Articles: Medical Errors

Nursing home litigation: the new frontier

A rising number of malpractice cases involving nursing homes spurred the creation of new products specifically written to help nursing home staff and attorneys identify common causes of nursing home liability.

Nursing Home Liability is a video, presented by Patricia Iyer, geared to attorneys and clinicians, utilizes research on a sample of 118 recent nursing home cases to draw conclusions on the most common reasons for suits, the success rates, and the typically used defenses. This presentation focuses on fractures, pressure sores, malnutrition and dehydration, and other common allegations. You’ll learn what to look for in the nursing home record, and how dementia influences the resident’s ability to express pain. 

Pat Iyer shares her experience in handling nursing home cases in the Nursing Home Litigation Toolkit. She has written at length about understanding the nursing home record and proving damages. She also includes a list of essential references for your library . (The toolkit comes free with the Nursing Home Liability video.)

Nursing Home Litigation: Investigation and Case Preparation, now in its second edition, is one of Med League's best selling books. Written for the trial attorney, healthcare professional, and claims adjuster, this book provides detailed information on how to litigate a nursing home claim. By combining the legal information in the first section with the high risk liability issues covered in the second section, this book becomes a must read for any attorney involved in nursing home or assisted living claims, or any nursing home administrator. As editor of the book, Patricia Iyer put together a panel of contributors to share their expertise. 

Here’s what some of our our contributors had to say about the factors influencing the explosion of nursing home cases:

Elma Holder MPHS, founder of the National Coalition for Nursing Home Reform:
In the current climate, with increasing charges of neglect and abuse against individuals in nursing homes, the need for attorneys, competent to litigate nursing home cases is indisputable. Form a consumer perspective, there is a need for attorneys who are knowledgeable about the institutional care delivery system and sensitive to the risks and dangers often faced by residents and their families. Attorneys are needed who understand the trauma resulting from abuse and neglect and who acknowledge the need for redress for confirmed and documented harm. Conversely, plaintiff attorneys who can effectively screen meritorious cases and avoid cases without merit will be in the best position to manage their own law practices. Defense attorneys who recognize cases that should be settled without lengthy and expensive litigation will be instrumental in reducing the high costs of insurance.

Libby James Esq, Plaintiff’s Attorney, Corpus Christi, Texas:
The juries seem to agree with the concept that the elderly person’s life has value. Juries across the country have begun returning increasingly large verdicts against nursing homes. According to a July 27, 1998 Newsweek article, the number of nursing home verdicts last year doubled to thirty-one with several seven-figure awards. In California, a jury returned a verdict of $95.1 million against a facility for a fall that resulted in a broken hip and shoulder. The majority of the damages were punitive. Gregory v. Beverly Enterprises. In Texas, there have been several multi-million dollar awards including an $83 million award last year to the family of a woman who died as a result of an untreated bedsore. Waites v. Beverly Enterprises-Texas, Inc. et al. The public’s perception of nursing homes seems to play a role in the recent verdicts. As the aging population grows, more emphasis is being placed on quality healthcare and viable options for the elderly who need medical care in a long-term setting. The American population does not want the elderly to be warehoused and profits made without the facility providing good care in return.

Scott Myers Esq, Defense Attorney, Chicago, Illinois:
During the past decade, litigation involving nursing homes has grown enormously. The various factors for these phenomena are well known and frequently documented. An aging population, expanded government programs coupled with a growing awareness of the potential rewards for such litigation and increased public attention have all contributed to the growth of litigation in this field.

Steve Levin Esq, Plaintiff’s Attorney, Chicago, Illinois:
All cases involving injury and death can be emotional. Nursing home cases, however, are of a different order. In many cases, long before the clients seek a plaintiff attorney, they have undergone the emotionally draining experience of seeing their loved one become unable to be self-sufficient. Families are forced to recognize that the family cannot provide the type of care needed. They have gone through the trials and tribulations inherent in placing and supporting a loved one in a nursing home. If this experience is aggravated by what the family perceives as poor care, guilt and anger result. It is very important to separate out from the family's description of the facts the acts constituting negligence from acts that are unavoidable in the nursing home situation.

Ruben Krisztal Esq, Plaintiff’s Attorney, Shawnee Mission, Kansas:
I first became involved in nursing home personal injury cases sometime in 1984 when I was contacted to represent the interests of a 93 year old, deaf, mute quadriplegic, one legged amputee who was a resident of a nursing home. The evidence appeared to indicate that this individual was physically abused in the nursing home. The standard response that I received from several plaintiffs’ attorneys in the metropolitan area, was “Why become involved? How would I demonstrate damages? She had no lost wages. She had no medical expenses. Her future nursing-medical expenses would be negligible. Her life expectancy was almost nil”. I chose to disregard the well-meaning advice of other attorneys. I decided that if we as a society allow this type of mistreatment in our elderly citizens and in this resident in particular, then we have failed. Since then, I have concentrated my practice of law in the area of nursing home litigation. The changes in how nursing home cases are viewed have been the result of hard work on the part of the plaintiffs' bar to raise the awareness level on the part of the tortfeasor, but more importantly, the community and the trial judges. Juries have spoken nationwide and they have emphatically made it clear that elder neglect, abuse, injuries, such as bruises, skin tears, lacerations of unknown origin, decubitus ulcers, dehydration, malnutrition, broken hips, sexual and/or physical abuse and/or wrongful death, will not be tolerated.

Conclusions: The absolute number of nursing home cases has increased in the last few years. The plaintiff is winning a greater proportion of these cases than is the defense. The verdicts awarded by the juries are increasing in size, and included several punitive damages awards.  

See also our webstore for additional books on nursing home litigation.

Med League Support Services, Inc. assists with nursing home litigation by: Screening cases for merit, analyzing medical records, locating expert witnesses, preparing demonstrative evidence including time lines, chronologies and medical illustrations.