By Geri L. Dreiling
A recent $2.5 million recovery for six families whose relatives died in a St. Charles nursing home illustrates the growth of nursing home abuse and neglect cases.
Gone is the notion that suits against nursing homes could not garner big damage awards because an elderly client does not have a long life expectancy or lost wages.
Plaintiffs' and defense attorneys now say that media attention to nursing home conditions and a growing elderly population have created an atmosphere in which outraged jurors are not afraid to hand down heavy punitive damage awards.
"A lot of people feel guilty about putting their parents in nursing homes and they are also aware that someday they could be in a nursing home," said Tom Cartmell, a Kansas City attorney who represents nursing homes. "The juries are trying to send a message to nursing homes with the big punitive damage awards."
But before attorneys rush out to sign up cases against nursing homes, experts say that attorneys should:
* become familiar with the Missouri Omnibus Nursing Home Act, which gives lawyers access to investigation records, an action for attorneys' fees, and statutory punitive damages;
* recognize that both the two-year medical malpractice and the three-year wrongful death statutes of limitations apply to nursing home cases;
* request records and reports from the Division of Aging;
* be aware of the arguments for and against damage caps in a case; and
* use focus groups to hone the most effective presentation or defense.
Demographic Shift
The attorneys for the families in the St. Charles case were Tim Dollar and Jim Bartimus of Kansas City, who have recently formed a joint venture solely to litigate nursing home cases around the country.
Dollar thinks there are several reasons behind the explosion in the litigation.
"One reason is due to the longer life span we are experiencing and baby boomers who are sending their parents to nursing homes," Dollar said.
Related to that is the recognition that baby boomers may someday be in a nursing home themselves and "there is fear among them, so there is a greater likelihood that they will punish a nursing home" for abuses, Dollar said.
In addition, Dollar noted that the nursing home industry has undergone dramatic changes in the past several years.
"It used to be that local people with health care backgrounds started nursing homes for charitable reasons."
"But when businessmen saw the aging population, a lot of small entrepreneurs with little or no health care background starting buying these homes up, pumped money into an upgrade of the physical building while at the same type cutting staff, so that they could turn around and sell the nursing homes for a profit," Dollar said.
As a result of the strategy, Dollar believes that resident care has suffered.
"There is such a staffing problem at nursing homes," added Elizabeth Callahan, a Jefferson City plaintiffs' lawyer. "They have a high turnover rate and training is a real problem."
And Derek Potts, a Kansas City plaintiffs' lawyer, believes that nursing homes are bringing together a "risky combination" when "18-, 19-, or 20-year olds are hired as nurse aides and paid as much as workers at Burger King and McDonalds."
Another reason for the interest is the big verdicts that have been obtained against nursing homes.
"In Texas there were recently $312 million and $90 million verdicts against nursing homes; in California, the jury made a $100 million award," said Cartmell. "So just the size of those verdicts are going to increase the interest in this type of litigation."
But Dollar notes that attorneys don't have to look to other states for confirmation that the awards are getting big.
Dollar represented a 94-year-old woman in Henry County who lost her leg beneath a cast because of gangrene. A Henry County jury returned a $795,000 verdict in that case.
"That verdict was triple the verdict of the largest award ever made by a jury in that county," Dollar said.
Elderly Population
As of the February 2001 census, Missouri had 57,605 residents in its licensed long term care facilities, said Nina Hazelton, Legal Counsel for the Division of Aging.
The occupancy rate for available beds in skilled nursing facilities, intermediate care facilities, residential I facilities and residential II facilities was 78.8 percent for the fourth quarter of 2000.
The Division of Aging also reports that for the 2000 state fiscal year, there were 6,382 abuse and neglect regulatory violations. In addition, the division completed 8,704 investigations and found 27.8 percent of the complaints to be valid; 16.7 percent were declared "unable to verify," and 55.5 percent were found to be invalid.
The large number of residents in nursing homes coupled with the heightened attention to nursing home conditions has had an impact on attorneys.
Potts said, "Over the past year, I would say we probably receive one call every two weeks on abuse and neglect cases."
But before a lawyer decides to take that case, all of the experts warned that nursing home cases are unique and not like a run-of-the-mill premises liability or med mal case.
Omnibus Nursing Home Act
Probably the most important provision lawyers should be mindful of is the Missouri Omnibus Nursing Home Act, enacted in 1979 and -- contained in Chapter 198.
"The Act requires the Division of Aging to keep records on nursing homes and also provides that all this information -- except for patient names -- is discoverable by attorneys," said Cartmell.
In addition to providing access to governmental records, Sect. 198.093 of the Act states that if a complaint is made to the attorney general's office about the deprivation of a nursing home resident's rights within 180 days of the alleged violation, the attorney general is required to review the complaint and may initiate legal action. However, if the attorney general does not initiate legal action with 60 days, suit can be filed pursuant to the statute and the court "may, in its discretion, award punitive damages which shall be limited to the larger of five hundred dollars or five times the amount of special damages.and may award to the prevailing party attorney's fees.."
Dollar calls the statute a "powerful, powerful tool" and believes that if an attorney receives a case before the 180 days has passed since the incident occurred but fails to file a complaint with the attorney general's office, the lawyer could find him or herself facing malpractice suit.
But that isn't the only time period attorneys have to be cognizant of when taking a case against a nursing home.
In Dunagan v. Shalom Geriatric Center , 967 S.W.2d 285 (MoApp. W.D. 1998), the court held that the two-year medical malpractice statute applied to nursing -- homes because they were "health care providers" within the meaning of the statute.
But if the elderly resident died from the abuse or neglect and the suit is one for wrongful death, the three-year wrongful death statute of limitations applies, Dollar said.
To further complicate matters, a question can arise as to who has the legal capacity to file suit against a nursing home.
"If a person dies due to abuse, the Omnibus Nursing Home Act requires that an estate be opened before suit is filed under the statute," Potts said.
"And even if the abuse does not involve death, a lot of nursing home residents are legally incapacitated, so oftentimes you are going to need to have a guardian or conservator appointed for the resident before you can proceed," Potts noted.
Government Investigations
Plaintiffs' attorneys agreed that one of the first investigative steps is to contact the Division of Aging.
According to Hazelton, the division conducts complaint investigations that are usually initiated by a hotline call or a facility self report. In addition, the division conducts two state inspections a year as well as a federal survey of Medicare or Medicaid certified facilities.
"Many of our records are public records," Hazelton said. "However, some of the information contained within the records may not be public, so the information may be redacted from any document we produce."
Examples of information that is commonly redacted include a resident's name, social security number, any information that could allow someone to identify the resident, and the identity of the person who made an abuse report. Hazelton also indicated that the division does not make available without a court order "invalid and unsubstantiated abuse and neglect reports."
"And if we have a record that we got from somewhere else, like a hospital, we won't produce that," said Hazelton.
However, she indicated that the division identifies in its responses the information it is not producing and cites the legal authority for withholding the information.
Callahan recommended that lawyers "get their hands on all of the prior incident reports and prior violations from the Division of Aging."
"A lot of times the documents are inadmissible," Callahan said, "but I think it is a mistake to write this information off too quickly."
"You can get around the inadmissibility problem if you are able to demonstrate a pattern or that the defendant had knowledge about a condition."
Cartmell said, "The defendant is going to argue that the documents, especially those relating to other facilities, are irrelevant and inadmissible."
However, he notes that the trial court rulings on the question "have been mixed."
Time Cards
In addition to the Division of Aging's records, Callahan suggested that attorneys request all of the nursing notes from the facility, a list of who was working on the date of the incident, and a copy of the employees' time cards.
"The nursing home will produce a list of the people scheduled to be on staff for a particular day, but the punch cards will tell you who actually showed up for work," Callahan said.
Another valuable source of information are ex-employees of the nursing homes.
Callahan recently settled for $450,000 a case in which she represented a 75-year-old resident with a history of dementia who wandered through an unlocked door with a non-functional alarm and fell down 11 concrete steps, suffering brain contusions and fractured ribs.
"A couple of ex-employees were so upset about how this man was treated" that they turned out to be valuable sources of information, Callahan said. "In fact, one woman was so upset by the conditions" that she quit.
Damages
Another issue that is likely to be hotly contested between plaintiff and defense lawyers in nursing home cases is the question of damages.
Defense attorneys argue that because nursing homes are health care providers within the meaning of the medical malpractice statute, the $540,000 non-economic damage caps apply to cases against nursing homes.
But plaintiffs' lawyers are not so sure that the caps apply to every situation.
Potts said, "I think there is an argument that med-mal cases against nursing homes should be distinguished from cases involving abuse."
"If a patient has been physically or sexually abused, then that is an assault and battery," said Potts. "I would argue that the med-mal caps shouldn't apply to that situation."
Callahan makes a similar argument for premises liability actions against nursing homes -- and it is an argument she made when representing the 75-year-old resident who fell down the stairs.
"I included a premises liability count along with the med-mal count in that case, and I believe there is a strong argument that the med-mal caps don't apply" to a slip and fall, Callahan said. "But to be safe, I still filed a medical negligence affidavit within 90 days of filing the petition."
Even if a plaintiffs' lawyer conceded that the medical malpractice non-economic damage caps apply, the lawyer still has to deal with the fact that often the cases don't involve a lot of actual damages.
"Defense attorneys point out to me all the time that my client doesn't have any lost wages and a low life expectancy," Callahan said.
"But my response to them is that they should go tell that to a jury," she said.
And from a defense standpoint, Cartmell said, "The argument that the resident is old and therefore doesn't have much value is not going to hold much weight with a jury."
"You will just make jurors mad if you suggest that plaintiffs have less value because they are older."
He said that the "Golden Years" argument -- that an older person deserves to live the last years of his or her life in comfort and with respect -- is fairly effective with jurors.
"The plaintiffs have the better argument and jurors respond to it," Cartmell admitted.
Focus Groups
Both plaintiff and defense lawyers recommend the use of -- focus groups.
"We have to get over the bad press about nursing homes and using a focus group can be very helpful to an attorney," said Cartmell.
"Our real struggle during voir dire and opening is to get over those biases that are present in the press. We have to be pretty open about the problems in voir dire, and ferret out those people who can't be fair," he said.
Dollar stated that he uses a focus group in "every case."
He concentrates "more on the pain and suffering of the resident rather than the life expectancy."
"You have to make the argument that if someone has only five years left to live, those are the most important five years of his or her life," Dollar said.
That strategy has proven very effective for Dollar. But he bristles when asked whether big awards are counterproductive because they could be seen as taking money out of nursing homes, contributing to the residents' deprivation.
"A chief executive officer in a case called this a lawyer feeding frenzy, but I wholeheartedly reject that argument," Dollar said.
"It is not a feeding frenzy unless there is food to be had -- we don't make up the facts in these cases. This industry will survive when it decides to give good care."
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