Nursing Home Suit

The Law of the Land

If you need to bring a lawsuit against a skilled nursing facility then there is a very clear path by which to do so. In 1987 the US government passed the Omnibus Budget Reconciliation Act. This created a national minimum set of standards of care and rights for people living in nursing homes. The requirements for long-term care facilities are the health and safety standards that long-term care facilities must adhere to in order to participate in Medicaid or Medicare programs. These standards are important as they generally dictate how defense attorneys defend allegations of misconduct by the skilled nursing facility operators.

Staffing

According to 42 CFR Section 483.35 covering “Nursing Services,” skilled nursing facilities must have sufficient nursing staff with the appropriate competencies and skill sets to provide nursing and related services to assure resident safety. This further requires skilled nursing facilities to maintain the highest practicable level of physical, mental, and psychosocial well-being of each resident, as determined by the plan of care. This requirement expressly requires the skilled nursing facility to consider the resident’s acuity (how medically fragile they are) when coming to these determinations.

Section 483.35(a)(1) further states that the skilled nursing facility has to provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis: 1) licensed nurses; and 2) nursing aides. Each skilled nursing facility has to designate a nurse to serve as a charge nurse on each tour of duty.

The facility has to have a sufficient number of RNs, LPNs, and CNAs on a rolling 24-hour basis to provide care to all residents for at least 8 consecutive hours per day, 7 days a week. In addition, an RN must be available on each shift with an RN serving as the director of nursing on a full-time basis unless there is a CMS waiver. The director of nursing may only serve as a charge nurse if the facility has an average occupancy of 60 or fewer residents.

Section 483.70(e) states that an assessment of the resident population is the foundation of the facility assessment and determination of the level of sufficient staff needed. This assessment must incorporate evaluation of diseases, conditions, physical, functional, or cognitive impairments, acuity, and any other limitations. The assessment of the whole resident population should drive staffing decisions. Higher acuity results in higher reimbursement from the government, so there is an expectation that sicker patients result in higher staffing.

Note: federal regulations do not define minimum staffing ratios; however, many states do. If a facility meets the state’s staffing regulations then that is not, by itself, sufficient to demonstrate that a facility has sufficient staff to care for its residents. This is why determining the general acuity level of the population is critically important. If the acuity is high then the minimum staffing levels are irrelevant since the actual need is significantly higher than the minimum threshold.

As an example of how to view this, check out the Georgia rules on this subject. Located in the Georgia Rules and Regulation section 111-8-56-.04, a nursing home is required to do the following, among many other things:

1. There must be at least one registered nurse on duty and in charge of all nursing activities in each 8 hour shift;
2. There must be a minimum of 2.0 hours of direct nursing care per patient in each 24-hour period.
3. For every 7 total nursing personnel required, there shall be at least 1 registered nurse or LPN on duty.

Data Sources

Compliance is determined quarterly by comparing the total number of hours provided per resident per day using the CMS payroll based journal and the facility’s daily census. In addition, compliance is reviewed by looking at the facility’s daily census, broken down by intermediate and skilled care as self-reported by the facility to CMS on a quarterly basis. In some circumstances therapy aides may be included in these calculations but that is a situational issue determined by the care plan of the resident.

This data is freely available from medicare.gov. CMS provides data on:

• Annual surveys
• Complaints
• Penalties
• Fire safety deficiencies
• Payroll-Baed Journal staffing data
• LTC annual financial disclosure reports (the Cost Reports)

Surveyors from the state and federal regulators are mandated to cite whether there is insufficient staffing. Under 483.354(a), staffing deficiencies are to be reported on recertification surveys. The absence of this deficiency creates a rebuttable presumption that staffing was adequate for the nursing home. Surveyors cite deficiencies and issue tags on an inconsistent basis and there are large discrepancies between the states on how the tags are enforced. This means that a surveyor may simply overlook a staffing citation. Consequently, this is an area where plaintiff’s attorneys should spend time and energy in order to assess if the facility was adequately staffed.

When assessing staffing levels, there are essentially 5 steps to do so:

1. Determine the collective resident acuity levels using resident assessment data and overall resident care plans;
2. Determine the actual staffing levels for RNs, LPNs, and CNAs;
3. Determine the appropriate staffing levels based on resident acuity;
4. Examine the empirical evidence regarding whether the facility staffing is adequate. Be sure to view state and federal deficiencies and complaints. Further, check out quality measures such as readmission rates to hospitals, turnover rates, and any reported adverse/sentinel events;
5. Compare the actual facility staffing to the appropriate staffing levels based on the acuity for each facility in order to identify gaps.

Litigating the Case

Defense attorneys focus on the conduct of the resident. The defense focuses on the residents because they frequently develop their non-avoidability defenses by arguing that the plaintiff or the decedent was non-compliant with treatment or otherwise difficult to manage.

Plaintiff’s attorneys should focus on the conduct of the defendant, not the injuries to the plaintiff. This triggers the Reptile Theory of litigation. It is remarkably effective. The concept is to provoke the jury into thinking that if the defendant’s actions continue then the community itself is in danger. Great trial attorneys may convince the jury that they or their loved ones are in immediate jeopardy.

This strategy starts by establishing safety rules, then demonstrating how a defendant’s unreasonable actions violated the rules and then put the plaintiff in danger. An example of this would be, “Do you agree that you owe a duty to your patients to keep them safe?” The witness will always say, “Yes.” Then the follow up question will demonstrate how the plaintiff was not kept safe. This framing puts the jury into the mindset of the plaintiff’s attorney and strips the defense attorney from being able to tell the story they want to tell.

Understaffing is a very easy area to promote with the reptile strategy. This is because the attorney can easily point out:

• Essential tasks that were neglected
• Inadequate repositioning due to failure to have people to reposition (useful in pressure ulcer matters)
• Failure to check up on patients and note changes in health
• Failure to clean residents and prevent infections
• Failure to prevent dangerous falls by helping residents ambulate (move around)
• Note how bitter staff take out their frustrations on residents (assault and battery cases can leverage this tactic)
• Note how the facility leads to an increase in hospitalizations
• Note how low staffing is associated with increased mortality

Plaintiff’s attorneys can then point out the results of understaffing. These include, but are not limited to:

• Burn out
• High turnover rates
• New employees with less experience
• Hiring unqualified staff
• Unqualified staff failing to perform critical training
• Lack of training puts residents at risk
• Untrained staff lack awareness of nursing home policies
• No training for resident aggression
• Lack of understanding of nursing home residents’ rights

Skilled defense attorneys can highlight that labor is the largest expenditure for skilled nursing facilities, rural areas lack qualified employees, and recruiting is very difficult in a post COVID world. However, all of these arguments are countered by pointing out that a skilled nursing facility is required by law to turn away residents if they are unable to service them.

Experts & Witnesses

Both sides will need several expert witnesses. A nursing home administrative expert can review the remarkably complicated budget for a skilled nursing facility. Nursing homes have a lot of moving parts so investigating where the profits go requires a trained eye. A CPA is not enough for this.

Also, make sure to investigate what former witnesses will say in a trial. A great heuristic is to view the turnover ratio of the skilled nursing facility. The higher the turnover ratio, the greater the chance that former employees will speak unfavorably about staffing and conditions in the nursing home. This creates a difficult issue for defense counsel because their whole story (is generally) telling the jury why the nursing home does a great service for the community. Former employees speaking negatively about staffing undercuts this theory of defense. Combine this with a profits over patients argument and the theories of defense whither.

Summary

Cases against skilled nursing facilities are similar to other forms of litigation. An injured party seeks remuneration for damages incurred as a consequence of the nursing’s home negligence. The issue with these cases is that nursing homes are so heavily regulated that showing a jury that the defendant breached the duty of care requires a few steps.

While these cases do settle for more money than traditional general liability claims, they take a long time to settle. Moreover, they are very pricey and cost a lot of money. It is routine to spend $30,000 on a case when factoring in expert fees, court fees, and other costs. This creates an exposure on the plaintiff’s firm that frequently leads to an early settlement.

However, smart litigation tactics go a long way toward ensuring that the settlement is fair and justice is served.

Tags: Nursing Home Lawsuit, Nursing Home Suit