Law firms which are not based in south-central Pennsylvania have invited the local public to contact them if they feel they have been a victim of a nursing home problem. These dramatic advertisements suggest that avoidable abuses of residents in nursing homes are commonplace. The search for victims implies that money will cure their suffering, and that litigation is needed to motivate nursing homes to provide the best care.

These ads are not targeted at the alleged victims, who are not likely to observe the advertisements, but rather at the families of the victims. The advertisements encourage litigation to obtain money damages as the solution to problems in a nursing home. However, once a litigation process commences, a division between the caregiving family and the caregiving facility results, and the lawyers on both sides generally advise all parties involved in the process to become less communicative with one another.

As a local law firm, we have chosen to work exclusively on behalf of nursing home residents and their caregiving families. We have never taken on a care facility as a client because of concern that it could create at least the perception of a conflict of interest with our clients. Although we are committed advocates for our clients, our client agreements say that we will not discuss litigation as an option until at least six months have passed after an incident which might provoke a family to seek retribution.

We believe that during a cooling off period, it is possible to resolve differences and create remedies which provide actual comfort to our clients during their lifetime. If a nursing facility would not respond to our efforts to the satisfaction of our client, adequate time remains within the statute of limitations of both tort and contract matters for us to assist in initiating litigation if our client feels it is necessary. While we stop short of claiming that our clients get preferential treatment from skilled nursing homes, we believe that our approach creates a climate of mutual trust and respect so that our staff, which includes a social work professional, can effectively focus the family’s advocacy to develop a care plan which achieves the best results for the resident.

It would be wrong to deny nursing home residents the ability to pursue a claim for negligent or reckless treatment which is the cause of suffering. However, when an older person is admitted as a long term resident of a licensed skilled nursing facility, chronic illness and related pain and suffering often is already present on some level. So, it is worth pausing to consider the reasons for litigation action, and the benefits that our client could realize as an alleged victim.

The two years or more that it can take to resolve a personal injury suit can be longer than the life expectancy of the alleged victim. An alleged victim who does not live to see resolution of litigation can neither experience a sense of justice nor benefit personally from money damages, which might be what motivates the victim’s family. Can a family’s appetite for litigation be justified as a sacrificial experience for an alleged victim in life’s final stage to improve the delivery of services for future nursing home residents? The answer might surprise you.

In March 2011, the New England Journal of Medicine published a study involving the Harvard Interfaculty Program for Health Systems Improvement on the “Relationship between Quality of Care and Negligence Litigation in Nursing Homes.” Data about litigation were provided by five of the largest nursing home organizations in the United States in relation to tort claims against them during the time period of 1998 through 2006. Qualitative data about the level of care provided were obtained from the Online Survey, Certification, and Reporting (OSCAR) system and the Minimum Data Set (MDS), which data are gathered routinely and systematically for all Medicare and Medicaid funded facilities.

The study primarily addressed the question as to whether the delivery of a relatively high quality of care, as evidenced by the OSCAR and MDS data, reduced the risk of a nursing facility being sued. The study considered information resulting from a total of 4,716 personal injury claims which were made during the 8 year sample period against 1,465 skilled nursing facilities considered by the study, which was an average of approximately one claim for each nursing home every 2 years. The study found that the amount of litigation was not significantly lower for the nursing homes which the qualitative data suggested provided better care than for other homes with less favorable qualitative data. The observation that litigation did not originate more frequently in facilities whose qualitative data was less impressive was true, even when the analysis was restricted to environments with relatively low claim levels, such as Cumberland County would be characterized.

The New England Journal of Medicine article concluded that “the results of this study raise questions about the capacity of tort litigation to provide incentives for improving the quality and safety of nursing home care. It is far from clear that superior performance will be rewarded with substantially lower risks of being sued. Policy moves that are afoot in the long-term care sector, such as public reporting of performance indicators and provider payments that are based on performance, may have brighter prospects for making nursing homes safer.”

If your mother or father is in a nursing facility, and you choose to sue that facility, it is likely that there will be less cooperative communication with you about their care needs in the future. If it is highly probable that your mother or father will not live to see a verdict which might create personal emotional vindication, and since a reputable study suggests that such litigation is not likely to contribute to making nursing homes safer for others, is it right for a caregiving family to truly exhaust all options before pursuing litigation? We think so.

Dave Nesbit
Attorney