Evaluating the Nursing Home Case
Nursing home cases are hybrids. They invariably address issues of substandard medical or nursing care in some respects; however, they frequently present factual scenarios that are unique to this genre. In addition to the medical/factual interplay in most nursing home cases, there are often questions of whether the facility has violated some aspect of state and/or federal regulations.
The practitioner who practices in this area should have more than a passing familiarity with medical negligence cases and issues. Knowledge of state and federal regulatory schemes that regulate the conduct of certified nursing homes is also a must. The successful practitioner must have the ability and imagination to anticipate and account for the unique damage issues involved in nursing home cases.
As you attempt to evaluate whether or not to accept and pursue a nursing home negligence case, several factors should be considered:
1. Has there been a breach of the "standard of care?"
In nursing home cases, the standards of care may relate to medical care, nursing care or adherence to various state and federal regulatory schemes regarding such issues as staffing, the extent of services provided, etc. As with a medical negligence case, whether the standard of care has been breached is almost always a subject for expert testimony.
Therefore, it may not be uncommon to have or need experts in the fields of nursing, nutrition, wound care, geriatric medicine, various medical specialists, nursing home administration, or other pertinent areas.
2. If there is a breach of the standard of care, is that breach causative of any damages?
In nursing home cases, causation can be a particularly murky area. Often nursing home residents suffer from a multitude of maladies and illnesses. It is often difficult to determine whether the damages claimed in a particular case are a direct result of the negligent act or failure to act of a nursing home professional, or whether it is simply a result of or a continuation of the medical maladies and illnesses that pre-existed the date of the injury.
For example, where a patient has developed decubitus ulcers, the defense often claims that the patient's underlying medical conditions, such as peripheral vascular disease or diabetes - not the failure of the nurses to follow nursing protocols for decubitus ulcers - caused the sores. Therefore, the defense often argues that the negligence of the nursing staff, if any, was not causative of the injury.
3. The Clients.
Never underestimate the impact of the client in this setting. A nursing home resident may have been a resident of a specific home or homes for a number of years. If the client who now attempts to sue for their wrongful death or injury never visited that resident or visited only infrequently, that obviously becomes an issue before a jury. Further, there is always the question in the back of a juror's mind about why didn't the client more aggressively pursue removing the resident from the facility such that the injury could have been avoided.
Jurors frequently believe that had they been in the circumstance of the plaintiff, they (the juror) would have handled things differently and better. In short, jurors are sometimes anxious to place fault on the plaintiff. In the nursing home case, jurors may wonder, if the plaintiff loved the resident, why weren't they at home in the first place or, how could the plaintiff have allowed the resident to remain in such a bad situation for so long? If your clients do not have reasonable answers to these unarticulated questions, they may very well be blamed to some extent for the plight of the resident.
4. Damages.
When evaluating the nursing home case, you must pay particular attention to the issue of damages. Nursing home cases tend to be expensive. Damages from a practical standpoint must be substantial in order to justify the expense and difficulty of pursuing these types of cases. Further, in nursing home cases, viable punitive damage claims are desirable because most nursing home residents cannot claim past and/or future lost wages as an element of pecuniary loss. Medical bills can be substantial, however, because Medicare or Medicaid often pay bills associated with nursing home care, the cases are often burdened by substantial Medicare and/or Medicaid liens. In the end, if you have mis-evaluated, you may have invested a great deal of time, effort and money only to receive enough compensation to pay back the liens and anger your client.
Damages are also a significant jury consideration because the injured nursing home resident seldom personally benefits from a recovery. In wrongful death cases, relatives recover. In injury cases, the residents may receive a judgment but the recovery may wind up in the hands of Medicare/Medicaid or be used for living expenses to pay for care in another nursing home.
6. Who to Sue.
The defendants in a nursing home case may depend upon the type of claim brought and the allegations made. Potential defendants may include the nursing home itself, the corporate owner of the nursing home, a certified nurse assistant or LPN or RN who worked in the facility, dieticians, wound care specialists, the medical director of the facility, or the resident's personal physician. Other potential defendants may include free standing medical facilities and private practitioners who were involved in the care of the resident. For example, in a decubitus ulcer case, the ulcers may have actually started at a hospital, but then allowed to progress at the nursing home. Under those circumstances, it is possible that you might need to consider whether to sue both the facility where the decubitus ulcer started and the facility where it was allowed to progress.
Where possible, if the case can be made against a nursing home alone, leave other potential defendants out. The public perception of nursing homes is increasingly negative; however, if you sue the local D.O. who provides care at the nursing home in the case, you may lose the advantage and have to fight a two-front war.
CONCLUSION
When you consider whether to accept and pursue a nursing home negligence case, the adage "Many are called - few are chosen," should probably be near the forefront of your mind. If you do decide to take on a nursing home negligence case, get good experts early, fatten up the war chest and have at it!
