THE NATIONAL ACADEMY OF MEDICINE reports that nearly 1.5 million older Americans live in nursing homes, and another 1 million in assisted-living facilities. Nursing homes provide valuable services and comfort to those who can no longer fully care for themselves. Yet they also have inherent risks of malpractice and negligence—throughout the broader system and within individual facilities—that can lead to patient injuries and fatalities.
The deadly consequences of inadequate staffing were made abundantly clear during the COVID-19 pandemic. While more than 150,000 nursing home residents and staff have died from COVID-19, many others suffered from isolation in their facilities. The Associated Press estimated that from March 2020 to November 2020 nearly 40,000 excess deaths of nursing home residents were attributed to non-COVID-19 related causes, when compared to the same time period in 2019. Neglect was one of the most prominently cited causes.
Instances of abuse, neglect and maltreatment are likely underreported given the many challenges of elder care, including patients who are immobile or suffer from dementia and staff who are overworked and possibly underqualified.
Lawyers who represent plaintiffs and their families possess unique insight into this risk. They can demonstrate instances of neglect or malpractice to judges and juries, and outside the courtroom they can advocate for stronger state and federal guidelines to better protect these vulnerable people.
Hazards Keep Patients from Resting Easy
Alleged negligence led to a 2020 settlement that made headlines when improper bed rails in a western Massachusetts nursing home led to a resident’s death. The space between the rails and the mattress was four more inches than allowed by the U.S. Food and Drug Administration, and an 84-year-old man with advanced dementia became entangled to the point of fatal strangulation.
The victim’s daughter was referred to Lubin & Meyer, P.C. partners Andrew C. Meyer Jr. and Robert M. Higgins. “The facility had already violated numerous regulations regarding [its] use of bed rails,” says Higgins, who was named a Best Lawyers® “Lawyer of the Year” in 2015 in Boston for Medical Malpractice–Plaintiffs. “They were warned about the existing danger and simply did nothing to address the issue. They put people into beds with ill-fitting side rails, creating a very dangerous situation for the patients.”
The chance that the plaintiff would have slept in a hazardous bed was a near-certainty, as state officials found that 173 of the 176 beds in the facility had improper rails. Higgins secured $2 million through a prelitigation mediation on behalf of the plaintiff. He says his client was grateful for the result but was more concerned about saving others from a similar fate.
“This is not a case you see every week, but poor health care for the elderly, unfortunately, happens more than it should. Our elderly population is extremely vulnerable,” Higgins adds. “It is critical that we expose and correct problems in the care they receive, making conditions safer and more reliable for the next family that puts a loved one into a nursing home.”
Tackling Systemic Problems, Lopsided Ratios and Damage Caps
Those faulty bed rails may have been a symptom of a larger problem in geriatric health care: inaction by staff, who often are vastly outnumbered by their patients. This has an undeniable effect on the quality of care provided.
The federal government established regulations for long-term-care facilities with the Nursing Home Reform Act of 1987, which sets national quality standards for such facilities. This influenced the guidance set forth by the Centers for Medicare & Medicaid Services (CMS), which requires facilities to have sufficient numbers of resident nurses, licensed practical nurses and certified nursing assistants around the clock—including a charge nurse on each shift—to provide care to all residents. Additionally, they must have an RN on duty for at least eight consecutive hours a day, seven days a week, and a designated RN to serve as full-time director of nursing.
Federal regulations further specify that each facility must provide nursing services to meet the needs of its residents, and that staff possess and demonstrate the necessary competencies and skills. A 2020 market report from LeadingAge.org noted “…staff turnover rate is high due to low wages and lack of training,” thus increasing the potential for negligent acts. Further, one staff member’s failure or inability to act can trigger a tragic ripple effect.
Regan Zambri Long president and senior partner Patrick M. Regan has litigated countless elder and nursing home abuse cases over his decades in practice. He says clients typically come to him by way of relatives who have noticed a decline in health or appearance that leads them to suspect substandard care. “[Patients] start to deteriorate not because of illness or disease but because of neglect,” says Regan, who was named a Best Lawyers “Lawyer of the Year” in Washington, D.C., for Medical Malpractice–Plaintiffs in 2014 and 2020 and for Mass Tort Litigation/Class Actions–Plaintiffs in 2022. “The most frequent cases stem from what initially seem to be relatively minor bed and pressure sores. That’s solely a result of not turning the patients properly and not repositioning them. It embeds itself more in the tissue, and that in turn leads to infection. And then it starts a vicious cycle, where what began as a minor condition has become life-threatening.” (He says he has litigated many claims stemming from bed sores, and that fatalities have been reported between 90 and 120 days from the initial infection.)
In a March 2022 report, the National Consumer Voice for Quality Long-Term Care found that inadequate staffing during the pandemic correlated with a 31% rise in reports of bed sores among patients from the fourth quarter of 2019 to the second quarter of 2021.
Another factor contributing to nursing home abuse claims is that U.S. life expectancy continues to rise. In 1960, it was nearly 70 years. In 2020, average life expectancy at birth for the entire U.S. population was 77.3 years, according to the National Center for Health Statistics (NCHS). The Center’s Vital Statistics report noted that the national average reached 78.8 years in 2019, but attributed the drop in 2020 to COVID-19 mortality.
“You can replace a hip, a knee or even the heart,” says Regan, who also serves on the Best Lawyers editorial advisory board. “We have bodies that last longer, but minds that might not be as healthy. So there are more patients with dementia being admitted to nursing homes. This, unfortunately, leads to more injuries.”
While verdicts and settlements undoubtedly get the attention of nursing homes and their insurers, lawyers are attempting to get the federal government’s attention in order to make a broader industry impact. In February 2022, the American Bar Association’s House of Delegates approved a resolution that aims to prevent transparency and accountability in the ownership and management of nursing homes. The ABA Journal reported that Resolution 601, which was approved by the association, urges Congress and CMS to create a national system that audits nursing home ownership reports. This would ensure the disclosure of all owners including parent, management and property companies. The ABA’s resolution cited a Kaiser Family Foundation study that found that 69% of nursing homes were owned by for-profit companies in 2016, and more than half were owned or leased by corporate chains with two or more facilities.
“These increasingly complex structures, with their disassembly of nursing home ownership and operations, have been shown to have a negative effect on a broad array of quality measures,” Louraine Arkfeld, a Senior Lawyers Division representative to the ABA House of Delegates, told the ABA Journal.In the courtroom, plaintiffs in many states face the challenge of caps on damages that victims can recover. California, for example, limits noneconomic damages such as emotional distress to $250,000. Settlement awards for the elderly typically contrast immensely with that of a claim filed on behalf of a child born with an injury.
Regan says damage caps sometimes deter would-be claimants, but those who proceed often do so because of a moral calling. “In many of these cases, depending on the jurisdiction, the cost of prosecuting a case for negligence or malpractice in the nursing facility can make the case economically unviable because the recovery is limited by the state law,” he says. “So these are people who aren’t earning wages and they’re typically not supporting family members. Their claims are essentially limited to pain and suffering, which is subject to the damage caps. I often explain this to family members who say, ‘I appreciate knowing that going in, but I don’t want this to happen to somebody else’s mother or father or somebody else’s husband or wife."
Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites. JustinSmulison.contently.com