Nursing homes are subject to liability for negligent custodial care or treatment that causes death or bodily injuries to their residents.  Although there are many incidents of substandard care, only the actions or omissions of nursing homes that cause serious injury or death are economically worth pursuing in the courts, due to the extremely high cost of prosecution.

            State and federal laws demand that nursing homes comply with a certain standard of care with respect to their residents.  This essay will summarize some of the typical types of substandard care that have been the subject of successful claims in recent years.

            42 U.S.C. § 1396r, originally enacted in 1987, is the federal statute governing requirements for nursing facilities.  The goal of this legislation is to allow nursing home residents to receive a level of care that will allow them “to attain or maintain the highest practicable physical, mental and psychosocial well-being in accordance with a written plan of care.”  42 U.S.C. §1396r(b)(2). It requires that nursing homes meet certain standards for various items such as quality assessment and assurance, training and competency of staff, protection of residents’ rights and remedies, and government oversight.

            All nursing homes that participate in Medicare or Medicaid must be certified as meeting certain federal requirements. The Centers for Medicare & Medicaid Services contract with the states to perform nursing home surveys before nursing homes may be certified. Medicare’s web site offers information on home-by-home comparisons of facilities in all states. 

            The nursing home regulations developed by the Secretary of the Department of Health and Human Services, which administers the Medicare program, are found at 42 C.F.R. §483.1 – 483.75. These regulations provide both general standards and specific standards.  An example of a general standard is the requirement that a facility must have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” 42 C.F.R. § 483.30 (2011).  The specific standards follow below:

            B--REQUIREMENTS FOR LONG TERM CARE FACILITIES

            The Wisconsin statute governing nursing homes is Wis. Stat. Ch. 50. The term “nursing home” means “a place where five or more persons . . . reside, receive care or treatment and, because of their mental or physical condition, require access to 24-hour nursing services, including limited nursing care, intermediate level nursing care and skilled nursing services.”  Wis. Stat. § 50.01(3). Among other things, this chapter requires licensure of any nursing home, and grants legal authority to the Department of Health Services to promulgate specific rules and standards for the operation of nursing homes.

The Wisconsin Department of Health Services has its own regulations governing nursing homes, Wis. Adm. Code, Ch.DHS 132.11 – 132.84.  The regulations are administered by the Division of Quality Assurance.  The Wisconsin regulations track many of the federal regulations, providing additional minimum requirements for compliance with the standard of care.

            There are some recent legislative enactments in Wisconsin that make it more difficult for persons claiming injury from negligent nursing home care to prosecute their cases.

Wis. Stat. § 146.38, effective February 1, 2011 makes reports from the Wisconsin Department of Health Services confidential and inadmissible in civil or criminal litigation against nursing homes.  Under this same statute, incident or occurrence reports may not be used in civil or criminal actions against health care providers.  Wis. Stat. § 904.16, also created on February 1, 2011, prohibits information obtained by the Wisconsin regulatory agencies that conduct quality assurance reviews of health care providers from being used in civil or criminal actions against health care providers.

Wis. Stat. § 893.555 limits non-economic damages to approximately $750,000.

Pursuant to Wis. Stat. § 895.043(6), punitive damages against a nursing home may not exceed twice the amount of any compensatory damages or $200,000, whichever is greater.               Wisconsin has a specific set of statutes pertaining to medical malpractice claims against most, but not all health care providers. Wis. Stat. ch. 655.  Nursing homes are not included within the definition of a health care provider under the statutes, unless they are combined as a single entity with a hospital. Wis. Stat. § 655.002(1)(j).  Persons who make claims against nursing homes for personal injuries are generally not required to comply with the provisions of the medical malpractice laws.  Expert testimony is not required to establish the existence and violation of the standard of care of a nursing home, as is required in most medical malpractice cases, at least with respect to custodial care issues such as failure to use a safety belt on a wheel chair bound patient. Kujawski v. Arbor View Health Care Center, 139 Wis.2d 455, 407 N.W.2d 249 (1987); Cramer v. Theda Clark Mem. Hosp., 45 Wis.2d 147, 172 N.W.2d 427 (1979).

            There is a plethora of articles available on the Internet and elsewhere about the most frequent types of nursing homes’ deficiencies for which nursing homes receive resident complaints or are cited by governing state and federal authorities. See, among other articles, U.S. Department of Health and Human Services, Office of Inspector General, “Trends in Nursing Home Deficiencies and Complaints,” OEI-02-08-00140 (2008). These deficiencies include all of the following:

·        Sufficiency, training and supervision of staff, including:

Corporate officers

Medical director

Licensed administrator

Director of nursing

Assistant director of nursing

Registered nurses

Licensed practical nurses

Certified nursing assistants

Dietician and dietary manager

Social services representatives

Physical therapists

Occupational therapists

·        Accident and environment

·        Quality of Care

·        Professional Standards

·        Infection control

·        Comprehensive care plans

·        Unnecessary drugs

·        Food sanitation

·        Clinical records

·        Pressure sores

·        Resident dignity

·        Housekeeping

In Wisconsin, there is no express statutory cause of action in favor of a patient for damages against a nursing home for a violation of the safety standards governing nursing homes as set forth in the statutes or administrative regulations, but a common law cause of action for damages will lie.  Farr v. Alternative Living Services, Inc., 253 Wis.2d 790, 643 N.W.2d 841 (Ct. App. 2002); Wis. Stat. § 50.10.

An experienced trial attorney should be contacted for a free consultation to evaluate the

feasibility of proceeding with a claim.

If you or a loved one are aware of a nursing home deficiency that you believe has

caused death or great bodily harm to a resident, feel free to contact James A. Pitts or Gregory A.

Pitts for a free consultation.