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Presenting a live 90-minute webinar with interactive Q&A

Nursing Home Injury Litigation:

Evaluating Common Claims, Reviewing

Medical Records, and Assessing Damages

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, SEPTEMBER 30, 2015

Mark R. Kosieradzki, Partner, Kosieradzki Smith Law Firm, Plymouth, Minn.

Steven M. Levin, Founder and Senior Partner, Levin & Perconti, Chicago

Sam McGee, Attorney, Tin Fulton Walker & Owen, Charlotte, N.C.

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Nursing Home Injury Litigation: Evaluating Common Claims

Steven M. Levin, Founding Partner Levin & Perconti, Chicago

[email protected]

The justice system’s role in protecting residents from injury or death

• Nursing home lawsuits fix a broken system by focusing on

individual violations

• Lawsuits help individuals and their families hold nursing homes accountable for substandard care and abuse

6

Misconceptions that personal injury or wrongful death cases on behalf of residents do not have value

• Nursing home residents have a number of co-morbidities

and a shortened life expectancy – Our responses:

• The shorter your time to live, the more important your dignity, right to live injury and pain free

• Many nursing home residents cannot and do not work – Not wage earners so economic losses are not great

• Many nursing home residents do not provide economic support to others

• The defendant’s conduct v. plaintiff ’s injuries or death

7

Relevant Laws and Regulations

8

Federal Guidelines

42 U.S.C. §1396r (1990) et seq., as amended by the Omnibus Budget Reconciliation Act of 1987 ("OBRA") and Volume 42, Code of Federal Regulations, Part 483 setting forth Medicare and Medicaid Requirements for Long Term Facilities

9

OBRA ‘87

• Establishes standards of care required for facilities who are reimbursed by Medicare

• Medicare recipients must undergo a thorough assessment process called the MDS process, or Minimum Data Set

– Basis for nursing home’s reimbursement from Medicare

10

OBRA ‘87

• Unavoidability – a common defense or nursing home theme

• Nursing homes will claim that injuries “unavoidably” developed

– Many things required to show actual unavoidability

– Can’t keep a resident they can’t care for

11

OBRA ‘87

• OBRA will not let them get away that easy: – 483.25 Quality of Care - Each resident must receive and

the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

– This section defines standards to be used by State Surveyors in determining if quality care is provided.

12

OBRA ‘87

• OBRA defines unavoidability as: – A determination of unavoidable decline or failure to

reach highest practicable well-being may be made only if all of the following are present: • An accurate and complete assessment (see §483.20);

• A care plan which is implemented consistently and based on information from the assessment;

• Evaluation of the results of the interventions and revising the interventions as necessary.

• In a nursing home case that will likely materialize into a lawsuit, at least one or more of the above are present

13

The “Model” nursing homes are required follow

• Assess

• Care plan

• Communicate care plan

• Implement care plan

• Reassess and try new things

14

What parameters define Neglect or Abuse for purposes of a lawsuit?

• Recognized standards of care

– These standards typically set forth guidelines for all of the most common instances of nursing home abuse and neglect: bed sores or pressure sores, dehydration, malnutrition, choking, falls, accidents, medication errors, physical or sexual abuse, infection, wandering or elopement, physical and chemical restraints, verbal abuse, special treatments and procedures such as g-tubes and tracheostomy care

15

Standards of care

• State and federal regulations

• Facility’s own policies and procedures

• Widely recognized industry standards

– Eg. National Pressure Ulcer Advisory Panel

16

Common Types of Injuries and Evaluating Cases

17

Key areas of alert

When the following occur, you must be suspicious:

– Bed sores

– Dehydration and/or malnutrition

– Falls resulting in injury

– Medication errors

– Physical or sexual assault or abuse

– Sepsis

– Wandering/Elopement

– Verbal abuse

– Physical or chemical restraint

– Choking

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Key areas of alert

Additionally, dignity issues should not be ignored:

– Soiled bedding

– Personal hygiene issues

– Unanswered call lights

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Key areas of alert

• If any of these outcomes occurred, you must look at a few key things: – How and why did they occur?

– Were they unavoidable?

– Was there an injury

– Would the outcome in the absence of negligence have been the same?

20

Evidentiary and Discovery Issues Deposition Challenges and Strategies

21

Documents needed outside of the medical record

• ADL (Activities of Daily Living) Sheets

• 24 Hour Reports

• Policies & Procedures

• Staffing Sheets

• Census Reports

• Incident/Accident Reports

• Audit Trail

22

The Purpose of a Deposition

• The main purpose of a discovery deposition is NOT discovery. – Prove your case

– Develop a roadmap for your adverse examination

23

Establishing the Rule

• The Nursing Home “Model”

– Applies to every case

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• In nursing home cases, the Rule is the standard of care

– policies, procedures, customs, common practices and regulations.

• Establish the importance of following the Rule

• Establishing the Rule was in place at the time of your client’s residency

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• They are required by law to follow the Rule

• Consequences of breaking the Rule

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Gaining admissions of Rule violations

• Admissions of standard of care violations

• Admissions of policy and procedure violations

• Admissions of violations of custom and practice

27

Pain and suffering damage testimony

• The Defense argues no documentation of pain means the resident did not suffer any pain

• Turn that Defense against them from the get-go

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Rules of the Road for pain documentation

• Establish rules regarding the frequency and documentation of pain assessments

– Pressure sore assessments

– Pain evaluations

– Monitor effects of pain medication

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Disability and disfigurement damage testimony

• Defense might argue the resident was not in any pain

– Disabled due to negligence

– Could not feel loved ones

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During the deposition

• Block claims or defenses by anticipating them

• Make it difficult for their experts to testify credibly

• Take advantage of unprepared witnesses and unprepared lawyers.

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Locking in the witness

• Lock in the witness to prevent future creativity

– You can’t risk asking questions you don’t know the answer to at trial

– Don’t be satisfied with just one admission.

– Don’t quit while you’re ahead.

– Get admissions of violations of the rule as many times as possible

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Discredit their experts

• Admissions from unprepared direct care workers make it harder for the defense to obtain an expert

• Create a situation where the defense expert can be confronted and discredited with employee testimony that is inconsistent with the expert’s opinions

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Do’s and Don’ts

• DO NOT: Fight/argue with the witness

• DO NOT: Be afraid of any answer

• DO NOT: Pounce too soon

• DO: Create a trap for the witness they can’t escape

• DO: Create a bond with the witness

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Dealing with opposing counsel

• Speaking objections

• Coaching

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Nursing Home Injury Litigation: Reviewing Medical Records,

Assessing Damages, and Punitive Damages

Sam McGee Tin, Fulton, Walker & Owen, PLLC

301 East Park Avenue Charlotte, NC 28203

Phone: 704-338-1220 Fax: 704-338-1312

[email protected]

mailto:[email protected]

Reviewing Medical Records

37

Outsourcing

• From the Plaintiff’s perspective, case selection is everything

• Choosing poorly can cost you a lot of money • There is more to it than the records, but that’s

where it starts • Should you outsource something this important? • In-house nurse; reviewing nurse; all you or hybrid

approach • Can’t accept a case without reviewing records • Selecting your case v. building your case

38

Case Selection (Plaintiff’s Perspective)

39

Case Selection (Plaintiff’s Perspective)

• Getting past the quick “No”

• Type of case determines where to look (part of record and how far back)

• Are you familiar with records of facility/chain

• Recent Examples:

- Internal Bleeding Case

- Fall Case

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Issues You Must Assess

• Basic Liability Facts:

- Is there a clean and simple case from records (care plan, orders, etc.)

• Co-morbidities (causation)

• Truth/falsity of records (cuts both ways)

• Who else can be blamed (Family, resident for refusing, doctor, etc.)

• Damages issues

41

42

Proving Bad Care or Just Bad Charting?

Clinical Records – 42 C.F.R. § 483.75(1) • Facility must maintain clinical records on each

resident in accordance with accepted professional standards of care

• Complete, accurate, readily accessible and systematically organized

• Accurate and functional representation of the actual experience of the resident in the facility

• Sufficient evidence of the effects of the care provided

43

Mining the Records (Defense Perspective)

• Show the plaintiff is just picking out the good stuff

• Evidence of activity in the face of neglect allegations

• Filling in the gaps in the chart (what else was happening)

• By dates, by issue

• Evidence of another culprit, whether or not diagnosed

• Can always attack not charted not done, but see if you can use the chart first

44

Assessing Damages: How Serious Was the Injury?

45

Assessing Damages: How Bad Was the Care ?

46

Assessing Damages

• Never factor out the negligence; the two are forever linked

• The same with family in wrongful death • Pain and Suffering

• Evidence varies widely • Not just pain: smell, confusion,

despair • Dementia and ability to experience

• Medical Bills: Is there a backstop? 47

Case Evaluation (DEFENSE PERSPECTIVE)

• Venue

• Plaintiff’s counsel

• Type case – fall, pressure ulcers, medication error,

elopement, general care, choking, and abuse

• Survivorship claim versus wrongful death

• Causation issues

• Family involvement/issues

• Condition/prognosis of resident

48

Case Evaluation (Defense Perspective)

• Aggravating circumstances of incident

• Evidence of pain and suffering

• Medical expenses/lien issues

• Facility history/reputation

• Photographic/video evidence

• Punitive damage claim

• Appearance and presentation of facility witnesses

• Disgruntled ex-employees

49

Punitive Damages

• NC Gen. Stat. § 1D-1. Purpose of punitive damages.

• Punitive damages may be awarded . . . to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. (1995, c. 514, s. 1.)

50

Elements

NC. Gen. Stat. 1D-15 Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud (2) Malice (3) Willful or wanton conduct

51

Management Condonation Required

• Where a corporation is the Defendant:

• 1d-15 (c) Punitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. Punitive damages may be awarded against a person only if that person participated in the conduct constituting the aggravating factor giving rise to the punitive damages, or if, in the case of a corporation, the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.

52

Factors for Jury to Consider § 1D-35. Punitive damages awards.

In determining the amount of punitive damages, if any, to be awarded, the trier of fact:

(1) Shall consider the purposes of punitive damages set forth in G.S. 1D-1; and

(2) May consider only that evidence that relates to the following:

a. The reprehensibility of the defendant's motives and conduct.

b. The likelihood, at the relevant time, of serious harm.

c. The degree of the defendant's awareness of the probable consequences of its conduct.

d. The duration of the defendant's conduct.

e. The actual damages suffered by the claimant.

f. Any concealment by the defendant of the facts or consequences of its conduct.

g. The existence and frequency of any similar past conduct by the defendant.

h. Whether the defendant profited from the conduct.

i. The defendant's ability to pay punitive damages, as evidenced by its revenues or net worth. (1995, c. 514, s. 1.)

53

Pointers for Plaintiffs

• Don’t have to prove everything under the sun

• Amount: Search for a meaningful hook – Examples: Management Fee, Exec bonus, Costs to

staff or feed appropriately

• Staffing is usually the key (intentional management level decision) – There are lots of ways to get there

– Some cases justify huge expense, others don’t

– Streamlined approaches for Arbitration or capped cases

54

Punitive Damages (NC Law) • Awarded “only if the claimant proves that the

defendant is liable for compensatory damages and that one of the following aggravating factors was present and related to the injury for which compensatory damages were awarded.” emphasis added NCGS §1D-15(a).

• Plaintiff must prove aggravating factor by “clear and convincing evidence.” NCGS §1D-15(b).

55

Punitive Damages (NC Law)

• Punitive damages not awarded solely on basis of vicarious liability. Corporate defendant officers, directors, or managers must participate in or condone conduct giving rise to punitive damages.

• Willful or wanton conduct “means the conscious and intentional disregard and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury.” NCGS §1D-5(7)

56

Punitive Damages (Defenses and Responses)

• Move to bifurcate punitive damage issue and evidence from compensatory trial.

• Try to limit discovery related to punitive damage issue until after motion for summary judgment.

• Proximate cause – alleged egregious conduct must have causative link to incident that led to injury or death, which can be difficult to establish.

• High burden of proof and extreme level of conduct required. Rare remedy that should be limited to most extreme situations.

57

Punitive Damages (Defenses and Responses)

• No vicarious liability for egregious acts of employee.

• Unrelated conduct before and after incident in question cannot give rise to punitive damages.

• Mere fact of bad outcome involving nursing home does not give rise to punitive damages.

• Challenge for defendant is to keep case simple and focused on facility incident at issue and not on issues of high level corporate conduct, extraneous and unrelated events, and conspiracy theories.

58

K O S I E R A D Z K I S M I T H

Mark Kosieradzki

© Kosieradzki • Smith Law Firm 2014

Rules in Nursing Home Cases:

Transcending the Medical Malpractice Paradigm

[email protected]

Total Daily Health Care

Medical Care

Housing

Nursing Home

Nutrition

Therapy

Care Co-ordination

Social Services

ADL

Medication Mgt.

Medical Supervision

60


something went wrong Why?

61


Proximate Cause

© Kosieradzki Smith Law Firm, LLC 2014

62


63


What - Hit Iceberg

64

Why did 1500 People Drown?

65

Why did 1500 People Drown?

• Needed 64 lifeboats

• Had 20 Lifeboats

66


What Why

Distinct Negligent Acts

67


Two Distinct Liability Theories

Negligent

Care

Institutional

Negligence

68


Institutional Duty

42 CFR § 483.30(e)

Scampone v. Highland Park

Care Center, LLC

57 A.3d 582, 598 (Pa. 2012)

“a corporation may also owe duties of care

directly to a plaintiff, separate from those of

its individual agents, such as duties to

maintain safe facilities, and to hire and

oversee competent staff.”

69


Institutional Duty

42 CFR § 483.30(e)

Scampone v. Highland Park

Care Center, LLC

57 A.3d 582, 584 (Pa. 2012)

“We hold that a nursing home and affiliated

entities are subject to potential direct liability

for negligence, where the requisite resident-

entity relationship exists to establish that the

entity owes the resident a duty of care.”

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Institutional duty to….

• Maintain safe facility

• Hire competent staff

• Supervise staff

• Enforce consultation & patient monitoring policies

• Control over budget

71


Inaction = Negligence

42 CFR § 483.30(e)

Beverly Enterprises v Spillman,

661 So.2d 867, 873 (Fls.

App.1995)

Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867 (1995)

20 Fla. L. Weekly D2228

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

661 So.2d 867 District Court of Appeal of Florida,

Fifth District.

BEVERLY ENTERPRISES–FLORIDA, INC. d/b/a Eastbrooke Health Care Center, Appellant,

v. Wilbur W. SPILMAN, as Personal Representative

of the Estate of Walter M. Spilman, Appellee.

No. 94–376. | Sept. 29, 1995.

Action was brought against nursing home after patient

died as result of severe bed sores. The Circuit Court for

Hernando County, John W. Springstead, J., entered

judgment on jury verdict awarding almost $720,000 in

compensatory damages and $2 million in punitive

damages. Home appealed. The District Court of Appeal,

Peterson, C.J., held that: (1) damages under statute

dealing with violations of patients’ rights were not limited

by Wrongful Death Act where violation resulted in

patient’s death, and (2) evidence related to acts and

omissions of home and its employees supported punitive

damages award.

Affirmed.

Dauksch, J., concurred in conclusion only.

W. Sharp, J., concurred and concurred specially, with

opinion.

Attorneys and Law Firms

*867 Gail Leverett Parenti of Parenti, Falk, Waas &

Frazier, Coral Gables, for appellant.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton,

Meadow, Ollin & Perwin, P.A., Miami, amicus curiae for

Nursing Home Hotline.

David R. Gemmer and James L. Wilkes, II, of Wilkes and

McHugh, Tampa, and Dennis J. Wall, Orlando, for

appellee.

A.E. (Ned) Pooser, IV, Tallahassee, amicus curiae for

Office of State Long–Term Care Ombudsman.

Opinion

PETERSON, Chief Judge.

Appellant, Beverly Enterprises–Florida, Inc. d/b/a

Eastbrooke Health Care Center (Eastbrooke), appeals a

final judgment awarding $719,064.02 in compensatory

damages *868 and $2,000,000 in punitive damages to

appellee, Wilbur W. Spilman, as personal representative

of the estate of Walter M. Spilman. Wilbur’s father,

Walter, died after he was admitted to a hospital for

treatment of infections allegedly contracted while he was

under Eastbrooke’s care. Eastbrooke contends first that

the trial court violated the provisions of section 400.023,

Florida Statutes (1991), by denying its motion to dismiss

claims for pain and suffering and by instructing the jury

that such damages could be awarded. Second, Eastbrooke

alleges the trial court erred by denying its motion for

directed verdict on the issue of punitive damages, because

the evidence was insufficient to demonstrate malicious or

willful disregard of Walter’s rights as a nursing home

patient.

PAIN AND SUFFERING UNDER SECTION 400.023

[1] Eastbrooke contends that the trial court erred in

denying its motion to dismiss claims for Spilman’s pain

and suffering and in instructing the jury that they could

award such damages. Eastbrooke submits that where a

cause of action pursuant to section 400.023, Florida

Statutes (1991), is advanced under a theory that the

person has died as a result of the deprivation of his

nursing home resident’s rights, the nature and measure of

damages are controlled by the Wrongful Death Act,

sections 768.16—.27, Florida Statutes (1991), rather than

by the survival statute, section 46.021, Florida Statutes

(1991). Sections 768.16—.27 do not provide for an award

of damages for the decedent’s physical and mental pain

but section 46.021 does allow such damages.

We find no error in the trial court’s denial of the motion

to dismiss. Section 400.022, Florida Statutes (1991), sets

forth the specific rights of nursing home residents. The

civil enforcement statute, section 400.023, Florida

Statutes (1991), further provides as follows:

Any resident whose rights as

specified in this part are deprived

or infringed upon shall have a

cause of action against any licensee

responsible for the violation. The

action may be brought by the

resident or his guardian, by a

person or organization acting on

behalf of a resident with the

“… cannot escape responsibility by managing

its facility with managers who close their eyes,

refuse to hear, and dull their sense of

smell.”

72

Negligent Mgt. Systemic Neglect

73

Nursing Home Rules

• Specific medical care

• Health care delivery systems

• Management Oversight

74

Nursing Home Trial

Not About the Medicine

75


Alternative Theory

Negligent

Care Alter ego

76

77


Piercing the Corporate Veil

“The test for liability is whether

[the parent corporation] was the

employer of the alleged tort-feasors

or whether it controlled or

retained the right to control the

day-to-day operations of

Montgomery Health Care Facility.”

Montgomery Health Care Facility, Inc. v.

Ballard, 565 So.2d 221, 225-26 (Ala.1990)

78


Piercing the Corporate Veil

Evidence Supporting Piercing

• Disregard corp. formalities

• Nonfunctioning officers

• Absent corp. records

• Parent siphoning funds

• Common ownership

• Intermingling activity & assets

• Undercapitalization

• Sweep accounts

Mark Kosieradzki

Minneapolis, Minnesota

888 545 7640

www.KosLawFirm.com

Thank You

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