Plaintiffs’ attorneys have long contended that nursing homes are more concerned about the “bottom line” than their resident’s care, and this argument was echoed in the February 2022 statement by the White House on safety and quality of care in nursing homes.  DRI’s recent Senior Living and Long-Term Care Litigation Seminar addressed this issue in an engaging panel discussion with Aaron McQueen (Jackson Kelly PLLC, Akron, OH), Martin Delanhunty III (CommuniCare, Cleveland, OH), Alexis Lumell (Gallagher Bassett, Chicago, IL), and Angelo J. Suozzi (Ventas, Chicago, IL) on Exposing Plaintiff’s Overused “Profits Over People” Argument.

Defense Strategies

The plaintiffs’ bar has redirected its efforts from the allegations relating to a breach of the standard of care to claims of fraud and conspiracy in the name of corporate profits.  To prove these claims, they typically make broad discovery requests beyond the scope of the alleged incident.  Defense counsel must focus the case on the single occurrence, not irrelevant issues posited by the plaintiff, and ensure that extraneous items are stricken from the Complaint.

It is important to start the defense process early, at the point of the incident and before the suit.  Witness statements should be preserved, particularly with the current environment of high staffing turnover.  Relevant discovery documents include the medical record (including the resident’s condition before entering the facility), the care plan, and a list of professionals who cared for the resident.  To establish their “profits over people” claim, plaintiffs will request documents including, but not limited to, records about all residents, all staff training, staffing of all positions at the facility, and administrative emails.  These business operation records do not pertain to the care provided to the individual resident, and defense counsel should object to such overly broad and irrelevant requests.

If the case gets to trial, the plaintiff’s counsel will seek to appeal to the emotions of the jurors, who may want to blame “somebody,” but typically not a lower-level worker.  They will focus arguments on corporate “greed” by asserting insufficient staffing and resources.  Defense counsel must tell the story of the passion for caring for the residents, demonstrating the connections the staff have with the residents through the documentation in the medical records.  This becomes challenging in situations of high employee turnover, but it is important to highlight all points of contact with the patient by all levels of staff.  Demonstrating the overall care provided mitigates the anger response by the jury.

Tools to Focus the Defense

 Identifying all interactions with the patient early in the case preparation is key to risk assessment and strategy development.  The Excelas Care Calendar provides a powerful visualization of all medical, nursing, and ancillary interactions documented across thousands of pages of records.  Each instance of patient contact is categorized and quantified on a simple, interactive calendar, affording a powerful visualization of each point of contact to highlight caregivers’ dedication and assistance to residents.  Users can click on any day to instantly view a complete, detailed breakdown of the care the patient received, including hyperlinks to the pages of the medical record where that care/interaction is documented.

Defense Perspectives

Quality of care for residents in long-term care facilities is paramount.  When that quality is called into question, facilities must be able to demonstrate the type and level of care that was provided through documentation in the resident’s medical records, as well as through policies, procedures, and other business records.  Excelas has the tools and the expertise to assist long-term care facilities in conducting audits, assessing documentation quality and completeness, integrating facility policies and procedures with individual resident medical records, reviewing staffing records, and preparing comprehensive analyses for facility administrators, risk managers, insurers, and counsel.