Medical Malpractice and Long Term Care: Defense

Medical Malpractice and Long-Term Care Plaintiffs

We’re kicking off a two-part series looking at medical malpractice cases in long-term care, from the perspectives of both the defense and the plaintiff.

Part 1: The Defense of Long-Term Care Facilities

When a defense team defends a long-term care facility against medical malpractice, one of the first questions to ask is: “Did this facility and its medical professionals adhere to an established standard of care?” New requirements in the Final Rule put forth by the Center for Medicare and Medicaid Services (CMS) complicate this question more than ever.

Last fall, long-term care (LTC) facilities faced the first major overhaul of federal participation requirements since 1991. The Final Rule produced new specifications on features of a facility’s building and staffing ratios. Long-term care centers must now develop compliance and ethics programs as well as Quality Assurance and Performance Improvement (QAPI) initiatives. For a nursing home or assisted living center, this now means assessing the full spectrum of patient care from staff members’ skill sets and training to the right environment, equipment, health information technology, and other resources.

The Final Rule also stated Medicare and Medicaid certified long-term care facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arose between parties. An industry group challenged CMS’s legal authority and won a preliminary injunction in federal court, and the Trump administration ultimately dropped the matter and chose not to appeal to the U.S. Supreme Court, essentially ending the ban on pre-dispute arbitration agreement use in long-term care.

As standards change, liability remains the same.

The next phase of Final Rule regulations takes effect this November, with the final changes to come in 2018. All of this new regulated compliance may mean more – and different – ways that care providers can trip up and land in legal hot water.

But in any case, law firms will continue to represent nursing homes and assisted living facilities in legal disputes over care, including medical malpractice allegations. Even with federal efforts to put a cap on medical malpractice awards, these cases can wreak havoc on care providers and their insurers even in the best of circumstances.

With such high stakes, LTC facilities must be more than CMS-compliant. They must be prepared to defend themselves in the face of medical malpractice litigation with the best expert witnesses for their case, as well as establish medical facts in a way that jurors with no medical background can comprehend. These are both tasks which legal nurse consultants (LNC’s) are in a unique position to fulfill.

An expert who recommends other experts.

A legal nurse consultant will cull all medical, employment, invoices, and deposition testimony. He or she will identify missing pieces, such as absent records, for the defense attorney to request. At that point, the LNC can recommend the most suitable medical professionals to explain and defend against the plaintiff’s allegations.

The importance of making facts understandable to lay jurors should not be underestimated. In a medical malpractice case overturned last month by the Missouri Supreme Court, the initial judge threw out the patient’s informed consent agreement because it “could only confuse the jury in its determination of the facts.”

In most malpractice cases, medical jargon is too intricate for lay jurors to fully grasp.  The LNC behind the scenes, and experts on the witness stand whom he or she identifies, will walk the jury through the details to understand why a lawsuit was filed, and why the defendant is not liable.

Causation is key

Once a legal team has fully addressed the “standard of care” question, it must address what caused the adverse outcome.  Should a deviation from the care standard be found, did it result in the issue for which the plaintiff seeks damages?

In yet another recent case, an Ohio appeals court ruled in favor of a skilled nursing facility in a medical malpractice case, vacating the $1 million in damages and attorney fees from the original trial two years ago.  A deceased resident’s estate administrator attributed her death to staff negligence, as well as pressure wounds and “fatal” injuries that were not reported to her family or doctor.

The LTC center filed a motion for a new trial, as well as a reduction in damages, which was denied the following year. But the defense appealed – and the appellate court ruled in their favor, citing insufficient evidence that they intentionally acted, or failed to act, knowing that substantial harm would likely result. Further, the judge found no evidence of ill-will or a spirit of revenge when caring for the woman.

This is the type of long-term care malpractice case where a legal nurse consultant can make a real difference in the outcome. In a case like this, the LNC would review the resident’s medication history and progress notes of physicians and nurses. Establishing causation takes more than checking vital signs and scanning a medical record.  It is important not only to research a facility resident’s prescribed diet (which is now a requirement in CMS compliance), but whether or not the resident has adhered to that regimen and eaten the food the long-term care facility has provided. This puts the defendant in the best possible position to challenge financially devastating litigation.

As with the two cases in Missouri and Ohio, a serious allegation – and even losing one legal battle – does not mean that a defense team can’t eventually prevail. Your best weapon can be a legal consultant with a nursing background – and a full command of the details and nuances of a seemingly straightforward medical event. With a strong knowledge of regulatory changes in the long-term care landscape, a legal nurse consultant can help a legal team build a strong defense for the client.

Sign up for our email updates so you don’t miss the second part in our series on Malpractice in Long-Term Care outlining how a legal nurse consultant can improve a the Plaintiff’s case in long-term care litigation. ALN Consulting will continue to stay on top of these and other developments. Contact ALN Consulting if you have questions about a case and would like an initial consultation.


Final Rule, Federal Register, October 4, 2016.

“Medicare Backtracks on Long Term Care Arbitration Rule,” Bloomberg BNA, June 6, 2017.

“Federal Efforts to Cap Medical Malpractice Awards Stall,” June 8, 2017. The Legal Examiner.

“Missouri Supreme Court Gives New Life to Medical Malpractice Case,” Legal Newsline, May 31, 2017.

“Court Grants Nursing Home a Win in Appeal of $1 Million Medical Negligence Suit,” McKnight’s Long Term Care News, May 1, 2017.