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Lessons Learned in Closed ClaimLouise Rankin, Esq.
General CounselHumanGood
Kelley Woodfin R.N. B.S. DFASHRM, CPHRMRisk Management Consultant
CORE Risk Services, Inc.
Litigation in Long Term Care
Predicted loss rate for 2016 claims limited to $1 million
$2,150 per occupied nursing home bed
Average claim severity $217,000
Severity increase of 2% annually
Aon Risk Solutions’ 2015 Long Term Care GL/PL Actuarial Analysis
Claim Severity
• Some states (Kentucky) have staggering loss rates of close to $5,000 per bed.
• Over the past three years, there have been multi-million-dollar verdicts in West Virginia and Florida.
+$1M Nursing Home Verdicts
2010: $1.14M verdict for alleged elder abuse, Florida (Trans Healthcare, Inc.)2011: $11.5M compensatory; $80M punitive damages for elder neglect, West Virginia (HCR ManorCare)2012: $8M compensatory, $5M punitive damages, Alabama. Leg fracture missed. Resident died six weeks after diagnosis.
+$1M Nursing Home Verdicts
2013: $1.1 billion compensatory & punitive damages awarded; negligence claim, Florida.2013: $500k compensatory, $23M punitive damages awarded; wrongful death and elder abuse, California (Emeritus). Case included issue with staffing PPD.
+$1M Nursing Home Verdicts
2017: $4.1M verdict. Allegation was failure to stop a medication that resulted in a stroke, which caused death. Illinois (Assisi at Clare Oaks Senior Living)
2018: $7.5 million: elder abuse d/t sexual assault while a nursing home resident. (Lancaster PA)2018: $28.5 million verdict: delay in transfer to acute care, failure to treat dehydration, s/p fall w/fx hip. (McKracken Nursing & Rehab, Paducah Kentucky)
9
+$1M Nursing Home Verdicts
Elder Abuse Negligence Failure to provide necessary goods
and services Physical abuse Financial abuse Sexual abuse Mental abuse
Covenant Care ClaimFirst long term care case to define neglect:
“the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults and, regardless of their professional standing, to carry out their custodial obligations”.
Elder Abuse/Neglect in California
California’s Elder Abuse and Dependent Adult Civil Protection ActPunitive damages are recoverable
Heightened RemediesAdditional civil remedies are available upon “clear and convincing” evidence that a defendant is liable for:
either physical abuse or neglect, and
recklessness, oppression, fraud or malice.
Is litigating always the best route?
OR Are there valid reasons to enter into mediation or arbitration?
What is this claim about?
Causes of Action Elder abuse/neglect Negligence Violation of Patient Rights Wrongful Death Survivorship
AllegationsFailure to:
• Provide necessary care to attain and maintain the highest practicable physical, mental and psychosocial well-being.
• Identify and continually assess care needs.• Establish and implement a patient care plan
based upon and including an ongoing process of identifying, reviewing, evaluating and updating care needs.
Allegations (continued)Failure to:
• Maintain accurate and complete records of her condition.
• Preserve dignity and prevent mental and physical abuse.
• Staff nursing professionals at levels adequate to meet the needs of all residents.
• Employ adequate number of qualified personnel to carry out all of the functions of facility.
• State the truth regarding facility and services provided.
Plaintiff’s position“Defendants failed to provide ordinary care and the requisite supervision and assistance . . . . . As a result decedent was seriously injured and ultimately died.”
DHS 2567: F157 “Notification of Changes”
Failure to: Inform MD in timely manner of each of the
three falls. Follow up on voicemail message left for MD
to ensure MD was advised of a fall. Notify the MD in a timely manner about the
2nd fall resulting in injury to patient’s forehead.
CCRC policy: “must notify MD within appropriate time frame”.
2567 reflects that, “the RN who attended the resident on 3/25/17 stated she called several times but was not able to contact the MD”.
In an interview of the attending MD, the evaluator stated: “MD recalled she learned about the second fall (3/25/17) the morning of 3/26/17 when she came in to see the resident and, if she had been informed of the falls earlier she would have spoken with the family about discontinuing Eliquis and placed the resident on comfort care”.
DHS 2567: F281 “Services Provided Meet Professional Standards”
Failure to consistently document resident assessment for 48 hours after fall, confirmed by DON. Failure to perform neuro checks on a
person with a suspected head injury, confirmed by DON.
2567: F 383 “Free of Accident Hazards/Supervision/Devices”
Failure to provide adequate supervision to prevent avoidable falls. Failure to revise care plan after falls. Failure to revise care plan according to
MD orders.
RISK MANAGEMENT MEDICAL RECORD REVIEW
Events2017 – CCRC began taking care of short patients from the community at large along with its own residents.Mar 10-27, 2017 – Ms R. transferred from the local acute care hospital, became a patient in the SNF.July 2, 2017 – Ms R. died at home.Aug 2017 – CDPH c/o survey: 4 “D” deficienciesDec 6, 2017 – Family request for recordsFeb 2, 2018 – Lawsuit filed
Ms R.’s Admission – 3/10/17
88 year old female admitted with multiple co-morbidities:• COPD w/respiratory failure• reduced cardiac ejection fraction (<55%)• recurrent strep bacteremia• acute diastolic dysfunction• chronic A-fib w/chronic anticoagulation
therapy (Eliquis)• dementia
Ms R.’s Admission - 3/10/17
Allegedly had 1-2 falls in prior 3 months, with most recent fall during prior hospitalization. This history was from family, but family input not identified in admission documentation.
From admission (3/10/17) to first fall (3/23/17), resident was moderate to extensive assist with ADLs. Charting identified resident frequently
tired and lacked motivation for PT. VS reflected varying BP and pulse rate,
with no clear connection to med dosing.
First fall – 3/23/17 (Thursday)
R.N. notes: “At 0300 I helped resident go to bathroom. I was waiting outside the room, suddenly she went out the bathroom. I saw resident lose her balance and fell on floor on buttocks.” Alert/oriented x3; VS 100/50, P 68.
First fall – 3/23/17MD called @0333, new order @0355: cleanse 4 cm x 2 cm skin tear LFA w/NS, apply triple ATB ung, cover w/dd, reevaluate qd x 14 d.
3/24/17 (Friday)MDS Assessment
“1 fall since last assessment, wt 141#, PIMS score 15, mood: feels tired/little energy, trouble falling asleep, poor appetite, needs one-person assist with bed mobility, transfers, amb in room, toilet use, amb on unit, dressing. Balance unsteady, only able to be steady with staff assist for moving from seated to standing, walking, turning around while walking”
Second fall - 3/25/17 (Sat)
Fall incident @0200, witnessed (same RN):“At 0200 CNA called my attention because was helping resident to bathroom, lost her balance but CNA was able to assisted (sic) her to go slow to floor. Checked & assessed, remains alert, oriented x2 and verbally responsive, forgetfulness, pain, has a bump on R outer eyebrow 3.5 cm x 2 cm.
“Nursing staff helping her to geri-chair, post fall assessment initiated, will continue to monitor; VS 127/50, P 67, R 22, oriented to person/place, no injuries observed, has gait imbalance, weakness.”
3/25/17 (Saturday) 0600: “MD notified” (voicemail left). 0649: “Family called about incident”. 0924: new order to “monitor bump” q
shift & call for any change x14d”.According to record, daughter and resident refused ER transfer. This notation is not timed nor was there evidence of informed refusal or 911 called for evaluation.
3/26/17 (Sunday)MD visit on 3/26: “s/p fall earlier in AM on Saturday while walking out of bathroom; 2 falls in one week. Apparently dtr declined ER eval…Dx: strep bacteriuria/sepsis, Vit D deficiency, A-fib on EKG, COPD, CHF, chronic venous stasis, mild cognitive impairment. P: monitor alkalosis, Diamox if bicarb continues to increase, PT/OT, continue ASA, mat, sitter, bedside commode especially at night, ? sitter at night; please assess, monitor closely for falls.”
Third fall - 3/26/17 (Sunday)“At around 10 PM resident found lying on the floor inside room beside geri-chair; alert, oriented x2, verbally responsive, forgetful, confused, denies pain, able to move lower & upper extremities w/o pain. 2 nursing staff was helping resident back to geri-chair; post fall neuro assessment initiated, will continue to monitor. VS 132/62, 83, 20, 97%; no bleeding no bruises noted, MD and family aware, son called at 2317; MD called at 2316.”
3/26/17 (Sunday)• Neuro checks were performed q15 min
beginning at 2200. Nurse documented “confused, obeys commands, no ear/nose drainage, normal strength in legs/arms, no headache, PERRL.”
• Other neuro check documentation illegible, and the chart appears as though some columns were checked off all at one time rather than when neuro checks were done.
• Some entries were not initialed or signed.
No documentation about nursing staff response to MD orders: (floor) “mat, sitter, bedside commode especially at night, ? sitter at night; please assess, monitor closely for falls.”
3/27/17 (Monday) • Weekly progress summary @ 0011: “wt 140#
on 3/26/17, 113/70, 64, 20, alert, disoriented to time. Falls did not result in injury.”
• 0800 nursing note: “in recliner chair alert and verbally responsive, oriented x2, confused, weakness noted, lethargic, BP 118/46, P 60, R 20. No c/o dizziness, lightheadedness, SOB, no pain/discomfort, more sleepy than usual, refused breakfast.”
3/27/17 (Monday)
0900 post fall committee: “noted by nurse to be ‘more sleepy’ with low breakfast consumption; dtr and resident agreed to ER transfer for CT”.Per hospital ER physician: “had 3 falls within the
last 5 days; dtr declined ER transfer for eval and wanted comfort care; this AM noted drowsy and confused after third fall last night.”
HospitalCT: R subdural hematoma up to 1.7 cm thickness, midline shift R>L up to 1 cm; some continuation of subarachnoid blood along R margin of interhemispheric falx and superior margin of tentorium.NICU neuro note: moderate to large R SDH, acute on chronic w/increased ICP. Bruising involving R temporoparietal area, bruising R periorbital area.
Hematoma was evacuated; patient eventually was transferred to a different SNF where she failed to thrive. Transferred home and died July 2, 2017.
8/01/17: DHS complaint visit. 8/02/17: DHS complaint visit. 8/03/17: Daughter requested
medical records. 8/07/17 & 8/10/17: DHS complaint
visits.
Quality Issues Identified in Risk Management Case Review which affected the defense strategy.
Human Factor:Knowledge Deficit
• Review of documentation indicates the LNs did not understand relationship between high fall risk and high risk for fall-related injuries due to dementia, impulsivity, long-term anticoagulation therapy, and balance/gait deficit.
• No evidence LNs understood how dementia can produce impulsivity disorder.
As a result, there was an apparent lack of mindfulness in attending the resident as evidenced by no toileting schedule and no communication with attending physician and family about impulsivity.The evidence of head injury was underemphasized because of an apparent lack of understanding that head injury has a high potential for intracranial bleed in a resident on long-term anticoagulation.
Traumatic brain injury education needed so staff understands pathophysiology of mechanical concussion with intracranial contusion and bleeds.
Human Factor:Lack of Nursing Judgment
• Did not implement toileting schedule in resident at high risk for falls.
• Did not increase monitoring for resident with night urinary urgency, poor safety awareness, and impulsivity.
• Did not initiate neuro-checks after the first and second falls.
Human Factor: Risk-Taking Behavior
• No toileting schedule• Did not assist resident to and from
bathroom• Did not remain with resident during
toileting• Did not initiate neuro-checks• Did not override daughter to have
paramedics evaluate after 2nd fall
Human Factor: Communication Deficit; Failure to Call 911
Ensure that calling 911 is protocol for unwitnessed falls with suspected or actual head injuries, particularly with residents on anticoagulation or with other high risk factors for intracranial bleed.
Human Factor: Failure to Follow Established Policies
Neuro-check policy (let’s talk about this…) Gait belt policy Stand-by assist policy SBAR policy Truth in documentation policy Clinician notification policy
Clinical Factors
• Alzheimer’s with loss of executive functioning & impulsivity
• Anticoagulant therapy• Gait/balance disorder• Varying blood pressure/pulse rate due
to cardiac dysfunction & dysrhythmia
System Factors• No use of gait belt.• No fall mat by bed.• No nursing protocol to obtain
sitters for frequent fallers or those at high risk for injury from falls.
• Neuro-check system antiquated, meaningless.
• No 911 protocol.
Death Certificate, July 10, 2017Cause of death:“Complications of blunt force injury of the head with subdural hemorrhage.”Place of injury:“Nursing home”Describe how injury occurred:“Suffered fall(s) in nursing home”Location of injury:“[street address]”
What happened whenAug 2017 – CDPH complaint survey resulted in 4 “D” deficienciesDec 6, 2017 – Request for recordsDec 7, 2017 – Incident report filed with PL/GL carrierDec 7, 2017 – Contacted outside counsel
Pre-litigation
Dec 19, 2017 – Contacted plaintiff’s counselDec - Jan 2017-18 – Interviews and visits
CDPH Investigation File: District Office refused request for file (incorrectly).Business File: Unable to locate the signed
Admission Agreement or rest of business file.Med Rec: Found items that were not included
when family requested the chart (MDS, MAR/TAR, Care Plans).
LAWSUIT FILED
LitigationFeb 6, 2018 – Complaint filed with court
MediationMay 16, 2018
Carrier RepAttorneyCorporate GC
PlaintiffPlaintiff’s counsel
Mediator
Settlement!• $40k – Legal fees
and expenses• [$$$$] -
Settlement
• Payment• $150k CCRC• Overage $$$$
- Carrier• Expenses
Settlement
• Early in case• Plaintiff’s counsel best
in California• Disruption –
depositions of staff, Finance, Exec Team
• Embarrassment -public
• Unknown expense
• $150k out of pocket• Insurance premiums
affected
Where do we go from here?
Recommendations1. Implement strategy-based Fall Management
Program; we have a template available.2. Adopt intervention strategies in the Fall
Management Program as nursing protocol.3. Discard neuro-check process & adopt use of
Glasgow Coma Score. (uh oh, let’s talk about this in a few minutes…)
4. Implement nursing protocols for: determining if a sitter is needed, calling 911, obtaining informed refusal, SBAR reporting.
Glasgow Coma Scale• Used in pre-hospital paramedic services
since the 70’s.• Now used by ICU’s to assess neurological
status.• Much easier to use and reflects earlier
and significant changes in mentation, movement, speech, and eye opening.
5. Provide nursing education on “Head Trauma in the Elderly.”
6. Develop and implement a policy regarding contact with the SNF Medical Director for orders if a resident’s attending physician cannot be reached and the situation involves a change in condition.
7. Scripting and role play for staff on how to respond to questions from a surveyor to avoid fear and future “saving face” by giving too much or insufficient responses.
8. Reinforce the Code of Conduct, to wit: falsification of documentation is not tolerated.
9. Educate staff about the difference between maintaining dignity and the need to protect residents at high risk for falls and fall-related injury.
10. Require stand-by assist at the resident’s side when the resident meets criteria for being high risk for falls and fall-related injury.
11.Educate the nursing staff on situation monitoring and awareness. Proactive nursing assessment & intervention could have reduced the settlement amount in this claim.
12.Develop & implement a policy requiring the use of gait belts with residents at high risk for falling and fall-related injury.
Per IHI: use of gait belts for ambulating patients with mobility deficits improves patient stability when walking and reduces injuries among patients and staff.
Do better next time!!!
