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

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

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

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