Lawsuits involving skilled nursing center residents as plaintiffs are a common occurrence across the United States. Liability insurance, already a costly line item in many centers’ budgets, is on the rise.
While there is much variability in these expenditures among different states, the average U.S. skilled nursing center in 2018 is projected to pay out $2,500 per occupied bed to defend, settle, or litigate claims, ranging from a low of around $500 in Massachusetts to upwards of $8,000 in West Virginia.
The overall trend, according to Aon’s 2017 Long Term Care General Liability and Professional Liability Actuarial Analysis, suggests that there is a 6 percent annual increase in long term care loss rates and a 4 percent annual increase in claim severity—with the average claim estimated to cost $232,000 in 2018.
Starting With a Strike Against Them
Physicians and other practitioners who provide care to post-acute and long term care patients in skilled nursing centers are also named as defendants in these lawsuits, although to a lesser extent. It is also considerably more difficult for a plaintiff to prevail against an individual clinician than against an institution—especially since the public’s general impression of physicians is favorable, while nursing centers are often not as likely to be given the benefit of the doubt.
It is especially difficult for attorneys defending nursing centers to explain successfully to a jury that the resident’s pressure ulcer or Clostridium difficile infection, or the weight loss, dehydration, and ultimate death were not caused by any negligence, but were unfortunate but expected outcomes based on the resident’s clinical status and underlying medical conditions.
Conversely, since there is no such thing as perfect documentation in a nursing center chart, a plaintiff’s attorney may have a relatively easy time convincing a jury that because there is a missing chart entry, or some check-boxes on an activities of daily living sheet are not initialed off, that somehow caused injuries to the resident—even when the causal link seems dubious.
Possible Motivations for Suing
Many factors can serve as the motivation for a resident, or her bereaved spouse or adult child, to bring a lawsuit against a nursing center. It is clearly not always a matter of greed, although the chance of hitting a big jury award certainly can be an inducement. Often, a family member is experiencing guilt over their loved one’s decline and death—sometimes because they promised they’d never “put mom in a nursing home” but because of circumstances beyond their control, they had no choice but to do that.
In that case, it’s easy to understand how that family member would be searching for someone else to blame, and the center where the decline and death occurred is a natural target.
Also, many family members have wildly unrealistic ideas about how much their loved one is going to improve, or even come home, and when that doesn’t happen, they are understandably upset and disappointed. In some of these cases, a patient or family member truly believes negligence, neglect, or abuse occurred—and their main motivation is to be sure that such treatment does not occur to future residents of the center. And to be sure, there are negligent acts and omissions that occur in nursing centers from time to time.
When plaintiff attorneys advertise on billboards across the street from a nursing center or in local newspapers, “Shady Sands Nursing Home was cited by the state for all of these deficient practices” and listing them, or asking, “Has your loved one been harmed, neglected, or abused in a nursing home? Bedsores? Dehydration? Falls?” this may plant the seed in a family member’s mind that maybe there is something improper going on. It also may play into the aspects of guilt, potential financial gain, and being a crusader discussed above.
Communicate Realistic Expectations
So, what kinds of strategies can improve the care nursing centers provide, while reducing exposure to liability? Obviously, a robust quality assurance program and attention to appropriate care and documentation are a given. Beyond that: First, create realistic expectations.
Although communicating a patient’s condition, prognosis, and expected future course is generally the task of the attending physician, nursing center personnel, including nursing, social services, and therapy professionals, all have extensive experience with the care of this population—and they should also feel comfortable discussing these concerns.
As an example, a frail patient with very poor nutritional status who is refusing most meals and refusing a feeding tube is expected to develop some unavoidable skin breakdown on his trajectory to death—yet often this is not discussed beforehand with the patient and loved ones, but only charted after the fact as unavoidable. It’s much better when the possibility of such occurrences is openly discussed before they actually occur.
When Cures Can Harm
Conversations about goals of care should also be consistently undertaken, along with explanation of the poor efficacy of cardiopulmonary resuscitation in this population, and the considerable potential burdens of a transfer to the hospital.
Most long term care residents would prefer their death to occur in the nursing center, where their individual preferences are known to staff who care about them—yet often they are never asked about how they want their death to look in those terms, or anything even remotely resembling those terms—and they wind up being sent to the hospital to die in an intensive care unit.
The health care profession needs to do better on these conversations, and the medical director and attending physicians, nurse practitioners and physician assistants, are a good place to start. But social services designees can serve an important role by ensuring that meaningful conversations are actually occurring between patients, families, and physicians—and that realistic expectations are being created.
This is what person-centered care is really all about. In-services to teach nursing staff how to feel more comfortable discussing difficult issues around prognosis, serious illness, clinical decline, and death can help empower them to create and reinforce both a therapeutic alliance with patients and families, and an accurate knowledge base with a practical outlook on what’s to come.
Staff Need to Show They Care
In addition, it’s well known that people do not like to sue health care providers who seem to care about them. We know that the people who choose to work in nursing centers are special, caring professionals who have a deep love for this vulnerable, dependent population, but sometimes staff are not comfortable showing that they care. Professionalism is important, but arguably it is more important to show humanity, compassion, empathy, and genuine connection to those they serve.
Finally, many people have a natural aversion to apologizing. It doesn’t intuitively feel good to admit they made an error. Yet there’s substantial evidence that making an apology when there’s a medical error actually reduces the risk of litigation.
Laws vary from state to state as far as whether an apology is discoverable in a court of law, but in general, promptly acknowledging errors is considered a best practice—along with explaining what happened in a transparent fashion and describing what changes will be made so that such an error will not occur again.
Facilities’ counsel or risk management consultants should be able to assist with strategies, but it can be therapeutic for all involved for an apology to be offered when errors are made.
Karl Steinberg, MD, CMD, HMDC, is a long term care geriatrician in Ocean-side, Calif. He is chief medical officer for Mariner Health Central and medical director of Life Care Center of Vista and Carlsbad by the Sea Care Center. He is chair of AMDA’s Public Policy Committee and editor-in-chief of its monthly periodical, Caring for the Ages. A hospice and skilled nursing center medical director since 1995, Steinberg is probably best known for taking his dogs on rounds in nursing and assisted living centers.