How to Litigate Nursing Home & Assisted Living Cases

LITIGATING CASES AGAINST
NURSING HOMES, ASSISTED LIVING CENTERS, and PHARMACIES ICLE
September 6, 2013Andrew E. Goldner
Law Offices of Andrew E. Goldner, LLC
950 East Paces Ferry Road, NE Suite 2110
Atlanta, GA 30326
(404) 869-1580 (o)
www.andrewgoldner.com andy@goldnerlegal.com

General Topics for Almost Any Type of Plaintiff’s Case.
Claims Against Nursing Homes.
Claims Against Assisted Living Facilities.
Claims Against Pharmacies.
Claims Against Group Homes, Daycares, Facilities for Disabled Individuals.

General Topics for Almost Any Type of Plaintiff’s Case.
1. “Know When To Hold Em’, Know When to Fold Em’, Know When To Walk Away, Know When To Run.”
  1. Rule # 1 – If the damages aren’t there, neither should you be.
  2. See rule #1.
  3. If grandma got a scratch and a stitch, give her the number for the government agency with jurisdiction and wish her well.
  4. Thinking that you are going to get “easy” money pre-suit in medical / long-term care cases = bad idea.
2. Medicare – You Can’t Live With It, Your Client Can’t Live Without It.
  1. What You Do – put them on notice [do this EARLY], get the conditional payment letter, advise them of settlement / verdict, pay, move on.
    1. Why It Matters.
  2. CMS contact info – http://www.msprc.info
  3. Identify and deal with Medicare Advantage Programs.
3. Medicaid – (see above comment regarding Medicare)
  1. What You Do – put them on notice [do this EARLY] advise them of settlement / verdict, negotiate, pay, move on.
  2. Forms – (they usually send these after receipt of a letter).
  3. Hire an elder care lawyer for settlement planning issues.
4. Liens
  1. GA Law (made whole) vs. ERISA – Health Insurance Subrogation. claims.
  2. Watch Release Language for payment of liens and medical bills.
    1. Be careful about signing the Release yourself and what you are agreeing to do/not do.
  3. Learn GA law with respect to hospital liens and watch out for them.
  4. Be aware of changing advisory / ethics opinions regarding third parties. (Model Rule of Professional Conduct 1.15(I)).
5. Incapacitation
  1. Be on the lookout for these issues.
  2. Find a good qualified lawyer who can draft the appropriate documents. (Power of Attorney – Financial and Healthcare).
6. Special Needs Trusts
  1. Learn how to issue spot (Medicaid recipient / disability payments?)
  2. Get an elder care lawyer involved for client’s interests and your protection.

Claims Against Nursing Homes.
1. Not every place an elderly person lives is a “nursing home” or skilled nursing facility.
  1. Yes, the distinction matters.
  2. Resident’s Bill of Rights for Long-Term Care Facilities (GA Department of Community Health): http://dch.georgia.gov/sites/dch.georgia.gov/files/related_files/document/111-8-50_Final_Rule_February_2013_Web.pdf
2. What is a nursing home? (generally: around the clock skilled nursing care, residents can be bed-bound, can administer medication).
3. How does it differ from an Assisted Living Facility? (ALF – generally residents are less in need of around the clock care).
4. Regulations – state and federal.
5. What are the most common types of claims against a nursing home?
  1. Falls. – Fall Care Plan—In Place? Followed? Restraints?
  2. Pressure Sores / Bed Sores. Care Plan—In Place? Followed?
  3. Elopement. Almost never excusable. Prior Elopements? Alarms?
  4. Sexual Assault. – Monitoring, Supervision; Problematic Resident?
  5. Medication Errors. – Look at the MAR. Review original chart.
6. Do NOT overlook a GOOD medical malpractice claim, if present.
7. BE CAREFUL OF O.C.G.A. § 9-11-9.1 AND § 24-9-67.1
  1. Doctors, nurses, wound care.
  2. Be safe. If you aren’t willing to spend the time or money for the Affidavit, you should not be doing the case.
8. Common Defenses.
  1. He was old.
  2. She was old.
  3. Stuff happens to old people.
  4. Old. Old. Old.
  5. Old people fall.
  6. Blame the family.
  7. We were doing our best…..considering how old he was.

Claims Against Assisted Living Facilities.
1. ALF is not a Nursing Home or “skilled nursing facility” – skilled nursing care usually not provided there. Might be brought in via 3rd party.
2. What is an ALF? (help with ADLs, medication assistance, watchful oversight, reminders, generally a more independent resident base).
3. Regulations – federal and state.
4. What are the most common claims against an ALF?
  1. Watchful oversight.
  2. Failure to transfer – acutely.
  3. Failure to transfer – chronic – resident no longer suited for ALF.
5. O.C.G.A. § 9-11-9.1 AND § 24-9-67.1 – Usually Not Involved. But, be safe.
6. Common Defenses.
  1. He was old.
  2. She was old.
  3. Stuff happens to old people.
  4. “We’re just an ALF, not a nursing home.”
  5. Blame the resident.
  6. Blame the family.
  7. We are doing our best…..considering how old he was.
  8. Resident was entitled to independence.

Claims Against Pharmacies.
1. Georgia Board of Pharmacy – http://gbp.georgia.gov
  1. As of July 1, 2013 – GA Department of Community Health
2. Georgia Board of Pharmacy Rules & Regulations
3. Georgia Pharmacy Practice Act – http://gbp.georgia.gov/documents/georgia-law
4. Be Aware of O.C.G.A. § 9-11-9.1 AND § 24-9-67.1 / INCLUDES Pharmacists.
5. Types of claims.
  1. Misfill of Medication.
  2. Wrong Dosage.
6. Significantly, the rules promulgated by the Board do not establish a duty to warn about every possible side effect of a drug. Ga. Comp. R. & Regs. r. 480-31-.01(c)(1) provides: Upon receipt of a Prescription Drug Order and following a review of the patient’s record, the dispensing Pharmacist shall personally offer to discuss matters which will enhance or optimize drug therapy with each patient…. Such discussion … shall include appropriate elements of patient counseling, based on the professional judgment of the pharmacist. Such elements may include but are not limited to the following: … (v) common severe side or adverse effects or interactions and therapeutic contraindications that may be encountered….While the rule requires that counseling be offered to a customer, the topics of discussion are determined entirely by the subjective judgment of the individual pharmacist, and the rule only refers to common side or adverse effects in its list of elements of discussion that may be included. We cannot conclude that this rule established a heightened duty on the part of the K-Mart pharmacist to advise Chamblin of every remote potential side effect of Daypro. Chamblin v. K-Mart Corp., 272 Ga. App. 240, 242, 612 S.E.2d 25, 27 (2005)

Claims Against Group Homes, Daycares, Facilities for Disabled Individuals.
1. Pay attention to regulations.
2. Open Records Act Requests. (e.g., Bright From The Start for daycare).

Law Offices of Andrew Goldner, LLC

1040 Crown Pointe Pkwy #800
Atlanta, GA 30338

Phone: (404) 869-1580
View Map