Fundamentals of Prosecuting Nursing Home Abuse and …...Prosecuting Nursing Home Abuse and Neglect Cases Seminar Topic: This material provides an overview of the Nursing Home Care

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Fundamentals of Prosecuting Nursing Home

Abuse and Neglect Cases

Seminar Topic: This material provides an overview of the Nursing Home Care Act,

and framework for prosecuting nursing home cases, nursing home fall cases, and

bed sore cases.

This material is intended to be a guide in general and is not legal advice. If you

have any specific question regarding the state of the law in any particular

jurisdiction, we recommend that you seek legal guidance relating to your particular

fact situation.

The course materials will provide the attendee with the knowledge and tools

necessary to identify the current legal trends with respect to these issues. The

course materials are designed to provide the attendee with current law, impending

issues and future trends that can be applied in practical situations.

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About the Author and Presenter

Barry G. Doyle

Barry Doyle is the founder of the Law Offices of Barry G. Doyle, P.C. with offices in Chicago and Orland Park where he is engaged exclusively in the representation of plaintiffs in complex personal injury and wrongful death litigation, with a special emphasis on nursing home abuse and neglect litigation.

A native of Evanston, he attended high school at Evanston Township High School and then went on to the University of Michigan – Ann Arbor where he graduated with a Political Science degree in 1991. He then attended law school at Loyola University of Chicago, where he graduated with honors in 1994. During his time at Loyola, he received American Jurisprudence Awards in 5 classes.

He is a member of the American Association for Justice, the Illinois Trial Lawyers Association, and the Illinois State Bar Association. He belongs to the American Association for Justice Nursing Home Litigation Group. He is a past co-chair of the Tort (Personal Injury) Litigation Committee of the Young Lawyers’ Section of the Chicago Bar Association and a former Adjunct Professor at Loyola University of Chicago School of Law. He has tried over 50 matters to verdict in jury trials, bench trials, and binding arbitration hearings. He and his family live in Evanston.

Author’s Email Address: [email protected]

Author’s Website: www.ChicagoNursingHomeLawyer.com

Author’s Mailing Address: Law Offices of Barry G. Doyle, P.C.

Ten South LaSalle Street, Suite 2160,

Chicago, IL 60603

Author’s Phone Number: (312) 263-1080



Table of Contents

Contents

Table of Contents ............................................................................................ 4 Timed Agenda: ............................................................................................ 6

Fundamentals of Prosecuting Nursing Home Abuse and Neglect Cases ....... 8 AGENDA ...................................................................................................... 8 10,000 foot view ......................................................................................... 8 Nursing Home Care Act ............................................................................... 8 210 ILCS 45/3-601 ....................................................................................... 8 210 ILCS 45/3-602 ....................................................................................... 8 Quirk ............................................................................................................ 9 2-622 Reports .............................................................................................. 9 Arbitration ................................................................................................... 9 Settlement/Liens ......................................................................................... 9 Mindset ....................................................................................................... 9 Rules of the Road ........................................................................................ 9 5 Traits of a Good Rule of the Road .......................................................... 10 Sources of Rules ........................................................................................ 10 Care plan process ...................................................................................... 10 Steps in Care Planning Process ................................................................. 10 Summary ................................................................................................... 11 Written discovery ...................................................................................... 11 Depositions ............................................................................................... 11 Experts....................................................................................................... 11 Paradigm works for other kinds of cases .................................................. 11 Falls ........................................................................................................... 12 Care Planning for Falls - Assessment......................................................... 12 Care planning ............................................................................................ 12 Evaluation/Revision .................................................................................. 12 Discovery ................................................................................................... 12 Consequences of falls ................................................................................ 13 Falls and wrongful death claims ................................................................ 13 Bed sore cases ........................................................................................... 13 Regulation – 42 CFR, Part 483.25 .............................................................. 13 What are bed sores? ................................................................................. 13 Definition of pressure ulcer ...................................................................... 13 Stage 1 Pressure Ulcer .............................................................................. 14 Stage 2 Pressure Ulcer .............................................................................. 14



Stage 3 Pressure Ulcer .............................................................................. 14 Stage 4 Pressure Ulcer .............................................................................. 14 Other Types of Bed Sores .......................................................................... 14 Assessment/care planning ........................................................................ 14 Standardized tool – Braden scale .............................................................. 14 Consequences of bed sores ...................................................................... 14 Written discovery ...................................................................................... 15 Depositions ............................................................................................... 15



Timed Agenda:

Time Description

00:00:00 Program Start

00:00:20 Introduction

00:00:48 Fundamentals of Prosecuting Nursing Home Abuse and Neglect Cases

00:01:38 Agenda

00:02:27 10,000 foot view

00:05:42 Nursing Home Care Act

00:06:41 210 ILCS 45/3-601

00:07:35 210 ILCS 45/3-602

00:09:40 Quirk

00:10:50 2-622 Reports

00:13:15 Arbitration

00:19:45 Settlement/Liens

00:21:45 Rules of the Road

00:24:00 5 Traits of a Good Rule of the Road

00:29:30 Care plan process

00:33:04 Steps in Care Planning Process

00:40:09 Falls

00:43:45 Care Planning for Falls - Assessment

00:48:42 Care planning

00:52:20 Evaluation/Revision

00:58:25 Consequences of falls

00:59:32 Falls and wrongful death claims

01:02:21 Bed Sore Cases

01:04:45 Regulation – 42 CFR, Part 483.25



01:06:20 What are bed sores?

01:06:42 Definition of pressure ulcer

01:07:40 Stage 1 Pressure Ulcer




01:11:13 Other Types of Bed Sores

01:13:32 Assessment/care planning

01:17:55 Standardized tool – Braden scale

01:20:00 Consequences of bed sores

01:25:43 Written discovery

01:28:38 Depositions

01:34:26 Program End



Fundamentals of Prosecuting Nursing Home Abuse and Neglect Cases

AGENDA

• Statutory and Legal Framework • Approach to Prosecuting Nursing Home Abuse and Neglect Cases • Fall Cases • Bed Sore Cases

10,000 foot view

• One of few places in health care industry that is explicitly for-profit • Revenue model: per patient, per day • Largest expense – staff

• UPSHOT: Failure is baked right in

Nursing Home Care Act

• 210 ILCS 35/1-101, et seq. • Comprehensive licensing and regulatory scheme • Intent of Nursing Home Care Act • Private cause of action with fee and cost shifting • Potential for fee award creates powerful incentive to settle

210 ILCS 45/3-601

• “The owner and licensee are liable to a resident for any negligent or intentional act of their agents or employees which injures the resident”

210 ILCS 45/3-602

• “The licensee shall pay the actual damages and costs and attorney’s fee to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated”

• Residents have a right to be free of neglect and abuse (210 ILCS

45/2-107) • Neglect includes failure to provide medical and rehabilitative care

necessary to prevent physical harm to the resident. (210 ILCS 45/1-117)



Quirk

• No cause of action under Wrongful Death Act for violations of Nursing Home Care Act

2-622 Reports

• Not required for causes of action under Nursing Home Care Act • However, required when there is a claim under Wrongful Death Act • Also required when other health care professionals or individual

nurses are named as party defendants

Arbitration

• Emerging area of law in Illinois, expect to see more litigation and more published court decisions regarding this

• Anti-arbitration provisions in Nursing Home Care Act preempted by Federal Arbitration Act

• Strategic decision – contest arbitration or not? • Defenses: unconscionability, lack of capacity • Wrongful death claims not subject to arbitration

Settlement/Liens

• Very few residents survive and have ability to decide • Need for probate, court approval of settlements • Medicare, Public Aid liens

Mindset

• Nursing home cases are not a “flash moment in time” • Nursing home cases are not medical malpractice cases • Substantial differences in delivery of care nursing home vs. hospital

setting

Rules of the Road

• Book by Rick Friedman and Pat Malone, published by Trial Guides – seminal work on trial practice

• Basic principles of book – complexity is enemy of plaintiff’s verdict • By setting clear standards, you cut through the complexity to lead

juries to favorable verdicts • Complexity still exists on issues of causation, but proper approach

to prosecution can cut through complexity



5 Traits of a Good Rule of the Road

1. Describes conduct on the part of the defendant – something that a defendant should either do or not do.

2. A rule should be easy for a jury to understand. 3. It should not be one which can be credibly disputed by the

defendant. 4. It must be one which was violated by the defendant. 5. It must be important enough in the context of the case that proof of

the violation will significantly increase the chances of a plaintiff’s verdict.

Sources of Rules

• Federal regulations (42 CFR, Part 483) • State regulations (77 Ill.Admin.Code, Part 300) • Interpretive guidelines • Policies and procedures • Job descriptions • Physician orders • Resident care plans • Medical literature

Care plan process

• Role of care planning in nursing home • Agreement that care planning process is standard of care • Required by regulations • Result written document setting forth what care needs to be

provided and assigns responsibility for delivery of care • Once in place must be delivered day to day, shift to shift • Represents effective framework for prosecuting case

Steps in Care Planning Process

1. Assessment 2. Care Plan 3. Communication 4. Implementation 5. Evaluation 6. Revision



Summary

• Care planning process coupled with Rules of Road approach provides powerful framework for prosecuting nursing home abuse and neglect cases

• Showing systemic failures in delivery of care consistent with the Reptile theory developed by David Ball and Don Keenan

• Helps create sense of inevitability of the result and defeat causation-centered defenses

• Applicable for all manner of nursing home cases – not just falls and bed sore cases

Written discovery

• Nursing home cases are document and deposition intensive • Written discovery should be tailored to case type • Interrogatories of limited utility • Recommend aggressive document production practice

Depositions

• Plaintiff/family members • Defendant employees – who to depose/order • Rule 206(a)(1) corporate representative • Attending physician • Subsequent treating physicians

Experts

• Is expert testimony required? • School of medicine requirements • Expert testimony necessary for causation • Physician needed for 2-622

Paradigm works for other kinds of cases

• Choking • Restraints • Side rail entrapment • Resident on resident assaults • Malnutrition/dehydration • Catheter care



Falls

• Repeat after me – these are not slip and fall cases! • Key reason families seek admission to a nursing home

o Falling at home o Need rehab after illness or hospitalization

• Falls are foreseeable → triggers duty • Morse, Preventing Patient Falls – anticipated physiological falls • Focus of intense concern in long term care industry and are

specifically care planned for • Use care planning process as tool for analysis, framework for

prosecution

Care Planning for Falls - Assessment

• Should be using standardized form • Key issue – musculoskeletal problems plus intermittent/constant

confusion or poor safety judgment/awareness • A number of other risk factors apply

Care planning

• Supervise • Moderate risk • Alarm usage • Not a solution - restraints

Evaluation/Revision

• Noncompliance • Occurrence/recurrence of falls/near falls

o Definition of fall – unintentional coming to rest on the ground,

floor, or other object, regardless of whether injury has occurred

• Declines in condition

Discovery

• Written discovery • Depositions



Consequences of falls

• Fractures, especially of the hip • Brain bleeds

Falls and wrongful death claims

• Fall as immediate cause of death • “Signature event” following fall • Downward spiral

Bed sore cases

• Common type of nursing home case • Not “flash moment in time” • Aggressively defended on causation

Regulation – 42 CFR, Part 483.25

• (b)Skin integrity - • (1)Pressure ulcers. Based on the comprehensive assessment of a

resident, the facility must ensure that - • (i) A resident receives care, consistent with professional standards

of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable; and

• (ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.

What are bed sores?

• Synonyms • Staged 1 through 4, with 4 being the worst • Normally appear on the bony prominences • Damage to the skin caused by lack of circulation caused by pressure

Definition of pressure ulcer

A pressure ulcer is localized injury to the skin and/or underlying tissue usually over a bony prominence, as a result of pressure, or pressure in combination with shear. --National Pressure Ulcer Advisory Panel



Stage 1 Pressure Ulcer

Definition - Intact skin with a localized area of non-blanchable erythema, which may appear differently in darkly pigmented skin.


Definition - Partial-thickness loss of skin with exposed dermis. The wound bed is viable, pink or red, moist, and may also present as an intact or ruptured serum-filled blister. Adipose (fat) is not visible and deeper tissues are not visible.


Full-thickness loss of skin without exposure of fascia, muscle, tendon, ligament, cartilage and/or bone.


Definition - Full-thickness skin and tissue loss with exposed or directly palpable fascia, muscle, tendon, ligament, cartilage or bone in the ulcer.

Other Types of Bed Sores

• Unstageable pressure ulcer – has dead tissue in the wound bed so , depth cannot be determined; by definition at least Stage 3

• Deep tissue injury - Intact or non-intact skin with localized area of persistent non-blanchable deep red, maroon, purple discoloration or epidermal separation revealing a dark wound bed or blood filled blister. This injury results from intense and/or prolonged exposure to pressure and shear.

Assessment/care planning

• Head to toe inspection done when resident enters facility • 3 key risk factors

o Immobility o Incontinence o Poor nutritional status

Standardized tool – Braden scale

Consequences of bed sores

• Significant change in condition – physician notification required



• Local wound care under management of doctor or wound care nurse

• Debridement – bedside or surgical • Colostomy/catheter use • G-tube placement • Infections – cellulitis/osteomyelitis • Death

Written discovery

• Interrogatories – identify personnel • Production Requests – wound care sheets, photos

Depositions

• Family/Friends • Director of Nursing • Care plan coordinator • Wound care nurse • Assessment nurses • Dietician • Floor nurses • CNAs • Attending doctor • Subsequent treating physicians


Documents

Fundamentals of Prosecuting Nursing Home Abuse and …...Prosecuting Nursing Home Abuse and Neglect Cases Seminar Topic: This material provides an overview of the Nursing Home Care