Fleming & Curti, P.L.C. - Nursing Home Pays Damages Over Chronic Understaffing C

JULY 24, 2006 VOLUME 14, NUMBER 4

Nursing Home Pays Damages Over Chronic Understaffing

Ocie Birkhead, 91, died five years ago at Levering Regional Health Care Center in Hannibal, Missouri. She had a long and no doubt productive life, but she needn’t have died when or how she did. Her tragic story gives us an opportunity to describe some steps you can take to reduce the likelihood of a similar occurrence in your family.

Ms. Birkhead, like many nursing home residents, had problems with mobility and balance. She had fallen several times, especially in the dining hall at Levering. Staff had been told not to leave her alone in the dining hall. That’s where she was on May 14, 2001, when she fell and hit her head. No staff were present to prevent the fall or assist. Ms. Birkhead died the next day.

Her daughter sued Levering, and the jury found in the daughter’s favor. She was awarded $10,000 in "actual" damages for the wrongful death of her mother. The jury also found that the facility’s chronic understaffing was an "aggravating circumstance," and awarded an additional $240,000 in damages to Ms. Birkhead’s daughter.

The Missouri Court of Appeals upheld the verdict, dismissing Levering’s argument that there was no evidence of understaffing as "disingenuous." Recounting the testimony of Levering employees at the trial, the appellate court opined that "Levering knew it was dangerously understaffed, failed to rectify the situation, and thus knew or had reason to know there was a high degree of probability that a Levering patient would be deprived crucial treatment." Miller v. Levering Regional Health Care Center, LLC, July 11, 2006.

What could Ms. Birkhead’s daughter have done to avoid the problems her mother encountered at Levering? Perhaps nothing—but there are some important tools available today that help family members make better decisions. Principal among those tools is the "Nursing Home Compare" information maintained by the Medicare program, and readily available on Medicare’s website.

A quick check for nursing home choices in Ocie Birkhead’s hometown of Hannibal, Missouri, for instance, reveals that there are five facilities in town, and another nine within twenty-five miles. The Medicare website lists the number of hours of nursing staff and nurse’s aides provided for each resident; the figures show that Levering is currently near the bottom in both statistics for the five alternatives in Hannibal itself. Levering is also the largest of the five, though the second-largest (Beth Haven Nursing Home) also has the best staffing ratios in both categories.

The Nursing Home Compare website also lists findings from recent inspections for each facility, allowing family members to compare the types and severity of "deficiencies" reported. Levering, for instance, shows five deficiencies (individual instances of failure to adhere to state or federal licensing standards), with the severity and scope of each deficiency scored as relatively minor. For comparison purposes, Beth Haven Nursing Home is shown with just four deficiencies, while Fountain Court Care Center (the smallest facility in Hannibal, with just 33 residents) is reported with a whopping 20 deficiencies.

Finally, the Medicare data reveals abundant information about conditions in each nursing home. Picking one as an example, the percentage of patients with urinary tract infections varies from 13% at Beth Haven Nursing Home down to no reported cases at Fountain Court Care Center; the national average is about 9%, and the average of all facilities in Missouri is shown as 8%. Other statistics available include the percentage of residents who are physically restrained, the percentage who are in moderate to severe pain and the percentage who have pressure sores (decubitis ulcers). Not all the numbers are available for each nursing home, but there is plenty of information to allow family members to get a picture of the facility's quality.

At Fleming & Curti, PLC, we know next to nothing about the actual nursing home facilities in Hannibal, Missouri, and we do not intend here to tell you which one you should consider if you happen to live in Hannibal. Our point is to encourage you to look for information about any nursing home you are considering, and to add that data to the impressions you receive from a site visit before placing your family member in any nursing home. Once you have completed that process, it is also important to keep checking back for changes and updates.

The most important component of nursing home quality monitoring, though, is to visit the facility frequently after your family member has been placed there, and to get and stay involved with the facility's staff. We have often heard, and endorse, the suggestion that you should think of "cookies and thorns." You should regularly bring cookies to the facility's staff (we are being metaphorical here—we mean that you should genuinely befriend staff members and make it easy for them to pay particular attention to your family member). At the same time, you should be a thorn in the side of the facility, its management and the staff itself. Do not hesitate to point out—in a gentle, supportive and friendly way (so long as that gets the job done)—deficiencies that need to be addressed and any failure to provide good care to your family member or loved one.