Defending against claims for punitive damages

In LTC litigation, plaintiffs’ attorneys routinely assert claims for punitive damages, largely based on statutory language such as that contained in the New York Public Health Law. Such a tactic is more than mere legal posturing and can have serious ramifications for LTC facilities as was demonstrated in December 2009, when a Kings County jury rendered a $19 million verdict in a decubitus ulcer case. The jury’s award included $3.75 million for pain and suffering and a staggering $15 million in punitive damages, the first time a jury awarded punitive damages in an action against a nursing home in New York State.

In the first instance of punitive damages being levied against a nursing home in the Philadelphia courts, a jury awarded $5 million to the widow of a man who allegedly died from bed sores he developed during a hospitalization. In May 2010, a California jury awarded $28 million in punitive damages in a claim surrounding the death of a 79-year old woman in a pressure ulcer case. In the fall of 2010, a Kentucky jury assessed $40 million in punitive damages against a nursing home where a 92-year-old patient died nine days into his stay.

Clearly, trial court judges will increasingly permit punitive damages claims to be considered by juries in nursing home actions. Certain strategies to manage such claims and aggressively limit punitive damages exposure are recommended.

UNDERSTANDING PUNITIVE DAMAGES

It is critically important to understand the nature of the conduct which punitive damages are designed to redress as well as the judicial limitations that exist to limit them. Essentially, the tort system allows a person to be compensated for actual economic and non-economic damages directly related to the claimed negligence. These awards are called “compensatory damages” and may include such items as lost wages, past and future pain and suffering, loss of consortium and future medical treatment costs.

Punitive damages, by contrast, do not compensate the plaintiff, but are designed to deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Ideally, punitive damages are awarded only in special cases where the conduct was egregious—motivated by malice, intent to injure or acting with reckless disregard. Judicial restraint is expected to be exercised in the application of punitive damages. They should only be awarded when the conduct is exceptionally repugnant, which rarely applies in the context of claims for medical malpractice or medical negligence.

In many states, claims for punitive damages are generally uninsurable because the public policy underlying a claim for punitive damages is to punish the tortfeasor and deter future bad conduct. The logic is that if an insurance company simply insured the risk, there would be no punishment directed toward the actual wrongdoer.

A further complication is that many states do not have a statutory ceiling on punitive damages awards, thus there is the very real possibility that punitive damages awards may be greater than the corresponding compensatory award. Additionally, many states require a bond to be posted in order to appeal, and it may be too costly to appeal a large punitive damage award.

DEFENDING AGAINST PUNITIVE DAMAGE CLAIMS

The general recipe for success for the plaintiffs’ bar in prosecuting claims against nursing homes is to highlight issues unrelated to the actual medical care provided. Some of these issues include focusing the jury’s attention on “poor” documentation and claims of “falsified” records to overcome issues related to the plaintiff’s underlying illnesses.

Plaintiffs’ attorneys will inflame the jury by presenting blown-up photographs of pressure ulcers, with which most jurors have no prior experience. Attempts will be made to render the corporate institution a faceless entity, whose primary purpose is the business of promoting “profits over people.” Specific staff members will be targeted for depositions, particularly disgruntled former employees, hoping they will speak negatively about their experiences at the facility. Depositions of staff who are considered most likely to lack any comprehension of the legalities associated with their duties—the CNAs—will be sought because they may have failed to document, overwrite on documents or chart cares when the resident is not even in the facility.

Through the disclosure of personnel records, plaintiffs’ attorneys will try to demonstrate that the staff assigned to care for the decedent was unqualified for employment, poorly in-serviced or continued to be employed despite a history of repeated, documented care failures.

REDUCING RISK

Clearly, LTC facilities must develop a systematic approach to proactively address such concerns. Staff must be educated on how documentation is used in litigation and taught to refrain from overwriting prior entries. CNA Accountability Records should be removed from the floor as soon as a resident is discharged to prevent aides from documenting care when a resident is longer in the facility.

The proper, recognized method to correct a charting error needs to be reinforced at all staffing levels. Chart alterations must be avoided at all cost after there has been a request for records and certainly after a suit has commenced. In pressure ulcer cases, facilities should ensure consistency in documentation so that there are no discrepancies as to the type, sizes and locations described.

All care plans should be detailed and revised as needed. Facilities should clearly document all of the family’s care refusals in the medical chart, which will potentially deflate any claim that the family was not notified or did not understand the treatment being offered. LTC facilities should also implement satisfaction surveys before the family has a change of heart and becomes vocal in its criticisms. If permitted by the applicable state laws, admission agreements should contain arbitration and venue selection clauses to eliminate the risk of extreme jury awards in unfavorable locales. Whether to photograph ulcers has been a source of great debate and each facility must make its own policy determinations, but generally speaking, photographs have historically favored plaintiffs’ cases.

The potential for punitive damages exposure must be identified early. Detailed review of the care record is paramount with focus on possible areas of record alteration or documentation post-resident discharge. Examination of the facility’s survey history for the existence of any immediate jeopardy violations and comparison of the facility to others in its community also present strategic advantages. If a facility rates highly when compared with other nursing homes, it may be difficult for the plaintiff to argue that the care rendered was so wantonly negligent or that management was focused on profits.

If a claim has genuine potential for punitive damage exposure, early efforts at settlement should be explored. If resolution is not feasible, defense counsel must, at a minimum, use summary judgment motions to dismiss claims of punitive damages prior to trial. If such a motion is successful, the threat of punitive damages will be eliminated and could assist defense counsel in containing possible trial exposure and also limit the plaintiff’s proof. If a punitive damage claim proceeds through the trial stage, then defense counsel must seek to reduce or eliminate the award entirely in the form of motions at the close of plaintiff’s case or post-verdict.

At trial, defendants should submit detailed care plans indicating that resident-specific interventions were implemented and all needs were addressed. Efforts should be made to establish that the resident was actively engaged in recreation and socialization activities. The number of disciplines and staff involved in care should be highlighted to show that care was truly comprehensive. Diligently document all communication with the resident’s family members to show that they were constantly apprised of their loved one’s prognosis and were satisfied with the facility. If the family was pleased with the care, this may persuade a jury that the later allegations of mistreatment are baseless.

The corporate institution should be humanized by producing the best possible representatives for the nursing home to show that it was, in fact, a “home.” Employees, who take pride in their jobs and demonstrate compassion and interest in the lives of the residents should be produced for trial to present a positive face for the facility.

Providers face the potential for staggering liability in terms of jury verdicts due to the threat of punitive damages. To achieve the highest level of success in minimizing such exposure, LTC facilities and their counsel must act cooperatively and devise a comprehensive approach to overcome such claims.

Steven D. Weiner is a Partner at Kaufman, Borgeest & Ryan, LLP. His practice is focused extensively on the defense of nursing homes. Mario C. Giannettino is an Associate Attorney with Kaufman, Borgeest & Ryan, LLP, practicing in the areas of medical malpractice and nursing home defense litigation. For more information, visit www.kbrlaw.com.

Acknowledgment: The authors thank Sandra Brown for her additional legal research

Disclaimer: This article is not legal advice. Consultation with licensed and experienced legal counsel is advised.

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