Why The Lack Of A Citation Against A Nursing Home Is No Bar To A Negligence Lawsuit

By Brian R. Wilson, Esq.

Nursing homes are regulated by state and federal agencies. As part of their license, nursing homes are required to undergo an annual license certification survey. In addition, they are subject to unannounced annual inspections/surveys.

More importantly, they can be investigated after an individual complaint is filed against them. This sounds all well and good, but what is the likelihood that a preventable mistake in a nursing home will ever see the light of day in the form of a citation against the nursing home? And what effect does a citation or lack of one have on any negligence lawsuit filed against a nursing home?


DO NURSING HOMES HAVE A DUTY TO SELF-REPORT CERTAIN INCIDENTS?

Under Ohio law, nursing homes have an obligation to report incidents of abuse, neglect, and theft of residents' property to regulatory authorities. Abuse and theft appear to be obvious, but what is meant by "neglect?" Federal regulations define it as a "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness."

In a recent nursing home case I litigated, we claimed a nursing home did not timely secure physician ordered respiratory equipment, which we claimed resulted in harm to the resident. According to them, there was no legal obligation to self-report the incident as an instance of "neglect." Assuming this to be true, what does that say about the relative weakness of the obligation to self-report adverse incidents resulting in harm to residents?

Answer: it's as weak as a cup of tea brewed with an old, used tea bag. Bottom line: if they don't report it, you have to make a formal complaint about the care your loved one received to The Ohio Department Of Health.... or hope the surveyors just happen to find it on their own in the annual survey process
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SURVEYORS AND UNCOVERING SUBSTANDARD CARE/DEFICIENCIES: A NEEDLE IN A HAYSTACK?

What is the likelihood that a random survey will catch a nursing home error or substandard care that results in harm to a resident? To start with, there are 945 nursing homes in Ohio. Assuming a conservative number of 100 residents per home, that's almost 100,000 residents per year.

State surveyors simply don't have the time and resources to go over the medical charts of every resident to scrutinize whether their care was adequate. As a result, the surveyors will examine a random, representative sample of residents' charts. According to testimony in a recent nursing home case, it was estimated that surveyors randomly sampled approximately 20% of current residents' charts, which included past residents from that same year.

Bottom line: it's hit or miss, and perhaps largely miss, that a survey will ever discover an instance of substandard care, and that assumes the surveyors have access to all charts.
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FINDING THE "NEEDLE" DOESN'T MEAN THE NURSING HOME WILL BE CITED OR FINED 

Suppose you do file a complaint against a nursing home. If the appropriate agencies investigate and do not cite or fine the nursing home, does it prohibit you from pursuing a negligence lawsuit against the nursing home? Not at all. Whether or not the nursing home was cited/fined HAS ABSOLUTELY NO BEARING on your ability to sue the nursing home. Under Ohio law, the results of any survey process are inadmissible in any lawsuit. If the nursing home was not cited, it cannot stand up in court and tout that fact. Conversely, if it was cited, the patient's family cannot introduce that fact into evidence.

Why? I've seen countless cases where the nursing home was not cited, yet it knew it handled the resident's care in a substandard manner, and chose to settle the case, or a jury decided that the nursing home was negligent. And in fairness to nursing homes, juries have concluded that a nursing home was not negligent even in cases where the nursing home was cited by a state or federal agency.

All of this proves one thing: the survey and citation process has its limitations, and any jury that decides a nursing home negligence case does so independently of any survey process.  And that's a good thing.

So D.I.Y. Report the nursing home if you suspect your loved one received inadequate care, come what may of the process. Don't be the needle.....