Over the past two decades, an increasing number of lawsuits have been filed throughout the United States against nursing homes and sometimes against nursing home physicians and other practitioners. Increasingly, nursing home finances and physician practices are being affected either by involvement in lawsuits or by the fear or threat of such litigation.
Both plaintiff and defense lawyers typically retain individuals to testify for their clients as experts. Typically, these experts purport to be able to judge the appropriateness of care and to specify whether and how the facility and/or practitioner have either breached or adhered to the standard of care. Such persons may claim expertise in the ability to relate a breach of Standard of Care to causation of injury or death, or to judge multiple breaches by multiple caregivers to a causation. However, there is evidence that even expert opinion about the standard of care can differ markedly. For example, among 65 experts (out of 98 mailings) in the field of pressure ulcer care who responded to a survey containing questions about pressure ulcer care, 62% disagreed with the statement that all pressure ulcers are preventable, and most respondents disagreed that pressure ulcers are necessarily a sign of neglect and that nursing homes should be sued when a resident develops a pressure ulcer. However, 38% agreed with the concept that lawsuits are an appropriate way to stimulate improvement in nursing home care.1
Generally, juries consist of individuals with little or no background in geriatrics, long-term care, or medical care provision. They are not trained or knowledgeable to be able to distinguish valid from misleading arguments regarding appropriate and unacceptable practice. Thus, they depend heavily on expert testimony.
However, it is unclear whether states, professional associations, and judicial systems have or use meaningful criteria for expertise in relation to long-term care. In fact, it appears that many individuals with little or no knowledge of geriatrics or long-term care practice or direct personal experience in providing long-term care are allowed to testify as experts.
It is not uncommon for some of these experts to make invalid or misleading statements under oath; especially in regard to problematic areas of care such as pressure ulcers or falls. Some experts testify to similar conclusions in multiple cases, without regard to the facts; for example, they will invariably state no matter how severely ill or functionally and cognitively impaired the patient, that some other treatment would have materially changed the patient’s outcome. They may be unaware of, or deny the relevance of, publications that identify reasonable care process, realistic expectations, and the impact of comorbidities and cognitive and functional impairment on patient outcomes.
It is possible to fairly and consistently judge the performance of nursing home staff and practitioners in the care of their residents/patients. However, the current judicial system does not appear to do so meaningfully or consistently. While the legal community claims that lawsuits are necessary to punish wrongdoing and to improve the level of care, it appears that many suits that have been brought against nursing homes and nursing home practitioners are of limited merit, and there is little substantive evidence that the threat of lawsuits has reduced the incidence of problematic care or helped differentiate appropriate from inappropriate care.
Note: Effective August 13, 2024, AMDA - The Society for Post-Acute and Long-Term Care Medicine is now Post-Acute and Long-Term Care Medical Association (PALTmed).