REPRESENTING RESIDENTS IN SUITS AGAINST NURSING

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					REPRESENTING RESIDENTS IN SUITS AGAINST NURSING HOMES

                                       Michael G. Glass, Esq.
                                       Rappaport, Glass, Greene & Levine, LLP
                                       445 Broad Hollow Road
                                       Melville, New York 11747

    I.   INTRODUCTION

          Alzheimers Fall Case

                Woman came into my office several months ago. Married, two
                children, and 77 year old father with advanced Alzheimers.

                For more than three years she had cared for him in her home but he
                began to seriously deteriorate. He was totally disoriented, agitated
                and one day he got up and left the house unattended and he was
                lost in the street.

                With great reluctance, she told me, she finally admitted him into a
                nursing home, where he could get, or so she thought, 24 hour a day
                professional supervision. She met with the director of nursing and
                explained her father=s idiosyncracies --- his likes and his dislikes--
                - his propensity to climb out of bed at night and wander around.

                A week later he had his first fall. He was in the dining room. He
                lacerated his arm - not really a big deal.

                Two weeks after that the nurses= progress notes indicated that he
                was getting out of bed at night.

                Shortly after that, he climbed up and over his bed rail and did a
                belly flop onto the floor, severely fracturing his hip. He was
                rushed to the hospital where an open reduction and internal
                fixation with hardware was performed.

                As with many older people, once they are bedridden and
                hospitalized, they rapidly deteriorate. He developed pneumonia in
                the hospital and died several days thereafter.

                She felt guilty and angry and wanted to know how the staff at the
                nursing home could have let this happen.

                Now what I would like you to think about is whether this is a


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               viable case against the offending nursing home.

               On the one hand, the nursing home staff was warned of his
               propensity to jump out of bed. On the other hand, there were bed
               rails up and he vaulted over them.

               Case or not a case - will come back to answer that question in just
               a few moments.


II. STATISTICS

       America is aging. The baby boomers are moving through middle age and

into retirement. As the percentage of our elderly population rises, so does the

population of residents in nursing home facilities.

       Look around you - how many new senior quarters, senior assisted living

residences are being built. As attorneys, this trend should be of interest to all of

us, and especially elder law attorneys and personal injury attorneys should

consider how these trends affect our practice.

       More and more today, family members of residents in nursing home are

looking to the courts to address abuse and neglect to their loved ones.


III. NEW YORK ATTORNEYS RELUCTANCE

       In New York State, attorneys have been somewhat reluctant to handle

these elder abuse cases.

               1. Complex, expensive, time consuming.

               2. Like our case, there is always a chronic pre-existing condition

which put the resident in a nursing home to begin with.

                               3. We have to deal with New York State=s medieval wrongful


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death law (pecuniary loss, no services, less expensive to kill than to maim).

       These cases can be economically viable despite these obstacles and

nursing home malpractice across the country has moved from a boutique type of

lawsuit into a major trend.

       THIS IS WHAT I HAVE COME TO TALK ABOUT THIS

AFTERNOON TO RAISE YOUR CONSCIOUSNESS A LITTLE ABOUT

THESE CASES - TO GIVE YOU A BROAD OVERVIEW OF THE

SCENARIOS IN WHICH THESE CASES DEVELOP - AND HOPE TO SHOW

YOU THAT THESE CASES CANNOT ONLY BE ECONOMICALLY VIABLE

BUT PUSH THE NURSING HOME TOWARDS SAFER PRACTICES AND

THUS HAVE A MORE POSITIVE IMPACT ON THE CARE THAT OUR

ELDERLY RECEIVE.

       MGG FIRST BLOW UP.

IV. FEDERAL FRAME WORK

       To have any understanding of this field of law, you must be familiar with

the web of state and federal regulations and laws which govern nursing homes.

       Nursing homes are without doubt are the most highly regulated industry in

this country after the nuclear industry.

       The regulations are specific, detailed, and mandatory for any nursing

home that accepts Medicare or Medicaid. The regulations create the standard of

care against which the conduct of the nursing home is judged.

       Example 1. If you have a bed sore case, there are specific regulations

which define what a bed sore is, how it should be treated and what are the

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circumstances under which a bed sore will develop, even in the best of hands.

       Nursing home cases can be like a slip and fall case with a building code

violation.

       Or a construction site accident case with a New York State labor

regulation violation.

       You can look a jury in the eye and tell them that the violation of the

regulation by the nursing home was no different than going through a stop sign.

               a. OBRA 1987 (Omnibus Reconciliation Act of 1987)

       Defined: In response to complaints of widespread abuse in nursing homes,

in 1987 Congress enacted legislation to reform the whole nursing home industry.

       The OBRA Act requires nursing home who accept Medicare or Medicaid

to provide services and activities that promote Athe highest practicable physical

and mental well being for each resident.@

       The requirements in the statute are specific.

               a. How much nursing staff is necessary given the number of beds

               in the nursing home.

               b. How comprehensive assessments of a resident=s physical and

               medical needs must be made within two weeks of the resident

               coming into the facility and must be updated according to specific

               criteria.

               c.   Develop a comprehensive care plan to meet the resident=s

               needs.



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               We will talk a little more about the regulations as we go through 4

or 5 typical case scenarios that you might see in your office.

        THE FEDERAL REGULATIONS UNDER THE STATUTE AND
        THE GUIDANCE TO SURVEYORS

        Under the auspices of the statute, federal regulations have been put in

place which, in essence, constitute the standard of care of a resident in a nursing

home.

        GUIDANCE TO SURVEYORS

        A handy document you can get off the Internet drafted by the Health Care

Financing Agency. The Guidance to Surveyors is actually a written guide for use

by state and federal nursing home inspectors (surveyors). The standards require

that there must be compliance with these regulations and that the compliance is

monitored by unannounced surveys at least once every 15 months of any licensed

nursing home. A Guidance to Surveyors essentially puts flesh on the regulations,

telling the surveyors when they should be suspicious of activity and when not.

        Example - Decubitus Case. Guidance to Surveyors will indicate what

medical conditions might exist in a nursing home resident which would make the

development of bed sores inevitable, even with the bests of care. That gives us

insight into whether or not our particular bed sore was a breach of the standard of

care or not. You can see whether your case fits or not.

        NEW YORK STATUTES AND REGULATIONS

        OBRA specifically provides that the states can adopt or create their own

rules which govern nursing home. New York State has its own set of regulations


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entitled Nursing Home - Minimum Standards at 415 NYCRR 415.1 - 415.40.

        Example - the preamble to the regulations state:

                for the vast majority of residents, the residential health care facility
                is there last home. A license to operate a nursing home carries
                with it a special obligation to the residents who depend upon the
                facility to meet every basic human need.

        Basically mirroring the federal regulations, the state regulations set forth a

detailed list of the resident=s rights, including the:

        a. right to be free from verbal, sexual, mental or physical abuse.

        b. right to adequate and appropriate medical care.

        c. details the financial rights of patients, the transfer rights of patients and

           the responsibility of the nursing home to notify authorized

        representatives of the resident if an accident happens.

        d. Other sections of the New York regulations deal with the use of

           physical and chemical restraints and providing of clinical services to

           the residents.

PUBLIC HEALTH LAW SECTION 2801-d

        Special statute - cruise missiles through the nursing home=s front door.

Let=s take a look at it - an amazing statute for plaintiffs.

                $       A residential health facility that deprives any resident of

                        any right or benefit in contract or statute or regulation

                        established for the well-being of the resident gives rise to a

                        private right of action to sue.

                $       This is a statutory cause of action and is in addition to and


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    different from a common law cause of action or negligence

    or medical malpractice.

$   Special Advantages of Section 2801-d.

    i. The elements of a prima facie case are only deprivation

    of a right or benefit granted by the state or federal

    government (example, failing to prevent a bed sore, failing

    to maintain adequate nutrition).

    ii. A causal connection with the injury.

          Do not have to prove lack of reasonable care or breach

          of community medical standard. Think of the jury

          interrogatory.

    iii. Three year statute of limitations versus two and one-

    half year statute of limitations.

             iv. Provides for a minimum amount of damages

    the              plaintiff can recover. You cannot get less

    than 25%

          of the daily rate the patient is charged in the nursing

          home for as many days as the injury exists.

$   Punitive damages are expressly authorized by statute.

$   If the plaintiff wins, the court has the discretionary

    authority to award attorneys fees based on the reasonable

    value of the legal services performed.

    $        Damages recoverable pursuant to Section 2801-d

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                        are exempt for the purposes of determining initial or

                        continuing eligibility for medical assistance under the

                        Medicaid statute nor is that settlement to be considered part

                        of the cost of the medical care.

         Now you can understand why I am excited about this particular statute.

         Not many decisions are made under the statute. The statute is so good and

so pro-plaintiff that several years back, in the Fourth Department, there was an

appellate decision interpreting it saying that it did not provide for a private cause

of action (despite the obvious language in the statute which said to the contrary).

Just last year in two cases, Doe and Zeides, the Appellate Division in the Fourth

Department reversed itself and the First Department also weighed in saying that

this statute does indeed provide a private cause of action for injured nursing home

residents which is separate from common law negligence or medical malpractice

cases.

         CONCLUSION TO THIS PART:

         So this is our statutory and regulatory backdrop. A very handy arsenal of

state and federal statutes and regulations and interpretative guidelines.

V. WHEN YOU GET THE CALL, HOW DO YOU KNOW IT=S A CASE?

         SLIP AND FALL IN NURSING HOMES

            1.   Falls are extremely common among older persons. Studies show

that there is an annual incidence of falls in long term facilities of 1.6 falls per bed

and another survey said there was a mean of 43% of nursing home residents who

fall each year (which is made even more significant by the fact that many nursing

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home residents are completely bed bound). The point is that falls are extremely

common in the elderly, compounded by the fact that the elderly are frail and are

particularly susceptible to injury from a fall. Even a relatively mild fall can be

dangerous. Falls out of bed are associated with almost one-third of all falls in

nursing homes.

       A fall can be an absolutely valid case but the mere fact that a fall occurred

does not make it so. An assessment must be made first as to whether the fall was

caused by a problem with the nursing home facility in terms of its physical plant

or a risk factor that was peculiar to the resident=s own medical condition.

       If there is evidence of multiple falls, then the question becomes were

reasonable precautions taken.

               1.      According to the regulations, fall risk to the resident are to

                       be assessed when the resident is admitted to the facility.

                       Were the protections suggested in the initial evaluation

                       followed?

               2.      Restraints are disfavored under the state and regulatory

                       scheme. Counter-intuitive. Restraints can actually enhance

                       the risk of fall and serious death. Use of restraints makes

                       the resident more agitated leading to greater risk of

                       accident while attempting to escape from the restraints.

                       Prolonged restraints can lead to muscle atrophy, bed sores,

                       contractures and even cognitive decline.

       So in the case we started with earlier, the man falling out of bed after

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going over the bed rails, the analysis begins with whether or not bed rails should

have been in place at all when there were other less restrictive methods of

providing fall prevention:

                  Low beds

                  Mats on the floor

                  Bed alarms

                  Positioning cushions.

                  LOOK AT THE FEDERAL REGULATIONS REGARDING

                  SLIP AND FALLS

        1. 483.13(a) - RESIDENTS HAVE THE RIGHT TO BE FREE OF

               PHYSICAL RESTRAINTS. The use of restraints requires appropriate

        physician orders from the treating physician.

        2. 483.20 - The facility must develop a comprehensive care plan

        (including a risk assessment).

        3. 483.25(h)(1) - The facility must maintain an environment free from

        accident hazards.

        4. 483.70 - The physical environment must be safe and the corridors must

        have handrails.

        5. 483.13(c)(2)(3) - If there is a fall - the facility must create an incident

report for that fall and all falls must be thoroughly investigated.

        FALLS OF UNKNOWN ORIGIN (ALZHEIMERS PATIENTS)

           483.13 - All injuries of unknown origin shall be reported to the state

authorities.

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          Demanded investigation - Lorber v. Prospect Nursing Home, 289

A.D.2d 303, 734 N.Y.S.2d 865 (2d Dept. 2001) (where nothing in the nursing

home records as to how the plaintiff was injured and where plaintiff himself

cannot explain due to his infirmity how the accident occurred, dismissal of the

case was affirmed).

       MGG TO DISCUSS HIS WHEELCHAIR JOYCE O=CONNOR CASE

                        Staff must be properly trained to use the equipment.

       ANALYSIS OF A SLIP FALL ACCIDENT.

               1. Was a risk assessment done upon admission and did the facility

                             follow its own plan.

               2.   What was the history of prior falls with this individual and

               with the facility.

               3.     Are there environmental problems in the facility.

               4.     Does the medical condition of the resident increase his risk

                      for falling and therefore increase the nursing home=s level of

                      vigilance for falling (poor vision, ambulatory difficulties).

               5.     You can obtain the nursing home surveys by a Freedom of

                       Information Act Request to:

              New York State Department of Health
              Office of Continuing Care, Bureau of Administrative Services
              161 Delaware Avenue
              Delmar, New York 12054
              On line summaries of surveys:
http://www.health.state.ny.us/nysdoh/nursing/kings.htm

       OBTAINING THE NURSING HOME RECORDS


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               Both federal and state regulations require the facility to promptly

over the nursing home records of a resident to the resident or an authorized

representative. 483.75(d)(1)

               Facilities must maintain clinical records on each resident in

               accordance with accepted professional standards.

               42 CFR 483.10 - A facility must turn over the records within two

               working days to the resident or his authorized representative

               (25 cents per page).

               NYCRR 415.22 - A facility shall permit each resident to inspect

               his or her records and obtain copies of such records within 24

               hours after oral or written request to the facility at a price of 75

               cents per page.

               Practice Tip - Have your client obtain the records and then request

               them yourself - often discrepancies.

VI.   PRESSURE ULCERS

          Defined: Ischemic ulceration - pressure ulcers occur from prolonged

immobility or skin rubbing against bed sheets or skin and are made worse by

malnutrition, incontinence, anemia and certain acute illnesses.

       Federal Regulations - 483.25:

               The facility must insure that the residents enter the facility

without pressure sores DO NOT DEVELOP THEM unless they were clinically

unavoidable. Guidance to Surveyors.


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               Residents who enter with pressure sores should receive necessary

treatment and services to promote healing and prevent infection and further

pressure sore development.

               The Guidance to Surveyors tells the surveyors how pressure sores

are to be staged, what clinical conditions to look for to determine if the pressure

sore was an inevitability or not.

               Clinical Practice Guidelines published by the U.S. Department of

Health Services on how to treat pressure sores.

       ANALYSIS OF PRESSURE SORE CASES.

               Not all pressure sores can be avoided. The real question is

whether the facility instituted proper measures to prevent the wound and the case

is generally stronger if medical conditions of the resident were not especially right

for the development of pressure sores (diabetic, immobility, peripheral vascular

disease).

       The next issue is whether the pressure sores, once they developed, were

aggressively treated.

               Turning and positioning;

               Pressure relieving mattress;

               Heal protectors;

               Particular attention to nutrition, hydration and skin care.

       Damages: Complications can be devastating - infection, gangrene,

sepsis and death.

       Photographs: Often the nursing home or the hospital takes photos.

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Getting those pictures into evidence are like making a summary judgment motion.

        Look for conflicts between the hospital record and the nursing home

record as to staging of the ulcer.

VII.    DEHYDRATION AND MALNUTRITION

        Example - An elderly man is rushed from a nursing home into the

        emergency room and he is found to be severely dehydrated and

        malnourished. How can that happen if the resident is under 24 hour a day

        care and his food intake is being measured.

                Statistics

        35 to 85 percent of residents are at risk from malnutrition. The cognitively

impaired don=t eat and don=t finish their meals. In fact, one study showed that 7

out of 10 residents failed to finish 75 percent of their food. This makes them at

risk for falls and pressure ulcers.

        A pressure ulcer case with good skin care can really be a poor nutrition

case.

        Significant weight loss triggers the nursing home=s responsibility to

obtain a physician review of the patient.

            Record Screw Ups

        One nursing home had a patient eating 100 percent of his meal for two

days after that patient had died.


VIII.    PHYSICAL ABUSE AND NEGLECT

        Granny battering:


                                                14
       1. OBRA gives residents powerful protection against abuse and

mistreatment in the nursing home.

                       MGG USE QUOTE ON PAGE 278.

       2. Abuse from the staff.     The nursing home obviously has a

responsibility to screen its employees and should have anti-abuse policies in

effect. Staff abuse can actually show up as a fracture, fall, laceration or other

traumatic injury.

       3.   Resident to resident abuse. Some nursing home residents,

particularly those who are cognitively impaired or have Alzheimers, may be very

aggressive and actually exhibit physically violent behavior toward other residents.

These are cases where it can be established that there was some prior notice to the

nursing home of the offending resident=s assaultive behavior in the past -

predictable patterns of behavior.

                       MGG - HOSPITAL RAPE CASE

       Singer v. Friedman, 220 A.D.2d 574, 632 N.Y.S.2d 802 (2d Dept. 1995).

The Second Department reversed the lower court=s dismissal of the case in which

a nursing home resident=s decomposing body was found in a padlocked closet

after having been missing for two days. The forensic pathologist opined that the

decedent=s death was slow and painful and occurred after an assault.


IX. MEDICATION ERRORS

       F 426-30 (OBRA 87) Drugs must be administered in accordance with the

written orders of the physician.


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       F429 and 430 - It is the responsibility of the consulting pharmacist to the

nursing home facility to report any drug irregularities to the attending physician

and director of nursing.

       Drug interactions may be an explanation for a nursing home fall.

X. SUMMARY OVERVIEW

       So putting it all together, we know we have the statutory framework:

               OBRA

               Federal regulations

               Guidance to Surveyors

       New York State Regulatory Authority - NYCRR

       Public Health Law 2801-d

       Typical case scenarios

               Slip and fall

               Decubitus ulcer

               Dehydration and malnutrition

               Medication errors.

Preliminary Question - Do we devote the time and resources to a particular case.

       Process:

               1. Obtain the nursing home records.

               2.   Have we found a violation of regulation or demonstrable

                    negligence.

               3.   Obtain expert opinion from a geriatric physician or nurse.

               4.   Assess whether the damages potential of the case permits the

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                    case to be economically viable given the cost and complexity

                    of these cases.

       Parson v. Interfaith, 267 A.D.2d 367, 700 N.Y.S.2d 224 (2d Dept. 1999)

Jury verdict for $1,000,000 for past pain and suffering excessive where decedent

developed numerous bed sores causing her death; reduced to $400,000.


XI.    MY INITIAL EXAMPLE OF THE MAN CLIMBING
       OVER THE BEDRAIL.

       Probably good liability but he lived such a short time after his fall, thus

limiting the pain and suffering, so we felt constrained to advise that client that we

could not take the case.


XII.   PHYSICIAN RESPONSIBILITY IN THE
       NURSING HOME SETTING
       Do you name the physician as a defendant?

       483.40 - Resident must be seen by a physician at least one time every

       30 days for the first 90 days after admission and at least one time every 60

       days thereafter.

       Physician must supervise medical care of residents in a facility.

       Facility must provide for physician services 24 hours a day in case of

       emergency.

       Physician must personally approve in writing a recommendation that an

       individual be admitted to a facility.

       483.10(b)(10) - The resident physician shall be notified immediately and

       the resident=s responsible party promptly whenever there is an accident or


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         an incident requiring medical intervention.

         483.40 - Physician=s orders shall be followed.


XIII.    PUNITIVE DAMAGES

         1. Specifically authorized under Public Health Law 2801(d).

         2. Requires gross, flagrant and wanton conduct. Rey v. Park View

Nursing Home, 262 A.D.2d 624, 692 N.Y.S.2d 686 (2d Dept. 1999). Punitive

damages claim dismissed where nursing home resident suffered four separate falls

within a 10 day period. Punitive damages require a high degree of moral

culpability which transcends mere carelessness.

         Punitive damage claims can be supported by prior surveys

         Consent agreements in the past.

         Continuing pattern of behavior.

         If punitive damages are permitted, the defendant=s financial condition and

corporate structure become relevant from a discovery standpoint.



XIV. STARTING A LAWSUIT



        Guardian Ad Litem vs. Conservator vs. Estate



                Guardian Ad Litem CPLR Section _______




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           Conservator    Mental Hygiene Law Section _____




           Power of Attorney




           Estate




XV.   QUI TAM LAWSUITS




      CONCLUSION



      MGG- USE BLOW UP OF 483.25 (Red Book p. 373)



           Each resident must receive and the facility must provide

           the necessary care and services to attain or maintain

           the highest practicable, physical, mental and psycho social

           well-being, in accordance with the comprehensive

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               assessment and plan of care.



               483.15(a)



               A facility must care for its residents in a manner and in

               an environment that promotes maintenance and

               enhancement of each resident=s quality of life.



               That is where you come in.



        THE ABE LINCOLN STORY



        The plaintiff has given the nursing home one of his or her most precious

possessions - their mother, father, sister or brother. The nursing home assured

them they would care for the resident and instead in these cases for one reason or

another let their loved one deteriorate, or to lay in feces, or to develop sores big

enough that a fist can go through.



        Abraham Lincoln spoke of this attitude. When Mr. Lincoln was in

New Orleans, he saw a slave being brutally beaten by his master. A small crowd

had gathered at the scene but most people just went about their business and

walked by. An aide to Mr. Lincoln who was transfixed by the sight of the beating

said:

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               Mr. Lincoln, isn=t it terrible the way the slave is being beaten?

               Abe Lincoln responded, yes it is, but the real tragedy is the

               people who can watch passively and merely ignore the torture.

       As attorneys with understanding of the regulations and the laws governing

nursing homes, we can through development of the common law and bringing

these cases, can make a positive impact on the care and treatment our elderly

receive.




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