«II. FEDERAL AND STATE REGULATIONS Nursing homes are among the most heavily regulated businesses in the country. In 1987 Congress passed the Omnibus ...»
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MID ATLANTIC WOUND CARE CONFERENCE
“PRESSURE SORES AND THE LAW”
Thomas W. Williamson Jr., Esq.
Joshua D. Silverman, Esq.
Williamson & Lavecchia, L.C.
Litigation involving patients who have developed pressure sores has become an unpleasant reality for many health care providers. While studies produce conflicting results, the numbers of patients suffering pressure sores is staggering. In skilled nursing facilities an estimated 23% of patients suffer pressure sores.1 The numbers increase dramatically with patients in high risk groups including 60% of quadriplegics suffering pressure sores.2 Because most pressure ulcers are preventable these cases are often ripe for litigation.3
II. FEDERAL AND STATE REGULATIONS
In general a “nursing facility must provide services and activities to attain or maintain the highest practical mental and psychological well-being of each resident in accordance with a written plan of care.” Upon admitting a resident the facility must conduct a complete assessment of the resident identifying the resident’s skin condition and developing an appropriate plan of care for the resident.5 The regulations impose a high standard on nursing facilities. Regarding pressure sores
the facility has a duty to ensure:
1 National Pressure Ulcer Advisory Panel, Pressure Ulcer Research: Etiology, Assessment and Early Intervention, http://www.npuap.org/prevmon.htm (downloaded Sept. 2, 1999).
3 National Pressure Ulcer Advisory Panel, Statement on Pressure Ulcer Prevention 1992, http://www.npuap.org/positn1.htm (downloaded Sept. 2, 1999) (while most pressure sores are preventable in some terminal patients prevention methods are inconsistent with the overall plan of care).
4 42 U.S.C.A. § 1396r et seq., 42 U.S.C.A. 1395i-3 et seq., 42 C.F.R. § 483 et seq.
5 Health Care Financing Administration, Requirements for States and Long Term Care Facilities, 42 C.F.R. § 483.20.
1. “A reside
Additionally, the regulations specifically require nursing homes to provide adequate and competent staffing, provide incontinent care, and provide for the nutritional needs of their patients.7 It is well known that staffing deficiencies, inadequate nutrition and inadequate incontinent care increases the chances of a patient developing pressure sores. 8 Therefore it is not surprising that many lawsuits against health care providers allege that these deficiencies contributed to the development of the patient’s pressure sores.
While there are no recent studies of violations of the staffing regulations in the United States, a study of long term care providers in the United Kingdom found that nursing assistants frequently are insufficiently acquainted with the risk factors for developing pressure sores.9 For example 61% of respondents to the survey were unaware that most pressure sores are preventable.10 One third of the respondents could not identify a single risk factor and over half of all respondents could not identify the factors correctly.11 Furthermore, more than a quarter of respondents could not clearly identify what causes a pressure sore and less than half of the respondents could identify the two main areas of the body most at risk for developing pressure sores.12 The study further found that an educational package including a short video and accompanying workbook raised the awareness of risk factors and increased the use of interventions to minimize risk for residents and nursing homes.13
Violating the regulations and common law duties owed to patients may subject a health care provider to a myriad of legal consequences including civil lawsuits, civil penalties, and criminal penalties.
6 Health Care Financing Administration, Requirements for States and Long Term Care Facilities, 42 C.F.R. §
483.25. Virginia also specifically requires adequate staffing under its regulations. 12 VAC § 5-371-260(B).
9 Sue Davies and Mike Nolan, Educating Nursing Home Staff in the Reduction of Pressure Sores, 7 BRIT. J.
NURSING 144 (1998).
10 Id. at 146.
13 Id. at 150.
Although most nursing home residents and acute care patients are older and weaker than the general population, the health care provider’s duty to the patient does not diminish.
Under what law students call the egg shell skull doctrine “tortfeasors take their victims as they come.”15 A defendant’s liability for breaching the standard of care is not avoided because the injuries would not have resulted had the plaintiff been in better health.
The mean award in nursing home negligence cases nearly doubled in the seven years following the enactment of OBRA to approximately $525,000.16 The increased awards may be due to two factors. Nursing homes are required to document injuries under OBRA so fewer injuries go unreported and plaintiffs have more information to pursue their claims. Secondly, the violation of federal law by a provider makes a verdict in favor of the plaintiff more likely.
Violating a safety statute generally constitutes negligence per se or negligence as a matter of law.17 Under this doctrine, courts apply a statute, ordinance or regulation as a legislatively-mandated standard of conduct. If the legislative directive applies to the particular fact situation, the jury is not asked to determine if the defendant’s conduct was reasonable. The jury only needs to consider whether the defendant violated the regulation and whether it caused the plaintiff’s harm.18 However, compliance with the state’s minimum licensing requirements does not immunize the health care provider from liability. 19 The negligence per se doctrine has not been universally applied to health care regulations. North Carolina’s nursing home regulations have been found not to set the standard 14 PROSSER AND KEETON ON TORTS § 30 (West 5th Ed. 1984); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979); Weimer v. Hetrick, 525 A.2d 643, 651 (Md. 1987); Mitchell v. Parker, 315 S.E.2d 76 (N.C. App.
15 See Landman v. Royster, 354 F.Supp. 1302, 1315 (E.D. Va. 1973).
16 Edward Felsenthal, Jury Awards Rise for Improper Care of Elderly, WALL ST. J., Sept. 5, 1995, at B1.
17 Dusine v. Golden Shores Convalescent Center, Inc. 249 So.2d 40 (Fla. App. 1971). For an extensive discussion of the law of Virginia about negligence per se in the context of violation of federal medical device regulation, see Talley v. Danek, 179 F.3d 154 (4th Cir. 1999).
18 Edgar and Sales, Torts and Remedies, § 1.05 (Negligence Per Se) (Supp. 1988).
19 Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343 (Tex. App. 1984).
In addition to civil lawsuits, a violation of the statutes or regulations can subject the nursing facility and the individuals violating them to civil penalties. For example, an individual who willfully and knowingly certifies a material and false statement in a resident’s assessment is subject to penalties of up to $1000 for each assessment. Individuals who cause another person to certify a material and false assessment are subject to penalties of up to $5000 for each assessment under federal law.21
C. Criminal Penalties
Most jurisdictions impose criminal penalties for willfully abusing or neglecting an incapacitated adult. In Virginia the first violation may subject the offender to up to twelve months in jail and a fine of not more than $2,500.22 Subsequent offenses may subject the offender to one to five years imprisonment and a fine of up to $2,500.23 In Maryland the intentional failure to provide necessary care to a vulnerable adult may subject the offender to a fine not exceeding $5000 and imprisonment for not more than five years.24 Under North Carolina law the culpable neglect of a patient in a health care facility is a felony.25
IV. STATE VARIATIONS ON MEDICAL MALPRACTICE CLAIMS
In addition to proving the four elements of a medical malpractice claim discussed above, most states have adopted additional procedural hurdles and/or limitations on damages that may prevent an injured patient from receiving prompt and fair compensation for his or her injuries.
20 Makas v. Hillhaven, Inc., 589 F.Supp. 736, 742 (M.D. N.C. 1984).
21 Health Care Financing Administration, Requirements for States and Long Term Care Facilities, 42 C.F.R. § 483.20.
22 Va. Code Ann. §§ 18.2-11 and 18.2-369.
23 Va. Code Ann. § 18.2-10.
24 Maryland Code Ann. Art. 27, § 35E.
25 N.C.G.S. § 14-32.2 (Supp. 1998).
Washington, D.C. is unusual for mid-Atlantic jurisdictions as it does not have a statutory limitation on either compensatory damages or punitive damages. However, the courts have authority to reduce excessive verdicts.
By statute Maryland limits a plaintiff’s recovery of non-economic damages including pain, suffering, and physical impairment to $500,000 for claims accruing after 1994. The cap has increased by $15,000 annually beginning on October 1, 1995.26 If the defendant’s negligence caused the wrongful death of the decedent, damages are limited to 150% of the personal injury cap.27 Maryland does not have a cap on punitive damages.
North Carolina does not have a statutory limitation on compensatory damages.
However, punitive damages are capped at the greater of three times the compensatory damage award or $250,000.28
Virginia has limited a plaintiff’s recovery against a health care provider since 1976. The limitation on damages was recently increased to $1.5 million from $1 million.29 Punitive damages are limited to a maximum of $350,000, however, the plaintiff is limited to a maximum recovery of $1.5 million under the current cap inclusive of punitive damages.30
B. PROCEDURAL FILING REQUIREMENTSIn recent years many states have enacted filing requirements unique to medical malpractice claims which commonly requires certificates of merit signed by a medical expert or arbitration before the case can proceed to trial.
26 Md. Code Ann., Courts and Jud. Proc. § 11-108 (Supp. 1998).
28 N.C. G.S. § 1D-25.
29 Va. Code Ann. § 8.01-581.15 (Supp. 1999).
30 Va. Code Ann. § 8.01-38.1; see also Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990).
In Washington, D.C. all medical malpractice cases are filed in the civil division of the superior court and are subject to non-binding arbitration. If a party objects to the arbitrator’s decision, the party must demand a trial within fifteen (15) days of the filing of the arbitrator’s award.31
In Maryland the plaintiff must file a claim with the Director of the Health Claims Arbitration Office.32 Within 90 days of filing a claim the plaintiff must file a certificate from a qualified expert attesting that the health care provider departed from the standard of care and the departure was the proximate cause of the patient’s injuries.33 If the defendant disputes liability, the defendant must file a similar certificate within 120 days of the plaintiff’s filing of a certificate. Maryland requires the certifying expert to devote no more than twenty percent of his time to personal injury actions.34 Either party can waive arbitration within sixty (60) days of the defendant’s filing of a certificate from a qualified expert.35 Additionally either party can reject an arbitration award, but evidence of the award is admissible at trial and there is a presumption at trial that the arbitration award is correct.36 The burden is on the party opposing the arbitration award to prove that it was erroneous.
In North Carolina, the plaintiff must certify that a qualified expert is expected to testify that the medical care provided to the patient did not meet the applicable standard of care.37
Either party may request a medical malpractice review panel, but the request must be made within thirty (30) days from the filing of responsive pleadings.38 The panel members are selected by the Supreme Court of Virginia and consist of two doctors and two lawyers and is 31 D.C. Super. Ct. Civil Arb. Prog. Rules, Rule I et seq. (1997).
32 Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04 (Supp. 1998).
35 Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06B (Supp. 1998).
36 Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06 (1995).
37 N.C. Gen. Stat. § 1A-1, Rules of Civ. Proc. (9)(j) (Supp. 1998).
38 Va. Code Ann. § 8.01-581.2(A).