Liability: hints of "sweet reason" from the Midwest - Legal Landscape - nursing home liability suits reviewed

Nursing Homes, Sept, 2002 by Alan E. Schabes

Then there's the next problem: When a nursing facility receives a Statement of Deficiencies form (CMS 2567), the facility is obligated to provide the state survey agency with a POC. The POC lays out the steps that the facility has either taken or will take to correct the deficiency, identifies the parties responsible for implementing these steps and lays out the planned timetable. From the standpoint of the nursing home malpractice plaintiff, perhaps the most important part of the POC is the oft-ignored (by others) affirmation appearing above the nursing home provider's signature line. In it, the provider states under oath that the statements in the POC are true, accurate and complete. Quite frequently, in fact, nursing home providers will admit to the underlying facts supporting the deficiency and merely outline the corrective steps to be taken. From the standpoint of the plaintiff, all that remains to be done is to calculate the amount of damages sought.

In Am. Sub. H.B. No. 412, the Ohio legislature attempts to deal with this issue, as well. The bill states that the Statement of Deficiencies issued by the state survey agency (in Ohio, the Ohio Department of Health) shall be used solely to determine the home's compliance with the licensure and certification requirements and will not be admissible as evidence in a nursing home malpractice case. In addition, the legislation will prohibit the results of an inspection or investigation conducted by the state survey agency from being used in a criminal investigation or the prosecution of a nursing home provider. This exclusion of the Statement of Deficiencies and POC from evidence will eliminate this often-used plaintiffs' "shortcut" and require them to establish the facts of their case, as must any other malpractice plaintiff.

The third major element in Ohio's tort reform package deals with the statute of limitations for nursing home malpractice claims. In its initial version, Am. Sub. H.B. No. 412 provided that a nursing home malpractice action must be commenced within one year after the alleged cause of action occurred, including, but not limited to, claims resulting from the acts or omissions in providing healthcare or from the hiring, training, supervision or retention of healthcare staff. This anticipates that imposing a relatively brief statute of limitations might serve to further filter out legitimate malpractice claims from frivolous ones.

It is clear that the Ohio legislation--and, no doubt, many other state initiatives--won't serve as any sort of high-powered antibiotic to cure the medicolegal ills plaguing the long-term care industry. However, the legislation that has been introduced thus far has focused on the major causes of concern regarding nursing home malpractice liability and might serve as a guide to future remedies for this profound and complicated problem.

Alan E. Schabes is an attorney with the firm of Benesch, Friedlander, Coplan & Aronoff, LLP, Cleveland, Ohio. For further information, phone (216) 363-4500. To comment on this article, please send e-mail to schabes0902@nursinghomesmagazine.com.