By Attorney Mike A. D’Amico
November 2001
You are the knight riding the white horse. There are few areas of personal injury which allow plaintiff lawyers to be viewed by most jury pools as good, important and beneficial for society. Representing the elderly in meritorious nursing home cases is just that. Most of us feel sick to our stomach when we think about our elders, the grandmothers and grandfathers of the world, being deprived of needed care; and sicker still when the deprivation rises to the level of obvious abuse. When such a claim comes into your office remember this and if you are not equipped to investigate and pursue the case yourself consider referring the case to a colleague.
I confess that I did not always feel this way about nursing home cases. I viewed these claims as having low legal value because of the typical older age of the client, limited life expectancy and poor health. I did not believe that the time and expense of pursuing such a claim would pay off for the client in the end. I credit one of my partners, Mark Griffin, for helping to change my point of view. He recognized the jury appeal of nursing home cases, the horrible feelings which are conjured up when we think about our loved ones being neglected and how we would never want this for ourselves or our mother and father. Now I am a true believer.
But these cases are not for the faint of heart. They are very expensive to pursue(similar to a medical malpractice or products liability case in terms of cost), are very time consuming both in pre-suit investigation and post-suit discovery and are document intensive. Most cases will require the retention of several expert witnesses and a long stretch of litigation if a good result is to be achieved. Most importantly these cases will require you to learn a complex web of statutes, regulations and standards which few have had to deal with outside of these types of cases. And you will not get any help from a developed body of case law in Connecticut because it doesn’t exist. I have been unable to locate a single Connecticut Appellate or Supreme Court case which discusses nursing home liability and only six(6) Superior Court decisions.(See Durkin v. First Healthcare Corp., 1990 Ct. Sup. 2646(1990); Byrd v. Hartford Hospital, 1991 Ct. Sup. 8060(1991); Brown v. Riverside Health,1995 Ct. Sup. 13141(1995); Morgan v. Tolland County Health Care, Inc., 1996 Ct. Sup. 1336(1996); Gavigan v. Country Manor Health Care, 2001 Ct. Sup. 3778(2001); Smith v. Hillcrest Healthcare,Inc., 2001 Ct. Sup. 10400(2001)) Why? Because most of us have felt as I used to feel and have not typically pursued these cases.
The purpose of this paper is to provide you with a basic understanding of the issues you need to know so that you can understand the common complexities of a nursing home case. It is not intended to be an exhaustive analysis of all issues discussed as this would not be possible in such a short presentation.
A nursing home is a facility licensed by the Connecticut Department of Public Health/ Commission on Hospitals and Health Care for patients who have “uncontrolled and/or unstable and/or chronic conditions requiring continuous skilled nursing services and/or nursing supervision or have chronic conditions requiring substantial assistance with personal care on a daily basis.” This is different from a rest home which is for patients that have “controlled and/or stable chronic conditions which require minimal skilled nursing services, nursing supervision, or assistance with personal care on a daily basis.” Connecticut Regulations 19-13-D8t(d)(1)(A). The license will specify, among other things, the patient capacity for each level of care, the services provided and the names of the Administrator, the Medical Director and the Director of Nurses. Connecticut Regulations 19-13-D8t(b)(2)-(3).
Each facility must have a “governing body” which shall have the responsibility of adopting written facility by-laws; providing sufficient staff to comply with state and federal statutes and regulations; adopting written policies to assure the protection of patient rights; and the appointment of a qualified administrator, among other responsibilities. Connecticut Regulations 19-13-D8t(e)(2).
The Administrator must be licensed as such by the Department of Public Health and is responsible for the enforcement of State and federal regulations; submission of reports for “reportable events” as defined in Connecticut Regulations 19-13-D8t(g); employing qualified staff in sufficient numbers to meet patient needs; developing a coordinated program of orientation, training and education for staff to improve patient care; protecting patients’ personal rights; maintaining a patient roster and annual census; and appointing a Medical Director and a Director of Nurses, among other responsibilities. Connecticut Regulations 19-13-D8t(f).
The Medical Director must be a physician licensed in Connecticut with at least one(1) year of clinical practice in adult medicine(a specialty in gerontology is not required although it is the opinion of this writer that it should be). The Medical Director has the responsibility to enforce the facility’s by-laws regarding medical care; assure that quality medical care is provided to patients; approve or disapprove of a patient admission based on the facility’s ability to provide adequate care for that patient; assure that each patient has an assigned personal physician; and visit the facility at least once every 7 days if a nursing home, or once every 30 days if a rest home. A record must be kept of these visits which includes the names of patients who have been audited. Connecticut Regulations 19-13-D8t(h).
Each facility must have an “organized medical staff” which at a nursing home(as opposed to a rest home) must include at least three(3) physicians. The Medical Director approves or denies applications to be on the medical staff. The medical staff meets at least quarterly to discuss patient care topics and minutes must be kept of these meetings. The organized medical staff must adopt written by-laws governing medical care of the facility’s patients. Connecticut Regulations 19-13-D8t(i).
The Director of Nurses for a nursing home(as opposed to a rest home) must be a licensed nurse with one(1) year of rehabilitative or geriatric nursing and one(1) year of nursing administration and a full-time employee. The Director of Nurses is responsible for developing and maintaining written nursing standards of practice for the facility; recommending to the administrator the number and levels of nurses and nurse aides to be employed; the selection of nurses and nurse aids; designation of a nurse in charge for each unit for all shifts(“nurse supervisor”); and developing a schedule of daily rounds and assignment of duties, among other responsibilities. Connecticut Regulations 19-13-D8t(j).
All designated nurse supervisors must be registered nurses and are responsible for notifying the patient’s personal physician of any significant changes in the patient’s medical condition or the need for immediate care; and if the patient’s personal physician does not respond promptly, then to notify the Medical Director. Connecticut Regulations 19-13-D8t(k).
All nurse aides employed by either a nursing or rest home must have completed a Nursing Aide Training Program and a Competency Evaluation Program approved by the Department of Public Health. Upon completion the nurse aide is registered on a registry maintained by the department which will contain a listing of any complaints of patient neglect or abuse which may arise in the course of the nurse aide’s employment.
It has been this writer’s experience that nurses and nurse aides do not want to neglect the patients. The problem is that that there are not enough of them employed, and of sufficient training, to care for the patient population at the necessary acuity level. (By acuity level I mean the level of care necessary to properly care for a patient based upon the patient’s medical condition.) The reason for the inadequate staffing is, at the simplest level, financial decision making by the owners of the facility. To be sure managed care as well as poor Medicaid and Medicare reimbursement payments are partially to blame for keeping the pool of available money lower than it could be for facility budgets; but this is no excuse for neglect. If you cannot deliver appropriate care then you should not be caring for patients; and you certainly should not be diverting available facility income from staffing needs to owner’s coffers at the expense of patient care.[1]
Most nurses, nurse aides and facility administrators I have had the opportunity to question acknowledge that the staffing at facilities is well below what it should be. In most cases you will be able to demonstrate inadequate staffing and you need to determine whether or not your client’s injuries were caused as a result. To help you investigate this issue, you should hire an expert with substantial experience in geriatric nursing and nursing home administration. I will discuss briefly some of what I have learned.
Both the federal and Connecticut regulations provide that each facility shall employ sufficient nurses and nurse aides to provide appropriate care for patients all day, every day. 42 CFR 483.30; Connecticut Regulation 19-13-D8t(m)(1). The federal regulation does not specify a mandatory minimum number of nurses or nurse aide hours per patient but the Connecticut regulation does. Connecticut Regulation 19-13-D8t(m)(5). The regulation sets forth the minimum paid productive hours(these are hours actually worked by the employee during which patient care is provided as opposed to vacation time, sick time or other paid non-productive time) for both nurses and nurse aides at both nursing homes and rest homes and for both the day and night shifts. Further the Connecticut regulations provide that a nursing home shall have one licensed nurse on each patient floor at all times; while the federal regulations provide that a registered nurse must be used for 8 consecutive hours each day of the week. Connecticut Regulation 19-13-D8t(m)(4)(A); 42 CFR 483.30(b)(1). It is important to remember that the Connecticut regulation although setting forth a mandatory minimum number of paid productive nursing and nursing aide hours per patient, specifically states that this is not the actual required number; rather the actual number of paid productive hours required is a function of the patients needs and the number of hours necessary to provide “appropriate care”. The federal regulation is more strongly worded and states that “the facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident as determined by resident assessments and individual plans of care”.
So how does one determine whether the staffing levels at any given facility are adequate? First it must be understood that the patient census(the number of patients in the facility) is not the determinative factor, although it has been this writer’s experience that some facilities regard it as such. In other words you can have 100 patients in a nursing facility with a low acuity level(patient needs require less care) or 100 patients in the same facility with a high acuity level(patient needs require a lot more care). If the facility simply uses the patient census as the determinative factor in scheduling paid productive nursing staff hours there will be numerous patients at the high acuity level who are terribly neglected.
Next you must request and review documents for the time period over which your client suffered injuries which will help determine the nursing staff paid productive hours at the particular facility, the patient census and the acuity levels of the patient population. Some of these documents will be common to all facilities because they are required to be maintained by either federal or Connecticut law. These common documents are: (1) Resident Assessment Instruments(RAI) which set forth a comprehensive assessment of each patient’s needs for care which must be completed within 14 days of admission. 42 CFR 483.20(a) and (b); Connecticut Regulation 19-13-D8t(o)(2)(H). (2) Quarterly Review Assessments which are completed every 90 days for all patients to update their care needs. 42 CFR 483.20(c); Connecticut Regulation 19-13-D8t(o)(2)(H). (3) Comprehensive Care Plans for each patient which set forth the objectives and time tables of care identified in the RAI and which must be completed within 7 days of the RAI. 42 CFR 483.20(k); Connecticut Regulation 19-13-D8t(o)(2)(I). (4) Quarterly Updated Care Plans which are the periodic modifications of the Comprehensive Care Plans to keep the patient care needs current. 42 CFR 483.20(k)(2)(iii); Connecticut Regulation 19-13-D8t(o)(2)(I). (5) Written Summaries of Monthly Staffing Meetings by the Administrator and the Director of Nurses held for the purpose of assessing the adequacy of nursing staff, reviewing any necessary changes in nurse staffing and acting accordingly. Connecticut Regulation 19-13-D8t(m)(3), and(6) Annual Patient Roster and Census. Connecticut Regulation 19-13-D8t(f)(3)(H).
Other documents which may be helpful in determining adequate nurse staffing are the result of Connecticut surveys, or audits, of a particular facility by the Connecticut Department of Public Health, or summary forms prepared by the Connecticut Department of Public Health upon the request of a facility based upon patient information required to be submitted by the facility. These documents may be maintained by the facility as a matter of corporate policy, or if not, are in the possession of the Connecticut Department of Public Health. These documents are: (1) Resident Census and Conditions of Residents/HCFA Form 672 which have been completed by the facility as a result of the annual survey, or audit by the Connecticut Department of Public Health. This form sets forth the patient census as well as the number of patients which require care in certain specified categories. Sample appended as Appendix B. (2) Resident Level Summary forms which have been prepared by the Department of Public Health for the facility upon request of the facility. This form sets forth the acuity level of each patient expressed as a number based upon specified care categories and is tabulated by the Department of Public Health computer software based upon the Comprehensive Resident Assessments and Quarterly Review Assessments discussed previously. In general, the higher the number, the greater the care that is needed. Sample attached as Appendix C. These are also sometimes referred to as “Quality Indicator Reports” and many nursing facilities request these reports monthly. As a general rule the Connecticut Department of Public Health will investigate at audit any patients with a total score of 4 or higher.; and (3) OSCAR Reports of the facility which indicate the percentage of patients at the facility needing care in specified categories and compares the facility percentages with similar facilities in the state, region and nation.
Still other documents which may prove beneficial in assessing adequate staffing are solely a function of corporate policy. Some examples of these types of documents are: (1) Labor Distribution Reports which are the management tool used to track staffing levels, payroll costs, adherence to budget and quality care issues linked to staffing levels. These reports will typically set forth the number of nurses, nurse aides,etc. for a given payroll period amongst other budgetary information. These types of reports may be known by different names depending upon the facility so the category of information being requested should be described in any request for these types of documents; (2) Daily Staffing/Census Reports which would typically show the number of patients in the facility, the acuity level of each patient and the number of nurse and nurse aide hours per day, as well as whether the nursing staff hours were employees or from a temporary placement agency; (3) Payroll Reports by Employee for each pay period which would show whether the hours paid were productive hours or non-productive hours; (4) Invoices from any temporary employment agency which provided nursing staff; (5) Acuity Reports which set forth acuity levels for all patients and are usually generated monthly(although it has been suggested to this writer that these reports should be generated weekly because of frequent changes in patient population and patient acuity levels) to assess staffing needs for patient care, and (6) Medicare Sign-In Sheets which are sometimes used to document nursing hours dedicated to patients receiving Medicare benefits. Medicare audits are conducted of facilities and the facility needs to show at audit that its billing to Medicare for nursing staff are earmarked to Medicare patients. Because the types of documents which might prove useful in analyzing the adequacy of nursing staff can vary substantially from facility to facility, you should request the Administrator’s Orientation Manual, if one exists, which should set forth the types of documents maintained by the Administrator for the facility.
Once all of this documentation is requested and received, it should be provided to your staffing expert for analysis. The question that needs to be answered by the expert is whether there was adequate nursing staff hours dedicated to the care of your client based on the clients needs(acuity level). The only way to determine this is to know the total patient population at the facility for the relevant time period, the acuity level of the patients for the relevant time period to estimate the number of nursing care hours necessary for their needs, the number of paid productive hours of nursing staff for the relevant time period and the skill level of the nursing staff, i.e. registered nurses, licensed practical nurses or nurse aides. It has been suggested by gerontological research that 2.9 hours of nurse aid time per patient per day is an average adequate amount of care time to complete five basic core needs such as toileting, repositioning and assistance with eating; and that 4.55 hours of total nursing time(registered nurse, licensed practical nurse and nurse aide) per patient per day is on average adequate for good care.[2] I have learned that a ratio of 1 nursing staff to 5 patients is advocated by elderly advocacy groups as necessary on average for good care. Whether there was adequate staffing to properly care for your client and prevent the claimed injury/death is a case by case analysis.
A wealth of information regarding staffing can also and should be gotten via deposition. The nurse aides and nurses caring for your client should be asked what their patient load was, whether they needed more help to care for their patient load, what care tasks they were responsible for and the time it took to complete each task on average, etc. The Director of Nursing should be questioned about the nursing staff levels and the reasons therefore. If there is a Director of Staff Development these issues should be explored with him/her as well. The Medical Director should be deposed and asked whether he/she cared for the patient; whether he/she also had a private clinical practice and the number of patients he/she would typically see in his/her practice each day; whether he/she is the Medical Director of another facility simultaneously; whether he cared for other patients at the facility(s) as well; and what time was actually left to care for your client during the relevant time period. Also former employees can and will provide a wealth of information about staffing problems in the facility and should be deposed.
I have been told by some nursing home administrators that there is a current trend which sees nursing homes becoming “sub acute”, i.e. that the acuity level of patients is rising requiring more skilled care, and that facilities which are traditionally used to lower acuity levels are frequently understaffed. Regardless of the reasons, it is obvious that understaffing is a serious problem with direct correlation to poor patient care.[3]
The applicable body of law consists mostly of the Connecticut Regulation 19-13-D8t(a)-(v) entitled Chronic and Convalescent Nursing Homes and Rest Homes with Nursing Supervision which is part of The Public Health Code; C.G.S. 19a-550 entitled the Patient’s Bill of Rights; 42 CFR 483.1-483.75 entitled Requirements for Long Term Care Facilities as promulgated by Health Care Financing Administration, Department of Health and Human Services; and various sections of the Social Security Act, 42 U.S.C 1302, 1395i-3(a)-(f), 1395x(j) and (l), 1395z, 1395hh, 1396a(a)(28), 1396d(a),(c), and (d) and 1396r(a)-(f)(Nursing Home Reform Act).
There are various sources of standards which are not statutory or regulatory. These are standards which are similar in nature as in any medical malpractice case. For instance, doctors which specialize in care of the elderly are known as gerontologists. The American Board of Internal Medicine certifies physicians with an Added Qualification in Geriatric Medicine if they meet certain competency requirements. A gerontologist should be consulted as to appropriate standards of care for medical treatment of nursing home patients. Nurses which specialize in the care of the elderly are certified in geriatric care by the American Nurses Association(ANA). The ANA publishes a booklet entitled “Scope and Standards of Gerontological Nursing Practice” which is helpful in understanding geriatric nursing standards of care. And as with any medical malpractice case there are various medical issues which may need to be analyzed by doctors of differing specialties. For example frequently issues will arise about decubitus ulcers(pressure sores). Doctors which specialize in wound care are typically general or plastic surgeons and should be consulted concerning appropriate care and treatment of stage III or IV decubitus ulcers.
In addition many nursing homes are accredited by the Joint Commission on the Accreditation of Healthcare Organizations(JCAHO) because private insurance companies typically require this for payment eligibility. JCAHO has a Long Term Care Survey Manual which sets forth criteria for accreditation which can be evidence of appropriate standards of care which a nursing home has agreed to comply with as a condition for accreditation.
There are also guidelines published by the federal Department of Health and Human Services and the Agency for Health Care Quality and Research on various common problem areas in nursing homes such as decubitus ulcers, dehydration, malnutrition and fall risks which can be helpful in understanding prevailing standards of care.
Most nursing home cases will require expert testimony on the adequacy of nursing staff from an experienced Nursing Home Administrator or registered nurse who has experience as the Director of Nursing or as the Director of Staff Development. In most cases you will also need a registered nurse who is certified in geriatric care as well as a physician who is a gerontologist. Finally you will likely need various other physicians in other specialties depending upon the medical issues presented by your particular case.
Most nursing home cases are plead as medical negligence cases. Thus the requirements of C.G.S. 52-190a apply. The allegations of negligence will necessarily vary depending upon the particular injuries and the cause(s) thereof. Common allegations involve inadequate nurse staffing; inadequate provision of food(malnutrition) or water(dehydration); incompetent staff based upon the patient’s acuity level; inadequate care planning; inadequate monitoring of nurse staffing and appropriate modification in response thereto; and inadequate continuing assessment of patients and therefore inadequate care planning. Allegations should include specific claims of negligence for each injury caused and all injuries caused during the statute of limitation period should be alleged to show a pattern of neglect.
You should include negligence per se allegations for the violation of applicable State and federal statute and regulations and should state each by citation within the complaint.
If your investigation discloses prolonged and continuous inadequate staffing and therefore a conscious decision to remain understaffed at the expense of patient care, or similar egregious and reckless acts, you should include a separate count for common law punitive damages.(A history of regulatory, disciplinary citations can be requested from the Connecticut Department of Public Health pursuant to FOI) You should also allege violations of the Connecticut Unfair Trade Practices Act, C.G.S. 42-110b,et seq., and seek punitive damages as per 42-110g. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17(1997) discussing CUTPA claims in cases of medical negligence; and Brown v. Riverside Health,1995 Ct. Sup. 13141(1995) wherein a CUTPA claim in a nursing home case survived a Motion to Strike prior to Haynes, supra; cf. Smith v. Hillcrest Healthcare,Inc., 2001 Ct. Sup. 10400(2001) wherein a Motion to Strike a CUTPA claim was granted post-Haynes. (It is this writer’s opinion that a CUTPA claim is valid in a nursing home case if claims of inadequate nurse staffing or similar claims are tied to financial, or essentially business decisions of the facility.)
One of the reasons I believe Connecticut has lagged behind other states in developing a body of case law on nursing home cases is that we have been reluctant to pursue them based upon our concern that the damage awards will be low and the case therefore impractical to pursue. I believe the time has come to seek a change in the way punitive damages are calculated in Connecticut which at common law has typically been by adding to the verdict attorney fees and costs. This is not a sufficient penalty to deter future misconduct by affluent business enterprises. We should strive to gain judicial acceptance and approval of punitive damages based upon a percentage of the net worth of the defendant. This is the most meaningful way to deter future reckless misconduct.
I do not advise accepting any case which does not involve serious injuries or death. But I also suggest that you not refuse a case of serious injury or death simply because of the potential client’s age or prior adverse health conditions. The value of these types of cases lies in the jury’s ire over the obvious, lengthy neglect of the elderly. It is truly insidious when someone’s mother, father, brother, sister, grandmother, grandfather,etc. is not given enough food for months at a time while he/she withers away dropping tens of pounds until they are a virtual skeleton; when a patient is not given enough water so that he/she suffers from dehydration like a person lost and floating at sea; when a patient has pressure sores so bad that their bones are exposed and maggots live in the wound; or when someone dies from gangrene because an infection was left untreated. You need to make these cases about elder abuse and neglect; systemic understaffing and corporate greed, Medicare fraud and negligence per se for violating government mandated standards.
Do not accept these cases unless you are prepared to try them. You are better off referring them to a colleague with experience in nursing home claims and arranging an appropriate fee split.
Do not accept a case with a bad plaintiff or a bad family. As with other cases a good plaintiff is a must.
It is important that the Connecticut Department of Public Health and the Nursing Home Ombudsman Office(See C.G.S. 17b-400,et seq. and Connecticut Regulations 17-136d-1,et seq.) of the Connecticut Commission on Aging be notified of negligent and reckless conduct of a nursing home. This will lead to appropriate investigation and regulatory citations and further discourage ongoing misconduct. It will establish an official record of the misconduct which is accessible to others when investigating a nursing home for their loved ones. See C.G.S. 19a-536.
And the investigation report will assist you in the preparation of your case.
Medical records of nursing home patients are required to be kept for a period of ten(10) years following the death or discharge of a patient. Connecticut Regulation 19-13-D8t(o)(5). And when requesting copies consider requesting color copies as some facilities color code the records based upon the employee shift during which the records were created.
Also I do not typically request all medical records for the entire stay of the patient. This would result in voluminous records and a burdensome sorting task. I find it is more efficient and productive to request at most three(3) years of records which is the statute of repose for medical negligence claims absent some longer tolling argument. Of course if your investigation suggests additional records should be requested you absolutely should do so.
Medical records must be provided for inspection within twenty-four(24) hours of request and copies within two(2) working days of request. All requests should be mailed by certified mail so that a record is had of when the request was received. 42 CFR 483.10(b)(2)(i)-(ii).
Upon admission the RAI will document the status of any pressure sores which the patient already had, and quarterly assessments previously mentioned will likewise document the continuing status of the sores. Importantly, most facilities maintain more frequent reports which document the status of pressure sores called Decubitus Ulcer Reports or some similar name and also photograph these sores, typically by Polaroid, and append the photos to the weekly reports. These photographs should be requested and can often provide compelling evidence of neglect.
You should be sure to sue the parent company if the state facility is a subsidiary; the State subsidiary; the Administrator; the Medical Director; the Director of Nursing; and any individual nurse or nurse aid and doctor who is believed to have been negligent based upon pre-suit investigation.
Try to prove liability through the nursing home employees. Have them admit their responsibility to comply with the numerous State and federal laws and regulations. And have them explain the injuries, like pressure sores, and why they are trained to prevent them,etc.
In concluding, the defense will want to concentrate on the poor health of the patient and argue that the injury or death was unavoidable. You must focus on the conduct of the defendants. And of course your medical testimony must establish that the misconduct of the defendant caused or accelerated the patient’s injury or death. If you can accomplish these goals with a good plaintiff, you will succeed. I heard it said best by the Texas Appellate Court: “The burning candle of life is such a precious light in anyone’s existence that no one has the right to extinguish it before it flickers out into perpetual darkness and oblivion”. Valdez v. Lyman-Roberts Hosp.,Inc., 638 S.W.2d 111,116(Tex. Ct. App., 1982).
[1] See a recent article in the New York Times entitled “9 of 10 Nursing Homes Lack Adequate Staff, Study Finds” attached hereto as Appendix A.
[2] See Block and Clement, Proving the Effects of Inadequate Staffing, ATLA’s Litigating Nursing Home Cases, D-1-2(April 20-21, 2001)
[3] See Block and Clement, Proving the Effects of Inadequate Staffing, ATLA’s Litigating Nursing Home Cases, D-1(April 20-21, 2001)
