Equip for Equality
Disability Rights Consortium
March 27, 2013
Using Litigation to Protect People
with Disabilities in Nursing Homes
Margaret P. Battersby Black, Esq.
Levin & Perconti, Chicago
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
Misconceptions that personal injury or wrongful death cases on
behalf of residents with disabilities do not have value
• 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
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
Provides new opportunities for residents, and community
advocates to become involved in assuring quality Nursing Home
care
4.
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. 2-107. 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. 1-103. "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. 1-103. "Abuse" means any physical or mental injury
or sexual assault inflicted on a resident other than by
accidental means in a facility.
• Sec. 1-117. 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. 96-1372, eff. 7-29-10.)
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 gtubes 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:
– 483.25 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” - 735 ILCS 5/8-2006
(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 5/8-2001.5
Obtaining Medical Records
Sec. 8-2001.5. 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
• http://www.hfs.illinois.gov/costreports/
• 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:
http://www.idph.state.il.us/webapp/LTCApp/fe
deralsurvey.jsp?facilityid=6003628
• 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
312-516-1137 (direct)
312-332-2872 (firm)
mpb@levinperconti.com
www.levinperconti.com