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Nursing Home Litigation
By William F. Taylor, Esq.
A decade ago few attorneys in California were aware of the magnitude of the resident neglect taking place in nursing homes and other institutional settings. Even fewer were aware of the legal remedies available and the strategic and tactical approaches to take in successfully representing injured nursing home residents and their families. Today, thanks in significant part to the advocacy and educational efforts of CANHR, that has changed for the better.
Most attorneys engaged in representing consumers are now aware of this field of practice, and may have focused their practices on helping the victims of neglect and abuse to secure compensation. Today, an elder who suffers an avoidable fall, or who develops a serious pressure ulcer, or who is subjected to other forms of abuse and neglect, has a much better chance of being able to locate counsel to provide representation.
These are all positive developments. Unfortunately, despite the increased attention focused on the problems of nursing home residents, neglect and abuse continue. Here are just three examples noted from a review of recent State investigations (See CANHR Citation Watch – Consumer Report contained in the CANHR Advocate, Spring 2006, based upon a review of data from the California Department of Health Services):
These examples can be multiplied hundreds of times. Many attorneys who have attended CANHR conferences can cite far worse cases.
In fact, the extent of neglect may be growing worse due to a decline in the regulatory efforts to enforce the nursing home standard of care regulations. In the past several years the efforts of the California Department of Health Services, never very effective in its enforcement efforts, have grown even weaker, with the Department of Health Services failing to investigate complaints of abuse, neglect and patient rights violations within the time frame allowed by law. CANHR has brought suit against the California Department of Health Services because of its failure to comply with the time requirements for investigating complaints about conditions and treatment in nursing homes.
At the same time, the nursing home "industry" – as it calls itself – has embraced a number of practices, including, in some cases, the withholding of patients charts pending internal "review." In an effort to avoid liability, nursing home chains have created corporate or limited liability shells for each individual facility. Other facilities have reduced or eliminated insurance coverage. And the industry has, of course, turned to the media and legislature to complain about how unfair it is that they can be sued. Defense attorneys have also become more sophisticated, with a number of firms now specializing in the defense of elder abuse cases.
In this author’s view, the primary underlying problem remains the same. It is the unrestrained drive for profits that often results in nursing home owners and operators ignoring the legally mandated minimums of staffing, service and care. This attitude best accounts for the pervasive patterns of neglect and abuse that have been detected and documented in California’s nursing homes over the past three decades.*
*For example, see California Nursing Homes: Care Problems Persist Despite Federal and State Oversight (July 1998), USGAO Report to the Special Committee on Aging, United State Senate. See also the following reports by the Commission on California State Government Organization and Economy (the Little Hoover Commission): Care Without Dignity (April 1991); The Medical Care of California’s Nursing Home Residents: Inadequate Care, Inadequate Oversight (February 1989); New and Continuing Impediments to Improving the Quality of Life and the Quality of Care in California’s Nursing Homes (May 1987); The Bureaucracy of Care: Continuing Policy Issues for Nursing Home Services and Regulation (August 12983); Long Term Care: Providing Compassion Without Confusion (December 1979). See also CANHR, Status Report on California’s Nursing Home Industry (1997); Citation Report: California’s Nursing Homes for 2002 (2001 and 2002).
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