Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 12, Issue 6                               ADVERTISEMENT                                                     JUNE 2011

In This Issue
Why Are More and More Nursing Homes Being Sued by Residents?
Lawsuits Always Start With a Complaint But Often Finished Based Upon Documentation

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David
David Barmak, Esq. 
Allison
Allison Whitehead, Esq. 
Brandon
Brandon Goldberg, Esq. 

 

Why Are More and More Nursing Homes Being Sued by Residents?

At the end of a full day seminar given by lawyers who sue nursing homes on behalf of residents and their families, one speaker said that lawsuits are necessary to stop nursing homes from killing old people. What a shocking statement!  Even more shocking when most of the lawyers in attendance agreed with that statement.  Upon further reflection, however, some if not many of the nursing homes sued regularly by those lawyers may very well be worthy of such strong condemnation; however, most nursing homes, from this author's experience, do try to provide top quality of care and try to provide a "home" for their residents. 

 

Society often uses lawyers to fix intractable social problems like civil rights, consumer fraud and nursing home abuses of elderly citizens.  Society has successfully motivated lawyers by enacting laws that shift legal fees to the loser. Personal injury lawyers typically earn their compensation by retaining up to 1/3 of the damages they are able to recover for their clients.  Typically lost wages represent the largest portion of these damages.   Personal injury lawyers have not traditionally been interested in representing nursing home residents because there are few damages to sue for against which the personal injury lawyer can claim a percentage for compensation. It's the rare nursing home resident who has a newspaper route.

 

The New Jersey state legislature decided the quickest and most efficient way to motivate lawyers to protect the elderly and disabled living in nursing homes was to include in the New Jersey Nursing Home Act that if a resident can prove that his/her statutory residents' rights have been violated, the resident is entitled to have the nursing home pay the resident's lawyer's fees as well as receive triple damages.  To date, there are no published court cases awarding lawyer fees under this Act; however, it's just a matter of time. 

 

Here is a typical scenario to illustrate what happens when a nursing home is sued:  A deceased resident's family sued a nursing home for professional liability. Reasonable medical damages were less than $50,000.  The law firm that brought the lawsuit presented to the Court legal fees well into the 6 figure range as well as $1,000,000 in punitive damages, neither of which are covered under professional liability insurance policies.  The legal fees represented three years worth of time spent by multiple lawyers and paralegals. Nearly all professional liability lawsuits brought against nursing homes settle because insurance companies do not want to risk an adverse verdict which will set a precedent.  Unfortunately, residents' lawyers know this. They know that suing a nursing home is time and expense intensive; however, if they can wait it out till mandatory mediation or trial, they have an excellent chance of settling the lawsuit on a profitable basis for their client and themselves.   

 

Nursing homes are being sued by residents more and more often, particularly in New Jersey, because it pays - lawyers - to sue.        

 

 

Lawsuits Always Start With a Complaint But Often Finished Based

Upon Documentation

A resident's daughter walks into a lawyer's office. She throws a copy of her mother's nursing home chart on the desk.  She complains that Mom, a resident in Beavertail Nursing Home, is being abused.  The lawyer tells the daughter he'll get back to her after he reviews the chart.  One year and 11 months later, the lawyer remembers that the 2 year statute of limitations is about to run on any possible personal injury lawsuit against the nursing home.  He reads the chart for the first time.  He notices nurses' notes that are contradictory, that blame CNAs for poor care, that the MARS and TARS are incomplete, that the penmanship is sloppy, that a page of nurses' notes looks like it was rewritten .  He calls a colleague who specializes in suing nursing homes.  He negotiates a referral fee of 1/3 of whatever his colleague collects.  He then goes back to real estate closings, his main bread and butter, and thinks about the payday he'll get in 3 or 4 years from his referral. 

  

Improper or inadequate documentation often motivates a lawyer to sue a nursing home because it makes for an easy case to settle.  That's really all that's necessary to motivate a lawyer to start a lawsuit.  Complete and accurate documentation is the key to minimizing the risks of being sued.

 

Nursing homes usually provide great care for their residents; however, lawsuits often conclude in settlement, not because of the quality of care provided but because the medical chart's documentation is deficient in numerous areas.  Complete and accurate documentation is essential to minimize the risks of being sued.  Please remember:  lawyers sue nursing homes not to win but to settle!

 
Law Offices Of David S. Barmak, LLC

David Barmak established his health care law firm in 1984 to deliver legal services, both in transactions and litigation, to organizations and professional practitioners in the health care field.  We call this approach "Enterprise-Wide Risk Management" because it includes three important facets:

  1. Counsel and advisement on all aspects of legal risk, from setting up the entity to corporate governance and compliance;
  2. Protection of your practice or business through litigation prosecution or defense in the Courts; as well as regulatory compliance and licensure issues before government agencies; and
  3. Operations improvement through the implementation of enterprise-wise onsite audits, programs and training seminars in the areas of, but not limited to, Fraud and Abuse, HIPAA Privacy and Data Security, Employment, A/R Management, Emergency Preparedness, and Workplace Violence.David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University.  He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania. 
He is the immediate past Chair of the Health & Hospital Law Section of the New Jersey State Bar Association.  Before making your choice of attorney, you should give this matter careful thought.  The selection of an attorney is an important decision.  The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising. 
  
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Copyright, 2011.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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