• Jury sends message: understaffing of nursing homes is unacceptable Wednesday, December 8, 2010

    By J.G. Preston

    If understaffing of nursing homes wasn’t on the radar as an issue before July 6, 2010, it certainly has been since then.

    That’s the day a Humboldt County, California, jury returned a $677 million verdict against one of the nation’s largest nursing home chains, Skilled Healthcare, for violations of California’s Health and Safety Code at 22 of its facilities in the state.

    “We as a jury needed to send a message,” jury foreperson Bob Hart said, months after the verdict.  “Are we going to let our old people waste away and die in their own filth?  Or are we going to say, no, we don’t want that to happen?”

    Hart said the jury’s answer was emphatic. “Our verdict said, by God, you can’t ignore this!”

    One of Skilled Healthcare's facilities in Eureka, California

    One of Skilled Healthcare's facilities in Eureka, California

    Skilled Healthcare heard the message – and so has the entire nursing home industry.

    The case resolved in a negotiated settlement of $62.8 million.  But as part of that agreement, the plaintiffs’ attorneys also got Skilled Healthcare executives to agree to a court injunction requiring the company to meet legally-mandated minimum staffing levels, with the company paying for a court-appointed monitor to ensure compliance.

    The size of the jury’s verdict reflected the maximum damage amount of $500 penalty for each patient at a Skilled facility on a day when the facility failed to provide at least 3.2 hours of nursing staff time per patient, the minimum required under California Health and Safety Code Section 1276.5.

    Attorneys Tim Needham and Michael Crowley of Eureka’s Janssen Law Firm, Michael Thamer of Callahan and Christopher Healey of San Diego’s Luce Forward firm brought the case as a class action on behalf of some 32,000 residents of Skilled Healthcare facilities over a six-year period.  The maximum potential damages per violation was set by Health and Safety Code Section 1430 (b) because the understaffing violated the portion of California’s Resident Bill of Rights for nursing care patients that reads, “The facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility.”

    In essence, the attorneys made the case that, when the facilities did not maintain minimum staffing, the residents did not receive the care they—or, in the case of Medi-Cal and Medicare patients, taxpayers—had paid for.  Lavender v. Skilled Healthcare Inc. is the first case to be prosecuted to a conclusion on that basis.

    The suit was an outgrowth of a number of wrongful death actions that had been brought against Skilled Healthcare in Humboldt County, where the company has owned all five of the county’s skilled nursing facilities since 2003.

    Needham said the discovery process in those wrongful death suits frequently identified understaffing as an underlying issue.  “We would ask why did the woman fall, why was she injured, and we would be told, ‘I was the only person on shift and I was trying to move her,’” Needham said.  “Why didn’t she get turned?  ‘Well, I couldn’t turn everybody, I was the only person on Saturday night and I certainly couldn’t get around to turning 30 different patients.’  It was a pattern of understaffing.”

    Eventually, some family members of residents approached the attorneys to see what could be done to change the corporation’s behavior, and that’s when the class action began to take shape.

    Attorneys Tim Needham (left) and Michael Thamer

    Attorneys Tim Needham (left) and Michael Thamer

    Needham said the maximum damages of $500 per violation initially seemed too small to merit legal action.  “But there are a hundred people in each facility, and there’s 22 facilities in California, and we know they’re understaffing 30 to 40 percent of the time” Needham said.  “I started doing the math.”

    Because the penalty can be assessed for each patient in a facility for each day the facility is understaffed, Needham’s arithmetic made it clear the potential total penalty was huge.

    Asked if the understaffing violations should have been handled directly by the state Department of Public Health, Michael Crowley said, “That would be nice in a fantasy perfect world if there was not a $20 billion budget deficit in California and the Department of Public Health had enough staff and resources to aggressively enforce their own rules.  The Legislature recognized the reality of those limitations, and therefore encouraged court action to enforce the public policy of protecting elders.”

    Even when the regulators documented abuses, little came of it. The state came in on 87 different occasions and issued deficiencies to Skilled Healthcare for being below the minimum staffing level on more than 500 days. The result was no result – staffing levels never improved. With the sorry track record, “the suggestion that the state is effectively regulating this field so that cases like this are unnecessary is an indefensible position,” Michael Thamer said.

    Needham explained how the state’s inspection process worked.  “What we found is, when the state would issue a deficiency, the response by the defendants would be, ‘We promise we’ll do better.’  And the state would say, ‘Okay, fine, you promised you’ll do better, that’s enough.’  They [Skilled Healthcare executives] just ignored it [citations from the state].  In fact we had e-mails that showed that it was treated internally as a running joke.”

    It would take a class action to stop it.

    Because the case was based on a violation of residents’ rights, the plaintiffs did not have to show residents were harmed as a result of understaffing.  But in his opening statement and closing argument, Thamer made the consequences of understaffing clear to the jury.  “This wasn’t just a violation of an abstract number.  These violations had a real and significant impact on the residents.”

    The testimony of both former residents and family members of former patients painted a vivid picture of what those impacts were.

    Jack Stearns, a millwright at the Louisiana Pacific pulp mill in Humboldt County, developed Alzheimer’s disease.  He lived with his daughter, Cindy Cool, and her husband for a year before they were no longer able to keep track of his wanderings or deal with his outbursts.  “He was placed in a care facility where they took very good care of him,” Cool said.  “And then when they sold, they asked him to move.”

    That’s when Stearns became a resident at Eureka Healthcare.  The family turned to it because it was a lockdown facility could keep track of him. But the very first day, Cool said, “by the time I got home I had received a phone call from somebody who said they thought they had my father in their front yard,” a mile from the nursing home.

    Cindy Cool's father was a resident at Eureka Healthcare, where she frequently found him wearing clothes that had been soiled from incontinence because there weren't enough employees on hand to clean and change him.

    Cindy Cool's father was a resident at Eureka Healthcare, where she frequently found him wearing clothes that had been soiled from incontinence because there weren't enough employees on hand to clean and change him.

    Cool said her father also suffered from neglect in other ways.  “He was incontinent quite a lot.  I would go in and his sweatpants would be soaked, and his undergarments would be hanging down to his knees, and all that urine was running down into his shoes,” Cool said. In the lounge area, sofa and chair cushions were soaked with urine. On visits with her father, she took to finding a towel to put down or a hard chair without covers so wouldn’t be sitting in urine.

    Cool came to realize many of the problems were the result of understaffing.  “When you walk in and you’re looking for a nurse for help, and you have to go to two different wings before you can find one, because they have only one nurse on staff to take care of three wings, that tells you something.  If you pushed the call button for the nurse to come, it would be 20, 30, 40 minutes before anybody would answer it.

    “I want to make it clear that I don’t blame the help over there.  I blame the owners of Skilled Healthcare for not providing more help for them.  I just wanted him taken care of, and they didn’t do that.”

    And it was clear to Cool that officials at the facility knew they were not meeting their legal staffing requirements.  She was there twice when state inspectors showed up, Cool said. “The first time I saw all these people in there and I asked someone, ‘Did you hire more helpers?’  And they said, ‘No, they’re just in from the other facilities because we’re having an inspection.’  And then after the inspector left it was back to the same empty building.”

    More than four years after her father’s death, Cindy Cool is still visibly emotional discussing the way her father was cared for, and those emotions were evident at trial.  Michael Crowley recalled how Cool grew tearful talking about the terrible things she had witnessed with her father.

    In his closing argument, Thamer noted that the only defense witness to become tearful during the trial was Skilled COO Jose Lynch, who cried under tough cross-examination over his compensation package, which for the year in question was more than a million dollars.

    The first witness the plaintiffs put on the stand was William Hugoboom.  In early 2005 he was recovering from a head-on crash when he fell and tore the tendons in both knees, leaving them “swollen to the size of volleyballs and extremely painful,” he said.  Hugoboom was born with brittle bone disease and has had nearly 90 fractures, so his ambient level of pain is high and he needs powerful painkillers when he has additional acute pain.  He was sent to Eureka Healthcare to recover from his knee injuries.

    “Day after day after day after day I was in anguish and agony because of the lack of staffing,” Hugoboom recalled.  “They were behind in getting the pills out.  I felt sorry for the staff, because they were constantly stressed.  When I complained, I was told, tough, there are a lot of other people here too.”

    When he was a resident at Eureka Healthcare, William Hugoboom noticed how many more employees would suddenly be on hand on days of state inspections.

    When he was a resident at Eureka Healthcare, William Hugoboom noticed how many more employees would suddenly be on hand on days of state inspections.

    Hugoboom chose to testify in the case because he felt a moral obligation to speak for those who couldn’t speak for themselves.

    “One fellow who was in my room was a stroke victim” Hugoboom said.  “One time a nurse brought in a manual Hoyer lift, a sling they put under the patient in bed and then use a hoist to lift him up and place him into a wheelchair.  You should have two people to operate it.  The nurse came in, alone, to operate it, and the patient fell through it onto the floor.

    “Then she got help, and in the process of getting him back in the sling and into the wheelchair, he had a bowel movement, and they rushed him off in the wheelchair and left the bowel movement in the middle of the floor.  Well, I pushed the button, and it was about a half-hour before someone came to pick up the bowel movement.”

    Hugoboom echoed Cindy Cool’s observation that facility officials knew they were illegally understaffed.  “Many times they pulled staff members from other facilities to fill gaps, especially on days when there was a state inspection,” he said.  “The inspectors would show up and then all of a sudden there would be all kinds of people there from the main office, and there would be all kinds of people there I never saw before.  When the inspectors left, those people would disappear immediately.  Immediately!”

    Like Cool, Hugoboom doesn’t blame the employees.  “You have these young girls that come in, they’ve just gotten their CNA [Certified Nursing Assistant], they barely know what they’re doing, they get hired, they’re told what to do, and then they can’t do it because they start doing something and somebody yells at them that they gotta go do this and then somebody yells at them that they gotta go do that, and they’ve got all this incomplete stuff behind them—they are so frustrated by their job that they’re in tears.  There wasn’t enough of them.”

    It was more than three years from the time Lavender v. Skilled Healthcare Inc. was filed until it went to trial.  After more than six months of trial the jury returned a plaintiffs’ verdict.

    Attorney Michael Crowley

    Attorney Michael Crowley

    Crowley said the defense did everything it could to slow the proceedings. The plaintiffs’ attorneys had to slog through numerous procedural fights, a motion to decertify the class, change of venue motions, 12 writs to the court of appeal, plus two appeals that were denied.  Near the end of the trial, they had to survive motions to disqualify the trial judge on alleged bias, motions for mistrial on various allegations, and then post-verdict motions for mistrial based on alleged jury misconduct.

    They fought for years to get the defendants to release internal corporate e-mails relevant to the issues of understaffing and management. Then, shortly before the beginning of the trial, the defendants dumped a quarter of a million pages of e-mails.

    Crowley said it was clear the defense didn’t think the plaintiffs’ team could go through and organize that amount of material.  But they did.  In trial, “those were killers,” he said. “We used those e-mails to great effect.  The e-mails were just devastating to them.”

    Jury foreperson Bob Hart found the paper trail incriminating.  “They [the defendants] proved the plaintiffs’ case.  The payroll records that they had to provide under penalty of perjury proved they were under [the minimum staffing requirement].  They kept treating 3.2 [nursing hours per patient each day] as a goal instead of a minimum.”

    Jury foreperson Bob hart said Skilled Healthcare's own records proved the plaintiffs' claims of understaffing

    Jury foreperson Bob Hart said Skilled Healthcare's own records proved the plaintiffs' claims of understaffing.

    Hart described how the jury came to see the case.  “I switched the conversation from ‘harm’ to the patients to ‘risk’ to the patients.  That just changed the whole tone of the deliberations.  The evidence showed that the lower they got below 3.2, the more they were putting people at risk.  Maybe residents didn’t get a shower, okay…but maybe they didn’t get food, or maybe they didn’t get turned, things that could lead to bad things happening.”

    Jurors agreed unanimously that Skilled Healthcare had violated the Health and Safety Code.  Determining the penalty was another matter.

    “When we were talking about the damages, the biggest difference was when one of the jurors said, ‘We’re not talking about zero to $500 [per violation]; we’re talking about zero percent liable to 100 percent liable.’  We felt they were 100 percent liable, and 100 percent meant the maximum penalty.  The amount of the verdict was based on the violations.  The reason the total was so high was because it was $500 times the number of violations.”

    Michael Crowley said the size of the verdict “sent an appropriate message” to the nursing home industry – that the business model of understaffing to jack up profits was just simply not going to be tolerated.  “Since corporations exist to provide profits to their shareholders, that’s the way to get that message across [and] for social good to come out of litigation like this,” Crowley said.  “That’s what they’re going to respond to.”

    Soon after the verdict was returned, negotiations began to resolve the case at a level that would allow Skilled Healthcare to stay in business. But that wasn’t the plaintiffs attorneys’ primary concern, Michael Thamer said.  “We wanted to ensure that the law was being followed. Their competitors were able to follow the law and stay in business.”

    Thamer said the sticking point in negotiations was not the dollar amount but the plaintiffs’ insistence on a “meaningful” injunction that would require Skilled Healthcare to meet minimum required staffing levels.

    “They didn’t want plaintiffs’ attorneys coming in and telling them how to run their business, and I can certainly understand that,” Tim Needham said.  “But on the other hand, we were adamant that they were going to improve the staffing levels, and we never really got past that point until the trial ended.”

    Needham said understaffing at skilled nursing facilities is “a nationwide problem.”

    “There’s no question about that,” he said. “The jury recognized that their verdict here was going to have a nationwide impact, which it has.  It’s one of the few occasions where we as attorneys can really say at the end of the day we did what we intended to do from the start, which was achieve justice.”

    The decision has already had an impact on staffing levels at nursing homes around California, Needham said. “And I hope it will have that kind of impact across the country.”

    J.G. Preston is press secretary for Consumer Attorneys of California.

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