Daniel S. Chamberlain
Doehrman & Chamberlain
10333 N. Meridian Street, Ste. 100
Indianapolis, Indiana 46290
800-269-3443
dsc@usLAWS.com
www.usLAWS.com
Strategies to Win an Assisted Care Case in Indiana
By the year 2020, 16% of the population in the United States will be over the age of sixty-five years old. The number of Americans residing in nursing homes is expected to increase from approximately two million to 4.6 million in the year 2040. Indiana has 566 licensed nursing home facilities with a total of 57,520 beds. Currently licensed medicaid/medicare nursing homes in Indiana are operating at an occupancy rate of 73.57%. Almost 40% of the occupants of Indiana nursing homes are over the age of eight-five.
Seven percent of Indiana licensed nursing homes were cited for violations amounting to Immediate Jeopardy. Immediate jeopardy is a situation in which the nursing home's noncompliance with one or more requirements has caused, or is likely to cause, serious injury, harm impairment, or death to a resident. In these situations, the Division initiates an enforcement action and requires that the home take immediate steps to remove the jeopardy. If the nursing home does not remove the jeopardy within the time frame specified by the Division of health, it is terminated from the Medicare and/or Medicaid programs within twenty-three days of the end date of the survey/inspection.
The Indiana Division of Health reports that 11 percent of the nursing homes in Indiana had violations that amounted to a substandard quality of care. Substandard quality of care is a technical regulatory term which means that one or more requirements under the federal regulations 42 CFR 483.13 (resident behavior and facility practices), 42 CFR 483.15 (quality of life), or 42 CFR 483.25 (quality of care) were not met, to a degree constituting immediate jeopardy to resident health or safety, and a scope of pattern or widespread actual harm, or a widespread potential for more than minimal harm. A finding of substandard quality of care indicates that the nursing home was found to have had a significant deficiency (or deficiencies), which the home must address and correct quickly to protect the health and safety of residents. The Division of Health specifies a maximum time frame for correction of the deficiencies.
Only 12 percent of the 566 facilities in Indiana were reported to have zero deficiencies on their most recent surveys/inspections. Indiana scores nursing homes by the number of requirements in each category (administration, care and services, resident rights, dietary and Environment) that were not in compliance as measured by scope and severity of the problem. Therefore, the higher the score, the more violations/deficiencies and the higher the degree of severity of the deficiencies at the home. The average facility had a score of 144. Out of the 566 nursing homes in Indiana, 312 had a score above the statewide average score.
A survey of 577 nurses' aides revealed that there is widespread psychological and physical abuse of patients. The most common form of abuse is psychological. Four out of five (520) aides had witnessed yelling at patients in anger during the past year. Half of the aides witnessed swearing and similar insults at the patients.
The second most common form of abuse is physical. One-third of the aides witnessed physical abuse of an elderly patient in the preceding year. This abuse came in the form of unnecessary restraint, pushing, shoving or pinching a patient.
There are numerous federal regulations governing the operation of a nursing home and the type and quality of care a patient is to receive. The first regulation came under the social Security Act. This Act provides that: A nursing facility must care for its residents in such an environment as will promote maintenance or enhancement of the quality of life of each resident. The Act provided enumerated rights to patients of nursing homes which are listed below:
The Social Security Act 42 U.S.C. '1396(r) Patients Rights
1. Personal choice of attending physician
2. Receive notification in advance of, and participate in, the decision to change the care of the resident
3. To be free from physical and mental abuse, involuntary seclusion and unnecessary physical or chemical restraints
4. To maintain privacy with regards to accommodations, medication treatment and communication with family
5. Voice grievances
6. To participate in resident and family groups and other activities
7. To examine surveys of the home
8. To refuse certain transfers
9. To be informed of their rights
In addition to the rights enumerated under the Social Security Act, Congress established rights to Medicare/Medicaid nursing home residents in Title 42 of the Code of Federal Regulations '483.10, A nursing home resident has a right to a dignified existence, self determination, and communication with and access to persons and services inside and outside the facility.
The Older American's Act of 1965 established the state ombudsman program which acts as a watchdog overseeing the inspections carried out at the state level. The function of the state ombudsman is to investigate complaints, monitor care, inform residents of their legal rights and assemble and disseminate information on long term care issues. Most states operate under the direct authority of a state government or department (some have been privatized). In Indiana the State Ombudsman is in the Division of Aging and Rehabilitative Services.
In 1987, Congress passed the Omnibus Reconciliation Act (OBRA). This Act is known as the Nursing Home Reform Amendments. The purpose of the Amendments was to improve the care of elderly persons in nursing homes. OBRA increased the training requirements for nurses' aides and clarified and strengthened the Resident Assessment Instruments (RAI) used to gauge residents needs and abilities which, in turn, is used to design a patient's care plan.
The Minimum Data Set (MDS) is the primary screening and assessment tool for determining a patient=s strengths, needs, and preferences, such as, sleeping and eating patterns, bladder incontinence, history of medication, status of hearing and vision, and daily living functions (locomotion and dressing).
Resident Assessment Protocol (RAP) is a follow up assessment performed when any of eighteen problem areas are triggered by the response to MDS, i.e., delirium, cognitive loss/dementia, and difficulties in performing activities of daily living (ADL).
The Care Plan found at 43 U.S.C. '1395i -3(d)(1)(A), provides the highest practicable level of physical, mental and psychosocial well-being of each resident. These plans must be specific, and they have to meet the needs and abilities of each resident. Specific persons must be assigned specific responsibilities in order to meet the statutory goal. Coordination between nurses, doctors, pharmacologists, physical therapists is an important function of the care plan.
In Indiana, Title 460 of the Indiana Administrative Code, Division of Disability, Aging, and Rehabilitative Services sets forth a purpose for pre-screening unlike that of the federal OBRA. The stated purpose for a health facility pre-admission screening program in Indiana is to determine whether there are community services available for individuals who need assistance with the tasks of daily living that would be more appropriate than care in a health facility and, if so, to deny permission to enter a health facility unless the individual is willing to forego eligibility for certain Medicaid reimbursement for a period of time beginning from the date of admission as specified in IC 12-10-12-33 and IC 12-10-12-34.
Indiana's enabling statute creating the federally mandated ombudsman program expands the federal purpose to include identifying concerns regarding the health, safety and welfare, or rights of residents. Rule 7 of Title 460, Division of Disability, Aging, and Rehabilitative Services establishes the Indiana Long Term Care Ombudsman Program. The purpose of Rule 7 is to implement the long term care ombudsman program which includes identifying, receiving, investigating, resolving, or attempting to resolve complaints and concerns regarding the health, safety, welfare, or rights of residents. Furthermore, the Ombudsman has statutory immunity from nursing home litigation.
In addition to the Federal regulations, Indiana has statutes regulating Comprehensive Long Term Care Facilities, Residential Long Term Care Facilities, and Intermediate Facilities for the Mentally Retarded. Long term care facility defined in the Indiana code as either a facility licensed or subject to license per the Indiana Code or an adult care home.
Comprehensive Care Facility means a health facility that provides nursing care, room, food, laundry, administration of medications, special diets, and treatments, and that may provide rehabilitative and restorative therapies under the order of an attending physician. (Indiana State Department of Health; 410 IAC 16.2-1-8, eff Apr 1, 1997; readopted filed Jul 11, 2001, 2:23 p.m 24 IR 4234).
Residential Care Facility means a facility that provides room, food, laundry, and occasional assistance in daily living for residents who need less service than the degree of service provided by a comprehensive care facility. There is an overall general supervision of health care, medications, and diets as defined in the written policies of the facility (Indiana State Department of Health; 410 IAC 16.2-1-36; filed May 2, 1984, 2:50 pm: 7 IR 1455; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234). There are no federal regulations pertaining to residential long term facilities.
Intermediate Care Facility for the Mentally Retarded (or persons with related conditions) means a health facility that provides active treatment for each developmentally disabled resident. In addition, the facility provides nursing care, room, food, laundry, administration of medications, modified diets, and treatments. An Intermediate Care Facility is only for developmentally disabled residents, and the facility shall be designed to enhance the development of these individuals, to maximize achievement through an interdisciplinary approach based on development principles, and to create the least restrictive environment (Indiana State Department of Health; 410 IAC 16.2-1-19; filed May 2, 1984, 2:50 p.m.: 7 IR 1453; filed Jan 10, 1997, 4:00 p.m.: 20 IR 1521, eff Apr 1, 1997; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234).
Nursing home case law in Indiana is scarce at best. This scarcity can likely be explained by the propensity toward settlement in actions involving nursing homes. However, there are a few key cases in Indiana. In 1999, the Indiana appellate court in Foster v. Evergreen, allowed for actions in tort and contract theories to be filed against a nursing home. Donald Foster was a resident at Tree Manor nursing home that was operated by Evergreen Healthcare, Inc. Donald was awakened early in the morning by an employee of Tree Manor for a whirlpool bath. When the employee lowered Donald into the tub, the water burned Donald over approximately 50 percent of his body. Donald's wife, on behalf of her husband=s estate, sought claims against the manufacturer of the whirlpool, and the manufacturer of the tub=s temperature regulation valve and the plumber that installed the whirlpool. In addition, claims against the nursing home included negligence, gross negligence, breach of contract and breach of fiduciary duty and duty of good faith and fair dealing. The defendants of the nursing home moved for partial summary judgment stating that a breach of a duty of care was negligence and that the estate could not sue both in contract and in tort for the same claim. However, the court disagreed and denied defendants request for partial summary judgment. (716 N.E.2d 19)(Ind. App. 4th district 1999)check bluebook.
There is no case law in Indiana establishing a negligence per se cause of action. However, Indiana has adopted regulations defining neglect and abuse. Indiana regulations require nursing homes to develop and implement written polices and procedures that prohibit mistreatment, neglect, and abuse of residents. In addition, the residents have a right to be free from neglect and abuse.
Indiana defines by regulation under Title 410 of the Indiana Administrative Code, Article 16.2 Health Facilities; Licensing and Operational Standards neglect as:
(1) an act or omission which places a resident in a situation that may endanger the resident's life or health;
(2) abandoning or cruelly confining the resident;
(3) depriving the resident of necessary support, including food, clothing, shelter, and medical care; or
(4) depriving the resident of education as required by statute.
(Indiana State Department of Health; 410 IAC 16.2-1-25; 24 IR 4234).
Abuse is defined under Title 410 of the Indiana Administrative Code, Article 16.2 Health Facilities; Licensing and Operational Standards as:
A[A]ny physical or mental injury or sexual assault inflicted on a resident in the facility, other than by accidental means.
Indiana State Department of Health; 410 IAC 16.2-1-1; Jul 11, 2001, 24 IR 4234).
Indiana has recognized a cause of action in deficiencies of care (negligence). In Connerwood Healthcare, Inc. v. Est. of Herron, a class action suit was brought against the nursing home for deficiencies of care, negligence and wrongful death stemming from a Salmonella outbreak.(683 N.E.2D 1322) (Ind. App. 1997).
Stropes v. Heritage House Childrens Center of Shelbyville, is a very important case in nursing home litigation in Indiana and it is frequently cited in other jurisdictions. A nurse=s aide performed oral and anal sex on Stropes, a resident of the Heritage House. The Stropes court not only applied the theory of respondeat superior to hold Heritage liable, but went farther to hold that the common carrier exception of respondeat superior applies to nursing homes. The court stated that Indiana had long recognized the Aextraordinary standard@ of care imposed by the common carrier exception. The court historically defined the common carrier exception as:
[L]iability that is predicated on the passenger's surrender and the carrier's assumption of the responsibility for the passenger's safety, the ability to control his environment, and his personal autonomy in terms of protecting himself from harm; therefore, the employer can be held responsible for any violation by its employee of the carrier's non-delegable duty to protect the passenger, regardless of whether the act is within the scope of employment. (547 N.E.2d 244)(Ind. 1989).
Respondeat superior holds the employer liable for only those acts of employees that are committed within the scope of their employment. The common carrier exception holds the employer liable regardless of whether the employee was acting within the scope of their employment.
The court held that the common carrier exception was necessary due to the degree of a resident's lack of autonomy and his dependence on a nursing home for care and the degree of home=s control over the resident. Id. at 254.
Other possible claims in nursing home litigation include negligence (failure to supervise, failure to treat), res ipsa loquitur and medical malpractice and intentional infliction of emotional distress.
Discovery in nursing home litigation involves experts, documents and public records. Nursing homes are heavily regulated and as a result of these regulations, documents are relatively accessible to the public. These documents are a result of the accounting requirements, inspection reports, and complaint procedures implemented by the federal and state governments. Federal and state governments have a website on the internet that posts AReport Cards@ for all licensed nursing homes that are updated bi-monthly.
The following is a list of information that should be considered during the discovery phase of litigation:
1. Industry Standards of Practice
2. Facility Policy and Procedure
3. Voluntary Accreditation Standards (JCAHO Accreditation)
4. Standards Promulgated by Professional organizations such as the Indiana Health Care Association
5. Hospital Discharge Summary
6. Nursing home admission notes and physical examination forms
7. Physician Orders and Progress Notes
8. Daily Nursing Notes
9. Nutritional Review meal forms, and dietician/nutritional consultant forms
10. Medication Records
11. Subspecialty Records, i.e. speech therapist, occupational therapist- see patient's Care Plan
12. Resident's Weight Record
13. Dental/oral Health Records
Even though most documents in discovery are public record and easily obtainable, the task of admitting these documents in a proceeding may be difficult. Most evidence is in the form of a survey or inspection report. Plaintiff's counsel may try to establish a pattern of regulatory or negligent conduct. Defense counsel should be aware that these surveys may contain statements from nursing home staff, administrators, residents, or family members, and the findings contained in the surveys may not be based upon the observations of the inspector or agency. These reports may be based in part on hearsay comments.
Furthermore, the report cards may contain legal conclusions of the surveyor/inspector for the purposes of enforcement actions within the agency. These documents may not fall within the public records exception the state or federal hearsay rules.
Moreover, if the report cards contain information regarding the specific complaint or incident involved in the litigation, they may be wholly or partially inadmissible because it constitutes legal opinions about the "ultimate issue" in the litigation, and as such, should be excluded as impermissible conclusory evidence.
Expert forensic psychologists can be used to determine the level of pain and suffering experienced by the plaintiff. This type of expert may be needed because of the possible inability of the plaintiff to communicate. It is often difficult to distinguish a reaction from a traumatic event and symptoms of Alzheimer's Disease and/or other dementia diseases. The forensic psychologist can conduct the necessary psychological and neuropsychological tests and interviews that could decipher the reactions of abuse or neglect from symptoms of disease. Damages in nursing home litigation include compensatory and punitive. However, Indiana courts have rejected claims for punitive damages in wrongful death cases. Nursing home litigation has a history of high jury awards. In the U.S. District Court for the Northern District of Texas a jury awarded $312.7 million against Horizon Healthcare in a bedsore and malnourishment action (Cecil Fuqua, as executor of the estate of Wyvonne Fuqua, deceased, v. Horizon/CMS Healthcare Corp., f/k/a Horizon Healthcare Corp., No. 4:98-CV-1087-Y, N.D. Texas, Fort Worth Div.; See February 2001, Page 4). A Texas state court jury awarded the family of a deceased nursing home resident $21 million in a wrongful death action against Copperas Cove's Hill Country Rehabilitation and Nursing Center. (Phillip Lavalis, Individually and as Representative of the Estate of Rose Bonton, et al. v. Copperas Cove LLC, d/b/a Hill Country Rehabilitation and Nursing Center, et al., No. 183,293-B, Texas Dist., 146th Jud. Dist., Bell Co.). An Arkansas jury awarded the family of a former Diversicare nursing home resident $78 million for the wrongful death of Greta Sauer allegedly from dehydration and malnutrition (The Estate of Margaritha Sauer v. Advocat Inc., et al., No. CIV-2000-5, Ark. Cir., Polk Co.).
However, Arkansas and Texas legislatures are debating on caps for compensatory and punitive damages in nursing home liability actions.
As the baby boom generation gets older, there will be an increase in the number of Americans and residents of Indiana residing in nursing homes. If the quality of care in the nursing homes in Indiana continues to be substandard, there will be an inevitable increase in personal injury or wrongful death actions. The Indiana Supreme Court has paved the way for plaintiffs to hold nursing homes accountable for employees conduct irrespective of whether the conduct was within the scope of their employment. Given these considerations, and factoring in the history of high jury awards, nursing home actions may continue to be settled before reaching the courtroom. However, the cap-setting debates in Arkansas and Texas may set a trend amongst legislatures in other states.
Should you have a question about an injury or death caused as a result of alleged deficient care in a nursing home, group home, residential facility or other assisted care entity, please contact North Carolin and Indiana lawyer, Dan Chamberlain, 800-269-3443.
Doehrman & Chamberlain
10333 North Meridian Street Suite 100
Indianapolis, Indiana 46290