Download Nursing Home Litigation - The New Jersey Paralegal Convention

NURSING HOME LITIGATION
Saul Gruber, Esq.
NJ
P ARALEGAL
C ONVENTION
NJ Paralegal Convention
October 21, 2016
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NURSING HOME LITIGATION:
NOT A MEDICAL MALPRACTICE CASE
SAUL G. GRUBER
Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom and Sinins
Mount Laurel, NJ
856-596-4100
[email protected]
I.
NURSING HOME NEGLIGENCE & INTRODUCTION
Nursing home negligence litigation is a burgeoning pracitce in New Jersey, despite its
beginnings elsewhere in the nation as early as 1984. Traditional Personal Injury theories seem
not to apply to these type of cases. Namely, primary factors in determining value have
historically involved the age of the plaintiff and that individual’s lost earning potential - both of
which are generally absent in nursing home claims. Further, wrongful death claims on their face
would have little or no value in the nursing home milieu. That is, since nursing home residents
as a general rule do not have any earnings and generally cannot be described as people who
provide counsel and advice to their heirs, the statutory scheme currently in place in New Jersey
under the wrongful death statute (see N.J.S.A. 2A:31-1, et seq.) appears to provide no relief. In
this regard, from at least a jury instruction point of view, any potential value in these claims
where the nursing home resident is deceased would lie with the survivorship claim.
That being said, contrary to these traditional formulas are jury verdicts which have been
well publicized in recent years. Recent New Jersey Verdicts, as well as States with established
histories of nursing home litigation have demonstrated that juries can and will respond quite
favorably to a plaintiff’s claim.
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A.
THE NATURE OF NURSING HOME NEGLIGENCE
Nearly all of nursing home litigation in New Jersey involves claims of injury - be that
physical or emotional. Common claims include:
Pressure Ulcers (Bedsores)
With the proper level of care, bedsores are avoidable. The primary causes of bedsores
are immobility, malnutrition, dehydration, incontinence and failure of the nursing home staff to
properly and timely reposition the nursing home resident. Bedsores develop when the skin is
subject to prolonged and unrelieved periods of pressure causing damage to the underlying tissue.
Bedsores typically form on a resident’s heel or lower back (coccyx) area and range in severity.
A Stage 1 bedsore being the least severe and a Stage IV being the most severe. Stage IV
bedsores often involve a gaping wound, complete skin tissue breakdown including necrotic
tissue. Stage IV heel bedsores in certain instances result in amputation. This staging system is
the subject of ongoing medical research and may ultimately change.
Malnutrition and Dehydration
This is a very common occurrence in the nursing home setting. A resident generally
suffers from malnutrition and dehydration due to the nursing staff’s failure to properly monitor
and/or administer a resident’s meal and fluid intake. Facility understaffing largely contributes to
this problem.
Falls
Falls are not entirely preventable but measures can be taken to lessen their occurrence.
The happening of a fall does not always indicate to negligence. Review the nursing home chart
to determine whether the nursing home properly assessed your client upon his/her admission in
addition to periodic follow up assessments during the resident’s stay. The nursing home must
assess the resident in conjunction with that resident’s particular risk factors. The resident’s
physical, mental, psychological and medical conditions are all relevant when properly assessing
a resident’s risk for falling. Review the chart to determine if the nursing home properly
assessed your client and took the appropriate fall prevention measures.
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Physical Abuse/Assault
The nursing home must take reasonable measures to protect a resident from physical
abuse committed by fellow residents and nursing home employees. When considering whether
to pursue an assault claim arising from an employee assault, helpful legal theories include
negligent hiring, training, retention and supervision. This will potentially strengthen your claim
as the insurance company likely attempts to disclaim coverage.
Other common nursing home claims include injury resulting from elopement/wandering,
sepsis, urinary tract infections, medication mismanagement and errors, unexplained bruising,
burns, aspiration pneumonia and wrongful death.
RESIDENT RIGHTS CLAIMS
It is important for the practioner to remember that the New Jersey statute specifically
allows for claims under the Nursing Home Bill of Rights. This is contained both in Federal
regulations and the New Jersey’s own statutory scheme (N.J.S.A. 30:13-1 et seq.). Often times,
complaints may be made not only comprising physical injury but the various affronts to the
dignity of these residents - which are specifically protected in our statute. It is also important to
remember that a potential victory on any one of these counts assures the plaintiff’s counsel
attorney’s fees and costs. Additionally, when such claims are included, it does potentially render
the plaintiff summary judgment-proof, even when the defense may make arguments concerning
causation and other claims surrounding the physical injury aspect of the claim.
DIVERGENCE BETWEEN NURSING HOME LITIGATION AND MEDICAL
MALPRACTICE
From both the plaintiff and defense perspective, these cases differ dramatically from
conventional med-mal claims. In the first instance, most nursing home cases involve continuing
torts and/or multiple acts of asserted negligence. The cases present a much higher degree of
focus on the defendant (nursing home) as opposed to the conduct itself than do cases which
include physicians - or, even in most circumstances, hospitals.
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Similarly, consent clauses are
quite rare. On a practical level, the carriers generally present very different attitudes toward
early resolution than do New Jersey’s well known med-mal insurers. This is likely based upon
experiences in other states and a well recognized impression that physicians are much more
sympathetic defendants than are nursing homes.
The practitioner must also recognize that the applicable standard of care is by no means a settled
matter. Case law abound in other jurisdictions related to the impact that OBRA regulations have
not only on resident rights claims, but also on the standard of care for nursing home employees.
Similarly, more long term care facilities seem to be seeking JCAHO (Joint Commission on
Accreditation of Healthcare Organizations) accreditation than ever before. Once a facility
becomes JCAHO accredited, the standard of care is explicitly related to the standards established
by that organization. JCAHO also performs routine surveys similar to those performed by CMS
and the Department of Health and Senior Services. These are easily obtainable on the web or
through discovery.
As noted, the public’s perception of care at nursing home facilities is quite different from that of
physicians. This negative point of view is an aid to plaintiffs and a challenge to the defense.
B.
LITIGATION REMINDERS
Before delving into a nursing home case, it is essential to be aware of the enormous time
and financial costs associated with the proper development and presentation of a claim. These
cases can cost tens of thousands of dollars to prosecute and involve countless hours of time in
reviewing charts, preparing for depositions and other work which is necessary to both understand
and prosecute the claim. It is also important to employ sufficient staff to assist with the
significant document intensive work that needs to be done. On both the plaintiff and defense
side of the aisle, most law firms engaged in this area of law have been hiring nurse consultants to
work in-house for this purpose. If in-house nurses are not utilized, it is often advantageous to
pay an outside consultant not to necessarily serve as an expert in the case, but to assist with both
the organization and review of voluminous records.
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C.
KNOW THE LAW
There are four (4) codified regulations and laws which are essential for any practioner.
These are the Omnibus Budget Reconciliation Act (42 CFR Section 1983 et seq.), the New
Jersey Statute, N.J.S.A. 30:13-1 et seq., the New Jersey Elder Abuse Statute, N.J.S.A. 52:27G7.1 and New Jersey regulations concerning standards of long term care facilities, N.J.A.C. 8:391.1 et seq.
II.
PRE-SUIT INVESTIGATION
A.
WHO IS YOUR CLIENT?
Quite apart from the traditional personal claim, this is a question which does not
necessarily lend itself to an easy answer. Very often, families will approach a plaintiff’s attorney
concerning the treatment received by an deceased relative before any of those individuals has
been named as executor of that decedent’s estate and without a Will. Often, there is in-fighting
among these family members in choosing who will ultimately become the executor and/or
administrator ad prosequendum. There may additionally be in-fighting among family members
whether there is or is not a Will as to who deserves to take from the settlement proceeds. It is
essential to immediately determine who one’s client is and deal with that person as the client.
It is also important to recognize the potential breach of the attorney client privilege when
and if other family members who are potentially not parties to the claim are privy to such
conversations which would otherwise be confidential. Astute defense attorneys can often
question such non-party members in the context of a deposition as to whether or not they had
private discussions with plaintiff’s counsel in the presence of the plaintiff. In this regard, in the
context of a wrongful death claim, specifically naming heirs of the estate in the complaint may
serve to solve this problem. Otherwise, it remains essential that the plaintiff’s attorney be keenly
aware of not only who should be in the room during the time of such discussions, but to whom
the plaintiff’s attorney’s ethical obligation lies.
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B.
WHO CAN RETAIN THE PLAINTIFF’S ATTORNEY?
As is apparent, when a claim involves an estate, there must be a legally recognized
representative of that estate to retain counsel and, importantly, to sign any HIPPA authorizations
which would allow retention of pertinent records. When a nursing home plaintiff is alive, more
often than not, that person is likely to be mentally incompetent. Typically, these situations
present themselves with a family member who has had the forethought to obtain a Power of
Attorney. It is essential to carefully review that Power of Attorney to ensure its authenticity and
to determine whether or not it empowers that individual to present a claim on behalf of the
mentally incompetent nursing home resident.
More difficult is the situation when a nursing home resident is clearly mentally
incompetent - albeit not yet recognized as such by Court Order - and has had a family member
serving as a de facto Power of Attorney. Without supporting documentation, the ability of the
family member to retain counsel can be questionable, as can that family members ability to sign
off on a HIPPA form to allow plaintiff’s counsel to obtain records. The solution in this regard is
not an easy one. Specifically, it is generally necessary to file an application with the Chancery
Court and obtain a ruling that the resident is mentally incompetent and thus have a guardian
appointed by the Chancery Court. Under some circumstances, certain judges in the Law
Division may be willing to appoint a Guardian ad Prosequendum for litigation purposes only.
However, this is certainly not the preferred method. The difficulty in engaging in this process
lies in the delays caused in obtaining confirmation of guardianship which may ultimately prevent
retention of records, an Affidavit of Merit and ultimately the ability of plaintiff’s counsel to
timely file suit with an Affidavit of Merit in hand.
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C.
GET THE FULL STORY
Once it is determined who the client is, it is essential to conduct a very detailed initial
interview. Although it should go without saying, listen to your client. Numerous details
provided early on in a case might not seem relevant but eventually often become so. It is also
important to question the client about potential other injuries which they might not have thought
legally relevant or might not even know about. On many occasions, nursing homes will fail to
advise family members of significant injuries. They are often surprised when confronted for the
first time with a nursing home chart when it shows a stage 4 decubitus ulcer in the sacral area
which had been hidden from them while the decedent was alive. Very often, the family will be
apprised that it is small inconsequential skin rash - which occasions the need for a large bandage.
Only upon receipt of records from both the nursing home and the hospital can counsel often learn
that it is much more serious than was portrayed to the family. Most importantly, initial
discussions with the family can provide what serves as the first draft of a road map toward the
significant task of reviewing the nursing home chart and other pertinent medical records.
D.
the chart, primarily because of the reluctance of the facility to release the original
records to OBTAIN A COLOR COPY OF THE NURSING HOME CHART
The initial pre-suit letter of representation should include a request for the entirety of the
resident’s chart and make specific reference to OBRA’s time table for its provision. OBRA
requires that the chart be made available within twenty four (24) hours of a request and that a
request for copies be made two (2) working days in advance of when it is expected to receive
them. The nursing home is generally constrained from charging more than customary rates for
the community. In reality, nursing homes never comply with either provision of the OBRA
regulation. Namely, it generally takes weeks, if not months, to obtain a chart. There has been a
recent argument floated that this OBRA regulation applies only to living residents of the facility.
It has been utilized through the country but is not the subject of any New Jersey opinions. It is
similarly difficult pre-suit to obtain a color copy of outside copying agencies when they do not
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have their own color copier. As a general rule, the color copy typically is obtained after suit is
filed.
Often it is necessary to file an Order to Show Cause to simply compel a nursing home to
comply with a document request. Also difficult is the fact that charts generally are provided
piecemeal, with numerous missing portions. Thus, it is essential to understand what should be
contained within the chart - in order to understand what might be missing. Sometimes, material
is lacking simply because charting was not done. However, it is often the case that certain
portions of the chart
are contained in different portions of the nursing home. Even after suit
is filed, it is frequently necessary to engage in some form of motion practice to make sure that
all discoverable documentation is ultimately maintained.
E.
OBTAIN ALL OTHER MEDICAL RECORDS
Early in an investigation, it is important to meet with family members to obtain a timeline concerning all treatment involving the nursing home resident, both before and after his or
her stay. Very often, there are multiple hospitalizations occurring while that individual
otherwise resides in the nursing home. The number is typically as high as fifteen (15) to twenty
(20) hospitalizations while a resident. Similarly, it is important to learn who the family
physician is and who the attending physician at the nursing home is/was. These records can be
crucial in understanding the care received by the victim, along with the health status of that
individual both before and after residency at the nursing home.
F.
OBTAIN THE ENTIRE DEPARTMENT OF HEALTH FILE, LICENSURE
FILE AND COMPLAINT FILE ON THE SUBJECT NURSING HOME
This material can all be obtained from the State and provides invaluable information
concerning the licensure of the home, inspection results and complaints made against the facility.
Of particular importance are inspections or complaints surrounding similar issues which may
have occurred prior to the incident which marks the core of your litigation. Should the facility
have been cited for a similar problem prior to your complaint, this may ultimately prove to be
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admissible to demonstrate not only the negligence which occurred in your own claim, but that
the facility had been placed on notice of this problem prior to the subject incident. These files
can also alert the practioner to systemic problems at the facility which may impact upon the
instant claim.
Portions of this information are available from the Department of Health and Senior
Services
website, along with the CMS (formerly known as Medicare) website. However, the
information posted on the internet is generally much less complete than is the actual information
received pursuant to a written request.
On a national level, there is an ongoing debate as to the admissibility of these inspection
reports. It does not appear that the Appellate Division or the Law Division have rendered any
published opinions in New Jersey surrounding this issue.
G.
RESEARCH THE FACILITY
Researching a nursing home on the internet often proves to provide valuable information.
It is very helpful to look up the website for nursing homes and to obtain whatever advertising
information was supplied to the family of the resident to entice them to choose that particular
facility. Very often these materials amount to significant promises that are made to both the
resident and the family - which later become the subject of the litigation itself. Clients can also
prove to be quite helpful in this regard. Obtaining this information early on can be of value
because of the fact that internet sites and advertisements frequently change. Years into litigation,
facilities understandably often do not have old brochures or other documents which are
disseminated to prospective residents.
Another helpful resource in this regard are nursing home advocates throughout New
Jersey. Many prominent individuals throughout the State have extensive knowledge of nursing
home practices, policies and procedures, along with multiple contacts within the local
community who may have additional information on the nursing home.
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H.
INTERVIEW FAMILY PHYSICIANS
Family physicians are uniquely positioned to provide information concerning the baseline medical status of a plaintiff prior to admission into the nursing home and often continue to
follow the progress of their patient once admitted. However, just as often, the family physician
is out of the picture once the patient becomes a nursing home resident. Under that circumstance,
the resident is followed by any number of outside physicians who make rounds at the facility.
These check ups are generally once a month. When mistreatment or neglect occurs at a nursing
home, family physicians often are very interested in getting involved - when and if they see that
the standard of care that they expected for their own patient has not been satisfied.
I.
INTERVIEW FORMER EMPLOYEES OF THE NURSING HOME
These individuals often have more information than any other individual about potential
problems at the facility. However, counsel is cautioned to carefully review of Rule of
Professional Conduct 4.2. Generally speaking, it is impermissible to interview anyone within the
Litigation Control Group. Who is or is not within the Litigation Control Group is often the
subject of some debate. It is often advantageous once the matter is in litigation to seek a Court
determination as to who may or may not be contacted in an ex-parte fashion. Even current
employees who are not in the Litigation Control Group are fair game.
J.
ORGANIZE THE CHART
The nursing home chart is almost never provided in an organized fashion. Generally, it is
delivered in a large box with no particular order surrounding either the chronology or area of
specialty. It is literally impossible to review either a medical file or a chart in this fashion. Thus,
prior to reviewing the records, it is essential to carefully organize these records. Once the chart
is separated into different categories and then set up in a chronological fashion, the task becomes
much more manageable.
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Some firms utilize paralegals or nurses to accomplish this, while others use outside
agencies to organize their files.
A more popular and modern technique is to have each of the pages in the chart scanned,
bate stamped and bar-coded so that the chart is digitally accessible for either presentation at trial
or incorporation into videotaped depositions.
K.
REVIEW THE CHART
There appears to be almost complete uniformity among all nursing home practioners that
the attorney involved must personally review the entirety of the chart. Anecdotal examples
abound concerning discoveries by attorneys of crucial bits of information that were missed by
multiple layers of experts when reviewing the chart. As a general rule, records in these cases are
so voluminous that the benefit of having multiple sets of eyes reviewing the records directly is
the only means by which pertinent information can be discovered. Seemingly small bits of
information can alter the entire course of a case. These include items such as administration of
medications on February 30th, New Year’s Day conferences when the employees who signed off
on the form were on vacation, physical therapy records dated one (1) week after the death of a
resident, and numerous other seemingly small entries which can speak volumes about the nature
of the care provided, the willingness of employees to provide falsified records - or simply
legitimately entered information which is enormously relevant to issues that have later arisen.
III.
EVALUATE THE CASE
A.
IN-HOUSE REVIEW
Separate from liability issues is the evaluation of the client’s themselves, the potential
expense in litigating the claim and any potential recovery. Once embarked upon, a nursing home
case will consume countless hours of time and very significant financial outlay. Thus, not only
for purposes of the attorney, but for purposes of the client this should be evaluated very early on.
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In tandem with this is the need for an honest evaluation of any potential Medicaid or Medicare
liens contrasted with any potential recovery in the case. If it is determined that the amount of the
liens would likely out weigh the value that can be recovered for the family, the case should most
likely be rejected, as this would otherwise be nothing more than an attempt to obtain attorney’s
fees without benefiting the client.
B.
STATUTE OF LIMITATIONS
It is also very important early on in the evaluation of a case to determine what the Statute
of Limitations may be. Unlike a typical medical malpractice claim, this can be a very tricky
issue. In nursing home claims, there are usually multiple acts of neglect asserted and separate
issues as to when those deviations from the proper standard of care may manifest themselves.
That is, a lack of proper care, feeding and hydration in August might result in a bedsore in
September. Similarly, within the confines of one case might be separate claims for bedsores,
dehydration and fractures - all of which occurred on wildly varying dates, as a result of wildly
varying potential deviations from the proper standard of care.
To further complicate matters, a significant number of nursing home residents suffer
from cognitive difficulties sufficient to potentially render them legally insane according to New
Jersey law. If it is eventually determined that a resident is legally insane, New Jersey case law
generally supports the view that the Statute of Limitations for both the wrongful death and
survivorship claims would not begin to run until that individual is deceased. Because many
types of mental illness are progressive, it is often the case that an individual might be marginally
mentally competent upon admission into a nursing home but at some point later becomes
mentally incompetent. Attempting to evaluate the multitude of claims being made in a time line
that must be reconciled in tandem with the progression of ones mental illness is a difficult task
and may often result in a Lopez hearing. More and more, the need for a geriatric psychologist or
psychiatrist becomes necessary. However, the nursing home chart generally provides some clue
in this regard. Most important are outside physician evaluations of the mental capacity of the
resident. When it comes to timing issues, these are often more important than a
contemporaneous evaluation of a living plaintiff and become even more important when the
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resident is deceased by the time the claim is litigated.
While it is preferable to simply file suit within two (2) years of the date of any
complained of act or omission, families frequently don’t even approach counsel until years after
bad events have occurred. Thus, the issue is often unavoidable.
C.
LIABILITY EVALUATION
Obviously, one of the most important issues is to give an honest evaluation of our
potential liability and causation problems. However much it may seem that care was substandard, nursing home residents generally suffer from multiple medical problems. An honest
evaluation of the claim may reveal that the bad outcome suffered by the resident may have
occurred whether or not the care provided was appropriate. An open question remains as to
whether or not it is worthwhile to pursue a nursing home claim simply based upon the bad care
under the nursing home act.
D.
OUTSIDE EXPERT REVIEW
Once the in-house investigation is completed or often before it is, it is always necessary
to obtain outside expert opinion about the merits of the claim. There are a host of specialties
which are relevant to these type of claims. The most common expert utilized in nursing home
litigation is a nurse expert. However, it is important to ensure that the nurse is familiar with
geriatric patients and, importantly, nursing homes. There are many experts nationally who are
both nurses and nursing home administrators. This type of expert is uniquely positioned to
provide insight not only into the proper standard of care, but how a nursing home is and should
be run. More common is to utilize a nurse and a nursing home administrator separately. It is
important to remember that nursing experts are not permitted to speak to causation issues. There
are also a host of other issues which require the opinion of a physician. Thus, it is likewise
important to obtain a physician expert who is familiar with geriatric issues and, ideally, nursing
homes.
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E.
AFFIDAVIT OF MERIT
It is undeniable that nearly every individual who may be in a position to deviate from the
appropriate standard of care in the context of nursing home litigation is a licensed professional as
New Jersey’s Affidavit of Merit statute is concerned. The only individuals who some may argue
are outside of the strictures of that statute can be certified nurse’s aides and some other
potentially non-professional individuals at the nursing home facility. It is the view of the
undersigned and most practitioners that the better practice in every nursing home case is to
obtain an Affidavit of Merit. Obviously, if any claim is made concerning medical negligence,
the nurse expert’s Affidavit will not be sufficient. The entirety of the New Jersey Affidavit of
Merit statute is listed below for convenient review:
In any action for damages for personal injuries, wrongful death or property
damage resulting from an alleged act of malpractice or negligence by a
licensed person in his profession or occupation, the plaintiff shall, within
60 days following the date of filing of the answer to the complaint by the
defendant, provide each defendant with an affidavit of an appropriate
licensed person that there exists a reasonable probability that the care,
skill or knowledge exercised or exhibited in the treatment, practice or work
that is the subject of the complaint, fell outside acceptable professional or
occupational standards or treatment practices. The court may grant no
more than one additional period, not to exceed 60 days, to file the affidavit
pursuant to this section, upon a finding of good cause. The person
executing the affidavit shall be licensed in this or any other state; have
particular expertise in the general area or specialty involved in the action,
as evidenced by board certification or by devotion of the person’s practice
substantially to the general area or specialty involved in the action for a
period of at least five years. The person shall have no financial interest in
the outcome of the case under review, but this prohibition shall not
exclude the person from being an expert witness in the case.
N.J.S.A. 2A:53A-27.
Decisions interpreting this statute seem to be published nearly every week. Ideally, none
of the issues that many lawyers find themselves in would ever occur in a perfect world.
However, the inability to obtain records, newly discovered evidence, newly discovered injuries
and a host of other issues render it quite important to keep a watchful eye on the development of
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this area of law.
Keep in mind the recent amendment to the Statute and make sure that if you are bringing
a claim against a physician, that the expert and signature of the Affidavit of Merit is of the same
qualifications and Board Certifications of the potential defendant physician.
IV.
LITIGATION
A.
WHO TO SUE?
This is not an easy issue. No matter how thorough a pre-trial investigation may be,
nursing home cases evolve in a fashion that can never be fully predicted. Thus, who is named in
the initial complaint is critically important - especially when it is eventually determined that a
Statute of Limitations is approaching. Who is listed in one’s file as the sole defendant may not
be the sole defendant once the pre-suit investigation is completed. Often, it is determined that a
one (1) month hospital stay in the mist of a two (2) year nursing home residency is a primary or
secondary culprit in the development of bedsores. Similarly, a physician seeing forty (40)
patients in one day on his or her monthly rounds might miss crucial information and either fail to
do what should be done or prescribe something that should not be done. By way of one (1)
simple example, it is often seen that physicians will prescribe leg raising for an individual with a
severe arterial insufficiency. While this is sometimes indicated, most often it is not, and often
can lead to amputation. Very important in this regard is the general fact that most physicians
making rounds in nursing homes are not employed by them. While one may attempt to utilize a
theory of either apparent authority or respondeat superior, the better practice when physician
negligence is a part of the claim is to obviously separately name the physician.
It is also critically important quite early on to determine whether or not a facility is
publicly owned. Many facilities and hospitals in New Jersey have names which do not reveal
their identity as being public entities. New Jersey case law is not particularly generous in this
regard. Obviously, if there is a public entity involved the Tort Claims Act will be invoked - even
though it has yet to be examined by our Appellate Division as to how it may interact with the
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nursing home act.
B.
AFFIDAVIT OF MERIT
As nursing home claims often involve multiple defendants, it is very important to devise
a method to carefully track the timely service of the Affidavit of Merit and to likewise ensure
that an appropriate Affidavit of Merit is secured as to each named defendant prior to filing suit.
Many attorneys have begun the practice of serving the complaint with the Affidavit of Merit and even referencing the Affidavit of Merit on the title page of the complaint and jury demand.
C.
POST-SUIT STATUTE OF LIMITATIONS ISSUES
It is important to very carefully screen any answers filed by defendants in nursing home
claims for references to previously unknown potential defendants. It is not uncommon at all to
learn via discovery of a hospitalization which the pre-suit investigation had not revealed.
Specifically, in a lengthy nursing home residency, the family might not always know of a
lengthy intermediate hospital stay, which might have had a profound impact upon the health
status of the nursing home resident. This is typically first revealed in either a third party
complaint or by way of discovery. If an additional party or theory is first learned subsequent to
filing suit, there is, at the very least an argument to be made that the Statute of Limitations does
not even commence until such discovery. However, it is important to carefully track these issues
as they arise after suit is filed.
D.
CASE TRACK
While many practicioners utilize track three, 604 (medical malpractice), it is the view of
the undersigned that these cases are a better fit with section 607. Literally speaking, any issues
concerning deviations from the proper standard of care committed by physicians are dwarfed by
allegations concerning nurse’s aides, nurses, dieticians and other non-physicians. The form
Interrogatories for medical malpractice claims are often poorly suited for the needs of both the
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plaintiffs and defense attorneys involved in nursing home malpractice claims. Issues such as
staffing, prior violations, and a host of others are not contained within the form Interrogatories
and will often receive non-compliant answers simply because they have no place in nursing
home litigation. This is currently an item of some debate within New Jersey’s own practice, with
the defense generally taking the view that only form Interrogatories are required. Depending
upon one’s view of things, the tracking as a professional malpractice claim, rather than a medical
malpractice claim is the typical order of Court directing the case into the pilot mediation
program.
Mediation offers the opportunity for both sides to potentially resolve a claim before
significant additional time and expense are spent on these cases. It also affords both sides an
opportunity to greater understand the positions of their adversaries early on. This is often
advantageous in allowing the defense to potentially set or amend reserves and often offers the
plaintiff a reality check with regard to expectations in the case.
E.
THE COMPLAINT
Drafting a complaint which can potentially involve hundreds of alleged items of neglect
along with multiple injuries and multiple theories of recovery can be a daunting task. Although
New Jersey is a notice pleading State, a complaint drafted too generally often leads to confusion
on behalf of the defense - which ultimately serves the plaintiff no purpose. By the same token, in
a case where it is alleged, by way of example, that a defendant failed to reposition an individual
with compromised skin integrity 200 times over a multi-month period, this cannot be specifically
detailed into a complaint without rendering the complaint overly detailed. It is thus important to
carefully tailor each complaint to these very unique cases.
As noted, there are multiple potential theories of recovery. These include pursuing claim
under New Jersey Common Law, New Jersey’s Nursing Home Statute, New Jersey’s
administrative codes or regulations, Federal OBRA Regulations and other laws which may apply
to the specific nursing home resident. Claims can also sound in negligence per se, breach of
contract and consumer fraud. As noted earlier, it is sometimes advantageous to name all of the
potential beneficiaries of an estate in the complaint itself, rather than merely making reference to
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them as a general group.
F.
DISCOVERY ISSUES
As referenced earlier, it is the position of the undersigned that form Interrogatories are
generally insufficient to provide sufficient paper discovery prior to depositions. Instead, it is
very helpful to draft custom Interrogatories for a specific nursing home claim and to eventual
develop some Interrogatories which are applicable to most nursing home malpractice cases. To
date, there has been no reported decision concerning the potential requirement of adherence to
the form Interrogatories, versus custom Interrogatories.
It is quite rare that a first set of answers to plaintiff’s Interrogatories provide all of the
information requested. In order to get all available discovery, it is important to follow up with
letters requesting complete answers to Interrogatories. Unfortunately, it is likewise often
necessary to resort to motion practice - either to strike the answer of a defendant or to obtain an
order compelling more complete answers. This is probably the best opportunity during the
course of a case to ensure that all portions of the chart which have ever existed are ultimately
provided. It also provides an excellent opportunity to confirm what portions of the chart are
lacking, or were never completed in the first instance.
As with Interrogatories, a very detailed Notice to Produce which is particular to the
nature of nursing home charting is essential. As noted, there are multiple. Although the titles of
certain documents can mildly vary from home to home, a partial list of some of the records
which must be obtained includes:
Intake and output records
Skin assessment sheets
Decubitus ulcer reports
Nursing notes
Minimum data set (MDS)
Physician orders
Dietary assessment
Progress notes
Medical Administration Record (MAR)
Resident Assessment Protocol (RAP)
Incident reports
Comprehensive care plans
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Before engaging in motion practice concerning the record, know it well. Knowing what
is present and absent in a charge is essential before a request is made of a judge to either
augment answers to Interrogatories or otherwise complain of what has been provided.
With regard to the chart, a site inspection to view the original chart never fails to
enlighten. This typically provides the best opportunity to determine whether or not there has in
fact been an altered/falsified record. Seeing the original ink, different colors or unusually
consistent in color for a protracted period of time provides clues to an altered record. This is
especially so when portions of the chart surrounding an important incident in the life of a case is
found. When such irregularities are suspected, there are numerous experts available who can
evaluate handwriting and even ink dating.
G.
LIEN AND ELIGIBILITY ISSUES
If a plaintiff in a nursing home claim is alive, in nearly every case a recovery would
potentially complicate the eligibility of that individual to continue to receive public benefits (i.e.
Medicaid). In this regard, it is important to either carefully study eligibility law, or more
commonly, to consult with a Medicaid planning attorney to determine what impact the lawsuit
might have on that individual.
With regard to liens, there are three (3) potential liens that all nursing home residents
potentially face. In the first instance, most cases will involve some type of Medicare lien.
Medicare enforces a lien for all medical treatment paid for which is related to care necessitated
by the injuries claimed in the lawsuit. As a general rule, Medicare is willing to deduct
procurement costs out of the aggregate lien. This generally amounts to the percentage of the
attorney’s fee plus trial costs out of the entirety of the settlement or verdict.
The second common lien in these cases is the Medicaid lien. As with Medicare, the
Medicare lien solely involves treatment paid for which was necessitated by injuries claimed in
the litigation. In this regard, it is careful to scrutinize both the Medicaid and Medicare liens, to
ensure that only payments related to treatment necessitated by injuries asserted is claimed by
these entities. That is, Medicaid and Medicare representatives do not know your case very well.
They often base their asserted liens upon a triggering date in the original letter requesting the lien
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information. Since most nursing home residents suffer from a host of maladies, it is more
common than not that a significant portion of the lien will ultimately be removed when it is
asserted that certain portions of the treatment paid for have nothing to do with your claim.
However be mindful of the recent United States Supreme Court opinion potentially qualifying
the Medicaid’s right to reimbursement.
The claims of Nursing Home abuse and neglect are very different claims. They demand a
labor and discovery intensive practice and although can be very expensive to prepare and litigate,
they are the most rewarding cases that can be brought. Please always keep your client at the
forefront of your mind.
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