Predicting lawsuits against nursing homes in the United States, 1997-2001

Health Services Research, Dec, 2004 by Christopher E. Johnson, Aram Dobalian, Janet Burkhard, Deborah K. Hedgecock, Jeffrey Harman

Anecdotal evidence provided in the literature argues that nursing home chains are being unfairly targeted in resident rights states. Many in the nursing home industry argue that they are providing the same quality of care across the country and it is only in states where litigation activity is encouraged by statute that they are experiencing higher numbers of lawsuits. These results partially support this conclusion, but with an alternative explanation. It may be that states with resident rights laws are associated with higher litigation rates against facilities compared to nonresident rights states. It is an empirical question as to whether or not the rate of litigation given the quality of care provided by these facilities reflects the unfairness of statues in resident rights states or if there are too few lawsuits in the states where such laws are not in effect. In any event, it is not surprising that litigation is potentially more common in resident rights states. State legislatures enacted these laws for that very purpose--to make it easier for residents to successfully sue nursing homes that failed to provide treatment in ways that are consistent with the rights of residents as specified in these statutes. In that sense, these statutes may be successful in achieving the goal of providing a cause of action that is easier to prove than traditional malpractice claims based on standards of negligence.

As found in our examination of Florida's litigation experience, the implication for administrators from these results, if taken at face value, is that meeting the CNA and RN long-stay recommended standards and meeting minimum quality standards as measured by the health survey could potentially be defenses a nursing home can use against higher litigation rates. The implications for the nursing home industry is to consider that higher litigation activity may be the cost of doing business in the United States if (1) the facility is for-profit owned, (2) it is a large nursing home, and (3) it is located in a resident rights state that allows individual causes of action. The implications for research are that we need to better understand in larger samples (1) the relationship between staffing and litigation activity in homes, (2) the relationship between "deep" financial pockets and higher lawsuits against facilities, (3) the relationship of lawsuits to the availability and affordability of liability insurance, and (4) the decision-making processes used by lawyers and families to sue nursing homes. This stream of inquiry has begun to uncover the complexities associated with litigation health services research in the nursing home industry. In this current atmosphere of litigation "crisis," both in the nursing home and physician arenas, untangling these issues will provide information about factors that are better at predicting litigation activity so that administrators and policymakers can make informed decisions about the best way to respond to litigation pressures. Policymakers will have to decide how to balance between the ability of residents to sue nursing homes and the impact of this litigation activity on the industry.