Nursing homes are affected by many challenges, some of which directly affect the quality of care and allegations of nursing home negligence. The challenges were highlighted by speakers at Preventing and Defending Long Term Care Litigation at The Conrad in Miami, April 4-5, 2011. I moderated a panel of defense and plaintiff attorneys and another legal nurse consultant. Here are some more of the main points of the conference:

State and Federal surveys provide both plaintiff and defense attorneys with opportunities in nursing home litigation. Plaintiff attorneys are targeting specific facilities by reviewing their survey history and tailoring their advertisements to cover key items. Here is how it works. The plaintiff attorney obtains a copy of the facility’s survey report and reproduces the citations in an advertisement. The firm highlights the primary allegations and invites those who have been a resident at that facility or had a family member as a resident, to call the law firm.

The defense attorney can use simple color coding to stress the minor nature of the deficiencies found on a survey. Think of a grid that has four rows and three columns. The rows are, from top to bottom:

1. Immediate jeopardy to resident health or safety (color row red)
2. Actual harm that is not immediate jeopardy (color row red)
3. No actual harm with a potential for more than minimal harm that is not immediate jeopardy (color row yellow)
4. No actual harm with potential for minimal harm (color row green)

The columns are “isolated, pattern, and widespread.” The grid is filled out to show the number of deficiencies and when they were corrected.

Here is another effective piece of demonstrative evidence. The plaintiff attorney might list the survey date and the description of the survey, showing the level of deficiency. The plaintiff attorney adds a row to show when the resident’s admission began and a second row to show when it ended. To combat this, the defense attorneys reviews all of the surveys and adds those surveys that showed no deficiencies. This creates a more balanced view of the data.

The information in this blog post is drawn from the slides and presentation of Ami Demarco, Esq. of Purcell and Wardrope and Eugene Giotto, Esq of Buchanan Ingersoll and Rooney.

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