TIPS FOR LITIGATING NURSING HOME CASES

I. INTRODUCTION
In the past, plaintiffs' lawyers often have been reluctant to file cases in which nursing home residents were neglected and/or abused. Defense lawyers and insurance claims adjusters were just as reluctant to pay significant amounts of money to settle such claims opting instead to treat them as "nuisance" cases. Lawyers and claims adjusters alike tended to evaluate nursing home cases using damages models based upon future wage earnings capacity and the likelihood of future impairment and/or disability. Because nursing home patients tended to have little or no wage earning ability and already suffered significant impairment due to age and disease process, such cases were rarely filed.

The view of lawyers in both the plaintiff and defense bars have changed dramatically with respect to the potential value of nursing home cases and how such cases are approached. Juries all across the country have responded in cases in which nursing homes were proven to provide substandard care by awarding large verdicts. In such cases, the juries have tended to view nursing home residents as individuals generally dependent upon caregivers for all their wants and needs and deserving of the highest standard of care.

This change in attitude has been occasioned in large measure by the change in demographics in our nation and how society as a whole views the elderly. As the baby boom generation ages and life expectancies increase, the demand for nursing homes will continue to grow as more and more people come to need and depend upon nursing care. It is estimated that by the year 2030, the number of individuals in this country over the age of 85 will double.¹ As the number of people that depend upon nursing homes increase so will the possibility that you as a lawyer will be involved in a nursing home case either by representing a plaintiff or representing a nursing home that has been sued. This paper is intended to provide some tips for how to litigate a nursing home case.

II. RECOGNIZING AND EVALUATING A NURSING HOME CASE
Generally speaking, nursing home cases tend to fall into three different categories, each presenting its own unique issues. These categories are (1) abuse cases, (2) neglect cases and (3) property or "fiduciary neglect" cases. Some cases may present issues that fall into all three of these categories. As such, it is all the more important for lawyers involved in a nursing home case to evaluate the case and identify all potential issues that may arise.

Physical abuse generally involves situations in which a nursing home resident is intentionally beaten, slapped, hit, kicked or burned by an employee or staff member of the nursing home or by another resident of the home that was not being properly supervised by the nursing home staff. Any unusual injuries such as extensive bruising, bruising in unusual places, skin tears, burns or broken bones that appear in the record or are complained of by the resident or his/her family should be cause for concern and should be immediately investigated. Unfortunately, sexual abuse and/or assault against nursing home residents has been documented in some cases. If abuse is expected, it should be reported to the appropriate law enforcement officials as well as to the Department of Public Health, the state agency with oversight and regulatory power of nursing homes, so an immediate investigation can be made.

Physical neglect of nursing home residents can take many forms. The most prevalent and encountered forms of neglect are pressure sore/decubitus ulcer formation, malnutrition, dehydration, contractures, infections and failure to properly medicate. Also common are cases in which nursing home resident is allowed to fall or be dropped and suffer injuries and/or death. Cases in which nursing home residents have been allowed to wander away from the nursing home and suffer injuries and/or death. In such cases, it is advisable to contact the Alabama Department of Public Health to report the suspected neglect. Reporting such neglect may protect the life of the resident as well as to counter a defense on the part of the nursing home that the resident or his/her family never complained about inadequate care.

In some cases, breach of fiduciary duty may be raised. In such cases, a nursing home may breach its fiduciary duty to the resident and his/her family by converting or mismanaging assets of the resident. In addition, billing the resident and/or his/her family for services not actually provided may constitute theft and/or fraud. Such actions on the part of nursing homes often give rise to qui tam or whistleblower suits alleging medicaid and medicare fraud.

The key to evaluating a nursing home case whether as a plaintiff's lawyer or a defense lawyer is thorough review of the resident's nursing home chart. When presented with facts tending to indicate possible neglect and/or abuse of a nursing home resident, the nursing home chart should be obtained and reviewed as quickly as possible. The lawyer representing a plaintiff in a nursing home case should request the chart directly from the nursing home. Every nursing home is required by state and federal regulation to keep "clinical records" on each of its residents that are complete, accurately documented, readily accessible and systematically organized. 42 C.F.R. § 483.75(1). The clinical record must contain among other things the following information: (1) sufficient information to identify the resident, (2) a record of the resident's assessments, (3) the plan of care and services provided to the resident, (4) the results of any pre-admission screenings conducted by the state, and (5) progress notes concerning the resident. 42 C.F.R. § 483.75(l)(5). As such, the nursing home chart should provide a detail of care and treatment provided (or not provided as the case may be) to the resident.

A request to the nursing home should be made in writing by the resident or the resident's legal representative i.e. guardian, attorney in fact, etc.² When making the request it is important to state that the request is made pursuant to 42 C.F.R. 483.10 which states in part: "The resident or his legal representative has the right (i) upon an oral or written request, to access all record pertaining to himself of herself including current medical records within 24 hours (excluding holidays and weekends); 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 two working days advanced notice to the facility."

A request to visually inspect the records should be made before photocopying. Also include in the request that the nursing home produce a color copy of the nursing home chart. Although expensive, this can often lead to evidence of false charting and changes and modifications made to the record. In many nursing homes, each shift generally charts its residents with a different color pen i.e. black for morning shift, blue for afternoon/evening shift and red for night shift. A color copy of the records may make apparent late entries and/or modifications in the record made in different color ink.

In any nursing home chart, there are certain documents that should be focused upon. The nursing home is required to make a comprehensive assessment of each resident no later than fourteen (14) days after admission to the home. 42 C.F.R. § 483.20(b)(4). The comprehensive assessment is an extremely important document as it contains information concerning the resident's physical condition, mental condition and cognitive ability, physical and mental impairments, nutritional status, social functioning status, acuity levels and other vital information. Once the comprehensive assessment is completed, a comprehensive, interdisciplinary plan of care must be created within seven (7) days. 42 C.F.R. § 483.20(d)(1). The plan of care sets forth the care and treatment that the nursing home, after a complete evaluation of the resident, deems necessary to meet the needs of the patient. These documents should be reviewed thoroughly to make certain that the nursing home met the burden it placed on itself with respect to the care and treatment of the resident.³

If a nursing home fails to provide the records within the time periods specified by statute, a complaint may be made to the Alabama Department of Public Health requesting an investigation and an issuance of a statement of deficiency against the facility for failing to produce the records in accordance with the law. The address to the Alabama Department of Public Health to which such complaint may be made is located at the end of this paper.

After receiving the nursing home records, they should be thoroughly reviewed by the lawyer involved and by appropriate experts. The only way to understand the condition of the resident and the care and treatment provided by the nursing home is to review the records line by line. This is often tedious, but it is indispensable when trying to evaluate such a case. In addition, the Alabama Medical Liability Act which governs nursing home cases in the state of Alabama requires that experts testify as to whether the nursing home breached an appropriate standard of care with respect to the care and treatment of the resident. As such, experts should be employed at an early stage in the case to render opinions with respect to whether the nursing home did or did not breach the standard of care.

In addition to the nursing home chart and record, medical records generated by other health care providers that cared for and treated the resident should be obtained. Any and all available records must be obtained from physicians, surgeons, therapists, hospitals, clinics, home health and ambulance services that treated the resident should be obtained. In some instances, other health care providers may have photographed the resident in an effort to document health problems such as decubitus ulcers/pressure sores or injuries to the resident. In making a request to the resident's health care providers, always specifically request any and all photographs or videotapes taken of the resident.

In addition, any and all documents and records concerning the nursing home and the resident in question should be obtained form the Alabama Department of Public Health. Reports and surveys of the nursing home conducted by the department should reflect deficiencies found by the department during its required inspections of the facility. The internet website for the Alabama Department of Public Health also lists all licensed and certified nursing homes in the state of Alabama and posts information concerning how each compares with other homes and posts information concerning deficiencies that have been found in the home. Information concerning the resident may have to be subpoenaed from the department as such information is treated as confidential in nature and will not generally be released without a subpoena.

Information from employees and ex-employees of the nursing home is generally very important in nursing home cases. Ex-employees of a nursing home are often invaluable sources of information concerning care and treatment rendered to the resident as well for information concerning policies and/or procedures of the home.

III. PLEADING NURSING HOME CASES
Of critical importance to litigating nursing home cases is understanding the application of the Alabama Medical Liability Act of 1987 codified at Alabama Code § 6-5-540 et seq. to such cases. The Alabama Medical Liability Act sets forth requirements for pleading, discovery, expert testimony, damages and a host of other issues in any case against health care providers including nursing homes. The Alabama Supreme Court made clear in the case of Ex Parte Northport Health Services, Inc., 682 So.2d 52, 55 (Ala. 1996) that a nursing home falls within the provisions of the Act. As such any case filed against a nursing home must meet its requirements. Of particular importance to litigating nursing home cases are the pleading requirements set forth in the Act at Alabama Code § 6-5-551. It states in part:

Clearly, the Alabama legislature has imposed in such cases a specific pleading requirement. The question that is often litigated in such cases is just how specifically a complaint in a nursing home case must be pled. Some courts allow wide leeway in allowing plaintiffs to file complaints in such cases, conduct discovery and later amend their complaints to conform to the requirements of § 6-5-551. Other courts take a much more stringent approach requiring strict adherence to the specificity requirement. A nursing home complaint must provide as much factual detail as possible with respect to the alleged negligence of the nursing home and the damages and harm suffered by the resident. The more factual detail that can be provided in the initial pleading stage of the case, the easier it will be to forestall and defend motions to dismiss founded upon the specificity requirement of § 6-5-551.

The Alabama Medical Liability Act is somewhat unclear as to what a plaintiff in a nursing home case must prove as the proper standard of care and/or degree of care owed to a nursing home resident. Alabama Code § 6-5-548 states that "[I]n the case of a hospital rendering services to a patient, the hospital must use that degree of care, skill and diligence used by hospitals generally in the community." The Alabama Supreme Court in the case of Ex parte Northport, 682 So.2d 52 (Ala. 1995) concluded that nursing homes fall within the definition of "hospital" as defined by the act. As such, it appears that the same standard of care that must be exercised by hospitals must also be exercised by nursing homes.

Generally, a plaintiff in a nursing home case must present expert testimony to establish the breach of the standard of care must be established by a "similarly situated health care provider." Alabama Code § 6-5-548. Numerous cases have dealt with the issue of what is a "similarly situated health care provider. In the case of Rodgers v. Adams, 659 So.2d 838 (Ala. 1995), the Alabama Supreme Court stated that in order to be considered "similarly situated, an expert must be able to testify about the standard of care alleged to have been breached…in the case." Nursing home cases generally deal with breaches in the standard of care provided to nursing home residents by nursing personnel. As such, a nursing care expert must generally be employed to testify as to the appropriate standards of nursing care and whether said standards were breached. If issues involving breaches in the standard of care in administration of the nursing home are present, a nursing home administrator should most likely be called to testify. In death cases, a physician should be called to prove causation.

IV. CONDUCTING DISCOVERY IN NURSING HOME CASES
A recent hotbed of controversy in nursing home litigation has been the scope of discovery that may be had in such cases. Alabama Code § 6-5-551 sets for the limitations on discovery in nursing home cases. Prior to January, 1999, the statute was interpreted by the Alabama Supreme Court to allow discovery of acts and omissions on the part of the nursing home relating to the resident. A nursing home plaintiff could not discover information of other acts or omissions that were deemed unrelated to the plaintiff even if the discovery sought was relevant to properly pled causes of action such as fraud and negligent staffing, hiring, supervision, training and termination. Ex parte Northport Health Services, Inc. 682 So.2d 52 (Ala. 1996); Ex part Golden, 628 So.2d 496 (Ala. 1993).

In January, 1999 the Alabama Supreme Court took a different view in the case of Ex part McCollough, 747 So.2d 887 (Ala. 1999). In McCollough, the plaintiff alleged that the defendant nursing home was negligent, wanton and willful in the hiring, training, supervising and retaining of employees that were not competent t provide care for plaintiff's decedent and other residents in the home. Plaintiff alleged that in committing the complained of acts and omissions, defendant failed to provide enough qualified staff leading to a "systemic failure" on the part of the nursing home to provide care. This systemic failure was alleged to have proximately caused the death of plaintiff's grandmother. To prove this allegation, plaintiff served interrogatories and requests for production including the following: (1) A detailed description of any previous and subsequent incidents occurring in the same or similar manner as the incidents made the basis of plaintiff's suit, (2) documents pertaining to investigations of alleged abuse, mistreatment and/or neglect of residents, (3) documents relating to complaints about resident care, mistreatment or abuse by nursing personnel, (4) disciplinary reports or other documents relating to physicians and nursing personnel, (5) nursing personnel evaluations, (6) employee complaints and (7) personnel records for all nursing personnel. The trial court denied the discovery citing Ex part Northport, supra. The plaintiff filed a writ of mandamus seeking an order requiring the trial court to compel production of the requested discovery.

The Alabama Supreme Court granted mandamus and stated that in order for the plaintiff to prove allegations of inadequate staffing, the plaintiff had to prove that the defendant had knowledge or was on notice of the inadequacy of its staffing policies. The Court agreed that the discovery was directly relevant to plaintiff's allegations of negligent hiring, training, supervision, retention and understaffing and was necessary for plaintiff to prove the alleged wrongful conduct. The Court granted the writ of mandamus and ordered the trial court to issue on order compelling production of the discovery.

In May, 2000 the Alabama legislature amended Alabama Code § 6-5-551 adding language in an attempt to bring causes of action grounded in the negligent, willful or wanton "hiring, training, supervision, retention, or termination of care givers" within the provisions of the Alabama Medical Liability Act. Immediately, defendant nursing home began to argue that such claims are subject to the same discovery requirements and restrictions with respect to the discovery of "other act[s] or omission[s]" as any other medical malpractice or liability claim notwithstanding the holding in McCollough.

After May, 2000 the Alabama Supreme Court began ordering trial courts to revisit previously entered orders granting motions to compel in light of the recent amendment to § 6-5-551. As such, a confusing situation developed with respect to discovery in nursing home cases leaving trial courts throughout the state pondering what to do with respect to ordering discovery in such cases.

On December 1, 2000 the Alabama Supreme Court issued an opinion in the case of Ex parte Ridgeview Health Care Center, Inc. _____ So.2d. _____ 1200 WL 4 (Dec. 1, 2000). In this case, the Court held that claims for wanton, reckless or negligent screening, hiring, training, supervision, and retention of employees were governed by the Alabama Medical Liability Act. Id. at 2. The Court stated that "not only are…claims based on the screening, hiring, training, supervision and retention of Ridgeview's employees governed by the Alabama Medical Liability Act, but so are all matters of discovery related to those claims. Id. The Court made clear that the amendments to § 6-5-551 supercedes its holding in Ex parte McCollough. Id at 3.

As a result of the holding in Ex parte Ridgeview, the necessity of thorough pre-suit investigation an for specificity in pleading in nursing home cases is greater than ever. The Court stated that

The Court seems to be stating that if claims falling within the purview of the Alabama Medical Liability Act including those for "systemic failure" to provide care based upon negligent, willful and/or wanton staffing, hiring, training, supervising and terminating employees are pled with enough specificity, the plaintiff is entitled to discovery necessary to prove those claims.

As with any case, discovery in a nursing home case must be tailored to the facts and circumstances of each individual case. Discovery propounded in a nursing home case will be largely grounded upon facts gathered in pre-suit evaluation. Nonetheless, standard discovery should be propounded on a variety of issues tending to prove underlying causes for breaches of the standard of care in the care and treatment of the resident.

Interrogatories should be aimed at discovering the identities of individuals with knowledge concerning matters raised in the underlying lawsuit as well as clarifying ambiguities, contradictions and inconsistencies in the nursing home records. Interrogatories should be propounded seeking the full names, addresses and telephone number of all current and former nursing personnel that provided care to the resident. This information is helpful in locating ex-employees of the home that can provide information concerning the resident. Defendants often object to providing this information as being overly burdensome and often evoke A.R.C.P. 33(c) which allows for the production of the nursing home chart which contains the names of the nursing personnel that provided care and treatment to the resident. Other interrogatories that should be served include but are not limited to the following:

Nursing homes cases are document intensive and requests for production should be exhaustive in scope in an effort to obtain as much information as possible not only about the care and treatment of the resident but also of procedures and policies of the nursing home. Requests for production should include but not limited the following:

Obviously, some (if not all) of these requests will draw standard objections from defendant nursing homes as well as some objections that are somewhat unique. One such defense is that the discovery sought is protected by "peer review" and "quality assurance" privileges codified at Alabama Code §§ 34-24-58 and 22-21-8 respectively. These privileges ostensibly protect information created in the peer review and quality assurance processes. Generally, Alabama law limits these privileges to information developed in actual peer review or quality assurance programs set up by the nursing home for those particular purposes, and when a nursing home raises them, the burden falls upon the nursing home to prove that the discovery sought falls within the protection of the privileges. Ex parte St. Vincent's Hospital, 652 So.2d 224 (Ala. 1994). Plaintiff's counsel should demand that the nursing home produce a privilege log detailing the materials claimed to be privileged and the basis for asserting the privilege.

V. CONCLUSION
This paper is intended to be a general overview of some of the more important issues involved in nursing home litigation and to provide some direction as to how to begin when faced with a potential nursing home case. Any lawyer involved in such a case should spend the time necessary to become familiar with all the relevant statutes and case law implicated in such cases and spend the time necessary to properly evaluate and prepare the case by thoroughly reviewing all records involved in the case. Doing so will help to prevent the filing and engaging in cases with little or no merit and help to assure the success of the lawyers involved in these cases.

APPENDIX
The following is a list of addresses and websites from which you can obtain information that may be helpful to you in handling nursing home cases in Alabama and neighboring states.

ALABAMA OMBUDSMAN

Ms. Marie Tomlin
State Long-Term Care Ombudsman
COMMISSION ON AGING
RSA Plaza, Suite 470
770 Washington Avenue
Montgomery, AL 36130
(334) 242-5743
FAX: (334) 242-5594

FLORIDA OMBUDSMAN

Steve Rachin, Esq.
State Long-Term Care Ombudsman
Florida State LTC Ombudsman Council
600 South Calhoun Street, Room 270
Tallahassee, FL 32301
(850) 488-6190
FAX: (850) 488-5657

GEORGIA OMBUDSMAN

Becky Kurtz, Esq.
State Long-Term Care Ombudsman
Division of Aging Services
2 Peachtree St. NW, 36th Floor
Suite 36-385
Atlanta, GA 30303-3176
(888) 454-5826
FAX: (404) 463-8384

ALABAMA DEPARTMENT OF PUBLIC HEALTH
201 Monroe Street, RSA Tower
PO Box 303017
Montgomery, AL 36130-3017
(334) 206-5075
website: www.alapubhealth.org

ALABAMA DEPARTMENT OF SENIOR SERVICES
RSA Plaza, Suite 470
770 Washington Avenue
Montgomery, AL 36130 - 1851
(334) 242-5743
(877) 425-2243
FAX: (334) 242 5594
email: ageline@adss.state.al.us
website: www.coa.state.al.us

HEALTH CARE FINANCING ADMINISTRATION
7500 Security Blvd
Baltimore, MD 21244-1850
(410) 786-2165
website: www.hcfa.gov

ADMINISTRATION ON AGING
330 Independence Avenue, SW
Washington, DC 20201
email : AoAInfo@aoa.gov
website: www.aoa.dhhs.gov

Telephone:

• (800) 677-1116 (Eldercare Locator - to find services for an older person in their locality)
• (202) 619-7501 (AoA's National Aging Information Center -- for technical information and public inquiries)
• (202) 401-4541 (Office of the Assistant Secretary for Aging) (Congressional and Media Inquiries)
• FAX: (202) 260-1012

WEBSITES OF INTEREST:

American National Nursing Home Listing: www.annhl.com
Assess America for Seniors: www.seniors.gov
National Council of Senior Citizens: www.ncscinc.org
www.elderweb.com
www.senior.com
www.seniors.com
www.seniorsites.com
www.generationA.com

GOVERNMENT WEBSITES:

Department of Health and Human Services: www.os.dhhs.gov
National Institutes of Health: www.nih.gov
Social Security Administration: www.ssa.gov
Medicare: www.medicare.gov
Healthfinder: www.healthfinder.gov

¹ Radio Address of President Clinton, September 16, 2000.
² Nursing homes generally will produce records upon request of the resident's sponsor. However, in cases where the resident has died, it may be necessary for the representative of the decedent's estate to request the records. In such cases, letters of administration should accompany the records request.
³ The comprehensive assessment and plan of care may also contain other assessment documents such as nursing assessments, skin breakdown assessments, fall risk assessments, social assessments and others. These documents should be reviewed, compared and contrasted as the often reveal inconsistencies, contradictions and errors tending to indicate that the home failed to adequately assess the resident and as such failed to institute a proper plan of care.