It is listed on the American Bar Association’s “Best Seller” list despite a $130 price tag. The title suggests a scholarly, balanced discussion of modern nursing home litigation, but “Litigating the Nursing Home Case,” a tutorial published by the American Bar Association and written by University of Cincinnati Law Professor James T. O’Reilly, is far from balanced. In fact, a more accurate title might be “How and Why to Sue Nursing Homes.” Based on the premise and the book’s sales, it is a guide to aggressive lawsuits that should serve as a warning to managers and owners in the nursing home industry.
Negative tone starts early
From the book’s very first sentences, the imagery used is instructional in its negative connotation: “Las Vegas odds makers and nursing home owners have a great deal in common, since ‘the House always wins.’ In each situation, the owners’ instinct to profitable operations leads to stacking the deck in favor of the establishment and against the player.” (“Litigating,” p. 3.) While the author’s jocular prose provides a vivid image, it entirely fails to give readers an accurate framework for litigating or analyzing nursing home litigation. The referenced “instinct” for profit is made to seem like a shady, self-serving impulse rather than the healthy business requirement that it is.
The book contains three sections, all designed to make lawsuits against nursing homes more successful, more frequent and more monetarily rewarding for groups on the plaintiff side. The three are chapters on the business of nursing homes (i.e., potential parties to join to actions), chapters on substantive law, (i.e., potential fact patterns giving rise to various causes of action) and chapters on procedural law (i.e., trial tips and tricks to promote large verdicts). In each section, the author provides a sort of primer-bare outlines that might assist a serious practitioner as a sort of checklist, but insufficient data to move forward with an actual case.
Punitive damages as a tool for better care
With recent steps toward reform in the industry and the cooperative focus on building a better system, the tone taken by the book reminds us that not everyone is focused on working together. Throughout the slender volume, the author positions plaintiffs’ counsel as benevolent “attorneys general”—advocates for all nursing home residents and their families. Like the gambler invoked on the first page, though, the professor presents a “tell.” The book repeatedly gives away its pro-litigation and anti-reform position as it repeatedly returns to the discussions of punitive damages and large verdicts. While it manages to present the plaintiffs’ bar as the natural enforcer to ensure reform and better care through large verdicts, it ignores the obvious inconsistency that true reform and better care will result in less litigation and fewer big verdicts, and thus less money for the plaintiffs’ bar.
In presenting a chapter devoted to damages (chapter 27), the author generously lards the text with references to high-dollar verdicts. For example, the book reminds readers that punitive damages can be awarded in decubitus ulcer cases (“Litigating,” p. 52), a concept repeated with numerous multi-million-dollar-award illustrations (“Litigating,” p. 53). The same treatment is provided for fall-related injuries, (“Litigating,” p. 65) and wandering, elopement, and escape cases (“Litigating,” p. 79). There is an entire subsection on punitive damages in the chapter on assault and abuse (“Litigating,” p. 110). Similar details are emphasized in the chapter on malnutrition, dehydration, and choking (“Litigating,” p. 133).
Less valuable cases, which arguably are as important as large-value cases in “reforming” the broken, profit-driven system the author portrays, are given no attention or are relegated to a passing reference.
Moreover, the book provides extensive advice on manipulating jurors’ sympathies. It encourages its readers to use certain types of viscerally disgusting imagery to increase lawyer profit. It states: “Pictures can ‘say it all;’ the jury will be shocked and disgusted by photos of the maggots eating infected skin down to the bone, and plaintiffs will benefit from the jurors’ revulsion.” (“Litigating,” p. 51.)
By repeatedly emphasizing the financial benefits to plaintiffs’ counsel, author O’Reilly distances himself from the legitimate purpose of educating attorneys new to a specific subject matter. Instead, the author becomes the champion of the tort bar, setting forth checklist instructions in collecting large contingency fees. Unfortunately, the book’s blind emphasis on a single subset of cases leaves its readers ill-prepared for litigating in the real judicial world, where the vast majority of nursing home defendants are never found liable and never pay punitive damages.
While the true focus of the book—how to win lawsuits against the industry—is abundantly clear, for nursing home managers, owners and even employees the tutorial can serve another purpose. “Litigating the Nursing Home Case” becomes a valuable guide to the areas of responsibility that bring the highest risk. In explaining how to sue, and how to make winning lawsuits pay more, the author reminds us of this well-worn, and hopefully soon to be worn-out, formula. He once again clarifies those matters that the industry should continue to monitor for the purpose of providing good care and effective risk management.
High social cost of irresponsible nursing home litigation
In painting this portrait of a profit-driven, damn-the-consequences industry that can only be made to provide quality care by the threat of multimillion dollar verdicts (which coincidentally reward the self-appointed private “attorneys general” who take on this yoke), the author ignores numerous scientific and legal studies demonstrating the high social cost of irresponsible nursing home litigation. Numerous scholars have determined that overly vigorous plaintiffs counselors have resulted in an actual decrease in nursing home quality, hardly the goal of protectors of the meek and the weak.
In 2003, Harvard University researchers David G. Stevenson and David M. Studdert conducted a survey of lawyers involved in nursing home litigation, attempting to determine whether the rise in such cases resulted in an increase in nursing home quality. (See http://content.healthaffairs.org/cgi/content/abstract/22/2/219.) The authors concluded that in states with a high volume of litigation, substantial nursing home resources are diverted into defending and paying for lawsuits. That diversion occurred even in states such as Texas and Florida, where government surveys did not indicate significant pre-existing quality problems.
Duke University researchers reached a similar conclusion, noting that litigation is associated with a decline in inspection-oriented measured quality in nursing homes that are subject to actual legal claims. Those results have been mirrored in numerous other studies.
In 2005, Dr. Heidi White noted: “Rapidly increasing liability insurance rates for nursing homes is another substantial financial issue that threatens the stability of the industry.” (See http://www.annalsoflongtermcare.com/article/3990.) Furthermore, Brown University researchers reached similar conclusions, finding that systemic barriers including an adversarial regulatory environment preclude advances in nursing home quality. (See http://papers.ssrn.com/so13/papers.cfm?abstract_id=1142029.)
Other tools exist to protect plaintiffs
With its over-emphasized focus on high-dollar cases, the book completely ignores recent legislation that focuses on those few nursing home operators who truly are unscrupulous. At no point does O’Reilly mention the Patient Safety and Quality Improvement Act of 2005, a comprehensive legislative scheme that resulted in a complete reporting system for nursing homes to track harm to patients and maintains resident confidentiality, while making nursing homes safer for all residents.
The author does mention the Nursing Home Transparency and Improvement Act of 2007, a bipartisan bill re-introduced in the 111th Congress in early 2009, the stated purpose of which is to “improve the transparency” of information on skilled nursing facilities and nursing facilities and to clarify and improve the targeting of the enforcement of requirements with respect to such facilities (S.647). However, he mainly quotes from the testimony of witness statements made to a Senate subcommittee in October 2007. These are witnesses whose bias against skilled nursing facilities is open and obvious.
As the nursing home industry matures, and as the nation’s population ages, new issues will continue to arise. In a world seemingly upside down from just a few months ago, doctors, lawyers, scholars and residents and their families all must find paths through the thickets of a 21st century healthcare system, 21st century technology, limited resources that become more limited every day, and the ongoing injustice of a system that rewards a few generously, at the cost of much more to many.
“Litigating the Nursing Home Case” could have opened a clearing into those woods, or suggested a forward-looking approach to a problem, or at least held true to its title. Unfortunately for an industry that has consistently taken arduous steps toward reform, it did none of the above. Groups in the crosshairs of the plaintiffs’ bar are left to find their own benefit: Use the information presented as insider knowledge for the lawsuits the plaintiffs’ bar seeks to spawn.
Mark Wortham is a defense attorney who has been practicing for 23 years. For the last four years, he has been with the firm of Hall, Booth, Smith & Slover in Atlanta, where he specializes in long-term care, appellate work and general liability cases.
