Liability Crisis Update - Part 2

The link between quality & liability, the correlation between guilt & jury award size--plus, the hope of risk retention groups

by Marlene Piturro, PhD, MBA

The litigation system attacks the wallets of every American. We have calculated that each household is taxed $1,200 to pay the cost of defending against frivolous lawsuits.
--Claude Allen, deputy secretary, Health and Human Services

Stella Henry, RN, founder of Vista Del Sol, a Los Angeles-based long-term care facility, is accustomed to reading the Los Angeles Times' obituary section every day and seeing a law firm's ad right next to the obits. The prominent ad reads: "Do you suspect that your loved one has been the victim of nursing home abuse or neglect? Call our attorneys for a free consultation on elder abuse and neglect."

While lawyers trawling for potentially lucrative lawsuits have become a routine sight for Henry, she was still shocked when the daughter of a deceased resident whose obituary said "she died peacefully in her sleep at Vista Del Sol," called to say a lawyer had contacted her. He wanted to know what problems she had with how Vista Del Sol had treated her mom, and then added that he could be of help in uncovering problems.

Having experienced the loss of her own mother not long before the incident with the lawyer, Henry was shaken anew.

"We all know that, in a less than perfect world, there is no perfect care 24/7. With frail elderly patients, something can happen even if a staff member is standing right next to them," said Henry. "And nothing feels good when you watch a beloved parent or someone else you care about get sick and then die. It happened to me with my parents. You play games in your head about what might have been."

Even though we recognize death's inevitability, the "what might have beens" drive grieving relatives (spurred on by trial lawyers) to sue long-term care providers whether there was fault or not.

So it behooves providers to "lawsuit proof" themselves and their facilities. Even so, a business roundtable held in 2002 with representatives of First State Management Company, American Association of Homes and Services for the Aging's Property/Casualty Program, Royal and Sun Alliance Long Term Care division, and CNA HealthPro concluded: "Liability insurance carriers in the long-term care market have great concern about their ability to select and retain those risks least likely to be involved in a lawsuit. You might have to expect increases in your premiums for the immediate future, no matter what."

Guilt & Nothing But the Guilt

In talking to disgruntled or anxious family members Henry recalled what a Catholic nun--who was the CEO of a long-term care facility--told her.

"When you're talking about a nursing home patient, juries become completely irrational," said the CEO. "You better settle outside the courtroom door."

Cynthia Marcotte Stamer, JD, partner in the Dallas law firm Becker Green Wickliff & Hall, and a member of Texas' Alliance for Health Care Excellence (AHCE), understands the guilt from both sides of the defense table. A sandwich generation daughter, she cares for her own family and for her frail elderly parents, who live in their own home but struggle with many health issues.

Stamer said that guilt drives juries to deliver whopping verdicts for non-economic damages to elderly plaintiffs. In AHCE's ethical/legal focus groups with people who have family members in long-term care facilities, Stamer repeatedly observes the following sequence:

1. Guilt and anger because the family didn't save as much money as they should for their loved one's care;
2. The need to believe that the nursing facility will take exemplary care of their relatives--even though meager financial resources, such as Medicaid's per diem, may preclude giving residents all the bells and whistles; and
3. The need to place blame on someone other than themselves, thereby assuaging the guilt if something goes wrong.

"In theory, jury members understand that there's only $44 a day for grandma's care, but that only reminds them of their inherent fear and guilt about not being able to buy a good place for care--either now or in the future," said Stamer. "The jury errs on the plaintiff's side because they have to hold someone accountable. It's all a part of our collective guilt that, somehow, we didn't do enough."

Stamer put good communication between nursing facility staff and the resident's family at the center of defusing guilt and handling issues of abuse and neglect before they turn litigious.

"We need better communication all along the health-care continuum, but we especially need it in nursing homes," she explained. "The patient is impaired, so everyone speculates as to what they need. If the family thinks the direct care staff and administrators are not responding to what the patient needs, there can be trouble."

This is especially important with risk management, such as assessing each resident for the risk of falls and communicating that risk to the family.

"You have a better chance of defending against negligence if you've documented that you foresaw the resident's potential risk and took steps to mitigate it," advised Stamer.

As for caps on non-economic damages appearing to offer relief from lawsuits, Stamer pointed out the pitfalls. Legal challenges to the statute, lawyers trying to have the cap applied multiple times, and suits for abuse and neglect rather than medical malpractice can all cause problems. Lawsuits for physical and sexual abuse and neglect--not covered in standard nursing facility liability policies--concern Henry, who called the separate policies covering those "prohibitively expensive."

The Case for Quality

Linking quality with lawsuit avoidance has always been a "soft" case (as opposed to one based on provable scientific cause and effect) but one that is increasingly strong. The 2002 quality improvement data based on the CMS tracking of health-related deficiencies in its 13,654 CMS-certified long-term care facilities shows a trend. Joint Commission on Accreditation of Healthcare Organizations-accredited long-term care facilities had fewer complaints, fewer total allegations, fewer substantiated allegations, fewer abuse allegations, and fewer substantiated abuse allegations.

JCAHO-accredited facilities also had fewer medication errors than non-accredited nursing facilities--6.3% versus 9.1%--with the threshold value of more than five medication errors per 100 passes.

Marianna Grachek, RN, JCAHO executive director, urged long-term care professionals to "make a significant upfront investment in quality, to be proactive rather than reactive. Being reactive leads to spending too much money on lawyers' fees."

Allegations, threats, complaints, and lawsuits all stem from residents being injured in some way. Whether that happens through negligence, abuse, or the natural course of events is what JCAHO's analysis of adverse (or sentinel) events tries to determine.

Regarding the root causes of all sentinel events in long-term care logged between 1995 and 2002, JCAHO data indicate the following:

• 65% were caused by poor communication;
• 58% were caused by deficits in orientation/training; and
• 35% were caused by inadequate patient assessment. Staffing levels and competency/credentialing trailed at 18% and 12%, respectively.

Regarding root causes of patient falls--the most frequently cited long-term sentinel event--problems with orientation/training (86%), communication (55%), and patient assessment (41%) were most frequently cited, with staffing levels a distant 16%. The same three root causes surfaced again in an analysis of restraint deaths: orientation/training (95%), patient assessment (78%), and communication (60%).

With communication and staff training so critical to quality improvement, Grachek concluded that competent nursing facility leaders must improve communication with staff, promote practices that help staff function effectively, and link effective staffing with outcomes. As for the notion that more money and more staff are necessary to improve quality, she said that "improved outcomes mean having the right number of appropriate staff. It's not about the numbers or ratios, but about having the right people in the right places."

Giving residents and family a mechanism to be heard can be a critical step to improving communications. Some suggestions:

• Designate a high level person, such as the CEO, medical director, or compliance officer, to handle resident and family complaints;
• Train whomever handles complaints to be an ombudsman (someone who investigates citizens' complaints and takes corrective action);
• Document the process by which the ombudsman works with the treatment team to resolve the issues leading to the complaint;
• Ensure that access to medications in your facility is rigidly controlled;
• Use information technology to track medication usage and errors; and
• Direct consumers to the CMS Nursing Home Compare Web site for information about nursing home care (see "New Indicators Headline NH Compare Web Site," in the April 2004 issue of Caring, p. 32).

Perhaps the most compelling argument--one that will drive a stake through the heart of anyone who insists that high quality cannot be achieved with current reimbursement levels--for improved quality was made by Marilyn Rantz, PhD, RN (Rantz MJ, Hicks L, et al. Quality of care, cost, staffing, and staff-mix in nursing homes. Gerontologist. 2001;41:525-538).

Using audited Medicaid cost reports from all reporting long-term care facilities in Missouri in the year 2000, Rantz used the Minimum Data Set and other quality improvement indicators to analyze care quality. Classifying outcomes as "good" (MDS quality improvement scores within the "good" threshold and "poor" if not), Rantz sorted nursing facilities into 21 with "good" outcomes, 93 with "poor" outcomes.

Facilities with good care had lower median costs of $85.35 per patient day (PPD), versus $92.31 PPD for those with poor quality. Direct care costs showed an even larger gap; $43.52 PPD for nursing facilities with good quality improvement, $52.95 PPD for poor nursing facilities. In a 120-bed facility, high quality care saved more than $300,000 in direct costs and more than $400,000 overall.

Staff Training

As the JCAHO data on adverse events indicate, improved communication and staff training help avoid serious problems that can lead to lawsuits. Linda Hollinger-Smith, PhD, director of research at the Mather Institute of Aging, Evanston, Ill., observed results from her organization's Learn, Empower, Achieve, Produce (LEAP) workforce retention program. With a $672,708 grant from the Department of Health and Human Services Health Resources and Services Administration, LEAP expanded the development and retention program of its long-term care workforce from 40 to 90 nursing facilities.

Dr. Hollinger-Smith now has 113 nurses training other registered nurses and certified nursing assistants on leadership, care role models, clinical expertise, care team building, and career development. LEAP uses the money to pay the trainers and is developing a set of written materials to disseminate statewide.

LEAP has reduced nursing staff turnover by 50%, and, just as important, has led to a decrease in nursing facility deficiencies, such as residents' abnormal weight changes and complications of pressure ulcers.

According to Dr. Hollinger-Smith, direct care staff can improve communication and avoid a negative and punitive climate by calling residents' family members routinely--not just when something bad happens.

"When family members get regular calls rather than just scary ones to say that their parent has taken a fall, it improves things tremendously," she explained. "In this most regulated of industries it's completely understandable that nursing facility staff always have in the back of their minds that an action of theirs can lead to a lawsuit, even if they deliver the best of care."

In one skilled nursing facility, a resident in restraints slid out of them, slipped between the bedrails and the mattress, and suffocated--with a staff member in the room, recalled Dr. Hollinger-Smith.

"With frail elderly people we cannot predict what will go wrong," she said. "What we can do is train people to be proactive, to reduce deficiencies and the fines they pay, and to build in quality."

Data collection aside, Stamer summed up the importance of quality as it relates to liability issues.

"As a lawyer I can tell you that when someone goes the extra mile, they rarely get sued," she said. "People look for clean, caring, and shining faces versus a dark place where uncaring people warehouse the elderly."

Final Thoughts

While the omnipresent threat of lawsuits against long-term care providers is an unfortunate fact of life, there is hope for change. Last year federal legislation capping non-economic damages in health-care malpractice cases passed the House of Representatives and fell only one vote short of passing in the Senate.

The Bush Administration has said it will reintroduce similar legislation this year. Twenty states have enacted legislation related to nursing facility liability, and 20 more states are considering similar statutory relief.

As the case for improving patient care quality and reducing nursing facility deficiencies grows stronger, long-term care facilities can better arm themselves against lawsuits based on factors other than provider error.

Step by step, we're moving toward a system that corrects problems in the making and justly compensates those who've suffered because of medical error.

Contributing Writer Marlene Piturro regularly covers liability issues for Caring.

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