- Hello. My name is Dan Schiavetta. I'm an attorney who has been involved in nursing home litigation for over 20 years. This presentation is on how a lawyer can get justice for clients in nursing homes. This is a dry dispassionate presentation from someone who has both defended and prosecuted nursing home cases. You will not hear any graphic, horror stories or tirades against the nursing home industry. Also, you'll not hear me complain about how nursing homes get unfairly blamed. First, we should look at where nursing homes fit in the spectrum of care, going from the least amount needed to the most. Or to put it another way, from the healthiest people to the sickest. First, there are homes for adults which are like single occupancy hotels, except there is a common area where meals are served, aids, help with cleaning, and there's a doctor's office on site. These have received a bad reputation. I remember when I was a social worker in the 1980s, there was an expose in the press about some of them being "Human warehouses," but I've defended some that were well run and were the owner. And this is typically a privately owned establishment where the owner cares about the wellbeing of his tenants. Next, there is supported living where the residents have their own apartments, but their meals are delivered. An aid comes into clean and transportation is provided to doctor's appointments. A social worker typically visits periodically. Then there are assisted living facilities, which are superficially like nursing homes. They look like them from the outside. However, there for people who do not need ongoing medical care or monitoring. Typically the people there have mobility issues or have dementia, but while being physically able to get around. In the case of dementia, the people are there because while at home, they might have wandered off or forgotten where they were. At an assisted living facility, they're guided to where meals are served, are reminded after their medications and are invited to mentally stimulating activities, such as discussion groups and single longs, a nurse is on site in case anything happens. Now we get to skilled nursing facilities, nursing homes. For people who need a doctor on site and daily nursing interventions, such as pressure sore prevention, IV feeding, or monitoring after surgery. This is called long-term care. Finally, we have hospitals for short-term care where urgent medical attention is needed. Nursing homes are subject to a raft of regulations. Most of them are Medicare regulations, since nursing homes are largely dependent on Medicare. You see the main relevant Medicare Statute 42 U.S.C 1395i-3 which is the source of a whole book of regulations. 42 CFR part 43. The regulations go into every aspect of new nursing home care from qualifications of personnel to staffing requirements, to various rights residents have, such as the right to access to medical care, the right to privacy, the right to obtain treatment from mobility issues, skin integrity, protection against falls and so on. We will talk more about that later. CMS, the Center for Medicare and Medicaid Services enforces the regulations and provides guidance in several ways. One of which is the creation of what are called F-Tags. F stands for federal. These tags match up with the regulations and are used for billing and statistical purposes. They also are a guide for the investigation of any complaints or violations of regulations. They are set forth in the standard reference used by nursing homes, the long term care survey put out by the American Healthcare Association. The American Healthcare Association is a trade group, which also lobbies on behalf of nursing homes. The long-term care survey is also known as the Watermelon Book because of the coloring, the covers on page two of the supplemental materials. Actually, this is the old edition. The new one is a big loose leaf that's in my office in Manhattan. The F-Tag commentaries are the green pages. and as you can see, they're quite extensive. Aside from federal regulations, each state has its own regulations, which usually just copy the federal regulations with different code numbers. Nursing home inspections are provided for in 42 CFR part 488. The inspections are done by the State Departments of Health. You can go online in any state and find the results of inspections of any nursing home, findings as the complaints with the names redacted, of course, and the star ratings, which we'll talk about in a little bit. It's important to know how nursing homes are organized, because this has to do with liability and responsibility. And some of this is not widely known, not even by attorneys who litigate against nursing homes. They're owned by somebody, of course, it could be an individual, it could be a family, it could be a church or other not-for-profit organization. It could be a healthcare corporation, which often owns a network of homes. And for which has an overlaying bureaucracy, for example, a team supervisor who is responsible for several homes. It is important for someone who is suing nursing home to see if the network might have some liability for what happens in a home, or if it can be a source of insurance. It is important for someone defending a nursing home, to know who to report to, and to make sure the liability cannot be spread. Though both plaintiffs and defense attorneys have the same motivation when looking for insurance, they both wanna find it. Owners are called controlling persons in some states, and as such around the hook for the nursing homes liability. They don't have to be sued individually for this to happen. The idea is to reach into the pocket for proceeds that are not covered by insurance. In my experience, this rarely happens because of the difficulties in getting a judgment enforced. I know one plaintiff attorney who got a multimillion dollar verdict a few years ago on a pressure sore case. He told me he just took the available insurance and a couple 100,000 from the nursing homes coffers, and decided that this was enough to satisfy the judgment. Increasingly private equity firms are buying up nursing homes. You might have read stories about this. These are people who don't know how to run a nursing home, and they make decisions as to cutting corners, particularly cutting staff, which affect the quality of care. Nursing homes are required to have a governing body, but who is on that body is not spelled out. In practice is just the owner. They are responsible for developing what's called Q-A-P-I, QAPI. A Quality Assurance and Performance Improvement program, which monitors the outcomes of care and quality of life. Other than that, it has no spelled out responsibilities. If a facility and I'm gonna call nursing homes facilities, is under special governmental supervision, the health department, or the attorney general, whoever it is, might expand the governing body by adding a governmental overseer and add some further responsibilities. Then there's the administrator who is often a former nurse. Usual credentials, these days is LNHA, Licensed Nursing Home Administrator. Not every administrator has to be an LNHA. They're in charge of everything about the home, including the physical plant, hiring and firing, et cetera. Being an administrator is a hard job. Though, I have known some who did it for years and years. Then there is a directive nursing and the ADON, Assistant Director of Nursing. Typically the ADON is in charge of implementing the QAPI program. Below the ADON, are the RNs, registered nurses. They're in charge of each wing and some have special responsibilities. There is the MDS nurse. MDS stands for Minimum Data Set. It is a long questionnaire that according to Medicare regulations has to be completed within 15 days of entrance into the facility. It has a series of questions about the resident's physical and mental condition and use use not only for treatment, but for billing and statistical purposes. The MDS nurse might fill in the blanks by looking at the existing records, and for other things such as mental status, she might interview the resident herself. Then there is the admissions nurse. Actually almost any RN could probably do admissions, but there was one nurse who was on duty at all times in case there's a new arrival. The admissions nurse does an examination of the resident as well as filling out various mandated forms. Nursing homes are operated in three shifts, 7:00 am to 3:00 pm, 3:00 pm to 11:00 pm, and 11:00 pm to 7:00 am. Most emissions are done during the afternoon shift. Then there is the wound care nurse who does weekly rounds to check on skin integrity. There should be a body diagram done every week showing the location of any stars, irritated areas called excoriations and any pressure sores, as well as the stage of the pressure sore. More on that later. LPNs, Licensed Practical Nurses, can do some treatment, for example, change addressing. With the recent staff shortages nationwide, many facilities have been forced to get some or most of their LPNs from staffing agencies. Finally, there are CNAs, Certified Nurse Assistants, who can turn and position residents who are immobile, who can help them to meals and to go to the bathroom and to answer call bells when someone is needed. Many nursing homes have a concierge who floats around the facility and deals with any requests a resident might have. This way, the LPN or CNA doesn't get pulled away from her post. Then there's the archivist charged with a record room. In most states, medical records have to be kept for seven years or something close to it. Though, with electronic medical records, the job has changed considerably and archiving is now done by technicians or IT personnel. So far, we've been talking about direct employees with the nursing home. Now we talk about non-employees. These are people around site, but whom the facility does not control. They're independent professionals who exercise their own judgment. They are typically not paid by the nursing home. They're paid by the resident or by Medicare or another insurer. Consequently, the nursing home is not liable for their acts of remissions. By regulation, the facility has to have a medical director. But his job is not to provide direct care, but to supervise the nursing operation. He is the one who sets standards for training and performance by the nurses. If his act or remissions are at issue, he has to be sued separately. He has his own insurance. In fact, having his own insurance is a requirement for being the medical director. Then there are the attending physicians. These people are on a panel and have to be approved by the medical director. They have privileges at the facility. Like the medical director, they have their own insurance and they're paid by the resident or by Medicare or another insurer. Each resident has an attending physician and they're supposed to see them once a week. Though, in a pinch, any attending can see any resident. Sometimes the medical director himself is on the panel and he can see residents though in his capacity as an attending, not as a medical director. Most facilities of any size, have a respiratory unit with ventilators. They are operated by technicians and CNAs are supposed to monitor them at all times. The director of the respiratory unit is a highly specialized professional and often is an outside hire. Wound care and other services are often done by outside agencies, on contract with the facility. They come in and see the assigned residents once a week. Also, there may be x-ray or other filming activities done on mobile equipment operated by an outside radiologist. State inspectors are in from time to time. We'll talk more about what they do later. These are, of course, not on contract with the facility, but often they are former administrators or DONs or ADONs or vice versa, the administrator or the DON used to be an inspector. There are other staff at nursing homes. There was a social worker to handle problems with a family or as a general person to act as a conduit for complaints. It is important to look at the social worker's notes because they might contain family situation facts that don't appear elsewhere. There is a dietician who decides the diet and who monitors weight. Residents are weighed every week or they should be. Being overweight places strain on the heart. Being underweight is a risk factor for skin breakdown and pressure sores. So being able to get food into the resident is very important. The facility should have what's called an IO form. IO stands for in-out which records, what the resident eats and what the CNA estimates as the amount of feces expelled each time the resident goes to the bathroom. Diet is also important if the resident has difficulty swallowing. That is one of the symptoms of end stage Parkinson's. There is a physical therapy department and an occupational therapy department. Every resident who is not totally immobile should have the option of participating. Refusal to participate when PT or OT is needed, is an example of non-compliance, which as we can see, which as we will see, can act as a defense in a lawsuit. There is also the HR department, important if abuse or neglect by staff is alleged. And plaintiff wants to establish notice to the facility of any prior acts of abuse or neglect by a certain employee. A controller who runs the finances and is an accountant who is or should be an outside hire. The director of plant operations and his staff are important if there is a general liability claim. Many nursing home cases arise from a slip and fall, and it may be due to a slippery floor or a cracked floor as opposed to a failure to implement fall precautions. Then there is the risk manager who may or may not be on site, depending on the size of the facility. The risk manager is someone whom defense counsel will be dealing with. They deal with the broker also, and with insurance issues. I have been asked by risk managers to give trainings to nursing home staff as to how to properly chart. The informal name of the training is Defensive Charting, because a lot of defensible cases are undone by charting issues. But actually just a simply a review of what they should be doing anyway, as far as documenting treatment and any events. The typical nursing home has different units for different functions. There is a short-term rehab unit for people who have been in surgery and can be expected to return to their homes, when rehab is finished, then there is long-term rehab which might just be for people who are not expected to get better, whatever conditions they have might improve, but many are just in what's called a trajectory of decline until they die. There is often a separate dementia unit for residents who need to be watched closely, so if they don't wander off. No one is supposed to leave the facility. But one cannot prevent them after all, it's not a prison. Sometimes a resident without dementia leaves the facility AMA, against medical advice, such an event, of course, should be specifically documented. I should have said no one is supposed to leave the facility without going through the channels. 'Cause they obviously do leave the facility to visit family and to go to appointments. Anyway, exits are supposed to be closely watched, but sometimes dementia residents do manage to wander off. They're often fitted with a bracelet, which sounds an alarm if they go out the door. Regulations require certain spaces. You see the site here to the regulation requiring access to a private room for family meetings and other matters. I had to cite this regulation myself recently, a plaintiff I was representing was living in a facility that she was not suing, but she could not physically leave the facility and needed a private space for her deposition. The facility would not respond to my request until I served a subpoena on them and cited this regulation. This regulation 483-10 has a list of things the resident is entitled to. Among them are the right to conduct private conversations on the phone without anyone overhearing or to have reading matter outside the eye shot of staff. There might be a residence council to deal with complaints or facility wide issues. There was no regulation requiring one, but most larger facilities have one. I'm now going to go through what happens when something goes wrong due to the fault of the facility. You can see right away without having to go through administrative remedies. That is, unless it's a government facility with its own layer of regulations, but it looks better for the purposes of lawsuit to show that suit was brought only after everything else was tried. Care plan meetings must be held periodically with the resident and with family members. The issue can be brought up then. The social worker can be spoken to. Some facilities have a special Ombudsperson for that purpose. The facilities required to have a grievance procedure that can be used. Any plaintiff's lawyer knows how frustrating it is to have a client who has a real case and real injuries, but who was disorganized. If the lawyer is involved at this point, it should be stressed at a client or to whichever family member is responsible to be organized and write everything down. As defense counsel, one of my standard discovery demands is for a copy of any diary or journal as to the treatment at issue. Usually this helps plaintiff's case. So plaintiff should disclose it voluntarily anyway. Take photos of the injury or the pressure sore. Complain in writing and be sure to get a response in writing, save the emails and the text messages. And when the time comes, ask for a copy of the client's chart. We'll talk in a little bit about electronic medical records, EMRs. But for now I can say that they're online and they need a password to get to them. Under the new Cures Act. The resident is entitled to a patient portal, a special password through which he can view his chart, or at least most of it. There are eight classes of records that can be viewed. I won't go through them, but they're in that regulation. One thing that is not included are psychotherapy notes. I can understand that. When I was a mental health counselor, I certainly did not want my clients seeing what I was writing about them, it would've defeated the purpose of the therapy. One thing that distinguishes a plaintiff's case is the fact that the person's suing, it might be the daughter, or the grandson, or someone like that, supposedly claims that she cared a lot about her father's condition, but according to the sign-in sheet at the door, in fact, rarely visited. I've had that situation happen. It greatly diminishes a plaintiff's case. If worst comes to worst, complain to the attorney general or whoever receives complaints in that state. It might be the Department of Health. They're required to investigate. Once they come in, they note any "Deficiencies," and write up a statement of deficiencies. One such SOD is in your supplement at pages three to eight. Actually this is just the first few pages. These things tend to be pretty long. The investigator reports on everything he sees, whether or not it's related to why he was called in. It's like OSHA. OSHA might be called in to look at a defective elevator, but they also know that the light didn't turn on when they went to the bathroom. Anyway, these reports are available online and they're admissible to the extent they deal with the resident that issue. There are often statutes that make the findings of the nursing home investigator admissible in court. In New York, it's Public Health Law Section 10. The findings can be rebutted. They're not conclusive, but they're automatically in. A level of seriousness of the violation is assigned according to a scale devised by CMS. And your supplement is on page nine. You see A, B and C are, "No actual harm with potential for minimal harm." Up to J, K and L, which are immediate jeopardy, also called IJ, immediate jeopardy. Before a violation is issued and a fine or other penalty imposed often the facility can mediate, go through an informal dispute resolution or IDR. If that doesn't work, and there's a fine, the facility technically can appeal, but that's not up and done because you don't want the Department of Health angry at you. Now we get to suing the nursing home. In the first place the admission agreement might require arbitration instead of suing. This is generally bad for the resident. And the plaintiff's lobby has tried for years, largely successfully to get such clauses banned. CMS under the Obama administration issued a rule prohibiting facilities using arbitration clauses from getting reimbursed by Medicare, which of course would be a big deal. The rule was not retroactive. It was prospective to go into effect for admission agreements dated November, 2016 or later. I think I forget exact date. The rule was stayed by a federal judge and the Trump administration let the issue drop. The current version of the regulation allows arbitration clauses so long as they're not required as a condition for admission. And so long as the agreement makes clear that the resident or her representative is agreeing to the arbitration clause voluntarily. Actually I've rarely seen an admission agreement with an arbitration clause, but maybe that's just because of the part of the country I'm in. As I mentioned before, it is necessary only to sue the nursing home. You don't have to sue the owners who may be liable by statute as controlling persons. Note again, that the nursing home is not liable for the acts or admissions of physicians. Not even the medical director. I don't mind saying that one does not have to particularly know what one is doing in order to Sue a nursing home, giving how vulnerable nursing homes are as dependents, and what people are saying about them nowadays. But it's amazing how many plaintiffs attorneys don't know this. A few times I've called them up, asked what the case was about, and if they're really going after the doctor, me as the defense counsel for the nursing home, I say, they should be adding the doctor as a defendant. Now I'm not telling them to discontinue against my client. I'm basically saying, you're doing the wrong entity. That is if the statute limitations hasn't run because for doctors, it might be shorter. Also the nursing home is not on the hook for outside providers. The onsite dialysis people, the portable x-ray people, the outside wound care service. Again, if the allegations have to do with them, they'd be brought in as co-defendants. What theories of liability can be alleged against a nursing home? In the first place, obviously negligence. Some things that a nurse does might fall under general negligence and others might be nursing malpractice. The issue is important because in some states, the statute of limitations is shorter for malpractice. The law on this is often confused. I had one case where a nurse allegedly failed to notice that a chair alarm had not been placed and the resident got up and fell, Was that negligence or malpractice? And it went off on appeal. And the appellate judges agreed with both me and my adversary, who the hell knows? One of the judges said, "The case law is all over the place on this issue." Most states have a statute that makes nursing homes liable for any violation of a regulation. In New York, it's Public Health Law 2801-d, which is in your supplement at pages 10 to 12. The purpose of these statutes is to make nursing homes liable for things that would not qualify under a common law analysis. For example, an employee who assaults a resident. If the facility had no notice of this employee's propensity for assault, there's no respondent superior liability. These statutes plugged that hole. You will need to show a violation or a regulation or rule, but those are pretty extensive, as we've seen. I didn't put part 483 in the supplement because it goes on for 100s of pages. Besides, what appears in the chart, there are other places to go to, to find evidence for liability. The law on these might vary from state to state as far as admissibility, but they should always be looked at. CMS has a 5-star rating system. It's flyer on the various things that are looked at in rating a facility from one to 5-stars, along various axis is in the supplement at pages 13 to 48. We don't have time to go through the formulas, but as you can see from looking at the appendices to that document, they're strictly quantified. And a lot of mathematics and arithmetic goes on. I've been told by various people in the field that the ratings can be massaged in certain ways, but still a facility that knows it has a 1-star rating knows it has to improve. If there are enough violations found a facility goes into special focus status where it's more intensely monitored with surprise inspections. Some facilities stay on special focus for several years. The list of the facilities nationwide that are in special focus is available on the CMS website. Another source of probably admissible material as to the standard of care, something that an expert can point to is the "Watermelon" book. The F-Tags have commentaries, which are extensive. The book is practically a treatise in itself on the standard of care. On page 49 of the supplement is a couple of pages of the commentary on dealing with pressure sores. The regulation is 42 CFR 483.25 . The commentary goes on for 70 pages just on that one regulation, at 70. What do you ask for in discovery? First, obviously the chart. If it's a hard copy chart, ask for CNA accountability sheets, where they check off every time they turned to position a resident or took them to the bathroom, et cetera. Because sometimes those sheets are kept in a different place. There is no regulation requiring a facility to generate these sheets. And I've actually come across a couple of facilities that did not keep them, but certainly the better practice. If the chart is an EMR chart, ask also for the audit trails, these show any changes made to the notes before the notes are finalized. Sometimes it shows that a note was altered after the fact, which is very suspicious. Usually though they just show corrections or minor revisions. Audit trails also show when a chart was opened and who opened it, which might be important in the context of a particular case. The admission agreement, your client should already have it. But if you've lost it, ask for it in discovery. If there's a fall or some other incident, the facility is acquired to report it to the Department of Health. The incident report is not in the chart, asked for it. Along with the report, the facility is acquired to do an investigation, which would include statements from the facility's witnesses. For example, the CNA who found the resident on the floor or the LPN who was trying to transfer the resident from bed to wheelchair when the resident slipped from her grasp. Now these incidents are reported in the regular chart, but only as far as their medical implications, it might be just a brief note. Might not mention how the incidents happened. Might just mention the medical facts and any medical treatment. So you do have to ask for the incident reports and any associated statements. The facilities policies and procedures are relevant. They're required to have one in each of a number of designated areas. For example, fall protection. They are frequently updated. So you have to get the one that was in effect at the time of the incident. Visitor logs are important to show how often or how rarely family members or friends visited. There is no regulation requiring needs to be kept. And they're often disposed of within a year or two in the normal course of business. If the resident alleges something that happened while waiting for the dialysis fan or on the way back ask for a copy of the dialysis book. This is often just a salt and pepper notebook with handwritten entries showing who was transferred, at what time, and using what service. The service, the ambulance service, that is, might be liable, so it's important to get their name. Surveillance videos can be important. The worst case I ever defended involved a resident with dementia, who was not promptly moved out of his room when a fire broke out and he ended up being badly burned, 'cause he didn't know enough to escape. The video of the nurses station showed smoke billowing out of the next room while LPNs casually went about their business, just walking past the smoke. I couldn't believe what I was seeing. But if a resident was near a nursing station, when a fall happened, then the surveillance video would also be important. It is no longer an excuse that the video has been disposed off. That might have been true in the era of VHS tapes, where they had one tape for every day of the month, and every month they were all written over. But using the current R 265 technology, a digital recording of a nursing station that runs 24/7, 365 days, not motion activated but continuously running. In digital form that whole year takes up about two gigabytes. There's no reason anymore to delete anything. If they do, it looks suspicious. Emails to and from the family, if the family can't find those emails, those should be asked for. Internal emails as to treatment of the resident would be discoverable and admissible. Communications with authorities as to this resident or the condition that caused the injury might be privileged, but should be asked for. You might have heard of so-called, granny cams. These are cameras installed by the family to keep an eye on their grandmother or grandfather. There's privacy issues involved obviously as to roommates and staff passing by and people being overheard and some states don't allow them. In New York, there was a bill that would allow them, but it never got to the governor's desk. Defense counsel should find out if one was installed, and if so, ask for the recording. If inadequate staffing is alleged, ask for a census records that is accountable, all the residents on each unit and staffing records. If the chart is EMR, ask for any hard copy records. Sometimes there has been a change over to EMR and the earlier treatment isn't hard copy. The original chart is the only admissible chart under the best evidence rule. And the nursing home can't scan it and attach it to the EMR. It has to keep the original. There's one reported case where that was done and the nursing home was hit with the foliation sanction of striking the answer. So the original hard copy chart must be kept. Even with the chart being all EMR, it'll always be a hard copy. Let's call it an embryo chart for lack of a better word. It might contain the emission agreement and other initiating forms such as healthcare proxies do not resuscitate orders, things that are filled out at admission. Of course, as with any evidence, loss of records might result in spoliation sanctions. If you're defense counsel, you should warn your client not to throw at anything. I've had some close calls myself. One thing not in the regular chart would be a 24 hour report. This is a sheet with names of every resident on the unit, and notes as to what to look for and is updated every 24 hours. The nurse reads it when she comes on shift. It should be asked for, and of course, when it's produced the names of all the other residents are redacted. It is a HIPAA violation to disclose whether someone was or was not a resident of a facility if they're not directly involved in a lawsuit. Billing records are important because they might show the names of other providers who might be liable. Brochures given out at the time of admission might be important. If the claim is made that the facility did not provide the services, it promised. DNS orders, I think I mentioned that, do not resuscitate orders might not be in the chart, should be asked for specifically, saying goes for healthcare proxies. I wanna talk a bit about EMR. Most healthcare providers have to have their records in electronic form now If they want full Medicare reimbursement, under the HITECH Act of 2009. The percentage deducted goes up year by year if you don't do it. And you have to show what's called meaningful use of EMR. And they have a whole set of guidelines for that. Nursing homes are not yet required to use EMR, but most of them have made the changeover. EMR is great in some ways and not so great in other ways. I can talk for a long time about this, but briefly, for example, EMR platforms have a search function. You can search for any word you want to in the chart and it'll come up. They have a search function, because without it, with EMR, if you misplace something, you'll never find it. EMR is prone to cut and paste errors, pasting information that is incorrect or outdated. And there's only one screen at that kiosk on the unit. Only one person can be signed in at a time there. In an emergency when the resident is being handled by the physician and then by the RN and by the LPN, it'll be awkward to keep on signing off and signing on. Even though the chart was open under the doctor's name, it might not be clear who actually inputted a note. Another problem with EMR is that because it's its own separate platform where as opposed to paper just paper, anyway, it's own platform. And so records from other providers are not integrated, they can't be. They're from a different platform and the facility doesn't have the the password for that platform. So the other provider's records are attached to the PDF, which is often not searchable. You have to read through the entire PDF to find something. I talked for before about audit trails and the problems of changes between drafts and the final entry. The wound care nurse who comes by once a week might forget to finalize a note and only gets to it the next week or the week after. A chronic problem, which I hope will get resolved someday is that caregivers don't finalize notes for weeks. Also, EMR can't be passed around among attorneys in discovery. They won't sell us the software. They only sell it to healthcare providers. Believe me, I've tried. So the EMR chart, the only way to get it out of the computer is to print it out in a long PDF, which looks nothing like what the doctor or nurse was looking at when they inputted a note onto the screen. Sometimes a deposition, a witness can't authenticate her own note because she doesn't recognize it. And the PDFs have lots of repetition. Every time they print out a new note, they print out all the old notes along with it. Sometimes you see a 10 page printout that has one line of new material. Doctors who are not on site might communicate with the facility on their cell phones with remote programs like DrFirst or TigerConnect. This way, when they're somewhere else, they can look at films, answer questions, input orders. Supposedly there's no HIPAA violation in all of this because no trace of the communication is supposed to remain on the phone, but how can you be sure. Another problem with EMR programs is when the case closed, they lose a lot of their functionality. For example, when the resident passes away or is transferred out. This is not true of hard copy charts, which look exactly the same before transfer and after transfer. Nothing ever disappeared with that. But with EMR, once the case's closed, a lot of things get grayed out. You can no longer see the screen the CNA was looking at when she checked off a turn and position note. Orders that were revised might not be accessible anymore. Finally, along with the problems of not being able to sign in, lawyers have to deal with how to present an EMR in the courtroom to the jury. Ideally, you'll be given a special read-only password, and there'll be technology in the courthouse to reject what's on the screen. Good luck with that, most courthouses are don't have advanced technology. Lawyers are increasingly having to agree on how to present chart entries in court. Even if it's in violation of the business exception to the hearsay rule, because these pages are not in the form, kept in the normal course of business. And even if it's in violation of the best evidence rule, because it's not the original, whatever that might mean in this era of digital records, attorneys will have to agree on which inadmissible form they will present these records to the jury. And judges increasingly go along with this. I've talked about theories of liability. What are some common allegations? One is that the resident was inappropriate for a nursing home. She should have stayed in the hospital and the admissions nurse should have realized it. Another is that assessment of things like pressure sore risk, or fall risk were not done or not done in time. You see the regulation here that contains a list of what an assessment should measure. Another allegation is that the nursing staff did not correctly follow the doctor's orders. Another is that after something happened, for example, a serious fall, a change in mental status, something like that, the family was not immediately notified. Though, it is rare that one can show an injury approximately caused by such a failure. Another allegation is lack of informed consent. This might come into play when the facility does something that the family does not want. For example, a life saving treatment that was in conflict with the do not resuscitate form. One can imagine a lot of pain and suffering might result from that. Or the facility did not react properly or promptly to an adverse event. For example, did not find the resident on the floor until after she had expired. Sometimes when the resident is there for rehab after surgery, the surgical scar opens up, it's called dehiscence, and it was not properly attended to resulting an infection. Or it may be alleged that something happened, which should have prompted nursing staff to call in a physician. After a fall the nurses required to do a full body neuro check. In other words, to see if there's pain or loss of function or some loss of cognitive ability, such as it may be in a dementia patient. If the resident has hit her head. If the neuro check shows some deficits, the attending physician should be called in to do a further workup or the resident should have been sent to the hospital. Typically nursing homes wait for the doctor to do this, but in an obvious emergency, the nurse can do it. You might have heard in the media stories about neglect, someone who was in continent being left in a dirty diaper for a day, which by the way, is a good way to create a pressure sore, or try to call a nurse or the CNA and kept on ringing the call bell and was not answered. Failure to answer a call bell is the hard allegation approved, though the call bell system software will tell you when a call bell was activated and from what room. Another allegation is that the facility discharged the resident too soon before she was ready to turn home. Medicare pays for only 100 days of nursing home care for a certain condition. And so a discharge on the 99th day or so, we'll always look suspicious. There are defenses to all these allegations as to whether the facility should have accepted a resident, the facility is entitled to rely on the evaluation done by the doctor who discharged her from the hospital. That is unless something was obviously wrong with the resident when she arrived. Another defense that the nurses did their jobs, but the doctor did an incorrect evaluation or deviated from the standard of care as to his treatment. This defense is rarely stated by way of cross-claim as with most medical malpractice cases, at least where I practice. Defendants don't point fingers at each other because it only helps the plaintiff, but the insinuation can be there that this was a case of good nursing, but bad doctoring. An emergency situation is in defense of the failure to obtain informed consent claim. Another defense is a statute of limitations defense having to do with what's called continuous treatment. In most states, one can sue for acts or emissions going back way past limitations period. For example, if the limitations period is three years, treatment going way back past before three years ago if it was part of continuous treatment of the same condition so long as the treatment ended within the three years. But with the pressure sore, once it closes up, there's no longer any treatment. It never totally heals because the underlying tissue is still compromised. But the actual treatment is over. After that, the area is monitored, but monitoring is not treatment. So with a resident with a long history earlier pressure sores that healed up can be taken out of the case on statute limitations grounds. This is a point I stress in my defensive charting trainings. Too often, you see a so getting measured in a chart and it gets smaller and smaller, but there's never a note that it closed up, even though it evidently has. I tell these folks, be sure to write the sore has closed up. I'll spend a moment or two on pressure sores. First as a damage issue, they are deadly. Nothing is more nauseating than a photo of a pressure sore. But it might have been preexisting. I tell facilities that if a resident comes in with a sore, take a picture of it. Or it might have been unavoidable. Commonly at the end of life, all body systems break down, including the skin. These end of life sores are called Kennedy sores, for reasons I've forgotten. And they appear quickly and they expand quickly. They're unavoidable. For those that are avoidable, the facility has to watch for comorbidities that make sores more likely to appear or to grow. Diabetes is one, also malnutrition, also lack of mobility, which is why residents who are immobile have to be turned and positioned, typically this is done every two hours by the CNA. An air mattress is typically provided to provide a better cushion so that bone is not pressed to tightly against the skin. Sores are also likely with people in wheelchairs who are sitting up much of the time. The bones in the butt called the ischial, put stress on the skin under underneath. Pressure sores, which are sometimes called decubitus ulcers, are staged from one to four. Well, the old system we have to five, and excoriation is an irritated area. Stage one is a soften of the skin. Stage two is like a skin knee. Stage three is an opened area into the dermis, and stage four penetrates the underlying tissue. Sometimes the bone where it's very likely to cause osteomyelitis, a bone infection. The staging should be done carefully, and the sore is measured typically by fractions of a meter or tenths of as centimeter, rather. Width, length, depth, three dimensions. As the falls, the typical defense is that the fall was unavoidable. In the old days, when I was a social worker, we used to tie people to chairs. You can't do that anymore. Someone who is too frail to stand up, but does not realize this because of dementia has to be prevented from getting up in other ways besides tying them to the chair. A chair alarm attached to clothing goes off when the resident gets up and the alarm attaches. It isn't really a way of preventing a fall because by the time the alarm goes off, the person is already out of the chair and falling. Pressure alarms around the bed, and they go off when the resident tries to get out of bed. Also, they have beds that are scooped. So that there's a kind of like a depression in the middle that makes 'em harder to get out of it. Rugs and mats are not really fall prevention devices, they're cushioning devices. And they also create a slip hazard. So a lot of facilities deliberately do not use them. A Jerry chair is a big chair that's very hard to get out of because it's tilted backwards. Other interventions are low beds with rails, things like that. Another defense where the resident fell on the way to the bathroom is that the resident did not wait for the CNA to respond to the call bell, but tried to go to the bathroom, anyway. Another defense is that the resident was non-compliant. He was told not to pull himself up into bed, not to pull himself up in bed. So as to not aggravate sores on his heels, but he did it anyway, instead of waiting for the CNA to do it properly. Or if refuse to take his medication, you can't treat someone who resists treatment. I tell people at these defensive charting trainings. Whenever a resident is non-compliant write it down, "Non-compliant," and also write down educated on the need for doing whatever it is this person is refusing to do. Sometimes an injury is due to something that's happened at the hospital. One example is a deep tissue injury incurred during surgery, for example, maybe a hip replacement, which suddenly emerges a few days later as a pressure sore. This is just a grab bag by the way of various situations. There are a lot more defenses, depending on the facts. I'm just giving examples. Sometimes the injury is due to dementia. Going off by one's self is called eloping. Sometimes a resident with dementia goes off into a closet thinking she's going camping. This is called cocooning. And on the way to the closet, she falls. Another defense is compliance with the most form medical orders for life sustaining treatment. It may be that the treatment that would've saved the resident's life has been precluded by what has been specified in the most form. We're gonna talk about COVID-19 for a minute. Of course, it hit nursing homes hard. Due to the closed in dense nature of the facility and the susceptibility of the residents, nursing home is unavoidably some kind of breeding ground for spreading COVID. Even if precautions are taken. There have been staff shortages due to staff having COVID or being afraid of catching it if they show up for work. In New York, and I hope other places, nursing homes have been allowed to require staff to get vaccinated before they show up. It's hard to believe because these are healthcare workers and they're supposed to know this stuff, but a lot of staff refuse to get vaccinated. One administrator I know put it this way. We are dealing with a galactic level of stupidity. That is one reason why it's hard to staff a nursing home. For a time in New York and perhaps other places, nursing homes were required to accept new residents with COVID despite the health risks they would present to other residents. That didn't last long in New York. For a time, nursing homes were not allowing any visitors except in end of life situations. And then only if the family was behind a screen. In one nursing home I represented, family members were allowed to take courses to certify themselves as CNAs, so if they could get into the facility and be around their loved ones. As you can imagine, it was almost impossible with residents with dementia to get them to wear masks. This is a difficult situation. I circulated to the nursing homes I represented a list of 18 things to do to prevent spread of the infection in ways to minimize future liability. Most of these homes were doing these things anyway. Then there have been executive orders by governors to limit nursing home liability due to COVID. These orders had mostly survived attack in the courts. Typically the immunity was for allegations having to do with inadequate staffing because to repeat, it's hard to staff a nursing home with COVID. We're coming to the end now, and I wanna say a few words about insurance. Nursing homes have, of course, both general liability and professional liability insurance. Typically the deductibles are not that important. One issue that comes up is what happens pre-suit. The usual policy, liability policy, is triggered by a "Claim." In other words, some clear expression from the resident or his attorney that a lawsuit is at least being considered. The better carriers, in my view, do not wait for that to happen. They assign defense counsel as soon as the lawyer for the resident, or I should say ex-resident, although I've seen lawsuits brought by people still in the facility, they assign defense counsel as soon as they get a request for records, because a request for records is usually a prelude to a lawsuit. It's important to get on the scene quickly as the defense counsel and gets to know the facility witnesses because turned over in that field is high and they might not be around when suit is finally brought two or three years later. You might not get their cooperation then, because all they know of you is that you're a lawyer who sent them a letter. But if you're on the scene right away, not only can you develop evidence before it gets cold, you can introduce yourself to the CNA, for example, who found the resident on the floor, and tell them that we are your lawyer and get their trust and cooperation. Most nursing homes don't have excess insurance. A risk manager told me the reason, it's too expensive, might as well just be uninsured over that million dollars. For some reason, the people at AM Best and other places who rate risks, they lump nursing homes in with hospitals, which get sued in brain damaged baby cases for tens of millions of dollars. Hardly any injury in a nursing home is worth that much. One quick note as the insurance. Well, it has to do with settlement liens. If it's a wrongful death action or actually a survival action. Wrongful death actions, rarely amount to much except for payment of funeral expenses, because it's unusual for a resident in a nursing home to still be supporting somebody. I've seen it happen, but it is unusual. Anyway, a survival action where the administrative of the estate is suing for the pain and suffering suffered by the deceased person, if it's that kind of action, and the deceased resident was over 55 and on public assistance, the public assistance entity might have a lien on the estate. This cannot be compromised like a typical lien because with a typical lien, what usually happens is that the lien is prorated according to the amount of the settlement. For example, if the case settles at half of full value, the lien holder will often take half the value of the lien. But the public assistant entity's lien is not on the proceeds of any lawsuit. But on the entire estate, it cannot be compromised. In New York, the relevant statute is Social Services Law 369, which is in the supplement of pages 50 to 52. We're going to end with a brief discussion of what happens when a nursing home really screws up, and the estate attorney general decides to bring a civil enforcement action. It can result in fines, in criminal prosecution of facility employees or owners, or even in closing down the home. Often the two sides resolve matters by entering into what's called an Assurance of Discontinuance Agreement. An example from the State of Massachusetts is in your supplement at pages 53 or 59, it's online as a public record, you see the clerk's stamp there on page 53. The AOD, as it's called, Assurance of Discontinuance, might require the facility's governing body to include people designated by the attorney general and independent quality assurance monitor, someone who's had a lot of experience as a nurse or a nursing home administrator. And this quality assurance monitor keeps an eye on things goes to the site, makes recommendations, that's have to be followed. If there was fraud such as Medicare fraud, then the facility agrees to pay back the frauded amount with a segregated account. And though the facility operations are still legally the responsibility of the original owners, they have to, as I said, follow the quality assurance monitors recommendations, for the next five years or however long the ALD lasts. If the ALD is not extended and all goes well, the civil action is discontinued. This depends on the state, but the ALD is in the nature of a settlement agreement and is not admissible in evidence in any other lawsuit. And the ALD itself usually says as much. I've come to the end here. As you can tell, there's a lot more I can say about these topics. If you have any questions, here's my contact information. Thank you for your time.