Does Quality Care inthe Skilled Nursing Environment Reduce Litigation?
By: David Thurber, Counsel, Alliance Insurance Group
A recent article in the New England Journal of Medicine (1) suggests that the chances of resident med mal related litigation between high performing and low performing Skilled Nursing Communities was almost negligible. Said another way, regardless of whether the quality of your resident care is good or not so good, your chances of being sued in a med mal related claim are about the same. This broad conclusion was drawn by researchers from the Harvard Medical School after reviewing almost 5,000 litigated claims from 1,476 SNFs owned by 5 large national companies. They compared the litigation records against specific quality indicators drawn from national MSD and OSCAR data bases. This summary is an overview of a complex analysis. These companies paid out over $578M in settlements or verdicts in these cases. The average payout was $200,000.
The NEJM article in summary concluded that SNF’s with survey deficiencies and serious deficiencies that were greater than the average in a given state were more likely than not to be sued for claims relating to the following: fall related injuries (fractures in particular), Pressure Ulcers, or Dehydration and weight loss. High performing SNF’s with these types of claims, and low survey deficiencies were likely to be sued 40% of the time while poor performing facilities ( higher incidents of survey deficiencies) could be expected to be sued 47% of the time. When staffing hours per patient day for Registered Nurses and Nursing Assistants or Nurses Aides were isolated in this study the odds of incurring claims were significantly lower where staffing was better than the average. This is an important factor to think about as you struggle to make choices in response to a shrinking revenue base due to the reductions in Medicare and Medicaid dollars.
These types of claims and the related macro costs mentioned above are also consistent with recent insurance industry studies by AON and CNA.( reported on earlier) These latter studies document that these claim types continue to be the most prevalent in our business today. The average costs however are somewhat higher today. All of these studies reinforce where you need to place your money to avoid backend financial exposures, and higher insurance rates.
In relative terms you have about a 20% better chance of avoiding these types oflawsuits ( falls, fractures, ulcers, weight loss and dehydration) if you do a good job and have fewer survey deficiencies and certainly fewer serious deficiencies.One dilemma even high quality providers face is that there are a lot of standards, rules and laws to navigate in running a skilled nursing community. Couple this with high turnover and staffing levels, and it isvery easy to miss a turn by the line staff. The study however, does seem to support the positive relationshipthat professional staffing levels, ( hours per patient days), will have on these outcomes.
A subsequent research paper(2) also drew a clear relationship to staffing levels and the severity and frequency of state survey deficiencies. The article specifically focused on infection control problems and related citations. In doing so however, the article also spoke to a higher level of deficiencies generally due to staffing shortages. It is an important topic to keep front and center because staffing is among the top allegations made by plaintiff’s to support the cause of their clients death or injury. Given reimbursement reductions this issue will only become more prominent in future lawsuits.
Notwithstanding this study, it is my own observation here in Oregon and Washington and around the country that there is a positive difference forcompanies that build their organizational culture around quality and conscientious care. Youshould seeat least 20% fewer claims, and certainly have a strong marketing argument. A care provider with a focus on the details will more often than not have good,orderly resident care records, policies, communication and training and an ability to defend or mitigate the claim once it is in motion.
(1)See: Studdert, et al, Relationship between Quality of Care and Negligence Litigation in Nursing Homes, N Eng.l J. Med. 2011;364:1243-50
(2)See:Nursing Home Deficiency Citations for Infection Control, Am. J. Infect. Control 2011; 39:263-9 (University of Pittsburgh, New York University, and Veterans Affairs Pittsburgh
Healthcare System).
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