Nursing Home Litigation –
Defense Perspective
PETER A. MONAHAN
Alholm,
Monahan, Keefe & Klauke, L.L.C.
DAWN L. HAGHIGHI
Previously published as Chapter 7
in the IICLE volume
entitled Issues in Long Term Care.
I. OVERVIEW
A. Long-Term
Care Statutes and Regulations
1. Illinois
Nursing Home Care Act
2. Federal
Nursing Home Reform Provisions of OBRA '87
B. Definition
of "Long-Term Care Facility"
C. Long-Term
Care Management
1. Nursing
Home Administrator
2. Director
of Nursing
3. Director
of Food Services
4. Medical
Director
5. Physicians
6. Nursing
Staff
7. Social
Service
II. PARTIES
TO LAWSUIT
A. Plaintiff
B. Defendant
III. CAUSES
OF ACTION
A. Theories
of Liability
l. NHCA
2. OBRA
'87 Provisions
3. Common
Law Negligence and the Standard of Care
4. Breach
of Contract
5. Consumer
Fraud
6. Survival
Statute and Wrongful Death Act
7. Negligent
Hiring, Supervision, and Retention
8. Healing
Art Malpractice
9. Liability
a. Strict Liability
b. Actual Agency
c. Apparent Agency
10. Other
Forms of Liability
11. Other
Remedies
B. Typical
Cases and Defenses
1. Fall
Cases
a. Allegations
(1) Failure to assist and attend
(2) Failure to properly use a restraint
(3) Failure to properly use side rails
b. Defenses
2. Injuries
Due to Use of Restraints
a. Allegations
b. Defenses
3. Wandering
Resident Cases
a. Allegations
b. Defenses
4. Suicide
and Attempted Suicide Cases
a. Allegations
b. Defenses
5. Decubitus
Ulcer Cases
a. Allegations
b. Defenses
IV. GENERAL
DEFENSES
A. Statute of
Limitations
B. Compliance
V. INVESTIGATION
AND DISCOVERY
A. Securing
the Documents and Evidence
l. Medical
Records
2. Other
Facility Documents
a. The Business File
b. The Policies and Procedures Manual and Index
c. Incident Reports Regarding the Resident
d. Statements
e. Other Documents That Relate to the Resident
f. Staffing Records and Staffing Assignment Calculation Sheets
g. Surveys and Plans of Correction
h. Personnel Files of Key Caregivers
i. Consultants' Reports
j. The Floor Plan
k. Marketing Material
1. Visitor Sign-In Sheets
m Residents'
Advisory Council Meeting Minutes
n. Photographs
o. Surveillance Tapes
p. Menus for the Time Period in Question
3. Documents
Not in the Control of the Facility
4. Former
Employees' Testimony
a. Identifying Key Witnesses
b. Interviewing Former Employees
B. Discovery
Tools
1. Document
Requests
2. Interrogatories
3. Requests
To Admit
4. Notice
for Deposition
C. Scope of
Defendant's Discovery
D. Other
Discovery-Related Issues
1. Informal
Discovery
2. Statements
E. Checklist
of Information To Be Obtained in Written and Oral Discovery
VI. EXPERT
TESTIMONY
A. Explaining
the Difference Between Hospital Care and Long-Term Care
B. Explaining
the Difference Between Physician Care and Nursing Care
C. Explaining
Long-Term Care Facility Charting Practices
D. Explaining
the Life Care Plan
VII. CASE
EVALUATION AND SETTLEMENT ISSUES
A. Evaluation
in General
B. Jury
Sympathy
C. Settlement
and Release
D. Liens
1. IDPA
Liens
2. Medicare
Super Liens
E. Attorneys'
Fees and Costs
I. OVERVIEW
A. Long-Term
Care Statutes and Regulations
Long-term care facilities are governed by
both federal and state regulations. In fact, long-term care facilities are
subject to more regulations than any other health care institution. The
regulations are comprehensive and complex and regulate all forms of care and
services provided to a resident. In order to effectively defend a long-term
care facility, the defense counsel must be well versed in the applicable
regulatory provisions that apply to a long-term care facility. At a minimum,
defense counsel should have a strong working knowledge of the Illinois Nursing
Home Care Act, 210 ILCS 45/1-101, et seq.;
the Illinois Department of Public Health regulations, 77 Ill.Admin. Code, Part
300; and the federal nursing home reform provisions, 42 C.F.R. Part 483.
Other potentially relevant state statutes
include the Abused and Neglected Long Term Care Facility Residents Reporting
Act, 210 ILCS 30/1, et seq.; Elder
Abuse and Neglect Act, 320 ILCS 20/1, et
seq.; Long Term Care Peer Review Protection Act, 745 ILCS 55/1, et seq.; medical studies statute, 735
ILCS 5/8-201; Nursing and Advanced Practice Nursing Act, 225 ILCS 65/51, et seq.; and Nursing Home Administrators
Licensing and Disciplinary Act, 225 ILCS 70/1, et seq. Other relevant federal statutes and regulations include the
Americans with Disabilities Act, 42 U.S.C. §12101, et seq.; Civil Rights Act, 42 U.S.C. §1983; Occupational Safety and
Health Act of 1970, 29 U.S.C. §651, et
seq.; so-called "Patient Self-Determination Act of 1990," 42
U.S.C. §§ 1395cc and 1396a, passed as part of the Omnibus Budget Reconciliation
Act of 1990, Pub.L. No. 101-508, §4206, 104 Stat. 1388; Safe Medical Devices
Act of 1990, Pub.L. No. 101629, 104 Stat. 4511; and Title VII, 21 U.S.C.
§1701, et seq. Also relevant may be
the National Fire Protection Association Life Safety Code (see 77 Ill.Admin.
Code §200.906).
1. Illinois Nursing Home Care Act
In 1979, the Illinois legislature enacted
the Illinois Nursing Home Reform Act of 1979, Ill.Rev.Stat. (1988), c. 111˝, ¶4151-101, et
seq., which was amended in 1988 to become the Nursing Home Care Act (NHCA),
210 ILCS 45/1-101, et seq. The
legislation, sponsored by Senators Richard M. Daley (D, Chicago) and Lynn
Martin (R, Rockford), went into effect March 1, 1980. The NHCA repealed the old
Homes for the Ill and Physically Infirm Persons Act, which had been in
existence since 1945.
The NHCA provides a legislative scheme
that governs the operations of long-term care facilities in Illinois. The NHCA
expanded the prior legislation in four major areas: (a) it created a residents'
bill of rights; (b) it expanded the enforcement powers of the regulatory
agencies enforcing the provisions of the Act, specifically the Illinois
Department of Public Health (IDPH); (c) it set forth minimum qualifications for
skill levels and training for the nursing assistants and technicians; and (d)
it provided policing powers for community groups, relatives, or friends to
become involved in monitoring the quality of care provided. The NHCA also
extended the enforcement power of the Act to residents by creating a private
right of action. The state agency in charge of the enforcement of the NHCA is
the IDPH.
2. Federal Nursing Home Reform Provisions
of OBRA '87
Federal nursing home reform amendments,
sometimes referred to as the "Nursing Home Reform Act," were enacted
by Congress as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA
'87), Pub.L. No. 100-203, 101 Stat. 1330. 42 U.S.C. §§1395i-3(a) through 1395i3(h)
(Medicare), 1396r(a) - 1396r(h) (Medicaid). Unlike the NHCA, the OBRA '87
amendments do not provide a resident with a private right of action. See also Section
III.A.2. below.
OBRA '87 and the regulations promulgated
thereunder redefined the existing nursing home law by setting forth the
following:
a. the
requirements for participating in the Medicare and Medicaid program;
b. federal
and state compliance procedures; and
c. enforcement
mechanisms.
The federal agency in charge of the
enforcement of the OBRA '87 regulations is the Centers for Medicare and
Medicaid Services (CMS), formerly known as the Health Care Financing
Administration (HCFA) of the U.S. Department of Health and Human Services
(HHS). The OBRA '87 regulations were implemented on September 26, 1991.
The OBRA '87 regulations, like the NHCA,
are numerous and include regulations on all aspects of nursing home care and
services provided. They require the nursing home to provide at a minimum for
"the highest practicable physical, mental, and psychosocial
well-being" of the resident. See 42 C.F.R. §483.25. The OBRA '87 standards
can best be summarized by referring to 42 C.F.R. §§483.25(a) - 483.25(m), which
address 13 specific aspects of care.
B. Definition of "Long-Term Care
Facility"
A "long-term care facility" is
defined as
a private home, institution, building, residence, or
any other place, whether operated for profit or not, or a county home for the
infirm and chronically ill operated pursuant to Division 5-21 or 5-22 of the
Counties Code, or any similar institution operated by a political subdivision
of the State of Illinois, which provides, through its ownership or management,
personal care, sheltered care or nursing for 3 or more persons, not related to
the applicant or owner by blood or marriage. 210 ILCS 45/1-113.
210 ILCS 45/1-124 defines "sheltered
care" as "maintenance and personal care." 210 ILCS 45/1-116
defines "maintenance" as "food, shelter and laundry
services," and 210 ILCS 45/1-120 defines "personal care" as
assistance with meals, dressing, movement, bathing or
other personal needs or maintenance, or general supervision and oversight of
the physical and mental well being of an individual, who is incapable of
maintaining a private, independent residence or who is incapable of managing
his person whether or not a guardian has been appointed for such individual.
To fall within the definition of
"sheltered care," the facility must provide both maintenance and
personal care. The courts have held that a retirement home that provides only
food, shelter, and laundry services is not a "facility" as defined by
the NHCA. People ex rel. Lumpkin v.
Frantz, 306 Ill.App.3d 267, 714 N.E.2d 1068, 239 Ill.Dec. 771 (3d Dist.
1999). The Lumpkin court held that
only when food, shelter, and laundry services are combined with "personal
care" does a facility become a "sheltered care" facility,
thereby coming under the NHCA. Id.
The courts have found that residential
institutions with independent living units for individuals who are capable of
independent living do not fall under the provisions and protections of the NHCA
even when these institutions provide assistance to residents with meals,
dressing, movement, bathing, and other personal needs and services. See Grampp v. Friendship Manor of Illinois
Branch of Kings Daughters & Sons, Inc., 679 F.Supp. 828 (C.D.Ill.
1988). In Grampp, the resident was in
an independent living unit. She received some assistance with meals and
housecleaning but was capable of taking care of herself. Therefore, because of
her self-sufficiency, the court found that she was not protected by the NHCA
because she did not receive "personal care, sheltered care or
nursing" as defined by the Act. Id.
The NHCA does not apply to or govern
institutions that have their own licensing statutes. The NHCA specifically
excludes the following from the definition of "facility":
(1) A
home, institution, or other place operated by the federal government or agency
thereof, or by the State of Illinois, other than homes, institutions, or other
places operated by or under the authority of the Illinois Department of
Veterans' Affairs;
(2) A
hospital, sanitarium, or other institution whose principal activity or business
is the diagnosis, care, and treatment of human illness through the maintenance
and operation as organized facilities therefor, which is required to be
licensed under the Hospital Licensing Act;
(3) Any
"facility for child care" as defined in the Child Care Act of 1969;
(4) Any
"Community Living Facility" as defined in the Community Living
Facilities Licensing Act;
(5) Any
"community residential alternative" as defined in the Community
Residential Alternatives Licensing Act;
(6) Any
nursing home or sanatorium operated solely by and for persons who rely
exclusively upon treatment by spiritual means through prayer, in accordance
with the creed or tenets of any well-recognized church or religious
denomination. However, such nursing home or sanatorium shall comply with all
local laws and rules relating to sanitation and safety;
(7) Any facility licensed by the Department
of Human Services as a community-integrated living arrangement as defined in
the Community-Integrated Living Arrangements Licensure and Certification Act;
(8) Any
"Supportive Residence" licensed under the Supportive Residences
Licensing Act;
(9) Any
"supportive living facility" in good standing with the demonstration
project established under Section 5-5.01a of the Illinois Public Aid Code;
(10) Any
assisted living or shared housing establishment licensed under the Assisted and
Shared Housing Act; or
(11) An
Alzheimer's disease management center alternative health care model licensed
under the Alternative Health Care Delivery Act. 210 ILCS 45/1-113.
C. Long-Term Care Management
1. Nursing Home Administrator
The NHCA defines the
"administrator" as the person who is charged with the general administration
and supervision of the facility. 210 ILCS 45/1-105. All long-term care
facilities are required to have a licensed nursing home administrator. 77 Ill.Admin.
Code §300.510. Pursuant to the Nursing Home Administrator's Licensing
Disciplinary Act, 225 ILCS 70/1, et seq.,
the administrator is the person who is directly responsible for planning,
organizing, directing, and supervising the operations of the nursing home.
2. Director of Nursing
Each skilled nursing facility is required
to have a director of nursing services (DON) who is a registered nurse. 77 Ill.Admin.
Code §300.1220. Each intermediate care facility is required to have a director
of nursing who is either a registered nurse or a licensed practical nurse. Id. The DON is charged with overseeing
the nursing services of the facility, including (a) assigning and directing the
activities of the nursing service personnel; (b) overseeing the comprehensive
assessment of the residents' needs; (c) planning an up-to-date resident health
care plan for each resident; (d) recommending to the administrator the number
and levels of nursing personnel to be employed; (e) participating in planning
for budgeting in nursing services; (f) developing and maintaining nursing
services' objective standards of nursing practice, written policies and
procedures, and written job descriptions for each level of nursing personnel;
(g) coordinating health services and nursing services with other resident care
services; (h) planning in-service education and orientation training; (i)
participating in the development and implementation of resident care policies; (j)
bringing resident care problems requiring changes in policy to the attention of
the facility policy development group; and (k) participating in the screening
of perspective residents and their placement in terms of services at the
facility. Id.
3. Director of Food Services
Each facility is required to have a
director of food services who is either a dietitian or a dietetic service
supervisor who is responsible for the food services. If the director of food
services is not a dietitian, the person shall have frequent and regularly
scheduled consultations from a dietitian consultant. 77 Ill.Admin. Code §300.2010.
4. Medical Director
Under federal guidelines, a facility must
appoint a medical director. 42 C.F.R. §483.75. The medical director assists in
the development of policies and procedures at the facility, participates in the
quality assurance committee, and, if available, assists in medical emergencies.
The medical director serves as an advisor to the administrator and/or DON. The
role of the medical director is administrative. Excluding an emergency
situation, the medical director does not provide medical care to the residents
in the capacity of medical director.
5. Physicians
A facility is not licensed to provide
physician services. However, the facility must ensure that each resident is
under the care of an attending physician and that formal arrangements to
provide for medical and behavioral emergencies at all times are in place. 77 Ill.Admin.
Code §390.1030.
6. Nursing Staff
The nursing staff consists of registered
nurses, licensed practical nurses, and certified nursing assistants. Each
facility establishes its own administrative framework; however, each facility usually
designates a nursing supervisor or charge nurse for each shift depending on the
size of the facility. See 77 Ill.Admin. Code §300.1210, et seq., for the state regulations regarding nursing service.
7. Social Service
All facilities licensed for more than 120
beds must employ a full-time qualified social worker. 42 C.F.R. §483.15(g)(2).
II. PARTIES TO LAWSUIT
A. Plaintiff
If the resident is alive and does not have
a power of attorney or an appointed legal representative, the resident is
usually the plaintiff. If the resident has a legally appointed representative,
the suit will be brought in the name of the representative. If the resident is
deceased, then the matter is brought on behalf of his or her estate.
B. Defendant
Nursing homes are sued in the name of the
licensee and/or owner of the facility: The holder of the license is referred to
as the "licensee," which, under 210 ILCS 45/1-115, is defined as
"the individual or entity licensed by the [IDPH] to operate the
facility."
210 ILCS 45/1-119 defines the
"owner" as
the
individual, partnership, corporation, association or other person who owns a
facility. In the event a facility is operated by a person who leases the
physical plant, which is owned by another person, "owner" means the
person who operates the facility, except that if the person who owns the
physical plant is an affiliate of the person who operates the facility and has
significant control over the day-to-day operations of the facility, the person
who owns the physical plant shall incur jointly and severally with the owner
all liabilities imposed on an owner under this Act.
The NHCA recognizes that there can be more
than one owner of a facility. Often the facility is operated by one entity that
leases the physical plant from another entity that owns the physical property
of the facility. If there is no connection between these entities, then the
operator is considered the owner. However, if the person or entity who owns the
physical plant has some type of affiliation with the operator, then both
entities are jointly and severally liable. 210 ILCS 45/1-119.
Liability for violations of the NHCA can
be imposed only on the owner or licensee of the facility, not on an individual
employee. 210 ILCS 45/3-601. See also Wills
v DeKalb Area Retirement Center, 175 Ill.App.3d 833, 530 N.E.2d 1066, 125 Ill.Dec.
657 (2d Dist. 1988). The NHCA specifically provides that "the owner and
the licensee are liable to a resident for any intentional or negligent act or
omission of their agents or employees which injures the resident." 210
ILCS 45/3-601. The courts have interpreted this provision as protecting
individual nursing home employees from liability for civil damages for
violations of the NHCA. In an effort to protect the facility being named as a
defendant in a lawsuit, most long-term care facilities have created very
complex corporate structures regarding the ownership and operation of the
facility. It is not unusual for nursing homes to be a part of large
conglomerates. It is always important for defense counsel to determine if the
facility is owned by a parent corporation. An extensive review of public
records is recommended in order for the parties to determine the entities
involved and whether the entities sued have any liability exposure. Before
filing an appearance or answer, defense counsel should verify that the proper
entity was sued. It is recommended that defense counsel work closely with the
facility's corporate counsel or risk manager in this regard.
III. CAUSES OF ACTION
A. Theories of Liability
1. NHCA
The private right of action is one of the
most significant provisions of the NHCA. It gives Illinois nursing homes
residents whose rights pursuant to the NHCA have been violated a private
statutory cause of action for "actual damages and costs and attorney's
fees." 210 ILCS 45/3-602. Harris v.
Manor Healthcare Corp., 111 Ill.2d 350, 489 N.E.2d 1374, 95 Ill.Dec. 510
(1986). The NHCA also gives the resident the right to seek other redress from
the court such as injunctive and declaratory relief (210 ILCS 45/3-603) and the
right to bring a class action (210 ILCS 45/3-604). Any waiver of the resident's
right to commence an action is null and void (210 ILCS 45/3-606), as is any
waiver of the resident's right to a trial by jury (210 ILCS 45/3-607). 210 ILCS
45/3-608 prohibits retaliation against a resident who brings or testifies in an
action.
Residents also have a private right of
action for violations of their rights set forth in the "resident's bill of
rights" (210 ILCS 45/2-101, et seq.).
210 ILCS 45/3-602. Many of the provisions in the Illinois NHCA resident's
rights provisions, which apply only to facilities funded through the Medicaid
and Medicare programs, mirror the federal Bill of Rights. The resident's bill
of rights does not set forth quality-of-care provisions; rather, it focuses on
residents' rights of privacy and confidentiality. Many of the rights are basic
rights afforded to all citizens. The most litigated provisions of the
resident's bill of rights are the right to be free from abuse and neglect (210
ILCS 45/2-107) and the right to be free from restraints (210 ILCS 45/2-106).
The NHCA guarantees that all residents
have the following rights:
a. No
resident may be deprived of any rights, benefits, or privileges guaranteed by
law or the Illinois or U.S. Constitution solely on account of his or her status
as a resident of a facility. 210 ILCS 45/2-101.
b. All
new residents and their spouses must be informed upon admittance of their
spousal impoverishment rights as defined in Illinois Public Aid Code (305 ILCS
5/5-4) and in 42 U.S.C. § 1396r-5. 210 ILCS 45/2-101.1.
c. All
residents have the right to manage their own financial affairs. 210 ILCS
45/2-102.
d. All
residents have the right to use and wear their own personal property and to
have adequate storage space for such property. If any items of personal
property are missing, the facility must initiate an investigation. 210 ILCS
45/2-103.
e. All
residents have the rights to retain the services of their own personal
physicians at their own expense; to obtain complete and current information
regarding medical diagnosis, treatment, and prognosis in terms they can
understand; to participate in the planning of their total care and medical
treatment; and not to be subjected to experimental medical treatment and
research. 45 ILCS 45/2-104(a).
f. Residents
have the right to have all medical treatment and procedures administered as
ordered by a physician. 210 ILCS 45/2-104(b).
g. Every
resident shall be permitted to refuse medical treatment and to know the
consequences of that action unless the refusal would be harmful to the health
and safety of others and the harm is documented by a physician in the
resident's clinical record. 210 ILCS 45/2104©.
h. Every
resident (or a parent or guardian) must be permitted to inspect and copy all
clinical or other records concerning his or her care and maintenance. 210 ILCS
45/2-104(d).
i. All
facilities are required to have a policy for the implementation of physicians'
orders limiting resuscitation methods. 210 ILCS 45/2-104.2.
j. Residents
have the right to privacy in their medical and personal care program. 210 ILCS
45/2-105.
k. All
residents have the right to be free from physical and chemical restraints. No
physical restraints may be used on a resident unless ordered by a physician.
210 ILCS 45/2-106.
l. Residents
have the right not to be given unnecessary drugs. 210 ILCS 45/2-106.1.
m. A
resident identification wristlet may not be used without a physician's order
documenting its necessity. 210 ILCS 45/2-106a.
n. All
residents have the right to be free from abuse and neglect. 210 ILCS 45/2-107.
(Note that 210 ILCS 45/3-601 requires that all nursing home employees or agents
who become aware of abuse or neglect must report it to the facility
administrator. The administrator must report it to the resident's
representative or to the IDPH.)
o. Residents
have the right to conveniently receive and mail correspondence and to have
reasonable access to telephones; to have private visits at any reasonable hour
unless not medically advisable and to have space for such visits; to have
facility personnel knock, except in an emergency, before entering their room;
and to have unimpeded, private, and uncensored communication by mail, public
telephone, and visitation unless reasonably restricted by a physician. 210 ILCS
45/2-108. In addition, married residents have the right to be placed in the
same room unless there is no room available in the facility or it is deemed
medically inadvisable by the residents' attending physician and so documented
in the residents' medical records. Id.
p. Residents
must be permitted the free exercise of religion. 210 ILCS 45/2-109.
q. Any
employee or agent of a public agency, any representative of a community legal
services program, or any other member of the general public must be permitted
access at reasonable hours to any individual resident of any facility as long
as there is no commercial purpose or effect to such access and the access is
for any of certain specified purposes. 210 ILCS 45/2-110.
r. A
resident has the right to be discharged from a facility after giving the
administrator, a physician, or a nurse of the facility written notice of his or
her desire to be discharged. 210 ILCS 45/2-111.
s. A
resident shall have the right to present grievances to the facility without the
fear of retaliation. 210 ILCS 45/2-112.
t. The
resident may not be compelled to perform labor for a facility. 210 ILCS
45/2-113.
Not only does the NHCA grant certain
rights to the resident, but it also holds the facility responsible for
protecting the resident's rights. 210 ILCS 45/2-201, et seq. The NHCA requires the facility to take certain steps to
ensure that the residents' rights are not infringed and provides that all
residents shall be given a written explanation of their rights enumerated in
the Act "at the time of admission to a facility or as soon thereafter as
the condition of the resident permits, but in no event later than 48 hours
after admission, and again at least annually thereafter." 210 ILCS
45/2-211. The nursing home is required to specify in the nursing home contract
the rights, duties, and obligations of the resident, except that the
specification of a resident's rights may be furnished on a separate document
that complies with the requirements of §2-211. 210 ILCS 45/2202(g)(6).
2. OBRA '87 Provisions
Unlike the NHCA, the OBRA '87 provisions
do not provide a private right of action. See Nichols v. St. Luke Center of Hyde Park, 800 F.Supp. 1564 (S.D.
Ohio 1992) (Title IX of the Social Security Act (42 U.S.C. § 1396r) does not
create private right of action enforceable against private nursing homes for
violations of its provisions); Illinois
Hospital Association v. Edgar, 765 F.Supp. 1343 (N.D.Ill. 1991) (private
right of action does not exist against Secretary of HHS for alleged violation
of waiver provision of 42 U.S.C. § 1396a(a)(13)(A) allowing states to develop
programs for reimbursement of medical expenses).
3. Common Law Negligence and the Standard
of Care
The standard of care that nursing homes
are held to is set forth in Stogsdill v.
Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (2d Dist.
1976). The Stogsdill court held:
The
proprietors of a convalescent home, somewhat like those of a private hospital,
are under a duty to exercise reasonable care to avoid injury to patrons, and
the reasonableness of such care is to be assessed in the light of the patron's
physical and mental condition. 343 N.E.2d at 610.
In addition to proving that the facility's
conduct fell below the requisite standard of care, the plaintiff must show that
the conduct was the proximate cause of the harm suffered by the resident. The Stogsdill court also set forth that the
facility could allege the defense of contributory negligence. Contributory
negligence is conduct by the resident that falls below the standard to which
the resident should conform for his or her own protection and that is the
proximate cause of the harm suffered by the resident. The facility has the
burden of proving contributory negligence. The Stogsdill court noted that in regards to the typical nursing home
resident, the standard for contributory negligence and/or assumption of the
risk is a very subjective and relaxed standard. Id.
Each case should be reviewed to determine
whether the defense of contributory negligence should be raised. Since many
residents are disabled, it is usually a little more difficult to raise this
defense in long-term care cases. Defense counsel should evaluate the jury
appeal of a negligence defense before filing.
In situations in which the resident has
some mental incapacity but has not been found formally to be mentally ill or
incapacitated, whether the person was capable of contributory negligence is a
question for the jury. Biundo v. Christ
Community Hospital, 104 Ill.App.3d 670, 432 N.E.2d 1293, 60 Ill.Dec. 394
(1st Dist. 1982). In Biundo, the
plaintiff alleged negligence against the hospital for the death of the patient,
who jumped from his hospital window because of excessive postoperative pain. Id.
The following is a list of allegations
related to contributory negligence that defense counsel should consider:
a. failure to follow
physician's orders and advice;
b. failure to report
symptoms;
c. failure to follow
through with recommended treatment;
d. refusal of treatment (Newell v. Corres, 125 Ill.App.3d 1087,
466 N.E.2d 1085, 81 Ill.Dec. 283 (lst Dist. 1984) (refusal of treatment by
competent adult patient fully cognizant of potential consequences of refusal
after physician advises on reasonableness of necessity of preferred treatment
is defense to charge of malpractice resulting from physician's failure to give
treatment);
e. failure to obtain a
second opinion; and
f. assumption of the
risks, which occurs when a resident assumes the risk of harm from the negligent
conduct of the facility defendant (e.g.,
when in the absence of an emergency a resident calls for assistance and the
facility does not answer the call within a reasonable period of time (i.e., in less than a couple of minutes)
and the resident attempts to get out of bed and injures himself or herself.
4. Breach of Contract
Nursing home residents are able to bring a
cause of action against a nursing home for breach of contract. The Illinois
Administrative Code provides residents the right to contract with the facility.
77 Ill.Admin. Code §§300.630, 300.3280. Further, the Nursing Home Care Act
provides that a resident is able to bring a cause of action for the violation
by the facility of any of the rights of a resident under Part 1 of Article II
of the Act (210 ILCS 45/3-602), and §2-101 of the NHCA provides that no
resident shall be deprived of a right guaranteed by law simply because he or
she is a resident of a nursing home. Thus, the right to contract is a right
guaranteed by the IDPH and by law (except, of course, in cases of
incompetency). A resident of a nursing home is able to sue the facility for
breach of contract as long as the resident can make the proper allegations for
breach of contract, evidence of a contract, plaintiff's performance of all
conditions under the contract, defendant's breach, and existence of damages as
a result of the breach. Berg &
Associates, Inc. v. Nelson Steel & Wire Co., 221 Ill.App.3d 526, 580
N.E.2d 1198, 162 Ill.Dec. 779 (1st Dist. 1991) (delineating pleading
requirements for breach of contract). One count of the complaint in Harris v. Manor Healthcare Corp., 111 Ill.2d
350, 489 N.E.2d 1374, 95 Ill.Dec. 510 (1986), sounded in breach of contract;
however, the matter was appealed to the Illinois Supreme Court for reasons of
constitutionality.
5. Consumer Fraud
The authors' research has presented no
cases in Illinois in which a resident has alleged violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), 815
ILCS 505/1, et seq. To state a claim
under the Consumer Fraud Act, the plaintiff must allege a deceptive act or
unfair practice, intent on the defendant's part, reliance by the plaintiff on
the deception, and occurrence of the deception during trade or commerce. Saunders v. Michigan Avenue National Bank, 278
Ill.App.3d 307, 662 N.E.2d 602, 214 Ill.Dec. 1036 (1st Dist. 1996). Of import
is whether the cause of action implicates consumer protection concerns. If a
cause of action were pursued against a facility based on the Consumer Fraud
Act, the cause of action against the facility would most likely sound in
contract. Illinois courts have held that when a plaintiff attempts to allege a
violation of the Consumer Fraud Act in a case that on its face appears to
involve a breach of contract, the relevant inquiry is whether the alleged
conduct implicates consumer protection concerns. Scarsdale Builders, Inc. v. Ryland Group, Inc., 911 F.Supp. 337 (N.D.Ill.1996).
Please note Ardt v. State, 292 Ill.App.3d 1059, 687 N.E.2d 126, 227 Ill.Dec.
203 (1st Dist. 1997), which analogizes the attorneys' fees provision of the
NHCA to the fees provision in the Consumer Fraud Act.
6. Survival Statute and Wrongful Death Act
The survival statute, 755 ILCS 5/27-6, and
the Wrongful Death Act, 740 ILCS 180/0.01, et
seq., are similar, so Illinois case law examines these statutes together
much of the time. The distinction between the causes of action is that a
survival action allows for recovery of damages for injury sustained by a
decedent up to the time of death, whereas the wrongful death action allows a
decedent's next of kin to recover damages for their loss based on wrongful
actions of another that were committed against the decedent. Damages in a
wrongful death action do not accrue until after death and address injuries
suffered by the next of kin due to loss of the decedent. The survival statute
maintains a cause of action that accrued to the decedent, so under it a cause
of action is brought on behalf of the estate. Kaufman v. Cserny, 856 F.Supp. 1307 (S.D.Ill.1994).
Wills
v. DeKalb Area Retirement Center, 175
Ill.App.3d 833, 530 N.E.2d 1066, 125 Ill.Dec. 657 (2d Dist. 1988), examined the
Wrongful Death Act and the survival statute in relation to the NHCA. The court
specifically held that the NHCA allowed actions, including actions for punitive
damages, under the survival statute, but since the NHCA allowed for treble
damages, the estate could not also recover for common law punitive damages
under the survival statute. The court further held that a Wrongful Death Action
could be maintained against the facility based on the allegations of the
complaint; however, since the Wrongful Death Act does not include a provision
for punitive damages, the court would not expand the legislature's intent.
Thus, a claim for wrongful death based on the alleged negligent acts of the
nursing home would stand but a claim for punitive damages would not. See also Lloyd v. County of DuPage, 303 Ill.App.3d
544, 707 N.E.2d 1252, 236 Ill.Dec. 682 (2d Dist. 1999) (complaint adequately
pled wrongful death cause of action against nursing home facility).
7. Negligent Hiring, Supervision, and
Retention
In Illinois, there is no case law that
examines the issue of negligent hiring in a nursing home situation. However, in
Starr v. Leininger, 198 Ill.App.3d
622, 556 N.E.2d 266, 144 Ill.Dec. 799 (3d Dist. 1990), the estate of a deceased
nursing home resident brought a cause of action against the home to recover the
value of a ring stolen by a home employee. The plaintiff argued that the
facility was liable for the property damage under the theory of respondeat
superior for negligent hiring practices, among other violations of the Nursing
Home Care Act. The appellate court determined that although the facility may be
liable for the negligent, willful, or even criminal acts of its employees when
such acts are committed in the course of employment and in the furtherance of
the business of the employer, the employer is not liable to an injured party
when the acts were committed solely for the benefit of the employee. Thus, in Starr, the appellate court decided that
the facility could not be held responsible for the theft by an employee.
Significantly, the Starr court
further limited the definition of "injury" under §3-601 of the NHCA
to personal injuries, which did not include the theft of a ring.
Although seemingly the NHCA does not
provide liability for negligent hiring, it still is possible to assert a cause
of action for negligent hiring outside of the Act. To assert a cause of action
for negligent hiring, a resident must allege and prove (a) that the employer
knew or should have known that the person hired had a particular unfitness for
the job that would create a foreseeable danger to others and (b) that this
particular unfitness was the proximate cause of the plaintiff's injury. Strickland v. Communications & Cable of
Chicago, Inc., 304 Ill.App.3d 679, 710 N.E.2d 55, 237 Ill.Dec. 632 (1st
Dist. 1999). Strickland does note
that the NHCA protects residents from the criminal acts of employees of a
facility; however, it does not state that the Act provides a cause of action
for negligent hiring. See Section V.A.2.h. below for more discussion.
8. Healing Art Malpractice
Section 2-622 of the Code of Civil
Procedure, 735 ILCS 5/2-622, sets forth the requirement that all complaints of
medical negligence be accompanied with a written report of a health care
professional. This provision, which was enacted ten years after the Nursing
Home Care Act, also limits the amount of attorneys' contingent fees that can be
recovered and bars the recovery of punitive damages. The NHCA through the
private right of action provision encourages litigation. Based on this conflict
between the statutes, many plaintiffs' attorneys take the position that §2-622
does not apply in a nursing home case.
The Fourth District Appellate Court is the
first court to address this issue. In Eads
v. Heritage Enterprises, Inc., No. 4-99-0954, 2001 WL 1145161 (4th Dist.
Sept. 26, 2001), an appeal was taken pursuant to Illinois Supreme Court Rule
308. The certified question presented was
In a case
where the [p]laintiff has sued a nursing home for injuries sustained as a
result of alleged violations by the nursing home, its staff[,] and employees,
of the [Nursing Home Act] and the regulations promulgated pursuant thereto [77
II1.Adm.Code § 300 et seq. (West
2001)], is the [p]laintiff required to comply with the mandate of [section
2-622 of the Code]? 2001 WL 1145161 at *2.
The Eads court discussed the conflicts in
the statutes noted above and found that the Nursing Home Care Act was more
specifically applicable to the facts of the case before it and therefore
controlled over §2-622 of the Code of Civil Procedure. Since the Nursing Home
Care Act applied, the plaintiff was not required to file a §2-622 certificate.
The specific acts of negligence alleged in
Eads were that the defendants failed to
l. adequately supervise
plaintiff's activity;
2. ensure that she did not
walk without assistance;
3. respond to her call
light when she requested assistance;
4. equip her bed with a
pressure release to alert staff that Eads had risen from her bed; and
5. adequately staff the
facility to ensure appropriate assistance would be provided.
The defendants, i.e., the nursing home and its owners, moved to dismiss Eads'
amended complaint arguing that her claim sounded in "healing art
malpractice." The trial court granted defendants' motion and dismissed
Eads' amended complaint allowing her leave to amend. Eads chose instead to seek
an interlocutory review under S.Ct. Rule 308, and the appeal was allowed.
The court construed a conflict in the
statutes, i.e., that the Nursing Home
Care Act encourages litigation against owners and licensees of a nursing home
for the protection of nursing home residents, while §2-622 discourages
litigation in the area of medical malpractice.
Eads contended that the portions of the Nursing Home Act
that outline residents' rights, the liability of the owner/licensee, and damage
recovery implied that all negligence-type actions, including healing art
malpractice, could be pled under the Nursing Home Care Act. Since the Nursing
Home Care Act did not require a physician's certificate to initiate any type of
suit, any action brought under the
Nursing Home Care Act did not require such a certificate.
The Eads
majority found an irreconcilable conflict between the Nursing Home Care Act and
§2-622 by concluding that §2-622's requirement of the pre-suit determination by
an expert that a cause of action is meritorious is an unreasonable burden on
those who have a private right of action under the Nursing Home Care Act.
The majority opinion goes on to determine
that the Nursing Home Care Act was more specifically applicable to the facts in
the case before it and therefore controlled over §2-622.
Since the Nursing Home Care Act controlled
and it does not require that a certificate be filed, the majority opinion held
that no certificate was necessary in order for the plaintiff to proceed on its
amended complaint.
Presiding Justice Steigmann dissented,
noting that the plain language of §2-622 stated that it was to apply to "any action where damages are sought for
injuries resulting from medical, hospital, or other healing art
malpractice." [Emphasis in original.] 2001 WL 1145161 at *7. Further,
Justice Steigmann noted that §1-108(b) of the Code provides that in matters in
which the "procedure is regulated by statutes other than those contained
in this [a]ct, such other statutes control to the extent to which they regulate
procedure but [a]rticle II of this [a]ct applies to matters of procedure not regulated by such other statutes."
[Emphasis added by Justice Steigmann.] 2001 WL 1145161 at *8.
Justice Steigmann points out that the
Nursing Home Care Act contains no provision regulating pleadings; therefore, he
concludes that there is no conflict in the Nursing Home Care Act and §2-622 of
the Code.
According to Justice Steigmann, the
relevant provisions of the Nursing Home Care Act and §2-622 of the Code are not
in conflict and therefore if a- healing art malpractice claim arises in a
facility covered by the Nursing Home Care Act, § 1-108b) of the Code governs
and plaintiffs in those circumstances should be required to conform with the
pleading requirements of §2-622 of the Code.
Justice Steigmann also notes that the
certified question is very broad and majority opinion does not do a
fact-specific analysis to determine whether a particular claim falls within the
purview of the term "healing art malpractice."
Justice Steigmann does conclude that the
allegations regarding defendants' lack of care and supervision in allowing the
resident to fall did involve issues that were "inherently medical"
and therefore the plaintiff's claim did sound in healing art malpractice and he
would require that the plaintiff conform to the pleading requirements set forth
in §2-622 of the Code.
As of this writing, there is a petition
for leave to appeal pending before the Illinois Supreme Court.
Eads notwithstanding, defense counsel should continue to
ask the court to require that a case for healing art malpractice brought under
the Nursing Home Care act comply with §2-622.
Other cases that defense counsel should
review on this topic include Owens v.
Manor Health Care Corp., 159 Ill.App.3d 684, 512 N.E.2d 820, 111 Ill.Dec.
431 (4th Dist. 1987), and Kolanowski v.
Illinois Valley Community Hospital, 188 Ill.App.3d. 821, 544 N.E.2d 821,
136 Ill.Dec. 135 (3d Dist. 1989) (distinguishing Owens and requiring §2-622 affidavit due to fact that resident was
receiving skilled care), Taylor v. City
of Beardstown, 142 Ill.App.3d 584, 491 N.E.2d 803, 96 Ill.Dec. 524 (4th
Dist. 1986) (court determined that failure to provide bed rail restraints
involved medical judgment of plaintiff's condition), and Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343
N.E.2d 589 (2d Dist. 1976) (pre-Act case finding medical judgment was required
for nursing care provided to monitor ulcers on ankles).
9. Liability
a. Strict Liability
The NHCA, in contradiction to common law
agency principles, imposes strict liability for both intentional and negligent
torts. Specifically, 210 ILCS 45/3-601 states:
The owner
and licensee are liable to a resident for any intentional or negligent act or
omission of their agents or employees which injures the resident.
b. Actual Agency
In order to establish an actual agency
relationship in a hospital setting case, it must be shown that the hospital
exercised control over the physician's treatment decisions and diagnosis. The
courts look to see whether the hospital had any control over the way the physician
performed the following functions:
1. conducting the medical examination;
2. taking the medical history;
3. evaluating the patient's condition;
4. prescribing medications;
5. ordering tests;
6. determining what consultant to call in;
and
7. making a medical diagnosis.
c. Apparent Agency
The NHCA holds the facility harmless for
the negligence of the resident's personal physician. See 210 ILCS 45/2-104.
According to both federal and state law, long-term nursing care facilities as
institutions are not licensed to provide physician services and in fact are
prohibited from doing so. Despite these provisions, plaintiff's counsel may
attempt to impose liability on the facility for the physician's negligence
through the theory of apparent agency. The federal and state regulations and
many of the long-term care documents address the relationship between the
facility and the presiding physician and can be used by either the plaintiff or
the defendant to establish an apparent agency relationship. The regulations that
address this issue include the Medical Practice Act of 1987, 225 ILCS 60/1, et seq.; the Nursing and Advanced
Practice Nursing Act, 225 ILCS 65/5-1, et
seq.; the OBRA '87 regulations; the NHCA; and the IDPH regulations. Other
documents that should be reviewed when faced with an apparent agency issue
include the long-term care facility contract with the resident, the documents
granting privileges to the attending physicians to practice at the facility,
and brochures and advertisements.
Apparent agency flows from the acts of a
principal and arises when, by words or conduct, the principal creates the
reasonable impression in a third party that the agent has the authority to
perform a certain act on its behalf. When establishing the relationship of
apparent agency, the key element to be satisfied is justifiable reliance on the
part of the plaintiff on a representation made by the principal or agent.
10. Other Forms of Liability
A violation of NHCA regulations may
subject the violator (licensee) to other sanctions imposed by the Illinois
Department of Public Health. Violations may be of three basic types:
Type
A violation. A “Type ‘A’ violation”
means a violation of the NHCA or of the rules promulgated thereunder that
creates a condition or occurrence relating to the operation and maintenance of
a facility presenting a substantial probability that death or serious mental or
physical harm to a resident will result therefrom. 210 ILCS 45/1-129.
Type
B violation. A “Type ‘B’ violation”
means a violation of the NHCA or of the rules promulgated thereunder that
creates a condition or occurrence relating to the operation and maintenance of
a facility directly threatening to the health, safety, or welfare of a
resident. 210 ILCS 45/1-130.
Administrative
warning. If the IDPH finds a
situation, condition, or practice that violates the NHCA but does not directly
threaten the health, safety, or welfare of a resident, an administrative
warning shall be issued. 210 ILCS 45/3-303.2.
Criminal penalties exist only for an
intentional failure to correct Type A or Type B violations within the time
specified in the notice of approved plan of correction, not for the original
violation. People v. Gurell, 98 Ill.2d
194, 456 N.E.2d 18, 74 Ill.Dec. 516 (1983).
11. Other Remedies
Section 3-601 of the NHCA holds the owner
of the facility as well as the licensee liable for any intentional or negligent
act or omission of their agent or employees that injures a resident.
Section 3-603 of the Act permits a
resident to maintain an action under the Act for any other type of relief,
including injunctive and declaratory relief.
Section 3-604 of the Act allows class
actions for violations of rights.
Section 3-701 provides that the operation
or maintenance of a facility in violation of the Act is a public nuisance that
may be enjoined.
Section 3-714 provides that remedies
provided by the Act are cumulative and do not restrict a party from seeking any
other remedy.
B. Typical Cases and Defenses
1. Fall Cases
Fall cases are the most prevalent type of
cases. Most of these cases involve allegations of failure to assist and attend,
failure to use or improper use of a restraint, or failure to properly use side
rails.
a. Allegations
(1) Failure to assist and
attend
One of the most common allegations of
negligent care is the failure to assist and attend a resident. A typical case
is one in which the resident suffers injury after falling when the resident had
been designated as in need of assistance or was known to be recovering from a
procedure. Other typical cases include allegations that the nursing home failed
to recognize that the resident required assistance with ambulation or needed to
be restrained. These types of cases usually involve occurrences in which the
resident is injured while undressing or using toilet facilities. Other
situations include allegations that the facility failed to answer a call for
assistance in a reasonable time frame.
(2) Failure to properly use a restraint
Cases involving falls usually concern
allegations of lack of supervision after the resident has been left
unrestrained and/or unattended in a chair, wheelchair, or Geri-chair.
Allegations of injury involving a fall also occur when a resident is injured
while being transferred with the assistance of the facility staff.
(3) Failure to properly use side rails
Cases involving falls from bed often
involve mixed allegations of failure to restrain, failure to supervise, failure
to use side rails, and failure to assist and attend. In some of these cases,
the resident had some type of restraint but the allegations state that the
partial restraint was inadequate.
b. Defenses
The following are potential defenses to
the various allegations in fall cases:
·
Federal and state
regulations prohibit the use of restraints except as necessitated by the medical
condition of the resident and as ordered by the physician.
·
The facility
complied with federal and state regulations and the facility's policies and
procedures manual.
·
There was no
order for a restraint by the physician, or, in the alternative, if there was an
order, the circumstances at the time of the occurrence did not permit the use
of a restraint.
·
The family and/or
resident did not give the appropriate permission for the use of restraints.
(Documents supporting this defense are usually found in the resident's
acknowledgment of receipt of the resident's bill of rights, the contract, and
the resident's business file.)
·
The resident had
a history and tendency of falling that was addressed in the resident's care
plan, which included an overview and assessment of the resident's condition.
·
Reasonable procedures
were used to prevent the fall while still allowing the resident the least
restricted environment.
·
The resident was
receiving adequate assistance from the facility staff and transferring when the
accident occurred.
·
If the fall was
caused by equipment malfunction, the equipment was properly maintained and had
no prior history of a malfunction.
2. Injuries Due to Use of Restraints
a. Allegations
Cases involving injuries due to use of
restraints involve allegations of failure to properly apply the restraint or
follow the doctor's order regarding the restraint. The most common type of case
is one in which the resident strangles or severely injures himself or herself
in the restraint.
b. Defenses
The following are possible defenses to
restraint injury cases:
·
The restraint was
ordered by a physician, and the order and physician's notes document the
justification for the restraint order.
·
The restraint
ordered was appropriate for the resident's condition and/or personal safety.
·
The restraints
were checked and released on a regularly scheduled basis in conformance with
the physician's order.
·
All federal/state
regulations relative to restraint use were complied with.
·
The regulations
prohibit a facility to utilize restraints for convenience.
·
Restraints may be
used only to treat medical symptoms.
·
The regulations
require that if a restraint is needed, the facility must use the least
restrictive restraint.
·
The type of
restraint used by the facility was in conformance with the physician's order
for the restraint.
·
The restraint was
properly applied and in conformance with the physician's order.
·
The staff was
trained in the proper application of the restraint use and monitoring.
·
The need for the
restraint was addressed in the care plan and authorized by the resident and/or family.
·
Even if the
restraint were properly applied, injury would have occurred to the resident if
the resident loosened portions of the restraint (which can be established
through expert testimony).
3. Wandering Resident Cases
a. Allegations
Wandering resident cases include
allegations that the facility negligently allowed the resident to wander or
escape from the facility unattended or unnoticed and failed to take proper
precautions to protect the resident's safety.
b. Defenses
Possible defenses to wandering resident
cases include the following:
·
Without a
physician's order prohibiting the resident from moving about the facility
and/or outside the facility, the facility was prohibited by federal and state
regulations from making such prohibitions.
·
The facility is
not required to have one-on-one nursing care or a one-on-one nursing attendant
to follow the resident at all times.
·
Federal and state
regulations and the fire code prohibit exit doors from being locked from the
inside.
·
There must be a
physician's order detailing the need to put the resident on a locked wing in a
facility.
·
The resident had
no prior history of wandering that would put the resident at risk of hurting
himself or herself.
·
The facility had
taken precautions to prevent the resident from harming himself or herself while
moving about the facility.
·
It is more
favorable for the resident to move about the facility unrestricted (which can
be established through expert testimony).
·
The facility had
installed an alarm system that was in good working order.
·
The facility had
a resident monitoring device that triggered exit alarms.
·
The Alzheimer's
unit had a coded exit panel.
·
The facility had
recognized any potential for wandering in the care plan and implemented
appropriate responsive action to prevent harm to the resident.
·
The facility had
alerted staff to the potential of any type of wandering and had trained staff
to look out particularly for residents who were more mobile than others.
·
The staff had
checked the whereabouts of the resident on a routine basis and then notified
the facility immediately if the patient's location could not be ascertained.
·
The facility had
at the doorway a picture board with pictures of residents who were known to
leave the facility on a routine basis.
4. Suicide and Attempted Suicide Cases
Cases against facilities for a resident's
suicide or attempted suicide usually are brought against ICF/MI-designated
facilities. These types of facilities are delegated to care for residents who
are mentally ill. Most of these facilities have a psychiatrist on staff.
a. Allegations
These cases are relatively rare but
usually involve failure to note suicidal tendencies, failure to follow the
doctor's recommendations regarding restraints or surveillance, or some defect
in maintenance of the premises such as unlocked windows in a unit that is
located on an upper floor.
b. Defenses
Common defenses to these cases are that
the physician did not diagnose suicidal tendencies and that the premises were
safe and conformed to all regulations.
5. Decubitus Ulcer Cases
a. Allegations
With regard to decubitus ulcers, the
plaintiff usually alleges that the facility failed to properly monitor, care
for, and render treatment for the ulcers. Many residents are admitted with no
skin breakdown or a minimal amount of skin breakdown. During their stay, as
their preexisting medical conditions progress, the residents' skin integrity
deteriorates and they develop more ulcers, which are classified in four
different stages. Due to the nature of the skin breakdown, this type of case
creates a lot of jury appeals.
b. Defenses
Potential defenses in decubitus cases
include the following:
·
Due to the
resident's preexisting condition, development of decubitus ulcers was inevitable.
(The prior medical records, facility chart, physician records, and expert
testimony should be utilized to develop this defense. Diabetes, pneumonia,
vascular disease, and paralysis are conditions that put a resident at high risk
of developing skin breakdown.)
·
The facility
complied with federal and state regulations and with the facility's policies
and procedures manual.
·
The facility
engaged in all appropriate preventative measures.
·
The potential for
skin breakdown was addressed in the care plan.
·
The resident was
properly hydrated (which preferably will be established thorough recorded
intake and output documentation).
·
The resident
suffered from skin breakdown at the time of admission.
·
The resident
received adequate nutrition as ordered by the physician through recorded meal
and supplement intake and/or tube feeding intake.
·
The resident was
mobile in conformance with the physician's orders.
·
The resident was
turned and repositioned every two hours or more frequently if ordered.
·
The facility
provided protective devices ordered by the physician, including egg crate
mattresses, heel and elbow protectors, etc.
·
The resident
received skin treatments ordered by the physician, such as lotion application
to prevent dryness and breakdown.
·
The resident was
changed and cleaned after an incontinent episode at least every two hours.
·
The resident's
skin breakdown was immediately reported to the nursing staff.
·
The nursing staff
assessed the resident's skin condition on a regular basis for signs of
breakdown.
·
The skin breakdowns
were reported to the physician within a reasonable period, and the resident was
receiving treatment as ordered.
·
The treatment's
ineffectiveness was promptly reported to the physician to receive new treatment
orders.
IV. GENERAL DEFENSES
A. Statute of Limitations
Many plaintiffs' attorneys will attempt to
argue that the nursing home resident is not competent or has a legal disability
so that they can avoid complying with the statute of limitations period. In
general, the applicable statute of limitations period is two years. 735 ILCS
5/13-202. In a personal injury case, a person is not legally disabled if he or
she can comprehend the nature of the injury and its implications. Sille v. McCann Construction Specialties Co.,
265 Ill.App.3d 1051, 638 N.E.2d 676, 202 Ill.Dec. 808 (1st Dist. 1994). It is a
recognized principle in Illinois that the fact that someone is suffering from
an impairment, either physical or mental, does not overcome the presumption of
competency and does not render the person legally disabled. Id. According to the Sille court, a broader definition of
"legally disabled" would enable all persons who are either physically
or emotionally challenged due to an injury to be immune from the law, and the
wheels of justice would come to a halt every time a litigant broke a bone or
caught a cold. Id.
The statute of limitations can be raised
by a motion to dismiss when it affirmatively appears from the complaint that
the action is time barred. Cundiff v.
Unsicker, 118 Ill.App.3d 268, 454 N.E.2d 1089, 73 Ill.Dec. 840 (3d Dist.
1983). Moreover, once the defendant raises the statute of limitations as a
defense, it becomes incumbent on the plaintiff to set forth facts sufficient to
avoid the statutory limitation. Id.
In Cundiff, the plaintiff failed to
establish a factual basis for the application of the discovery rule to overcome
the defendant's motion to dismiss on the ground of timeliness.
In Illinois every person is presumed
competent to testify, and the burden is on the party challenging the competency
to show that the witness is incompetent. People
v. Williams, 147 Ill.2d 173, 588 N.E.2d 983, 167 Ill.Dec. 853 (1991). In
making the decision of whether a party is competent, the courts evaluate
whether the party
1. receives
correct impressions from the senses;
2. recollects
those impressions;
3. understands
questions; and
4. appreciates
the moral duty to tell the truth. Id.
Illinois courts have held that in order to
establish a person as legally disabled, the record must contain sufficient
allegations of fact from which one could conclude that the person seeking to be
found legally disabled was incompetent and, therefore, "entirely without
understanding or capacity to make or communicate decisions regarding his person
and totally unable to manage his estate or financial affairs." Estate of Riha v. Christ Hospital, 187
Ill.App.3d 752, 544 N.E.2d 403, 405, 135 Ill.Dec. 907 (1st Dist. 1989). See
also Sille, supra (plaintiff's complaint was properly dismissed when
allegations that plaintiff, due to his alcohol abuse, was unable to manage his personal
affairs at time of injury were held to be legal conclusions unsupported by evidence);
Peach v. Peach, 73 Ill.App.2d 72, 218
N.E.2d 504 (2d Dist. 1966) (claim of mental retardation, by itself, was
insufficient to establish requisite standard for tolling statute of limitations);
Udstuen v. Patterson, 198 Ill.App.3d
67, 555 N.E.2d 750, 144 Ill.Dec. 391 (3d Dist. 1990) (plaintiff's allegations
of confinement in health care facility were mere legal conclusions of legal
disability).
B. Compliance
Nursing home facilities are subject to
causes of action filed in civil litigation and administrative proceedings filed
in the Illinois Department of Public Health. The administrative litigation
occurring in the IDPH is for violations of the NHCA found by the Department
during the inspection of facilities. The NHCA provides procedures by which a
facility may be reported for possible violations of the Act, necessitating an
inspection by the Department under the Act; in addition, facilities are
inspected during licensure and relicensure. 210 ILCS 45/3-212.
Inspections in response to complaints are
generally shorter in duration than licensure surveys and focus primarily on
those areas reported to be deficient. During these inspections, if the
Department has determined that the facility has failed to comply with all
applicable state and federal licensure requirements, the facility will be cited
for the deficiencies. When the Department cites deficiencies, the facility has
the opportunity rebut those allegations. When deficiencies are cited, the IDPH
requires that the facility submit a written plan of correction within ten days
detailing how the deficiencies will be corrected. When those deficiencies are
disputed, due process requires an evidentiary hearing with respect to the
alleged deficiencies. Altenheim German
Home v. Turnock, 902 F.2d 582 (7th Cir. 1990). In hearings before the IDPH,
compliance under the statute is a defense. Appeal of the Department's
administrative findings may be had to the circuit court; subsequent appeals go
to the appellate court.
V. INVESTIGATION AND DISCOVERY
A. Securing the Documents and Evidence
Immediately upon notification of a
potential action or a pending lawsuit, one of the first things that should be done
from a defense standpoint is to secure all of the documents and/or evidence
relating to the allegations. The process is very similar to the investigation
process conducted in a medical negligence case, but there are certain documents
and inquiries that need to be made that are unique to the long-term care
setting. Many documents generated in a long-term care setting are not required
to be maintained pursuant to a regulation. Therefore, the facility discards
these documents in the normal course of business. Often, these documents may be
some of the most beneficial documents from a defense standpoint.
1. Medical Records
77 Ill.Admin. Code §300.1810 requires that
certain medical records be .maintained on all residents in a facility. The
individual making an entry in the records must authenticate it. The record
shall contain all physician's orders and plans of treatment, all prior medical
history, current medical status, physical and mental functional status, sensory
and physical impairments, nutritional status and requirements, special
treatments and procedures, mental and psychosocial status, discharge potential,
rehabilitation potential, cognitive status, and drug therapy. Obviously, these
records provide a blueprint to a resident's physical and mental well-being in a
facility. These records can be most useful in determining whether appropriate
treatments were utilized by the facility over time and whether the alleged
negligent act was a single incident or the culmination of a series of events.
Typically, the resident's medical chart is
kept at the nursing station located in the unit where the resident is assigned.
However, it is important to note that many of the documents that make up the
chart are not always maintained together. For example, when a resident has been
at the facility for an extended length of time or has several admissions to the
facility, older portions of the chart and/or prior admissions are periodically
stored in the medical records department. This process is referred to as
"thinning." In addition, treatment records and flow sheets are not
always kept with the charts.
The regulations require that the
resident's chart contain certain documents. The initial step of defense counsel
is to obtain all of the documents and assemble the chart. Each section of the
chart should be reviewed to determine whether the charting complies with
federal and state regulations and the facility policies and procedures manual.
In addition, special attention should be given to portions of the chart that
can be used to further defense theories.
77 Ill.Admin. Code §300.1820 specifies the
types of documents that must be included in the medical chart. In addition,
certain other documents that may be included may be helpful to the defense.
Fact
sheet. The fact sheet should include
the resident's name, age, prior address, emergency contact persons, physicians'
numbers, and date of admission. Typically, a new fact sheet is prepared for
each admission.
Transfer
forms. A transfer form must be filled
out for all transfers between the facility and the hospital. It describes the
resident's condition and reason for transfer. Facility transfers to the
hospital should include a medication sheet. Hospital transfers back to the
facility should include instructions for care and whether any follow-up care is
needed.
Advance
directives or consent for medical care documents. These documents include do-not-resuscitate (DNR)
orders, consents to withhold treatment, and/or living wills.
Medical
history and physical examination forms.
The physician must conduct an initial history and physical at the time of
admission. The physician's notes should document that a complete physical was
conducted. There also should be an annual history and physical and a history
and physical for all readmissions to the facility. Special attention should be
given to any references to preexisting conditions or changes of the diagnosis
on readmission.
Physician's
orders. The physician must maintain
an order sheet that includes orders for medications, treatments, therapies,
diet, activities, and special procedures required for the resident's safety and
well-being.
Physician's
progress notes. Depending on whether
the resident is an intermediate or skilled resident and on the facility's
policies and procedures manual, there should be physician's notes once every 30
- 60 days.
Physician-consultants'
notes. These notes typically include
the podiatry, dental, and ophthalmology consultants' notes. The frequency of
these notes is usually determined by the attending physician's referral orders
for the particular consultant.
Nursing
admission assessment. The nursing
admission assessment must include the completed minimum data set (MDS), the
federally mandated assessment instrument that captures information about the
resident's capacity to perform daily life functions and significant impairments
in functional capacity. In addition, each facility usually has its own
established admitting assessment forms that must be completed at the time of
the initial nursing assessment. It is common practice for many facilities to
take photographs of residents who have skin breakdown at the time of admission.
Nurses'
notes. Regarding nursing and personal
care, resident responses or developments should be recorded as they are noted.
A notation should be made a minimum of once a month; if no development occurs
for a month, that fact should be indicated in the record.
Care
plan. The care plan is a document
created by an interdisciplinary team at the facility with input from the
resident's representative. The care plan addresses the care issues noted in the
MDS and sets the interventions to deal with the areas of concern. Federal and
state regulations mandate when the care plan must be updated.
Several documents that relate to the care
plan, such as the minutes of the care planning meetings, attendance records,
and correspondence sent to the resident's family members encouraging them to
participate in the care plan process, are kept separate from the care plan. The
facility care plan coordinator is usually the custodian of the records.
Treatment
records. These records are used to
document specific treatments ordered by the attending physician. The treatment
records are most commonly used to record treatments for decubitus ulcers. Other
types of treatment documentation may include care provided for a short-term
medical condition such as a broken bone or nutritional supplement treatments.
Laboratory
and medical test results. When
reviewing the laboratory documents, defense counsel should evaluate whether the
facility reported all abnormal findings to the physician. If the case involves
a fall, defense counsel should obtain all copies of the radiological films.
Defense counsel should identify and review all films taken prior to the
occurrence.
Social
service notes. These notes are
usually very helpful in attacking the claims made by the resident's family in a
Wrongful Death Act case. The social service notes should contain information
about the family relationships.
Dietary
records. These documents typically
include the resident's intake. The dietary supervisor usually has his or her
own record on each resident, which is kept in the dietary department.
Therapy
notes. Therapy notes are almost
always kept with the medical chart. There are various therapy records, which
might include physical, respiratory, recreational, speech, music, and/or
occupational therapy. Many facilities contract out the therapy work to vendors.
It should be noted that the therapy is often provided by a hospice provider.
Hospice
records. Hospice provides a variety
of services such as nursing and therapy. The hospice records are very important
in addressing life expectancy issues.
Hospital
records. Many hospital will send the
key documents relating to the resident's hospital admission to the facility at
the time of readmission.
Flow
Sheets. Typically, flow sheets are
not required to be kept pursuant to federal or state regulations. However, many
facilities utilize them. Flow sheets are usually prepared by CNAs, who mark
their initials on the forms. The flow sheets document activities of daily
living (ADLs) such as bowel and bladder function, bathing, dressing, recreation
participation, turning, walking, etc.
2. Other Facility Documents
a. The Business File
Facilities maintain a business file for
each resident. This file is usually kept in the administrative offices and
contains many of the administrative documents that the facility is required to
have for each resident, such as the contract, DNR authorizations, advance
directives, the resident's signed wishes regarding restraints, and the
resident's acknowledgment of receipt of the resident's bill of rights and the
policies and procedures manual.
The business file also contains
communications between the facility and the resident's family or representative.
These documents should be reviewed carefully by the defense counsel and not
overlooked. Correspondence with the family often will demonstrate the family's
lack of involvement in the resident's care. Many times, the business file will
contain correspondence from the resident's family thanking the facility for
providing wonderful care. The business file also contains billing information.
b. The Policies and Procedures Manual and
Index
It is imperative to secure the policies
and procedures manual in place at the time of the occurrence. Pursuant to the
NHCA, all licensed long-term care facilities are required to implement a set of
written policies and procedures that regulate all of the care and services
provided to the facility residents. 210 ILCS 45/2-210. The NHCA sets forth that
the policies and procedures must include "the procedure for the
investigation the resolution of resident complaints as set forth under Section
3-702." Id. The residents, the
residents' family members and/or legal representatives, the staff, and the
public all have the right to review the policies and procedures enacted by the
facility.
Policies and procedures manuals are
updated and changed as new regulations are promulgated. The regulations require
that the facility review the policies and procedures on an annual basis. 77 Ill.Admin. Code §330.7710(a). The review
committee typically includes the medical director, the DON, and the
administrator. There is usually some type of record that is maintained and
documentation that the review was conducted. In addition, it is important to
ascertain what practices were utilized and what communications were sent to the
staff to educate them regarding the implementation of new or changed policies
and procedures.
c. Incident Reports Regarding the Resident
When an incident occurs involving any
resident, a facility is obligated pursuant to 77 Ill.Admin. Code §300.690 to
notify the IDPH via telephone the day of the incident to make a report and to
follow up that phone call with a narrative summary of the incident within seven
days. The regulation further mandates that a summary report of the incident be
kept in the patient's progress notes. These reports are useful in detailing any
prior incidents in which a resident may have been involved. These incidents
could be used by plaintiff's counsel to show that the substandard treatment of
the resident was an ongoing occurrence and not a one-time incident.
d. Statements
The statement of any person witnessing an
occurrence is highly relevant. If the plaintiff has made a statement to an
employee immediately after the occurrence, it is of utmost importance to have
that employee record what the plaintiff said since this statement could negate
one of the elements in a claim for negligence, proximate cause.
e. Other Documents That Relate to the
Resident
A thorough investigation should be
conducted at the facility to identify any other records that were generated
relative to the resident.
f. Staffing Records and Staffing
Assignment Calculation Sheets
Staffing records are to be kept by the
facility pursuant to 77 Ill.Admin. Code §300.1230. These records are critical
in reference to the nature and abilities of the staff present during an alleged
occurrence and will reveal whether and how many skilled staff members were
available at the time of the incident. That a certain number of skilled
staffers were available at a certain time is of import since 77 Ill.Admin. Code
§300.1230 provides that a certain number of skilled, general, and intermediate
care (light) staff members must be present at a given time based on the number
of residents in a facility. A plaintiff's claim of negligence could be made
easier if the number of staff members available - particularly skilled staff -
was insufficient at the time of an occurrence.
g. Surveys and Plans of Correction
Defense counsel should take the position
that surveys and plans of correction are protected by the medical studies
statute, 735 ILCS 5/8-2101.
h. Personnel Files of Key Caregivers
Personnel records are to be maintained
according to 77 Ill.Admin. Code §300.650(b). Included in the records for each
employee are the employee's date of employment, date of birth, home address,
educational background, past experience and types of employment, type of
position in the facility, and performance evaluations. For employees who are no
longer employed, the records must contain the last date employed and the reason
for leaving. These records are of import in considering claims for negligent
hiring of an employee since they will show what the facility knew at the time a
position was offered to the employee and will be helpful in determining whether
the facility's hiring of that employee was indeed negligent. Further, if the
care and treatment provided by an employee is at issue in a particular claim,
the file will be of use in that the file contains performance evaluations.
These evaluations could be critical if the resident alleges that a certain
employee continually acted in a certain manner since they could show that the
employee's superiors found that the employee acted in a manner consistent or
inconsistent with that allegation.
i. Consultants' Reports
Many facilities have outside consulting in
various disciplines such as nutrition, risk management, therapy, overall
nursing care, medication administration, and/or social services. Defense
counsel should always evaluate whether these records are protected from
production pursuant to the medical studies statute, 735 ILCS 5/8-2101.
j. The Floor Plan
The floor plan could be relevant in
wandering-patient cases or cases involving the negligent supervision of a
resident.
k. Marketing Material
The admissions director is usually the
person who has knowledge about the marketing material.
l. Visitor Sign-In Sheets
Visitor sign-in sheets may be helpful in
showing that the family did not visit the resident as they assert.
m. Residents' Advisory Council Meeting
Minutes
77 Ill.Admin. Code §300.640 authorizes the
creation of a residents' advisory council consisting of at least five resident
members. The council shall be open to all residents and/or their
representatives. No employee or person affiliated with the facility shall be a
member on the council. The council shall review the facility's procedures and
provide a forum for implementing residents' rights and facility
responsibilities. 77 Ill.Admin. Code §300.649(l) provides that the council will be a forum for obtaining and
disseminating information, soliciting and adopting recommendations for facility
programming and improvements, early identification of problems, and
recommending orderly resolution of problems.
n. Photographs
Many times photographs are utilized to
show the condition of the facility at the time of the occurrence. Also,
photographs of the plaintiff's injuries may be shown to a jury in an attempt to
elicit sympathy.
o. Surveillance Tapes
Many family members often employ an
undercover detective to take surveillance tapes documenting the care and
services provided by the facility.
p. Menus for the Time Period in Question
77 Ill.Admin. Code §300.2080 requires that
the menus served to the residents be kept on file at the facility for not less
than 30 days. The menus of the resident could be important if malnutrition is
one of the plaintiff's allegations.
3. Documents Not in the Control of the
Facility
Documents not in the control of the
facility that may be relevant and should be sought out and secured include
a. police
reports;
b. a
death certificate/coroner's report;
c. ambulance
records;
d. diaries
of family members or friends;
e. records
maintained by the physician's office;
f. reports
to governmental agencies; and
g. statements
(see Section V.A.2.d. above).
4. Former Employees' Testimony
a. Identifying Key Witnesses
Long-term care facilities are known for a
high employee turnover rate. Therefore, identifying the key employees who will
serve as witnesses at the outset of the investigation is very important.
Defense counsel should go beyond review of the medical chart to determine the
key witnesses.
Other documents that may assist in identifying
employees who provided care to the resident include the resident's business
file (see Section V.A. above) and care plan file (see Section IV.B. above).
The facility staff interviewer should be
asked to identify the employees that he or she believes have knowledge of the
facts of the service and care provided.
At a minimum, it is a good idea to
identify the staff members who provided care to the resident during at least
the two weeks before the occurrence and, if the resident was transferred out of
the facility, the 48 hours after the occurrence or, if the resident remained in
the facility, the two weeks after the occurrence.
b. Interviewing Former Employees
Once the key employees are identified,
they should be interviewed. This includes interviewing the key former employees. Plaintiffs' attorneys
in long-term care cases are notorious for locating former employees and
securing their statements. It is crucial to the defense to meet with and gain
the cooperation of all former employees before the plaintiff's counsel has an
opportunity to meet with them.
Prior to interviewing former employees
(and/or current employees), defense counsel should review their personnel
files, their notations in the medical chart, and all documents that they
prepared that relate to the resident. Defense counsel should be familiar with
the employees' employment history and identify any and all training that they
received.
Even more so than in most legal cases,
former employees in the long-term care setting are usually very reluctant to
get involved in legal matters. Defense counsel should be very positive and
nonthreatening when contacting former employees. Since many former employees
may have left in unfavorable circumstances, it is important for defense counsel
to be aware of their reasons for leaving employment with the facility before
contacting them.
Defense counsel should explain to former
employees that because they provided care to the resident, they will most
likely be subpoenaed for a deposition and/or trial testimony by plaintiff's
counsel, over whom defense counsel has no control. Former employees should be
made to understand that by cooperating with defense counsel, defense counsel
may be able to assist in scheduling the deposition and/or trial testimony. In
some circumstances, it may be appropriate to compensate former employees for
lost time from work while participating in the litigation and/or trial expenses
to meet with defense counsel.
B. Discovery Tools
It is important that defense counsel
utilize the available discovery techniques as early as possible in the case.
Usually, the general provisions applicable to civil actions govern. In actions
filed in court, defense counsel should serve interrogatories, Rule 214 requests
to produce, any requests to admit, and a notice for plaintiff's deposition no
later than the date the responsive pleadings are filed. The purpose of
initiating discovery at the earliest practicable moment is to confine the
plaintiff to his or her version of the facts as early as possible and before it
can be tailored to the testimony of another witness or the undue influence of
counsel and before the plaintiff's counsel has had a chance to review the
documents produced by the nursing home. The discovery process should be focused
on obtaining information from the plaintiff and the witness that can be used by
defense counsel to support a motion for summary judgment or other dispositive
motion.
1. Document Requests
Before taking the plaintiff's deposition,
defense counsel should, at a minimum, have all of the documents he or she
believes are pertinent to the claim. These documents will be used as a basis
for deposition questions, will become exhibits at the deposition, and may also
become exhibits at trial. Federal and state discovery rules pertaining to civil
actions also allow for the production of things as well as documents, and
document requests should include requests for all electronic storage of data
including discs, tapes, and printouts of any information contained in the
computer memory. The document request should be specifically tailored to the
allegations contained in the paragraphs of the complaint and should include all
documents relating to all communication between the plaintiff and the nursing
home, all documents relating to the communications between the plaintiff and
any other individual relating to the care and services provided by the nursing
home, prior employment records when appropriate, medical records, all income
tax records, pay stubs, payroll records, medical bills, and/or any records that
may relate to the plaintiff's claim for damages.
2. Interrogatories
Interrogatories are written questions to
be answered in writing by the plaintiff. They are to be signed by the
plaintiff, and the signature is to be notarized. The answers to interrogatories
may constitute admissions and can be admitted as evidence at trial. In addition
to seeking basic personal and background information, interrogatories should
require the plaintiff to identify any and all individuals that he or she
believes are witnesses to the case and to indicate any opinion witnesses he or
she expects to call to testify at trial. The plaintiff should also be asked to
detail the claim of damages.
3. Requests To Admit
Requests to admit are statements of fact
to be submitted to the plaintiff that the plaintiff is required to admit or
deny. Requests to admit are permitted in civil actions under Illinois discovery
rules. This discovery tool can be very effective in narrowing the issues and
pinning down the plaintiff's story.
4. Notice for Deposition
The notice for deposition of the plaintiff
should be served as early as possible since the courts often rule that the
party first served the notice for deposition must give its deposition first. It
can be a substantial advantage to the defense to have the plaintiff deposed
beforehand. This prevents the plaintiff from tailoring his or her testimony
consistent with other depositions already given in the case.
C. Scope of Defendant's Discovery
Regardless of the discovery tool utilized,
defendant's discovery should elicit, at a minimum, a thorough background of the
plaintiff's medical history, the plaintiff's version of the occurrence, the
plaintiff's basis for the belief that improper care was provided, the
plaintiff's own calculation of damages, and the identification of any and all
pertinent witnesses and documents.
D. Other Discovery-Related Issues
1. Informal Discovery
The attorney for the employer is entitled
to access to all of the documents and tangible items controlled by the long-term
care facility without the necessity of discovery tools authorized by the court
rules.
2. Statements
An attorney may also speak directly to and
take a statement from any witness, such as an employee, not otherwise
represented by counsel without prior notice. Care should be taken in taking
such statements, however, since they will not be privileged and will in all
likelihood ultimately be requested by the plaintiff in a document request.
E. Checklist of Information To Be Obtained
in Written and Oral Discovery
The following information should normally
be obtained by defense counsel through oral and written discovery:
I. Resident's
preadmission medical condition
A. Was resident able to
successfully manage the ADLs?
B. Did resident have a
driver's license?
C. Did resident live
independently?
D. Did resident use
assistive devices?
E. What was resident's
physical condition? (Obtain complete medical history.)
F. Did family members
provide assistance prior to admission? (If so, identify.)
G. Did resident live with
any family members prior to admission to the facility?
H. Did resident suffer a
fall prior to admission?
I. Did resident have a
skin breakdown?
II. Decision to admit
resident for long-term care
A. How was the decision
made to admit resident for long-term care? Was it on the advice of
l. family?
2. Physician?
3. Clergy?
B. Was resident involved in the decision?
C. Did resident understand
at the time of the admission that he or she would not return to independent
living?
D. How was the facility chosen?
1. Who recommended it
(hospital, social service worker, friends, medical providers, or others)?
2. What other facilities were considered?
3. Were any visits made?
If a visit was made to the facility prior to admission, obtain details:
a. Were representations
made?
b. What inquires were
made?
c. Was a facility tour
provided?
d. What were the
impressions?
4. Were any written
materials provided by the facility, e.g.,
a brochure, advertisements, etc.?
5. What were the factors
that were considered in choosing the facility?
6. Were/are any relatives
or friends of the resident also facility residents?
E. What was the admission process to the
facility?
1. Was a contract
executed?
2. Was the acknowledgment
of receipt of the resident's bill of rights executed?
3. Were any DNR provisions
discovered and executed?
4. Did resident choose the
attending physician?
5. What information about
resident's prior medical condition was provided by resident to the facility at
the time of admission?
III. Resident's nursing home
experience
A. Did resident's family
members visit the facility?
B. Did family members
attend the care plan meetings and/or resident council meetings?
C. Did family members speak
with the attending physician(s)?
1. Why?
2. What was the response?
D. How was the care funded?
1. Private pay?
2. Insurance?
3. Medicare/Medicaid?
E. Did resident make any complaints while
at the facility?
1. To whom?
2. When?
3. About what?
4. How were they handled?
F. Did any family members or friends make
complaints?
1. To whom?
2. When?
3. About what?
4. Were they oral/written?
5. What was the response?
G. What written materials
or documents relate to the care and services provided to resident at the
facility? (Identify and obtain.)
H. Did resident/family members
make any attempts to remove resident from the facility? If not, why not?
I. Did resident/family
members make any complaints to police, state/federal agencies, or others
regarding the care and services provided?
J. Did resident know that
the attending physician was responsible for the overall medical care?
K. Did resident understand
that he or she would not receive one-on-one care at the facility?
VI. EXPERT TESTIMONY
As in medical malpractice cases, expert
testimony is needed in long-term care cases to establish that the facility met
the standard of care. Defense counsel should retain experts who have experience
both in geriatric care and in long-term care and who have a good working
knowledge of the applicable regulations. Defense counsel should consider using
the facility's medical director and administrator to provide the defense
theories.
There are benefits of retaining an expert
at the outset of the case. These benefits include being able to utilize the
expert to identify the strengths and weaknesses of the plaintiff's and defense
cases, to assist in developing a defense strategy, to assist in formulating the
strategy for the plaintiff's expert deposition, and in some cases to assist in
assessing the settlement value of the case.
A. Explaining the Difference Between
Hospital Care and Long-Term Care
Most jurors have a misconception regarding
the type of care that is provided at a long-term care facility. The jurors'
expectations in large part are because most jurors have never been a resident
in a long-term care facility and their only interaction with a long-term care
setting is as a visitor. It is crucial for defense counsel to demonstrate and
explain to the jury that the long-term care facility provides a different level
of care than a hospital. The long-term care expert needs to explain the care
and services that were provided to the resident and how the type of care was
appropriate for that particular resident. Next, the expert should explain the
type of care that was ordered by the resident's attending physician and
establish that the facility staff followed the plan of care ordered by the
physician. It is important to use the defense expert to explain that the
facility staff must have an order from the attending physician who is in charge
of the resident's care for any care that is provided.
B. Explaining the Difference Between
Physician Care and Nursing Care
Another major misconception that juries
have regarding the long-term care setting regards the type of care that is
provided by the nursing staff. Defense counsel should retain an expert to
explain professional nursing and what it entails. The Nursing and Advanced
Practice Nursing Act (Nursing Act), 225 ILCS 65/5-1, et seq., outlines the scope of professional and practical nursing
care under two categories: registered nurse (RN) and licensed practical nurse
(LPN). The Nursing Act provides that "registered professional nursing
practice" includes
(1) the
assessment of healthcare needs, nursing diagnosis, planning, implementation,
and nursing evaluation; (2) the promotion, maintenance, and restoration of
health; (3) counseling, patient education, health education, and patient
advocacy; (4) the administration of medications and treatments as prescribed by
a physician licensed to practice medicine in all its branches, a licensed
dentist, a licensed podiatrist, or a licensed optometrist or as prescribed by a
physician assistant...or by an advanced practice nurse...; (5) the coordination
and management of the nursing plan of care; (6) the delegation to and
supervision of individuals who assist the registered professional nurse
implementing the plan of care; and (7) teaching and supervision of nursing
students.
The Nursing Act does not license a nurse or provide the nurse with the authority to
perform a medical diagnosis or prescribe medication. The defense expert should
be able to explain the difference between a "nursing diagnosis" and a
"medical diagnosis." The expert should establish the fact that
diagnosis and prescription of medication are acts of the practice of medicine
and are prohibited from being preformed by an LPN or RN pursuant to the Medical
Practice Act of 1987, 225 ILCS 60/1, et
seq.
C. Explaining Long-Term Care Facility
Charting Practices
Another common misconception regarding
long-term care involves charting practices. The charting practices in a
long-term care facility are much more relaxed than the charting practices in a
hospital setting. The long-term care medical chart, particularly when compared
to a hospital chart, is very sparse. In a long-term care setting, charting is
required only when there is a change in condition or every 30 or 60 days
depending on the type of care that the resident receives. At first glance, a
nursing home chart will appear to have gaps in charting. The notes are usually
sporadic.
The defense expert can be utilized to
explain that intermittent charting is not below the standard of care. Defense
counsel and the defense expert will want to focus on the charting during the
time frame of the occurrence. A successful defense will depend in large part on
appropriate charting during the time frame of the alleged occurrence, charting
that shows any changes of condition, and charting of physicians' orders.
D. Explaining the Life Care Plan
An expert should be retained to explain
that the care identified by the plaintiff's expert is related to the natural
sequence of the resident's preexisting condition and not due to the alleged
negligence. Further, the defense expert should obtain the basis for plaintiff's
expert's allegations as to the cost of future care and the need for medical
devices.
VII. CASE EVALUATION AND SETTLEMENT ISSUES
A. Evaluation in General
Once a lawsuit has been filed and the
initial investigation has begun, an evaluation should be made as to whether the
case is appropriate for settlement or whether further investigation should be
conducted. This evaluation involves a consideration of the strength of the case
and the potential damages that may be awarded to the plaintiff. This
preliminary evaluation should also include a decision whether to use some form
of alternative dispute resolution short of trial, such as mediation. Mediation
can be a valuable tool in cases in which there seems to be a high likelihood of
an adverse verdict or a likelihood that the jury will award punitive damages.
Although each case must be evaluated separately, there are certain types of
recoverable damages common in each case, which include recovery pursuant to the
survival statute, 755 ILCS 5/27-6, and the wrongful death act, 740 ILCS
180/0.01, et seq. Actions filed
pursuant to the survival statute are permitted under the NHCA. However,
wrongful death actions cannot be filed pursuant to the NHCA. Wills v. DeKalb Area Retirement Center,
175 Ill.App.3d 833, 530 N.E.2d 1066, 125 Ill.Dec. 657 (2d Dist. 1988).
B. Jury Sympathy
Pursuant to the survival statute, the
plaintiff can recover for pain and suffering and medical expenses. Pursuant to
the Wrongful Death Act, the plaintiff may recover damages for money, goods, and
services as well as loss of society and companionship. Even though the removal
of the treble damages provision from 210 ILCS 45/3-603 on its face appears to
remove the incentive for litigation, there is still the incentive to take a
case due to potential recovery of attorneys' fees and costs. It should be noted
that even without the potential to recover treble damages, juries across the
country are increasingly awarding large six-figure verdicts and punitive
damages. With the aging population increasing, juries are increasingly willing
to recognize that there is value to an elderly person's life and are ignoring
the elderly person's limited life expectancy and earning capacity. Therefore,
it may be insignificant that treble damages are no longer available.
Due to advanced age and poor physical
condition, residents usually have large medical bills. This is significant and
should be considered by defense counsel because juries will return verdicts
that represent the full value of the medical expenses and bills.
C. Settlement and Release
If the decision is made to settle a case,
defense counsel should obtain a release memorializing the settlement agreement.
The release should contain the entire agreement between the parties and should
include a number of recitals setting forth the parties' intentions and perhaps
a brief statement of the dispute. The release should also include (1) the
amount paid in settlement; (2) a waiver or release in the convent not to sue,
which the facility should strive to have made as broad as possible; (3) a
confidentiality agreement, if appropriate; (4) a clause that states that
neither party admits any wrongdoing or liability and that no laws have been
violated; and (5) a statement that the settlement agreement is the entire
agreement between the parties
D. Liens
1. IDPA Liens
An award of actual damages is protected
and cannot be recovered by the IDPA. See In
re Estate of Castro, 289 Ill.App.3d 1071, 683 N.E.2d 1255, 225 Ill.Dec. 592
(2d Dist. 1997). See also 210 ILCS 45/3-605 (“The amount of damages recovered
by a resident in an action brought under Sections 3-601 through 3-607 shall be
exempt for purposes of determining initial or continuing eligibility for
medical assistance under ‘The Illinois Public Aid Code’ . . . and shall neither
be taken into consideration, nor be required to be applied toward the payment
or partial payment of the-cost of medical care or services available under the ‘The
Illinois Public Aid Code’.”).
This exemption also applies to the
recovery received by the decedent's estate. The Illinois courts have held that
a settlement for injuries suffered by a decedent while a nursing home resident,
which could have been brought as a suit against the nursing home under the
NHCA, was exempt from a claim by the IDPA for medical benefits paid. In re Estate of Castro, supra. It should
be noted that this section of the NHCA that exempts any recovery for injuries
suffered by a nursing home resident from an IDPA claim for cost of care does
not preclude the Department from asserting a claim against the nursing home
resident's estate when there are other assets in the estate aside from the
settlement proceeds from which a claim could be satisfied. Id. See also 305 ILCS 5/5-13.
In order to protect the entire settlement
amount from recovery by the IDPA, the parties may want to settle the case
pursuant to the NHCA and dismiss all other counts.
2. Medicare Super Liens
Pursuant to federal law, Medicare has a
lien over any personal injury settlements and judgments for medical payments
made to a Medicare recipient. The Medicare lien is often referred to as the
"super lien" because it does not require any type of lien
notification or written documentation to any party in the suit, the insurance
company, or their attorneys. The significant provisions are found in 42 C.F.R.
§411.24(1), which states:
In the case
of liability insurance settlements and disputed claims under employer group
health plans and no-fault insurance, the following rule applies: If Medicare is
not reimbursed as required by paragraph (h) of this section, the third party
payer must reimburse Medicare even though it has already reimbursed the
beneficiary or other party.
A lengthy discussion of this topic is
beyond the scope of this chapter. Defense counsel should see the regulation for
an overview. It should also be noted that many residents receive Medicare
benefits pursuant to their social security number. In order to make sure all
liens have been satisfied, both spouses' social security numbers should be
evaluated for liens.
E. Attorneys' Fees and Costs
According to the courts, the requirement
that the nursing home licensee pay a prevailing plaintiff's attorneys' fees is
mandatory in a suit for violations of the NHCA. Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill.App.3d
231, 671 N.E.2d 768, 219 Ill.Dec. 601 (lst Dist. 1996).
The Berlak
court acknowledged that one of the purposes of the NHCA was to encourage
lawyers to represent residents who may have been abused or neglected but do not
present the potential for significant damages. Therefore, the fees do not need
to be proportional to the verdict. The court's rationale for this position is
that awarding attorneys' fees in direct proportion to the damages would
discourage private enforcement of the NHCA and defeat that purpose. Id.
The Berlak
court provides a detailed discussion of how an award of attorneys' fees
will be determined pursuant to the NHCA. The Berlak court holds that the attorney's contract is relevant but not
dispositive on how attorneys' fees will be awarded. Id. The court held that in determining what fees to assess it will
look at and evaluate the following factors:
1. the skill and training
of the attorney;
2. the nature of the case
and the issues alleged;
3 the degree of
responsibility required;
4. the usual and customary
fee for comparable services;
5. the result or the
benefit to the client; and
6. the connection between
the fees and the amount of money involved in the litigation. Id.
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