United States: Attacking The Plaintiff's Nursing Home Malpractice Case Through Effective Discovery

Some of the statistics regarding nursing homes and the care they provide are eye-opening. In 1989, there were about 41,000 licensed nursing homes in the United States, with a total of about 563,000 beds. According to the National Center for Health Statistics, in 1991 there were 1,478,217 nursing home residents in this country.² Together, Medicare and Medicaid pay about half of the nation’s nursing home costs. In 1985, the total bill for nursing home care came to $35.2 billion. In 1986, the total rose to $38.1 billion: $15.9 billion from Medicaid, $0.6 billion from Medicare, $19.4 billion from private, out-of-pocket spending, and the balance from all other sources. The average stay in a nursing home is 408 days, and almost one-third of nursing home stays (31%) are for a month or less. Only 11% of nursing home stays last for more than three years.³ The percentage of admissions to nursing homes increases dramatically with age, ranging from 1% for persons 65 to 74 years to 6% for persons 75 to 84 years and 24% for persons 85 years of age and older.⁴ Projections for 2020 estimate that there will be 14 million dependent, elderly persons in the United States, of whom about 4 million are projected to be nursing home residents.⁵ By the year 2050, the elderly population is expected to swell to 80 million persons.⁶

With these changing demographics, and vast resources at stake, claims and suits against long-term care facilities have begun to proliferate. Gone are the days when these claims could be settled for nuisance value. In the last few years, plaintiffs’ attorneys have been successful in obtaining multi-million dollar verdicts against long-term care facilities in a number of jurisdictions, including California, Texas and Florida. These verdicts have served as a clarion call to the plaintiffs’ bar that nursing home malpractice litigation can be a lucrative business.

When defending a nursing home malpractice case, there is no substitute for proper preparation of the case. One of the best ways to attack the plaintiff’s case, and to avoid the large judgments that have begun to plague the industry, is to engage in effective discovery procedures. Thorough pre-trial discovery will allow the defense to identify the strengths and weaknesses of the plaintiff’s case, prepare a legitimate defense to the plaintiff’s claims, and prevent unwanted and potentially disastrous surprises at the time of trial.

Defense attorneys who routinely handle long-term care claims realize that these are special claims unlike any other. Nursing home malpractice claims tend to involve a course of conduct over a long period of time, unlike medical malpractice claims, which tend to involve a single incident that results in harm. In addition, nursing home malpractice claims tend to involve physical injuries consistent with long-term health problems, as opposed to definite, isolated injuries such as heart attacks, surgical infections, or misdiagnosis of a particular disease. In addition, nursing home malpractice claims tend to involve massive amounts of records, spanning months or even years, and tend to involve multiple caretakers involved in the care and treatment of a particular patient over an extended period of time. All of these factors make claims involving nursing home malpractice document and discovery intensive.

The purpose of this article is to identify the discovery strategies which have proven effective in the defense of long-term care cases and to provide defense practitioners with a discovery checklist for the long-term care liability case.

When initially retained to defend a nursing home malpractice action, defense counsel should make every effort to learn as much as possible about the plaintiff’s attorney. Defense counsel will want to discover whether the plaintiff’s attorney has prosecuted nursing home malpractice actions before or if the plaintiff’s attorney is new to this particular area of the law. This information can be obtained through jury verdict reporter searches, searches of relevant state case law, telephone calls to defense practitioners who engage in the defense of long-term care facilities, or by calling the plaintiff’s attorney and, during the course of an initial discussion regarding the case, inquiring about the attorney’s experience. An effort should also be made at the outset to determine whether the plaintiff’s suit is an isolated one or part of a larger attack upon a specific long-term care facility or group of facilities.

Information regarding the attorney who is prosecuting the claim, and the nature and extent of the claim, affect how to handle the discovery aspects of the case. If the attorney who is prosecuting the case is experienced in nursing home malpractice litigation, discovery will be exhaustive and expensive. In all likelihood, the experienced attorney will issue discovery addressed to the defendant which is targeted to request all practical information regarding the plaintiff and the target nursing home. If the prosecuting attorney is not experience in nursing home litigation, chances are the discovery requests addressed to the defendant will not seek information regarding a number of potentially damaging issues, such as survey results, certification results, plans of correction, etc. If the plaintiff’s attorney is inexperienced, efforts must be made to avoid educating that attorney through defense-initiated discovery.

There are two federal laws and regulations that every defense practitioner who deals with nursing home malpractice cases must be aware of. The first law is the Nursing Home Reform Act of 1987, 42 U.S.C. Sec. 1396(r), also known as the Omnibus Budget Reconciliation Act (OBRA) of 1987. OBRA, which was passed by Congress in response to an Institute of Medicine report documenting nationwide resident abuse, covers two principal areas: provisions concerning services to be delivered to residents and provisions concerning survey and enforcement requirements.⁷

The provisions of OBRA regarding services to be delivered to residents of long-term care facilities emphasize the personal and social aspects of residing in a skilled nursing facility. For example, certain sections of OBRA require that, "a [facility] must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident."⁸ Other provisions require that, "a [facility] must provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident . . ." and that each nursing facility must "protect and promote the rights of each resident," including, but not limited to, the right to free choice, freedom from restraints, privacy, confidentiality, accommodation of needs, the voicing of grievances, and to participate in resident and family groups.⁹

The provisions of OBRA concerning the survey and certification process and enforcement of the act are voluminous. There are essentially five different types of surveys which are performed pursuant to OBRA: annual standard surveys, abbreviated standard surveys (conducted within two months of any change of ownership, administration, management of a nursing facility, or director of nursing in order to determine whether the change has resulted in any decline in the quality of care furnished at the facility), extended surveys (performed in each nursing facility which is found, under a standard survey, to have provided substandard quality of care), validation surveys (conducted of a representative sample of nursing facilities in each state in a sufficient number to allow inferences about the adequacies of each state’s surveys), and special surveys of compliance (performed when there is reason to question the compliance of a nursing facility with the provisions of OBRA).¹⁰ The purpose of the surveys is to determine whether a long-term care facility is in compliance with the requirements relating to the provision of services, residents’ rights and administrative matters.¹¹

OBRA not only sets forth provisions concerning services to be delivered to residents and surveys of nursing home care and compliance, it also contains provisions regarding the enforcement of the regulations. The purpose of imposing remedies is to ensure prompt compliance with the requirements of participation.¹² The type of enforcement activities taken, and the nature and extent of the remedies imposed, are based upon the scope and severity of facility non-compliance.¹³ Potential remedies for non-compliance may include program termination, temporary management, denial of payment for new admissions, civil money penalties, transfer of residents, closure of the facility, and/or state monitoring.¹⁴

In addition to knowing about and understanding OBRA, defense counsel must also be familiar with the federal regulations regarding requirements for long-term care facilities. That portion of the Code of Federal Regulations which sets forth requirements for long-term care facilities is 42 C.F.R. Sec. 483, et seq. The requirements for long-term care facilities, which apply to any skilled nursing facility participating in Medicare, indicate that long-term care facilities must provide, among other things:

• Care that is given in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life;
• Adequate numbers of nursing personnel;
• Adequate amounts of food, supplies, equipment and medication;
• Competent nurses, aides and orderlies who are screened when hired;
• Adequate and systemic planning to create individualized care plans;
• Continuous, systemic, and comprehensive assessments of each resident;
• A record keeping system that accurately documents the clinical condition of each resident;
• A care program which provides the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident;
• Dietary services which provide to each resident a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each resident;
• An adequate quality assurance program that identifies and corrects care deficits.

It cannot be overemphasized that defense counsel must become intimately familiar with OBRA and the requirements for long-term care facilities found in 42 C.F.R. Sec. 483 et seq. The plaintiff’s attorney will undoubtedly attempt to argue that OBRA and the Code of Federal Regulation requirements set forth a standard of care which must be met by skilled nursing facilities. In order to mount a successful defense to that claim, and in order to gather evidence designed to show that OBRA and the Code of Federal Regulation requirements merely set forth goals to be attained by managed care facilities, defense counsel must understand the regulations and their impact upon the nursing home industry.

In addition to learning the federal regulations, defense counsel must also be familiar with state and local regulations regarding nursing homes. For example, state regulations may set forth a certain minimum number of hours that non-licensed and licensed personnel must be available per patient. In addition, state and local regulations may require that nursing homes file healthcare statistics with state or local agencies or may require that files regarding licensing, complaints and other matters be kept by state or local agencies. Moreover, state statutes may create causes of action for attorney’s fees, costs and other damages or may set forth a residents’ bill of rights.

Defense counsel needs to know what state and local entities require of nursing homes in order to mount a proper defense to the state and local regulations. Or, in those welcomed instances in which the nursing home has complied with the regulations, so that an argument can be made to the jury that the defendant was in compliance with various provisions designed to protect the health and well-being of the resident. A thorough understanding of state and local regulations will also allow defense counsel to tailor discovery requests in an effort to obtain information kept by state and local agencies about the long-term care facility in question.

Knowing the nature and extent of the rules and regulations which govern long-term care facilities is only half of the battle. In order to properly defend a nursing home malpractice action, defense counsel must conduct discovery regarding OBRA and the other regulations and standards outlined above.

For example, under OBRA and the Code of Federal Regulation requirements, facilities that are found to not be in compliance with the regulations are required to develop a plan of correction which describes the actions the facility will take to correct deficiencies and specifies the date by which those deficiencies will be corrected.¹⁵ An acceptable plan of correction is required for every deficiency, except one that is cited as being isolated in scope and having only a potential for minimal harm to the residents.¹⁶

According to the express policy of the Healthcare Financing Administration (HCFA), a long-term care facility may place a disclaimer of liability in a plan of correction. The disclaimer will usually appear in the following form:

In addition to disclaiming liability, facilities also often disagree with one or more of the deficiencies cited in the survey. The facility will list its disagreement in its response to the state’s deficiency list.¹⁷ When disagreeing with a deficiency finding, the facility may request informal dispute resolution over the existence of the alleged deficiency.

Defense counsel will most certainly want to know if the facility that is being defended has issued disclaimers of liability or denials of alleged deficiencies or requested informal dispute resolution. All of these steps by the long-term care facility can be used to refute the plaintiff’s claims that there were alleged deficiencies. Further, a review of the facility’s response to the alleged deficiencies can form a good foundation for the defense of a claim based on those alleged deficiencies. The best way to determine this information is for defense counsel to do careful discovery regarding these particular issues.

During the discovery phase of the case, defense counsel should also develop facts illustrating the difference between the survey process and legal fact finding. The training which is provided to state surveyors should also be the topic of thorough investigation by defense counsel during discovery and careful thought should be given to deposing the surveyors in order to determine their background, training, biases, interests, etc. In addition, defense counsel should use the discovery process to obtain case law which states that OBRA does not provide a private cause of action for a nursing home resident who is injured at the facility or which states that OBRA is too vague to provide the standard of care in a nursing home malpractice action.

The discovery phase of the litigation is also the best time to conduct discovery which is designed to attack the weaknesses associated with the survey and certification system. A study commission by HCFA in December of 1996¹⁸ was designed to evaluate the validity and reliability of the survey process. Among the things the study found was the fact that the survey guidelines are often not used correctly; the fact that surveyors consider a number of factors in making determinations to cite a deficiency that are not set forth in the standards and guidelines, including the surveyors’ previous knowledge of a particular nursing home; the fact that there are numerous quality of life and quality of care requirements that surveyors find difficult to assess; and the fact that surveyor discretion is not randomly introduced in the survey process.¹⁹

Representatives from the American Health Care Association testified before the Institute of Medicine Committee on improving quality in long-term care in March of 1998. The representatives of AHCA testified that the survey and enforcement process does not focus on actual resident outcomes and instead relies on requirements of a "snapshot point in time." AHCA also criticized the fact that when surveyors visit a facility, they are less interested in whether the facility has identified a problem and progressed along a continuum of quality improvement than they are interested in whether, on a particular day, that facility has fulfilled the requirements of detailed, non-outcome oriented rules. AHCA also criticized the fact that the regulations set forth above do not require surveyors to use the survey procedures uniformly or in accordance with federal guidelines. Another criticism was the fact that compliance determinations very widely from state to state and even within states.²⁰

A recent study commissioned by the American Health Care Association concluded that 45% of the citations issued to long-term care facilities were not related to a potential for negative resident outcome (in some states, the percentages were as high as 66%); that 36% of the citations issued to long-term care facilities did not consider whether or not the cited problem was wide spread in the facility or was an isolated incident (in some states, the percentage was as high as 49%); that 36% of the citations issued to long-term care facilities were not supported by adequate documentation (in some states, the percentage was as high as 52%); and that 26% of the citations issued to nursing home facilities were unsupported by language in the survey guidelines to warrant characterizing them as a deficiency (in some states, the percentage was as high as 36%).²¹

Discovery which highlights the incredible deficiencies in the survey process can be extremely helpful in the latter stages of the case. The statistical data set forth above can be used to argue that the plaintiff should not be allowed to proceed against the defendant based on the doctrine of negligence per se ( if that theory is pursued by the plaintiff’s attorney) in light of the subjective and non-uniform interpretation of the regulations. Defense counsel must argue that the statutory and regulatory vagueness of OBRA and other regulations prevents facilities from knowing what specific conduct is proscribed and, therefore, the plaintiff should not be allowed to proceed under a theory of negligence per se. In addition, the plaintiff’s reliance on the negligence per se doctrine may be attacked on the basis that the system of regulating and inspecting long-term care facilities is so arcane that even the surveyors are unclear as to what standard of care is required by the statutes and regulations. As such, those statutes and regulations cannot be said to establish a standard which applies as a matter of law for purposes of imposing liability under the doctrine of negligence per se.²²

In the authors’ opinion, counsel defending a long-term care facility must make every effort to identify a defense expert (or experts) in the initial stages of the case. Ideally, the defense expert should be identified before discovery begins in earnest. A good defense expert is invaluable in framing the issues of the case and, hence, developing a blueprint for discovery. For example, a good defense expert can identify care issues which need to be explored immediately. Are the pressure sores the plaintiff complains of the result of neglect or the unfortunate end result of disease? Was the plaintiff’s decedent’s death the result of inhumane treatment or the undeniable end result of a chronic, life-threatening illness? Having the defense expert on board early in the case will allow defense counsel to identify the strategic issues in the case and prepare and follow-up on appropriate discovery designed to bolster the defense position in the case.

Qualities to look for in a good defense expert include an individual who is articulate and is able to effectively express his or her opinions with clarity and understandability. The defense expert should be authoritative -- an individual who is truly a leader in his or her field. The defense expert must be credible, sincere and wise. And, perhaps most importantly, the defense expert must be strong on cross-examination and virtually invulnerable to the problems of cross-examination.

One of the best ways to obtain an outstanding defense expert is to network with other trial attorneys across the country who have been involved in long-term care litigation. A network of defense attorneys who are engaged in long-term care litigation can disseminate information among the members regarding defense experts who have been particularly effective in defending claims against long-term care facilities. Attorneys who are members of such a network can share information regarding the track record of a given expert, share transcripts of deposition and trial testimony from a given expert, discuss a given expert’s effectiveness on direct and cross examination, share information regarding a particular expert’s inability to qualify as an expert in a given case, etc. Experts who are identified as particularly successful in prior cases are likely to be successful in subsequent cases as well.

Soon after defense counsel is retained to defend a nursing home in litigation, defense counsel should schedule a meeting with the owner and administrator of the facility. During this initial meeting, defense counsel must explain the nature of the suit and the theory of the defense. This is an opportune time to obtain information from the owner and administrator about other suits against that particular facility or nursing home chain. Obtaining this information early in the lawsuit allows the defense attorney an opportunity to investigate the nature of those particular claims and develop strategies to distance other litigation from the case at bar. By meeting with the owner and administrator at the beginning of the case, the defense attorney has an opportunity to create a team approach to the litigation and to begin building relationships which will avoid the hostility, anger and/or apathy which leads to the creation of witnesses who are all too happy to testify for the plaintiff and against the defendant nursing home.

During the initial client interview, every effort should be made to meet with the director of nursing, the shift supervisors, the nurses, certified nursing assistants, and nursing aides who have been involved in the plaintiff’s care. Every effort should be made to explain the plaintiff’s suit and theory of defense to those individuals as well. The staff should be informed that they should not talk to the plaintiff’s attorney, or an investigator hired by the plaintiff’s attorney, without the administrator of the nursing home being present. Defense counsel must emphasize that the staff has no obligation to discuss the plaintiff’s case with the plaintiff’s attorney. Again, making every member of the staff feel like they are part of the team may discourage the staff from talking to the plaintiff’s attorney.