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    Abuse and Neglect in Long-Term Care Facilities: Civil Justice System Response

    As our population ages, the civil justice system will be called on more frequently to represent and protect our elderly citizens. Lawyers who serve as advisors, guardians ad litem, estate planners, and litigators, will be asked to protect the civil rights of victims of abuse and neglect. To better serve your elderly clients, read what state and federal laws regulate long-term care facilities, the warning signs of abuse and neglect, and the potential legal claims and remedies available to victims and their families.

    Jason Studinski

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    Abuse and Neglect in Long-Term Care Facilities:
    Civil Justice System Response

    As our population ages, the civil justice system will be called on more frequently to represent and protect our elderly citizens. Lawyers who serve as advisors, guardians ad litem, estate planners, and litigators, will be asked to protect the civil rights of victims of abuse and neglect. To better serve your elderly clients, read what state and federal laws regulate long-term care facilities, the warning signs of abuse and neglect, and the potential legal claims and remedies available to victims and their families.

    Sidebars:

    elderly man in wheelchairby Jason T. Studinski

    Do citizens forfeit their civil rights once they become residents of long-term care facilities?1 The answer seems obvious.2 The most vulnerable among us should enjoy enhanced, not diminished, legal protection. As our population ages, more lawyers who serve as advisors, guardians ad litem, estate planners, and litigators will be asked with greater frequency to advise and help protect the elderly and infirm. This article is both an introduction and a springboard to more information and greater understanding for lawyers who seek to advise and protect our vulnerable elderly citizens.

    This article examines three distinct yet interrelated topics involving the civil rights of victims of abuse and neglect and their families - the extensive framework of state and federal law that regulates long-term care facilities, the often-missed or misunderstood warning signs of abuse and neglect, and the potential legal claims and remedies available to victims and their families.

    State and Federal Law Highlights

    Depending on their type, long-term care facilities are subject to regulations that range from nearly comprehensive to relatively minimal. For purposes of this article, long-term care facilities can be separated into two categories: nursing homes and community-based residential facilities (CBRFs). Generally, nursing homes are highly regulated by both federal and state law, while CBRFs are typically regulated only by state law.

    Section 50.01(3) of the Wisconsin Statutes, in relevant part, defines a nursing home as "a place where 5 or more persons who are not related to the operator or administrator reside, receive care or treatment and, because of their mental or physical condition, require access to 24-hour nursing services including limited nursing care, intermediate level nursing care and skilled nursing services." Nursing homes are regulated by a comprehensive network of federal and state law that governs virtually every aspect of nursing home operation and resident care.

    The Omnibus Budget Reconciliation Act of 1987 (OBRA 87), known to many as the Nursing Home Reform Act (NHRA),3 serves as the cornerstone of this network. Importantly, the NHRA requires that nursing homes seeking Medicare or Medicaid payment "provide services to attain or maintain the highest practicable, physical, mental, and psychosocial well being of each resident, in accordance with a written plan of care."4 The NHRA also guarantees the rights of nursing home residents, pursuant to a provision aptly called the Residents' Bill of Rights.5

    The Centers for Medicare and Medicaid Services (CMS) have instituted detailed regulations that help bring clarity and guidance to the requirements set forth in the NHRA. For symbolic and in many respects legal reasons, these regulations begin with a section titled "Residents' Rights,"6 which supplements the NHRA's Residents' Bill of Rights, and includes critical provisions about such things as a resident's rights to "access records pertaining to himself or herself";7 be informed or have his or her guardian informed about a "significant change in ... physical, mental, or psychosocial status";8 and have free choice in choosing medical care providers.9 The federal regulations further augment the NHRA with requirements regarding quality of care issues,10 such as activities of daily living,11 pressure ulcer prevention and treatment,12 mental and psychosocial functioning,13 hydration,14 nutrition,15 and medications.16

    In many respects, companion Wisconsin nursing home law17 mirrors the federal law in both form and content with a statutory18 and administrative bill of rights19 and provisions regarding quality of care.20 However, Wisconsin law does not merely duplicate federal law. Depending on the circumstances, either or both bodies of law define residents' rights and set the standard of care.

    While nursing homes provide a wide range of skilled nursing services, community-based residential facilities (CBRFs) provide access to far more limited nursing services and tend to focus on providing "care, treatment, and other services to persons who need supportive or protective services or supervision because they cannot or do not wish to live independently yet do not need the services of a hospital or nursing home."21 Section 50.01(1g) of the Wisconsin Statutes, in relevant part, defines a CBRF as "a place where 5 or more adults who are not related to the operator or administrator and who do not require care above intermediate level nursing care reside and receive care, treatment or services that are above the level of room and board but that include no more than 3 hours of nursing care per week per resident." The law seems to contemplate that CBRFs will admit residents who do not require extensive nursing services but are not comfortable or capable of living independently.

    CBRFs generally are not regulated by federal legislation or regulations but rather are creatures of state law. The Wisconsin Statutes22 and Wisconsin Administrative Code23 form the basis for the standard of care and address critical issues of facility operation and resident care such as admission agreements,24 maintenance of required records,25 and staffing.26 While CBRFs are not as heavily regulated as nursing homes (presumably because of the generally lower acuity level of nursing home residents), the law sets forth considerable requirements for CBRFs, with a primary goal of ensuring resident safety.

    Warning Signs of Abuse and Neglect

    The warning signs of abuse and neglect, as described in this article, may seem obvious. However, in practice, residents, family members, and lawyers often misunderstand, or worse, miss these red flags entirely. Residents and family members typically are not repeat customers of the long-term care industry. Instead, they often are disadvantaged by having either limited information and knowledge or so much unsynthesized complex information on unfamiliar topics such as medicine, regulations, and finances, that they cannot take appropriate action. Residents and families often struggle with powerful emotions that accompany ill health or decline. Under these circumstances, residents and their families may not recognize the difference between symptoms of natural decline and signals of abuse and neglect.

    Lawyers frequently offer little assistance in recognizing, reporting, and remediating abuse and neglect. It seems as though we view our roles narrowly and are rightly concerned about issues such as competency or asset protection; however, many victims were represented by counsel when the abuse and neglect occurred. Lawyers cannot prevent all abuse and neglect, but they should be familiar with some of the profound warning signs of abuse and neglect so that they might better serve their clients. The following eight, often interrelated, warning signs provide an introductory framework from which to detect possible evidence of nursing home abuse and neglect.

    1. Skin Condition. Skin condition can reveal much about the treatment or mistreatment of a resident. Burns, cuts, and bruises are obvious outward signs that a resident may not be receiving appropriate care, treatment, or supervision. In addition, decubitus ulcers, more commonly referred to as bed sores or pressure sores, often point to substandard care. 42 C.F.R. part 483.25 provides that:

    "(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that -

    "(1) A resident who enters the facility does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and

    "(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing."

    Pressure sores usually begin as reddened areas that occur on skin located over boney prominences such as the coccyx region (tailbone), heels, and hips. If pressure sores are not promptly and properly treated, they can turn into open wounds, and severely compromise a resident's health and ultimately cause death. The existence of decubitus ulcers may be especially important in analyzing the overall care that a resident is receiving because they are often caused, at least in part, by poor or inadequate nutrition and hydration, failure to turn and reposition residents at the appropriate intervals, and a myriad of other factors that may indicate improper staffing, training, and supervision.27

    2. Weight Loss/Dehydration. Often, vulnerable individuals have difficulty feeding themselves or drinking without assistance. In fact, 47 percent of residents receive help with eating and drinking.28 A variety of medications and debilitating physical conditions also can contribute to weight loss or dehydration. The federal regulations set forth the nutrition and hydration standards that a facility must maintain. For example, 42 C.F.R. part 483.25 provides that:

    Jason T. Studinski

    Studinski

    Jason T. Studinski, U.W. 1998, is a partner in Kammer & Studinski, Chartered, Portage, and represents victims of nursing home abuse and neglect statewide. He serves on the board of directors of the Wisconsin Academy of Trial Lawyers and the Wisconsin Coalition for Advocacy, and is an active member of the Association of Trial Lawyers of America's Nursing Home Litigation Group.

    "(i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident -

    "(1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible; and

    "(2) Receives a therapeutic diet when there is a nutritional problem.29

    "(j) Hydration. The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health."

    Despite these clear regulations, sources indicate that "[i]t is estimated that 35 to 85 percent of long-term care residents are malnourished."30 Given these statistics and other available information, it is important that residents, family members, and lawyers pay particular attention to nutritional adequacy31 and proper hydration.

    3. Falls. Falls are a common occurrence in long-term care facilities but can be extremely difficult to address. In analyzing falls, one should look for the cause, frequency, and number of falls for a particular resident. Falls can be caused by a wide range of preventable factors such as facility design or maintenance,32 improper assessment of residents,33 and improper staffing34 such that assistance is not readily available to residents. If a resident falls, a facility is required to reassess the resident, and if certain protocols are triggered, adopt and implement fall prevention measures.

    4. Broken Bones. Broken bones may be the most obvious sign of abuse and neglect. Unfortunately, family members sometimes view the occurrence of broken bones as inevitable. Broken bones may result from falls or other unwitnessed incidents. Not all incidents causing broken bones can be prevented. However, many such occurrences are predictable and preventable. Again, the key to analyzing incidents causing broken bones is to find the cause of the incident. Importantly, the federal regulations impose requirements on facilities to prevent accidents.35

    5. Restraints. Restraints come in a variety of forms ranging from tie downs and various garments that restrict movement to medication. 42 C.F.R. part 483.13 sets forth the standard that facilities must follow regarding restraints:

    "(a) Restraints. The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms."36

    Lawyers, advocates, and consumers should be particularly mindful of the use of restraints because they may appear relatively noninvasive, such as when psychotropic or antipsychotic medications are used. However, use of restraints for improper purposes is unlawful and should be addressed so that the resident may function at the highest practicable level.

    6. Medication Errors. 42 C.F.R. part 483.25 sets forth the standards for medication errors. It provides in relevant part:

    "(m) Medication Errors. The facility must ensure that -

    "(1) It is free of medication error rates of five percent or greater; and

    "(2) Residents are free of any significant medication errors."

    Medication errors are an important indicia of the quality of care that a resident receives. In the event of a medication error, the charting should be reviewed to uncover the cause of the medication error to help determine if it was a mistake or a manifestation of a chronic problem within the facility.

    7. Sexual Assault. Sexual assaults should never occur in long-term care facilities. The perpetrators may be facility staff, visitors, and even family members. The federal guidelines require the facility to prevent sexual assault of residents. 42 C.F.R. part 483.13 provides in relevant part:

    "(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion."

    Abuse and neglect in general37 and sexual assault38 in particular usually produce traumatic effects, sometimes including death.

    8. Elopement/Wandering. Elopement and wandering are behaviors that also can lead to injuries and death. The term elopement refers to behavior by which a resident who is not capable of self-preservation leaves the facility unsupervised. "A clear, operational definition of wandering does not exist."39 However, wandering generally describes the resident's movement within the facility, often without purpose or appreciation for his or her safety. There are multiple federal regulations that may set the standard for a facility's care of a resident who is at risk for elopement or wandering.40 Many interventions can be used to prevent elopement and wandering. Importantly, if a facility believes that it cannot meet a resident's needs, the federal regulations do not require a facility to admit or retain a resident. In fact, the federal regulations prohibit a facility from admitting or retaining a resident whose needs it cannot meet.41

    The goal is simple, yet its accomplishment elusive: "Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care."42 Armed with basic knowledge about the warning signs of abuse and neglect, victims, families, and lawyers can seek answers and pursue appropriate action.

    Civil Legal Claims and Remedies

    To determine the appropriateness of civil claims and remedies one should gather several important documents that relate to the resident's care and treatment. (See the accompanying sidebar, "Important Documents.") Depending on the facts, a variety of potential legal claims and remedies, ranging from the ordinary to the esoteric, are available to victims of long-term care facility abuse and neglect and to victims' families.

    Negligence is probably the most common claim brought in a long-term care facility case. In Wisconsin, there are essentially four applicable subspecies of negligence: ordinary negligence, negligence per se, safe place, and corporate negligence.

    Ordinary Negligence. A claim for ordinary negligence, the most common type of negligence, can be brought when a caregiver or facility fails to exercise ordinary care in its treatment of a resident.43 The standard of care can generally be found in the federal and state law.

    Negligence Per Se. Residents may also assert claims for negligence per se, particularly if there has been a violation of a safety statute,44 safety ordinance,45 or state or federal regulation.46 Arguably, violations of the federal and state law provisions outlined in this article form the basis for negligence per se claims.

    Safe Place. Residents also may have negligence-based claims for safe place statute violations. For example, if the long-term care facility fails to properly construct, repair, and maintain its facility, and as a result a resident is injured, a violation of Wisconsin's safe place statute may have occurred.47 Wisconsin's safe place statute provides in relevant part:

    "101.11 Employer's duty to furnish safe employment and place. (1) Every employer shall furnish employment which shall be safe for the employees therein and frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe."

    Safe place allegations can be a powerful tool in remediating dangerous environmental conditions at long-term care facilities.

    Corporate Negligence. The most controversial, and depending on your point of view, effective negligence allegations relate to corporate negligence. Corporate negligence refers to a breach of the standard of care that is chronic or systemic in nature. One common basis for alleging corporate negligence involves insufficient or improper staffing. The federal regulations require that a nursing home provide sufficient staffing to meet the needs of each resident all the time.48 State laws often set forth additional staffing requirements. Interestingly, Wisconsin's regulations pertaining to CBRFs49 even set forth required minimum staffing requirements, and mandate that: "The ratio of staff to residents shall be adequate to meet the needs of the residents as defined in their assessments and individual service plans and for the type of facility."50 Claims for corporate negligence may be based on other systemic factors such as failure to train or adequately supervise employees.

    Regardless of the species of negligence, those claims survive the resident's death and may be brought on behalf of the resident's estate.

    Breach of Contract. A claim for breach of contract may arise when the facility fails to keep promises it made in the admissions contract and related documents. An admissions contract may quote applicable federal and state law and the facility may agree to abide by the same. When the facility violates the terms of the admissions contract and a resident is injured, a claim for breach of contract arises.

    Common Law and Statutory Fraudulent Misrepresentation. Other claims may arise out of these documents and from other representations made by the facility, its employees, agents, and directors. For example, residents may have claims for common law misrepresentation if they relied on representations made by the facility to their detriment.51 Similar claims may exist for statutory fraudulent misrepresentation, pursuant to Wis. Stat. section 100.18, particularly when a facility publicly makes untrue, deceptive, or fraudulent representations about the nature and extent of the care or services it provides.52 Such claims may be especially powerful when the representations being made are addressed to a class of vulnerable consumers such as senior citizens.

    Qui Tam Actions. In considering claims based upon misrepresentation or fraud, one may consider filing a false claims case, also known as a qui tam action. Such claims are brought pursuant to the False Claims Act,53 which allows monetary damages and court costs, if a person (or corporation):

    "(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;

    "(2) knowingly makes, uses, or causes to be made or used a false record or statement to get a false or fraudulent claim paid or approved by the Government;

    "(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid."54

    Qui tam actions can be useful in the context of long-term care facility litigation, particularly when the facility claims reimbursement from Medicare or Medicaid for services that it has not provided to residents.55 Special care should be taken with qui tam actions due to considerable procedural requirements and other complications associated with such claims.

    In addition to claims that may be asserted by residents or their estates, family members may bring claims for their losses, such as loss of consortium, society, or companionship, and wrongful death.56 Given the nature of abuse and neglect cases, wrongful death claims tend to be the most common claims brought by family members. Wrongful death claims in this context belong to the survivors and under Wisconsin law are capped at $350,000 for the death of an adult.57

    Finally, the measure of damages in a long-term care facility case differs substantially from the measure used in other types of injury or wrongful death cases. In most injury cases, emphasis is placed upon economic loss such as loss of past and future wages. Depending on factors such as the victim's earnings and life expectancy, such damages can be substantial. Generally, these types of economic damages are unavailable in long-term care facility cases because the victim is incapable of working.

    For the most part, all other damages typically associated with personal injury cases apply to long-term care facility cases. Residents or their estates can recover damages for past and future medical bills, funeral expenses, past and future pain and suffering, and punitive damages. However, long-term care facility cases are different than many other injury or wrongful death cases in that damages are driven largely by bad corporate conduct involving such actions as failure to staff properly, train appropriately, and supervise actively. Knowledge of the law, awareness of the warning signs of abuse and neglect, and a basic understanding of the availability of civil claims and remedies should help Wisconsin lawyers, regardless of their practice areas, better represent our vulnerable elderly citizens.

    Endnotes

    1Throughout this article the phrase "long-term care facilities" is used as an all-encompassing label to describe facilities that provide medical and nonmedical care to individuals who cannot live independently, including residents of nursing homes and community-based residential facilities. See Eric M. Carlson, Long Term Care Advocacy, 103, LexisNexis Group.

    2See, e.g., 42 C.F.R. § 483.13(b) ("The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.").

    342 U.S.C. §§ 1395i-3 (Medicare), 1396r (Medicaid).

    442 U.S.C. § 1395(i)-3(b)(2).

    542 U.S.C. § 1395i-3(c).

    642 C.F.R. § 483.10.

    742 C.F.R. § 483.10(b)(2)(i-ii).

    842 C.F.R. § 483.10(b)(11)(B).

    942 C.F.R. § 483.10(d)

    1042 C.F.R. § 483.25.

    1142 C.F.R. § 483.25(a).

    1242 C.F.R. § 483.25(c).

    1342 C.F.R. § 483.25(f).

    1442 C.F.R. § 483.25(j).

    1542 C.F.R. § 483.25(i).

    1642 C.F.R. § 483.25(m).

    17Wis. Stat. §§ 50.01-.14, .61; Wis. Admin. Code ch. HFS 132, 134, 94.

    18Wis. Stat. § 50.09.

    19Wis. Admin. Code § HFS 132.31.

    20Wis. Admin. Code § HFS 132.60.

    21Wis. Admin. Code § HFS 83.01(3).

    22Wis. Stat. §§ 50.01-.14, .61.

    23Wis. Admin. Code ch. HFS 83, 94.

    24Wis. Admin. Code § HFS 83.16.

    25Wis. Admin. Code § HFS 83.18.

    26Wis. Admin. Code ch. HFS 83.

    2742 C.F.R. § 483.30 sets forth staffing requirements for nursing facilities.

    28The National Nursing Home Survey: 1999 Summary, Data Highlights.

    29See also 42 C.F.R. part 483.35, which provides additional standards and information regarding dietary services.

    30Nancy Collins & Victoria Castellanos, "Nutrition and Hydration," in Medical Legal Aspects of Long-Term Care 125 (Jeffrey M. Levine ed., Lawyers & Judges Pub. Co. 2003) (citing David R. Thomas, Wendy Ashmen, John E. Morley, William J. Evans, & Council for Nutritional Strategies in Long-Term Care, "Nutritional Management in Long-Term Care: Development of a Clinical Guideline," 55A J. Gerontology, M725 (2000)).

    3142 C.F.R. § 483.35(b).

    3242 C.F.R. § 483.70 provides that: "The facility must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel, and the public."

    33See generally 42 C.F.R. § 483.20.

    34See generally 42 C.F.R. § 483.30.

    3542 C.F.R. § 483.25(h)(1)-(2).

    36See also 42 U.S.C. §§ 1396r(c)(1)(A)(ii), 1395i-3(c)(1)(A)(ii).

    37Suzanne Frederick, "Pain and Suffering in the Elderly Population," in Medical Legal Aspects of Pain and Suffering 299 (Patricia W. Iyer ed., Lawyers & Judges Pub. Co. 2003).

    38Beth N. Rom-Rymer, "Demonstrating Trauma: Effects of Sexual Abuse on the Elderly," in Nursing Home Litigation: Pretrial Practice and Trials 37 (Ruben Krisztal ed., Lawyers & Judges Pub. Co. 2d ed. 2003).

    39"Wandering," in the Encyclopedia of Elder Care 681 (Mathy D. Mezey & Mary Ann Mattson eds., 2001).

    40See, e.g., 42 C.F.R. §§ 483.25, .20, .12, .13, .30, .75, .70.

    4142 C.F.R. § 483.12.

    4242 C.F.R. § 483.25.

    43See generally Wis. Jury Instructions Civil 1005.

    44See generally Locicero v. Interpace Corp., 83 Wis. 2d 876, 266 N.W.2d 423 (1978); Totsky v. Riteway Bus Serv. Inc., 233 Wis. 2d 371, 607 N.W.2d 637 (2000); Walker v. Bignell, 100 Wis. 2d 256, 301 N.W.2d 447 (1981).

    45See generally St. Clair v. McDonnell, 32 Wis. 2d 469, 145 N.W.2d 773 (1966).

    46See generally Nordeen v. Hammerlund, 132 Wis. 2d 164, 389 N.W.2d 828 (Ct. App. 1986); Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567 (1977); Larsen v. Wisconsin Power & Light, 120 Wis. 2d 508, 355 N.W.2d 557 (Ct. App. 1984); James v. Heintz, 165 Wis. 2d 572, 478 N.W.2d 31 (Ct. App. 1991).

    47See generally Wis. Jury Instructions Civil 1900-1911.

    4842 C.F.R. § 483.30.

    49Wis. Admin. Code § HFS 83.15.

    50Wis. Admin. Code § HFS 83.15(a).

    51See generally Wis. Jury Instructions Civil 2400-2404.

    52See Wis. Jury Instructions Civil 2418.

    5331 U.S.C. §§ 3729-3733.

    5431 U.S.C. § 3729(a)(1)-(3).

    55Peterson v. Weinberger, 508 F.2d 43, 53-54 (5th Cir. 1975). See also United States v. Jacobson, 467 F. Supp. 507 (S.D.N.Y. 1979).

    56Wis. Stat. § 895.04.

    57Wis. Stat. § 895.04(4)




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