REPRESENTING RESIDENTS IN SUITS AGAINST NURSING HOMES
Michael G. Glass, Esq.
Rappaport, Glass, Greene & Levine, LLP
445 Broad Hollow Road
Melville, New York 11747
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
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.
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
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
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
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
Or a construction site accident case with a New York State labor
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
c. Develop a comprehensive care plan to meet the resident=s
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
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
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
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
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
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
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
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
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
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
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
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
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:
Mats on the floor
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
4. 483.70 - The physical environment must be safe and the corridors must
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
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:
OBTAINING THE NURSING HOME RECORDS
Both federal and state regulations require the facility to promptly
over the nursing home records of a resident to the resident or an authorized
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.
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
The next issue is whether the pressure sores, once they developed, were
Turning and positioning;
Pressure relieving mattress;
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.
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.
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
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
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
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.
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:
Guidance to Surveyors
New York State Regulatory Authority - NYCRR
Public Health Law 2801-d
Typical case scenarios
Slip and fall
Dehydration and malnutrition
Preliminary Question - Do we devote the time and resources to a particular case.
1. Obtain the nursing home records.
2. Have we found a violation of regulation or demonstrable
3. Obtain expert opinion from a geriatric physician or nurse.
4. Assess whether the damages potential of the case permits the
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
Physician must supervise medical care of residents in a facility.
Facility must provide for physician services 24 hours a day in case of
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
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 _______
Conservator Mental Hygiene Law Section _____
Power of Attorney
XV. QUI TAM LAWSUITS
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
assessment and plan of care.
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
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