Nursing Home Liability |
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originally enacted in 1987, is the federal statute governing requirements for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
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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.
James A. Pitts, Trial Attorney japitts@pittslaw.com
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