Sunday, December 15, 2013

Reforming How We Think About Tort Reform

As a general rule, in this blog we try and stay away from general political topics for a number of reasons—not the least of which is that we do not view this as an appropriate forum for espousing our political opinions (of which many Tom and I, ourselves, do not necessarily agree upon).  One political topic, however, that does directly impact the way we work and the people we represent, is tort reform. 

Over the next several months we will be writing in greater detail on the topic of tort reform—especially as it relates to medical malpractice and health care.  Our analysis of the topic will include a look at it from both a national and local perspective—including Kansas and Missouri.

The topic is of immense interest to me not only because of the impact on the work of our firm and the injured individuals we represent, but because there are so many misconceptions and so much misinformation about the topic.  And ultimately, this will be the goal of our blog posts on this topics—to expose the myths and misconceptions and set forth the facts (from sources spanning the legal and political spectrum) so that individuals can have the facts needed to make sound determinations on what to do with tort reform.

One of the great misconceptions concerning tort reform as it relates to medical malpractice and health care is the supposed devastating impact lawsuits have on the cost of health care.  This is certainly a misconception I had been under for much of my formative years and for many of the years I spent in practice representing health care providers in medical malpractice and other health care negligence claims.  The fact is, tort reform does not have a significant impact on the cost of health care.  A recent report from the Congressional Budget Office (“CBO”) concludes that limitations on the recovery available to victims of medical malpractice would reduce the cost of health care by .5%—one half of one percent.   The impact is not significant—especially when one considers the other impacts limitations have, which include the impact on the victims of medical malpractice and how such limitations impact the quality of the health care we receive.  We will address these and many other facets of this topic over the coming months. 

Saturday, November 30, 2013

Reducing Medical Mistakes

We have previously noted the on this site that there are an alarming number of deaths each year due to errors in a hospital setting.  It seems that each month another article comes out that reevaluates the evidence and concludes an evening higher number than the last.  Regardless of the source, though, the number is alarmingly high. 

If everyone can agree that the number of individuals being harmed at the hands of healthcare negligence is too high, then next questions asked must be “why?” and “how do we stop it?”  The Wall Street Journal recently published an article attempting to address both of these questions.    

Based upon the percent of total amount of medical negligence payouts (a debatable metric, but sufficient for the purposes of the article), the WSJ concludes that diagnostic problems constitute the most serious source of medical negligence.  As an attorney who spends a great deal of time reviewing potential medical negligence, I would agree that a significant amount of the cases that come across my desk are failures to diagnoses, of which many of the failures have lead to devastating harm.  Even more than the number of claims and the types of harm, though, failure to diagnose claims are troublesome because so often they go to the core of what we as patients expect from our healthcare providers.  Most often patients visit a doctor’s office (or hospital) to either make sure there is no diagnosable malady (routine checkup) or find out what is causing a concerning sign or symptom.  Society can accept that there may be problems for which science hasn't found a cure, but we expect if a diagnosis is available, it be made appropriately.  

There are many factors that can contribute to failing to properly diagnose a patient, and thus there is no one solution to the problem.  We have previously written on efforts to establish systems of care akin to what has become the standard in the aviation industry.  The WSJ discusses several additional potential solutions including the mining of information in electronic medical records, changing the way physicians approach diagnostic decision making, and the use of electronic diagnostic systems.  Additionally, the article suggests several ways in which patients can help avoid reduce these errors, too.

There is enough uncertainty in medicine—sometimes described as more of an art than a science—that sprinkling in avoidable errors by healthcare providers is a recipe for chaos.   It is virtually universal that the earlier a disease is diagnosed, the better the chance a patient has for a positive outcome.  While the number of individuals harmed by medical negligence remains disturbingly high, it is important to know that there are real attempts to being made to try and reduce the frequency—and resulting harm—of such errors.    

Friday, November 15, 2013

Help Prevent Resident-to-Resident Abuse

There have been a lot of stories in the news about bullying, harassment and other abusive behavior directed from one individual to another—most recently in the Miami Dolphin’s locker roomSuch conduct is, of course, not isolated to schools or locker rooms.  One place it is not often thought of, though, is in nursing homes.  However, resident-to-resident abuse does occur and it is something that residents and their families should be aware of and for which nursing homes have a duty to try and prevent.    
The first thing someone will think of when the issue of “nursing home abuse” is raised is a staff member mistreating a resident.  In fact, we have written a number of posts on this blog discussing various aspects of negligence and abuse in a nursing home setting arising from the acts of nursing home operators and often over-worked and under-trained staff.  However, it is important to point out that a very real yet often overlooked source of nursing home abuse stems from resident-to-resident abuse. 
Last year a study was published in the Journal of Elder Abuse and Neglect titled Resident-to-Resident Abuse in Nursing Homes as Reported by Nurse Aides.  The authors evaluated the phenomenon of resident to resident abuse in nursing homes and found “that both the scale and scope of resident-to-resident abuse is high in nursing homes” and that it was “common enough to be considered an issue of concern impacting the quality of life and safety of many residents.”
A family confronted with a situation of resident-to-resident abuse may think there is no recourse against the nursing home if the culprit of abuse is another resident as oppose to the nursing home staff.  We believe that the law dictates otherwise.  For instance, under Missouri law nursing homes or long term facilities must “ensure” that each resident admitted to its facility “[i]s free from form mental and physical abuse . . . .”  R.S.Mo. 198.088(6)(g).  The law does not distinguish whether the abuse comes from nursing home staff, another resident, or even a complete stranger.   

Your loved one has a right to live in a nursing home free from abuse from staff and from his or her fellow residents.  If there are issues with resident-to-resident abuse we would encourage you to bring these issues to the nursing home's attention immediately and ensure that they correct the situation.
-Tom and Ryan  

Sunday, October 27, 2013

Viability Is No Longer a Defense to A Wrongful Death Claim In Kansas

The Kansas legislature has recently enacted a number of widely publicized and highly controversial abortion laws.  This post does not intend to get into the appropriateness of such laws or whether the laws will be able to withstand what are likely to be a number of Constitutional challenges.  Instead, there is a small part of the new laws that directly impacts a certain type of personal injury lawsuit that we would like to shed a little light on.  Specially, how the recent abortion legislation has expanded the application of the wrongful death statute to allow wrongful death claims to be brought by the decedents of a nonviable fetus.
The issue of whether an unborn, nonviable fetus is a "person" within the meaning of the Kansas wrongful death statute (K.S.A. 60-1901, et seq.) has been previously addressed.  In 1990, the Kansas Supreme Court answered this question in Humes v. Clinton where it found that “an unborn, nonviable fetus is not a ‘person’ within the definition of the wrongful death act” and therefore the parents of a negligently injured nonviable fetus could not maintain a wrongful death action for their unborn child.  246 Kan. 590, 596 (1990).   The Court reasoned that

viability is not an illogical condition precedent when a negligently injured fetus is stillborn. A nonviable fetus is not capable of living outside its mother's womb; it cannot maintain a separate and distinct existence. Thus, a nonviable fetus which dies before birth has never become an independent living person. Toth v. Goree, 65 Mich. App. at 300, (citing O'Neill v.Morse, 385 Mich. 130, 188 N.W.2d 785[1971]). In Hale v. Manion, 189 Kan. 143, this court ruled that an unborn, viable fetus was a "person" within the meaning of the wrongful death statute because it was capable of an independent existence and regarded as a separate entity. 189 Kan. at 145.

Thus, according to the Court in Humes, “viability [is] an appropriate condition precedent to liability for wrongful death under K.S.A. 60-1901.”  Id.

This past year the Kansas legislature passed into law Senate Bill No. 142 and House Bill No. 2253. While both make a number of changes to the types of claims that can be brought related to to abortion and would suggest that Humes should be overturned—e.g., SB 142 bans “wrongful life” claims in certain situations and HB 2253 defines life as beginning at fertilization—it is SB 142 that directly addressed the previously holding in Humes and altered the application of the wrongful death statute.  SB 142 specifically amends the wrongful death statute as follows:
(b)       As used in the article 19 of chapter 60 of the Kansas Statues Annotated, and amendments thereto, the term “person” includes an unborn child.
(c)       As used in this section, the term “unborn child” means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth
As such, the death of a nonviable fetus is now considered "the death of a person" under K.S.A. 60-1901 and the heirs of the nonviable fetus may now bring a wrongful death action in Kansas.    
-Tom and Ryan

Thursday, October 24, 2013

"Never Events"--Medical Errors That Should Never Happen

Good health permitting, the vast majority of us want to avoid being a patient (or a family member of a patient) in a hospital.  At a minimum, it means being injured or sick and having to deal with the added expense, uncertainty, and overall disruption that comes along with being hospitalized.  Thus, even in the best-case scenario, hospitalizations represent an extremely vulnerable time for patients and their families.  Far too often the negative impact of hospitalization doesn't end with “best care scenarios,” especially when patients and their families must deal with the consequences of inexcusable medical errors known as “never events”—i.e., the kind of medical act or omission that should never happen in a modern hospital setting.

We have previously noted on this blog the alarming number of people that are estimated to die each year due to negligence while being cared for a hospital.  The estimate ranges from the as few as 98,000, to more recent estimates which suggest the number may be anywhere from 210,000 to 440,000.   One of the ways the health care industry has tried to address these startling numbers is through the identification and prevention of “never events.”

In 2002, the National Quality Forum (NQF) introduced the term “Never Event” to describe 27 particularly egregious medical errors (such as operating on the wrong patient or wrong body part) that should never happened.  Currently, there are 29 different events grouped into the following six categories:  Surgical Events, Product or Device Events; Patient Protection Events; Care Management Event; Environmental Events; Radiologic Events and Criminal Events.  For a complete listing of the NQF’s 29 never events click here.

While no act of medical negligence is ever acceptable and should in theory never occur, the NQF’s 29 “never events” represent some of the most egregious forms of medical malpractice.   Far too often, the health care industry has attempted to sweep under the rug the problem of medical negligence and its detrimental impact.  The public acknowledgement by the health care industry that these events should never happen is a positive step toward addressing the problem and impact of medical negligence, instead of simply trying to minimize the public perception of the problem.  

-Ryan and Tom

Tuesday, September 24, 2013

Elder Abuse Prevention

During one two year span, a study found that 1 in three nursing homes were cited for abuse of a resident.  As more and more individuals, particularly some of our society’s most vulnerable, become dependent on nursing home care—and there are more than 3.2 million Americans in nursing home facilities—the problem of abuse is only getting worse. 

While this is certainly a troubling trend, the good news is that the individual with the most power to curb the trend is you.  As I’ve written about previously written about, if you are concerned about a loved one suffering neglect or abuse, there are resources available including contacting reporting your concern to the facility administrator, hotlining the state, or contacting an attorney.  Certainly Tom and I are happy to try and counsel individuals through circumstances where they are worried their loved is suffering from neglect or abuse. 

The National Center on Elderly Abuse (NCEA) has a number of resources for help in recognizing abuse, preventing it, and stopping it.  If you suspect that someone is suffering from abuse at a nursing home please take steps to ensure that individuals are notified that can intervene and stop the abuse.

Sunday, August 25, 2013

Your Right To Nursing Home Records

A significant portion of my professional life is spent obtaining and reviewing medical records—including nursing home records.  Obtaining medical records, whether they be from a hospital, doctor’s office, or nursing home can be a trying, confusing, and expensive exercise.  In future posts we will exam some of the intricacies of obtaining medical records from hospitals and doctor’s offices, but here I want to share a law that is underutilized despite helping to ease some of the headaches associated with obtaining nursing home records. 

As I have previously written about, there are federal laws applicable to nursing homes that accept federal funds as a part of their operation (e.g., Medicare).  One of these laws is 42 CRF 483.10, which is a provision outlining specific Resident Rights.  I would encourage anyone going into a nursing home or with a loved one in a nursing home to review this part of the law so that you know what rights exist.  In the future, we will examine several of the rights contained in this provision, but for the purpose of this post I want to focus on a resident’s right to access his or her medical records. 

The relevant portion reads as follows:

(1) The facility must inform the resident both orally and in writing in a language that the resident understands of his or her rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. The facility must also provide the resident with the notice (if any) of the State developed under section 1919(e)(6) of the Act. Such notification must be made prior to or upon admission and during the resident’s stay. Receipt of such information, and any amendments to it, must be acknowledged in writing;
(2) The resident or his or her legal representative has the right—(i) Upon an oral or written request, to access all records pertaining to himself or herself including current clinical records within 24 hours (excluding weekends and holidays); and (ii) After receipt of his or her records for inspection, to purchase at a cost not to exceed the community standard photocopies of the records or any portions of them upon request and 2 working days advance notice to the facility.
(3) The resident has the right to be fully informed in language that he or she can understand of his or her total health status, including but not limited to, his or her medical condition

42 CFR 483.10(b)(1)-(3).  In other words, you have the right to review the nursing home’s medical records within 24 hours and have the nursing home explain to you in plain English what is contained therein.  Additionally, within 2 days you have the right to obtain copies of the records of interest (though there will be a cost associated with making those copies).  This can be a particularly effective method of obtaining nursing home records if you have an attorney.  An attorney experienced in nursing home litigation knows what records should be contained in a resident’s chart and by going to the nursing home to review the original can determine if there are types of records missing.  Alternatively, it is not uncommon for nursing homes to want to avoid having attorneys on the premises and will propose simply providing a copy of the records to the attorney in a timely manner—meaning days instead of weeks.

If you are concerned about the care you or a loved one is receiving at a nursing home make sure you know your rights.  Sometimes looking at the medical chart may be the only way to better understand what is going on.  The resident or a legal representative have the right to review the medical chart at the facility within 24 hours.  -Ryan

Sunday, August 18, 2013

Missouri Nursing Home Care Scores An "F"



On August 8th, 2013, the advocacy group Families for Better Care published what it refers to as the “nations first-ever, state-by-state nursing home report card,” which can be found at nursinghomereportcards.com. Families for Better Care is a Florida based organization that states that it “is a non-profit citizen advocacy group dedicated to creating public awareness of the conditions in our nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care.” In creating the Nursing Home Report Card, the group combed through a number of government documents and available data on nursing homes and assigned letter grades to each state and ranked the states from top to bottom. The group’s findings as they relate to Missouri are disturbing.


Missouri received an F from the group and was ranked 47th out of 51 (including the District of Columbia). In an August 8, 2013 press release, the group’s executive direct, Brian Lee is quoted as saying “Missouri represents what’s terribly wrong with nursing home care and oversight in America.” Mr. Lee goes on, in referencing Missouri’s dismal grade, to point out that “[i]nadquate staffing contributes to the enormity of nursing home neglect" and that “Governor Nixon and the Missouri Legislature must do a better job caring for elderly and disabled nursing home residents.” Missouri ranked near the very bottom in hours worked by nurses and nurse staffing above average.


The Report Card is an overall assessment of the state and does not identify any one nursing home. What the Report Card does, however, is underscores how much work Missouri has to do to improve the care its citizens are receiving in long term care facilities. Additionally, it reinforces how important it is to research the specific nursing home you or a loved one may be considering. In previous posts (here and here) we have suggested some available resources to consider when making this important decision. This Report Card serves as a reminder of how important that research can be. -Ryan

Sunday, August 11, 2013

A Flying Leap Forward



A very common defense in physician and nursing negligence cases—a defense Tom and I both used on many occasions when we practiced as defense attorneys—is “physician judgment” or “nursing judgment.” This type of defense applies to all types of medical malpractice cases as well as to cases involving hospital staff and nursing homes. The types of cases where the defense was applied typically involved a patient who had suffered an injury and the question in the case was whether the health care provider had met the standard of care. The defense largely goes something like this:


There were a number of ‘reasonable’ treatment choices for this doctor/nurse under these circumstances. While it’s unfortunate that the choice the doctor/nurse made did not result in a better outcome for the patient, the doctor/nurse was exercising ‘reasonable physician/nursing judgment’ and thus was not negligent.


This defense relies on the inherent ambiguity of the word “reasonable.” Additionally, it counts on a jury wanting to believe a doctor/nurse was trying to use proper judgment and concluding these are complicated situations and who is a jury to suggest a doctor or nurse didn’t exercise reasonable judgment.


There is no question that physicians and nurses have to exercise some level of professional judgment in administering quality care, but have we reached a point where to improve care, there need to be fewer “judgment calls” left to individual health care providers, and more intricate safety systems in place to dictate how health care is delivered? The industry often cited by those who are trying to systematically improve the quality of health care is the airline industry. An industry that is remarkably complicated and yet remains remarkably safe due to its stringent adherence to checklists, guidelines, and systems designed for the sole purpose of safety.


One of the more recent adoptees of the belief that the health care industry could learn a thing or two from the airline industry is Capt. Chesly “Sully” Sullenberger, the pilot who landed the commercial airliner on the Hudson back in 2009. Sullenberger describes the current state of health care as “balkanized” and strives to end death by human error in the health care industry. Some estimates put the number of deaths in the United States from medical errors every year at 200,000—well over 500 every day. Sullenberger makes the sobering point that if this were happening in airline industry—hundreds of thousands of people dying every year from aviation errors—“there would be a national ground stop. Fleets would be grounded. Airports would close. There would be a presidential commission. The NTSB would investigate. No one would fly until we had solved the problems.


Applying the safety concepts that have worked so well in the airline industry to the health care industry seems a common sense idea. Certainly one that Tom and I believe in and we anticipate writing future posts outlining the positive influence litigation can have on this idea. For now, we would encourage you to read Kyle Cheney’s full article on Sullenberger. -Ryan

Tuesday, August 6, 2013

An Agreement With Which You May Not Agree



All of us have been in that situation where we are the consumer in a transaction—which frequently means being the person with lesser knowledge of the subject in a given transaction—and are presented with a stack of papers that we are expected to sign (tried to finance a house or car recently?). The expectation to simply sign a series of documents in order to receive the item or service sought happens in a lot of industries—including nursing homes. The stack of papers outlining the admission of a new resident to a nursing home can, at times, rival the size of a resident’s actual medical chart. While all of the documents in an admissions packet are potentially important, I want to focus on one that arises a lot in the litigation Tom and I tend to see—the arbitration agreement.


Under most circumstances if there is a dispute between two parties—whether it be a contract dispute, a negligent act causing an injury (personal injury), etc.—that can’t be worked out informally then a more formal process is invoked, i.e. lawyers and all of that. An arbitration agreement attempts to prospectively dictate how a dispute between two parties will be handled. Typically anarbitration means there will be no jury and no trial, but instead that the dispute will be submitted to an independent third party—an arbitrator—who will hear the arguments of both sides and make a ruling. While the arbitration agreement applies to any number of possible disputes, remember that one of them is that if the corporation ever screws up you don’t have the right to sue them in a court of law and have a jury trial.


Whether arbitration agreements are a good or bad thing depends upon whom you ask. I am personally not in favor of them for a number of reasons that may be the basis for a future post. For now I will say that it is typically the service provider and not the consumer who wants the arbitration and it is the typically the consumer who gives up more by going into arbitration than the service provider. For these reasons, you should really consider whether you want to sign the arbitration agreement as a part of the admission packet. Here are some issues with arbitration agreements you may want to consider when reviewing the arbitration agreement (this list is not intended to be exhaustive):


1) If I refuse to sign this agreement can I or my loved one still be admitted to the facility? Some courts have found it improper to make admission of a nursing home resident dependent upon execution of an arbitration agreement. While some arbitration agreements may be silent on this issue, some will expressly state whether admission is dependent or not. If the agreement does not specify, you should inquire and get the response in writing.


2) Do I have the right to have this agreement reviewed by an attorney? Some agreement will specifically say that you have the right to review the agreement with an attorney before signing. Others will be silent on the issue. If you are in anyway uncomfortable with signing the agreement you should ask to have it reviewed by an attorney. You can be fairly certain that the nursing home had the agreement reviewed by its attorneys before presenting it to you!


3) I didn’t even realize one of the documents I signed was an arbitration agreement. That has happened a lot in the past and there are now some rules in place requiring companies that use arbitration agreements to take certain measures to make sure it is clear to the consumer that he or she is signing an arbitration agreement—as opposed to burying it in small print on page 23 of a 40 page document. If it was not made clear that you were signing an arbitration agreement it is probably not enforceable.


4) I don’t understand who is supposed to arbitrate this or what happens if there is a dispute. A lot of arbitration agreements do a poor job of a setting forth exactly what happens should a dispute arise in which the agreement would be enforced. The agreement should make it clear what rules would apply to arbitration and who would be arbitrating the matter. If it does not, or if you have questions about the rules or the proposed arbitrator you should ask the facility or request to have an attorney review it.


As I said, this is not an exhaustive list of issues that come up in arbitration agreements. I’ve tried to pick out a few things to look for when reviewing such an agreement. Certainly if you have any questions or concerns about it you should ask. If no one is able to answer your question or willing to try and answer your question then perhaps this tells you something about the facility you are considering and the nature of what they are trying to get you to sign. By and large, corporations want arbitration agreements because arbitrations are often considered cheaper for them than civil litigation. It has nothing to do with what is in your best interest. Every situation is different, but before signing one, consider carefully whether it is the right thing for you.


-Ryan

Tuesday, July 30, 2013

Who Owns the Nursing Home in Your Neighborhood?



Chances are the owner is not a person or company that lives in your neighborhood. Despite attempts to appear to the contrary, many nursing homes are part of large national, or even multi-national corporate chains. Make no mistake; the nursing home industry is BIG business. Because of this, many of these corporate nursing homes are controlled by private equity firms, which have a goal of maximizing profits.

While being a for-profit nursing home chain doesn’t necessarily speak to the level of care provided at a given facility, there have been several studies that have found for-profit—especially those that are investor owned—nursing home facilities provide lower quality nursing care than nonprofit or public homes. For instance, in a 2002 article, Does Investor-Ownership of Nursing Homes Compromise the Quality of Care?, the authors found that investor-owned nursing homes “provide worse care and less nursing care” than nonprofit or public nursing home and that “nurse staffing ratios were markedly lower at investor-owned homes.”

Ten years later, in 2012, the University of California, San Francisco published a research article which found that the top 10 for-profit chains had lower registered nurse and total nurse staffing hours than governmental facilities. The article, Nursing Staffing and Deficiencies in the Largest for-Profit Nursing Home Chains and Chains Owned by Private Equity Companies also found that when compared to government facilities other for-profit facilities also had lower staffing and that in some instances nursing home chains purchased by private equity companies had an increase in the number of serious deficiencies when compared to early ownership.

Again, this is not to suggest that a for-profit nursing facility by definition provides inferior care. These studies do, however, provide a reminder that many nursing homes are run by corporations that, despite the warm slogans and sometimes even best intentions, ultimately answer to a bottom line. This is something to consider when selecting a nursing or looking into why a nursing home may be operating a particular way.

The following is a list of national for profit nursing home chains in Missouri and Kansas: Golden Living, Kindred Healthcare (Missouri only), Life Care Centers, HCR ManorCare, National Healthcare Corporation (NHC) (Missouri only), Sunrise Senior Living, Evangelical Lutheran Good Samaritan Society (Kansas only), Skilled Healthcare Group, Five Star Senior Living, LCS, Brookdale Senior Living, Benedictine Health Systems, Stonegate Senior Living (Missouri only), Vetter Health Services, Medicalodges, and Emeritus Corp. In 2012, each of these national for profit nursing home chains was listed among the Top 50 Largest Nursing Facility Companies, according to Provider Magazine.

-Tom and Ryan

Sunday, July 21, 2013

Another Resource for Researching Nursing Homes



Every morning I have a sequence of websites I like to peruse before getting started with my day. I don’t think I am unique in this practice and I like to think of it as the2013 version of reading a newspaper. I will almost always go to a news site (both local and national) and my favorite sports blog. Then on some days I might also check out an entertainment site, checking in on a few favorite blogs of interest and, on Fridays, look at any reviews for movies I’m interested in. Thus I have hit the “front page”, the “sports” page, the “entertainment page”, the “op-ed” and the “movie reviews.” I’m not suggesting ProPublica should be added to your stable of regularly rounded websites, but I do think it’s worth checking in on everyone once in a while, depending on your needs/interest.


In a previous post I discussed the enforcement mechanisms put in place by the Nursing Home Reform Act to improve the administration of care in nursing homes, including the performance of annual and complaint surveys of nursing homes in each state. Additionally I provided various links to look up nursing homes and see how they fared in recent surveys. Whether you’re an attorney dealing with a nursing home, an individual researching potential nursing homes to utilize, or are concerned about the care being provided to a loved one currently in a nursing home, ProPublica is another very useful resource to review the quality of nursing homes.


By way of background, ProPublica was formed in 2007 as an online news source of investigative journalism in the “public interest.” Over time it has won a number of journalism awards, some of which were awarded for the first time to an online news source. While ProPublica covers the gamut of news it deems in the public interest, of particular interest for purposes of this blog is the work it’s doing on nursing homes.


In August 2012, ProPublica published a story about nursing homes and with it launched Nursing Home Inspect. According to ProPublica, the inspection tool improved on the search capabilities of the Federal Government’s nursing home website. Over time ProPublica has made improvements to its application, including frequent updates to the raw data upon which the application searches. Then in December 2012, ProPublica made significant enhancements to the application which, among other things, allowed “users to easily compare the nursing homes in each state in a variety of areas: the number of deficiencies cited by regulators in the past three inspection cycles (roughly three years); the number of serious deficiencies per home (that is, deficiencies in which patients were put at immediate jeopardy of harm); the amount of fines imposed; and how often the government has suspended payments to the home for new patients, another type of penalty.” Then just in the last month (June 20th), ProPublica has once again updated the raw data for the application (the raw data is available to be downloaded if desired).


I encourage you to go to the site and check out all of the types of information you can learn about a particular nursing home or the nursing homes in a particular area. And while you might not check it out on a daily basis, most of us at some point in the future are going to have someone we care about in a nursing home and this an excellent resource investigating prospective facilities.


-Ryan

Saturday, July 20, 2013

I Want My EMR (In Long Term Care Facilities)



This past May, Tom and I gave a presentation on discovery in the Electronic Medical Records (EMR or EHR—used synonymously, though technically they are not) in which we discussed some of the issues EMR presents in the discovery phase of litigation that were previously never an issue during those halcyon days of paper records that so neatly fit in a three-ring notebook. The presentation focussed largely on the impact of EMR on the discovery process, but in researching the presentation, Tom and I noted something we thought was odd: virtually none of the research we are doing involved long term care facilities. Our talk was designed to focus primarily on hospital records—and in the future we will no doubt write much more on the issues that arise with EMR and some of the ways that with a little patience, EMR can be a source of previously unknowable information—but we both have done a lot of nursing home work and realized that we had never really come across even a rudimentary EMR system in one of our nursing home cases. Why? And who cares?


The “why” is perhaps a more difficult question to answer than the “who cares.” We should all care. While just about everyone has a complaint about EMR—a disdain universally embraced by health care providers, defense attorneys, and plaintiffs’ attorneys alike—when understood, EMR can be actually be a beneficial to everyone. In addition to the benefits of the administration of health care—uniformity, legibility, accessibility, transportability, functionality, etc.—it can also shed light on circumstances when things have gone wrong. The metadata—the data which forms the data seen by the end user in EMR—is available and discoverable in lawsuits. But such information and benefits associated with EMR are not available to patients when a provider, such as long term care facilities, do not implement the systems. EMR provides benefits to patient care and allows for the accessibility of more information about such care.


So where is EMR in long term care facilities? One of the major reasons long term care facilities have been slow to implement EMR is that the financial incentives that exist for implementation in hospitals and physician offices are not equal to the incentives for long term care providers. Almost all long term care facilities are “for profit” and EMR systems are expensive. Irrespective of the potential benefits to residents, if it’s not cost effective, these companies are not likely to implement the systems. I will not bore you (or at least bore you further) with a lengthy explanation of HITECH (Health Information and Technology for Economic and Clinical Health Act), but among the many things the legislation does is provide incentives to health care providers to adopt EMR systems that have a “meaningful use.” In 2011 there was optimism that such incentives would lead to a higher level of adoption in the long term care setting. However, there was a concern by some that the incentives in HITECH for long term care facilities would be ineffective given how far behind these types of facilities already were in terms of implementing any type of technology into their record keeping. And the fact is, at this point, nursing home facilities are not eligible for such incentives and thus despite the adoption of EMR in more acute care settings, the rate of adoption in long term care facilities continues to drag behind. Despite the myriad benefits for patient care, in the absence of financial incentives, the adoption of EMR is “dismally” low.


Other proposed issues existing for long term care facilities not faced by their acute care brethren in implementing EMR include “differences in clinical processes and information needs lack of staff, leadership and organizational skills and capacity to acquire, implement and use technology; and lack of awareness of and need for interoperable HIE [Health Information Exchange] solutions.” While such difference may exist, the viability of such differences to justify the glacial adoption of EMR by long term care facilities strikes me as dubious in light of the benefits EMR affords in patient care. The fact is, the slower long term care facilities are to adopt EMR—and one of the reasons suggested for why long term care facilities have been so slow to this point is because of a pre-existing dearth of technology employed by such institutions—the further behind they will fall in providing patient care and the harder (and more expensive!) it would seem implementing EMR will be. EMR is here to stay and while implementation is not cheap, clearly it’s not money for nothin’.-Ryan

Friday, July 19, 2013

Allegations of Horrendous Abuse and Neglect at a Georgia Nursing Home

After posts describing mechanisms to improve care provided at long term care facilities—i.e.,surveys and hotlines to report inadequate care—it seemed timely, if not disappointing, to come across an article on Yahoo! not long ago by David Beasley concerning abhorrent allegations of abuse in nursing homes. A Georgia nursing home is facing more than 70 criminal charges stemming from allegations of abuse towards its residents. In addition to physical abuse, there are allegations that the residents were subjected to inhumane conditions, tied up with bed sheets, and double diapered to diminish the frequency a resident’s soiled diaper would require changing. If you or someone you know has been the subject of nursing home abuse or neglect, please do not hesitate to report such conduct to the facility’s administration, call the appropriate government entity, and/or contact an attorney, such as Tom or me, who is experienced in handling matters involving nursing home negligence. -Ryan

Thursday, July 18, 2013

Surveying the Survey



I gave significant thought to a catchy title playing on Watchmen, but ultimately I’m not that clever. Plus, suggesting that reading a nursing home survey is anything close to reading or watching Watchmen borders on fraudulent (even for those disgusted that it was made into a movie). BUT, don’t let my failures in creative writing (or even my failure to come up with a proper metaphor since Watchmen doesn't quite work) dissuade you from reading on. Nursing home surveys are very important and being able to read a survey can be an invaluable source of information into how a nursing home operates. Whether you have a loved one in a nursing home or are going through the process of prospectively considering nursing homes, a survey gives you some insight into issues state surveyors may have found during inspections.


By way of background, nursing homes that accept Medicare and/or Medicaid residents are regulated by an ominous sounding set of regulations known as OBRA—Ominibus Budget Reconciliation Act. In 1987 the Federal Nursing Home Reform Act was attached to the 1987 Omnibus Budget Reconciliation Act (known as OBRA ’87, which would make for a cool band name) and required facilities accepting federal payments for resident care to comply with various statutory requirements. One of the enforcement mechanisms put into place were periodic surveys of the facilities. The federal government contracts with each state to conduct surveys of the facilities located in each state—in Missouri it is the Missouri Department of Health and Senior Services (MDHSS)and in Kansas it is the Kansas Department of Aging and Disability Services (KDADS). In Missouri the state law requires a survey be conducted twice a year, whereas federal law requires a survey every 9 to 15 months. Kansas simply follows the federal law and requires a survey once every 9 to 15 months. In addition to these “annual” surveys, “complaint” surveys are conducted following complaints to the state about care at a specific facility.


Surveys are often lengthy because they frequently include extended narratives from interviews the investigator conducts with selected staff members or residents, as well descriptions of documents such as policy and procedures or medical records. References to staff members and residents are anonymous, often referred to in the survey by letter or number to the individuals. The narrative may be of interest if you are looking for a specific issue or if the survey addresses a complaint you made. But if you are looking for a more general takeaway from the survey, there are a couple of places you can quickly look to get a feel for the nature and severity of any deficiencies.


The first things to consider are the “F-Tags.” These are numbers that reference the type of deficiency found. For example, a survey may reference “F323.” This is in reference to the rule requiring a facility maintain a hazard free environment. The specifics of how the facility violated this requirement can then be found in the narrative. Click here for an excellent resource in explaining each type of F-tag.


The next thing to consider is the severity and scope of the tag. This can often be found under the tag and will be represented by letters A through L. The higher the level, the greater the severity and scope. For a great explanation of meaning of each letter, go here.


Another important thing to consider is whether any penalties were assessed against the facility for the deficiencies. Often, if deficiencies are found, a facility will be required to craft a “plan of corrections” in which it must outline how it will rectify the deficiencies. Sometimes, with more serious deficiencies, a facility can be fined or even lose its reimbursement from Medicare or Medicaid. Nursing homes are required to keep recent surveys on-site for public accessibility. Additionally, if surveys for any facility can be found here.


Nursing home surveys are not the final word on how well a nursing home is caring for a resident. Negligence can occur in the absence a poor survey and a poor survey does not necessarily establish negligence. But surveys are one tool that allow us to see how well a nursing home is providing care to its resident—at least in the eyes of the government. Thus, to take it back to a metaphor that may not quite work, we are all watching the watchmen.


-Ryan

Wednesday, July 17, 2013

"Hotlining"



My wife hates the recent trend of turning everything into a verb—“hotlining”. She’s an English major (actually, she would hate reading that, too, because she would say “I’ve already graduated so I have an English degree and I majored in English”) so she tends to get annoyed about such things. But I feel like the term “hotlining” has been around for a long time—and it certainly has been in the world of nursing homes.

In a previous post I discussed nursing home surveys and briefly mentioned that one type of survey is a “complaint” survey. Hotlining is often the impetus for a “complaint” survey. Missouri and Kansas each have departments set up to handle complaints made by residents, or families of residents, concerning care at a facility—in Kansas it’s the KS Department of Health and Environmentand the Kansas Department of Aging and Disability Services [800-842-0078] and in Missouri it’s the Missouri Department of Health and Senior Services [800-392-0210]. For a more detailed review of Missouri’s reporting process and the results of reports, I would encourage you to check out their 2011 publication concerning reporting and abuse.


Once a complaint is made the appropriate department will need to determine if the issue is within its jurisdiction. If it is, an investigation will ensue. If the complaint has not been made anonymously then the reporter will receive, in writing, the conclusions of the investigation in addition to the publicly available survey, should a deficiency be found. Additionally, if the investigator finds concerns about the care provided to the resident victim, the state will take actions to attempt to correct or prevent such deficient treatment.


If you are concerned about the care either you or a loved is receiving at a long term care facility you have options. Whether it is talking to the administrator or director of nursing at the facility or contacting the state, there are ways to help ensure that quality care is being provided. And if you or a loved one has been injured by what you believe to be inadequate care at a nursing home facility you should contact an attorney experienced handling such matters, such as Tom or me, to learn about your legal options. -Ryan

Monday, July 15, 2013

Taking a Critical Look at Nursing Home Staffing Levels



“As long as drive the speed limit, I can’t be negligent.” Wrong! Driving 70 mph during a blizzard isn't reasonable regardless of the speed limit. Nursing home owners and operators often argue that as long as they have met the state/federal staffing-to-patient ratios, they have complied with the standard of care relating to nursing home staffing. The problem with this “logic” is that the standard of care requires nursing home facilities to have enough staff to meet the needs of the residents. See 42 CFR § 483.30 ("The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessment and individuals' plans of care.") As Janet Feldkamp, JD, RN explained in her article, Light Staffing Can Mean Heavy Liability, “ a nursing facility must have personnel in excess of applicable state requirements if the facility's residents require more care or supervision than can be met by the state standard.”

This means that the number of staff needed is not based on some arbitrary number (like a speed limit) but is based on a variety of factors, including the physical layout of the nursing home, but, most importantly, the actual condition of the residents (sometimes referred to as resident acuity). Resident acuity changes often and therefore requires frequent assessments. Rarely, however, do nursing homes assess residents before making staffing decisions. More often than not, nursing homes use a mathematical formula to determine staffing without ever considering the condition or needs of its residents on a given day. In other words, nursing homes will take the default position of driving 70 mph every day without considering the weather, or, in this case, the condition of its residents. This practice is not only contrary to state and federal law, it’s dangerous and the cause for many avoidable nursing home resident injuries and deaths.

Nursing homes are paid good money to provide sufficient staff to meet the needs of the residents each and every day. That is their job. If a nursing home is unable to adequately assess its residents’ acuity prior to making staffing determinations, the nursing home needs to determine why it is unable to make such assessments and make the necessary changes. Notably, the need for continual assessment to adjust staffing levels in order to ensure sufficient staff to meet residents’ needs is becoming more and more important as nursing homes are taking on sicker and sicker residents whose conditions are likely to change more often and require more one on one supervision.

-Tom