Smith Abbot, L.L.P. Newsletter, Nursing Home Liability

There are approximately 17,000 nursing homes in the United States today with 1.8 million beds.(1) These facilities provide skilled nursing care and related services for some of the most vulnerable members of our population. It has been estimated that 72% of all nursing home residents 65 and over are female, more than half have no close relatives, nearly all residents are unable to perform certain basic activities of daily living, and up to 80% need health services for mental impairments.(2) Most nursing homes are operated for profit with 52% being part of a chain.(3) It was recently estimated that approximately $78 billion is spent annually for nursing home care in this country.(4)

Perhaps due to the convergence of profit motives, weak regulatory history and a comparatively powerless and poor patient population,(5) the country has seen a surge in litigation involving nursing home abuse and neglect. This article will review the various sources of law bearing upon the quality of patient care in nursing facilities and analyze how the courts and legislatures across the country have attempted to protect nursing home residents.(6)

Standards of Care

In general, the common law provides that an institutional medical care provider, such as a nursing home or hospital, is under a duty to exercise such reasonable care and skill as the patients known mental and physical condition requires. The provider must take reasonable steps to discover the plaintiff’s actual physical and mental status. This duty to the patient is independent of any duty of care owed by an independent contractor private physician practicing within the facility.(7) In addition, approximately 96% of United States nursing homes receive Medicare or Medicaid funds. Any nursing home facility that accepts such funds must comply with standards relating to the health and safety of their residents. These regulations are promulgated by the Center for Medicare and Medicaid Services(8) and enforced by state agencies. Under these regulations, a "nursing facility" is defined as:

an institution that is primarily engaged in providing skilled nursing care and related services for residents who require medical or nursing care;
rehabilitation services for the rehabilitation of injured, disabled or sick persons; or
health-related care and services on a regular basis, to individuals who, because of their mental or physical condition, require care and services (above the level of room and board) that can only be made available to them only through institutional facilities; and
not primarily for the care and treatment of mental diseases.(9)

In the decades following enactment of Medicare and Medicaid, there was a gradual recognition of the need for more stringent regulation of the nursing home industry. This effort lead to the passage of the Federal Nursing Home Reform Act ("NHRA"), effective October 1, 1990.(10) The NHRA amendments include recognition that residents are entitled to receive care in a manner and in an environment that will promote the maintenance or enhancement of their quality of life. The regulations promulgated under that statute recognize that residents are entitled to receive care and services to attain or maintain their highest practicable physical, mental and psycho-social well being. The regulations establish a single set of more stringent requirements for all nursing homes.

Compliance with federal standards for Medicare or Medicaid certified nursing homes is determined by the state office licensing nursing homes. This office conducts annual, unannounced inspections called "standard surveys" of each certified nursing home. These surveys must be conducted within 15 months of the prior survey and anyone that gives a nursing home prior notice of a survey is subject to a civil money penalty of not more than $2,000.(11) When a survey reveals that a facility has failed to comply with a federal standard, a deficiency is noted in the report. These surveys may be admissible in subsequent civil litigation.(12) A facility found to have provided substandard quality of care by a standard survey is immediately subject to a more detailed "extended survey."(13) In addition to the NHRA, state agencies also regulate nursing homes through licensing requirements usually promulgated by the Department of Health.(14) Despite this heightened regulation of nursing facilities, recent studies have indicated that nursing homes are not sufficiently monitored to ensure the safety and welfare of their residents.(15)

Nursing homes that participate in Medicare or Medicaid are required to conduct a comprehensive assessment of each resident’s functional capacity within 14 days of admission, promptly after a significant change in a resident’s physical or mental condition, and at least every 12 months.(16) The nursing home is required to maintain clinical records on each resident, including the resident’s assessments, a written plan of care and the results of pre-admission screening.(17) Periodic resident assessments are reflected in a form denominated the Minimum Data Set (MDS). The MDS includes information regarding the resident’s customary routines prior to admission to the facility, cognitive function, communication skills and abilities, ability to perform activities of daily living (ADLs), health status and psycho-social well being. These periodic assessments of a resident must be used to develop a written plan of care. This plan, which must be updated and revised periodically, describes the medical nursing and psycho-social needs of the resident and how such needs will be met. The facility must ensure that the resident’s abilities in ADLs do not diminish unless it can be demonstrated that such diminution is the unavoidable result of the resident’s clinical condition.(18)

Understaffing of nursing homes is the most often cited reason for abuse and neglect of residents. Under federal regulation, each resident’s care must be supervised by a physician, and a physician must be available for emergencies. The medical care residents may be supervised by nurse practitioners, clinical nurse specialists and physicians’ assistants working in collaboration with physicians.(19) Nursing homes must have 24 hour nursing services sufficient to meet the needs of its residents and a registered nurse must be employed for at least 8 consecutive hours per day, 7 days per week, unless the facility meets waiver requirements that may be granted by the state. If a waiver is granted, however, the facility must notify residents, their guardians or legal representatives, and members of the resident’s immediate families when received.(20)

The Nursing Home Reform Act requires that before nursing homes may employ any individual as a nurse aid, it must be demonstrated that the prospective employee has completed a training and competency evaluation program and is competent to provide such services. States must establish and maintain a registry of all individuals who have satisfactorily completed nurse aid training and competency evaluation programs.(21) In addition, states must maintain a registry of specific, documented findings of resident neglect, abuse, or misappropriation of resident property by a nurse aid. Nursing homes must check the appropriate state registry before hiring a nurses aid.(22)

Federal regulations address specific areas of quality-of-care concerns to residents. For example, a facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible.(23) Federal regulations also require that pressure sores be adequately treated. A resident who enters a facility without pressure sores must not develop them unless the individual’s clinical condition demonstrates that they were unavoidable. A resident that has pressure sores upon admission must receive the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.(24) In addition, nursing homes are obligated to ensure that residents who enter their facilities without problems related to urinary incontinence, range of motion, mental functioning, and nasogastric tubes do not develop them unless the resident’s clinical condition unavoidably causes it. Moreover, residents who enter with any of these problems must receive appropriate treatment and services.(25) In addition to maintaining proper nutrition, nursing homes are also required to ensure that patients are provided with sufficient fluid intake to maintain proper hydration and health.(26) The nursing home must also ensure that the resident is free from any significant medication errors.(27)

Understaffing in the nursing home can lead directly to violations of federal regulations regarding proper hydration, nutrition, medication dispensation, incontinence, falls and pressure sores. Both understaffing and improper staffing of the nursing home is most directly related to abuse of residents. Federal regulations require that residents in nursing homes must be cared for in an environment that promotes maintenance or enhancement of each resident’s quality of life, dignity and respect in full recognition of his or her individuality.(28) The NHRA also required nursing facilities to establish a committee comprised of a director nursing, a physician and at least three other staff members to assess quality of care and develop plans to correct deficiencies.

The Nursing Home Reform Act codified specific resident rights. These rights include the right to be free from physical and mental abuse, corporal punishment and involuntary seclusion. Any alleged violations of these rights are to be reported immediately to the nursing home administrator and the facility must investigate thoroughly and report the results to the administrator and state officials.(29) Nevertheless, patient abuse is rarely reported by the staff.(30) Retaliation against those who do report abuse is specifically prohibited in some states.(31) In addition, residents have the right to be free from physical or chemical restraints used for the purpose of discipline or convenience and not required for therapeutic reasons.(32 ) A resident may be physically restrained if the restraint would promote greater functional independence and the nursing home has explored and tried less restrictive, supportive devices. The restraint must be ordered by a physician for a specified time and the resident must be released, exercised and toileted every two hours. The use of the restraint must be re-evaluated periodically.(33)

As to chemical restraints, nursing homes must ensure that residents are free from unnecessary drugs. Unnecessary drugs are defined as those which are given in excessive doses or for excessive periods of time.(34) In addition, a nursing home must immediately inform the resident , consult with the resident’s physician and the resident’s legal representative or an interested family member when there is an accident involving the resident that results in injury or has the potential for requiring physician intervention.(35)

Although they must not be improperly restrained, residents must be given adequate supervision to prevent falls.(36) Understaffing often results in a failure to respond to calls for assistance from a resident leading to accidents from subsequent attempts to ambulate. The facility must carefully balance the resident’s right to be free from unnecessary restraint with his or her right to adequate prevention of falls.(37)

Private Right of Action

[1] Federal

The Nursing Home Reform Act did not give an explicit right of action(38) to enforce federal regulations. Nevertheless, Congress did state that federal enforcement procedures of nursing home regulations were "in addition to those available under state or federal law and should not be construed as limiting such other remedies, including any remedy available to an individual at common law."(39) In addition, one House committee specifically noted that the law was not meant to "limit remedies available to residents at common law, including private rights of action to enforce compliance with requirements for nursing facilities."(40)

[2] Common Law

Despite the lack of an explicit private cause of action in the federal legislation, claimants have successfully utilized the standards of care reflected in nursing home regulations to obtain compensatory and, at times, punitive damages in negligence or malpractice claims brought against nursing home facilities.(41) Plaintiffs may also look to standard care guidelines promulgated by professional organizations to establish standards of care.(42)

In addition to tort causes of action, other common law claims against nursing facilities would include those sounding in breach of contract. Upon admission to the facility, a resident signs an admission agreement which details the services which will be provided to the resident. Residents who are injured while in the care of the facility may trace the cause of their injuries to breaches of this agreement.(43) In addition, plaintiffs may claim that they are a third-party beneficiary of the provider agreements between the facility and Medicaid or Medicare.(44)

[3] State Statutory Private Right of Action

[i] In General

Many states have authorized a private right of action that allows nursing home residents to sue facilities for injuries sustained as a result of a violation of their rights under state law. In general, these statutes allow residents to obtain injunctive relief as well as compensatory and punitive damages. Attorneys fees and costs may also be awarded. Many statutory schemes include a provision stating that damage awards will not affect the resident’s eligibility for public benefits such as Medicaid.(45) Although nearly half the states have enacted similar legislation, most of the reported verdicts in recent years have been reached in a few jurisdictions, such as Florida and Texas.(46) The suggestion that this increased claims activity has lead to significant rises in long-term healthcare costs has led to movements to scale back the remedies available to victims of nursing home neglect and abuse and to extend to facility staff certain protections afforded under state medical malpractice legislation.(47)

[ii] Jurisdictional Analysis

All the states that provide a private right of action for long-term care residents, except California, Connecticut, West Virginia and Wisconsin, extend this remedy to residents of assisted living facilities, as well as nursing homes.(48) Liability under these statutes may only apply to the facility and not the employees or agents of the facility.(49)

In addition to the types of facilities covered under the statutes, issues have been raised as to the standing of plaintiffs who have brought actions pursuant to state elder abuse statutes. For instance, in Florida, currently before the Supreme Court is the issue of whether an action against a nursing home facility under the state statute survives the death of the resident when the alleged infringement of the statutory rights of the resident did not cause the plaintiff’s death.(50) Certain states have explicitly expanded the right of action to cover not only the resident, but also his or her guardian or representative.(51)

Most states providing for private right of action for nursing home residents allow plaintiffs to be awarded both compensatory and punitive damages.(52) However, North Carolina and Wisconsin do not allow money damages as a remedy under the statute.(53) In addition, in recognition of the fact that juries have traditionally awarded small sums for injuries to elderly plaintiffs, several states have provided for minimum statutory damages.(54) For instance, in New York, plaintiffs are entitled to no less than 25 percent of the daily cost to care for the resident in the facility.(55)

Attorney fees may be recovered by prevailing plaintiffs under the statutes in California, Illinois, New Hampshire, New York, Oklahoma, West Virginia and the District of Columbia.(56) In Kentucky, Louisiana, Missouri, New Jersey and Ohio either prevailing party may obtain attorneys fees.(57)

In addition, at least one state has a statutory provision which permits a court to dismiss claims brought under the state statute if the violations are deemed to be de minimus.(58)

Certain states have included in their legislative scheme a provision prohibiting a waiver of the resident’s rights under the protective statutes in a contract, such as an admission agreement.(59) New York, West Virginia and the District of Columbia specifically exempt all or a portion of any award from determinations concerning eligibility for public benefits such as Medicaid.(60)

As noted above, state legislatures and courts have begun to address the issue of the interplay of private right of action statutes with the requirements of traditional negligence and malpractice claims. Florida, Illinois, Kentucky, Louisiana, Maine, Missouri, West Virginia and the District of Columbia have specifically provided that remedies under the private right of action are cumulative of traditional tort remedies otherwise available to residents.(61) In Connecticut, the remedies provided by the state private right of action statute are considered non-cumulative.(62) In New York, it has been held that to impose strict liability on a facility under the state’s private cause of action there must be a deprivation of a personal right or benefit contemplated by New York’s Resident Bill of Rights. A violation of a regulation or statutory right unrelated to those provisions is insufficient to bring the claim outside of traditional tort or statutory liability.(63) In California, the courts have held that the state’s Elder Abuse Act does not apply to acts of simple professional negligence, but does cover what it termed "reckless neglect."(64)

State Deceptive Trade Practice Statutes

Injuries sustained by nursing home residents may also be the subject of actions brought under consumer protection statutes. These laws are generally referred to as Unfair and Deceptive Acts and Practices ("UDAP") Statutes. In general, these UDAP statutes attempt to compensate consumers for damage caused by the misrepresentation of businesses. To obtain damages under a UDAP statute, the plaintiff must establish that:

the defendant engaged in an unfair or deceptive trade practice;
that the practice occurred in the course of the defendant’s business, vocation or occupation;
that the violation significantly impacts the public; and
that the plaintiff suffered an injury that was caused by the challenged practice.(65)

Recently, courts have begun to interpret these statutes as covering medical care providers. As one court has noted, when medical care providers "chose to reach out to the consuming public at large in order to promote business - like clothing retailers, automobile dealers and wedding singers who engage in such conduct - they subject themselves to the standards of an honest marketplace secured by" consumer protection statues.(66) While decisions interpreting these consumer protection statutes generally preclude a "medical malpractice claim wrapped in the guise of consumer fraud from being asserted under consumer protection statute,"(67) UDAP statutes have been held applicable to nursing homes.(68)

When plaintiffs can prove that the defendants misrepresented the care they intended to provide to their residents, they may obtain damages under these statutes without demonstrating actual reliance upon the deceptive acts.(69)

UDAP statutes generally provide that plaintiffs are entitled to treble actual damages as well as attorney’s fees. These "actual damages" include pain and suffering caused by the violation of the statute.(70) In summary, where the plaintiff can establish that the nursing facility misrepresented to their residents the quality of care which they intended to provide and, as a consequence, they were injured due to the facility’s failure to live up to those standards, plaintiffs may obtain significant damages and attorney’s fees.

Conclusion

The abuse and neglect of nursing home residents is increasingly the focus of attention at both the state and federal levels of government. A special congressional report has found that over 30% of nursing homes in the United States have been cited for abuse violations over a two-year period.(71) This report was the first investigation to assess the incidence of abuse in nursing homes by comprehensively evaluating the results of state inspections.(72) This report found that over 2,500 of the abuse violations in this two-year period were serious enough to cause actual harm to residents or to place residents in immediate jeopardy of death or serious injury. The report found that the percentage of nursing homes cited for abuse violations in annual inspections tripled during the period of 1996 through 2000.

Clearly, the problem of neglect and abuse in nursing homes is far more prevalent than is generally recognized by the public. Counsel for plaintiffs and facilities must be conversant not only with regulatory enforcement and potential criminal prosecution, but also with the civil remedies available to nursing home residents. The common law and statutory rights discussed in this section will not only allow for fair compensation to victims of abuse and neglect, but play a role in deterring future egregious conduct.