Faulty wound care attracts federal sanctions, legal action
Nursing home targeted by government, lawyers
The nursing home industry often has found itself a focus of severe criticism for inadequate wound care and other maladies, and the heat is being turned up even higher.
President Clinton has launched a crackdown on nursing home abuses, which will include a focus on poor treatment of pressure ulcers. (For details, see story, p. 110.) The federal initiative comes as nursing homes are already defending themselves - often unsuccessfully - against massive lawsuits. According to Jury Verdict Research, a company that tracks nursing home cases, 11 jury verdicts were delivered against nursing homes in 1996, followed by 27 in 1997. Countless more cases are settled out of court. Some of the judgments awarded to claimants have been astronomical - in the $100 million range. In many of these cases, wound care (or lack thereof) has been a central issue.
One of the most widely reported cases involved Beverly Enterprises of Fort Smith, AK, one of the largest operators of nursing homes in the country, with about 570 nursing homes in its system. In March, a jury hit the company with a $95.1 million judgment for infractions at its Yreka, CA, nursing home. The verdict was the fourth judgment of more than $70 million against nursing homes within four months in the United States. This was not the first time Beverly has been found grossly deficient in the care of its patients; in fact, at one point, the company went on trial for murder.
Not all are guilty
Of course, many nursing homes deliver adequate or even outstanding care, and strive to stay firmly within the letter of the law and common decency. But in the eyes of some, the many abuses that have come to light have tainted the entire industry. And even when suboptimal care is discovered, regulatory agencies are often too overburdened and understaffed to effectively force reforms. One lawyer who specializes in nursing home cases noted that nursing home companies, particularly the larger ones, often ignore warnings from government agencies because they are willing to absorb any penalties rather than spend the money necessary to correct the problems.
There are several reasons why claimants are turning to the courts more often, according to industry observers. One is that government regulatory agencies have not adequately addressed the abuses that occur with increasing frequency. For instance, according to an in-depth report on the nursing home industry in Time magazine (October 27, 1997), only 571 fines or penalties resulted from the more than 26,000 sanctions recommended by federal and state agencies. Another reason for the increased litigation (and for juries that are sympathetic to claimants) is the aging of the population; more families are faced with placing loved ones in such facilities.
Finally, attorneys are discovering that these cases can be very lucrative, especially in light of the high level of sympathy jurors seem to have for incidents that involve ill treatment of elderly people. The National Academy of Elder Law Attorneys has reported a sevenfold increase in its membership since 1990, indicating a virtual feeding frenzy on nursing home indiscretions.
"Not long ago, lawyers weren't interested in pressure sore injury claims. Claimants are often elderly, have a low quality of life, short life expectancy, and no lost earnings," says David Soloway, an attorney with the law firm Frazier, Soloway and Poorak in Atlanta, which has handled numerous nursing home lawsuits. "When wounds became septic and people died as a result, those who would benefit from the claim had often abandoned the patient to the nursing home."
But there's been a big change, he adds. "Juries no longer are forgiving of that kind of behavior just because the person is old, in compromised health, or has dementia. Those are now looked at as small factors. Instead, juries place much weight on the importance of good and effective prevention."
Soloway recently wrote: "In recent years, however, the ability of healthcare professionals to prevent and treat pressure ulcers has advanced and become very sophisticated. The same is true of the ability of attorneys persuasively to prove negligence and to attach substantial monetary value to pressure ulcer litigation. Moreover, with an aging population, juries are increasingly willing to assign significant monetary value to the pain, disability, disfigurement, and sometimes death, associated with pressure ulcers."1
Are the big judgments against nursing homes having an effect on the quality of care? "That's hard to answer," says Nirja Aiyer, an attorney with the firm David Marks & Associates in Houston, which has sued Beverly Nursing Homes a number of times and won a $83 million judgement against its Borger, TX, facility. In that case, an 84-year-old female resident of the nursing home died of dehydration and infected and neglected pressure ulcers.
"The people who know are the ones in the nursing homes. It's hard to stand outside and say that things are better or not. You'd have to do an individual survey to see what, if any, improvement has taken place."
Aiyer and other attorneys defend the use of litigation to correct problems within the nursing home industry. "I think it makes companies re-evaluate their system, because they're not going to do it on their own. How do you make a company change things from without? How do you make them more responsible in their operations? Isn't that the gist of civil litigation?" says Aiyer. She adds that the Texas verdicts have gotten the attention of the state legislature, which has since taken a more active role in policing the nursing home industry.
But Debra Green, an Atlanta attorney who specializes in nursing home liability, isn't so sure that even big judgments have prompted an overall improvement of the industry. Appeals can drag on for years, and the cases often are settled before any court-ordered penalties are levied. In the meantime, the problems go unaddressed and the nursing homes skate by, says Green. She adds that serious nursing home violations are "nauseatingly widespread."
Even state inspectors who find violations don't have enough power to force facilities to promptly correct their infractions, and once again time is on the side of the nursing home, she adds. "They might see widespread negligence and document it," says Green. "Then the facility is allowed to prepare a plan of correction, which takes weeks or months."
If remedial actions aren't taken, the state can threaten a lawsuit. "Now you're into the second year," says Green. "Finally, sanctions occur, then there's an appeal, and it's not unusual to stretch this out into a third year, while there are reams of paper documenting neglect and abuse that threaten individuals. It's a nightmare."
Green also discounts the oft-cited reason of low-paid staffers as an excuse for poor-quality care. Often, staff members who actually care for patients are those at the lowest end of the pay scale, such as nursing assistants and licensed practical nurses. But Green argues that lack of training and inattentive or unconcerned supervisors and managers are at the root of the problems.
"I blame the supervisors every time," she says. "Often, administrators ignore warnings from the staff. In a facility where the administration is really concerned about quality of care, you don't have nurse aid abuse and neglect. I've seen a complete turnaround in care just by changing the administrator. Suddenly, the whole facility is vastly improved."
Reference
1. Soloway DN. Civil claims relating to pressure ulcers: A claimants' lawyer's perspective. Ostomy Wound Mgmt 1998; 44:20-26.
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