1. Nursing Home/Assisted Living Facility
Abuse and Exploitation
National Business Institute Seminar
Keith Jackson
Riley  Jackson, P.C.
Introduction
Allegations of elder abuse or neglect against institutional, i.e., community-based
rather than home-based, healthcare providers understandably invoke strong emotional
responses from the family members and loved ones of the elder who has been abused or
harmed. In some tragic instances, a resident of a nursing home or assisted living facility
suffers an acute and significant injury such as a broken hip, broken pelvis, fractured back,
complications from a medication error, or even death. In many other instances, clients
and family members are concerned about more generalized neglect without physical
harm. These complaints typically involve cleanliness of the facility, cleanliness of the
resident, quality of the food, the temperature of the facility, lack of attentiveness or
compassion by the staff, etc. We have encountered numerous family members who are
very upset that their senior mother or father is not being cleaned or groomed
appropriately and are sometimes found lying in urine or filth, but the resident has not
suffered serious physical harm.
Remedies available when serious injuries have resulted obviously include
litigation or arbitration, and these types of cases are discussed below. Most practitioners
will encounter more clients complaining of the latter scenarios, however, when litigation
or arbitration is not economically feasible. In those situations, families still have avenues
of potential recourse available to them, although hiring a plaintiff’s attorney often is not
warranted. We have also discussed below how to advise clients whose family members
or loved ones are victims of this more generalized neglect with no serious resulting
physical harm.

2. Elder Care Background and Statistics
Although the overwhelming majority of nursing home and assisted living
residents are elderly, individuals may need long-term assistance for months or years as a
result of physical limitations, cognitive impairments, mental illness, or a disabling
chronic condition. Many nursing homes that commit a majority of their bed space to
long-term nursing care also operate rehabilitation facilities in the same building. These
facilities will generally treat patients for their 21-day rehab stay or for other rehabilitative
purposes. The number of individuals requiring such care will continue to climb as our
population ages. Estimates provided in 2011 by the U.S. Census Bureau were that
8,000,000 people experience difficulty with activities of daily living (“ADLs”) and
13,000,000 million adults experience difficulty with living independently.
The cost of long-term care for this population can be prohibitive. Nursing home
care, or skilled nursing facility (“SNF”) care, costs in excess of $90,000 on average.
Assisted living facility (“ALF”) care costs over $42,000 on average. Medicare provides
limited post-acute care and accounted for only 21% of spending on long-term support
services as of 2011. In contrast, Medicaid accounted for 40% of total expenditures for
this type of care. Medicaid therefore is usually the primary payer for long-term services
and support for families who do not have an abundance of financial resources. Home and
community-based long term care combined represents almost one-half of total Medicaid
expenditures throughout the country. This is a dramatic increase from a level of 20% as
of 1995.
The demand for long-term care that is community based will increase
significantly in the coming years. Most estimates are that at least 70% of “Baby
Boomers” will utilize some form of long-term care during their lives. The population of
individuals aged 85 and over is expected to increase by almost 70% in the next twenty
years. Given the already existing financial strains placed upon operators of long-term
care facilities and the long-term care labor shortages in many parts of the country,
instances of elder abuse and neglect are likely to continue increasing.

3. We have first discussed below the differences in SNFs and ALFs. We have
included in that section a brief discussion of applicable regulations that directly impact
liability claims. The impact of these regulations on lawsuits is contained within the
section that follows, which summarizes common liability claims in this type of litigation,
including how to investigate potential liability claims, the applicability of arbitration
agreements and the traditional procedure when those agreements are included in the
contract documents, a satellite view of effective trial tactics, and the most effective
utilization of expert testimony.
Following the discussion of regulations and liability theories, this paper concludes
with a discussion of how to advise clients whose family members are suffering from
general neglect but have not suffered an acute injury. We have provided information
regarding the ombudsman process and other resources for family members of residents
whose fact scenarios may not justify litigation or arbitration.
SNFs Compared to ALFs
Long-term skilled nursing care is a level of care that requires the daily
involvement of licensed nursing or rehabilitation staff. Care provided at SNFs includes
intravenous injections, application of wound treatments, and physical therapy. Facilities
that offer only custodial care, such as help with ADLs, are not considered SNFs. This
critical distinction arises out of the fact that custodial care alone will not qualify a
resident for Medicare coverage, but if the resident qualifies for coverage based on his or
her need for skilled nursing care or rehabilitation, Medicare will also cover all of the
resident’s care needs in the facility, including help with ADLs. SNFs must have 24-hour
skilled nursing care in the facility. ALFs have no such requirement.
Specifically for purposes of establish liability utilizing the federal regulations
discussed below, “skilled nursing facility” means “an institution (or a distinct part of an
institution) which-
(1) is primarily engaged in providing to residents—
(A) skilled nursing care and related services for residents who require
medical or nursing care, or

4. (B) rehabilitation services for the rehabilitation of injured, disabled, or
sick persons, and is not primarily for the care and treatment of mental diseases;
(2) has in effect a transfer agreement with one or more hospitals having
agreements in effect under section 1866; and
(3) meets the requirements for a skilled nursing facility described in subsections
(b), (c), and (d) of this section.1
42 U.S.C. § 1395i-3.
A 1986 study conducted at the request of the U.S. Congress found that residents
of nursing homes were being abused, neglected, and provided inadequate care. This
study was conducted by the Institute of Medicine and resulted in a proposal for broad and
far-reaching reforms.2 Most of these reforms became law in 1987 with the passage of the
Nursing Home Reform Act, which itself was part of the Omnibus Budget Recollection
Act of 1987 (OBRA). Although the nursing home reform law was specifically intended
to prevent abuse and neglect at these facilities, the Act did not create a private federal
cause of action for nursing home residents against private nursing homes for a violation
of the Act. See Baum v. Northern Dutchess Hosp. & Wingate of Ulster, Inc., 764 F.
Supp. 2d 410 (N.D.N.Y. 2011).
Federal regulations implemented the Nursing Home Reform Act and thereafter
generally became referred to as the OBRA Regulations. The OBRA Regulations became
an essential tool for lawyers in nursing home litigation as violations of federal regulations
can be proof of negligence in most states, including Alabama, despite the fact that the Act
did not create a new cause of action.
Specific regulations commonly at the core of litigation are addressed in the
liability section below, but this is a good spot to discuss the current threat to the OBRA
regulations. The Centers for Medicare and Medicaid Services (CMS) has begun revising
1 These additional requirements are varied and speak to matters such as caring for residents in such a
manner so as to promote maintenance or enhancement of the quality of life of each resident, conducting a
comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity,
protecting and promoting the rights of each resident, etc.
2 “Improving the Quality of Care in Nursing Homes”, Nat’l Institute of Health (The Nat’l Academies Press,
1986).

5. the regulations. Although the regulations have undergone periodic revisions during the
past 2 ½ decades, CMS has embarked upon a self-proclaimed effort to bring the rules
current, to improve quality, and to reduce certain burdens. CMS is authorized to do so
pursuant to executive orders that allow federal agencies to improve their regulatory
programs to make them more effective and/or less burdensome. Efforts intended to result
in budgetary savings or a reduction in paperwork are to be given a priority.
The OBRA regulations are requirements for participation in Medicare and
Medicaid reimbursement. These requirements for participation are similar in their effect
to the Conditions of Participation (“COP”) that apply to hospitals. The COP must be met
in order for hospitals to qualify for Medicare reimbursement, just as OBRA regulations
must be met for an SNF to qualify for Medicare reimbursement. CMS recently revised
the COPs that apply to hospitals to make them current and to improve quality, but patient
advocates have determined that the changes removed federal standards and emphasized a
reliance on state law, to the detriment of patient safety. If the same scenario transpires
with the OBRA regulations, these powerful tools for resident advocacy and safety could
be eliminated, and residents who have been harmed in SNFs will have no recourse except
through traditional methods of proving applicable standards of care in accordance with
state law without the weapon of the current OBRA regulations. In Alabama, such an
outcome would return nursing home litigation to a simple battle of experts and medical
literature, thus depriving a plaintiff or resident of the use of an extremely powerful
weapon in this type of litigation.
The OBRA Regulations, which are conveniently bound in what has traditionally
been referred to as the “Watermelon Book”, constitute “requirements that an institution
must meet in order to qualify to participate as an SNF in the Medicare program, and as a
nursing facility in the Medicaid program.” Equally as important is the fact that the
OBRA Regulations serve as the basis for survey activities by CMS surveyors to
determine whether a facility meets the requirements for participation in Medicare and
Medicaid. In other words, an independent governmental agency with no vested interest
in any litigation regarding nursing home neglect or abuse periodically surveys the facility

6. to determine whether the facility has violated what the plaintiff in such a case will
contend to be applicable standards of care.
Assisted living facilities offer a lower level of care than an SNF and are governed
by state law. Regulations promulgated by the Alabama Department of Public Health
(“ADPH”) define an ALF as a facility that “provides, or offers to provide, residence and
personal care to two or more individuals who are in need of assistance with activities of
daily living.” See Alabama State Board of Health, Alabama Department of Public
Health, Chapter 420-5-4-.01(2)(b). In other words, what distinguishes an ALF from
independent living is that an ALF is equipped to provide assistance with self-care
activities such as bathing, grooming, brushing teeth, dressing, eating, and taking
medications as prescribed. Many informal surveys have found that an inability to self-
monitor medication intake as prescribed is the leading cause of the elderly transitioning
to ALF care.
The ADPH has exercised its statutory authority to promulgate regulations that
apply to ALFs. These regulations are available on the ADPH website and may also be
utilized to establish standards of care applicable to these facilities. These regulations are
voluminous but do not come close to being as comprehensive as the current OBRA
Regulations.
Alabama also allows operation of specialty care assisted living facilities
(“SCALFs”). A SCALF requires a license in Alabama that is distinct from the license
required to operate an ALF. This type of facility offers a higher level of care than an
ALF but a lower level of care than an SNF. A SCALF is essentially an assisted living
home for residents with dementia whose level of care exceeds what is authorized by an
ALF license but whose needs do not yet require the services of a nursing home, or SNF.
The ADPH has also promulgated regulations that apply specifically to SCALFs.
These regulations define “Specialty Care Assisted Living Facility” as follows:
[A] facility that meets the definition of Assisted Living Facility but which
is specially licensed and staffed to permit it to care for residents with a
degree of cognitive impairment that would ordinarily make them ineligible
for admission or continued stay in an assisted living facility. Residents

7. admitted to specialty care assisted living facilities must meet all eligibility
and continued stay requirements specified elsewhere in these rules.
See Alabama State Board of Health, Alabama Department of Public Health,
Chapter 420-5-20-.01(2)(r).
Assisted living facilities are the fastest-growing type of senior housing in the
United States.3 One of the key philosophical tenets of ALFs is the promotion of aging in
place and maximizing the function and quality of life for the residents.4 It is the access to
specialized care for our elderly in an environment that mirrors a residential home as
closely as practical that drives families to place their elderly loved ones in ALFs and
SCALFs.
Common Liability Claims
In this section, we will explore how to investigate potential liability claims and
the most common claims that arise in SNF or ALF abuse and negligence litigation. We
will also discuss the applicability of arbitration agreements and the traditional procedure
for arbitration that is followed when those agreements are included in the contract
documents.
A. Investigating and pursing common liability claims
There is moderate but certainly not complete overlap between common liability
claims for SNFs and ALFs. Liability claims against SNFs are far more common both
because of (1) the overall clinical condition of SNF residents, and (2) the type and level
of care afforded to those residents. Because by definition residents of an ALF do not
need skilled nursing care for matters such as wound care, catheter care, IV medication
administration, etc., liability claims against ALFs are less common. With very few if any
exceptions, however, all such claims are governed by the Alabama Medical Liability Act
(AMLA) and are therefore malpractice claims at their core, regardless of whether they are
brought against an SNF or an ALF.
3 Mollica, R & Jenkins, R. (2001). State assisted living practices and options: A guide for state policy
makers. Portland, ME. National Academy for State Health Policy.
4 American Nurses’ Association, “Scope and Standards of Assisted Living Nursing Practice for Registered
Nurses.” As with all ANA standards,this document “includes the scope,standards ofcare, and standards
of performance” with which nurses must comply.

8. Most SNF liability claims, and certainly the most common claims, will sound in a
violation of one or more OBRA regulations, as well as one or more deviations from an
acceptable level of nursing care. The OBRA regulations are commonly referred to as F-
tags, with the corresponding number referring to a specific regulation. The regulations
are grouped by subject matter. We have discussed below only the most common liability
claims and do not intend to exclude by omission other areas of potential liability arising
out of care provided or that should have been provided at an SNF.
Before we address the regulations, however, it bears noting that most malpractice
cases involving nursing care, as most SNF and some ALF cases are, one or more failures
to follow the “nursing process” will be at issue. The nursing process is a 5 step scientific
method utilized by nurses to ensure the quality of patient care. The five separate steps
are as follows:
1. Assessment;
2. Nursing diagnosis;
3. Planning;
4. Implementation; and
5. Evaluation.
During the assessment phase, the nurse gathers information about a patient’s
psychological, physiological, sociological, and spiritual status. This data is usually
gathered through patient interviews and can often be obtained through physical
examinations, references to a patient’s health history, obtaining a patient’s family history,
and general observations. For patients who have memory issues because of co-
morbidities such as dementia or who are physically unable to communicate, referencing
prior medical histories and communicating with family members and loved ones becomes
even more important for the nurse.
Once the assessment phase is complete, a properly trained nurse will reach an
educated nursing judgment about actual or potential health problems with the patient.
Multiple diagnoses will often be made for a single patient. Although many incorrectly
believe that only physicians can make diagnoses, the truth is that there are a number of
globally recognized nursing diagnoses. An appropriate nursing diagnosis would include
a description of the problem and also whether the patient is at risk of developing further

9. problems. For example, a nursing diagnosis could read “ineffective breathing pattern”
with risks that include “potential for respiratory compromise”. The diagnosis phase of
the nursing process is extremely important as the nursing diagnoses are used for care
planning.
The planning phase of the nursing process when done properly will result in a
comprehensive and individualized care plan for the patient. A care plan cannot be
developed until the nurse has arrived at his or her nursing diagnoses. If multiple
diagnoses need to be addressed, as they almost always do in the elder care setting, each
assessment and resulting diagnosis must be prioritized with attention devoted to the most
severe symptoms and high risk factors. Each problem is then assigned a clear,
measurable goal for the expected beneficial outcome. Nurses will often refer to the
evidence-based Nursing Outcome Classification, which is a set of standardized terms and
measurements for tracking patient wellness. An appropriate care plan must not only be
individualized for the patient and address all nursing diagnoses and anticipated risk
factors, it must also state in clear terms all measurable goals and anticipated outcomes for
each such diagnosis. The care plan is then regularly referenced and updated as necessary
according to the patient’s condition.
The implementation phase of the nursing process involves putting the care plan
into action. The care plan is often referred to in the nursing field as the engine that drives
patient care, but its effectiveness obviously depends upon proper implementation of the
interventions listed in the care plan. The implementation phase occurs when the nurse
follows through on the decided plan of action with a focus on achievable outcomes for
the specific patient. Implementation also presumes monitoring of the patient for signs of
change or improvement, directly caring for the patient or performing necessary nursing
tasks, educating and instructing the patient and/or family members about further health
management, and referring the patient for physician care or contacting a physician to
become involved as appropriate.
Evaluation is the fifth but not necessarily the final phase of the nursing process.
The nurse completes an evaluation to determine whether the goals for the patient’s

10. wellness have been met, which is an ongoing process as nursing interventions are
implemented and monitored. The possible patient outcomes are generally described as
(1) patient improved, (2) patient’s condition stabilized, or (3) patient’s condition
deteriorated, (4) patient died, or (5) patient was discharged or transferred. If the patient
remains under the facility’s care but the patient’s condition has not improved, or if the
patient’s wellness goals have not been met, the nursing process begins again from the
first step. This is why evaluation is the fifth but not necessarily the final phase of the
nursing process. The nursing process is a dynamic and continuing process that never
ends until the patient is well or has been discharged or transferred from care.
Although most nursing malpractice cases will involve a failure at one or more of
the five steps of the nursing process, the common liability claims will also involve a
specific area or areas of patient care. In the SNF context, the most common specific
areas of patient care where failures occur with resulting harm involve the following
patient care areas, which we will address in order:
1. Care planning;
2. Pressure sores;
3. Bladder or bowel incontinence;
4. Wound care;
5. Falls;
6. Nutrition;
7. Hydration; and
8. Medication administration.
Care planning requirements are set forth in the OBRA regulations beginning with
F-tag 272. Care planning failures in the SNF setting usually involve a failure to develop
and/or implement an appropriately individualized care plan, a failure to include all
necessary care plans that would result from a proper nursing assessment, and a failure to
monitor or properly evaluate the effectiveness of the interventions listed in a care plan.
For example, we have seen many cases in which the nursing home resident presents a fall
risk, but no care plan was prepared for this risk because of a deficient assessment. An
appropriate nursing assessment would have resulted in findings of, for example, unsteady
gait, multiple co-morbidities, and the use of psychotropic medications with a
corresponding fall risk. A proper nursing diagnosis for a fall risk resident may read “risk

11. for trauma: falls” with underlying factors of weakness, dizziness, and syncope resulting
from decreased cardiac output, the hypotensive effect of medications, and getting up
without assistance as a result of forgetfulness and confusion.
Such a nursing diagnosis and associated risk factors for falls should lead to an
individualized care plan to prevent falls. The desired outcome would be that the resident
will not experience any falls while at the facility. Measures implemented to prevent falls
could include, but certainly not be limited to, keeping the bed in a low position with side
rails up when the resident is in bed, keeping needed items within easy reach, keeping the
floor free of clutter, accompanying the resident during ambulation, providing ambulatory
aids, ensuring proper hydration for fluid and electrolyte balance, etc. As the interventions
in the care plan are implemented, a proper nursing evaluation of the care plan would
determine whether the interventions were successful. If not, the 5 step nursing process
repeats, and additional interventions should be considered for the care plan.
To be clear, the above is an example only with respect to one care plan for one
nursing diagnosis with just a few underlying risk factors. A typical nursing home chart
will contain voluminous care plans addressing a number of nursing diagnoses.5 It would
be easy for an attorney to overlook a deficient care plan, deficient implementation of a
care plan, or deficient evaluation of a care plan based simply on the volume of care plans
in a chart. Unless each care plan in a nursing home chart is considered in the context of
the patient’s overall clinical condition, it would be impossible to determine whether
defective care planning is a potential liability claim. In our experience, there have been
actionable deficiencies in the care plans in well over half of the cases we have handled.
Pressure sores are a hot button topic in elder care litigation and have been so for
numerous years. Although the medical literature regarding the preventability and
treatment of pressure sores in the elderly has trended in favor of the defense in recent
years, many of those studies have been funded by industry organizations whose goals are
to protect the healthcare community.
5 In the SNF context, care plans generally result from Care Area Assessments, formerly Resident
Assessment Protocol (“RAP”), triggers, which are generated based upon data input into the MinimumData
Set (“MDS”). A discussion of the MDS and related assessment tools is beyond the scope of this
presentation.

12. F-tag 314 has proven to be a very powerful weapon for plaintiffs in SNF cases.
This regulation reads as follows:
Based on the comprehensive assessment of a resident, the facility
must ensure that (1) a resident who enters the facility without
pressure sores does not develop pressure sores unless the
individual’s clinical condition demonstrates that they were
unavoidable; and (2) a resident having pressure sores receives
necessary treatment and services to promote healing, prevent
infection, and prevent new sores from developing.
This regulation caused the phrase “clinically unavoidable” to be at the heart of
every pressure sore case. In the guidance to surveyors section of the regulations, specific
reference is made to the fact that the intent of this regulation is “that the resident does not
develop pressure ulcers unless clinically avoidable.” This phrase is given further clarity
with additional definitions in the guidance to surveyors because the word “unavoidable”
is defined as meaning “the resident developed a pressure ulcer even though the facility
had evaluated the resident’s clinical condition and pressure ulcer risk factor; defined and
implemented interventions that are consistent with resident needs, goals, and recognized
standards of practice; monitored and evaluated the impact of the interventions; and
revised the approaches as appropriate.”6 Thus, even if a resident’s clinical condition
demonstrates that it was likely the resident would develop a pressure sore, a nursing
home potentially violated this regulation if its personnel did not undertake all of the steps
of the nursing process. If that can be proven and if the plaintiff’s attorney has effectively
utilized the OBRA regulations throughout discovery, the facility cannot avail itself of the
defense that the pressure sore was clinically avoidable.
Another effective resource for attorneys representing the elderly in a pressure
sores case is Clinical Practice Guideline Number 3, issued by the U.S. Department of
Health and Human Services. Commonly referred to as one of the “purple books” because
of the color of the covers, Guideline 3 contains useful information regarding scoring
scales used for measuring a resident’s risk of developing pressure ulcers and staging.
6 If this language sounds familiar, it is because the definition is simply a paraphrase of the 5 step nursing
process.

13. The guideline also notes that all individuals at risk should have a systematic skin
inspection at least once per day. This is commonly known as a body audit, and particular
attention should be given to bony prominences such as heals, elbows, shoulder blades,
and the coccyx. This guideline also indicates that a plan of nutritional support and/or
supplementation should be implemented for all nutritionally compromised individuals.
Additionally, any individual in bed who is assessed to be at risk for developing pressure
sores should be repositioned at least every two hours.
Wound care cases can arise in a variety of contexts, such as the management of
surgical wounds, but cases involving wound care are often intertwined with pressure sore
cases, i.e., the resident should not have developed the pressure sore to begin with, but the
SNF did not treat the wound properly after it had developed. This is because the typical
location of pressure sores on bony prominences means there is little vascularization in the
area of the wound, and the healing process therefore takes longer even in an otherwise
healthy person.
Improper wound care can lead to avoidable infections of wounds, particularly
pressure sores. To promote healing and guard against an infectious process, a number of
interventions may be utilized. These include keeping the wound free of both urine and
feces, which obviously ties into bladder and bowel incontinence cases, repositioning,
managing pressure points and tissue tolerance, pressure redistribution, proper monitoring,
staging pressure sores properly, monitoring the wound’s characteristics and the
possibility of any tunneling, and proper bandaging. Additionally, appropriate nutrition
and hydration is essential to allow the body to heal the sore as efficiently as possible.
Bladder and bowel incontinence cases are sometimes related to pressure sore
cases. Specifically, a facility’s failure to manage bladder or bowel incontinence properly
can lead to tissue breakdown and, for residents who have already developed pressure
sores in vulnerable areas, can cause extremely dangerous infections in those sores. An
infected pressure sore can lead to sepsis and ultimately death.
F-tag 315 provides that SNFs must ensure that a resident who enters the facility
without an indwelling catheter is not catheterized unless the resident’s clinical condition

14. demonstrates that catheterization was necessary, and a resident who is incontinent of
bladder receives appropriate treatment and services to prevent urinary tract infections.
The guidance for surveyors for this F-tag specifically notes that urinary incontinence is
not normal. Although aging affects the urinary tract and increases the potential for
urinary incontinence, urinary incontinence is not a normal part of aging. In the elder
population, urinary incontinence generally involves psychological, pharmacological,
and/or pathological factors or co-morbidities. These include later stages of dementia,
diabetes, prostatectomies, urinary tract infections, etc. Many SNFs unfortunately assume
that urinary incontinence is simply a fact of life for some members of the elderly
population and do not bring episodic incontinence to a physician’s attention. In addition
to causing or complicating pressure sores, the failure to intervene in a timely and
appropriate matter when presented with urinary incontinence is the most common claim
of bladder incontinence we have handled.
For patients who do not have dementia and who are otherwise continent of
bladder, episodic incontinence must trigger an assessment for a possible urinary tract
infection and to determine any other potential underlying cause. The attentive nurse will
request an order for a urinalysis. In the ideal situation, the urine will be drawn shortly
after the order is entered, and the sample will be sent to the lab for testing the same day.
Under these circumstances, a urinary tract infection can be timely diagnosed and properly
and effectively treated. Only in rare instances do properly treated UTIs result in serious
complications. When undetected or left untreated, however, a UTI can cause permanent
kidney damage and can cause sepsis.
Sepsis caused by a UTI, commonly referred to urosepsis, kills and disables
millions of people and requires rapid treatment for survival. People, including the
elderly, should not die from a routine UTI. If the UTI is untreated and the resident
becomes septic, however, death can result. Fifty percent (50%) of the cases of urosepsis
among older adults are caused by a routine UTI.
Falls with injuries present one of the more common elder care facility claims in
both SNFs and ALFs. Fall risks for an individual resident must be identified during the

15. initial nursing assessment when a resident presents to the facility and periodically
thereafter, depending on the resident’s clinical course. Fall risks are varied and are
resident specific. They may include advanced age, confusion, orthostatic hypotension,
syncope, agitation, the use of narcotic or psychotropic medications, gait problems, poor
foot care, and many others.
F-tag 323 provides that the facility must ensure that the resident environment
remains as free of accident hazards as possible and that each resident receives adequate
supervision and assistance devices to prevent accidents. The surveyor guidance for this
F-tag details a number of resident risks and environmental hazards that must be
considered by the facility. This list should be referenced along with one of any number
of nursing textbooks that detail known fall risks in the elderly or otherwise vulnerable
population.
It is also important to understand what constitutes a fall because a prior fall is
indisputably predictive of future falls and is a fall risk according to all nursing literature.
A fall refers to unintentionally coming to rest on the ground, floor, or other lower level,
but not as a result of an overwhelming external force such as one resident being pushed
by another resident. Any episode during which a resident lost his or her balance and
would have fallen if not for staff intervention is also considered a fall. A fall without
injury is still a fall, and any time a resident is found on the floor, a fall is considered to
have occurred unless there is evidence suggesting otherwise. Therefore, any time a
resident is found on the floor, even if in a sitting position, the facility must conduct a
comprehensive fall risk assessment and care plan accordingly unless there is evidence to
indicate that the resident placed himself or herself on the floor intentionally. This issue
has come up in numerous nursing home cases we have handled and has proven to be a
very important fact in establishing that the facility did not conduct a comprehensive fall
risk assessment and did not care plan accordingly for a resident who had a prior fall.
Falls can obviously cause significant injuries. Some of the more common injuries
involve hip or pelvis fractures. We have also seen fractured wrists, fractured arms,
fractured necks, and broken backs as a result of falls. The most serious injuries resulting

16. from a fall involve trauma to the head. Head trauma can cause a subdural hematoma
and/or an intraparenchymal hemorrhage. Falls with these injuries are usually fatal.
According to the Centers for Disease Control, nursing homes with at least 100
beds typically report 100-200 falls each year. The CDC also reports that many more falls
go unreported, however. Studies have determined that falls occur at least twice as often
in nursing homes than among elderly people living in the community. Most literature
that has considered the issue agrees that approximately 1,800 older adults living in
nursing homes die each year from fall related injuries. Those who survive falls often
sustain hip fractures and head injuries that result in permanent disability and a reduced
quality of life.7 These numbers were set forth in a 1988 study, and the numbers have
only increased since that time.
A 1994 study determined that only approximately of 5% of adults 65 and older
live in nursing homes, but nursing home residents account for approximately 20% of
deaths from falls in this age group.8 Clearly, falls occur far too often in elder care
facilities with results that can be catastrophic for the resident and the family.
Understanding how to evaluate a fall case, however, begins with a proper understanding
of the 5 step nursing process and how comprehensive fall risk assessments should be
conducted. While a fall with serious injuries standing alone may not justify legal action,
it is not possible to know whether negligence likely caused the fall without a full
understanding of the resident’s clinical history, a complete review of the facility’s chart
for the resident, and usually a review of medical records from other healthcare providers.
Another common negligence claim with potential overlap into other claims is one
based upon poor nutrition. F-tag 325 provides as follows:
Based on a resident’s comprehensive assessment, the facility must ensure
that a resident (1) maintains acceptable parameters of nutritional status,
such as body weight and protein levels, unless the resident’s clinical
condition demonstrates that this is not possible; and (2) receives a
therapeutic diet when there is a nutritional problem.
7 Rubenstein LZ, Robbins AS, Schulman BL, et al. “Falls and Instability in the Elderly.” Journal of the
American Geriatrics Society 1988; 36:266-78
8 Rubenstein LZ, Josephson KR, Robbins AS. “Falls in the Nursing Home.” Annals of Internal Medicine
1994; 121:442-51.

17. The phrase “acceptable parameters of nutritional status” is defined in the surveyor
guidance as referring to “factors that reflect an individual’s nutritional status is adequate,
relative to his/her overall condition and prognosis.” Proper nutrition is important not
only for overall health, but also for balance, wound healing, and the body’s ability to
fight infections. A nutritionally compromised individual is at much greater risk of
developing skin breakdown and resulting pressure sores than a well-nourished individual,
for example.
Nutritional assessments are critical and should be performed by a registered
dietician and not by a dietary manager or nurse. A nutritional assessment “is a systematic
process of obtaining, verifying and interpreting data in order to make decisions about the
nature and cause of nutrition-related problems," according to the American Dietetic
Association. The assessment will also provide information that helps to define
meaningful interventions to address any nutrition-related problems. Once an appropriate
nutritional assessment has been performed by a registered dietician, the interdisciplinary
team should clarify nutritional issues, needs, and goals in the context of the resident’s
overall condition according to the surveyor guidance for F-tag 325.
Objective data that should be obtained during the comprehensive nutritional
assessment and that can prove very important to any potential negligence claim includes
weight loss, protein level, and albumin level. Total protein and albumin levels together
provide a very meaningful picture of a resident’s nutritional status. Protein is critical for
wound healing and skin repair.
A total protein test measures two types of protein in the body, albumin and
globulin. These are the two classes of protein contained within blood. Albumin proteins
keep fluid from leaking out of blood vessels. Globulin proteins are important for the
immune system. A total protein test is a routine part of a comprehensive metabolic panel,
commonly referred to as a CMP. The normal range for total protein is 6 – 8.3 grams per
deciliter. These are commonly accepted ranges, but the ranges may vary slightly among
different laboratories. These ranges may also vary based upon age, gender, and test
method.

18. Albumin is also measured as part of a CMP. The normal range for albumin is 3.4
– 5.4 grams per deciliter, although these normal ranges may also vary slightly.
Measuring albumin alone provides a snapshot measurement of a patient’s nutritional
status in an approximate period of 21 days prior to the blood draw. Albumin may also be
artificially inflated if a patient is dehydrated, which is discussed further below.
Total protein and albumin measurements are very important for determining
whether a resident of an elder care facility is malnourished or trending in that direction.
Poor protein/calorie intake must be addressed quickly. Routine implementations utilized
with facility care can range from specific dietary instructions for the resident’s meal
trays, monitoring and recording intake percentages of meals served, and the utilization of
nutritional supplements such as Jevity or Ensure. In the most problematic cases, a
feeding tube of some type may also be ordered for as long as clinically appropriate.
In negligence claims involving malnutrition at a facility, the cases usually involve
either an inadequate nutritional assessment for the resident or, more often, inadequate or
insufficient implementation of the necessary interventions. These cases can also arise
because of a deficient care plan to address malnutrition, or even if the care plan is
appropriately individualized, because the facility’s staff does not implement the
interventions and/or monitor the resident’s progress appropriately.
Defendants in these cases sometimes defend with the contention that, despite
appropriate assessment, planning, and interventions, the resident was simply suffering
from malabsorption syndrome. This syndrome refers to any number of disorders in
which the intestine’s ability to absorb nutrients into the bloodstream is negatively
affected. Proteins are absorbed in the small intestine, and malabsorption syndrome is
often an easy excuse for defendants to offer in an attempt to explain away a resident’s
poor nutritional status. Malabsorption syndrome can be caused by antibiotic use,
underlying disease such as celiac disease or chronic pancreatitis, and intestinal damage
from infection or inflammation.
Somewhat related to, but clinically distinct from, malnutrition claims are claims
that a resident was allowed to become dehydrated. F-tag 327 provides that “the facility

19. must provide each resident with sufficient fluid intake to maintain proper hydration and
health.” The phrase “sufficient fluid” is defined in the surveyor guidance as meaning
“the amount of fluid needed to prevent dehydration and maintain health. The amount
needed is specific for each resident, and fluctuates as the resident’s condition fluctuates.”
For example, fluid intake needs to be increased if the resident has a fever or diarrhea.
Dehydration in an elderly resident can have profound complications. Dehydration
in this population can also advance very quickly if not properly treated in a timely
manner. Risk factors for a resident becoming dehydrated include fluid loss or increased
fluid needs from conditions such as diarrhea or fever, uncontrolled diabetes, renal
dialysis, dementia, and many others.
Lab values used to determine whether a resident has become dehydrated include
BUN, creatinine, and sodium. As a general rule, a dehydrated patient will have an
increase in BUN that is markedly out of proportion with any increase in creatinine and
will also have a measurable increase in sodium (hypernatremia). The range of normal for
BUN, or blood urea nitrogen, is generally 7 – 20 milligrams per deciliter. Normal ranges
may vary. Normal levels of creatinine are approximately 0.6 – 1.2 mg per deciliter.
These normal ranges may also vary. A dehydrated patient can have a BUN at 60, 70, or
even higher but should still have a creatinine that is either in the normal range or only
slightly elevated. As a general rule, residents who have an elevated BUN and an elevated
creatinine, with approximately the same percentage increase relative to normal, are
generally suffering from acute renal failure or chronic renal insufficiency.
To understand whether a client’s loved one became dehydrated as a result of
facility neglect, the attorney must understand these lab values and be able to determine
whether the labs indicate dehydration, renal failure, or renal insufficiency. A resident
who has chronic renal insufficiency would have a history of elevated levels of both BUN
and creatinine. Chronic renal insufficiency is generally not related to neglect. A more
intensive evaluation must be undertaken if the resident’s renal labs have historically been
normal, but the resident acutely presents with a significantly elevated BUN and

20. creatinine. This is most likely acute renal failure, and the underlying cause of acute renal
failure must be evaluated to determine whether it is a result of facility neglect.
If timely intervention of a dehydrated resident is not undertaken, hypovolemia and
ultimately third spacing can result. Third spacing occurs when too much fluid moves
from the intravascular space into the interstitial or “third” space. This is the
nonfunctional area between cells. Third spacing results in edema, reduced cardiac
output, and hypotension. Third spacing has a number of potential causes, and renal
dysfunction is one of those causes. A decreased sodium level or hyponatremia may be a
contributing factor. Hyponatremia can result from GI losses during diarrhea or fluid
losses. Determining whether third spacing is due to dehydration, albumin losses, or other
factors unrelated to neglect typically requires a nurse or physician review of all pertinent
medical records to guide the attorney in determining whether a claim should be pursued.
The most common nursing errors in all settings are medication errors. The
starting point for evaluating a potential medication error case is an understanding of the
“five rights” of medication administration. These are the (1) right patient, (2) right drug,
(3) right dose, (4) right route, and (5) right time. These “five rights” obviously offer no
procedural guidance in how to achieve proper medication administration, but they are a
good starting point. They do not, however, account for administration for the right
reason, in the right formulation, etc. The five rights therefore must be viewed as the
starting point and not the end point of evaluating a potential medication error case.
Medication errors can occur at any point on the timeline between a physician
order for a medication and the administration of the medication. In an outpatient setting,
medication errors can range from inappropriate prescribing to patient noncompliance and
can implicate all steps in the interim, including the pharmacy. In a facility setting, patient
noncompliance should not be a factor. Therefore, the analysis of a medication error case
should generally begin with the prescription ordered and the information on which the
order was based and end with the actual administration of the drug and any necessary
post-administration monitoring by the nursing staff.

21. Medication errors are defined as any preventable inappropriate use of
medications. They can occur at ordering, transcribing the order, dispensing the
medication, administering the medication, or monitoring the medication. All medication
errors in a facility setting are preventable, a truth that any informed nurse or nursing
expert will have to admit if questioned properly. Nonetheless, medication errors have
been estimated to occur at a rate of 5 per 100 medication administrations. Fortunately,
most estimates seem to agree that only approximately 7 in every 100 medication errors
have the potential to cause patient injury and only 1 in every 100 medication errors
actually results in an injury.
To ensure that any medication error case is properly handled on behalf of the
elderly resident, the attorney must ferret out where the facility’s system failed. This
concept is discussed more below in the section on effective trial tactics and use of expert
testimony. In most instances, a medication error does not occur simply because a nurse
fails to do his or her job. While such a failure is usually a factor, properly tracking the
source of the medication error often results in a determination that the entire system
failed rather than simply one individual. In fact, a 1995 study of medication errors
determined that nurses intercept 86% of all potential medication errors. 9
We have seen cases in which the physician was provided inaccurate or incomplete
information regarding the resident’s clinical condition. The physician then used this
flawed data to enter an inappropriate medication order. The inappropriate nature of the
medication order should have been caught by the administering nurse (more on that
below), but a second failure in the system caused the inappropriate medication to be
administered.
Even when a physician enters an appropriate medication order, the transcription
of that order can be inaccurate. This is particularly true if the order is a telephone order
or verbal order. Most facilities have moved to a verbal order read back policy because
numerous medication errors were occurring during verbal order transcription. For verbal
9 Leape LL, et al. “Systems Analysis of Adverse Drug Events.” ADE Prevention Study Group. Journal of
the American Medical Association 1995; 274:35-43.

22. or telephone orders, most facilities will require the nurse transcribing the order to read the
order back to the physician to confirm accuracy of the order as transcribed.
Even when the medication order is appropriate and is transcribed accurately, an
error can occur when the medication is dispensed. At the facility’s pharmacy, a simple
misreading of handwriting or other “simple” mistake can cause the pharmacy to dispense
the medication inappropriately.
Even when the order is appropriate, the transcription is accurate, and the
dispensing of the medication was done correctly, the administration of the medication can
be flawed. This can be the result of, as just one of many examples, administering the
drug through the wrong route, such as by IM instead of by IV or by IV push rather than
as a bolus. Additionally, post-administration monitoring of the medication’s effect can
be inadequate, thus leading to harm to the patient when additional medication should be
administered or in some instances when a reversal agent should be utilized.
Throughout the entirety of the process, from the issuance of a medication order
through administration and monitoring, facilities should have in place a system of checks
to prevent medication errors. These can include requiring a physician to confirm by
phone with the nurse who has relayed clinical information that the clinical information is
accurate, requiring a read back of any verbal order, requiring a pharmacist’s critical
review of all medication orders and a pharmacist’s check of any dispensed medication
against the written order, a subsequent nursing check of any dispensed medication against
the original order, and a process whereby a nurse can utilize his or her nursing judgment
and evaluate the medication order. Other safeguards should include patient identification
confirmation, double checking medication administration instructions, and ensuring
through a comparison of the medication to known acceptable dosages that the medication
is the proper dosage for the resident.
Even today, some facilities take the position that nurses simply administer
medications, and it is the physician’s sole responsibility to ensure medication orders are
proper. We have handled many cases in which the physician order for a medication is
transcribed properly and dispensed properly, but the medication order is fundamentally

23. flawed in some respect. This can be because the medication order is inappropriate for the
resident’s known clinical condition, the dosage is unacceptable for the resident, etc.
The nurse and pharmacist both have a responsibility that is written throughout
nursing and pharmacological literature to review medication orders for safety. For
nurses, the facility’s patient safety protocols and culture should ensure that the nurse is
comfortable contacting the ordering physician to obtain clarification of the medication
order and that the nurse is not only allowed but is encouraged to do so if he or she has
any question about the order.
If the nurse has determined in his or her nursing judgment that the medication
order is not safe for the patient, but the physician insists that the order is valid and should
be followed, the nurse then has the obligation to act as the resident’s advocate and pursue
the issue through the entirety of his or her chain of command. Facilities should have in
place a chain of command policy and procedure to be followed in these instances, and
those that are Joint Commission certified will certainly have such a policy. If a nurse
elects to administer a medication when he or she believes that the medication may not be
safe for the resident, not only has the nurse failed to fulfill his or her obligation, the entire
system has failed the resident because the nurse clearly does not understand, or does not
feel sufficiently comfortable with following, the chain of command policy.
These eight areas of common liability claims represent the majority, but certainly
not all, of the negligence claims that may be at issue in a case involving an SNF. The
OBRA regulations go well beyond what is covered in this paper, however, and include
matters such as residents’ rights, restraints, abuse, quality of life, staffing, sanitary
conditions, dietary issues, pharmacy services, rehabilitation services, dental services, and
many others. This list of eight areas of common liability claims likely encompasses over
75% of the cases we have evaluated and handled in the nursing home context, but no
potential case should be declined simply because it does not fall neatly into one of the
more common liability claims.
The most notable distinction between ALF and SNF claims is that the universe of
potential ALF claims is much smaller. Because ALFs are licensed only to provide

24. assistance with self-care activities such as ADLs and not 24-hour skilled nursing care, it
would be very unusual for such facilities to be involved in IV administration, feeding
tube maintenance, wound care, and other skilled nursing activities.
There is a possibility that limited wound care can occur at an ALF. For these
facilities, licensed nurses are on call and make periodic visits to the facility, but they are
not on site 24 hours per day as is the case with an SNF. There is no wound care nurse on
staff at the typical ALF, so that is not a facility that would engage in pressure sore staging
or care and treatment of a pressure sore. Nonetheless, the elderly do occasionally suffer
skin tears from bumping against doorways and the like, so dressing changes can occur at
these facilities. This nursing activity does not typically lend itself to a negligence claim
unless a wound becomes infected because the resident was not kept clean or the wound
becomes infected with no appropriate response by the facility.
The far more common ALF claims involve falls and abuse. At an ALF, as with
an SNF, care plans must be individualized and prepared for each resident. Because ALF
residents are independent with most aspects of living other than ADLs, it can be difficult
to bring a negligence claim related to a. This is not true at a SCALF, however, as
residents at those facilities typically have dementia or related disorders and require a
higher level of care and observation.
Fall cases at these facilities are evaluated in a manner similar to those at an SNF,
but an acknowledgement must be made during the evaluation that the facility cannot
control all of the activities of an ambulatory resident who will be walking throughout the
facility for various daily functions. The easier negligence claims related to falls in ALFs
are those involving falls caused by debris in common areas or a failure by the facility to
keep the floor clean. These types of falls often occur in the dining room or the activities
room, areas in which the facility knows residents will be walking on a regular basis.
Elder abuse allegations are probably the most disturbing and emotional claims to
pursue. We have seen abuse in the ALF, SCALF, and SNF setting take the form of
general neglect, emotional abuse, yelling, cursing, physical abuse, and sexual abuse. The
physical abuse we have seen has ranged from being overly aggressive with a resident

25. during transfers or bathing and grooming to blatantly striking the resident in frustration or
anger. Obviously, no level of abuse can be tolerated in these facilities, and any concern
of abuse should be investigated closely.
A complicating factor in abuse cases is that the insurance policies for these
facilities typically do not cover intentional acts or any award of punitive damages.
Therefore, the investigation into a potential claim must look deeply into the hiring,
training, and supervision of the alleged abuser. Attention must also be given to whether
the administrator of the facility or other management level personnel knew or should
have known that the abuse was occurring. If that is the case, a carefully worded
complaint and appropriate handling of a case can trigger coverage for the negligence of
individuals other than the actual abuser.
B. Arbitration Agreements – Enforceability and Procedure
Arbitration agreements in SNF and ALF admission agreements are generally
enforceable in Alabama. See, e.g., Owens v. Coosa Valley Health Care, Inc., 890 So. 2d
983 (Ala. 2004). This is true despite arguments that nursing home contracts are often
contracts of adhesion. Family members who make the very difficult decision to admit
their loved one to a nursing home generally have a strong desire to place their loved one
in a nursing home as close to as many family members as possible. Based upon
numerous factors such as geography, financial limitations, and bed availability, families
are often faced with extremely limited options. In most instances, all available nursing
homes will insist on an arbitration agreement, as well most assisted living facilities. A
persuasive legal argument can be made that an arbitration agreement in a contract of
adhesion is unconscionable and void as a matter of public policy, but that argument has
been rebuffed by the Alabama Supreme Court to date.
We have had success in defeating arbitration agreements in certain circumstances,
however. For example, we handled a case a few years ago in which an elderly man was
transferred from an acute care hospital to a nursing home. This gentleman had executed a
power of attorney naming a family member as his attorney-in-fact. That family member
was living out of state at the time of the transfer. The resident was admitted to a nursing

26. home, which required the cousin of the attorney-in-fact in fact to sign the admission
paperwork, including the arbitration agreement. This cousin told the intake personnel
that she was not the resident’s attorney-in-fact and that the resident had executed a power
of attorney naming her cousin as his attorney-in-fact. The facility then failed to obtain a
signature from the resident’s attorney in fact on the admission paperwork at a later date.
This facility even went so far as to have the resident, who was suffering from end
stage dementia and was assessed on admission as being alert and oriented x 0, to place an
“X” on the admission paperwork and an “X” next to the arbitration agreement. There
was no legitimate dispute regarding the fact that the resident did not understand that he
was being admitted to a nursing home, much less the content of what he was signing.
Nonetheless, the facility took the position that the arbitration agreement was enforceable
both because it had been signed by a family member and because the resident had placed
his “X” on the agreement. The facility’s argument failed and the arbitration agreement
was not enforceable.
A 2013 Alabama Supreme Court decision is instructive on this issue. A nursing
home challenged a ruling by the Montgomery County Circuit Court denying the nursing
home’s Motion to Compel Arbitration. SSC Montgomery Cedarcrest Operating Co.,
LLC v. Bolding, 130 So. 3d 1194 (Ala. 2013). The resident’s daughter signed the
arbitration agreement when her father was admitted to the nursing home, but the daughter
did not hold her father’s power of attorney. The daughter completed all necessary
admission paperwork and signed an arbitration agreement providing that the “parties”
waived their right to a judge or jury trial. The agreement further defined “parties” as
including the resident and any and all family members who would have the right to bring
a claim in state court on behalf of the resident or the resident’s estate. The definition
went on to include any parent, spouse, child, executor, administrator, heir, or survivor
entitled to bring a wrongful death claim. Id. at 1195.
The Court’s inquiry focused on the principle that “an arbitration agreement that
binds the nursing home resident also binds the resident’s representative.” Id. at 1196. In
this case, the nursing home resident was mentally incompetent when he was admitted to

27. the nursing home. Therefore, the resident could not authorize anyone at that time to act
on his behalf.
There is a critical distinction in Alabama law between arbitration agreements
signed on behalf of nursing home residents who are incompetent and those signed on
behalf of nursing home residents who are competent. Id. at 1198. Because the resident’s
daughter did not have pre-existing legal authority to sign on the resident’s behalf, and
because the resident was not mentally competent to give his daughter such authority at
the time of admission to the nursing home, the resident was not bound by the arbitration
agreement. Therefore, the resident’s personal representative who brought the lawsuit was
not bound by the arbitration agreement. The Court did emphasize, however, that its
conclusion was not based upon the fact that the resident did not personally execute the
arbitration agreement. The Court specifically noted that the holder of the power of
attorney granted by the resident may have been able to bind the resident to an arbitration
agreement, but a mere family member could not. Id. at 1199.
Based upon the foregoing and other applicable Alabama case law that is beyond
the scope of this presentation, arbitration agreements in these cases cannot merely be
accepted as enforceable. The background of how the agreement was presented to the
resident or family member, the resident’s clinical condition upon admission, the identity
of the person who signed the agreement, and any pre-existing authority that the signatory
may have had to do so must also be explored. Although arbitration agreements have
significantly limited the number of SNF and ALF cases that are filed in Alabama,
legitimate claims may still be pursued in trial courts under the right circumstances.
When arbitration agreements are enforceable, the arbitrator selection clause of the
agreement will usually be enforceable. We have seen many elder care facilities move
away from the American Arbitration Association as the forum of choice in their contracts
in favor the Judicial Arbitration and Mediation Services (“JAMS”). The website for this
organization is at www.jamsadr.com. JAMS has its own rules, including discovery
protocols, appeal procedures, and mechanics of the arbitration itself. JAMS is generally
less expensive that AAA.

28. Some providers are still including a reference to AAA in their agreements. If the
agreement is enforceable, the case must be arbitrated before the AAA unless the parties
agree otherwise. We have also had occasions on which we have been able to reach an
agreement with the defense attorney to select a single arbitrator by agreement from
Alabama to keep costs of the arbitration under control. These selections have typically
been of former judges with excellent reputations.
Regardless of the forum, the mechanics of arbitration must be explained to the
client at the very beginning of the case. Many clients simply want to have their “day in
court”, and they can become frustrated with the arbitration process if they do not
understand very early that it is strikingly different than a traditional court action. We
have found, however, that explaining to a client that an arbitration is generally more
efficient with a faster final result than a traditional lawsuit will go far in easing the
frustration and disappointment of learning that the arbitration agreement exists and is
enforceable.
Effective Trial Tactics and Expert Testimony
We conclude this paper with a brief mention of what we have found to be
effective trial tactics in these cases and how best to utilize expert testimony. Multi-day
seminars are taught throughout the country on effective trial tactics in SNF and ALF
litigation. There is of course no possible way this modest presentation can summarize
effective trial tactics in the time allotted. We have attempted, however, to provide a very
broad overview of how we believe these cases are best pursued.
As mentioned earlier in this presentation, plaintiffs in this type of litigation must
strive to find and prove the system failure that led to the injury or death at issue. Nurses
are viewed very favorably by most jurors, and jurors have historically been tempted to
give nurses a pass for a “simple” mistake. They are able to do so because they will often
hear a jury instruction, and will certainly hear argument, about nursing judgment. This
allows a juror to think that a plaintiff is trying to hold a nurse accountable for choosing
one of several acceptable options, which was only later known to be the wrong option
with the benefit of hindsight. Arbitrators are also not immune from this temptation.

29. The resident’s attorney can overcome this problem by establishing that it was the
entire system as designed by the corporate ownership, management, and/or Board of
Governors of the facility that failed, rather than a simple mistake taking place on a single
occasion. This is best done by establishing deficient policies and procedures or a
fundamental flaw in the system that can affect numerous residents.
Unlike the typical hospital or physician malpractice case, this theme can often be
pursued in SNF and ALF cases by exploring staffing and budgeting of the facility. Most,
but certainly not all, of these facilities are owned by a corporation or limited liability
company that owns numerous facilities. These companies will make budgeting decisions
that are often not in the best interests of the residents and that are instead focused on the
bottom line. The financial reality is the reimbursement rates for this type of care are very
low relative to the care provided, and these corporate owners must watch and manage
every dollar to be profitable. The sad reality is that, intentionally or otherwise, these
owners often place profits over people when they make their budgetary decisions.
We have found that former administrators, assuming the timeline of the case
permits their testimony, are excellent resources for proving that the ownership and
management did not provide sufficient financial resources for the operation of the
facility. Under our rules, former employees may usually be contacted by the resident’s
attorney. We have found that many of them are very willing to talk and provide
statements. If the jurors or arbitrators believe that the resident’s harm was even an
indirect result of a budgetary or staffing shortfall that was a result of corporate
management of the bottom line, the case moves well beyond a “simple” mistake and
lands directly in the realm of institutional failures.
Another means by which we have had good luck moving the focus of the case
from an individual nurse to the overall corporate structure is through fraudulent charting.
By closely examining the medication administration record (“MAR”), treatment sheets,
and other portions of the resident’s chart, and then comparing those documents to payroll
documents or time cards, we have established in numerous cases that the chart indicates
that nurses were charting at a time when they were not in the facility. We have also

30. established on even more occasions that the documentation indicates nurses were
providing care to residents when the residents were not in the facility.
The most common means by which these charting errors occur is via the charting
party. When a former employee of the facility, or often even a current employee during a
deposition, is confronted with the fact that he or she has charted on numerous occasions
when either he or she was not in the facility or the resident was not in the facility, those
former and current employees usually come clean regarding charting parties. These
occur when the administrator or Director of Nursing of the facility requires the facility’s
personnel literally to sit around a table and fill in blanks on residents’ charts. As
disturbing as such a process sounds, these charting parties were common practice not
many years ago and still occur on occasion today. Because these charting parties are
usually arranged or required by management level employees, proving this fraudulent
documentation and why it happened will also move the case well beyond the idea that a
“simple” mistake caused the harm or death at issue.
These cases can certainly be won by a plaintiff if the focus of the case is limited
to the neglect of one or two employees. In those instances, however, the verdicts and
awards will likely not be at the level they should be and often will not be commensurate
with the level of harm suffered by the resident. To put the case in the best possible
posture and presentation for your client, significant time must be spent in determining
whether the case is a true system failure and why the failure occurred.
Expert witnesses are a tremendous asset in proving these issues. The AMLA
requires us to prove these cases by expert testimony from “similarly situated experts”.
Although there are certain thresholds that must be met through the expert’s testimony,
limiting the expert’s testimony to those matters is a critical mistake. After the attorney
representing a resident has ensured that all legal requirements of the expert’s have been
met, the more effective presentation of establishing the safety rules that were violated,
how they were violated, and why that matters to the jury or arbitrators becomes
paramount. Again, if the jurors or arbitrators do not believe that the facility’s negligence
could happen again, they will be less likely to return a verdict commensurate with the

31. level of harm involved. This is how experts can most effectively be used at trial or
during arbitration.
Options When Litigation is Not Warranted
Notwithstanding the length of this paper thus far, the majority of family members
whom we meet regarding issues related to SNF and ALF care present facts that do not
justify litigation or arbitration. Litigating or arbitrating these cases can be very
expensive. The average nursing home case we have handled in the past typically results
in out-of-pocket expenses that exceed $50,000. This number can go higher if the case
must be brought before a three arbitrator panel. Much of this cost is incurred at the very
beginning of the case as we utilize nursing consultants to help us evaluate a possible case,
so discretion must be used in deciding which cases to investigate fully. If there is no
serious harm or death, there is no case. Any other approach would be economic suicide
for the law firm.
That leaves us with the question of what to do when we meet potential clients
who are concerned because their loved ones are not being kept clean, they suspect but
cannot confirm abuse with no harm, or their loved one’s clinical condition seems to be
deteriorating without an obvious cause. In these situations, we have found that family
members are usually looking for a way to amplify their voice so they can be heard and
can know they are doing everything possible to protect their family.
One of the options available to such clients is the Alabama Department of Senior
Services’ Long Term-Care Ombudsman Program, which was authorized by the Older
Americans’ Act of 1965. The purpose of the Ombudsman is identify, investigate, and
resolve complaints made by and on behalf of residents of long-term care facilities or their
family members. The statewide Ombudsman program is administered by the Alabama
Department of Senior Services. The department has thirteen Area Agencies on Aging.
The long-term care ombudsmen are advocates for residents of nursing homes, ALFs, and
SCALFs. They make sporadic visits to these facilities so that they can be accessible to
residents and can monitor conditions. They also work to resolve problems of individual
residents and to protect their rights.

32. A complaint may be filed with an ombudsman in writing, by phone, or in person.
A client need only contact the community ombudsman at his or her local Area Agency on
Aging office. If a client would like to contact an ombudsman, they may call 1-800-AGE-
LINE (243-5463) or they can visit www.alabamaageline.gov. If the client calls that
number, he or she will be transferred to the office of the appropriate Area Agency on
Aging.
Although not high on the priority list for most clients, it is also possible to file a
complaint with the Better Business Bureau for the community in which the facility is
located. These facilities are usually members of the Better Business Bureau. If so, the
local Better Business Bureau will have a detailed consumer complaint process that the
client can pursue.
The ADPH also offers options. Clients may call its nursing home complaint
hotline at 1-800-356-9596 or its assisted living complaint hotline at 1-866-873-0366.
The DHR elder abuse hotline is 1-800-458-7214.
If the concern involves nursing care, a client may also file a consumer complaint
with the Alabama Board of Nursing. The Board does not make this process easy, but it is
manageable. When the complaint is made, the name of the nurse and license number if
possible is very important. The license number can be obtained by a simple website
search. If the individual reporting the complaint only has the nurse’s name, it will be
necessary to provide the name of the employer and whether the nurse is a Registered
Nurse or LPN. The Board expressly invites complaints involving medication errors that
result in injury or death, false charting, patient abandonment, violation of patient
boundaries, patient abuse, and other similar matters. The Board also publishes a
consumer’s report of possible violations that is available on its website at
www.abn.alabama.gov. A copy of this form is attached at the end of this presentation.

33. Family members with concerns or who want more information can also visit a
number of websites that may prove helpful. These include the following:
National Consumer Voice for Quality Long-Term Care-
www.theconsumervoice.org
Medicare – www.medicare.gov
Administration on Aging – www.aoa.gov
Alabama Department of Public Health – www.adph.org
Centers for Medicare and Medicaid Services – www.cms.gov
Alabama Medicaid Agency – http://medicaid.alabama.gov
Assisted Living Association of Alabama – www.alaaweb.org
Alabama Department of Human Resources – www.dhr.alabama.gov