NURSING HOME LITIGATION Defendant’s Perspective ANDREW D KEETCH CANTEY HANGER LLP 801 Cherry Street Suite 2100 Fort Worth Texas 76102 by xzg98350


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     Defendant’s Perspective

       801 Cherry Street, Suite 2100
         Fort Worth, Texas 76102
            817.877.2800 (ph)
            817.8772807 (fax)

         March 1445, 2002
           San Antonio
           CHAPTER 4
                                           Table of Contents

     A.    Texas Health and Safety Code § 242, et seq.
     B.    42 U.S.C. § 1396r
     A.    40 TEx. ADMIN. CODE § 19,1, et seq.
     B.    42 CFR 483.1, et seq.
     A.    Negligence
     B.    Negligence Per Se
     C.    Injury to the Elderly
     D.    Breach of Contract
     E.    Fraud/Warranty/DTPA
     F.    “Profits Over People”
     G.    Common Injuries and Complaints
           1.      Decubitus Ulcers/Pressure Sores
           2.      Restraints
           3.      DehydratiorilMalnutrition
           4.      Falls
           5.      Wandering/Elopement
           6.      Medication Errors
           7,      Abuse
     A.    The Nursing Home
     B.    Parent Companies
     C.    Administrator
     D.    Medical Director
     E.    Director of Nurses
     F.    Nursing Staff
        G.      Treating Physician
        A.    Privileges
              1.       TEx. 0cc. CODE ANN. §~     301.417 (a), 301.418 (a), (b)
              2.       Confidentiality of Records ofNursing Home Resident
              3.       TEX. HEALTH & SAFETY CODE § 242.127
        B.    Witnesses
        A.    TDHS Records/Testimony
              1.       Pack v. Crossroads, Inc., 53 S.W.3d 492 (Tex. App.—Fort Worth 2001, pet. denied)
              2.       TEX. HUMAN RES. CODE §32.021
        B.    Causation Testimony By Nurse Experts
        A.    Nursing Documentation
              1.       Medication Administration Record (MAR)
              2.       Minimum Data Sets (MDS)
              3.       Resident Assessment Protocols (RAPs)
             4.        Flow Sheets
        B.   Disgruntled Current and Former Employees
        C.   Corporate Documentation
        D.   Policies and Procedures
        E.   Staffing

NURSING HOME LITIGATION Defendant’s Perspective           -

I.   INTRODUCTION                                             nursing homes must comply and which can play a
     Nursing home litigation is exploding in                  decidingrole in lawsuits against nursing homes.
courtrooms and in the news. For many years,                        Many plaintiffs will assert negligence per se
nursing homes were targets largely ignored by the             claims for alleged violation of the provisions of
plaintiffs’ bar but no longer. Recent Texas
                 -                                            these statutes.
judgments have created significant interest in                     A few additional statutes may also come into
nursing home litigation. Judgments for $90 million            play in nursing home litigation, and this paper will
and even $300 million have caught the attention of            address the most important ones.
attorneys nationwide. Accordingly, this is a fast
growing and fast changing area of law.                             A. Texas Health and Safety Code § 242, et seq.
     Without doubt, some of the litigation is                      Chapter 242 sets forth “minimum acceptable
necessary. The threat of suit from injured persons            levels ofcare.”2 The chapter covers everything from
and the threat of civil penalty actionsbrought by the         fire safety requirements to licensing surveys to
Texas Attorney General create important additional            physician service requirements and residents’ rights.
incentives for Texas nursing homes to provide                 The chapter also provides the basis for detailed
quality care to their residents.                              regulations in the Texas Administrative Code
     On the other hand, overly aggressive litigation          (discussed below).
and low state reimbursementrates are combining to                  Section 242.043 provides for the process by
create an atmosphere hostile to even the best nursing         which the Texas Department of Human Services
homes. Across the state,nursing homes are closing             (“TDHS”) conducts inspections of nursing homes.
and some companies whooperate nursing homes are               Inspections are almost always conducted with no
pulling out ofTexas altogether.                               warning to the nursing home and can provide good
     Approximately twenty percent of Texans can               insight into how the home inspected is caring for its
expect to spend time in a nursing home before they            residents. Many signs that a home may be
die. These people will hope to receive quality care           understaffed or may be neglecting its residents are
but they also hope that nursing homes will actually           readily discoverable on inspection and cannot be
exist and be able to admit them for care.                     hidden from investigators.        For example, if
     This paper provides an overview of nursing               inspectors find large numbers ofresidents suffering
home litigation, the applicable statutes and                  from malnutrition, dehydration and untreated
regulations and recent developments in evidence               pressure sores, there is a good chance the facility is
and discovery practice.                                       understaffed.
                                                                   Section 242.049 provides a process whereby
II. STATUTES                                                  TDHS may conduct quality improvement studies of
    Three main statutory sources come into play in            Texas nursing homes. All information, reports,
Texas nursing home litigation. Chapter 242 of the             compilations and analyses whichresult from quality
Texas Health and Safety Code sets forth much of the           improvement activities are exempt from discovery
law related to convalescent and nursing homes and             and may not be admitted in any civil proceeding.
related institutions. Chapter 242 sets forth detailed         Further, TDHS employees or agents involved in
provisions designed “to ensure that [nursing home]            quality improvement activities cannot disclose
institutions in this state deliver the highest possible       quality improvement activities.3
quality of care.” Chapter 102 of the Texas Human                   Section 242.122 requires g~y   person who has
Resources Code sets forth the “Rights of the                  “cause to believe that the physical or mental health
Elderly.” Section 1396r of the Social Security Act            or welfare of a resident has been or may be
sets forth the federal requirements for nursing
facilities. These three statutory sources combine to
set the complex framework of laws with which

        ‘TEx. HEALTH & SAFETY CODE ANN. §                             3TEX. HEALTH & SAFETY CODE ~        §
242.001(a) (Vernon 2001).                                     242.049(d)-(g) (Vernon 2001).
Nursing Home Litigation Defendant’s Perypçç~yç~
                          -                                                                                  Chapter 4

adversely affected by abuse or neglect” to report             investigates complaints.”
same to the TDHS.4 The statute requires TDHS to
thoroughly investigate every report of abuse or                    B. Texas Human Resources Code Ch. 102
neglect received.      Redacted results of such                    Chapter 102 of the Texas Human Resources
investigations are available to the public,5 (Names           Code sets forth the “rights of the elderly.” Elderly
of residents, persons interviewed and the person              people have the “right to be treated with dignity and
who made the report to TDHS are deleted from                  respect.”2 Other rights include the right to be free
publically released documents.)                               of physical or chemical restraints “that are
      Subchapter F of the statute sets forth broad            administered for the purpose of discipline or
requirements for nursing home staff.            This          convenience and not required to treat the
subchapter includes requirements for a medical                individual’s medical symptoms.”3 Physical or
director6 and a director of nurses (who must be an            chemical “restraints” may only be used under the
RN).7 It also requires homes to “maintain sufficient          order of a physician.~4
staff to provide nursing and related services: (1) in              Chapter 102 also sets forth the procedures
accordance with each resident’s plan of care; and             which nursing homes must follow to transfer or
(2) to obtain and maintain the physical, mental and           discharge a resident.’5
psychosocial functions of each resident at the
highest practicable level...                                       C. 42 U.S.C. § 1396r
      Subchapter K of the statute addresses “quality               Title 42 U.S.C. § l396r sets forth standards for
of care.” Subchapter L lists out twenty-one (21)              nursing facilities to receive federal Medicare and/or
residents’ rights.9     Subchapter M allows for               Medicaid benefits. Chapter 242 of the Texas Health
 complaints to be made to TDHS regarding an                   and Safety Code is largely promulgated under the
 alleged violation of law and for requests for an             provisions of section 1396r.
 inspection.’9 Complaints are common and are filed                 Section 13 96r mandates that homes maintain a
by familymembers, friends, nursing home staff and             “written plan of care” for each resident which
 even the residentsthemselves. TDHS almost always             “describes the medical, nursing, and psychosocial
                                                              needs of the resident and how such needs will be
                                                              met;” is initially preparedby the attendingphysician
                                                              and a registered nurse; and which must be
                                                              “periodically reviewed.”6
                                                                   Section 1396r also requires that resident
        4TEX. HEALTH & SAFETY CODE ANN, §                     assessments be conducted “promptly” but not later
                                                              than 14 days after admission.’7 Residents must also
242.122(a) (Vernon 2001).
                                                              be assessed “promptly after a significant change in

242.126 (Vernon 2001).                                                1~See
                                                                          TEX. HEALTH & SAFETY CODE ANN.           §
                                                              242.554 (Vernon 2001).
242.151 (Vernon 2001).
        7TEX. HEALTH & SAFETY CODE ANN. §                             ‘2TEX HUM. RES. CODE ANN. § 102.003(b)
                                                              (Vernon 2001).
242.153 (Vernon 2001).                                                ‘3TEX. HUM. RES. CODE ANN.        § 102.003(c)
                                                              (Vernon 2001).
242.154 (Vernon 2001). More detailed requirements
for staffmg levels are found elsewhere in the statute                 ‘41d.
and in the Texas Administrative Code.
                                                                       “See TEx. HUM. REs. CODE ANN. §
         TEX. HEALTH & SAFETY CODE ANN. §                     l02.003(r)-(s) (Vernon 2001).
242.501 (Vernon 2001).
                                                                      1642    U.S.C. § l396r (b) (2).
         ‘°TEx. EALTH & SAFETY CODE ANN.
              H                                §
242.551 (Vernon 2001).                                                   U.S.C. § 1396r (b)(3)(C)(i)(I).

Nursing Home Liti2ation Defendant’s Perspective
                                -                                                                              Chapter 4

the resident’s physical or mental condition” and “in                  III. REGULATIONS
no case less often than once every 12 months.”8                        The statutes directed at nursing homes have
Many changes in residents’ conditions are easy to                 caused to be generated detailed, complex state and
identify. What constitutes a “significant change” in              federal regulations. Nursing homes must comply
a particular resident’s condition, though, can                    with these regulations and lawyers involved in
become a critical point of controversy in nursing                 nursing home litigation must be aware of them.
home litigation.’9 Aphysician or aregistered nurse,
with the benefit of hindsight, may identify a                           A. 40 TEx. ADMIN. CODE § 19.1, et seq.
“significant change” in a resident’s condition that                     Chapter 19 of Title 40 of the Texas
the licensed vocational nurse caring for the resident             Administrative Code (“TAC”) specifies the
failed to identify. It may be a good idea in the early            requirements of both federal and state laws and
investigation of a case to discuss with the staff of              regulations governing nursing facilities.
the home you represent whether they can identify                        The TAC defines “abuse” as any act, failure to
any significant change in the resident’s condition                act, or incitement to act done willfully, knowingly,
which occurred prior to the incident made the basis               or recklessly through words or physical action
of your case. If the existence or nonexistence of a               which causes or could cause mental or physical
“significant change in condition” becomes important               injury or harm or death to a resident.” The
in your case, you should discuss the issue early on               definition specifically includes “verbal abuse” and
with your experts. Conflicting testimony about                    “involuntary seclusion.”25 The TAC sets forth
what does or does not constitute a “significant                   detailed listings of resident rights and requires
change in condition” can look bad in front ofajury.               facilities to provide residents with a list of their
     Section 1396r also sets forth training                       rights.
requirementsfor nurse aides,2°
                             requirements relating                      Residents have the “right to be free from any
to residents’ rights,2’ requirements relating to                  physical or chemical restraints imposed for purposes
nursing home administration,22 and requirements                   of discipline or convenience, and not required to
which states must follow to receive federal                       treat” medical symptoms.26 Ifphysical restraints are
benefits.23 Additionally, section 1 396r sets forth               used, they must be released at a minimum of every
procedures for state and federal surveys and                      two hours for a minimum of 10 minutes, and the
certifications of nursing homes.24                                resident must be repositioned.27 “Use of restraints
                                                                  and their release must be documented in the clinical
            U.S.C. § l396r (b)(3)(C)(i)(lI)-(lII).
         ‘~42                                                          Nursing homes must not employ individuals
                                                                  who “have been found a court of law” of
          ‘9One definition of “significant change” is             past abuse or mistreatment of residents or who have
found in the Texas Administrative Code: “For purposes             “been convicted of any crime contained in §
of this section, a ‘significant change’ means a major             250.006, Health and Safety Code.”29
decline or improvement in the resident’s status that will              Rule 19.703 requires facilities to “provide
not nonnally resolve itselfwithout further intervention           medically-related social services to attain the
by staff or by implementing standard disease-related              highest practicable physical, mental, or psychosocial
clinical interventions, that has an impact on more than
one area of the resident’s health status, and requires
interdisciplinary review or revision of the care plan, or
both.” 40 T.A.C. § 19.801 (2)(C)(ii).
         2042 U.S.C. § 1396r (b)(5).                                      2540T.A.C. §19.101 (1).

         2142 U.S.C. § l396r(c).                                          2640    T.A.C. § 19.601 (a).

         2242 U.S.C.     §   1396r (d).                                   271d.

         2342   U.S.C.   § l396r (e).
         2442   U.S.C. § l396r (g~.                                       2940    T.A.C. § 19.601 (c)(l)(B).

Nursin2 Home Litigation Defendant’s Perspective
                              -                                                                        Chapter 4

well-being of each resident.”3° Larger facilities,         as the director of nursing (“DON”) on a full-time
with more than 120 beds, “must employ a qualified          basis, 40 hours per week.36
social worker on a full-time basis.”3’                           Rule 19.1002 creates a mathematical ratio of
     Rule 19.801 sets forth detailedrequirements for       nursing staffto residents which nursing homesmust
resident assessment and documentation of the               maintain. The administrator and DON ofany given
resident’s care. These documents are important and         facility should be readily able to compute this ratio,
are discussed more fully below. A comprehensive            also known as “ppd,” short for “per patient day.”
assessment must be completed within 14 calendar            Plaintiffs’ attorneys will generally attempt to make
days of the resident’s admission” or “within 14            the staffing of a home an issue in their case.
calendar days after the facility determines, or should     Defense counsel must be aware ofthe “ppd” ofthe
have determined, that there has been a significant         nursing home during relevant time periods and
change in the resident’s physical or mental                 should discuss the ppd figures early on with their
condition.”32                                               clients and experts.
     Rule 19.802 requires nursing homes to develop               Rule 19.1010 governs “nursing practices.”
a “comprehensive care plan for each resident.” This        Most nursing homes document residents’ records by
plan must be “developed within seven days after             “exception.” Charting “by exception” means that
completion of the comprehensive assessment.”33             nurses generally only make entries in a resident’s
     Rule 19.901 sets forth “quality of care”               chart when there is something unusual or
standards for nursing homes and is often the most          noteworthy to report. The regulations require
important section of the TAC for attorneys                  documentation in the “nurses’ notes” section of a
defending nursing homes in wrongful death or               resident’s chart “at least monthly,”37 Nurses must
personal injury actions. Rather than listing each          also enter, or approve and sign nurses’ notes “at the
paragraph of rule 19.901 here, it is suggested that        time of any physical complaints, accidents,
the reader refer to it early on in the defense of a        incidents, change in condition or diagnosis, and
case. Generally, rule 19.901 requires nursing homes        progress.”38 Juries may need to be educated on the
to “avoid” certain things unless they are                  difference between hospital charting (which is
“unavoidable” and to “ensure” other things as far          necessarily much more detailed) and charting in a
“as possible.” This section provides little assistance     nursing home setting. Nursing homes that fail to
in determining what is “unavoidable” or what is            meet the minimum charting requirements of the
“possible,” and it provides great fodder for               TAC, though, serve a up softball issue which can be
plaintiffs’ attorneys alleging negligence per se.          hammered by plaintiffs’ attorneys.
     Rule 19.1001 sets forth requirements for                    Rule 19.1203 requires that each resident have
nursing services. Generally, homes must “provide           a medical examination “at least annually” and that
services by sufficient..,personnel, provide           physician orders be “reviewed and revised as
nursing care to all residents in accordance with           necessary at least once every 60 days...
resident care plans.”34 Nursing homes must staff a         Although some have private physicians, many
registered nurse (“RN”) for “at least eight                nursing homeresidents are followed by the facility’s
consecutive hours a day, seven days a week.”35             medical director. The TAC requires that a resident
Nursing homes must also designate an RN to serve           “be seen by a physician at least once every 30 days
                                                           for the first 90 days after admission, and at least
                                                           once every 60 days thereafter.”4°
        ~°40T.A.C. § 19.703 (a).
        ~‘40T.A.C. § 19.703 (a)(l).
        3240   T.A.C.   § 19.801 (2)(C).                           ~~40T.A.C.    §   19.1010 (e)(1).

        ~~40T.A.C. § 19.802 (b).                                   3840   T.A.C. § 19.1010 (e)(2).
        3440T.A.C. §19.1001 (l)(A).
                                                                   3940   T.A.C. § 19.1203 (1).

        ~‘40T.A.C. § 19.1001 (2).                                 ~°40T.A.C. § 19.1203 (2)(A).

Nursing Home Litiuation Defendant’s Perspective
                             -                                                                            Chapter 4

     Clinical records must be maintained for five          unknown source...
years after medical services end.4’ The clinical                 Rule 483.20 addresses residentassessments and
record for each resident must contain, inter a/ia, a       comprehensive care plans. “A comprehensive care
record of the resident’s assessments, the                  plan must be.. .prepared by an interdisciplinary team,
comprehensive, interdisciplinary plan of care,             that includes the attending physician, a registered
progress notes from all health care practitioners          nurse with responsibility for the resident, and other
involved in the resident’ scare, authentication ofany      appropriate staffin disciplines as determined by the
hospital diagnoses, and signed and dated physician         resident’s needs....”47
orders.42 Nurses’ observations must document:                    Like 40 T.A.C.~19.901, Rule 483.25 sets forth
PRNmedications and results, treatments and notable         “quality of care” standards for nursing homes and is
results, physical complaints and changes in                often the most important section of the CFR for
condition, all incidents or accidents, flow sheets         attorneys defending nursing homes in wrongful
(which ~g~y include numerous activities of daily           death or personal injury actions. It is suggested that
living), dietary intake and drug administration.43         the reader refer to it early on in the defense of a
     B. 42 CFR 483.1, et seq.                                    The federal regulations mandate that each
     The US Department of Health and Human                 nursing home complete a “performance review of
Services has also promulgated regulations relating         every nurse aide at least once every 12 months” and
to nursing homes. These are largely contained in           provide regular in-service education based on the
part 483 of Title 42 of the Code of Federal                outcome of these reviews. The in-service training
Regulations. The following discusses some of the           must be sufficient to ensure the continuing
more important and common provisions.                      competence ofnurse aides but must be “no less than
     A nursing home must immediately inform the            12 hours per year.”49
resident and his family and consult with the                    Subpart F of the federal regulations specifies
resident’s physician when there is an accident             the resident assessment instrument used in Texas.
involving the resident which results in injury, when       This subpart defines the minimum data set (“MDS”)
there has been a “significantchange in the resident’s      and resident assessment protocols (“RAPs”).5°
physical, mental or psychosocial status” and of            Nursing homes usually have pre-printed forms”
needs to alter treatment.44 Residents’ family              which comply with this Rule, but counsel should
members often testify in deposition that they were         check the resident’s chart against this rule to make
never notified about falls, changes in condition or        sure all of the areas of assessment were properly
other incidents documented in the record. Nursing          completed. Every nurse you work with in defense
home personnel should be encouraged to document            ofa nursing home will be familiar with “MDS” and
such contact attempts in the record.                       RAPs.” These instruments are critical parts of the
     The federal regulations, like the TAC, limit the      chart, and their absence will be vigorously attacked
use of physical and chemical restraints.4’                 by plaintiffs. These instruments can also be of great
Additionally, nursing homes are required to report         value in demonstrating to a jury the resident’s
to the TDHS “all alleged violations involving              usually poor condition at the time the resident was
mistreatment, neglect, or abuse, including injuries of

                                                                   4642   C.F.R.   § 483.13 (c)(2).

        4140 T.A.C.   § 19.1910   (b)(l).
                                                                   ~~42            § 483.20 (k)(2)(ii).
                                                                   48See 42 C.F.R.     § 483.25.
        42See4OT.A,C.       § 19.1911.
                                                                   ~~42C.F.R. § 483.75 (e)(8).
        4340T.A.C.    §   19.1911 (12)(B).
                                                                   50See42 C.F.R.      § 483.315.
           C.F.R.     § 483.10.
                                                                    “The form is available on line at
        ~‘42          § 483.13 (a).              

Nursing Home Litigation Defendant’s Perspective
                            -                                                                               Chanter 4

admitted to the nursing home.                               absence of the statute.’6 However, not every penal
     Rules 483.356 and 483.358 address use of               statute creates an appropriate standard of care for
restraints and seclusion of residents. Restraint and        civil liability purposes; therefore, a court is not
seclusion may never be used simultaneously,’2 and           required to adopt the penal statute’s standard.’7
neither may be ordered for extended periods of                    The Texas Supreme Court, in Perry v. S.N., set
time.’3                                                     forth several factors which civil courts must
                                                            consider prior to applying a negligence per se
IV. CAUSES OF ACTION/PLAINTIFFS’                            standard. Those (nonexciusive) factors include: (1)
THEORIES OF LIABILITY                                       whether the statute is the sole source ofany tort duty
                                                            from the defendant to the plaintiff or merely
     A. Negligence                                          supplies a standard of conduct for an existing
     Negligence claims, as with other personal              common-law duty; (2) whether the statute puts the
injury and wrongful death lawsuits, are the bread           public on notice by clearly defining the required
and butter of most nursing home litigation. General         conduct; (3) whether the statute would impose
negligence concepts apply.                                  liabilitywithout fault; (4) whether negligence per se
                                                            would result in ruinous damages disproportionate to
      B. Negligence Per Se
                                                            the seriousness of the statutory violation; and (5)
      Given the detailed statutes and regulations
                                                            whether the plaintiff’s injury is a direct or indirect
underlying nursing home care, one would expect
                                                            result of the violation ofthe statute.’8
ubiquity of negligence per se claims. Indeed, “per
                                                                  So, can plaintiffs rely on the statutes and
Se” claims are almost boilerplate in nursing home
                                                            regulations discussed above to bring per se claims
                                                            against nursing homes? The Fort Worth Court of
      Negligence per se is a tort concept whereby the
                                                            Appeals recently answered, “no.” In Pack v.
civil courts adopt a legislatively imposed standard of
                                                            Crossroads, Inc., plaintiffs asserted negligence per
conduct as defining the conduct of a reasonably
prudent person. The unexcused violation of a                se claims based on chapter 19 of title 40 of the
                                                            Texas Administrative Code. The nursing home
statute constitutes negligence as a matter of law if
                                                            defendant argued that chapter 19 applied only to a
the statute was designed to prevent injury to the
                                                            nursing home’s licensure and participation in the
class of persons to which the injured party
                                                            Medicaid program, and therefore, did not establish
belongs.’4 In such a case, the jury is not asked
whether defendant acted as a reasonably prudent             a standard of care for a negligence per se claim.’9
person under the same or similar circumstances. If          The court found that the stated purpose of chapter
                                                             19 is to set forth the “requirements that an
the violation of the statute is unexcused, the only
inquiry is whether the violation was a proximate            institution must meet in order to be licensed as a
                                                            nursing facility and also to qualify to participate in
cause of the accident.” In the usual negligence per
                                                            the Medicaid program.”           The requirements,
se case, the court is concerned with alleged conduct
                                                            continued the court, serve as a basis for survey
whichwould be considered substandard even in the
                                                            activities for licensure and for certification.”6°
                                                            “~B]ased on the stated purpose ofchapter 19 and the

                                                                    56Rudes v. Gottschalk, 324 S.W.2d 201, 204
        5242   C.F.R. § 483.356 (a)(4).
                                                            (Tex. 1959).
        53See 42 C.F.R.                                              57Carter, 584 S.W.2d at 278.
                          § 483.358 (e).
        “El Chico Corp. v. Poole, 732 S.W.2d 306,                    58Perry v. S.N., 973 S.W.2d 301, 309
312 (Tex.1987); Missouri Pac. R. Co. v. American
Statesman, 552 S.W.2d 99, 102-03 (Tex.1977).                (Tex. 1998).
                                                                     59Pack v. Crossroads, Inc., 53 S.W.3d 492,
       55Carter v. William Sommerville & Son, Inc.,         509 (Tex. App.—Fort Worth 2001, pet. denied).
584 S.W.2d 274, 277 (Tex.1979); Moughon v. Wolf,
576 S.W.2d 603, 604 (Tex.1978).                                      6040T.A.C. § 19.1(b).

Nursiun Home Litieation Defendant’s Perspective
                          -                                                                                   Chapter 4

fact that the administrative code provisions [in                 economic damages plus $750,000.65 The limit on
question were] not penal in nature,” it was proper to            damages does not apply if the conduct was
strike plaintiffs’ negligence per se claims.6’ The               committed knowingly or intentionally in violation of
Texas Supreme Court, on February 4, 2002, denied                 section 22.04.66
petition for review in Pack.                                          The Penal Code provides an affirmative
      Plaintiffs can be expected to continue to press            defense to criminal prosecution for injury to an
per se claims. Defendants may be wise to specially               elderly person if “the act or omission consisted of
except to those claims early in the case.62                      reasonable medical care occurring under the
      It is important to note, though, that most                 direction ofor by a licensed physician or emergency
nursing experts in the field have been trained on the            medical care administered in good faith and with
federal and state regulations. Thus, even if a court             reasonable care by a person not licensed in the
disallows the statutes and regulations to be used on             healing arts.”67
a per se basis, it is common for much of the expert                   So, does this affirmative defense protect
testimony in a case to be drawn from the                         nursing homes and nursing home personnel? By the
regulations. Accordingly, attorneys should be                    wording of the code, the protection only applies to
familiar with the regulations and their potential                “reasonable medical care.” Thus, the question
application to that facts of a given case.                       becomes circular. Can one intentionally, knowingly
                                                                 or recklessly injure an elderly person while
      C, Injury to the Elderly                                   providing “reasonable medical care?”
      Another common allegation appearing in                          As of the date ofthis paper, no Texas appellate
plaintiffs’ petitions are claims for “injury to the              court opinion, published or unpublished, has
elderly” allegedly in violation ofTEx. PENAL CODE                addressed the applicability of section 22.04 in a
Ai’m~. § 22.04. Section 22.04 makes it a criminal                nursing home context.
offense to “intentionally, knowingly, recklessly, or                  It is the author’s opinion that section 22.04 has
with criminal negligence, by act, or intentionally,              no place in most nursing home litigation. Plaintiffs,
knowingly, or recklessly by omission” cause injury               though, are certain to continue to allege violations
to an elderly individual.63 The goal of such a claim             of section 22,04. For the time being, this issue is
is to allow the plaintiffto evade the caps on punitive           unresolved and should be considered as a risk in
damages found in section 4 1.008 of the Texas Civil              defense counsel’s analysis of a case.
Practice andRemedies Code.64 Exemplary damages
awarded against a defendant may not exceed an                         D. Breach of Contract
amount equal to the greater of two times the                          Breach of contract claims are also common in
                                                                 nursing home litigation. Nonetheless, if the action
                                                                 is based on an alleged departure from accepted
         61Pack, 53 S.W.3d at 510.                               standards of medical care, the two-year statute of
                                                                 limitations in article 4590i applies.68
         62See, e.g., Golden Villa Nursing Home v.
Smith, 674 S.W.2d 343 (Tex. App.—Houston [14th                       E. Fraud/Warranty/DTPA
Dist.] 1984, writ refd n.r.e.)(TDHS considers                        Fraud claims and claims based on the
compliance with the regulations found in the TAC to be           Deceptive Trade Practices Act are also common. In
“merely the minimum duty owed by a nursing home to
its patients....”); Hickson v. Martinez, 707 S.W.2d 919
(Tex. App.—Dallas 1985, writ reid n.r.e.) (Federal
                                                                          65See TEx. CIV. PRAc. & REM. CODE
regulations related to Medicare and Medicaid can be                                                           § 41.008
relevant to hospital’s standard of care).                        (b).
         63                                                               66TEx Civ. PRAc. & REM. CODE
           TEX PENAL CODE ANN.       § 22.04 (a) (Vernon                                                 § 41.008 (c).
2001),                                                                    67
                                                                            TEX PENAL CODE ANN.   § 22.04 (k) (Vernon
        64The damage caps found in TEX. REV. Civ.                2001).
STAT. ANN. art. 4590i do not cap punitive damages.
                                                                          68MacGregor Medical Ass h v. Campbell, 985
Horizon/CMS Healthcare Corp. V. Auld, 34 S.W.3d
887, 896 (Tex. 2000).                                            S.W.2d 38, 41 (Tex. 1998).

Nursing Home Litigation Defendant’s Perspective
                               -                                                                                Chanter 4

general, plaintiffs will claim that the nursing home              wages, loss of earning capacity, future pain and
represented that it would provide quality, loving                 suffering, future medical care.
care when it provided just the opposite.                                Accordingly, plaintiffs’ attorneys have
      Texas courts have repeatedly held that DTPA                 developed new ways to increase damages in nursing
claims are barred in health care liability actions.69             home cases. Every nursing home in Texas will have
The Texas Supreme Court reaffirmed this position                  staffing problems on a recurring basis. Staffing
in MacGregor.7°Plaintiffs often assert these claims               problems usually relate to nurse aides but can also
 for discovery purposes to create an alleged need
                           -                                      relate to licensed personnel.        Plaintiffs will
for internal nursing home documents unrelated to                  generally attempt to anger a jury by making staffing
the care provided to the injured nursing home                     problems the centerpiece of their case. Consider
resident. Defense counsel should consider special                 these comments from a recent publication:
exceptions to such claims on the basis that they are
merely “re-cast” negligence claims.                                    Unlike medical malpractice, in which the
                                                                       claim is generally based on one event,
     F. “Profits Over People”                                          attorneys in nursing home litigation have
     “Profits over people” is not a claim in itself,                   to find a pattern of neglect. To find it,
but it is a theme that plaintiffs’ attorneys have                      “look at the injuries,” says H. Dustin
repeatedly used with great success.                                    Fillmore III of Fort Worth, Texas’
     Unlike other plaintiffs, persons in nursing                       FillmoreLaw firm... .“Ifthereare pressure
homes are usually past their wage earning days, and                    sores, malnutrition, dehydration, it shows
they usually suffer from a myriad of preexisting                       the patient isn’t being turned over in bed,
physical and/or mental health problems. Their life                     is not being fed, has not been given
spans are generally nearing their ends. For these                      water,” he says. These injuries “indicate
reasons, nursing home residents ordinarily cannot                      systematic, shift-after-shift, day-after-day,
recover large amounts for the “usual” types of                         month-after-month neglect.”7’
damages common in personal injury actions: loss of
                                                                       Injuries such as the foregoing can occur
         69See, e.g., Gormley v. Stayer, 907 S.W.2d               without negligence on anyone’s part. They can also
                                                                  commonly result from lack of care and are signs that
448, 540 (Tex. 1995) (DTPA claims were “nothing
                                                                  a facility that is short on staff. If a plaintiff can
more than an attempt to recast Stover’s malpractice
claim as a DTPA action” because the alleged                       identify such a “pattern ofneglect,” the next step is
misrepresentations supporting the DTPA claim were                 to focus on nursing home staffing patterns and, if
based on whether the dentist met the standard of care.);          possible, company profits. The goal, ofcourse, is to
Walden v. Jeffery, 907 S.W.2d 446,448 (Tex.1995)                  anger a jury by claiming the company was cutting
(negligence claim had been improperly recast as a                 costs on staff at the same time it was making large
DTPA claim because the allegation that the dentist                profits. This argument can be very effective and has
provided ill-fitting dentures could not be anything other         helped plaintiffs’ counsel achieve astounding
than an allegation that he was negligent); Mulligan v.            verdicts for their clients.
Beverly Enters.-Tex. Inc., 954 S.W.2d 881, 884 (Tex.
App.—Houston [14th Dist.] 1997, no writ) (holding                     G. Common Injuries and Complaints
that DTPA claim based on nursing home’s alleged                       Although every nursing home case is different,
misrepresentations to “take good care” of the patient             some injuries and claims are common in nursing
was merely an attempt to recast a negligence claim);
Waters ex rd. Walton v. Del-Ky, Inc., 844 S.W.2d 250,             home cases.
258 (Tex. App.—Dallas 1992, no writ) (holding that
DTPA express warranty claim based on nursing home’s
representations that it would provide adequate and
proper supervised care and comply with state health                        71Margaret Cronin Fisk, The National Law
standards was merely a negligence claim based on                  Journal, April 23, 2001. (This article can also be found
deviations from the accepted standard of care).                   at
         70MacGregor Medical Assh, 985 S.W.2d at
                                                                  =ZZZ3AV3BSLC&live=true&cst=1 &pc~0&pa=0&s=
41.                                                               News&Explgnore=tn,e&showsummaryr=0).

Nursing Home Litigation Defendant’s Perspective
                           -                                                                             Chapter 4

         1.      Decubitus Ulcers/Pressure Sores               restraints). Physical or chemical “restraints” may
      The decubitus ulcer is perhaps the injury most           only be used under the order of a physician.76 As
associated with nursing home litigation.            A          noted above, restraints may never be used in
decubitus ulcer is a pressure sore (commonly called            combination with seclusion.
a “bed sore”). Usually caused by constant72 pressure                 The TAC defines “chemical restraints” as
to the skin and muscle, a decubitus ulcer can range            “psychoactive drugs administered for the purposes
in appearance from a very mild pink coloration to              of discipline, or convenience, and not required to
the skin, which disappears in a few hours after                treat the resident’s medical symptoms.”77 Patients
pressure is relieved on the area, to (in the most              who receive psychoactive medication, even under
extreme cases) a deep wound extending to and                   close supervision by medical doctors, can suffer
sometimes through a bone into internal organs.                 known adverse results, some of which, like
These ulcers or wounds are classified just as other            neuroleptic malignant syndrome,78 can be fatal. On
wounds according to the severity of the wound                  the other hand, patients who fail to receive adequate
usually in four stages or types. Stage I sores are             psychoactive medication can harm themselves or
little more than discoloration. Stage IV sores                 others.
extend through the skin and involve underlying                       The TAC defines “physical restraints” as “any
muscle, tendons and bone and are quite painful.73              manual method, or physical or mechanical device,
      Some advocates argue that all pressure sores             material or equipment attached, or adjacent to the
 are preventable, but the facts are that some pressure         resident’s body, that the individual cannot remove
 sores are simply unavoidable.74 The incidence of              easily which restricts freedom of movement or
pressure ulcers is l0%-l4% among hospitalized                  normal access to one’s body.”79 If physical
patients of all ages “and up to 24% among patients             restraints are used, they must be released at a
 in nursing homes.”7’                                          minimum of every two hours for a minimum of 10
      Nursing homes should have policies in place to           minutes, and the resident must be repositioned.8°
 prevent pressure sores and to detect and treat sores           “Use of restraints and their release must be
 that develop despite prevention efforts.                       documented in the clinical record.”8’ Unmonitored,
                                                                a restrained resident can become tangled in the
         2.       Restraints                                   restraint and suffer injury.         Conversely, an
     Restraints in nursing home litigation come in             unrestrained resident can fall and suffer injury or
two types: physical and chemical. Additionally,                wander out of the facility.
there are two types of claims regarding restraints:
complaints that restraints should have been used                        3.     Dehydration/Malnutrition
(and weren’t) or complaints that restraints used were               Dehydration is a common problem in the
excessive or actually caused an injury such as                 elderly.
tardive dyskinesia (in the case of chemical                         Generally, nursing home residents who lose
restraints) or strangulation (in the case of physical          weight unintentionally are malnourished,

         72People in bed who cannot move may develop
pressure ulcers in as little as 1-2 hours. National                    76Id
Pressure Ulcer Advisory Panel,
whatarepressureulcerspatientbookletl -24-01 .pdf.
                                                                       7740T.A.C. § 19.101 (120).
         73Pressure Sores, THE MERCK MANUAL, http://
                                                               general information.shtml
         74See Barbara M. Bates-Jensen, Quality
Indicators for Prevention and Management ofPressure                       T.A.C. § 19.101 (121).
Ulcers in Vulnerable Elders, 135 ANNALs OF INTERNAL                    80Id
MEDIcINE 744     (October 2001).

Nursing Home Litigation Defendant’s Perspective
                          -                                                                               Chanter 4

dehydrated, or both.82 Older persons eat less and            receive the wrong medication or no medication at
become dehydrated easily. Speak to any working               all.
LVN or nurse aide, and you will learn that it is a                 Documentation is critical when confronted with
struggle to get some residents to eat and drink              an allegation of medication error. Generally,
enough to sustain their bodies. Physicians order             medications will be charted in a Medication
supplemental, enriched shakes and familymembers              Administration Record (“MAR”), in the nurses
and staff alike encourage residents to eat. Despite          notes or both.83 Medication errors must be reported
these efforts, some elderly residents still canbecome        to the resident’s physician.84
dehydrated or malnourished or both. When this
occurs, other complications follow up to and                         7.      Abuse
including pressure sores and death.                               Unfortunately, there are instances of outright
     Plaintiffs will likely argue that a resident            abuse of nursing home residents. As noted above,
became dehydrated and/or malnourished due to                 the TAC defines “abuse” as any act, failure to act, or
neglect by the nursing home staff.                           incitement to act done willfully, knowingly, or
                                                             recklessly through words or physical action which
         4.       Falls                                      causes or could cause mental or physical injury or
      Not only are elderly persons prone to falls, they      harm or death to a resident.” The definition
are often “brittle” and suffer serious injuries from         specifically includes “verbal abuse” and
falls. Nursing homes should have fall prevention             “involuntary seclusion.”8’
policies in place and (along with the resident’s
physician) should assess residents for fall risk.            V.   POTENTIAL PARTIES
Complaints regarding falls can range from an
alleged failure to monitor, to failure to restrain to              A. The Nursing Home
failure to properly assess the resident.                           Thenursing home itself is obviously a potential
                                                             party to a suit filed by or on behalf of an injured
         5.      Wandering/Elopement                         nursing home resident. A nursing home’s liability
      Confused nursing home residents can wander             can be direct (for things such as inadequate staffing
around or out of the facility and end up harming             or training of staff), or it can be vicarious liability
themselves due to falls, exposure, or even                   for the acts of its employees.
wandering into traffic. Nursing homes should have
wandering/elopement prevention policies in place                  B. Parent Companies
and (along with the resident’s physician) should                   Plaintiffs routinely not only sue the entity
assess residents for wandering/elopement risk.               operating a nursing home but also its parent
      Additionally, nursing homes can make use ofa           companies. Parent companies may have deep
“Wanderguard” or similar device which usually                pockets or may simply be additional defendants to
consists of a bracelet or anklet which, when worn,           possibly qualify for additional damage caps under
causes exterior doors to lock and an alarm to sound          the Medical Liability and Insurance Improvement
if the doors are approached by a resident wearing            Act.86 Theories of liability can include direct
the device. These devices do generally meet the              corporate liability related to staffing or training,
definition of a “restraint,” and therefore should            alter ego, conspiracy, single business enterprise and
generally be placed on a resident with a doctor’s            respondeat superior.
                                                                     83See TEx. HEALTH &   SAFETY CODE ANN.       §
       6.      Medication Errors
     Medication errors are also a common complaint           242.601 (Vernon 2001).
in nursing home litigation. Residents may receive                    84
                                                                       TEx HEALTH & SAFETY CODE ANN.       §
too much or too little of a medication. They may
                                                             242.604 (Vernon 2001).
                                                                     8540T.A.C. §19.101 (1).
        82Morley JE; Kraenzle D., C’auses ofWeight
                                                                     86See TEx. REV. Civ. STAT. ANN. art. 4590i
Loss in a Community NursingHome, I. AMER.                                                                         §
GERIATR Soc., 42:583-5 (1994).                               11.02 (Vernon Pamph. 2001).

           Litigation Defendant’s Perspective
N~~rsingI~p~ie            -                                                                               Chanter 4

     Defensecounsel maywish to initially challenge          care and shall review, revise, and sign orders
personal jurisdiction when out-of-state companies           relating to any medication ortreatment in the plan of
are named as defendants.                                    care.”9° When a resident has a treating physician
                                                            other than the medical director, it is not unusual for
      C. Administrator                                      that physician to be named as a defendant in the
      Nursing home administrators are frequently            case.
named individually in actions brought by or on
behalf of an injured nursing home resident.                 VI. DISCOVERY ISSUES
Administrators generally make decisions regarding
staffing patterns, hiring, training and any number of            A. Privileges
other decisionsaffecting the day-to-day operation of
the nursing home. The administrator must be                          1.      TEx. 0cc. CODE ANN. §~   301.417 (a),
licensed by the state, and is responsible for                                301.418 (a), (b)
                                                                 In reRogers9’ addresses whether certainTDHS
management of the facility.87
                                                            documents could be used in the discovery process.
     D. Medical Director                                    Plaintiff obtained by open records request and
     Nursing homes are required by law to have a            subpoena an “intake form, investigation
medical director.88 Each resident has the right to          authorization, Investigation Report, Special Report      -

choose his or her own attending physician. In               Referral of to the Board of Nurse Examiners [sic],
practice, though, the medical director acts as the          and a Statement of Violation and Plan of
“treating physician” for many residents. As such,           Correction.”92 Plaintiff desired to make use ofthese
medical directors often find themselves added as            documents at depositions Defendant claimed
defendants in nursing home litigation.                      privilege and asked the court to intervene. Plaintiff
                                                            argued that the mere submission of these TDHS
     E. Director of Nurses                                  documents to the Board of Nurse Examiners in
     Nursing homes must also designate an RN to             conjunction with the referral report failed to
serve as the director of nursing (“DON”) on a full-         somehow make the documents confidential. On
time basis, 40 hours per week.89 DONs generally             appeal, the court ruled that, “~t]o the extent
participate in determining the acuity of the facility       documents were originated for the purpose of
and assist in preparation of staffing plans. The            making a referral to the Board, the documents and
DON is usually responsible for all nursing services.        information in them are confidential and are not to
                                                            be used in the discovery process. To the extent the
      F. Nursing Staff                                      documents were originated for a purpose other than
      Individual members of the staff can also be           making a referral to the Board, the documents and
named as defendants. Usually, aides only become             information in them are not confidential and may be
parties to a case if they are suspected of physical         used in discovery.”93
abuse. Nurses, though, may be named in a petition
if they were on duty at the time of the incident or if
they played a large role in the care of the injured                 90TEx. HEALTH & SAFETY CODE ANN.       §
resident.                                                   242.151 (Vernon 2001). “The responsibilities imposed
                                                            on the attending physician by this subsection maybe
     G. Treating Physician                                  performed by an advanced practice nurse or a physician
     “The attending physician is responsible for a          assistant pursuant to protocols jointly developed with
resident’s assessment and comprehensive plan of             the attendingphysician.” Id.
                                                                    91In re Rogers, 43. S.W.3d 20 (Tex.
                                                            App.—Amarillo 2001, n.p.h.)
        8742 C.F.R. § 483.75 (d)(2).
        88                                                          921d. at 27.
           TEx. HEALTH & SAFETY CODE ANN.    §
242.151 (Vernon 2001).                                            93Id. at 27-28, citing TEX. 0cc. CODE ANN. §~
                                                         301.417 (a), 301.418 (a), (b); Irving Healthcare Sys. v.
                                                         Brooks, 927 S.W.2dl2, 18 (Tex. 1996).

Nursiiw Home Litigation Defendant’s Perspective
                           -                                                                              Chapter 4

                                                              “The integrity of the regulatory process is a strong
        2.      Confidentiality of Records of Nursing         interest to be protected.”°°
                Home Resident
     A trial court abused its discretion when it                    B. Witnesses
ordered a nursing home to produce the personal and                  Certain witnesses play a larger role in nursing
clinical records of a former resident of the facility.94      home litigation than in other types ofpersonal injury
Plaintiffs alleged their loved one was sexually               actions. This paper will address some of those
assaulted by a male resident of the nursing home              witnesses and their importance in a nursing home
who had since passed away.                                    case.
     The court of appeals prohibited disclosure of                  Family Members. Family members of the
the male resident’s records: “The Texas Human                 injured resident can make or break a plaintiffs
Resources Code, the Texas Health and Safety Code,             nursing home case. Juries will almost certainly be
and the Texas Administration Code [sic] mandate               unsympathetic towards family members who never
that the personal and clinical records of an elderly          visited the resident but now wish to recover for an
individual, specifically one who is in a nursing              injury to the resident.
home, are confidential and protected from                           Family members who testify that the home was
release.”9’ “~N]o exception applies to destroy the            a virtual hell-hole must answer questions on cross
confidentiality ofthe male resident’snursing facility         examination as to why they would leave a loved one
records.”96                                                   in a home they felt was so terrible.
                                                                    Nurse Aides. The job of a nurse aide is
        3.      TEx. HEALTH & SAFETY CODE §                   generally a thankless one. They are paid low hourly
                242. 127                                      wages to do a job that many find distasteful.
     Section 242.127 of the health and safety code            Additionally, a great deal ofresponsibility is placed
provides for confidentiality of a “report, record, or         on them, not only in providing care to residents, but
working paper used or developed in an                         also in accurately documenting that care. As a
investigation” of a nursing facility regarding a              result, there is a lot ofjob dissatisfaction and a high
complaint of abuse, neglect, and exploitation.97 This         turnover rate for nurse aide positions.
section also provides that confidential information                 In almost any nursing home, current and former
“may be disclosed only for purposes consistent with           nurse aides can be found who dislike the home
the rules adopted by the board or the designated              and/or their superiors. Such disgruntled current and
agency.”                                                      former employees can usually be counted on to
     This protection is broad.98 A Texas Attorney             testify that the nursing home is frequently
General Opinion holds that section 242.127                    understaffed and that theresimply isn’t enough time
“protects the investigatory process in general.”99            to take care of the residents. Indeed, many former
                                                              aides will go much further in an effort to “hurt” a
                                                              former employer.
         941n re Diversicare Ccii. Partner, Inc., 41                Obviously, such testimony can be devastating
S.W.3d 788 (Tex. App.—Corpus Christi 2001, n.p.h.)            to a defense. Some juries may feel they are getting
                                                              the “inside scoop” from someone working on the
        95Id. at 792, citing TEx. HuM. RES. CODE
                                                              “front lines” ofthe nursing home.
ANN. § 102.003 ~) (Vernon Supp. 2001); TEx.                        In reality, aides know very little about overall
HEALTH & SAFETY CODE ANN. § 242.50 1 (Vernon                  staffing of a home. Ask any room full of people
Supp. 2001); 40 T.A.C. § 19.1910 (2000).                   whether they feel they are overworked and
        96Id at 793.                                       underpaid, and you will see a good number ofhands
                                                           shoot into the air. It’s no different in nursing
        97                                                 homes. Conversely, just as some people are
             TEX. HEALTH & SAFETY CODE ANN.      §
242.127 (Vernon 2001).                                     comfortable in their jobs, there are a good number
        985ee Pack v. Crossroads, Inc., 53 S.W.3d          of nurse aides who are committed, caring providers
                                                           who enjoy theirwork and don’t hold grudges against
492, 504 (Tex. App.—Fort Worth 2001, pet. denied).
        99Op. Tex. Att’yGen. No. 0R95-Oll (1995).                     100Pack, 53S. W.3d at 504,

Nursing Home Litigation Defendant’s Perspective
                          -                                                                             Chapter 4

the industry. Such witnesses can be very important          are forced to deal with the admissibility of such
to the defense of a case.                                   records.
     Accordingly, it is important for defense                    The Fort Worth Court of Appeals recently
counsel, early in their investigation of a case, to         addressed this issue in its Pack v. Crossroads
interview currently employed nurse aides to find out        decision.’°’ In Pack, plaintiffs attempted to
which ones can be expected to testify positively or         introduce several records TDHS compiled during
negatively about the issues ofyour particular case.         three years of investigations of the nursing home
      Additionally, formernurse aides have proven to        (conducted prior to and contemporaneouslywith the
commonly be difficult to locate. If you believe a           resident in question).’°2 The plaintiffs argued that
former nurse aide can provide valuable testimony in         the TDHS documents contained examples of
your case, it may be wise to start tracking such            conditions similar to those suffered by the resident
witnesses down early in your investigation.                 in question and, therefore, should have placed the
      Official Investigators.      State and federal        nursing home on notice of the conditions which
investigators may provide testimony in nursing              injured that resident.’°3
home litigation. Evidentiary issues related to these             The trial court excluded the documents, and the
witnesses are addressed below.                              court of appeals agreed: “Lay witness testimony
      Family Groups.      Federal and state law             about negligence and proximate cause has no
provide for the organization of groups of residents         probative force in a medical malpractice case... .The
and family members of residents who meet to                 records do not constitute expert te5timofly.~~~O4   As
discuss issues related to the nursing home. Persons         such, the plaintiffs could not use the records in order
active in these “family councils” or “resident              to prove that the nursing home could foresee that its
councils” can be knowledgeable about the nursing            omission would injure the resident in question.’°’
home and its operations.                                    “Because of the slight probative nature of these
      Ambulance Personnel.         Elderly residents        documents, their admission would have been overly
who require hospitalization are almost always               prejudicial.”°6
transported from the nursing home to the hospital by
ambulance. It is not unusual for a particularly ill                2.     TEx. HUMAN RES. CODE §32.02 1
resident to make several trips to the hospital.                 The Texas legislature in 2001 revised the
Accordingly, EMTs and other ambulance personnel             Human Resources Code to addressthe admissibility
may have knowledge of a particular resident.                of TDHS records in civil actions:
      Nurse Practitioners.         Many physicians
engage licensed nurse practitioners to help follow               A record of the department, including a
their nursing home patients. It is not uncommon for              record of a department survey, complaint
a resident to be seen more often by the nurse                    investigation, incident investigation, or
practitioner than by the physician. For this reason,             survey report, that relates to an
nurse practitioners will frequently provide important            institution.. .may be introduced into
testimony regarding a given resident.                            evidence in a civil action, enforcement
                                                                 action, or related proceeding if the record

     A. TDHS Records/Testimony                                      101Packv. Crossroads, Inc., 53 S.W.3d 492
        1.    Pack v. Crossroads, Inc., 53 S.W.3d
              492 (Tex. App.—Fort Worth 2001,               (Tex. App.—Fort Worth 2001, pet. denied).
              pet. denied)                                          ‘°21d at 499-500.
    TDHS records can carry special significance in
a nursing home case. If they are critical of the
nursing home, plaintiffs want themin front ofajury                  ‘° 500.
to show that an official investigation of the facility
found fault. If TDHS records absolve a facility of
wrongdoing, the nursing home may want them                          ‘°5Id.
introduced into evidence. Every nursing home will
receive TDHS deficiencies at some point, so courts                  ‘°6Id

Nursinn Home Litigation Defendant’s Perspective
                                                                                                          Chapter 4

       is admissible under the Texas Rules of                   The better view is that nearlyall claims against
       Evidence.’97                                        a nursing home should fall under the provisions of
                                                           the Medical Liability and Insurance Improvement
     The revised statute also applies to the               Act (“MLIIA”). The MLIIA covers all “health care
testimony ofTDHS personnel:                                liability claims,” which the Act defines as:

    A department surveyor or investigator                        [A] cause of action against a health care
    may testify in a civil action as to                         provider or physician for treatment, lack
    observations, factual findings,                             of treatment, or other claimed departure
    conclusions, or violations ofrequirements                   from accepted standards of medical care
    for licensure or for certification for                      or healthcare or safety whichproximately
    participation in the state Medicaid                         results in injury to or death ofthe patient,
    program that were made in the discharge                     whether the patient’s claim or cause of
    of official duties for the department, ifthe                action sounds in tort or contract.”2
    testimony is admissible under the Texas
    Rules of Evidence.’98                                  Further, nursing homes are explicitly includedin the
                                                           definition of “health care provider.”3 Unless the
      B. Causation Testimony By Nurse Experts              form or mode of care provided is a matter of
     Plaintiffs commonly rely on the Golden Villa’°9       common knowledge or is within the experience of
decision in an attempt to limit the requirement that       laymen, expert testimony is required to meet the
they must prove nursing home negligence by way of          plaintiffs burden ofproof.”4
expert testimony.       Golden Villa should be                  Plaintiffs will sometimes try to “scrapeby” the
distinguished. In that case, suit was brought not by       expert requirement by relying merely on nursing
an injured resident but by a motorist. A patient of        experts. While nurses may be qualified to testify
the nursing home who suffered from a variety of            regarding the nursing standard of care, they are
mental disorders and whohad been institutionalized         generally unqualified to testify as to medical
for over 30 years was known by the home to have a          causation.”
tendency to wander. One day she wandered out onto
the highway adjacent to the home and collided with
a motorcyclist. The court held that the patient
constituted a clear and present danger to travelers
who would swerve or otherwise attempt to avoid
hitting her if she was on the highway.”°The court                   112TEx. REV. Cur. STAT. ANN. art. 4590i §
said that the nursing home breached its duty to the        1.03 (a)(4) (emphasis added).
~~fQ~yglist exercise reasonable care not to
endanger her safety while she used the highway.”                     113TEX. REV. Civ. STAT. ANN. art. 4590i §
                                                           1.03 (a)(3).
                                                                    114Hoodv, Phillips, 554 S.W.2d 160 (Tex.
        ‘°7TEx.HUMAN RES. CODE §32.021 (i); see
also TEx. HEALTH & SAFETY CODE ANN. § 242.050              1977).
(Vernon Supp. 2002).
                                                                    115See, e.g., Arlington Meni. Hosp., Inc. v.
        ‘°8TEx.HUMAN REs. CODE §32.02 1 (k); see           Baird, 991 S.W.2d 918, 921 (Tex. App.—Fort Worth
also TEx. HEALTH & SAFETY CODE ANN. § 242.050              1999, pet. denied) (plaintiff’s nursing expert prohibited
(Vernon Supp. 2002).                                       from testifying to medical causation); Pace v Sadler,
        109              .                                 966 S.W.2d 685, 691 (Tex. App.—SanAntonio 1998,
              Golden Villa Nursing Home v. Smith, 674      no writ) (nurse prohibited from offering testimony that
S.W.2d 343 (Tex. App.—Houston [14th Dist.] 1984,           certain symptoms were indicative of a heart problem);
writ reid n.r.e.).                                         Lesser v. St. Elizabeth Hosp., 807 S.W.2d 657, 659
                                                           (Tex. App.—Beaumont 1991, writ denied) (expert
        110Id. at 350,                                     nurse’s affidavit did not raise a fact issue on causation
                                                           sufficient to defeat defendant’s motion for summary
        “Id.                                               judgment).

Nursing Home Litigation Defendant’s Perspective
                            -                                                                          Chapter 4

VIII.   COMMON HAZARDS                                    encode and transmit the MDS (Minimum Data Set)
    There are certain hazards common to defense           for all residents in their facilities, regardless of age,
of most nursing home cases. This paper addresses          diagnosis, length ofstay or payment category.
some of these problems and suggests responses to                Facilities must complete an MDS for each
same.                                                     resident within fourteen days after admission and
                                                          then quarterly unless there is a “significant change”
      A. Nursing Documentation                            in the patient’s condition.
      As in any health care liability claim,                    The basic MDS assessment form is six pages
documentation of care can play a critical role at         and covers a resident’s cognitive patterns,
trial. In nursing home litigation, it is common for       communication/hearingpatterns, mood and behavior
plaintiffs to allege negligence in the documentation      patterns, psychosocial well-being, physical
itself. Not only do federal and state regulations         functioning and structural problems, continence,
require certain documentation,”6 it can be difficult      disease diagnoses, healthconditions, oral/nutritional
to accurately follow a patient’s long term care if        status, oral/dental status, skin condition, activity
proper documentation is not kept. Unfortunatelyfor        pursuit patterns, medications, special treatments,
defense counsel, nursing homes commonly have              and discharge potential/overall status.
poor documentation in residents’ records.                       The quarterly update form contains only three
        1.       Medication Administration Record
                 (MAR)                                             3.       Resident Assessment Protocols (RAPs)
     Every resident’s chart must contain                       The “RAP Sheet” is used by the nursing staff to
documentation showing the date and hour all drugs         create an individualized care plan for the resident.
are administered.”7 This information is normally          This document is a problem-oriented framework for
contained in the Medication Administration Record         organizing the MDS information and identifying
(“MAR”). Inaccuracies in the MAR can spell                what problems and risk factors may require
trouble for defendants in nursing home litigation.        immediate attention.
                                                               The ResidentAssessmentProtocol Summary is
         2.      Minimum Data Sets (MDS)
                                                          a three page document which contains numerous
     Upon admitting a resident, every nursinghome         boxes which should be checked off if a resident
must conduct a complete assessment ofthe resident
                                                          experiences certain problems such as delirium,
and develop an appropriate plan ofcare. These care
                                                          cognitive loss, falls, etc. Ifa RAP “problem area” is
plans and assessments must be documented as
                                                          checked, this problem area should be addressed in
written instruments. The first instrument, known as
                                                          the resident’s care plan.
a Resident Assessment Instrument (“RAI”), is
comprised of two separate documents, a Minimum                      4.      Flow Sheets
Data Set (MDS) and a Resident Assessment                       Many nursing homes use “flow sheets” to
Protocol Summary (RAP Sheet).”8                           document residents’ food intake and activities of
     The Minimum Data Set (MDS) is a uniform set          daily living. Nurse aides are generally responsible
ofelements whichis designed as a standardized tool        for filling out these sheets, and they are generally
for assessing the functional capacity ofresidents of      filled out poorly. Even if a resident is receiving
long term care facilities. Every certified Medicare or    excellent care from a nursing home, neglected flow
Medicaid nursing facility must complete, record,          sheets can make it appear as though a resident
                                                          received no care at all. On the other hand, aides can
                                                          easily make charting errors in the tiny boxes on the
         ~6See40T.A,C. § 19.801.                          flow sheet. For example, if an aide checks the
                                                          wrong column, it can appear as though a resident
         “740T.A.C.   §   19.1911 (13).
                                                          received care on a day when the resident wasn’t
         “8The second instrument is the written plan of   even in the facility. Such errors can call into
care. The written plan of care must be created with       question the trustworthiness of an entire chart.
seven days of completion of the MDS assessment. See       More likely than not, flow sheets will cause
42 U.S.C. § 1396r (bO(2); 42 C.F.R. § 483.20; 40          headaches for defense counsel. These sheets
T.A.C. § 19.802.

Nursing Home Litigation Defendant’s Perspective
                          -                                  Chapter 4

deserve close analysis.

     B. DisgruntledCurrent and Former Employees
     As discussed above, it is the nature of the
industry that nursing home defendants will likely
face negative testimony from current and/or former
employees unhappy with the home. The impact of
this testimony will depend on several factors,
including whether defense counsel has been able to
identify positive rebuttal witnesses.

      C. Corporate Documentation
      If a plaintiff is able to maintain suit against a
facility’s parent corporation, poorly worded
interoffice memos and otherwise ordinary
accounting documents can be twisted into dangerous
weapons. Generally, such documents have no
relevance to the care provided to a resident.
Defense counsel should consider strong opposition
to plaintiffs who wish to go on “fishing expeditions”
for corporate documents.

      D. Policies and Procedures
      As in any lawsuit against a healthcare facility,
the facility’s policies and procedures will be used
against it, Inadequate policies will be attacked as
such. Lengthy, detailed policies, on the other hand,
will almost never be followed to the letter.
Consequently, plaintiffs will criticize the facility’s
personnel for failing to follow the facility’s own
      Defense counsel should analyze relevant
policies and discuss same with nursing home
personnel. No policy is or can be all encompassing,
andpersonnel should not allowplaintiffs’ counsel to
bully them at deposition regarding policies and

     E. Staffing
     As discussed above, plaintiffs’ counsel will
almost always work hard to make a nursing home’s
level of staffing the focus of their cases. This issue
must be addressed head on, and defense counsel
should work from an early date to blunt this point of


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