Leveraging Best Practices in Long-Term Care Litigation: Medical Record Analysis Services


The average case backlog for state and local courts increased over 30% during the pandemic.  There are estimates that damages could increase 20-30% based on these delays.  To “catch up” on the docket, case preparation may be rushed and hectic.  As noted in a recent presentation by leading long-term care attorneys, this court backlog plus shrinking budgets, increased regulatory and compliance requirements, and the anticipated onslaught of COVID-related litigation makes it incumbent on in-house legal departments to find innovative ways to reduce costs and burdens.


According to CNA, the number and average cost of reported claims had been increasing pre-pandemic, with falls, pressure injuries and staffing issues leading the list of allegations.  Add to that over 145,000 COVID-related deaths of nursing home residents through January of 2022, with an unknown number of upcoming related lawsuits.  With over 15,000 skilled nursing facilities and close to 29,000 assisted living communities in the U.S., efficient management of medical information must be emphasized in containing costs in long-term care claims and litigation.

Significant Issues:


Falls and Pressure Ulcers

In the 2020 Oliver Wyman and Marsh Professional and General Liability Benchmark for Long-Term Care Providers, the most frequently found issues in claims descriptions included death, fall, injury, infection, decubitus, and fracture.  In Excelas’ experience, over a third of cases reviewed for our clients allege pressure ulcers and/or falls.  The most recent CNA Aging Services Claim Report (2018) revealed falls and pressure ulcers accounted for 40.5% and 22.6% of all claims respectively.  In assisted living, falls accounted for nearly 50% of claims, and those that resulted in death had an average claim payment of over $200,000.  Pressure ulcer claims that resulted in death had an average payment of over $246,000.


COVID-Related Allegations

Adding to the mix will be COVID-related cases, where infection control issues are often the focus.  For example, inspections by CMS of Ohio nursing homes show facilities are paying large fines, up to $459,000, due to poor infection control protocols.  In addition to infection control issues, COVID-related plaintiff allegations include, but are not limited to, wrongful death, negligence, failure of staff to use PPE, inadequate testing, and failure to provide training to staff.  Along with fines from regulatory agencies, the COVID-19 Complaint Tracker shows 541 health/medical category complaints as of January 2022.


Staffing Shortages

Staff turnover in long-term care facilities has been exacerbated by the pandemic.  The CNA study showed pre-pandemic (2018) average turnover of CNAs at 41.9%, RNs at 33.9%, and LPNs at 28.8%.  Between May 2020 and November 2021, the Bureau of Labor Statistics reported nursing homes lost 234,000 staff members (14.8%) and assisted living facilities have lost 39,000 staff (8.4%).  Over 75% of providers say the situation has become worse in recent months.  A study released in September 2021 concluded that staff turnover was associated with citations for infection control.  The relationship between staffing and quality of care is a focus of CMS and starting in January 2022, they began posting staff turnover and weekend staffing data on their Care Compare website.  These staffing measures are a component of the CMS Nursing Home Five Star Quality Rating System, which is used by the public to select the best facility for their family member.

Best Practices in Containing Litigation Costs


How can counsel best use their time in handling the current backlog, the ongoing cases that would be expected discounting the pandemic, and the onslaught of COVID-related filings?  Working with a partner who has developed cost-effective protocols in medical record retrieval and analysis allows counsel to focus their time on the high-level legal aspects of each matter.  Excelas’ deliverables take the burden off counsel and support decision-making in several key areas:


  • Record Retrieval
    • Efficiency is key in retrieving records. Utilizing Excelas’ experience with multiple electronic health information systems, records are quickly retrieved and reviewed for completeness.


  • Record Organization
    • Medical record organization is the foundation for effective case analysis. Records are sorted by provider and episodes of care, indexed by document type, Bates numbered, and searchable by OCR.  Records are assessed for completeness, duplicates are purged, additional providers of care are identified, and “wrong patient” documents are removed or redacted.  Documents are available online to each member of the legal team through the Excelas HIPAA compliant, secure web portal.


  • Customized Medical Analyses
    • Excelas’ team of medical professionals review millions of pages of medical records each year and prepare customized reports to support counsel’s decision-making. Reports can range in complexity depending on the stage of the case to facilitate early resolution.  Examples of reports that focus on the issues of falls, pressure ulcers, COVID, and staffing can include:


  • The Provider of Care report facilitates efficient preparation for interviews and depositions.


  • The Care Calendar/Touch Chart is a user-friendly tool to visualize all contact between the patient/resident and provider (physician, nurse, nursing assistant, etc.) on an interactive calendar. This data may be critical when issues relating to staffing situations are alleged.


  • The Strengths and Weakness Assessment provides an executive level, narrative summary of significant medical events which support or refute the allegations. A more detailed Early Risk Assessment is an appraisal of the clinical events with an objective review of the severity of findings and potential liability.  This report includes hyperlinks to the source documents online.  An early assessment of the claim value and early resolution of the matter saves time and money – achieving the objective of directing money to where it’s needed for the healthcare organization, patient care, and staffing.


  • Case Summaries and Medical Chronologies are customizable based on the critical issues in each situation. These reports contain hyperlinks to the page in the medical record/document that contains the source information.


  • The Comprehensive Integrated Timeline Tool (CITT) is a powerful tool in defending COVID-related The CITT allows for efficient layering of data from regulatory guidelines and standards, facility policies and procedures, and the patient/resident medical records.
    • Excelas has an extensive database of federal and state guidelines and regulations as published throughout the pandemic. The clear advantage to our clients is this guidance is captured once and can be used to support the defense strategy in multiple scenarios.

Excelas has experience and expertise in managing medical information for claims and litigation to assist counsel in reducing overall litigation costs.  Contact us today to discuss your medical information management requirements.

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