Trial Magazine

John had lived in the nursing home for five years. He was 86, tall, thin, and frail. His Alzheimer’s had steadily advanced until the formerly gentle and universally loved man became verbally aggressive. He was, however, easily calmed with a word or two from staff.

Jane lived in the same wing and was 13 years younger than John. Except for her dementia, she was in excellent physical condition. Jane’s dementia manifested in frequent outbursts, aggressive behavior, and altercations with the staff and residents that had twice become physical.

During a shift change one afternoon, Jane shoved John from behind, and he fell to the hallway floor. He suffered serious injuries, including multiple facial and spinal fractures and a subdural hematoma. He died several days later.

Regrettably, this scenario is not unusual. At times, people with long histories of aggressive behavior are moved from long-term placements in mental health institutions to skilled nursing facilities. When screening prospective residents, facilities rely on referral sources such as hospitals, doctors, and family for information about violent tendencies. As part of the initial and ongoing assessments, the entire care team must be aware of and appropriately respond to indications of aggressive behavior.

In contrast to when a facility employee commits an assault, there is generally no viable civil claim against the assailant in the majority of cases involving an assault by a resident with cognitive deficits. There is lack of legal capacity and probable lack of assets. Instead, consider whether a viable action exists against the nursing home for failing to provide a safe place to live and to prevent abuse or injury.¹

In the absence of willful intent—due to the assailant’s incapacity—federal regulations classify the assault as an “accident,” from which nursing homes are required to protect their residents.² In framing the issues in John’s case, for example, the claim against the facility is for allowing the assault/abuse and failing to protect him from injury. The key fact to prove is that the facility knew or should have known about the assailant’s violent tendencies and the risk to fellow residents. Thorough investigation and discovery is crucial in these cases.

Get the Records

Review your client’s facility records first. It’s even more important, however, to obtain the assailant’s records from the facility, including prior incident reports, especially ones that involved violence.

Under HIPAA guidelines, you typically wouldn’t be able to obtain the assailant’s protected health information, even with a subpoena.³ However, in judicial proceedings once suit is filed, HIPAA regulations provide a mechanism to obtain a court order directing the defendant facility to release the assailant’s records through a discovery order or a stipulation once specific requirements are met and within certain limitations.⁴

Initially, there must be notice or a reasonable attempt to notify the person whose records are at issue.⁵ The qualified protective order, or the stipulation, must prohibit all parties from disclosing the person’s private health information outside the litigation.⁶ Once the litigation has ended, the records must be destroyed or returned to the facility.⁷ Consider using this type of language in your stipulation or proposed order:

Any party receiving said materials pursuant to this order shall not use or disclose any portions thereof for any purpose other than for this litigation, for which such information was requested. Plaintiff shall return to Defendants, or destroy, said materials (including copies) at the conclusion of the litigation.

The seminal case discussing production of protected health information is United States v. Jong Hi Bek.⁸ Only four state cases address disclosure of protected health information,⁹ but the principle is discussed in all of the federal circuits except the Second Circuit.¹⁰ 

Review the assailant’s facility charts for any tendencies toward violent behavior similar to the type manifested in the assault. For example, in John’s case, there may have been nursing note entries or incident reports about Jane acting out against staff, verbally or physically; abusive language or behavior short of physical violence against other residents; and earlier altercations between John and Jane. These instances could support legal action against the facility.

Keep in mind possible third-party data, including ambulance and hospital emergency department records. There may even be records from a police investigation that doctors, emergency medical technicians, or the family initiated. The facility itself rarely takes the step of triggering a police investigation. These documents can contain key post-assault staff interviews. Also, when a resident is injured, most states require reports to be filed with the agency that supervises long-term skilled nursing facilities.

Liability Theories

Subject to the specific facts of your case, there are two approaches to liability.

Negligence. The facility could be liable because of its negligent admission or retention of a resident who puts the safety of other residents at risk. Even if the injured resident also has a known propensity for harmful behavior, this could support rather than hinder your case. Such behavior often is an outgrowth of a resident’s underlying illness, and the nursing home must implement a plan to protect that resident and others. This could include, in the most intractable cases, discharge and transfer to another facility designed to care for people exhibiting violent behavior, such as an inpatient geropsychology unit specializing in the mental health needs of older adults.

Understaffing. The second approach to liability is based on the nursing home’s failure to provide sufficient staff to supervise residents with potentially dangerous behavioral issues. When there are residents with behavioral issues, the facility must provide adequate staff, often at staff-resident ratios higher than state minimums. The staff also must be sufficiently trained and monitored to provide appropriate care for residents with inappropriate behavior. Often, at the root of the problem is a facility’s profit motive to maximize the number of residents while minimizing the number of staff, which is the greatest expense in long-term care.

What to Request in Discovery

Aside from the charts for the residents involved in the assault, your first discovery requests should focus on the incident itself, including:

• reports on the internal investigation of the incident (some state laws consider these privileged under “peer review” or “quality assurance” exemptions, making them more difficult to obtain)
• reports of other incidents involving the assailant
• reports from government authorities, notably the state surveyors’ deficiency findings (CMS 2567), and any mandatory reports of abuse or neglect under state elder abuse laws.¹¹

Next, discovery should focus on areas that apply to most long-term care cases, such as:

• admission and discharge procedures
• assessments and care plans specifically including information about the reassessment process when a resident’s condition worsens
• written policies and procedures for assessments, incident prevention, and care for dementia-afflicted residents
• staff job descriptions, schedules, and reports of staff attendance
• emails regarding the plaintiff, prior resident-on-resident assaults, and substantially similar events
• a floor plan and photos of the location where the assault occurred, including any video that may have been taken¹²
• facility cost reports, which will include reported staffing numbers. If the defendant is a nonprofit, IRS 990 tax returns will yield a trove of financial data on upper management salaries, related entities to whom funds are payed, and other facilities owned by the same entities.¹³

Staff Depositions

Once paper discovery is substantially completed, depose the care staff—including those involved in caring for the assailant—to establish the staff’s knowledge of dangerous propensities. Closely examine resident care plans and minimum data set forms14 from each chart for interventions staff took to protect the residents from harm.

Interventions may include psychiatric and medication consults, ordering frequent checks to monitor behavior, and moving the resident away from people he or she has had conflict with. If all else failed and the facility could not have kept others safe from harm, it should have transferred the resident to another facility.

When deposing staff to support the failure to provide appropriate care plans, supervision, and staff, focus on the day of the assault and the conditions inside the facility. Ask how many staff and residents were present, where in the facility staff was deployed, whether enough people were there to implement care plans, and whether those plans were consistent with facility policies.

For example, deposition testimony could yield the following information as evidence of understaffing: The plaintiff’s wing was staffed with one licensed practical nurse (LPN) and a couple of certified nurse assistants (CNAs). Many residents were living in that wing. At the time of the assault, the LPN was receiving shift change information from the departing nurse inside the nurse’s office with the door closed. One of the CNAs was in the shower room cleaning a resident. The other was in the lounge supervising eight residents. The rest of the residents were in their rooms or walking in the hall, leaving 18 residents, all with varying stages of dementia, unsupervised.

Question the facility’s management, such as the director of nursing and the administrator, about admission policies, the management of resident-on-resident risks, their actions after the assault, policy enforcement, budgeting, and staffing decisions.

The defense likely will focus on the facility’s lack of knowledge of the risk and inability to predict or prevent the assault. Thus, the records for and ­testimony of prior incidents or behavior are extremely important. In the event that the staff didn’t see the assault—even though residents may say otherwise—the defense will impugn the credibility of any witness statements from impaired residents. To counter this, point to incident reports, staff statements, or deposition testimony of what was observed when staff arrived, or any statements residents made to staff at the time.

By properly narrowing the issues and conducting thorough discovery, you can prove the facility knew about the clear risks of a harmful alter­cation.

Martin S. Kardon is a partner at Kanter, Bernstein & Kardon in Philadelphia. He can be reached at marty@kbklaw.com.

Notes

1. 42 C.F.R. §483.12 (2017).
2. The Centers for Medicare and Medicaid Services publishes a facility guide to the regulations that comments on resident-on-resident assaults: “An incident involving a resident who willfully inflicts injury upon another resident should be reviewed as abuse under the guidance at F223. ‘Willful’ means that the individual intended the action itself that he/she knew or should have known could cause physical harm, pain, or mental anguish. Even though a resident may have a cognitive impairment, he/she could still commit a willful act. However, there are instances when a resident’s willful intent cannot be determined. In those cases, a resident-to-resident altercation should be reviewed under this tag, F323.” Ctrs. for Medicare & Medicaid Servs., State Operations Manual, Guidance to Surveyors for Long Term Care Facilities, Appendix PP, 358–59 (Mar. 8, 2017).
3. The assailant’s representative can authorize disclosure of the records, but a direct request to the assailant’s family, assuming his or her name is even known, is rarely successful because of privacy concerns and potential exposure in any litigation.
4. 45 C.F.R. §164.512(e) (2017).
5. 45 C.F.R. §164.512(e)(1)(ii)(A).
6. 45 C.F.R. §164.512(e)(1)(v)(A).
7. 45 C.F.R. §164.512(e)(1)(v)(B).
8. 493 F. 3d 790, 802 (7th Cir. 2007) (holding that HIPAA does not create a privilege against disclosure of protected health information without authorization but rather procedures for disclosure). 
9. People v. Bauer, 931 N.E.2d 1283 (Ill. Ct. App. 2010); Fusco v. Shannon, 63 A.3d 145 (Md. Ct. Spec. App. 2013); People v. Carrier, 867 N.W.2d 463 (Mich. Ct. App. 2015); T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. Ct. 2008).
10. See, e.g., United States v. Pellmann, 668 F. 3d 918 (7th Cir. 2012); United States v. Smith, 573 F. 3d 639 (8th Cir. 2009); United States v. Jafari, 648. F. App’x 226 (3d. Cir. 2016).
11. CMS 2567 forms report state surveyors’ findings of regulatory violations at a facility during periodic inspections or those triggered by complaints. For state elder abuse laws, see www.justice.gov/elderjustice/elder-justice-statutes-0.
12. Since such videos would not be considered part of the resident’s medical file, the facility may erase or discard them, so you should immediately send a letter admonishing management to preserve this evidence.
13. These reports are also publicly available through Freedom of Information Act requests to the state agency. Medicare cost reports for every facility in the country can be downloaded from www.snfdata.com. IRS 990 tax returns for nonprofits can be obtained from www.guidestar.org.
14. Minimum data sets standardize data submitted to Medicare and Medicaid of each resident’s condition and any changes as they are found. These reports form the basis for facility reimbursement and, therefore, are faithfully filed.