In the following commentary, Jim Wilkes discusses the distinct nature of for-profit nursing homes as defendants and offers advice on bringing suit against them.

Nursing homes are not like other businesses; they are guaranteed to have virtually no competition, they are assured clients and they are assured payment -- even if services are not provided. Additionally, the industry is unlike most others in that it is plagued by widespread fraud, mismanagement and corruption. This statement, by the way, is not mere speculation but is backed up by several U.S. General Accounting Office reports as well as the U.S. Department of Justice. A statement issued by the DOJ in February 2000 can best sum up that departments findings: "A number of highflying nursing home chains appear to have incorporated defrauding Medicare as part of their business strategy."

When litigating against a for-profit nursing home, you must first and foremost keep these findings in mind and use that to the advantage of your client. Before embarking on a case against a home, especially one owned by a publicly traded chain, you should be armed with knowledge of the recent history as told by the following reports:

• "Medicare: Tighter Rules Needed to Curtail Overcharges for Therapy in Nursing Homes," U.S. General Accounting Office, March 1995;
• "Nursing Home Bankruptcies: What Caused Them?" U.S. Senate Special Committee on Aging, September 2000;
• "Appropriateness of Minimum Staffing Ratios in Nursing Homes," Health Care Financing Administration, August 2000; and
• "Abuse of Residents Is a Major Problem in U.S. Nursing Homes," U.S. Congress Committee on Government Reform, July 2001.

The above reports will give you the flavor of what is wrong with the nursing home industry in America and will serve as an excellent template upon which to build an effective case theme.

Using Government Surveys

As noted above, the federal government released a report in August 2000 that showed more than half (54%) of the homes in America were dangerously short of staff to the point that residents' lives were in jeopardy. The report specifically mentioned for-profit homes as the worst offenders. If permissible, you must secure and review the home-specific reports and surveys that will most likely show that regulators had either warned or sanctioned the home for this type of behavior. These reports are:

• Annual or near-annual inspections/surveys that are required by federal statute: Learn how to secure and read those surveys to find what type of problems persisted in the facility in question. Some states require more frequent visits for homes that have repeated or serious problems and some compile lists of the worst offenders; and
• Complaint or adverse-incident inspections: Often when a resident dies or is injured and/or a complaint is filed, the state must perform an on-site inspection. These reports can also be telling if they offer similar circumstances surrounding the injury or death of your client. Occasionally the survey will involve your client.

The federal Government will also from time to time do a random follow-up survey, especially if there have been complaints of inadequate state oversight.

Documenting and Demonstrating Staffing Cuts

As chronicled in the 1995 General Accounting Office report mentioned above, many of the major nursing home chains have put in place a variety of corporate schemes designed to maximize revenues while minimizing expenses. As staffing is the largest variable expense of running a nursing home, the most effective demonstration of "profits over people" comes in the way of chronic short staffing. There are generally three reliable areas you should explore to effectively show this:

• Accounting documents: By compiling accounting reports and utilizing a CPA who is familiar with the industry, you will be able to clearly show that the largest variable expense for a home is front-line staff. Often operators will cut staff to make budget targets and maximize profits. Management is often rewarded for meeting these budgetary goals -- use that to the advantage of your client;
• Former employees: Former staff (especially certified nursing assistants) will often give direct accounts of widespread short staffing and will offer testimony that the home was chronically short of staff and that management did little or nothing to fix that problem; and
• Corporate memoranda and other documents: Often we discover memos that encourage management to cut staff and supplies to meet revenue and profit expectations.

Demonstrating Fraudulent Charting and Documentation

Too often homes will fraudulently alter the documentation that is supposed to track and monitor care. Look for and incorporate the following:

• False charting: By examining the resident charts, namely the ADL charts ("ADL" stands for "activities for daily living"), you will often find they have been altered to show care that was never given. By comparing these charts to payroll records and time sheets, you will often find that staff members who were not on duty (e.g., on vacation) had initialed the charts. We have found numerous examples of charts filled out in the same handwriting with different initials, many times after the resident had left the facility or on days that didnt exist (like Feb. 30). Also, be sure to compare payroll and time sheets to the charts to ensure that those who charted on a shift actually worked that shift, and be sure to ask the employees in question if they worked those shifts; and
• Altered medical records: Carefully check nurses notes and care plans for inconsistencies that may show that the document was altered. Oftentimes, in the wake of a tragedy, staff will try to cover their tracks in anticipation of a follow-up state inspection. We have seen care plans that direct care to begin before residents were even admitted. This can be an effective tool in showing intent on behalf of the management of the home.

Understanding the Medicine

Generally, nursing home cases are not primarily about the "medicine." Medical malpractice cases, for example, are usually about a failure that occurred during a moment in time usually as a result of a botched procedure or a misdiagnosis. Most nursing home cases instead involve ongoing benign neglect and failure to deliver custodial care. That behavior leads to the deterioration of an already vulnerable person and arises out of a conscious indifference to the pain and suffering of that person. This indifference, of course, will lead to adverse medical consequences that, while important to your case, are not the central focus of your theme. Weight loss, malnutrition, dehydration and the resulting medical conditions like bedsores, contractures and lost limbs are most often tied to simple concepts like:

• failure to feed;
• failure to give water;
• failure to turn; and
• failure to bathe.

These are not difficult concepts to understand and often do not require experts to explain: "The resident was supposed to be turned every two hours to prevent bedsores. She was not. Nor was she fed or given enough water to drink. She suffered from extensive bedsores as a result and died a needlessly painful death because the company chose to under-staff."

Investing Time and Resources

While the above concepts are not hard to understand, they can be exceedingly difficult to prove. In order to properly build a seamless case, a good plaintiff lawyer must be willing to invest serious time and resources to gather of all of the data surrounding the stay in question. For example, false charting is rarely discovered by a simple or cursory examination of the ADL charts. Usually, someone must comb through literally dozens of time sheets and payroll records to ensure that workers who charted care actually worked those shifts.

Additionally, former employees, especially CNAs, must be located and interviewed to determine who was or was not false charting and who had authorized such conduct. Due to the high turnover and low economic status of many of these employees, they are extremely difficult to find, requiring a diligent and often time-consuming search. Remember, you are not recreating a moment in time but an ongoing course of conduct that may have lasted several months or even years, and usually under the stewardship of several corporate entities.

Emphasizing the Sanctity of Human Life

Perhaps one of the most essential ingredients of your case will be establishing that a human life has value, regardless of its stature. This conversation should begin as early as your first statements during voir dire. Jurors who believe that someone who has a high economic "value" is more deserving of an award should be discovered and stricken.

You must firmly establish in the jurys mind that an elderly person who may be suffering from severe dementia deserves the same dignity and respect as all of us. In fact, someone who has lived a long life may be, in many respects, more deserving than someone in his prime. As a society, if we are not willing to protect the most vulnerable among us, then whom should we protect?

When you have combed through the seemingly endless charts and notes, take about 20 minutes and read "The Velveteen Rabbit" by Margery Williams.

I have included an excerpt for your consideration:

Weeks passed, and the little rabbit grew very old and shabby, but the Boy loved him just as much. He loved him so hard that he loved all his whiskers off, and the pink lining to his ears turned gray, and his brown spots faded. He even began to lose his shape, and he scarcely looked like a rabbit any more, except to the Boy. To him he was always beautiful, and that was all the little Rabbit cared about. He didnt mind how he looked to other people, because nursery magic made him Real, and when you are Real shabbiness doesnt matter.

Jim Wilkes is the co-founder of Wilkes & McHugh P.A., a law firm that has been nationally recognized for its work on behalf of nursing home residents. The Tampa, Fla.-based firm represents clients in Alabama, Arkansas, California, Florida, Georgia, Mississippi, Tennessee and Texas. For more information, contact Wilkes & McHugh at 800-255-5070.

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