. Use the Secretary of State
Use the Secretary of State to obtain all corporate filings and documents relative to a nursing home and its ownership. Sometimes information obtained from the Secretary of State's office can provide you with information about the sales and transfers of ownership of a facility. Further investigation of the sale or transfer could indicate that the previous owner was going broke, which might just explain why shifts were understaffed and staff was disgruntled.
D. Check the Local Courthouse
Check the local courthouse for all suits against the nursing home, its ownership, and members of the Board of Directors, including suits that do not, on their face, appear to be relevant. On a recent suit check regarding a nursing home, we found that there were approximately 20 suits filed. Some of those suits were for breach of contract claims by unpaid vendors. Others were for employment discrimination. In an employment discrimination suit, there is obviously a disgruntled employee who has brought suit against the corporate entity. Employees suing their employer are generally not bashful about spreading the "dirt" about the corporate defendant and the inside workings of the nursing home. They can provide you with information to which you may not otherwise have access.
Check the court files for suits against members of the corporation's Board of Directors, Administrators, Nursing Directors and other personnel. You never know what might turn up. It also does not hurt to check on the driver's license information of as many employees as you can. If a person has several DUI's, it might indicate a drinking problem, which might be relevant to how they perform their jobs.
CONCLUSION
Discovery in the nursing home case is full of unique opportunities to be creative. Because of the very nature of the claims commonly presented against nursing homes - falls, physical abuse, decubitus ulcers and the like - trial exhibits and graphics can help to visually and powerfully present your client's case to a jury.
End Notes
1 O.B.R.A. 42 U.S.C. 1302 and 1395; 42 CFR 483, et seq.
9 See, eg., Missouri Omnibus Nursing Home Act, R.S.Mo. 198.003, et seq.; Vol. 13 Code of State Regs. (CSR).
11 Missouri Coalition for Quality Care, P. O. Box 7165, Jefferson City, Missouri 65102, Toll free 1-888-262-5644.
12 42 U.S.C. 1302 and 1395; Public Law 101-239.
13 Bergstrom N, Bennett MA, Carlson CE, et al. [Treatment of Pressure Ulcers.] Clinical Practice Guideline No. 15, Rockville Maryland; U.S. Department of Health and Human Services, Public Health Service, Agency for Health Care Policy and Research, AHCPR Publication No. 95-0652. December 1994.
14 Guidelines can be obtained by calling AHCPR Publication Clearinghouse toll-free at 1-800-358-9295 or writing to: AHCPR Publication Clearinghouse, P. O. Box 8547, Silver Springs, Maryland 20907.
15 The Guideline Technical Report can be obtained from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, telephone 1-703-487-4650.
17 http://www.nccnhr.org, 1424 16th Street Northwest, Suite 202, Washington, D.C. 20036-2211, telephone 1-202-332-2275.
20 In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having the managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization." Pitts v. Roberts, 857 S.W.2d 200 (Mo. 1993).
