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.
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