In a recent Florida case, Jackson v. Trans Healthcare, that resulted in a $114 million award for the plaintiff, understaffing was alleged as the cause of death, even though death occurred two months after the resident had left the facility.

The plaintiffs’ attorney, Wilkes & McHugh, well known for targeting long term care facilities, argued that Juanita Jackson, a resident at the facility, not only fell but suffered neglect manifest in not being turned enough so that she developed pressure ulcers, along with dehydration and malnutrition.

The reason she suffered these things, the plaintiffs’ attorneys argued, was understaffing.

Scampone v. Grane Healthcare was heard in July by the Pennsylvania Superior Court when it reversed the directed verdict (a verdict in a jury trial that bypasses the jury) against Grane Healthcare and held that punitive damages should have been able to go to the jury at the trial court level.
The plaintiffs’ attorneys used an argument that had previously been successful in suing hospitals: that the provider had responsibility for the total health care of the resident and was, therefore, responsible for the quality of that patient’s care. And adequate staffing, a court ruled in a similar case against a hospital, was a part of ensuring quality care, a precedent followed by the superior court in the Scampone case.
Ex-employees testified that the facility would allegedly learn the date of the survey in advance, bring in more staff for the survey, and immediately afterward reduce staff again. Because this indicated that the facility “violated the governmental regulations governing minimum staffing levels, corporate liability was considered,” wrote attorney Stuart O’Neal in an article about the case. “Corporate liability” is the theory that the corporation, through its management, knew or should have known of a situation that impaired the quality of care, such as chronic understaffing.
Based solely on ex-employee testimony, without looking at census or staffing sheets, the Pennsylvania Superior Court bought the understaffing argument.
The case is now on appeal to Pennsylvania’s western district court.

Staffing Argument Covers All Bases

The purpose of bringing up the staffing issue, O’Neal thinks, is to deflect attention from the fact that an allegedly injured patient was quite elderly and had a portfolio of co-morbidities.
In Scampone, 94-year-old Madeline Scampone died of a heart attack, allegedly brought on by a urinary tract infection, dehydration, and malnutrition that was allegedly the result of inadequate staffing. But Scampone was also suffering from a host of other medical conditions that could have contributed to the heart attack, defense claimed.
Saying a facility provided inadequate care due to insufficient staffing is “used to distract the fact finder from the true facts of the case,” O’Neal says.

Records Critical

The focus on staffing is clearly a potent argument for plaintiffs’ attorneys, and it creates difficulties for facilities attempting to defend themselves in a legal attack.
“A lot of discovery rulings require the facility to produce four or six years of staffing records” in order to determine whether the facility has a pattern of understaffing, and that means facility staff must spend a lot of time digging up old hard-copy documentation that reflects what the staffing level was each day for the past four years, O’Neal says.
He’s had cases where the facility has had to locate as many as 15,000 pages of documentation—a burdensome task for staff who are needed to care for patients, he says.
Health care reform could make the focus on staffing in litigation even worse, says Priscilla Shoemaker, AHCA legal counsel. Under the new transparency section of the Patient Protection bill, new staffing reporting requirements are likely to “exacerbate the problem by giving plaintiffs’ attorneys easy and direct access to much more detailed facility-by-facility staffing information,” she says.
For example, staffing levels for all nursing categories (registered nurse, licensed practical nurse, certified nurse assistant) will have to be reported electronically by the facility and made available to the public by the government.