High Stakes Attorneys Navigate a Rising Tide of Health and Elder Law Issues

Diane Fernald laughed when asked about the concept of job security.

“When I first started in legal practice, nursing homes in general weren’t sued very often,” she said. “In my eight years as an administrator, I never had one suit. But today, there are more people in nursing homes, and people are just more litigious these days.”

Fernald, a registered nurse who made the switch from nursing-home administration to law about 15 years ago, has seen some significant changes since then. She works on behalf of nursing homes and other health care facilities for the law firm Morrison Mahoney LLP, whose Springfield branch specializes in all manner of health care law, and said she doesn’t expect any slowdown in workload.

“The biggest reasons why nursing homes get sued are that residents end up with decubitus ulcers [pressure sores] or they fall and break something,” said Fernald. “That covers a vast majority of the cases.”

And these aren’t trivial matters; in fact, the financial stakes can be high. Damage awards vary depending on the severity of the incident, the resident’s age, and how egregiously an employee might have acted, but typically can range from around $12,000 to $700,000 or $800,000, she explained. “Some lawsuits involve four or five nurses and a couple of doctors as well as the nursing home. And if the lawsuit involves a wrongful-death allegation — that a person died because of nursing-home negligence — you can have some significant issues.”

This month, The Healthcare News examines why nursing-home and other health care litigation is on the rise, and what care providers can do to minimize their exposure.

Staying Alive

The world isn’t getting any simpler, and that goes double for health care. But the advances that extend life can be a double-edged sword.

“Part of it is that technology has developed so extensively, and as health care becomes more complex, more things can go wrong,” said Fernald. “And you have an aging population that participates in a greater diversity of health care than ever. Twenty years ago, people weren’t on the same kinds of medications or getting the same treatments they do today.”

In addition, she said, when she worked in nursing homes two decades ago, she never saw IVs or other signs of widespread frailty.

“Patients are sicker today,” she said. “Hospitals have reduced their length of stay, so people leave the hospital sicker. Twenty-five years ago, an elderly person with a fractured hip might have been in the hospital for a couple of weeks, rehabbing in the hospital. Now they leave after three or four days and rehab in a nursing home.”

On the plus side, she added, more elderly patients are surviving such fractures — and many chronic diseases, as well — longer than they were in the 1980s. “Doctors can intervene more aggressively, and that’s why more people survive cancer, heart attacks, and strokes today.”

Of course, she added, that means many 85- and 90-year-olds are living in a much more compromised state. Combined with the rise of assisted living and home care as desirable options for healthier seniors, those trends have led to a nursing-home population that tends to be much sicker and more delicate, often with multiple health issues, than ever before.

So what can administrators do to prevent lawsuits? Sometimes it comes down to simple communication.

“I do a lot of speaking in nursing homes, working with nurses and administrators, and I tell them to pay attention when a family member is upset,” said Fernald. “Today, they might be upset about the facility losing mom’s red dress, but if they don’t fix the problem, tomorrow the family will be upset that mom fell and broke her hip.” And if the facility has paid attention to the missing dress or the missing dentures, she added, it will do a better job of preventing the family from being angry when a more serious situation arises.

“When I ask the plaintiffs why they’re suing,” she continued, “many times they’ll say to me, ‘they didn’t listen to me. Nobody ever paid attention to me. I told them for years the mom needs a glass of milk with dinner, and she never got it.’ And that little thing that never got fixed becomes a big, big problem down the line. I see that all the time.”

That sort of resentment can be a powerful driver of litigation, Fernald told The Healthcare News, particularly when mixed with the guilt many families deal with when they put a parent in a nursing home. “When something bad happens, they don’t want to take the blame for that, too. So it must be someone else’s fault.”

Healthy Defense

Determining fault is the goal of virtually all litigation, and considering the growing complexity of health care and a growing, aging population, Morrison Mahoney’s Springfield office has found itself on the leading edge of an important area of the law.

The firm has represented the nation’s largest nursing home chain and small, independent facilities alike, many of which are dealing with that dreaded combination of sicker residents, cuts in patient-care reimbursement, and spiraling litigation.

Attorneys at the firm have dealt with cases ranging from bedsores and falls to improper use of restraints, physical and sexual abuse, and malnutrition. Some have also represented nursing home clients in matters involving guardianship issues and visitation rights, successfully defended claims of negligent security resulting in the murder of a nurse, and obtained injunctions against disruptive family members that threatened the health and safety of nursing home residents.

However, while privacy issues have become a major concern for hospitals and physician practices in the era of the Health Insurance Portability and Accountability Act, nursing homes have not been affected too much by HIPAA from a legal standpoint, said Fernald.

“It’s such a highly regulated business anyway,” she explained. “They’ve always had to follow pretty stringent regulations, and they’ve always had a heightened interest in confidentiality, so I don’t see that HIPAA has made a huge difference in their practice.”

But elder care is only one of Morrison Mahoney’s niches. The firm has also defended a wide variety of health care professionals and systems, including physicians; nurses; hospitals; health plans; risk managers; pharmacists, physical therapists, chiropractors, nurse practitioners, and other allied-health professionals; dentists and orthodontists; mental health professionals; and others.

“We’ve worked with every conceivably medical specialty. We have a pretty broad-based practice,” Fernald stressed. “And home care and hospice, we’ve defended those as well. In fact, with the population aging, we seem to be involved in elder law a lot more.”

Age-old Questions

That suits Fernald, who has also worked with facilities on guardianship and advance-directive issues – for instance, working out conflicts when a resident’s son has durable power of attorney and a daughter controls the health care proxy; or deciding guardianship issues when a resident with Alzheimer’s disease has no health care proxy and no family.

But malpractice and negligence claims show no signs of slowing down. Because of that reality, Fernald reiterated, facilities must not only be diligent about the major issues of care, but also tend to the seemingly small matters, such as maintaining healthy lines of communication between nursing-home staff and residents’ families.

“So many times, family members feel like their complaints aren’t being heard, and their concerns aren’t being addressed,” she said. “So, when something bad happens, they become really angry, and they sue because they feel it’s the only way they can be heard.”

Fernald and other attorneys at Morrison Mahoney are making sure providers of care have a voice, too.