This article appeared in the September 2005 issue of Oregon Business Magazine in a special section titled, “Oregon Business Law Journal: Oregon attorneys offer legal advice for business leaders.”
NURSING HOME LITIGATION: AVOID TWELVE ANGRY JURORS
By: Vicki L. Smith, Lane Powell PC
Enormous jury verdicts against nursing homes for injury and death damages have become too numerous to blame on an isolated runaway jury or two. It’s interesting to note that some typical driving factors for large damage awards are missing from these cases. That is, things like lost earnings, life expectancy and extent of disability are not usually at issue with an elderly resident of a nursing home.
Nevertheless, juries have returned verdicts of $20 million to a 73-year-old in Florida;
$95.1 million to a 66-year-old in California; $78.4 million to the estate of a 93-year-old woman in Arkansas; and a whopping $312.8 million to the estate of an elderly woman in Texas. Scores of substantial verdicts across the country highlight the nursing home industry’s need to take these matters most seriously.
Big-dollar nursing home litigation is of fairly recent origin, but those who successfully sue nursing homes have regular themes around which they develop their investigation and trial strategies. Understanding these themes is critical to developing defense counter-strategies.
Trial themes are that nursing homes are routinely understaffed and adequate care is impossible with the claimed substandard staffing levels. A sub-theme to get the big verdicts is that the claimed understaffing results from calculated corporate decisions to maximize profits at the expense of residents. A nursing assistant making a mistake is one thing, but the brass ring comes when the jury believes the mistake resulted from a staffing strategy designed to value corporate profits over the health and safety of residents.

These themes often find support in several places. First, inadequate documentation of resident care. Eliminate that source by requiring detailed documentation. Second, complaints by current and former employees about resident care or understaffing are particularly damning.
Consider exit interviews of departing employees to identify issues, and also document staff meetings that solicit input to solve potential care problems. Third, federal and state nursing home inspections provide powerful evidence when they show serious or repeated deficiencies.
Enforce policies to eliminate patterns in such reports, and document the company’s efforts to show the value placed on the care of residents. Fourth, the profit motive argument can be compelling when documentation shows no other reasonable reasons for staffing decisions.
Prepare clear and accurate documentation of reasons for such decisions.
Evidence about profit motive, care complaints and facility deficiencies has potential to inflame even average jurors. Most jurors have some experience with nursing homes and only rarely could a juror say their loved one was perfectly cared for. And every juror has great potential to be cared for in a nursing home one day, and sees the evidence through those eyes.
Thus, the typical evidence available in these cases, coupled with even the most ordinary jury, makes for a potentially volatile combination.
Nursing homes must carefully assess these issues at each stage of the litigation, but more importantly, before such litigation arrives at their doorstep.
Vicki L. Smith is a shareholder at Lane Powell PC and a member of the firm’s Long Term
Care and Senior Housing Team. Her practice consists of defending businesses in litigation matters.