Nursing Home Law Blog : Nursing Home Lawyer & Attorney : Stark & Stark Law Firm : Elder Care, Senior Care

I read an article online last week which reported of a recent case in which a nursing home owner and operator stole pension funds from a resident. On June 30, 2009 Michael D. Berg, 72, the owner of an Ocean Township nursing home, plead guilty to stealing approximately $39,000 from one of his home's residents. Berg plead guilty to one count of third-degree theft by deception.

 

The Prosecutor's Office had been investigating the allegations that Berg was stealing from his residents, and found that from January 1, 2005 through March 31, 2008, Berg began stealing pension funds which belonged to a resident of the home. Berg will face sentencing by Superior Court Judge Edward M. Neafsey in Freehold on July 31, 2009.

 

You can read more on this story online here.

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Before pursuing any claim for nursing negligence, inquiry must be made as to the payor source for all forms of medical treatment received by the plaintiff. As a general rule, all bills related to ac cause of action paid by Medicaid are subject to recovery prior to payment to the plaintiff.

Because of the length of time it takes to determine the amount and applicability of both Medicaid and Medicare liens, inquiries to these entities should be made as soon as a case is opened. It is not uncommon for Medicare to take an excess of two years to determine the amount and applicability of liens.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Before even considering entering the realm of plaintiff’s malpractice litigation, it is imperative to become intimately familiar with your jurisdiction’s malpractice law, including certificates of merit, affidavits of merit and the like. In many jurisdictions, the failure to fully comply with theses statutes serves as a complete bar to recovery and forms the basis for a dismissal of plaintiff’s claims.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

 

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Some jurisdictions, New Jersey being one example, include provisions of the affidavit of merit statute which addresses situations where a defendant fails to produce a medical record, despite a legitimate request which has been made by certified mail. Under certain circumstances, the statue will allow an affidavit to be presented to the court indicating that despite an appropriate and timely presented request for records with a HIPPA-complaint authorization, such records were never presented and otherwise would have been necessary to have the matter evaluated by an expert.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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A common problem in the prosecution of nursing negligence claims is an over-emphasis on liability (i.e. the conduct of nursing staff) which an under-emphasis on the issues of causation. Many cases fail in their prosecution as a consequence of this oversight. Before pursuing any claim, it is essential to ensure that there is a strong and legitimate causation relationship between the conduct complained of and the injury itself.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Be alert to the possibility that critical documentation concerning the liability issue may not be found in nursing notes. Very often treatment may be in other ancillary records such as flow sheets, treatment administration records, the notes of physical or occupational therapy of the Minimum Data Set (for nursing home cases). It is very important to stress that experts need to review all parallel sections of a chart before a criticism arises related to lack of treatment.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In addition to state records, check to see if the facility involved is a Join Commission accredited facility. If so, the Joint Commission will have surveys available to identify potential systemic problems at such a facility. Many of theses are available online from the JCAHO website. When requesting state records for a facility, make sure to request the survey file, the complaint file and the licensure file. Each of these contains different information, which may prove relevant to a case.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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After receipt of all known medical records, conduct a review of those to determine what records they reveal which are not yet available. Put all of this together to complete the timeline of all medical treatment. When developing a full chronological set of records, comparing discharge to admissions from various facilities will sometimes reveal diverging assessments of the patient. This is especially true in cases surrounding skin integrity issues. Specifically, many times the facility in which the skin breakdown was acquired will understate the severity of a bedsore, while the admission papers from the very same day at the facility where the problem did not arise will accurately assess it. This, subsequent admission records can serve as a check on the accuracy of previous discharge records.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Although expensive, it is often advantageous to actually obtain three copies of a chart. The first copy should be obtained by the plaintiff or plaintiff’s family without attorney intervention, while the second would be the attorney pre-suit and the third by the attorney during litigation. The inherent advantage is that the charts are obtained during periods of widely varying levels of concern from the putative defendants. Comparing each of these copies will very frequently reveal alterations to the chart itself.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

 

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Do not ever take a statue of limitations determination for granted prior to a full evaluation of a claim. Very often, issues, which appear to be beyond the statue of limitations, are not. Conversely, many claims which seem to enjoy significant additional time before the state of limitations will expire do not in actuality. An exhaustive analysis at the outset of a case to determine this otherwise seemingly simple issue can prove invaluable.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In any nursing negligence claim, it is advisable to retain a nurse – who is not necessarily the ultimate expert in the case – to provide a detailed timeline to examine all claims and all sites of alleged negligence or manifestation of injury to determine the proper players in the case. This is frequently inexpensive and provides an excellent foundation for all of the future litigation from either the plaintiff or defendant’s point of view.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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It is common with nursing neglect claims to focus on nursing negligence and this hinge on the review of a nursing expert. However, it is critical to determine early on whether or not it is possible to have a physician specifically relate wrongful death or other claims to the negligence at hand. Similarly, the defense should shore up its defenses, which do not relate the ultimate outcome to the act of nursing neglect.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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With infection and indeed all other medical claims, nearly all courts will not permit a nurse to address causation issues. It is essential to have a physician on behalf of either plaintiff or defendant to relate an injury to the asserted act of negligence. A burgeoning and narrow exception to this relates to skin care. Some experts agree that wound care nurses might ultimately be qualified to relate skin interruption with negligence. However, it remains prudent for either side of a litigated matter to have a physician to address theses issues.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In all cases involving infection, the practitioner should consult with a physician to address causation issues involving the relationship between that infection and the injuries more directly involved in whatever items of negligence are in the case. Do not assume that all infections result from negligence.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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For cases involving nursing home are, it is a clear violation of the federal regulations (OBRA) for a nurse to fail in complying with a physician’s admission order. These same regulations also strongly suggest that the failure to follow any physician’s order, such as the administration of medication, will constitute a violation of a resident’s nursing home resident rights. Should any documents have been intentionally altered, this may also give rise to a federal criminal prosecution.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In all aspiration cases, it is important to have a physician carefully scrutinize all X-ray reports. These often provide a significant set of clues as to the nature of the aspiration and whether or not it is causally related to the asserted negligence.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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For cases involving drops during transfer, one should carefully scrutinize issues related to short staffing. Many of theses cases involve a very clear order requiring a two-person transfer, with the actual incident only involving one person. Nearly as common are transfers being attempted by people who simply are not physically strong enough to assist a large patient.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In all cases involving physical abuse and assault, it is important to commence investigation very early. To the extent that it is possible, it is always advisable to involve the police and the Division of Health and Human Services/Division of Health and Senior Services. Additionally, for nursing home cases, one should contact the Ombudsman's office. Typically, these agencies can obtain valuable discovery which is not otherwise immediately available to counsel. It also serves to preserve evidence and statements of individuals who might not be available for testimony after litigation is instituted.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Photographic evidence has become one of the most important aspects to a solid nursing home negligence case. Pressure ulcer or bedsore cases have swiftly begun to dominate the legal landscape with regard to nursing negligence claims. Litigation surrounding these injuries crosses the entire spectrum of settings where nurses practice. Namely, bedsores are found in hospital claims, nursing home litigation, assisted living claims and often times are being found for claims, which involve visiting nurses at the injured party's own residence. Liability issues related to the screening of a case include the failure to identify the patient as being at risk for a pressure ulcer, failure to report signs of deterioration of an ulcer and, at times, the failure to question or challenge the propriety of a physician's orders. Both Plaintiff and defense attorneys should work diligently to obtain all photographic evidence of skin breakdown for bedsore cases.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Preparing and maintaining an enforceable set of healthcare power-of-attorney and durable power-of-attorney documents speeds the process of opening and investigating the claims. Similarly, developing a streamlined system to establish an estate representative, by way of direct estate work to contacts with a qualified state attorney help to accomplish this same end.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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