Nursing home negligence?

“Resident #1 died because of the facility’s negligence.” Those sobering words recently appeared on the statement of deficiencies (CMS Form 2567) for a nursing facility. It wasn’t long after the Centers for Medicare & Medicaid Services (CMS) issued the 2567 that the estate of the resident filed a wrongful death action against the facility. Worse, the surveyors got it wrong, and the alleged deficiency was subsequently deleted by CMS after an appeal was filed.

Every nursing home administrator, director of nursing and staff member is aware of the mandatory health surveys conducted by state departments of health. According to federal law, all skilled nursing facilities that participate in the Medicare and/or the Medicaid programs must be surveyed at least once every 15 months. In addition to annual or “recertification surveys,” nursing facilities are surveyed when a resident, family member or even a disgruntled employee makes a complaint. These surveys also are called “complaint investigations” or “abbreviated surveys.” When a survey team determines that deficiencies at a certain level of severity have occurred, a “revisit” survey will be conducted to determine whether the facility corrected the deficiency and has regained compliance.  

Each survey, regardless of its type, results in a written statement of deficiencies. By federal law, the form must be posted in a conspicuous location in the nursing facility. States also post detailed survey results, without a resident’s name or identifying characteristics, on official websites. CMS does the same on its Nursing Home Compare website.

But what happens when a personal injury or plaintiff’s negligence law firm gets ahold of the 2567 form and tries to use it to convince a jury that negligence resulted in harm or death to a resident? After all, the purpose of a survey is to determine whether a facility is in substantial compliance with federal regulations, not whether the civil tort of negligence occurred.

Negligence and negligence per se

The law recognizes two types of negligence: negligence and negligence per se. Negligence is a civil tort that requires four elements for a plaintiff to prevail: 1) there must be a duty, 2) the duty must have been breached, 3) harm must have resulted from the breach and 4) the breach of a duty must have caused the harm. For example, if a resident was given the wrong medication and suffered an adverse effect, then all four elements of the tort of negligence exist.

By contrast, negligence per se is established simply by violating a statute or regulation. A speeding ticket for driving 65 mph in a 55-mph zone is an example of negligence per se.

Why are the definitions important to nursing homes and their surveys? Law firms specializing in “nursing home negligence” will attempt to use the 2567 as evidence of negligence per se, giving the false impression that the presence of a deficiency always indicates negligence. This is clearly not the case. As most providers realize, many times, alleged deficiencies lack a sufficient factual and/or legal basis. But if left unchallenged, they might be used in collateral civil litigation to the detriment of the facility.

Spurred on by aggressive use of the statement of deficiencies by some law firms, several state legislatures have responded with proposed bills. For example, the Georgia state legislature recently passed legislation that prevents the use of a deficiency from being used as evidence of negligence per se. The legislation, however, would permit a court to allow the statement of deficiencies as evidence if the court determined it was relevant to the harm alleged in a complaint.

A bill introduced in the Tennessee legislature goes even further. Senate Bill 0889 (HB0714) states that “the results of a survey, an inspection, or an investigation of a healthcare provider…including any statement of deficiencies and all findings and deficiencies cited in the statement of deficiencies on the basis of a survey, inspection or investigation, all proposed or implemented plans of correction…will not be admissible in evidence or otherwise used in any healthcare liability action in any court or arbitration proceeding.” The proposed legislation does permit the use of the statement of deficiencies in administrative proceedings and appeals of those proceedings and to impeach a witness in a healthcare liability issue.

State legislative reactions to predatory advertisements and inappropriate use of statements of deficiency against nursing homes show “a general distaste for these types of ads,” says Jason Bring, JD, a partner at Arnall Golden Gregory. In addition, “some courts have found that the ads using select portions of a statement of deficiency can be false and misleading,” by implying that problems continue to exist or misquoting survey findings, he adds.

Arrows in a nursing facility’s quiver

Given the aggressive use of the 2567 and predatory advertising by some “nursing home negligence” law firms, providers are well-advised to take all appropriate measures to defend against lawsuits that lack a sufficient basis, including the suggestions below.

Challenge inaccuracies. Providers should consider challenging alleged deficiencies that are not valid or factually inaccurate. Disputed deficiencies may be corrected using the informal dispute resolution (IDR) process, the independent IDR process, appeals to an administrative law judge and other strategies. An IDR, which is a “recommendation” and not binding on CMS, may delete a deficiency or change inaccurate and inflammatory wording in the 2567.

Use the law-making process. Another strategy gaining traction in many states is working through the legislative process. Facilities also should consider working with their state healthcare associations and state legislators to enact legislation prohibiting the use of a 2567 as evidence of negligence per se.

Watch your wording. When submitting the required plan of correction on the 2567, providers should include a prefatory paragraph indicating that the plan is not an admission of liability or an acknowledgement of any wrongdoing. Rather, it is being submitted in accordance with federal law. Additionally, the wording in the plan should be carefully phrased because a crafty lawyer may attempt to use an inadvertent expression or careless statement against the facility.

Because of the aggressive and often inappropriate use of the 2567 and/or plan of correction by personal injury firms, providers should carefully consider measures such as those noted above. When a cited deficiency is factually accurate, the appropriate response is to determine the root cause of the issue and prevent a recurrence. When an alleged deficiency is not factually accurate or contains unsupportable conclusions, however, providers should attempt to correct those inaccuracies.

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.