Nuts and Bolts: Defending the Nursing Home

Excerpt from a speech by J. Scott Myers
Las Vegas, Nevada, October 27-28, 2001

    1. Preliminary Considerations

      1. Early action is important

        1. The defense of a facility begins with early recognition and detection of potential lawsuits.

      2. Waiting until the plaintiff's attorney has been retained to file a lawsuit deprives the facility of time.

      3. The delay may result in additional difficulty in securing documents, equipment and witnesses.

      4. The facility may receive initial notice of claim or, more frequently, a request for a copy of the resident's chart.

        1. When the facility learns of the retention of an attorney, the nursing facility should take immediate steps to get defense attorneys involved in the process, and alert insurance carriers.

      5. Identifying client should be the earliest defense task. There may be issues of conflict of interest relating to representation of a nursing facility, among specific nurses, administrators or aides.

      6. The initial task is to separate the different entities involved, determine the resident responsibility of each, and decide whether or not the actions and conduct represent conflicting points of interest.

      7. Most jurisdictions have some form of "apparent agency", between physicians who are independent contractors and the facility in which they render care.

        1. Apparent agency concept seems applicable to nursing homes and care should be taken to avoid representing both since the potential for a conflict between the two is obvious.

        2. Determine which outside contractors are independent, and which have the potential to be in apparent agency with the facility. They must be identified to address the potential for conflicts of interest as well.

  1. The Initial Investigation by the Facility

  2. Essential Documentation

  3. Dealing with Former Employees

  4. Discovery Depositions

  5. Specific Liability Cases

    1. Significant quality research has been conducted in the nursing home environment and led to increasing amount of information over falls, dementia, malnutrition, pressure sores and the natural decline of nursing home patients.

    2. Falls account for approximately two-thirds (_) of all nursing home lawsuits.

    3. Statistical research demonstrates that physical restraints lead to an increase in falls and that, indeed, a reduction in physical restraints leads to fewer falls, and less severe falls when they do occur.

    4. As to falls, identify risk factors including age, dementia, diabetes, balance and medications.

    5. Research indicates that the risk of falling was approximately 4.0 times if the patient could walk, 3.8 times the patient was 90 or older, 5.0 times the patient had a history of falling, 7.5 times if the patient had dementia.

    6. The average resident falls 1.7 to 2.0 times per year, and 1 out of 4 individuals over the age of 65 fall throughout the country.

    7. Ten percent (10%) of our residents count for fifty percent (50%) of falls. Minority of ten percent (10%) falls 6 or more times per year.

    8. Additional problems such as cognitive impairment, visual problems and medications increase the risk. Interventions statistically fail to prevent falls.

    9. In defense of not using restraints, a number of articles published have shown that reduction in the use of restraints has not led to increase in falls.

    10. Most of the time, restraints provide little protection against falls and actually are associated with even worse falls and accidents. Their use leads to multiple, avoidable harm to a patient's welfare and dignity.

    11. A nutritional loss, specifically significant weight loss, is an increasing target by plaintiff's attorneys.

    12. In individuals with dementia, including Alzheimers disease, it appears that the natural history of weight change and clinically significant weight loss occurs in Alzheimers disease...

  6. Jury Considerations