Missouri Nursing Homes and the Attorney General

We have written several posts concerning resources for individuals to research and review the quality of care provided by a particular nursing home.  Additionally, we have provided resources that concerned family members or loved ones can utilize if they are concerned about ongoing care problems at nursing home or long term care facility.  There is another, albeit lesser known, option available in Missouri, which is to report the facility to the Missouri Attorney General’s office. 

Missouri’s Omnibus Nursing Home Act is Missouri’s statutory scheme to govern nursing homes operating within the state.  From a legal perspective, the Nursing Home Act contains a number of important provisions outlining how nursing homes operating a facility within Missouri must be licensed, maintain records, comply with various state standards, and many other regulatory requirements.  For the purposes of this post, however, there is one section in particularly I want to focus on—Section 198.093: Violations of resident’s rights—complaints—legal actions—damages.

Section 198.093 allows a resident to file with the attorney general a complaint of an alleged deprivation or injury while at a nursing facility.  It is important to note, though, that the complaint needs to be filed “within one hundred eighty days of the alleged deprivation or injury.”  Upon reviewing the complaint, if the attorney general does not initiate legal action within sixty days of receipt of the complaint, a civil action can be brought against the nursing home for specified violations under the Missouri Nursing Home Act.

It is additionally worth noting that filing a complaint with the attorney general can, in some circumstances, allow for the recovery of punitive damages and attorneys’ fees that may not otherwise have been available.

Ultimately, the Missouri Nursing Home Act is one more resource available to residents—and the family of those residents—trying to ensure they are receiving the car they desire while at a nursing facility.    

-Ryan

The Importance of Understanding Tort Reform

In our previous post, titled Reforming How We Think About Tort Reform, we indicated that over the next year we would be publishing several posts addressing the impact of tort reform on health care and set forth the facts behind a number of the arguments frequently bandied about when it comes to this topic.  Within weeks of publishing that post, an excellent example of the importance of understanding the facts and the driving forces behind the arguments was published in the Kansas City Star. 

On December 29, 2013, Lancer Gates, D.O published an op-ed piece in the Star outlining his concerns over the Missouri Supreme Court’s recent ruling that the Missouri cap on non-economic damages was unconstitutional.  In doing so, he offers a number of standard pro-tort reform arguments—namely that the absence of tort reform drives up the cost of health care while diminishing the quality of health care.  In referencing life in Missouri in the absence of a cap on non-economic damages:  “As a result, lawsuit premiums skyrocketed,driving physicians out of their practices, compromising patient access to care,decreasing the quality of health care services and generating higher healthcare costs for everyone.”  There is virtually nothing in the article offered as support for these significant accusations and at least some of the facts that are offered as support are highly debatable as has been effectively noted by Brett Emison here.

I’m not going to go through the problems with some of Dr. Gates’ facts.  I point out this article because it exemplifies the problem with the debate over tort reform—the substitution of fact based reasoning with fear inducing platitudes.  Our hope is to replace these fear based arguments with facts and context about tort reform, its purpose, and its impact on health care.  

-Ryan

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. 

-Ryan

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.    

-Ryan

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 room.  Such 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  

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

"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