Newsletter Spring 2003
Nursing Home Care

A quiet pandemic is occurring in nursing homes across our country. Each year thousands of America's elderly are killed, frail victims of premature and preventable deaths. Most of these deaths are caused by fatal neglect traced to starvation, dehydration or pressure sores.

Nursing home abuse is difficult to quantify because most cases are undetected or under reported. Reported statistics may be just the tip of the iceberg. During a two-year period, approximately one out of every three U.S. nursing homes was cited for abuse violations. However investigators working in nursing homes estimate that 80% of elderly neglect and abuse goes unreported1,[2]. They describe wrongful deaths in nursing homes as "massive" and "pervasive" and generally a result of an inadequate staffing.

The most frequent abuse violation was failure to properly investigate and report allegations of resident abuse, neglect or mistreatment and also to ensure that nursing home staff do not have a history of abusing residents. Other common abuse violations include failure to develop and implement policies prohibiting abuse/ mistreatment and failure to protect residents from sexual, physical or verbal abuse.

Nursing Home Deaths
A random study was done in 1998 to determine the cause of death of 62 people who had died in California nursing homes. The General Accounting Office (GAO) using subpoenaed medical records and nursing notes, determined that over 50% had received "unacceptable care" and had died of dehydration, malnutrition or raging infections from uncontrolled bedsores.[2]

A similar study was done in Arkansas in 1999 examining cause of death in 100 residents. This study demonstrated that over 30% of the death certificates showed an incorrect cause of death. It was determined that these actually represented wrongful and preventable deaths, caused by dehydration, malnutrition, including choking, or from sepsis from bedsores.[2]

Law enforcement authorities are rarely notified of deaths by neglect and coroners and medical examiners are seldom called. Dr. Di Maio, the medical examiner for San Antonio, Texas has researched negligent deaths in nursing homes extensively. He states, "It's homicide. Don't sugarcoat it. Enormous numbers of patients are being killed in nursing homes throughout the country because the administrators or the corporate executives order the staffing reduced to the point where the staff cannot provide the promised care that's needed for their patients to survive." The U.S. Department of Health and Human Services reported to Congress this year that nine out of 10 nursing homes have staffing levels too low to provide adequate care.[2]

Signs of Nursing Home Abuse
Knowing the signs and symptoms of nursing home abuse is critical. Physical signs may include: open wounds, cuts, bruises, welts, and/or skin discoloration or deterioration, dehydration, malnutrition, loss of weight and burns. Emotional changes to consider include: behavioral changes, emotionally upset or agitated, withdrawn or non-communicative, and unusual behaviors (sucking, biting, or rocking). Signs of neglect may include: poor personal hygiene, withholding medication or over-medication, incorrect body position, lack of assistance with eating and drinking and unsanitary/ unclean conditions.

Nursing Home Reform
The Omnibus Budget Reconciliation Act (OBRA), passed in 1987 was the beginning of nursing home reform legislation. While OBRA became effective in 1990, its' implementation regulations were not published until 1992. The regulations require nursing homes to make a detailed assessment of a resident's condition when he or she is admitted, to create a detailed plan of care and to maintain the resident at the highest level of functioning. The resident's condition should not deteriorate unless it can be documented that the deterioration was unavoidable.

Nursing Home Malpractice Increasing
While OBRA `s detailed requirements may provide a theoretical framework for plaintiffs, the elderly are often under represented in nursing home litigation. Lost earning potential or future health care costs were not there for the most part. There may not have been incentive to sue for monetary damages. If a resident was a Medicaid recipient, they would likely have to reimburse the state for past Medicaid benefits and would receive only a fraction of the award. Social factors such as residents' competency or confusion and the lack of family or friends willing to initiate a lawsuit may also impact decisions regarding litigation.

Despite these obstacles, there has been an increase in medical malpractice as older people are more frequently involved in litigation. They are being awarded substantial damages against healthcare providers, based on pain and suffering, cost of care for pressure ulcers, wrongful death, and loss of companionship. Significant punitive damages have been awarded for negligent care.

Citing a report in The Wall Street Journal, Begley (1999) notes that in the period from 1987 to 1994, the average award in a nursing home negligence case increased from $238,285 to $525,853. Punitive damages for nursing home lawsuits were 20% compared to only 5% for personal injury litigation. Rowe reported on a study of nursing home jury verdicts from 1996 to 1998, noting that in 28 out of 30 plaintiff verdicts/settlements in pressure ulcer lawsuits, compensation averaged $973,340.92. [3]

An Arizona jury awarded $200 million in compensatory damages in 2000 to an Alzheimer patient's development of bruises on his arm, hand, and buttocks and a decubitus ulcer on his right hip. A Florida jury awarded $720,000 in compensatory and $2,000,000 in punitive damages in a wrongful death action in 1997.[4]

Federal and state survey results done on nursing homes have become powerful tools for plaintiffs. State inspectors must survey facilities receiving Medicaid and Medicare funding at least every 15 months. Inspections may also occur more frequently for cause, such as charges of abuse and neglect. These public documents have been introduced in trials to show a pattern of poor care, organizational neglect or understaffing at the nursing home. This has been used for both the actual condition for which the plaintiff is suing but also to show that the nursing home was aware of certain inadequacies prior to the plaintiff's injury.

Nursing home litigation defendants may include the resident's attending physician, the facility's medical director, the nursing home's parent corporation, the management company, and possibly the president of the corporation. Litigation involving nursing homes generally results from treatment issues 42%, negligent supervision 34%, premises liability: 8%, business-employee negligence: 8%, physical/sexual abuse: 6%, other: 2%. Defense is successful in approximately 50% in cases against nursing homes and associated defendants. [4]

Insurance industry statistics estimate loss costs (the annual cost of settling and defending claims) has increased at an annual rate of 20% within the past five years. Liability premiums for some nursing homes have increased as much as 600% annually; with less than three percent of insurance companies offering new liability policies to nursing homes.[4]

Risk management programs are aggressively trying to reduce the legal liability of its insured facilities. Programs such as the Long-Term Care Clinical Risk Modification Program have been developed by national liability insurers to provide educational workshops and training materials in efforts to limit their legal liability.

Federal False Claims
In addition to malpractice and personal injury suits, a series of civil actions against nursing home operators has been brought by the Federal government for alleged violations of the Federal False Claims Act. Government prosecutors allege that if a nursing home submits Medicare or Medicaid claims for care the government considers substandard, the claims are false. The argument against the government's theory has been that Federal statutes and regulations govern nursing homes, as well regulatory agencies allow homes providing substandard care to continue receiving Medicare and Medicaid payment while they correct their deficiencies. Until recently, most of the cases had settled, and the government's theory had not been addressed in a published court decision, however recently a Federal judge refused to grant the defendant facility's motion to dismiss, permitting the government's case to proceed.[5]

Specific Medical Issues in Nursing Homes
Bed injuries may include strangulation and suffocation. The space between side rails can trap an elderly person's head, resulting in strangulation or may allow a thin, frail person to squeeze between the rails and fall to the floor. If mattresses fit loosely in the frame, gaps may allow the resident to be trapped between the mattress and side rail leading to suffocation. There were 74 reports of death from strangulation or suffocation involving hospital beds between 1993 and 1996 and the federal General Accounting Office has concluded that many deaths go unreported.

Fractures most commonly result from falls in the elderly. It is critical to continually assess patients to determine their risk for falling, and provide safety devices or services to minimize the risk of injury to the resident. Risk factors related to falls include: history of previous falls, cardiac arrhythmias, stroke, central nervous system disorders such as Alzheimer's or Parkinson's diseases, problems with mobility and gait, orthostatic hypotension, incontinence of bowel or bladder, visual impairments, use of restraints and medications.

After performing a thorough nutritional assessment, a nursing home must ensure that the resident maintains good nutritional health and provide residents with a well-balanced, palatable meal. Improper nutrition or malnutrition can lead to infections, confusion, and muscle weakness resulting in immobility and falls, pressure ulcers, pneumonia, and decreased immunity to bacteria and viruses. Malnutrition is costly, lowers the quality of nursing home residents' lives, and is often avoidable.

Medication errors occur very frequently in nursing home facilities. There are very specific guidelines regarding medication administration in the Interpretative Guidelines for the Long-Term Care Survey. This document outlines various types of medications that generally should not be given, should not be given in specific combination, or should be given only with caution. It also contains 20 pages of directions on how a surveyor is to determine if the resident is receiving unnecessary medications. A facility can almost certainly expect a deficiency if the surveyor believes the interpretative guideline has been breached, regardless of the medical justification for doing so.[4]

It is projected that about five to ten percent of nursing home patients even in well-run institutions with vigorous monitoring programs will develop pressure sores. Incidence of pressure ulcer development is directly related to the length of stay in a facility, with more than 20% of residents developing a pressure ulcer after two years in a nursing home.[6] Risk factors for developing pressure ulcers include immobility, incontinence, and age.

One study that examined 162 lawsuits related to pressure ulcers, found that suits were filed as personal injury, negligence cases, breach of contract, and some with criminal convictions secondary to neglect. This study found that prior to 1987, plaintiffs in cases of pressure ulcers were generally younger (less than 48) however since 1987, the majority are older than 72. It is believed that older adults are no longer automatically dismissed as poor negligence clients and that the plaintiff's vulnerability, complete dependency, and inability to advocate for themselves in nursing homes and hospitals helped to have the courts and juries be even more sympathetic.[6]

Time is often a critical factor to the development and healing of pressure ulcers. There is generally ample evidence of patterns of conduct in the medical record, particularly when the records are kept poorly, constructed after the fact, fail to note obvious problems, display contradictions between different departments, or contain doctor's orders that were not carried out.[6] Litigation experts are concerned with the perception of aggressive treatment coupled with communication with the family and documentation, particularly photographs of pressure ulcers.

About one-third of the cases in this study were in favor of the defendant. Critical factors included: documentation that showed the standard of care for pressure ulcers was adhered to rigorously; record of an underlying disease and complications that made the development of pressure ulcers inevitable; aggressive and comprehensive programs used by the facility to prevent and treat pressure ulcers; demonstrating the resident's pre-existing weakness or frailty, and alleging contributory negligence.

Community Resources
Families and consumers can research federal and state survey results of prospective nursing homes on the Internet.7 Oregon is only slightly better than the national average of health deficiencies identified on such surveys: national average is 6 and Oregon is 7, with a range of 0-32 health deficiencies per facility. Of the 31 nursing homes in the Portland area, 13 exceed the average of six deficiencies, two of which have greater than 20 deficiencies.

Conclusion
It is no longer acceptable to assume grievous health care deficiencies by nursing facilities as part of aging. Identifying deficiencies in nursing home care is complex and multifactorial. Using the nursing expertise at Century Consulting can help to highlight these complexities, particularly related to federal and state regulations.

1) http://www.house.gov/reform/min/ pdfs/pdf_inves/pdf_nursing_abuse_rep.pdf

2) http://www.ccfj.net/NHSTLseries.html

3) Juliano, E. Medical Information Management; Reporter; July 2000; 3(3)

4) Goodykoontz, JG. Physician liability in the nursing home; Clinics in Family Practice 2001; Sep; 3(3); 529-534

5) Landsberg, BS; Nursing homes face quality-of-care scrutiny under the False Claims Act. Healthcare Financial Management Jan-2001; 55(1): 54-8

6) Bennett, RG; The increasing medical malpractice risk related to pressure ulcers in the United States. Journal American Geriatric Society. 2000 Jan;48(1):73-81

7) http://www.medicare.gov/NHCompare/Home.asp