By Rosaleen T. McCrory, Esq. and Karen B. Corbett, Esq.
Tuesday, June 18, 2019
Nursing home litigation has significantly increased in recent years due to a combination of factors. In part, nursing home admissions are rapidly rising as people live longer, despite that they cannot necessarily remain independent. Additionally, the public perception of nursing homes is poor due to negative publicity resulting from several highly publicized cases of abuse. Many states, including New York, have a statutory cause of action for nursing home negligence, which is more favorable for plaintiffs as compared to the traditional negligence case.
The statutory cause of action for violation of resident rights pursuant to New York Public Health Law (PHL) § 2801-d is attractive to plaintiffs’ attorneys for multiple reasons including a less stringent burden of proof, the availability of damages not traditionally available under the common law causes of action, including attorney fees, and the potential for punitive damages. And, to recover under the PHL, a plaintiff only needs to prove that the resident was deprived of a right or benefit and that the violation caused the injury they are claiming. The subject violation can also be claimed based on provisions of the admissions agreement or even of the facility’s policies and procedures.
Common themes in nursing home cases are pressure ulcers, falls, restraints and allegations of physical abuse or neglect. These same themes can be the basis for causes of action sounding in negligence, negligence per se, medical malpractice, breach of contract and violation of resident rights under New York’s PHL.
Regardless of the theme of the case or the causes of action pled, the evidence in nursing home cases will always include the nursing home chart, medical records and the testimony of the resident’s family members as well as those who provide care in the facility. The nursing home chart should provide the basis for both the claims and the defenses. For example, in a pressure ulcer case, a plaintiff’s counsel will claim that the nursing home did not appreciate the resident was at risk for pressure ulcers and did not provide the resident with appropriate interventions to minimize pressure and lessen the risk of developing skin breakdown. With the advent of EMRs, ensuring you have a complete copy of the nursing home chart is sometimes complicated because many documents are maintained under separate tabs and are not printed when the chart is provided. Plaintiffs will point to deficits in the documentation to support their claims. It is important for the defendant physician to be able to show that the skin breakdown was unavoidable, even with appropriate interventions in place.
Physician involvement in nursing facilities is essential in assessing patients, developing the plans of care and in consulting and treating the patients. A physician who consults with or acts as attending the physician for nursing home patients must ensure their documentation is comprehensive, clear and timely not only to provide quality of care but also to protect themselves against liability. Where claims are brought under New York PHL, plaintiffs will almost always seek punitive damages. The PHL § 2801-d expressly authorizes the award of punitive damages and attorney fees where a plaintiff can prove the deprivation of right or benefit of a resident. While the punitive damages claim traditionally applied to the nursing facility only and not the individual physician, a recent case awarded over $1 million in punitive damages against a physician who was alleged to have destroyed records to avoid liability. As such, it is essential that all nursing home patient encounters be well-documented to guard against a potential claim for punitive damages.