Over the past two weeks, a Florida jury awarded $12.353 Million and a Georgia jury awarded $14.319 Million dollars in favor of Plaintiffs and against nursing homes.
The Florida Case – The Complaint was filed December 7, 2018 and Plaintiff alleged that she was admitted to the nursing home for one month in 2017 and developed a pressure sore. The Plaintiff, who has spina bifida, a condition from birth that affects the spine, stayed at the nursing home while recovering from a broken leg. She testified that mobility issues rendered her a high risk for developing pressure sores. Her experts testified she developed a sore which doctors found went down to the bone, because the facility’s staff failed to properly reposition her. She and her experts testified that she required a range of treatments that severely impacted her ability to perform daily activities. The nursing home staff and experts testified that the Plaintiff was properly cared for while at the facility. Evidence showed directives to reposition her “as-needed” were issued with Plaintiff's own mobility goals in mind. The Plaintiff often chose to lie in positions that increased the likelihood of a pressure sore developing, despite warnings from facility staff. The Plaintiff is still living. The award included more than $1.7 Million in medical expenses and more than $10.6 Million for Plaintiff’s pain and suffering. Jurors found the nursing home parent company 87% responsible for Plaintiff’s injury and apportioned the remaining 13% to Plaintiff herself, likely reducing the post-verdict award to about $10.74 million.
The Georgia Case – The Plaintiff in this lawsuit also alleged development and progression and infection of pressure ulcers. She was admitted to the facility after a stroke and had a multitude of underlying co-morbid conditions. Plaintiff’s experts testified about negligent care as well as corporate negligence and inadequate staffing. The Plaintiff resident died at the hospital on hospice.
The jury awarded a cumulative $14,319,500 verdict that included $3.3 Million against the nursing home parent company for the wrongful death. The jury found that punitive damages were warranted and that both the parent company and licensed operator had caused the Plaintiff damages warranting an award of attorney’s fees. The jury apportioned 19% of fault to the licensed operator and 81% of fault to the parent company. The jury awarded $900,000 in punitive damages against the operator and $8.27 Million against the parent company. The jury further awarded attorney’s fees and expenses of litigation to the Plaintiff in the amounts of $351,500 against the operator and $1.498 Million against the parent company.
What’s Driving Nuclear Verdicts? Social inflation trends are challenging to predict, as they’re driven by ‘soft’ social ideas like public perception of corporate behavior, social media and changing demographics. Drivers include increasing sophistication of the Plaintiffs’ bar and the changing composition of jury pools which can influence how cases are viewed and verdicts awarded. Also moving the trend of nuclear verdicts are undermining of tort reform in a number of jurisdictions, publicity surrounding large verdicts, life care plans (see the Florida verdict), general public complacency around large numbers, and the ability of the Plaintiff ’s bar to elicit anger and sympathy from juries.
In nursing home litigation, challenges include public mistrust, the increase in third-party litigation funding, and legal strategies from Plaintiff’s attorneys.
A few key Plaintiff strategies have developed over the past years that have been used to escalate verdicts including in the two recent cases.
The Reptile Theory – In nursing home litigation, we’ve been defending against the “reptile theory” for several years now. The reptile theory is a strategy that Plaintiff attorneys use to obtain large jury verdicts. Simply explained, it is called the reptile theory because reptiles go into attack mode when threatened or frightened. Through a series of questions to witnesses designed to establish that the nursing home had a duty to provide a safe environment and did not, Plaintiff’s attorney seeks to instill fear to threaten a jury so the attack response is to punish the nursing home. Some questions include:
You would agree that resident safety is the top priority, wouldn’t you?
You would agree that danger and risk are never appropriate, right?
You want to keep residents safe, don’t you?
Reducing incidents is the most important thing at the nursing home, isn’t it?
The above sample questions are broad general questions designed to elicit a “yes” answer from the nursing home witness including the administrator, nursing director and CNAs. This strategy aims to convince jurors that the nursing home violated the resident’s safety, putting the entire community at risk, and urges them to deter irresponsible behavior by punishing the nursing home.
Along with the Reptile Theory, Plaintiff's attorney uses “Anchoring” or introducing a large number at the outset of a case, building that into the conversation with the jury and reinforcing it through the trial. They also use the “Trojan horse theory” or creating an environment designed to bring the jury into a story of injury and alleged injustice to get the jury to identify with the resident’s experience. And like in the Florida lawsuit, Plaintiff’s attorneys use “Life care plans” or a detailed report that accounts for a resident’s needs for the rest of his or her life following a nursing home event.
Proactivity From the Front Line Care Giver to the Owner – There’s no single solution to mitigating the nuclear verdict. For over thirty years as a lawyer and risk manager, educating and training in risk mitigation strategies continues to be the primary means of supporting our client healthcare providers. The best defense is a good offense. An ounce of prevention is worth a pound of cure. From the front line care giver to the owner, proactive risk management and corporate and regulatory compliance are the best ways to mitigate potential claims. Following here are several risk mitigation strategies that our firm recommends.
Arbitration Agreements – A legally enforceable Arbitration Agreement, compliant with federal and state laws, will reduce litigation costs and avoid exposure to nuclear jury verdicts. Historic reports from Aon conclude that the increased use of arbitration agreements is a key factor in reducing average claim severity.
Formal Expectations Management Programs – Most residents and families do not know what to expect at an assisted living facility and nursing home and have expectations that may be unrealistic. Residents and families may be experiencing emotions such as grief, guilt, fear and anger which set the stage for conflict. Setting realistic expectations with residents and families through formal programs at admission and continuing management of the expectations through the residency will significantly reduce the chances and opportunities of a resident or family member filing a formal lawsuit against the community. We develop and customize programs for our senior living providers that are easy and cost-effective, and we suggest you consider program objectives to be on quality of care and a sense of wellbeing through communication and family partnerships, ensuring that families fully understand the realities of assisted living life including the risk, educating staff to recognize and communicate illness trajectories and changes in condition for continued assessment related to placement.
Consistent and Complete Documentation – The first action a Plaintiff’s attorney takes prior to filing a lawsuit is requesting and reviewing the resident’s record, the administrative file and admission contracts. What he/she is hoping to find are inconsistencies between the admission assessments and level of care the resident is to receive, the resident’s conditions and any changes and continued assessments (care plans) to evaluate continued suitable placement. In addition, to timely and accurately document care and services, it is important to document discussions with staff, physicians, residents and families. Document that labs were gathered, that results were sent in a timely fashion and any new orders properly placed in the record and compliance noted. Oftentimes, we are faced with incomplete MARs and TARs, which makes defending the record and care more difficult. Record audits should be regularly conducted for compliance with state regulations and policies and procedures.
Assess and Address Changing Staffing Needs – Most staffing levels established in state regulations are minimum only. Plaintiff’s attorneys focus on understaffing for budgetary savings and lack of staffing to support corporate liability and greed. Employing staff in sufficient numbers, with ability and training to provide the basic resident care, assistance, and supervision required, based on the assessment of the acuity levels and residents needs is the best defense to these claims. Monitor the adequacy of staffing ratios based on residents’ needs at regular intervals.
Analyze Marketing Materials Including Internet Advertising – Analyze marketing materials to determine if they are consistent with the level of services provided. Be certain that information on the internet is current, accurate and that organizations are properly identified. A legal review should be completed on all marketing materials including that services or statements that could present exposure.
Review Admissions Agreements, House Rules and Resident Handbooks – Review resident contracts for consistency of terms. Focus on areas such as discharge and retention policies. Expectations management programs should be included in the Admissions Agreements, as well as House Rules.
Review and Revise Policies and Procedures as Necessary – Adopt and implement policies and procedures that address operational, business and clinical issues to promote consistency in actual practices by the staff and compliance with state regulations and “best practices”. Monitor the staff for compliance of established policies and include outcomes in annual competency and performance evaluations.
Assessment of Residents’ Rights – Liability can also arise through a violation of resident rights, as established in state resident rights statutes. Ongoing assessment of a facility’s compliance with residents’ rights should be an integral part of the risk management program. Document the monitoring and evaluation of a resident rights compliance program to create a strong defense. Violations related to protection of resident funds and financial matters, receipt of mail, security of personal property, and abusive staff behavior may be subject to heightened scrutiny and made part of a lawsuit.
The nuclear verdict is not a new phenomenon but post-pandemic, we believe that, like the lead up to the 2008 financial collapse, social inflation and the resulting tide of outsized verdicts will increase considering anti-corporate attitudes, general pessimism and the negative media around nursing homes. Moving forward, it is critical for us to understand the post-pandemic jury pool mentality and if the social inflation trend survives the outbreak. Historically, and as reflected in the two recent verdicts, it has been common for jurors to express a belief that the nursing home staff were likely undertrained, unskilled, and perhaps even morally suspect. COVID-19 stories of the sacrifice and heroism of aging services staff and medical professionals have changed these assumptions radically and thus changed the risk profile for aging services claims even if no COVID-19-relevant facts or claims are present. As the country moves post-pandemic, attention will increasingly be turned toward finding someone to blame. Start where you are with your organization and implement proactive risk mitigation strategies “We are not preparing for the world we live in—we are preparing for the world we find ourselves in.”
