Attorneys Review Status of Nursing Home Litigation in Illinois
Many families and individuals see nursing homes as a source of care and comfort for themselves or for their loved ones. They might eventually decide on settling into one after concluding that they cannot provide the requisite attention or that their standard of living can only be maintained by moving into a center.
In fact, many more people will come to this conclusion over the next few years and decades as the “Baby Boomer” generation matures into old age. According to the National Center on Elder Abuse, the number of people over the age of 65 compared to the rest of the population will double to nearly 20% over the next 40 years. Additionally, the highest growing segment of the country is those over 85 years old.
Thus, while there has been a modest decline over the last 10 years in the number of operating nursing homes (a drop from 16,380 to 15,652 between 2003 and 2012), one would expect to see a significant increase in their construction over the coming years. In Illinois, over 100,000 people occupy over 1,000 nursing homes. These facilities are regulated by the Illinois Department of Public Health and the U.S. Department of Health and Human Services’ Health Care Financing Administration (HCFA), among other state and federal agencies.
The growing nature of nursing homes suggests that the kind and quality of their attendant problems will evolve as well. The Center for Medicare and Medicaid Services confirms the decline in homes noted above but paints an illustrative picture in a recent report. There is an ever-growing population moving into nursing homes that is testing the limits of their capacity. More than a million people already occupy some of their rooms. They house over 2% of those over 65 and more than 10% of those over 85, and they are predominantly female residents. As far as the institutions themselves, they can be broken down by various dimensions.
For ownership purposes, they are either classified as for-profit, non-profit, or government-run facilities. At the national level, for-profit homes are the most common at 69.2%, followed by non-profit homes at 25%, and then, lastly, government nursing homes fill in the remaining market at 5.8%. Illinois homes break down in a similar fashion at 71.6%, 24.8%, and 3.6%, respectively. On a related note, nearly all homes in the U.S. (92% to be exact, and 86% in Illinois) are dually certified according to Medicare and Medicaid standards.
Going by bed size, almost half of all homes have at least 100 beds, about a third have at least 50, and the rest have less than 50 (Illinois follows similarly). Finally, no excerpt on the nature of nursing homes would be complete without mentioning the rates of occupancy. The tale to tell here really is the shocking availability of beds in nursing homes. Looking at the nation as a whole, almost one in five beds are left vacant, and in Illinois it is even worse as almost one in four beds are left unoccupied.
This is very interesting to consider once we note the significant problems and failures that nursing homes are already experiencing and imagine how these can only grow with the influx of Baby Boomers soon to stampede upon them. The nature and scope of these problems and failures will be discussed below.
The Face of Nursing Home Patients
At the core of many of many problems associated with nursing homes is the makeup of the residents themselves. Most nursing home residents are afflicted with some sort of disorder: cognitive, functional, or otherwise. Nearly 80% of residents have some form of Activities of Daily Living (ADL) impairment; although, a quarter of those impaired suffer from a less than mild version of an ADL affliction. Yet, almost 20% of the entire population in nursing homes maintains an extreme cognitive disorder as well as at least 4 ADL impairments (15.8%). ADL is generally all the skills necessary for people to take care of themselves. It includes things like the following:
In 2012 at the national level, 20% of residents had zero ADL impairments, 6% had one impairment, 5.4% had two impairments, 6.3% had three impairments, 38.6 had four impairments, and 23.3 had five impairments. At the Illinois level in 2012, 34.1% of residents had zero ADL impairments, 5.8% had one impairment, 5% had two impairments, 5.7% had three impairments, 32.5% had four impairments, and 17% had five impairments.
Additionally, as noted above, many people in nursing homes also suffer from a cognitive disorder in addition to an ADL impairment. In 2012 nationally, 36.6% only had a mild disorder, 25.7% had a moderate disorder, and 37.7% had a severe disorder. Those numbers in Illinois for 2012 were 41.8%, 27%, and 31.2% respectively. These numbers are important because they suggest a significant class of older Americans unable to look out for or take care of themselves. Combined with an ever burgeoning number of residents and dwindling facilities and resources, it is no surprise that we have seen an increase in accidents, inadequate care, and subsequent lawsuits.
Problems in Paradise: Identifying Areas of Concern in Nursing Homes
In fact, since 2008, many nursing home residences have been given citations for substandard care. If you look closely in fact, there is often a causal relationship between the prevalence of substandard care and the size of the nursing home. For instance, across the nation in 2012 there was a 23% difference in citations between nursing homes with less than 50 residents and those with more 50 but less than 100; also, there was a 12% difference with homes with more 50 but less than 100 residents and those with more than 100; additionally, there was a 32% difference in substandard care citations in homes with less than 50 residents and those with more than 100.
This is significant news for anyone looking at a variety of nursing homes. Rather unsurprisingly, many nursing home residents report feeling pain over the course of a normal week. In fact, 14% report feeling moderate or severe pain and 22% feeling mild or infrequent pain. All told, almost half of all residents consider themselves in pain over the course of a normal week while staying at a nursing home. Interestingly, the smallest residences-those with less than 50 residents-report the greatest percentage of those in pain in both categories: 26% feel mild or infrequent pain while 18% feel moderate or severe pain.
Reports also track which type of nursing home poses the greatest risk of immediate jeopardy and actual harm to residents. Up until 2012, across the nation, nursing homes with more than 100 residents were consistently ranked as the environment most likely to jeopardize the health of residents- 18% more than homes with between 50 and 100 residents and a shocking 53% more than homes of less than 50 residents.
In Illinois, that trend is similar with homes of more than 100 having a likelihood to jeopardize residents 39% more than homes with between 50 and 100 residents and a disturbing 127% more than homes with less than 50 residents. This potential for jeopardy has manifested itself in actual harm among residents in a number of ways, including the following:
IMPROPER RESTRAINT. Confinements of the truck, limp or other parts of the body without consent or authority are defined as improper restraints. Surprisingly, across the country, for-profit nursing homes had a higher rate of occurrence than non-profit institutions, 6% versus 4.2% (the percentage of nursing home residents that had an improper restraint within the last 7 days). Further, government nursing homes had the worse rate of incidence at 6.2%. Shockingly, nursing homes in Illinois did not even come close to the national averages: 16.6% for for-profit homes; 9.1% for non-profit homes; and 24.1% for government homes.
PRESSURE SORES. Pressure sores are measured by tabulating the percentage of nursing home residents that have, at any time during their stay, pressure sores (also known as bed sores and decubitus ulcers) at or above stage 2. What is interesting, despite growing attention to this nascent problem, is that both for-profit and non-profit homes trail government homes in failing to treat or prevent pressure sores: 14.2% of residents in for-profit homes have a stage 2 pressure sore or higher; 13.1% of non-profit residents have one, and 12.5% of government residents have one. Again, Illinois glaring lags behind the national averages with respect to their treatment; however, it does in the reverse order. That is, 19% of residents in for-profit homes have pressure sores at stage 2 or higher, but 19.1% and 24.1% in non-profit and government homes have one.
FALLS. Survey statistics track the percentage of nursing home residents along 2 metrics: those that result in an injury and those that do not. Nationally, the percentage of residents that sustain a fall resulting in an injury is 5.3%, while the number of residents that fall but do not endure an injury is 11.3%. In Illinois, those numbers are approximately 4.9% and 16.5%, respectively. Furthermore, the likelihood of either fall occurring is greater for those residents suffering from a cognitive disorder or ADL impairment.
INADEQUATE CARE. Nursing homes across the country have also routinely neglected patients and exacerbated problems of incontinence, feeding tubes, and weight loss. Statistically, these issues affected nursing home residents across the nation at rates of 35%, 5.9%, and 5.9%, respectively. Unlike with other problems, however, Illinois beat the national average with respective proportions of 23.5%, 4.9%, and 5.8%.
Deteriorating Nursing Home Care Resulting in More Fines
These excerpts highlight specific trends affecting the nursing home industry across the country and specifically in Illinois. However, statistics also track general deficiency citations among homes according to bed size. For instance, homes with more than 200 beds have the most citations for deficiencies (6.3 on average) and that number goes down with every category: 6.2 for homes with between 100 and 199 beds, 5.9 for homes with between 50 and 99 beds, and 4.8 for homes with up to 50 beds. Illinois follows the national trend as the number of citations drop with the number of beds. The average citation number for the categories listed above was, respectively, 6.1, 5.4, 5.2, and 3.3.
To give more meaning to these numbers, it is important to note the scope and severity of the average deficiency citation. Typically, they are measured along two axes, one for the rate of the problem and one for the relative seriousness of the problem. Interestingly, national statistics show that more than a third of citations -34.8%- were part of a pattern or widespread occurrence of actual harm. In other words, they were not isolated instances of malpractice. Illinois does not fall far behind in this problem, 33.4% of its deficiencies were part of a larger regime of incompetent care within nursing homes.
Illinois Nursing Home Negligence Verdicts and Settlement
Citizens of Illinois have had remarkable success in pursuing recovery against nursing homes. In 81% of all cases since 2004, victims and their families have received compensation from nursing facilities for various alleged and confirmed injuries. However, once one takes a closer look at the evolution of many of these lawsuits, a different story emerges. This is because in over half of the cases-nearly 62%-both sides reached a settlement preventing the need for trial.
Presumably, this was a result of the defense’s strategy wanting to limit legal expenses, minimize the attention drawn to the matter, and otherwise move on from the controversy. However, the practical effect of this was that juries never tested the pertinent legal issues arising from nursing homes across Illinois. In the limited situations where the cases did present themselves in a courtroom, juries returned verdicts equally between plaintiffs and defendants. Therefore, it is instructive for prospective plaintiffs to note the much safer route of settlement when choosing litigation strategies; yet, these facts should be reviewed in context with your nursing home abuse attorney.
Successful plaintiffs walked out of courtrooms with lots of money from the health care industry. The statewide average return since 2004 was a little more than a third of a million dollars, $344,681.00 to be exact. Approximately, 41% of all awards were within the range of zero ($0.00) and two hundred and fifty thousand dollars ($250,000.00), 24% were within two hundred and fifty thousand dollars ($250,000.00) and five hundred thousand dollars ($500,000.00), and 35% were more than five hundred thousand dollars ($500,000.00).
Furthermore, plaintiffs earned slightly more at trial than they did in settlement: $381,144.00 on average for the former, and $333,462.00 on average for the latter. By far, the most plaintiff-friendly counties in Illinois were Cook and Winnebago measured by the number of settlement offers and jury verdicts; although, Cook, Winnebago, Kane, Madison, and Sangamon also exhibited favorable signs for victims measured by the size of settlement offers and jury verdicts.
On average, plaintiffs in Cook brought in $543,652.00 per case, while those in the rest of the state took in $221,508.00[wo2] per lawsuit; additionally, it is important to note that plaintiffs filing their suits in Cook county brought in most of the pie in general over the last 10 years, 60[wo3] % of all money offered through settlement and jury came from Cook. This disparity suggests a significantly different legal environment between the state as a whole and Cook county.
Understanding Why Some Nursing Home Lawsuits Have Differing Outcomes
Consistent themes resonating out of all the instances of nursing home malpractice include the following:
- Negligent care
- Pressure sores (bedsores)
- Unnecessary falls
- Wrongful deaths
Negligent care must be understood within the context of two simultaneous developments: first, a large Baby Boomer population entering nursing home facilities, and, two, a support system that is unaccustomed and unequipped to handle the massive influx. Unfortunately, the capacity and capabilities of care centers have not kept pace with the rising number of residents, and this has manifested itself in numerous incidents of neglect and harm as evidenced in the Illinois jury award numbers previously outlined.
One common consequence stemming from inadequate care patients often face is pressure sores, also known as bed sores or decubitus ulcers. These injuries typically arise after excessive pressure or rubbing is applied to a particular part of the body and results in significant damage to the skin and underlying tissue. Areas most prone to pressure sores include elbows, knees, hips, and other bony parts of the body.
Symptoms often include tenderness, inflammation, and discoloration. The real problem, however, lies in the fact that it can deteriorate into a very serious medical condition in a very short amount of time. Combined with the overworked and understaffed nursing workforce, it has grown into a very serious problem afflicting many people residing in care centers, as is demonstrated by its prevalence within most lawsuits filed in Illinois on behalf of nursing home residents.
Unnecessary falls are also all to common in nursing homes and not surprisingly riddle the case literature pertaining to their residents. This is a huge concern because of the millions of Americans already living in nursing homes and the millions sure to move in over the next few decades. Further, according to the Center for Disease Control, there is approximately a one-to-two ratio between the number of beds in a nursing facility and the number falls experienced within it, and this only accounts for the percentage of falls reported. Further, the CDC finds that often residents fall on multiple occasions in any given year.
Most shocking however is that the rate of falls within these facilities nearly doubles that of the same age group living outside of them, on their own. Common explanations for the occurrence of these serious falls center on the residents themselves, the care of the residents, and their environment. As noted above, the portion of the population residing in nursing homes are already at a disadvantage, often times holding a mental disorder or ADL.
With respect to falls although, muscle failure and walking inabilities spur the most falls among residents. Then, medications often worsen these physical limitations and make the elderly more prone to accidental drops. Finally, nursing home issues such as understaffed and over-worked employees and lack of resources complete the dangerous triangle in which many residents are placed. Now, it is easy to see why falls are so commonplace and serious in nursing homes. Nearly 1,800 people die in nursing homes from falls every year, and almost 20% of all falls cause significant injury such as bone fracture!
Wrongful deaths are a frequent outcome arising out of nursing home lawsuits in Illinois and around the country. A wrongful death claim occurs when some person or some entity is deemed to be legally responsible for the death of someone else. Every state allows for this kind of legal action. To bring this claim, the person suing must be a representative of the decedent and must have incurred some special kind of damages. While states differ specifically over who can bring a wrongful death action, generally, many states allow immediate family members (such as dependents), partners, and parents to raise these claims.
Typically, liability for the wrongful death of another is quite broad and extends to anyone who may have had even a small part in the passing. It may extend to people, companies, organizations, or even government agencies. Finally, normally courts award damages for wrongful death actions for lost companionship, support, emotional distress, and even punitive damages if the court believe the conduct causing the injury passed a certain level of egregiousness.
This explains many of the outcomes of cases involving nursing homes in Illinois and around the county but it does explain the internal dynamics at play. This will be discussed next.
Emerging Trends In Illinois Nursing Home Litigation
- Emotional Versus Legal Arguments
- Minor Versus Developing Injuries
- Settlement Versus Trial
Certain themes emerge from the mass of nursing home cases in Illinois. One can identify threads running through them to indicate either success or failure, as well as large or small awards or settlements. The first most glaring trend centers on distinguishing between nursing home injuries involving discomfort and those regarding care or supervision.
The former triggered a higher rate of settlement, and they also triggered a higher return in award amount. Plausibly, one could make the argument that juries are more sympathetic to claims they can understand-such as pain-instead of legal distinctions.
Try as they may to craft finely-honed academic pleas, juries find sympathy in proportion to things they can understand. A very common issue in malpractice cases with nursing homes involves standards of care: did the home fall above or below the theoretical and esoteric line required for treatment, and exactly how much did they deviate from that imaginary line. This does not pull at the heart or mind of any jury person, and they have not responded in kind via award. However, when a plaintiff, or a plaintiff’s lawyer, explains how they were not cleaned or fed for days on end, every person on the jury feels in their gut a pain resembling how they would respond to such an injustice. Then, they respond through their verdict.
Another consistent storyline running through Illinois nursing homes cases is that problems initially innocuous or at least minor were exacerbated and turned into substantial injuries. This is often why the claims for two substantive injuries were coupled by a claim for inadequate care. For instance, one common claim was for pressure sores. As discussed above, this involves a combination of lack of oversight particular to the issue as well as ongoing failures to manage and treat the problem. However, over time this grew into such a issue that many plaintiffs died from complications related to the original sores.
Therefore, the resulting lawsuit joined pressures sores with inadequate care and wrongful death. In this manner, a possible settlement or jury award blew up into a massive where it originally would have only been a small percentage of the end sum. Further, it is important to note that the inadequate care by the home often joines the initial injury (which may not even be the fault of the facility) with the later, and normally larger injury. The cases that connect these two the best using a lack of care argument came away the best settlements or awards, depending upon their legal strategy.
Speaking of legal strategies, time and time again, nursing home cases were disposed of via settlement. This is just one way in which a lawsuit can be handled, others include dismissal, summary judgment, and a full a case on the merits. With a settlement, however, plaintiffs agree to withdraw and not redraw their case for a certain sum of money.
Three distinct advantages occur at this juncture. First, it speeds up the process of recovery by short-circuiting what can often be a years-long trial process. Second, it summarily brings compensation and it saves by cutting legal costs for trial. Third, it takes the matter out of the hands of the jury, which can often be arbitrary and unpredictable.
Nothing stops a jury from deliberating on matters or theories outside the scope of trial, except for settlements. Of course, there are tangential advantages to choosing this strategy as well, such as maintaining privacy, obtaining finality, and decreasing stress. Yet, on the other side of the courtroom, all of these advantages morph into disadvantages. Thus, it is easy to see why nursing-home defendants would also want to pursue settlement to minimize the costs, time, and uncertainty inherent in cases, especially with the prospect hanging over their heads of a sympathetic jury awarding an excessive award in the heat of the moment.
Conclusion: What to Expect During Illinois Nursing Home Litigation
The foregoing has been an attempt to paint a picture of the problems associated with the increasing number of people entering nursing homes. Often times, this has translated into greater injuries and subsequent lawsuits. Those settlements and awards were outlined and some explanation was given to help develop an understanding for those figures. To better understand these issues, and to discover remedies after you or a loved one has been injured in a nursing home, please give us a call. Rosenfeld Injury Lawyers LLC has experienced nursing home abuse attorneys based in Chicago who have seen and tried these cases before and can help you.
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