Host Sean Harris talks with Cleveland attorney and OAJ member Nancy Iler about nursing home litigation.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Nancy Iler from Cleveland, Ohio where she has her own firm and our topic today is nursing home litigation. Nancy Iler welcome to Civilly Speaking.

Nancy: Thanks, Sean, great to be with you today.

Sean: Let’s start off with a basic concept and that is the difference between a nursing home case and a more general, a medical malpractice case, because they are not the same.

Nancy: No, they are not the same. There are some similarities, but there are some I think significant differences that I think we should all be interested in. I mean in some ways there similars they may constitute a medical claim, pursuing to the statute, but there a medical claim in that you have to show most the time a breach in the standard of care proximate cause damages. Now there’s some nursing home claims that aren’t medical claims. That can be just general negligence; if a nurses aid is helping a resident to the commode and they fall that may be a general negligence claim as opposed to a medical malpractice claim or a medical claim.

Sean: How do we tell the difference?

Nancy: Facts, facts and facts and also looking at the statute which defines what a medical claim is. It has to be connected to diagnoses care or treatment of a medical condition. So looking at what was being done the incident that injured the plaintiff and then that compared to how a medical claim is defined.

Sean: So it sounds like legally, in Ohio the law treats them similarly, but that for the practitioner the approach to how we analyze and handle these claims, there are differences.

Nancy: Yes.

Sean: Tell us about it.

Nancy: Well I think, why I enjoy doing them and finding them so challenging, nursing home abuse and neglect cases is that it’s often times, and many times I can show the breach in the standard of care, that the care that was given was not the care that should have been given, but I think what’s interesting about the nursing home claims is that I want to know why that poor care was given. So what was happening at the facility that made this happen?  So for instance, was there a change in ownership? Therefore, the staff wasn’t trained properly or perhaps the STNA was not properly screened and you know should’ve failed a background check and that’s why she got angry at the resident and you know gave her two black eyes. So it’s really the story behind the incident that is important in a nursing home case.

Sean: And I gather because federal law is entangled here there are some regulations that differentiate a nursing home case from a garden variety medical malpractice case.

Nancy: Absolutely, back in the late eighties there was some federal legislation that governs every aspect of nursing home care. The government wanted, knew that they were going to be paying for care in nursing homes and wanted to be ensured some basic minimum standard of care. So the federal regulations, it’s a book we call the watermelon book because it’s got a pink cover, but in there is contained all the regulations that govern life in a nursing home, from the temperature of the food in the dining room to the care that should be given to the qualifications and the staff that works there. So the nursing home case is one where you have to be very familiar with the federal regulations. Though they don’t create a standard of care, there one technically, what I have found in the work that I have done is that all the policies and procedures at the nursing home cite to the federal regulations and all the, when I take the testimony or the take the deposition of the director of nursing they of course admit that their care that they delivered at the nursing home and the policies and procedures are in compliance with the federal regulations.

Sean: And well even if they don’t technically form the basis for a standard of care violation I suspect in discovery and depositions using the federal regulations being rules such as they are, can help create a rule based theory or theme for the case.

Nancy: Absolutely, it really it lends itself exactly to that kind of approach and it’s very understandable for both the practitioner and of course to a jury understands that very well.

Sean: And I also suspect that most times there going to agree with the regs. Right? I mean these folks aren’t going to say you know the regs are wrong and I don’t do that.

Nancy: Correct, yes well they have to be, that would put them in a bit of trouble with the government.

Sean: Licensing.

Nancy: Yes, exactly so yes no they will admit. The lawyers won’t admit that, but certainly the people that work at the nursing home will admit that there care was incompliance with the federal regulations.

Sean: And so we’ve talked a little bit about, and I heard you mention like director of nursing, I gather that again, as compared to a medical malpractice case where you are primarily focused on a doctor, a nurse, etc, there are a lot more pogs in the wheel, there’s more players in a nursing home, at least from a discovery perspective.

Nancy: You know there are. Often times the incident that brought about the harm to the plaintiff is not contained in the nursing home record so often times between family and the rest of themselves and all also through discovery, you need to do a lot of discovery to get a good picture, often times of what went on, but and those players as you mentioned are the director of nursing, the STNA’s or the state tested nursing assistant, LPN’s RN’s.

Sean: By the way, forgive me, there was a lot of alphabet soup there, what’s the difference between all those different types of nurses?

Nancy: Well you know the, a RN registered nurse is usually in the supervisory capacity at a nursing home, they are not usually bedside nurses even though people and I think families kind of expect that kind of interaction but that’s really not what happens at the nursing and if I may just take a moment, that’s what kind of makes a difference between a nursing home and a hospital. Often times families believe, that you know that they expect to see the kind of interaction that they get at a hospital at a nursing home, but you know a hospital is treating kind of acute disease processes and a nursing home is really looking to maintain a level of health and activity so there focus is different, you know and you don’t see a bunch of white coats walking around the nursing home, I mean like you do in a hospital and really the nurses really much direct the care, the doctors are really only involved very sporadically.

Sean: And now we’ve been talking, we’ve been using the term nursing home, but there are other types of facilities, such as assisted living facilities, that lots of times kind of get swept up under the same umbrella term and that’s not accurate.

Nancy: Well you know long term care facilities are growing for obvious reasons. The population is getting older, and also they are tremendous investment opportunities for lots of corporations and other entities so assisted livings are growing very quickly and what’s interesting about them is and what I just cite for some details I wrote an article for OAJ on assisted living so if people want a little more detail they may want to look that up, but assisted livings are different in that, first of all there lobby is tremendously strong because number one there is no national definition of an assisted living. Here in Ohio we call them residential care facilities. Now another state will call them something else and that lobby is also very strong in that they have fought off any attempts at federal regulations. So an assisted living facility or residential care facility is not regulated by the federal government like a nursing home is. So it’s really a matter of contract in an assisted living, what did you and the facility contract, what kind of care did you contract for? Mostly personal services care as opposed to skilled nursing care. Skilled nursing does happen in assisted living so it’s very sporadic and it’s not long term.

Sean: So how are you supposed to know what type of facility you are dealing with?

Nancy: Well, some research certainly into the resources, you know, Nursing home compare is a very good site for giving you some basic information on nursing homes. Ohio Department of Aging also has residential care facilities also listed there so it should be pretty obvious. Once you start talking to the family and looking at documents as to what’s an assisted living versus a nursing home.

Sean: Now you mentioned some state level departments, department of health does some investigation in these areas?

Nancy: Well that’s another interesting aspect of nursing home care. Not only are they governed by the federal regulations, but the federal regulations also require some accountability with nursing homes. Nursing homes must submit to an annual survey so every 12-18 months a team of surveyors go out announced, air quotes, into the nursing home and they pull random resident care records and they compare those with the federal regulations to determine if that particular facility is complying with the federal regulations. If there is some gaps in that analysis then a citation is issued, report is written up and that is available online for people to see so when I am asked often times about how do you pick a nursing home, one thing is to investigate through and review the annual surveys to see what kind of care is being delivered there and the second kind of survey that happens under the federal regulations is a complaint survey. So if a family is concerned about the care that there loved one is receiving, a particular incident has happened then if they call or other people can call but a family member can call, make a complaint with the Ohio Department of Health, they have to go out and investigate that, pull the records, talk to witnesses, maybe review documents and if they can substantiate that complaint then a citation is issued and that all, once again is online for people to view and certainly as an attorney doing this kind of work I always investigate whether there has been a complaint survey filed and review that report because that has some really interesting information in it.

Sean: There not the quickest turn around I suspect?

Nancy: Well actually that’s not, not been my experience. It’s been my experience that the surveyors will go out within a matter of days of receiving the complaint, either by phone or you can do it an e-mail complaint. So they will do their investigation. Often times for report it may take a few weeks for a report, but I think you know I haven’t waited months for a report. It’s usually just a few weeks for a report. I think the important thing with assisted living is that expectations. You know that the family members need to understand that the care their family member needs and then match that with the appropriate facility, but assisted livings once again are growing and litigation will be growing to because what I have found often times kind of cases that I see in my office are number one that this resident should never have been admitted to assisted living because they have needs that far exceed their capacity or number two that one point in time they were an appropriate admission, but their condition, physical condition has deteriorated such that they really should have been transferred out either to a hospital or to a skilled nursing home and that delay has caused some real problems. So those are the kinds of cases that I see in my office on assisted living.

Sean: And well you mentioned in the assisted living context, that the level of service is defined by contract.

Nancy: Yes.

Sean: We’ve heard lots about these arbitration clauses in the contracts that are buried in these agreements between the patients, often the patient’s family and the facility. First off, tell us about your approach to arbitration clauses.

Nancy: Fight, fight, fight, resist, resist, resist. Arbitration agreements were interestingly enough back in the day were really meant to be between similarly situated parties, business to business. Disputes were how arbitration agreements originally came to be and how they have been perverted over the years into really every aspect of our lives. You know your cell phone contract, credit card contracts and those kinds of things, but here in this particular instance you have an elderly person, often times very ill at a stressful point in their time being admitted to a nursing home is, even the courts admit, is a very stressful situation and then to be presented with a stack and I’m not exaggerating a stack of documents that require review and signature, you know is very unfair to present people with that so these arbitration agreements should be fought at every turn. Arbitration is not good for consumers. There’s a reason why the nursing home and long-term care lobby wants arbitration agreements because it favors them. I fight these all the time and there’s really been a wave of turning. I think there’s a lot of decisions all over the state in the Court of Appeals decisions that are beginning to favor turning these agreements down and that, but they’re really fact intensive. You have to do the work to determine what exactly happened at that point and time with that resident and that nursing home and really discover those facts. Take the deposition of whoever was there on behalf of the nursing home. Was it the admission director or whoever, speak with the resident or the family member that was there at the time. Understand whether they have you know a business degree or law degree or you know what did they understand they were signing so it’s all those kinds of things that will help you gather those facts necessary to submit in a motion to overturn these agreements.

Sean: And I think you shared with me previously that by attempting to have these arbitration agreements thrown out that the value of cases is higher.

Nancy: Well there was a study done by the long term care industry on arbitration agreements and their own data shows that by merely challenging the arbitration agreement that the value of the case went up. Now obviously, if you are successful in knocking that out and having your case submitted to a jury then obviously the value will go up even further, but it’s interesting that they recognize that fact.

Sean: Now forgive me, I pay attention just enough to know that I heard something on the federal level about the arbitration rule and Medicare and what was the rule to your understanding? Where do we stand with that?

Nancy: Well, CMS back in the fall has issued a directive that they would not look poorly upon arbitration agreements in nursing home admission contracts. That was something that was hard fought that victory. Unfortunately as soon as that when into effect, that provision it was quickly challenged and is now on hold and there was an election, I don’t know if you heard back in November so there’s a new sheriff in town and also now a new head of CMS so we don’t know what the status of that is so I would just encourage everyone to continue to fight these arbitration agreements. It allows some creativity as far as litigation and discovery. I think that even the most cynical judge as some point can, you know if properly laid out, will see that this is really a corporation with lawyers drafting documents that are meant to take advantage of elderly and sick people at a stressful time for them and their families and I think it’s an interesting these kinds of disputes are taken up early in litigation and I think it’s kind of a nice way to start your case off with kind of the David and Goliath traditional setup and showing the judge that this is a corporation that doesn’t really deserve to their consideration and I think once again these motions can be successfully litigated you just have to take the time to discover the facts surrounding that. You know nursing homes cases I find are very rewarding and like I said I find that they really offer a lot of avenues to be creative, but they are not just medical malpractice light cases, they are not just small mini med mals. I believe that they are different than that. I think if you analyze them like a traditional med mal you will find them disappointing because you will feel like they just don’t have the value, but I feel as though these cases have tremendous value that these are seniors who have led interesting and fascinating lives, many of them are veterans, many of them have started their own businesses, been pillars in their communities, have raised families. So I find that if you can tell their story and the fact that they were entitled to some dignity in those final months and weeks of their life I think that they can be very rewarding cases to do.

Sean: Nancy Iler as always it’s been a pleasure thanks very much for joining us here on Civilly Speaking.

Nancy: I appreciate the opportunity to have contributed. Thank you.