By Michael A. D’Amico and Christine Norton
July 2017
Case Selection:
Nursing home litigation requires careful case selection. Like other professional negligence cases, the liability must be clear and the injury significant. And the plaintiff must be likeable. Ideally, the plaintiff’s family must also be likeable and the family must have been involved with the plaintiff with a consistent pattern of visitation.
The focus is not on the life expectancy of the resident or the medical conditions which the plaintiff suffers from. If the plaintiff was not suffering from some significant medical condition(s), care at a nursing home would not have been required. Rather, the focus is on the conduct of the nursing home. Typically this is misconduct that occurs over a period of time although it can be one isolated, egregious event. For example, dehydration does not occur from one event; rather it is a failure to monitor fluid intake and output over time. Similarly, pressure ulcers occur from unrelieved pressure over time. An injurious fall is often preceded by prior falls. It is this history of failures which coincides with popular perception that nursing homes are bad places and awakens in the jury a similarity of experience that rings true.
So do not be dissuaded by the age of the plaintiff or a less than optimal medical history. Focus on bad conduct.
Department of Public Health:
The Department of Public Health will investigate complaints of bad nursing home care in most instances; however if the department has recently been out to investigate a particular facility, it may opt to decline a further investigation. If the department does investigate your complaint, information will be provided pre-suit that otherwise would only be learned through a pre-suit bill of discovery. The department will speak with staff and obtain their accounts of what occurred and determine whether the facility conduct violated state and federal nursing home regulations. If the investigations lead to citations for violations, these violations may be fertile allegations for your complaint.
The complaint process is user friendly and simply requires a letter complaint sent to the department. It is better to draft the complaint yourself than leave it to the family. You will want to file the complaint as soon as possible as sometimes the department will decline to investigate a complaint if too much time has passed. Of note the facility is required to report instances of abuse and neglect to the department of public health immediately; to investigate the incident; and to report the results of this investigation within 5 working days of the incident.
Filing a complaint also serves to establish a history of failures and to alert the department of poor care trends. Of note the facilities are required to post in the facility survey results and citations from the department so complaints serve to educate the public when deciding on a facility to care for their loved ones.
Costs of Litigation:
Nursing home cases do require a moderate outlay of litigation costs, typically tens of thousands of dollars. Several experts are typically retained which include a nursing expert with experience as a Director of Nursing, a doctor with a geriatric specialty with experience as a Medical Director and a nursing home administrator. Depending on the injury other experts will be needed such as a wound care specialist for pressure ulcers; or an infectious disease doctor for dehydration leading to a UTI and sepsis.
The medical record is often voluminous depending on the length of stay at the facility. The good news is that the HiTech Act has dramatically reduced the cost of the medical record from what could be over a thousand dollars to often less than ten dollars for copies of an electronic medical record. In order to take advantage of this reduced cost you must have the client request the record and ask for an electronic copy of the electronic record. The letter request may direct that the records be sent to you. The letter should not be accompanied by a medical release authorization as it is the client requesting their own record. A sample letter request is appended to these materials as Appendix A.
Be aware that some records that are important to review may not be part of the electronic record. These may include for example, 24 hour Shift to Shift reports or CNA Resident Care Kardex.
Basic Structure of a Nursing Home:
The Administrator must be licensed as such by the Department of Public Health and is responsible for the enforcement of State and federal regulations; submission of reports for “reportable events” as defined in Connecticut Regulations 19-13-D8t(g); employing qualified staff in sufficient numbers to meet patient needs; developing a coordinated program of orientation, training and education for staff to improve patient care; protecting patients’ personal rights; maintaining a patient roster and annual census; and appointing a Medical Director and a Director of Nurses, among other responsibilities. Connecticut Regulations 19-13-D8t(f).
The Medical Director must be a physician licensed in Connecticut with at least one(1) year of clinical practice in adult medicine(a specialty in gerontology is not required although it is the opinion of this writer that it should be). The Medical Director has the responsibility to enforce the facility’s by-laws regarding medical care; assure that quality medical care is provided to patients; approve or disapprove of a patient admission based on the facility’s ability to provide adequate care for that patient; assure that each patient has an assigned personal physician; and visit the facility at least once every 7 days if a nursing home, or once every 30 days if a rest home. A record must be kept of these visits which includes the names of patients who have been audited. Connecticut Regulations 19-13-D8t(h).
The Director of Nurses for a nursing home must be a licensed nurse with one (1) year of rehabilitative or geriatric nursing and one (1) year of nursing administration and a full-time employee. The Director of Nurses is responsible for developing and maintaining written nursing standards of practice for the facility; recommending to the administrator the number and levels of nurses and nurse aides to be employed; the selection of nurses and nurse aids; designation of a nurse in charge for each unit for all shifts (“nurse supervisor”); and developing a schedule of daily rounds and assignment of duties, among other responsibilities. Connecticut Regulations 19-13-D8t (j).
All designated nurse supervisors must be registered nurses and are responsible for notifying the patient’s personal physician of any significant changes in the patient’s medical condition or the need for immediate care; and if the patient’s personal physician does not respond promptly, then to notify the Medical Director. Connecticut Regulations 19-13-D8t (k).
All nurse aides employed by either a nursing or rest home must have completed a Nursing Aide Training Program and a Competency Evaluation Program approved by the Department of Public Health. Upon completion the nurse aide is registered on a registry maintained by the department which will contain a listing of any complaints of patient neglect or abuse which may arise in the course of the nurse aide’s employment.
Adequacy of Staffing:
Both the federal and Connecticut regulations provide that each facility shall employ sufficient nurses and nurse aides to provide appropriate care for patients all day, every day. 42 CFR 483.35; Connecticut Regulation 19-13-D8t (m)(1). The federal regulation does not specify a mandatory minimum number of nurses or nurse aide hours per patient but the Connecticut regulation does. Connecticut Regulation 19-13-D8t (m) (5). The regulation sets forth the minimum paid productive hours(these are hours actually worked by the employee during which patient care is provided as opposed to vacation time, sick time or other paid non-productive time) for both nurses and nurse aides at both nursing homes and rest homes and for both the day and night shifts. Further the Connecticut regulations provide that a nursing home shall have one licensed nurse on each patient floor at all times; while the federal regulations provide that a registered nurse must be used for 8 consecutive hours each day of the week. Connecticut Regulation 19-13-D8t (m) (4)(A); 42 CFR 483.35(b)(1). It is important to remember that the Connecticut regulation although setting forth a mandatory minimum number of paid productive nursing and nursing aide hours per patient, specifically states that this is not the actual required number; rather the actual number of paid productive hours required is a function of the patients needs and the number of hours necessary to provide “appropriate care”. The federal regulation is more strongly worded and states that “the facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident as determined by resident assessments and individual plans of care”.
The patient census (the number of patients in the facility) is not the determinative factor for adequate staffing levels. If the facility simply uses the patient census as the determinative factor in scheduling paid productive nursing staff hours there will be numerous patients at the high acuity level who are neglected.
You should request and review documents for the time period over which your client suffered injuries which will help determine the nursing staff paid productive hours at the particular facility; the patient census; and the acuity levels of the patient population.
Some of these documents will be common to all facilities because they are required to be maintained by either federal or Connecticut law. These common documents are: (1) Resident Assessment Instruments (RAI) which set forth a comprehensive assessment of each patient’s needs for care which must be completed within 14 days of admission. 42 CFR 483.20(a) and (b); Connecticut Regulation 19-13-D8t (o) (2) (H). (2) Quarterly Review Assessments which are completed every 90 days for all patients to update their care needs. 42 CFR 483.20(c); Connecticut Regulation 19-13-D8t (o) (2) (H). (3) Comprehensive Care Plans for each patient which set forth the objectives and time tables of care identified in the RAI and which must be completed within 7 days of the RAI. 42 CFR 483.21; Connecticut Regulation 19-13-D8t (o) (2)(I). (4) Quarterly Updated Care Plans which are the periodic modifications of the Comprehensive Care Plans to keep the patient care needs current. 42 CFR 483.21(b)(iv) (2) (iii); Connecticut Regulation 19-13-D8t(o)(2)(I). (5) Written Summaries of Monthly Staffing Meetings by the Administrator and the Director of Nurses held for the purpose of assessing the adequacy of nursing staff, reviewing any necessary changes in nurse staffing and acting accordingly. Connecticut Regulation 19-13-D8t (m) (3), and (6) Annual Patient Roster and Census. Connecticut Regulation 19-13-D8t (f) (3) (H).
Other documents which may be helpful in determining adequate nurse staffing are the result of Connecticut surveys, or audits, of a particular facility by the Connecticut Department of Public Health, or summary forms prepared by the Connecticut Department of Public Health upon the request of a facility based upon patient information required to be submitted by the facility. These documents may be maintained by the facility as a matter of corporate policy, or if not, are in the possession of the Connecticut Department of Public Health. These documents are: (1) Resident Census and Conditions of Residents/HCFA Form 672 which have been completed by the facility as a result of the annual survey, or audit by the Connecticut Department of Public Health. This form sets forth the patient census as well as the number of patients which require care in certain specified categories. (2) Resident Level Summary forms which have been prepared by the Department of Public Health for the facility upon request of the facility. This form sets forth the acuity level of each patient expressed as a number based upon specified care categories and is tabulated by the Department of Public Health computer software based upon the Comprehensive Resident Assessments and Quarterly Review Assessments discussed previously. In general, the higher the number, the greater the care that is needed. These are also sometimes referred to as “Quality Indicator Reports” and many nursing facilities request these reports monthly. As a general rule the Connecticut Department of Public Health will investigate at audit any patients with a total score of 4 or higher.; and (3) OSCAR Reports of the facility which indicate the percentage of patients at the facility needing care in specified categories and compares the facility percentages with similar facilities in the state, region and nation.
Still other documents which may prove beneficial in assessing adequate staffing are solely a function of corporate policy. Some examples of these types of documents are: (1) Labor Distribution Reports which are the management tool used to track staffing levels, payroll costs, adherence to budget and quality care issues linked to staffing levels. These reports will typically set forth the number of nurses, nurse aides, etc. for a given payroll period amongst other budgetary information. These types of reports may be known by different names depending upon the facility so the category of information being requested should be described in any request for these types of documents; (2) Daily Staffing/Census Reports which would typically show the number of patients in the facility, the acuity level of each patient and the number of nurse and nurse aide hours per day, as well as whether the nursing staff hours were employees or from a temporary placement agency; (3) Payroll Reports by Employee for each pay period which would show whether the hours paid were productive hours or non-productive hours; (4) Invoices from any temporary employment agency which provided nursing staff; (5) Acuity Reports which set forth acuity levels for all patients and are usually generated monthly(although it has been suggested to this writer that these reports should be generated weekly because of frequent changes in patient population and patient acuity levels) to assess staffing needs for patient care, and (6) Medicare Sign-In Sheets which are sometimes used to document nursing hours dedicated to patients receiving Medicare benefits. Medicare audits are conducted of facilities and the facility needs to show at audit that it’s billing to Medicare for nursing staff are earmarked to Medicare patients. Because the types of documents which might prove useful in analyzing the adequacy of nursing staff can vary substantially from facility to facility, you should request the Administrator’s Orientation Manual, if one exists, which should set forth the types of documents maintained by the Administrator for the facility.
Once all of this documentation is requested and received, it should be provided to your staffing expert for analysis. The question that needs to be answered by the expert is whether there was adequate nursing staff hours dedicated to the care of your client based on the clients needs(acuity level). The only way to determine this is to know the total patient population at the facility for the relevant time period, the acuity level of the patients for the relevant time period to estimate the number of nursing care hours necessary for their needs, the number of paid productive hours of nursing staff for the relevant time period and the skill level of the nursing staff, i.e. registered nurses, licensed practical nurses or nurse aides. It has been suggested by gerontological research that 2.9 hours of nurse aid time per patient per day is an average adequate amount of care time to complete five basic core needs such as toileting, repositioning and assistance with eating; and that 4.55 hours of total nursing time(registered nurse, licensed practical nurse and nurse aide) per patient per day is on average adequate for good care. I have learned that a ratio of 1 nursing staff to 5 patients is advocated by elderly advocacy groups as necessary on average for good care. Whether there was adequate staffing to properly care for your client and prevent the claimed injury/death is a case by case analysis.
I queried two different nurses with Long Term Care experience that we have worked with over the years to zero in on what information they felt were most critical to assess adequacy of staffing and below is the list:
• Ask what specific unit of the facility was the resident on, i.e. the Rehab unit which is typically the highest acuity residents; the Dementia unit which typically requires more care because of the behaviors and the general Long Term Care unit which is usually the lowest acuity. These units usually average 30+ or – beds.
• Ask for the bed capacity of the unit and the entire facility
• Ask for the resident census for the unit and the entire facility
• Ask for the comprehensive MDS for each resident of the unit and for each resident of the entire facility closest in time to the event. A comprehensive MDS is completed on admission or readmission; with a change in condition; and annually. I was told this is the best indicator of acuity. I was told this is better than the Care Plan which are often mismanaged and not up to date. Other than the MDS, the actual patient chart is the best indicator of acuity.
• Ask for the CMS Payroll Based Journal which is a new CMS requirement from the Affordable Care Act with reporting that began July 1, 2016. The facility has 45 days after the end of each quarter to submit to CMS. These journals contain the patient census for the facility as well as the direct care staff payroll information. These journals do not report acuity. And the direct care staffing includes director of nursing, registered nurses with administrative duties, registered nurses, licensed practical nurses with administrative duties, licensed practical nurses, certified nurse aides, medication aides, and nurse aides in training. It also includes contract and agency staff. As of Nov 1, 2017 this data is public at https://data.cms.gov/. When you get to the link type “Payroll Based Journal” into the search box and then you can search by state or facility. This lists the direct care staff and resident census for each day of the quarter. We know from experience that the director of nursing and nursing supervisors often do not provide direct care so you should ask at depo whether direct care was provided by these nurses.
• Ask for the Resident Roster and bed availability which is tracked daily by Admissions to determine which residents were in a particular unit and in the facility at the time of the event. This is because when a RFP is submitted in litigation years later, we need to know historically which residents were on the unit and in the facility.
• The Daily Staff Posting required to posted in a conspicuous place in the facility by CMS. This only includes licensed staff: RN’s and LPN’s.
• The Daily Staffing Worksheet which the staff scheduler should have which should indicate who worked, their role and where the staff was assigned that day.
• The CNA Resident Flowsheet which details what care the CNA’s provided to a particular resident that day on each shift.
Negligence Per Se:
Many courts have held that a violation of the FNHRA (Federal Nursing Home Reform Act, 42 U.S.C. § 1396r) and/or the federal long term care facility regulations (42 C.F.R. § 483.1, et seq.) may be the basis for a state law tort action for negligence per se or evidence of the applicable standard of care in the state law action.
The majority of courts addressing the issue have held that a nursing home’s violation of FNHRA and/or federal or state LTCF (Long Term Care Facility) regulations may constitute a ground for a negligence per se claim under state tort law. Such a cause of action is ordinarily viable if the usual elements of a negligence per se claim under applicable state law are met, the statute or regulation the defendant violated addresses a specific area of LTCF care, and the violation is a proximate cause of the resident’s injury.
Generally, negligence per se is based on (1) the plaintiff being a member of a class protected by the statute; and (2) the injury being of the type the statute was intended to prevent, then the defendant is liable as long as that statutory negligence is the proximate cause of the plaintiff’s injury. See Gore v. People’s Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995).
“Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law.” Considine v. City of Waterbury, 279 Conn. 830, 861, 905 A.2d 70, 90, at n.16 (2006).
In the wrongful death action in Hawkins v. Nexion Health Management, Inc., No. 5:13–CV–121, 2015 WL 2395765 at *3 (E.D. Tex., May 19, 2015), the court held that the plaintiff stated a cause of action against a nursing home as negligent per se based on its alleged violations of FNHRA regulations where it failed to monitor the decedent’s glucose levels properly and when it allowed the decedent to wander from the facility.
In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the court allowed a plaintiff to pursue negligence per se claims even though the federal (and state) regulations did not create a private cause of action:
“The establishment of a set of licensing requirements for nursing homes and a system of agency prosecution to ensure compliance does not create a new cause of action against nursing homes. As stated, however, our recognition that violations of the regulations may be deemed negligence per se does not create a new cause of action where one does not already exist. We are also mindful of the fact that ordinary negligence actions against nursing homes are classified as such (and are distinct from medical malpractice actions) because they can be assessed based upon ordinary, everyday experiences. Requiring the finder of fact to parse through voluminous regulations to determine the standard of care in an ordinary negligence action against a nursing home may not always be the most direct approach toward the establishment of a nursing home’s negligence. Nevertheless, proof of violations of federal and state nursing home regulations is relevant in determining whether a defendant nursing home has breached the standard of care. For the reasons stated, the Administratrix may pursue a negligence per se theory with regard to her ordinary negligence claims based upon alleged violations of federal and state nursing home regulations.”
333 S.W.3d at 563.
In Feinman v. Kindred Healthcare, Inc., No. 2:11–CV–00289–ABJ, 2013 WL 5918004 (D. Wyo., Nov. 1, 2013), the court held that the plaintiff had pleaded a state law cause of action in negligence per se where the complaint alleged that the defendant nursing home had violated both federal and state regulations pertaining to nursing home care:
“First, did Ms. Witt belong to the class of persons that the regulations were intended to protect? Based on the regulations cited in Plaintiff’s Amended Complaint, the regulations at issue were meant to protect nursing home residents. Plaintiff’s decedent was a resident of Defendants’ nursing home. As such, she belonged to the class of persons which these regulations were designed to protect.
Second, were Ms. Witt’s alleged injuries of the type the regulation was intended to prevent? Accepting Plaintiff’s allegations as true, Ms. Witt suffered from multiple injuries which the federal and state regulations were meant to prevent. For example, Ms. Witt allegedly suffered from ten urinary tract infections during her stay at Defendants’ facility; 42 C.F.R. § 483.25(d)(2) required Defendants’ to deliver “appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.” Ms. Witt also allegedly suffered from thirteen falls even though 42 C.F.R. § 483.25(h)(2) requires that “[e]ach resident receive adequate supervision and assistance devices to prevent accidents.”
Applying [the Restatement (Second) of Torts § 286], the Court finds that the purpose of the regulations at issue was to protect nursing home residents such as Ms. Witt from the kinds of injuries which she suffered. Thus, the Court may adopt those regulations as the Defendants’ standard of care.”
2013 WL 5918004 at *2 (some citations omitted).
The court in George v. Northern Health Facilities, Inc., No. 11–2234, 2011 WL 2923885 (E.D. Pa. July 20, 2011), explained that only those regulations setting an exact standard of care can be the basis for a negligence per se claim as described in § 286(c) of the Restatement (Second) of Trusts and that those which merely set general goals for resident care cannot be the basis for such a claim:
“Upon review of the sections of OBRA that are relevant to plaintiff’s claims of negligence per se, I find that the only provision alleged in plaintiff’s complaint that meets element (c) of section 286 is 42 C.F.R. § 483.25(d)(1), which provides that ‘[a] resident who enters the facility without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization was necessary.’ I find that section 483.25(d)(1), like section 483.25(j), is a mandate for an exact standard of care rather than a ‘goal to be attained by long-term facilities.’ Thus, section 483(d)(1) satisfies the requirement set forth in section 286(c).
The other sections of OBRA plaintiff uses to support his allegations of negligence per se are not standards like section 483.25(j) but are written as goals that a nursing home ought to attain . . . For example, plaintiff alleges a violation of 42 C.F.R. § 483.30. It states that ‘[t]he facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychological well-being of each resident’ 42 C.F.R. § 483.30. There is no mandated staff-to-resident ratio within the regulations because it is for each nursing home to determine what number of staff is sufficient to provide care. As a result, plaintiff cannot use these provisions to maintain a cause of action for negligence per se. Even if defendant failed to develop policies to attain the goals set forth in OBRA, such a failure ‘does not breach the requisite standard of care to establish a negligence claim.’”
2011 WL 2923885 at *4 (some citations omitted).
The court in McLain v. Mariner Health Care, Inc., 631 S.E.2d 435 (Ga. Ct. App. 2006), allowed a negligence per se claim to proceed based on violations of both the federal and state nursing home regulations, stating “[i]t is obvious that as a resident of the nursing home owned by Mariner, McLain’s father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint, and which we assume to have occurred for purposes of a motion to dismiss, were among those these same statutes and regulations were designed to prevent. Likewise, the complaint’s allegations of violations of the same statutes and regulations would be competent evidence of Mariner’s breach of duty under a traditional negligence action.” 631 S.E.2d at 438.
In McCain v. Beverly Health and Rehabilitation Services, No. CIV.A. 02-657, 2002 WL 1565526 (E. D. Pa., July 15, 2002), the court explained that the plaintiff’s complaint alleged that the decedent was injured as a proximate result of the defendant failing to adhere to federal regulations concerning the prevention of pressure sores:
“Here, plaintiff’s decedent, as a nursing home resident, comes within the older person’s protections intended by OBRA and OAPSA and the regulations set forth in 42 C.F.R. § 483. Moreover, the statutes and regulations are directed, at least in part, to obviate the specific kind of harm which was alleged to have been sustained: ‘pressure sores.’ 28 Pa. Code § 211.10; see § 286 of the Restatement of Torts 2d. Given these considerations, which arise from the allegations in the complaint, the lack of a private cause of action is not enough to preclude the use of the relevant policies expressed in the statutes and regulations. The furtherance of those protective policies is a basis for delineating a nursing home’s tortious duty in these circumstances.”
2002 WL 1565526 at *1.
In Goda v. White Cliff Leasing Partnership, 62 Pa. D. & C.4th 476 (Pa. Com. Pl., May 21, 2003), the court emphasized that only those regulatory violations as to an exact standard of care could be used as a basis for a negligence per se claim:
“Under 42 C.F.R. §483.25 ‘[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and plan of care.’ Additionally, 42 C.F.R. §483.40 provides that ‘[e]ach resident must remain under the care of a physician.’ The court, therefore, believes that OBRA was enacted to protect the plaintiff decedent’s health and welfare; thus the second element of section 286 is satisfied.
The final two elements of section 286 are also met with respect to certain provisions of OBRA. Goda alleges in his amended complaint that plaintiff decedent suffered a myriad of harms that OBRA was enacted to protect her from. However, the only regulation alleged in the amended complaint that satisfies the final two elements of section 286 is 42 C.F.R. §483.25(j), which provides ‘[t]he facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.’
The remainder of the OBRA provisions and regulations cited in the amended complaint may not be used to support a cause of action for negligence per se. These various provisions and regulations set forth goals for a nursing home to attain. For example, under 42 C.F.R. §483.25(c)(1) a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores and under 42 C.F.R. §483.65 a facility must establish and maintain an infection control program. The court believes that the defendants’ failure to develop policies and procedures to attain the goals set forth in these provisions and regulations does not breach the requisite standard of care to establish a negligence claim, as a result Goda cannot use these provisions to maintain a cause of action for negligence per se.”
62 Pa. D. & C.4th at 481.
In several cases where a violation of FNHRA or a LTCF regulation was not held to be the basis for a negligence per se claim, the courts still held that the defendant’s violation of such a law can be some evidence of the applicable standard of care and of a breach thereof. See, e.g., Hayward v. Jack’s Pharmacy Inc., 115 P.3d 713, 719 (Idaho 2005) (FNHRA regulations could be evidence of the applicable standard of care because the local standard of care for a treating physician in a nursing home could not be lower than the standard of care imposed on a nursing home director under the regulations); Mariner Health Care, Inc. v. Estate of Edwards ex rel. Turner, 964 So.2d 1138, 1155 (Miss. 2007); cf. Estate of Gibson ex rel. Gibson v. Magnolia Healthcare Inc., 91 So.3d 616, 628, at n.35 (Miss. 2012) (the plaintiff’s expert witness was a registered nurse who testified as to the defendants’ breach of the applicable standard of care, and the expert “was accepted without objection as an expert in the field of long-term care, nursing standards of care and long-term care, and the federal regulations as well as survey policies”).
Other cases include: Frantz v. HCR Manor Care Inc., No. S-2374-2002, 2003 WL 23473921 (Pa. Com. Pl., Dec. 12, 2003); cf. Roberts, supra, 2012 WL 6652502 at *4; Dibrill v. Normandy Associates, Inc., 383 S.W.3d 77, 84 (Mo. Ct. App. 2012) (a nursing home’s violation of state regulations proximately causing a resident’s injuries can be the basis for a negligence per se claim); Maresca v. Mancall, No. CIV.A. 01–5355, 2003 WL 21652170 at *5 (E. D. Pa., June 20, 2003) (noting that a nursing home’s violation of FNHRA regulations may be the basis for a negligence per se claim but holding that the alleged breach of the particular state administrative code provisions at issue did not establish the applicable standard of care).
There is contrary authority, however. In Vanhook v. Somerset Health Facilities, LP, No. 14–121–GFVT, 2014 WL 7075265 at *4 (E.D. Ky. Dec.15, 2014), the court dismissed a negligence per se claim against a nursing home based on alleged violations of FNHRA regulations because under the Kentucky statute allowing negligence per se claims was limited to Kentucky laws, and the alleged violation of a federal regulation could not be the basis for such a claim. See also Rose Care, Inc. v. Coulter, No. CA 03-813, 2004 WL 576226 at *2-3 (Ark. Ct. App., March 24, 2004); Satterwhite v. Reilly, 817 So.2d 407, 411-12 (La. Ct. App. 2002) (“Nothing in the regulation sets forth a standard of care for medical directors; the purpose is plainly to qualify providers for the Medicare and Medicaid programs. . . we decline to hold that 42 C.F.R. § 483.75(i) grants a private cause of action against a medical director of a nursing home or establishes the standard of care or duty that a nursing home medical director owes to the patients of the nursing home he serves, or that a violation of the regulation is negligence per se”).
In Connecticut, the court in Hebert v. Frontier of Northeast Connecticut, Inc., 36 Conn. L. Rptr. 448, 2004 WL 304277 (Super. Ct., Jan. 29, 2004), held in a wrongful death suit versus a nursing home that the defendant’s violation of 42 C.F.R. § 483.25(i), among others, was an example of negligence per se:
“Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery. That ground of recovery is statutory negligence. Statutory negligence is actionable upon the satisfaction of two conditions: (1) the plaintiff must be a member of a class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent.
The regulations cited in counts two through seven [ including 42 C.F.R. § 483.25(i)] all pertain to the minimum standard of care a Medicare nursing home is required to provide. The decedent was a patient in the defendant’s nursing home. The regulations cited by the plaintiff are intended to prevent the injuries allegedly suffered by the decedent. The decedent was, therefore, a member of the class protected by the statute and the statute was intended to prevent the type of injuries she allegedly suffered. The plaintiff has successfully pleaded a claim of statutory negligence in each of the counts two through seven.”
2004 WL 304277 at *4.
There is also some trial court authority that a negligence per se action could be based on the Connecticut Patient’s Bill of Rights, Conn. Gen. Stat. § 19a-550, or the state nursing home regulations, see e.g., Conn. Agencies Regs. § 19-13-D6. See Theroux–Acampora v. Saint Regis Health Center, Inc., 60 Conn. L. Rptr. 165, 2010 WL 2821867 at *2-3 (Super. Ct., New Haven, June 14, 2010); Lancaster v. Jackson, 39 Conn. L. Rptr. 620, 2005 WL 2009018 (Conn. Super. Ct., New London, July 11, 2005) (negligence per se claim stated); cf. Doe v. Advisors Healthcare, Inc., No. X01CV020170300S, 2005 WL 1089176 Conn. Super. Ct., Waterbury, March 24, 2005) (no negligence per se claim stated because the alleged violations of the Patient’s Bill of Rights were not be a proximate cause of the plaintiff’s injury); Monterio v. Crescent Manor, LLC, No. CV030181589S, 2004 WL 1245906 (Conn. Super. Ct., Waterbury, May 21, 2004) (negligence per se claim not stated because the plaintiff did not allege facts showing a violation of the cited regulation).
Punitive Damages:
Reference is initially made to an article written by Brendan Faulkner and myself entitled “Connecticut’s Punitive Damages Laws Are Outdated, Often Ineffective, and Should Be Changed” which details the current state of punitive damage law in Connecticut. In sum, Connecticut common law allows for punitive damages if the conduct proven is reckless, wanton or wilful. The measure of punitive damages in Connecticut as limited by Connecticut Supreme Court precedent is attorney fees and costs. The question arises whether the amount of punitive damages under the Patient’s Bill of Rights(C.G.S. 19a-550), a statutory provision, is limited to attorney fees and costs or whether the amount of punitive damages is determined by consideration of a number of factors typically considered in such an award such as the reprehensibility of the misconduct and the assets, income, net worth of the defendant. There is no Connecticut case law on point that I have found.
Connecticut’s Patient’s Bill of Rights statute, Conn. Gen. Stat. § 19a-550, allows a punitive damages claim in a suit for a violation of the statute. Subsection (e) states: “[i]n addition, where the deprivation of any such right or benefit is found to have been wilful or in reckless disregard of the rights of the patient, punitive damages may be assessed.” No limitation on the amount of punitive damages nor a method to calculate the amount is stated.
In an effort to update my November 2014 seminar materials, I did not see any CT case after 2014 addressing whether the punitive damages provision under Conn. Gen. Stat. § 19a-550(e) is to be measured in any particular manner. Recent trial court decisions discussing punitive damages under this section have been focused more on whether the defendant nursing home’s alleged conduct, as pleaded in a claim for punitive damages, was willful or wanton or reckless enough to withstand a motion to strike. See, e.g., Anderson v. Montowese Health & Rehabilitation Center, Inc., 60 Conn. L. Rptr. 340, 2015 WL 2473193 (Super. Ct., New Haven, May 1, 2015).
Meanwhile the Court of Appeals has reiterated the common law rule in other contexts in a couple of recent cases. Nelson v. Tradewind Aviation, LLC, 155 Conn. App. 519, 544-45, 111 A.3d 887, 902-03, cert. denied, 316 Conn. 918, 113 A.3d 1016 (2015); System Pros, Inc. v. Kasica, 166 Conn. App. 732, 773-74, 145 A.3d 241, 265 (2016).
The CT Supreme Court in Hylton v. Gunter, 313 Conn. 472, 486, 97 A.3d 970, 979, at n.14 (2014), did note the distinction between common law punitive damages and certain different types of statutory punitive damages, in particular the measurement of damages in CUTPA:
“We also note that, against the backdrop of our ‘conservative’ measure of common-law punitive damages, ‘the legislature has authorized punitive damage awards for certain causes of action. These statutes fall into three categories: (1) those that limit the amount of the award to no more than two times the actual damages incurred; (2) those that designate a specific, albeit modest, dollar limit for such awards; and (3) those that authorize punitive damages, but leave the amount of the award to the discretion of the court.’ (Footnotes omitted.) MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 672, 872 A.2d 423 (Zarella, J., dissenting), cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005). Punitive damages under these statutes, particularly under statutes that provide for awards of fees and costs in addition to punitive damages like CUTPA; see General Statutes § 42–110g; are distinct from common-law punitive damages because they ‘are not intended merely to compensate the plaintiff for the harm caused by the defendant but, rather, serve a broader, twofold purpose. First, they foster private enforcement of unfair trade practices by providing a reasonable incentive to litigate…. Second, they deter the defendant and others from engaging in future violations of CUTPA.’ (Citation omitted.) MedValUSA Health Programs, Inc. v. MemberWorks, Inc., supra, at 673, 872 A.2d 423; see also Ulbrich v. Groth, 310 Conn. 375, 450–51, 78 A.3d 76 (2013) (discussing relationship between common-law punitive damages and those awarded under CUTPA).”
Hylton, supra, 313 Conn. at 486, 97 A.3d at 979, at n.14.
In MedValUSA Health Programs, supra, the majority in that case upheld an arbitration award under CUTPA for -0- in compensatory damages and $5.0 million in punitive damages, based on Conn. Gen. Stat. § 42-110g(a), and stated that “[t]he award was based on the panel’s finding that the defendant violated CUTPA, which expressly allows the award of punitive damages, and does not, by its express terms, provide a cap on the amount of damages awarded. See General Statutes § 42-110g(a).” There is no express cap on punitive damages in Conn. Gen. Stat. § 19a-550(e), either.
But see Ulbrich v. Groth, 310 Conn. 375, 78 A.3d 76 (2013), where the court explained that the common law limitation did not apply to punitive damages under CUTPA because Conn. Gen. Stat. § 42-110g(d) already provided for a recovery of attorney’s fees:
“We conclude that the legislature did not intend to limit punitive damages awards pursuant to § 42–110g (d) to the expenses of bringing the legal action, including attorney’s fees, less taxable costs. Section 42–110g (a) expressly authorizes the trial court to award punitive damages in addition to the award of attorney’s fees authorized by § 42–110g (d). Nothing in the language of the statute suggests that punitive damages are the same as attorney’s fees, consistent with the common-law rule. If the legislature had intended to impose such a limitation, it presumably would have done so either by authorizing the trial court to award double attorney’s fees or by authorizing it to award double punitive damages. The fact that the legislature enacted two distinct provisions indicates that it contemplated two distinct types of awards.”
310 Conn. at 449, 78 A.3d at 123 (citation omitted); see also Bifolck v. Philip Morris, Inc., 324 Conn. 362, 452-53 152 A.3d 1183, 1212-1213 (2016) (punitive damages under Product Liability Act are not measured by the common-law rule since there is a separate provision for the recovery of attorney’s fees in the Act).
There is no separate attorney-fees award provision in Conn. Gen. Stat. § 19a-550(e), and that may be a distinction that matters. We will have to wait and see when the appellate courts sooner or later address this issue. If you have this issue in an egregious case please let me know as I would like to be aware of the progress of this issue and the CTLA Amicus Committee may have an interest in this issue on appeal.
Case Study:
We received a telephone call from a young woman about a month after her mother (Decedent) had died. The decedent died on January 26, 2012 and was 64 years old. At the time of her death she had been a resident at a chronic and convalescent nursing home. This daughter and her two sisters were very troubled by their mother’s death and felt the nursing home staff had ignored and neglected their mother and that this had lead to her death. We learned that the Decedent had been married to her husband for 40 plus years and had lived in a modest home outside of Hartford where she and her husband had raised their three daughters. All three daughters were married with families and when we initially met we noted that each woman was articulate, well groomed, intelligent and professional, and each clearly loved their mother. The Decedent’s husband was an active alcoholic, unkempt, with a spotty work history and ill appearing, but he was devoted to his wife. He would visit his wife daily in the nursing home and bring her an ice cream sundae which she loved and he would feed to her.
In this case, the daughter’s had already drafted and submitted a complaint to the Department of Public Health. Upon reading this complaint we decided we did not need to follow up with our own complaint because the daughters had clearly stated their concerns with the care and requested an investigation.
The Decedent had been admitted to the facility on July 19, 2007 after an evaluation in late June 2007 by her treating geriatric psychiatrist. The Decedent’s medical history was significant for radiation induced dementia acquired in 2002 and diabetes. Her leukemia had been cured but as a result of the radiation she developed mild cognitive loss and she would have intermittent hallucinations and delusions.
The family reported to her psychiatrist that over the prior two years there had been progression of her cognitive deficits beyond the loss she experienced five years prior. More recently, her daughter’s reported she had developed some bladder and bowel incontinence, mood swings, and increased delusional thoughts. Her daughters felt she was overestimating her skills for independent living. At that time, the Decedent reported that her husband had a significant problem with alcohol which he denied; and that they had a volatile relationship. At the time she was experiencing this downturn, her husband was detoxing from alcohol abuse in an acute inpatient admission. The treating psychiatrist felt her incontinence issues, moods, and intermittent delusions were the result of a large daily dose of Zoloft combined with her life circumstances. He lowered her dose of Zoloft. He noted she presented as an “extremely complex case” as her symptoms were inconsistent and appeared to wax and wane. He described her as having a very atypical dementing illness. Since her family had become overwhelmed with her care needs and her husband was not capable of safely caring for her at home, the recommendation was for long term care.
Her diagnoses on July 19, 2007 upon admission to the facility included radiation induced dementia, diabetes, anxiety, hypertension, esophageal reflux, transient ischemic attack, osteoporosis, hypothyroidism, and hyperlipidemia. During her residency she developed multiple urinary tract infections; episodes of dehydration treated with intravenous fluids; loss of mobility; and permanent incontinence.
On April 11, 2011 the oldest daughter of the Decedent executed a Resident/Patient Health Care Instructions form. Although she maintained the DNR status, she instructed the facility to initiate CPR and to transfer her mother to a hospital for evaluations of acute injuries. She directed the facility to administer artificial ventilation, even indefinitely; and she directed the facility to administer intravenous fluids, but no artificially administered nutrition. She specifically wanted for her mother to receive intravenous fluids at the facility rather than be transferred to a hospital because her mother would get distressed and confused when she left the facility and the nurse said that the facility could accommodate that problem in-house. She limited medical testing to only non-invasive and low risk testing. She never advised the facility to withhold medical care such as laboratory or glucose testing, and never told the facility to withhold fluids or to refrain from treating dehydration.
A laboratory report dated June 1, 2011 identified that the Decedent had a BUN of 29 (normal range is 7-20) and a creatinine of 0.8. The Nursing Progress Note dated June 1, 2011 identified that the Decedent was seen by the doctor who was aware of her laboratory results and difficulty swallowing. An Order entered on June 1, 2011 for intravenous fluids and the Nutrition Note identified that she was placed on a three day Hydration Protocol.
A laboratory report dated June 3, 2011 identified that the Decedent had a decreased BUN of 19 and a creatinine of 0.7. The Nursing progress note dated June 3, 2011 identified that the doctor was telephoned and an Order entered on June 3, 2011 for intravenous fluids again with follow up laboratory testing. A Nursing progress note dated June 4, 2011 identified that she was “on I&O.” A laboratory report dated June 8, 2011 identified a BUN level within normal range and a creatinine level within normal range.
A laboratory report dated October 17, 2011 identified that the Decedent had an elevated hemoglobin A1C level. The report noted “Call MD on Friday to review fingersticks.” A laboratory report dated November 21, 2011 identified that she continued with an elevated hemoglobin A1C level and on November 22, 2011 an Order entered to start Metformin at 850 mg to be taken with meals and to obtain a basic metabolic panel on the “next lab day.”
A laboratory report dated November 23, 2011 identified that the decedent had a BUN of 28 and a creatinine of 0.9. The results were noted to have been faxed to the doctor, but no new orders entered in response to these results. The family was never told of this lab result. Similar laboratory values in the past had triggered the administration of IV fluids but on this occasion there was no monitoring of dehydration and no treatment of this most recent episode of dehydration. Laboratory testing appeared to have ceased in November 2011. Further discussions with the husband and the other daughters indicated that no family member ever had any discussions with the facility about withholding medical care or treatment for dehydration.
The MDS dated December 14, 2011 identified that the Decedent had severely impaired cognition, dementia, and required supervision during eating and drinking with a one person physical assist. Nursing progress notes identified as Care Plan Evaluation notes and dated December 16, 2011 identified that she was at risk for dehydration as evidenced by insufficient intake; that she required assistance for ADL care in eating “due to Cognitive loss/dementia, mobility deficit;” and that she had a diagnosis of diabetes: non-insulin dependent.
The Glucose Monitor Record dated December 19, 2011 noted that the Decedent received 6 units of insulin for a glucose level of 245. Also on December 19, 2011 an Order entered for 850 mg of Metformin HCL to be taken orally three times a day with meals at 8:00 a.m., 12:00 p.m., and 5:00 p.m. This Order remained in effect throughout her admission and she received Metformin as ordered throughout the remainder of her admission.
The family stated that after a care plan meeting held in January 2012 (likely January 6, 2012 per nursing notes), just a couple of weeks prior to her death, both the husband and the daughters were under the impression that the facility would continue to treat the Decedent’s episodic dehydration as they had done in the past; that the facility would monitor her hydration status; and the facility would provide assistance with eating and drinking fluids. The family expressed concerns about dehydration and requested the Decedent’s hydration status be monitored closely due to her history of urinary tract infections. Despite this, the CNA charting indicated that the Decedent was only taking in 25% of her meals about 90% of the time.
Finger stick testing for diabetes was discontinued on January 12, 2012 though she continued to receive her medication for diabetes. The family stated they had no discussions about discontinuing the finger stick testing, and they never limited blood testing. According to the manufacturer, Metformin is contraindicated in patients with dehydration due to the risk of lactic acidosis, making it even more critical that the facility ensured the Decedent was receiving adequate amounts of fluid.
The Department of Public Health identified in its investigative report that the Decedent never met her daily fluid intake requirement from January 3, 2012 through January 18, 2012 and was often substantially below the intake requirement, based on its review of hydration records. The facility refused to produce these records to our firm and even denied they existed. We informed the Department that the facility denied the records existed. The Department maintained that these records existed at the time of the investigation and did not retract its findings.
There were no Nursing progress notes between January 10, 2012 and January 23, 2012. On January 22, 2012, the day before she was transferred to the hospital, her husband felt she was worse mentally and noted she had trouble swallowing. He notified the staff of these changes and expected the staff to respond. A Nursing progress note dated January 23, 2012 completed by an LPN identified a temperature of 97.3, pulse of 130, respiratory rate of 22 and a blood pressure of 83/55 with complaints of pain. At 6:08 a.m., before breakfast, the decedent was transferred to the Saint Francis Hospital emergency department to be evaluated for this “change in condition.”
On January 23, 2012 she was admitted to Saint Frances Hospital with a blood pressure of 62/29 and a pulse of 105. She was noted as “actively dying,” profoundly dehydrated, tachycardic, tachypneic, and severely hypotensive. The hospital initially refused to permit the decedent’s husband to visit because they believed the decedent had arrived from home and was a victim of abusive neglect. Once the staff was made aware that the decedent had arrived from a skilled nursing facility he was permitted to visit with his wife.
She was diagnosed with severe acidosis, severe dehydration and in hypovolemic shock. She was given aggressive volume resuscitation but with minimal response. She had no urine output noted in the Foley. She was in renal failure with a white blood cell count of 26.1 (normal range is 4 to 10.5). Her BUN level was 128 (normal range is 7-20). Per the hospital record, “The family reported that the patient had been noted to have poor oral intake for approximately 2 weeks leading up to admission.” Two blood cultures were positive for staphylococcus. The family changed her status to comfort measures, and she died on January 26, 2012. The death certificate identifies her cause of death as “sepsis.”
The Department of Public Health cited the facility for violating 42 CFR 483.25(j) Sufficient fluid to maintain hydration – F327, and CGS 19-16-D8t(i) (2) and/or (k)(l), for the failure of the nursing staff to ensure that the facility hydration protocol was completed when monitoring of fluid intake was required.
Of note, despite being a patient at Saint Francis Hospital from early on January 23, 2012 until her death on January 26, 2012, the Treatment Record of the facility reflects that the Decedent received care, noting she required extensive assistance with dressing, personal hygiene, and bathing on January 23, 2012, January 24, 2012, and January 25, 2012; that she ate 25% of her breakfast and lunch on January 23, 2012 and January 24, 2012; and that she was incontinent of bowel and bladder on January 23, 2012, January 24, 2012, and January 25, 2012.
