Using Litigation to Protect People with Disabilities in Nursing Homes Margaret P. Battersby Black, Esq. Levin & Perconti, Chicago Equip for Equality Disability Rights Consortium March 27, 2013

The justice system’s role in protecting residents with disabilities from injury or death Nursing home lawsuits fix a broken system by focusing on individual violations Lawsuits help disabled adults and their families hold nursing homes accountable for substandard care and abuse

Misconceptions that personal injury or wrongful death cases on behalf of residents with disabilities do not have value Adults with disabilities may have a number of co-morbidities and a shortened life expectancy – Our responses: The shorter your time to live, the more important your dignity, right to live injury and pain free

Many adults with disabilities cannot and do not work – Not wage earners so economic losses are not great Misconceptions that personal injury or wrongful death cases on behalf of residents with disabilities do not have value

Many adults with disabilities do not provide economic support to others The defendant’s conduct v. plaintiff’s injuries or death Misconceptions that personal injury or wrongful death cases on behalf of residents with disabilities do not have value

Illinois Wrongful Death Act 740 ILCS 180 amended 5/31/07 to include grief sorrow and mental anguish previously only included damages for loss of society loss of society damages will be limited to the lifespan of the decedent (or survivor, whichever shorter) and considers the quality of life at immediate time before injury grief and sorrow can encompass feelings and experiences that date back decades the role of guilt in grief, sorrow and mental anguish

Illinois Wrongful Death Act 740 ILCS 180 (740 ILCS 180/2) (from Ch. 70, par. 2) Sec. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.

Litigating long-term care malpractice cases Disability attorneys should be familiar and consider the possibility of neglect and abuse in nursing homes, assisted living and by home healthcare when representing adults with disabilities – The number of residents – including the elderly and younger residents with disabilities – is increasing and will continue to increase as the baby boomers age

The Illinois Nursing Home Care Act Enacted in 1979 “amid concern over reports of inadequate, improper and degrading treatment of patients in nursing homes.” (Senate Debates, 81st Ill. General Assembly, May 14, 1979, at 184)

Four focuses of the Act 1.Sets forth rights of all long term care facility residents, including elderly residents and younger adults with disabilities, and responsibilities of long term care facilities 2.Expands the powers of the State to deal with facilities which provide inadequate care 3.Requires training and minimum qualifications for non-licensed staff 4.Provides new opportunities for residents, and community advocates to become involved in assuring quality Nursing Home care

The Illinois Nursing Home Care Act Private attorney general statute – Incentive for private firms to file lawsuits IDPH Surveys Attorney’s fees

The Illinois Nursing Home Care Act – As authority for bringing a lawsuit (210 ILCS 45/) Nursing Home Care Act authorizes a private right of action when a resident’s rights are violated and sets forth a key principle:

The Illinois Nursing Home Care Act – As authority for bringing a lawsuit – Sec An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident. It is the duty of any facility employee or agent who becomes aware of such abuse or neglect to report it as provided in "The Abused and Neglected Long Term Care Facility Residents Reporting Act".

The Illinois Nursing Home Care Act – As authority for bringing a lawsuit Sec "Abuse" means any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility

The Illinois Nursing Home Care Act – As authority for bringing a lawsuit Sec "Abuse" means any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility. Sec Neglect. "Neglect" means a facility's failure to provide, or willful withholding of, adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living that is necessary to avoid physical harm, mental anguish, or mental illness of a resident. (Source: P.A , eff )

What parameters define Neglect or Abuse for purposes of a lawsuit? Federal regulations, or “OBRA” Illinois Administrative Code

What parameters define Neglect or Abuse for purposes of a lawsuit? Recognized standards of care – These standards typically set forth guidelines for all of the most common instances of nursing home abuse and neglect: bed sores or pressure sores, dehydration, malnutrition, choking, falls, accidents, medication errors, physical or sexual abuse, infection, wandering or elopement, physical and chemical restraints, verbal abuse, special treatments and procedures such as g- tubes and tracheostomy care

The “Model” nursing homes are required follow Assess Care plan Communicate care plan Implement care plan Reassess and try new things

Federal Guidelines 42 U.S.C. §1396r (1990) et seq., as amended by the Omnibus Budget Reconciliation Act of 1987 ("OBRA") and Volume 42, Code of Federal Regulations, Part 483 setting forth Medicare and Medicaid Requirements for Long Term Facilities

OBRA ‘87 Establishes standards of care required for facilities who are reimbursed by Medicare Medicare recipients must undergo a thorough assessment process called the MDS process, or Minimum Data Set – Basis for nursing home’s reimbursement from Medicare

OBRA ‘87 Unavoidability – a common defense or nursing home theme Nursing homes will claim that injuries “unavoidably” developed – Many things required to show actual unavoidability – Can’t keep a resident they can’t care for

OBRA ‘87 OBRA will not let them get away that easy: – Quality of Care - Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. – This section defines standards to be used by State Surveyors in determining if quality care is provided.

OBRA ‘87 OBRA defines unavoidability as: – A determination of unavoidable decline or failure to reach highest practicable well-being may be made only if all of the following are present: An accurate and complete assessment (see §483.20); A care plan which is implemented consistently and based on information from the assessment; Evaluation of the results of the interventions and revising the interventions as necessary. In a nursing home case that will likely materialize into a lawsuit, at least one or more of the above are present

Illinois Administrative Code Regulations 77 Illinois Administrative Code Ch. I, Section 300 – Skilled Nursing and Intermediate Care Facilities Code – Establishes standards of care for facilities in Illinois – Facilities receiving reimbursement from Medicaid must comply – Mirrors Federal Regulations almost exactly in requirements under standards of care

Standards of care State and federal regulations Facility’s own policies and procedures Widely recognized industry standards – Eg. National Pressure Ulcer Advisory Panel

How can disability lawyers understand and recognize potential personal injury and wrongful actions for clients with disabilities?

Key areas of alert When the following occur, you must be suspicious: – Bed sores – Dehydration and/or malnutrition – Falls resulting in injury – Medication errors – Physical or sexual assault or abuse – Sepsis – Wandering/Elopement – Verbal abuse – Physical or chemical restraint – Choking

Key areas of alert If any of the outcomes occurred, you must look at a few key things: – How and why did they occur? – Were they unavoidable? – Was there an injury – Would the outcome in the absence of negligence have been the same?

Screening: What to ask during an initial consultation with a resident or family member What is the nature and extent of the resident’s injuries? What do they believe the facility did or did not do to cause these injuries? – Personal observation – A nursing home employee blew the whistle – Doctor or other healthcare provider advised them to contact a lawyer Hospitals have a duty to report suspected neglect.

Screening: What to ask during an initial consultation with a resident or family member Did they file a complaint with the Illinois Department of Public Health? – An IDPH complaint may help you determine whether or not to pursue a case. – Do not automatically turn down a prospective case if the IDPH does not cite the nursing home.

Screening: What to ask during an initial consultation with a resident or family member Chronology? – Establish a medical history before the resident’s admission to the nursing home through the time of the resident’s injury or death. – Ask about any hospitalizations or admission to other facilities Has the family already obtained medical records?

Screening: What to ask during an initial consultation with a resident or family member Other information to gather: – Full contact information – Family history Is there a will? Who are the heirs – Family involvement in their loved one’s care – Names of physicians and staff members – Co-morbidities – Results of the injuries-hospitalization, surgeries, death, etc.

Obtaining Medical Records OBRA authorizes the obtaining of records: §483.10(b)(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.

Obtaining Medical Records If the nursing homes are not complying with the record requirement, threaten to report them to the IDPH, and actually do it! – “community standard photocopies” ILCS 5/ (handout provided) Can be a $26.00 processing fee and $0.32 per page for pages greater than 50

Obtaining Medical Records Living resident – Resident themselves have rights – Power of attorney has rights Deceased resident – Authorized by Court Order, letter of office (will) – “Authorized Relative” under 735 ILCS 5/

Obtaining Medical Records Sec Authorization for release of a deceased patient's records. (a) In addition to disclosure allowed under Section 8-802, a deceased person's health care records must be released upon written request of the executor or administrator of the deceased person's estate or to an agent appointed by the deceased under a power of attorney for health care. When no executor, administrator, or agent exists, and the person did not specifically object to disclosure of his or her records in writing, then a deceased person's health care records must be released upon the written request of a person, who is considered to be a personal representative of the patient for the purpose of the release of a deceased patient's health care records, in one of these categories: (1) the deceased person's surviving spouse; or (2) if there is no surviving spouse, any one or more of the following: (i) an adult son or daughter of the deceased, (ii) a parent of the deceased, or (iii) an adult brother or sister of the deceased. See sample forms for authorized relative certification.

Where disability lawyers and Plaintiff’s lawyers may work together Representing an adult with disabilities who is no longer competent but did not have a power of attorney in place before became incompetent Frequent occurrence in my cases

Where disability lawyers and Plaintiff’s lawyers may work together Educate your clients to have powers of attorney in place Why does a Plaintiff’s lawyer want a guardian in place? – Decision making or authority to proceed with lawsuit – Who to give money to if a recovery

Educating and advising your clients through marketing Include information on nursing home abuse and neglect when reaching out to adults with disabilities living in long-term care and their families – How to identify abuse or neglect – When and how to take action

Referral Process Illinois Rules of Professional Conduct – There must be a written contract signed by all attorneys and clients – Rule 1.5 When a lawyer is referring in a contingency fee matter to another lawyer, there is no requirement that the referring attorney perform any legal work. The only requirement is that the division of fees is disclosed to the client and that the referring attorney assumes responsibility for the legal services as if he/she is a partner of the receiving attorney.

Referral Process Involvement – Referring attorneys can choose their level of involvement Fee structure – Typically, referral fees for personal injury matters are 25-33% of the attorney fees received – The lawyer who handles the case will advance all out-of-pocket costs

Referral Process Liability – Vicarious liability is real so you want to make sure you are dealing with an attorney who is financially sound and has the appropriate malpractice limits

Common Issues in Nursing Home Litigation Identifying the nursing home and its related entities – Confusing corporate structures Cost Reports: a nursing home must file cost reports every year

Common Issues in Nursing Home Litigation Identifies the Owners, Nursing Home Administrator, and Related Entities Identifies how much of money it is paying the related entities.

Common Issues in Nursing Home Litigation – Illinois Department of Public Health: deralsurvey.jsp?facilityid= deralsurvey.jsp?facilityid= Identifies the Licensee and Owners Provides Access to Surveys and Deficiencies Provides the current number of residents and staff

Common Issues in Nursing Home Litigation Statute of limitations and hidden and/or transferred ownership Mandatory arbitration agreements in nursing home contracts – Advise your clients to watch for these and never sign

Thank you! Contact: Margaret Battersby Black Levin & Perconti (direct) (firm)