Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 3                   ADVERTISEMENT                            March 2015

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In This Issue
Bullet Proofing Your Nursing Home To Resident Suits
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

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Bullet Proofing Your Nursing Home To Resident Suits
By: Gerald V. Burke, M.D., Esq. 

Every nursing home administrator is acutely aware of the state and federal regulations to which they must comply to avoid sanctions.  Tort litigation on behalf of residents for care issues is another major danger of equal concern.  However, this is usually not prosecuted by the plaintiff's attorneys through the legal avenue of negligence. Instead, they frequently employ violations of the state or federal Resident's Bill of Rights as the vehicle for litigation.


In our current litigious environment, how does one "bullet proof", or at least dramatically lessen, the chance of being sued by a resident or their family?  The answer is to understand this litigation process through the eyes of a plaintiff's attorney and then "close the doors" through which they can enter your facility.


Ordinarily, personal injury cases are litigated through the legal tort of negligence.  Negligence has four elements that must be proven in order to win a case.  The four components are: 1) the defendant established a "duty" to the plaintiff (is responsible for the plaintiff). 2) The defendant must have "breached" that duty to the plaintiff.  3) The plaintiff must have experienced an injury as a result of the defendant's breach of duty to the plaintiff; and 4) the injury must have damages that are quantifiable financially so that an award can be determined.  The legal theory is that you want to restore the plaintiff back to the position they were prior to the injury resulting from the breach of duty.


In order for a plaintiff's attorney to prevail and win a cash award they must prove all four of the elements of negligence.  This generally is an expensive process for the plaintiff's attorney and includes the employment of an expert witness, among other things.  Also, as we age and become less functional in society, the amount we are "worth" diminishes dramatically.  Frequently, even though injury due to clear negligence has occurred, our "value" and the consequent financial return on a suit is not worth the time, effort, expense and risk that a plaintiff's personal injury lawyer is willing to take.  If the tort of negligence were the only means of prosecuting nursing home negligence, then there would be far fewer suits against nursing homes.


However, both the state and federal governments dramatically altered the playing field and significantly raised the stakes of litigation for a nursing home by easing the burden  of proof required of the plaintiff's attorney.  This was done when legislation was enacted encouraging litigation based on violations of the resident's Bill of Rights.  No longer does the plaintiff's attorney have to prove the four elements of negligence.  Now, he only has to prove that the resident was injured and that the resident's rights were violated in order to reap a financial reward, that may include attorney fees in New Jersey however many states and federal law do not provide for attorney fees.  There is a cascading effect of penalties that can ensue from this litigation, the results of which can be disastrous financially for the nursing home and their insurer.  Therefore, these claims generally settle rather than litigate.   Plaintiff's attorneys know this and count on it.  Injuries resulting from a violation of  a resident's rights can be construed in many ways and makes for easy legal pickings for plaintiff's attorneys. 


In next month's issue of Healthcare Matters, we will discuss the specifics of what a plaintiff's attorney looks for in a potential nursing home suit.  We will explore how he/she obtains his leads, evaluates the viability of a case for suit, and what you can do to reduce your risks of being a  "target" for a plaintiff's attorney in a legal action.


If you have questions regarding resident's rights law suits, please contact Gerald V. Burke, MD., Esq., at or by telephone (609) 454-5351.




By: Jo Ann Halberstadter, Esq. 


                Pregnancy discrimination in the workplace is an area that has become very difficult for employers and employment attorneys to navigate with the passing of federal and state Pregnancy Discrimination Acts, the collateral interaction with the Americans with Disabilities Act as amended in 2008 (amended ADA), and various federal and state regulations interpreting such Acts.  Employers and their Human Resource departments have been attempting to wade unscathed through these murky waters for some time now, dealing on a daily basis with unresolved questions such as: a) does pregnancy qualify as a disability thereby requiring reasonable accommodation; b) does providing paid/unpaid leave qualify as a reasonable accommodation for a pregnant employee who, as a result of the pregnancy, cannot perform the "essential functions" of her job; c) is such offer of paid/unpaid leave, as an accommodation,  a violation of the Pregnancy Discrimination Act(s);  d) is an employer required to offer alternative job duties, such as "light duty" to an employee with medical restrictions related to pregnancy which prevent her from performing the "essential functions" of her job; and e) is an employer liable for a pregnancy-related injury should a pregnant employee not request reasonable accommodation for a pregnancy-related condition and ultimately sustains employment related injuries or miscarriage?


To make matters worse, in July 2014, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidelines broadly addressing the requirements of the federal Pregnancy Discrimination Act (PDA) and the application of the amended ADA to individuals who have pregnancy-related disabilities.  The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner, for all employment-related purposes, as other applicants or employees who are similar in their ability or inability to work.  In its July 2014 guidelines, the EEOC interprets the PDA as requiring an employer to offer alternative light duty assignments if the employer offers such light duty assignments to employees with on-the-job injuries, i.e. employees receiving workers' compensation.  The EEOC also prohibits an employer from requiring a pregnant employee to take leave if she is able to do her job or undergo a medical evaluation unless the same is required of other workers who are similar in their ability or inability to work.  According to the EEOC, an employer cannot deny leave as an accommodation for a pregnancy-related disability if the employer has a policy of granting leave as an accommodation to other workers who are similar in their ability or inability to work.  Under the EEOC Enforcement Guidelines, an employer who offers any type of differential treatment or accommodation to its disabled or injured workers must also offer that same accommodation to its pregnant employees who are similar in their ability or inability to work.  However, despite the EEOC advisement, most employers continue to distinguish and treat differently employees who have been injured on the job and receiving worker's compensation.


In July, 2014, the U.S. Supreme Court granted certiorari in the matter of Young v. United Parcel Service, Inc, a case alleging sex discrimination on the basis of pregnancy under the federal Pregnancy Discrimination Act (PDA).  The Supreme Court agreed to review the appellate and lower courts' interpretation of the PDA's language stating that pregnant employees must be treated the same for all employment purposes as other employees who are similar in their ability or inability to work.  The Supreme Court heard arguments in December 2014 and published their decision this past week on March 25, 2015.

In this case, Young was a part-time driver for UPS who had suffered several miscarriages in prior pregnancies.  In 2006, Young became pregnant and UPS required her to obtain a doctor's note clearing her for work.  The doctor's note stated that Young should not lift more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds thereafter.  UPS refused to allow Young to work with this lifting restriction citing to its policy requiring drivers to be able to lift parcels weighing up to 70 pounds and up to 150 pounds with assistance.  As a result, Young was forced to take leave without pay for the remainder of her pregnancy and eventually lost her medical benefits.  Young filed a federal lawsuit claiming that UPS unlawfully discriminated against her on the basis of pregnancy, in violation of the PDA, by refusing to accommodate her pregnancy-related lifting restriction.  Young cited to the fact that UPS provided alternative work assignments or light duty to disabled employees and employees who had been injured on the job. 


The lower court granted summary judgment in favor of UPS, thereby dismissing the case without a trial, and found that under the PDA, Young was not entitled to compare herself to a very small, select group of employees who were not substantially similar other than in their inability to work, i.e. employees who have been injured on the job and collecting worker's compensation or those deemed disabled under the ADA , when evaluating an employer's policy towards other similarly situated employees.  However, as was noted in last week's Supreme Court decision, the lower court ruling occurred prior to the passage of the amended ADA and its' associated EEOC interpretive guidance which expanded the coverage of the ADA to temporary disabilities including employees with temporary lifting restrictions.


On March 25, 2015, the Supreme Court reversed the trial and appellate courts' granting and upholding of Summary Judgment for UPS.  In so doing, the Supreme Court recognized that its decision might not have far reaching historical significance due to the "statutory changes made after the time of Young's pregnancy".  (See at pg. 10).   However, it confirmed the three stage, burden shifting, standard for finding disparate treatment under the PDA as requiring: a) a showing by the employee that as a member of a class protected by the PDA, she sought and was denied accommodation that was provided to other employees similarly situated in their inability to work; b) consideration of an employer's right to present legitimate, non-discriminatory reasons, beyond "expense and convenience", for denying accommodation; and  finally c) the employee be permitted to present evidence indicating that the employer's "legitimate" reasons are a pretext for discrimination by demonstrating that the employer accommodates most non-pregnant employees with similar restrictions.  In the Young case, the Supreme Court found that Young had met her initial burden and thereby remanded the case to the district court to determine the validity and sufficiency of Young's evidence indicating that UPS accommodated most non-pregnant employees with similar lifting restriction.

Unfortunately, the Supreme Court's decision changes very little for employers except to confirm the general belief that employees who are receiving workers compensation benefits fall into a separate class when considering light duty and alternate work arrangements if they cannot perform the essential functions of their job.  However, an employer should be extremely cautious about granting requests for light duty to any other injured or disabled employee for fear of setting a precedent that can be used by pregnant and other temporarily disabled employees.  It would be wise to limit the scope of any reasonable accommodation to that which will help the employee perform his or her current job duties and establish a policy that denies light duty to employees with temporary, non-work related injury restrictions. In the alternative, consider that UPS recently modified their policies to offer light duty to pregnant employees who have lifting restrictions as a result of their pregnancy.


If you have any questions regarding this article, please contact Jo Ann Halberstadter, Esq. at or call (609)-454-5351.



Barmak and Associates, LLC      


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