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Correspondence: Address correspondence to Christopher E. Johnson, PhD, Rehabilitation Outcomes Center of Excellence, North Florida/South Georgia Veteran's Health System, 1601 SW Archer Road, Gainesville, FL 32608-1197. Email: Christopher.Johnson4{at}med.va.gov
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Abstract |
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Key Words: Litigation • Nursing homes • Nurse staffing • Long-term care
Although litigation activity against nursing homes has caused all sorts of policy recommendations at both the state and national levels, very few empirical data exist that uncover the important factors associated with increases in lawsuit filing. The few studies that have examined these issues focus primarily on Florida (Florida Policy Exchange Center on Aging, 2001; Johnson, Atherly, & Bunderson, 2000; Johnson & Bunderson, 2002), although there are national studies beginning to emerge (Stevenson & Studdert, in press). The main problem with large sample studies of nursing home litigation data is that there are very few large sample databases available that track litigation activity against facilities. These data are not collected in a systematic fashion at either the state or national level. The options available to researchers include doing primary data collection in county court houses or relying on subscription-based legal databases from different vendors.
In our study we investigate these issues by examining the litigation experience of 478 nursing homes operating in 30 Florida counties from 1997 to 2001. We gathered information about lawsuits filed against these nursing homes from Westlaw's Adverse Filings: Lawsuits database. These data were linked to the Online Survey, Certification, and Reporting (OSCAR) system from the Centers for Medicare and Medicaid Services (CMS) for structural and quality survey information. We analyzed variables by using negative binomial regression modeling techniques to determine the influence of nursing home quality and structure on the number of lawsuits filed against a facility over time.
We hypothesize that nursing homes will have more lawsuits filed against them in Florida if the home (a) has poor quality of care, (b) has more financial resources available to it, and (c) is exposed to more potential claimants because of the size of the facility. We chose variables used in the analysis to measure these dimensions while also controlling for the acuity level of the residents.
Litigation Activity in Florida
Widespread public awareness of nursing home lawsuits is a comparatively recent phenomenon. Media reports detailing high-jury awards for high-profile examples of poor-quality care began to appear in the 1990s in Florida (Dougherty, 1999). Traditionally, the major opportunity for relief through the court system for resident care issues was through malpractice law using a negligence standard, although claims could also be brought against nursing homes under various intentional tort and contract claims. The negligence standard limits many of the options available to plaintiffs. The Florida Wrongful Death Act (2003) outlines one type of negligence claim, and it provides a limited remedy because of the inability of claimants to sue for the pain and suffering of deceased plaintiffs. Another example is that, under these statutes, only a surviving spouse or child under the age of 25 can bring a wrongful death claim unless the resident was found to be incompetent prior to his or her death. In Florida, 20% of long-term-care nursing home residents with less than 1 year in a facility have no family identified and cannot file suits under the wrongful death statute (Polivka, Dunlop, & Brooks, 1997).
Florida Statutes 400.022–400.023, known as the Nursing Home Residents' Bill of Rights (2001), were enacted by the state government to reform nursing home behavior in the 1970s following some cases of poor quality of care that attracted significant media attention. The statutes establish the individual rights that residents have while under nursing home care. Plaintiffs that bring suits do so because their rights as established by these statutes have been violated. Therefore, nursing homes must prove that they did not violate the resident's rights as established by statute. The Residents' Bill of Rights creates different causes of action that may be brought against nursing homes than those found under malpractice law. Negligence requires the plaintiff to demonstrate that the care provided within the nursing home failed to comply with the appropriate standard of care and that the plaintiff was injured as the result of this failure. The negligence cause of action is a more difficult burden of proof to meet than a cause of action for violating resident rights (Williamson, 1999).
Florida has been identified as a highly litigious state in national studies. A study commissioned by the American Health Care Association identified Florida, Texas, Arkansas, California, and Georgia as states that had strong resident rights laws and high litigation claims (Bourdon & Dubin, 2002). The report highlights the high number of claims in Florida and other resident rights states, as well as some states such as Louisiana that did not have resident rights statutes. A national survey of lawyers involved in nursing home litigation found that of 8,256 claims identified in 2001, more than half were made in Florida and Texas (Stevenson & Studdert, in press). These data suggest that additional careful empirical examination of Florida's litigation experience could inform other parts of the country as they struggle with the effects of this litigious activity.
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A difficulty of using Westlaw's lawsuit-records database is that it was not created for empirical research. One must search all of the lawsuit information by using each individual nursing home's name, corporate name, or some variation of the two. One can search lawsuits by using case numbers, but this requires a priori knowledge of what those numbers are in order to search for them. All lawsuits related to negligence or malpractice, employees, and breach of contract were captured with Westlaw's database.
In order to first identify the different potential names a facility could have between 1997 and 2001, the research team searched through the HealthGrades crosswalk database with the Provider identification of the nursing home that was being searched for in the Westlaw database. HealthGrades' crosswalk database tracks all name changes for nursing home facilities in the United States. If there was more than one name for the nursing home shown in the HealthGrades data, all of the names were searched in the Westlaw database for lawsuits associated with that name. The research team also searched by using truncated portions of the name and other permutations to make certain that all lawsuits associated with the nursing home named as a defendant were included in the counts.
There were a number of problems and issues surrounding the use of Westlaw's lawsuit database. Sometimes the address given for the nursing home in the lawsuit record was not the physical address of the nursing home. In addition, Westlaw's database was not spell checked. By doing partial name searches, the research team discovered quite a few lawsuits that would not have been found had the names been spelled out, and they added these to the counts. The major issue surrounding the Westlaw data is that we believe that because of our conservative lawsuit-inclusion algorithm, this study may be undercounting the number of lawsuits. However, there does not appear to be a pattern of systemic exclusion of lawsuits from our data. We base this observation on previous data collected in one county in Florida (Hedgecock et al., 2003; Florida Policy Exchange Center on Aging, 2001). The research team physically visited Hillsborough County's Circuit Court and recorded the lawsuit information for every nursing home in the county from 1990 to 2001. We compared these results with our Westlaw results for the same county during the time period for this study, and we noticed some discrepancies for specific homes in the Westlaw data. Westlaw data listed individuals as defendants on cases but did not list the nursing home or corporation. The research team discovered this by cross-checking case numbers in the Hillsborough County data with Westlaw.
Short of expending the resources to search every county courthouse in Florida, we are comfortable that the Westlaw data are not systemically biased as a result of this omission problem. Multiple researchers conducted the Westlaw search during a 3-month intensive period. The trade-off is that we have been collecting Hillsborough County data since 2000, and it is extremely resource intensive to search county courthouses. Westlaw contracts with vendors to conduct their public-records searches across the country, and although the limitations of the data are not trivial, the data are the best available in the United States at this time.
The researchers linked the HealthGrades database to the lawsuit counts for this analysis. HealthGrades stores multiple years of the OSCAR database. The company uses this data to construct report cards for nursing homes that are available to the public. Part of this data is a severity score developed by HealthGrades that is calculated as a scale from 1 to 88 that weights the severity of health and complaint survey results. OSCAR is a database of nursing home survey deficiencies and other structural variables that can be used to analyze the effects of nursing home structure and quality measures on lawsuit activity. Concerns have been published relating to the use of OSCAR data (Centers for Medicare and Medicaid Services, 2001), but these data have been used to conduct research that examines whether or not nursing homes are meeting minimum-quality standards across different health-licensing-survey variables.
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Specification of the Variables |
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A central argument of those in favor of litigation against nursing homes is that there is a relationship between the quality of care provided by the nursing home and whether or not a nursing home is sued. Nurse staffing levels were shown in a number of studies to affect the quality-of-care outcomes within long-term care facilities (Bliesmer, Smayling, Kane, & Shannon, 1998). During the period from 1997 to 2001, Florida required facilities to have 1.7 CNA hours per resident day, and 0.6 licensed practical nurses (LPNs) and RNs combined, but it did not have a separate hour-per-resident-day requirement for RN staffing. Abt Associates and CMS made specific recommendations about the resident hours per staff that led to better outcomes for long-stay residents, and the weighted threshold ratios were used for this study (Centers for Medicare and Medicaid Services, 2001; Harrington et al., 2000). These long-stay residents are more likely to be involved in litigation activity. If there is a relationship between quality and litigation activity, it follows that staffing levels should affect the number of lawsuits brought against a nursing home. Lower staffing levels could mean poorer quality of care for residents. Facility-level outcomes such as development of preventable pressure sores (United States General Accounting Office, 1999), the total number of deficiencies cited against a nursing home during state quality surveys (Piecoro, Browning, Prince, Ranz, & Scutchfield, 2000), and the average severity of those deficiencies (Harrington & Carrillo, 1999) could indicate a poor-quality facility. Nursing homes that are consistently producing poor-care outcomes should expect to be exposed to higher numbers of lawsuits.
In addition to staffing considerations, other structural dimensions of the nursing home should have an impact on litigation activity. We specified these nursing home financial and size characteristics as (a) being a member of a multistate system or chain; (b) the percentage of Medicaid residents of total residents; (c) the number of nursing home beds; and (d) being a for-profit enterprise.
An aspect of litigation activity against nursing homes that remains an empirical mystery is the decision-making process used by lawyers and families to sue nursing homes. Factors that may encourage litigious activity are the resources that a nursing home has at its disposal and other structural variables. For example, attorneys may seek lawsuits against people and organizations that have the ability to pay the fines and claims against them. Accordingly, we expect that nursing homes that are part of large multistate systems or chains will be sued more often than smaller systems or independent nursing homes. The multistate organizations generally have access to system-level resources through which judgments can be paid. Larger nursing homes should have higher numbers of suits filed against them because they will have more resources available to pay judgments than smaller homes will. Less financially strong smaller nursing homes may not be able to pay the judgment against them and may not have sufficient insurance coverage, increasing the likelihood that they will declare bankruptcy or cease operations. Larger homes may also have higher numbers of residents that represent potentially more risk for lawsuits (Fiesta, 1997). At the same time, for-profit multifacility chains have a higher proportion of Medicaid residents, and Florida Medicaid paid 89% of per diem costs for nursing home care (Florida Policy Exchange Center on Aging, 2001). There is evidence that the quality of care in for-profit facilities is poorer than that found in not-for-profit settings (Aronson, Zinn, & Rosko, 1994; Spector, Selden, & Cohen, 1998). If quality is related to litigious activity, then it follows that for-profit nursing homes should be sued more than not-for-profit homes, whether they are independent or parts of systems.
The presence of liability insurance would seem at first glance to confound the deep-pockets hypothesis. However, not all liability insurance is (a) equal or (b) required in Florida during the time period of this study. Homes that were owned by national for-profit chains were generally self-insured. Facilities that had liability insurance that were in smaller chains or were independent generally had expensive policies with very high deductibles. This meant that the larger chains generally had the best insurance policies and were more likely not to be sued into bankruptcy as a result of one large judgment or settlement against the home.
Dependent Variable
The dependent variable in this analysis is the total number of lawsuits filed against a nursing home each year during the period from 1997 to 2001. The research team constructed this variable from Westlaw's Adverse Filings: Lawsuits database. The coverage within the database was limited to 30 nonrural counties in Florida. The records reflect lawsuits filed against the nursing home, including those filed because of malpractice, negligence, employee problems, or breach of contract. Many of these cases have additional named defendants. A home can be part of a chain, and the parent corporation can be listed as a defendant as well as the home's physical plant. In some cases, individuals are listed in the case document as defendants. Claims filed against the individual nursing home were included as a lawsuit in this count if the suit named the facility or an individual that worked in the facility as a defendant.
Control Variables
We used control variables in this analysis to account for the different acuity levels of the residents in the nursing homes, geographic impacts, and year effects. We controlled for the number of residents who required tube feeding, were bowel incontinent, and were newly catheterized per the total resident population in the nursing home. Residents who require tube feeding, are bowel incontinent, or require catheterization can indicate a higher acuity level of residents in the home compared with those homes with fewer residents with these characteristics (Aziz & Campbell-Taylor, 1999; Newman & Palmer, 1999). County effects could affect the results because counties have different court systems and experiences with nursing home litigation in Florida. We accounted for these effects through the use of dummy variables for each county. Hillsborough County served as the comparison county because of its history of high litigation activity, and we omitted it from the analysis. We controlled for year effects in the data by using dummy variables for each year. We omitted 1997 from the analysis because that year had the lowest litigation activity in our analysis. Table 1 lists the descriptive statistics for all of the variables included in the model. Table 2 lists the variables used in the models and how they were coded for analysis.
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Results |
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Results from the control-variables significant results confirm some of the trends shown in Figure 1. Each year in the model was significantly higher in litigation activity compared with 1997. The strength of these relationships almost mirrors the lawsuit activity trend lines. Being sued in the previous year significantly predicted additional or new litigation activity in the current year. None of the health-status-related control variables were significant in the analysis.
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Discussion |
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Our previous study found that the resource variables were explaining much of the variance in our model. Expanding the sample from 1 to 30 Florida counties removes the system and chain effects found in previous work and introduces ownership effects previously not found in Hillsborough County. The relationship between size and higher numbers of lawsuits is consistent with our previous work and continues to reflect the greater exposure that larger nursing homes have compared with smaller facilities with fewer residents. There are two possible explanations for the statistically weak relationship between ownership and higher litigation activity. The first is that for-profit facilities, as has been shown in the literature, provide poorer quality of care than not-for-profit facilities and expose themselves to higher numbers of lawsuits because of this. An alternative explanation is that because they are for profit, lawyers target these facilities because they have more resources available to pay judgments against them.
Another variation from our previous study is that quality measures are significant at the state level. High numbers of deficiencies appear to trigger greater litigation activity. There are two potential interpretations of this result. The first explanation is that these measures represent a minimum level of quality that, if not met, will lead to higher litigation activity against the home. Another explanation is that the legal community is aware of the nursing homes that have high numbers of survey deficiencies and target these homes because this information is available to the public. Which explanation is closer to the truth is the subject of further empirical analysis.
The data in this study provide insights about litigation activity against nursing homes in Florida. The number of homes in our study reflects the nonrural experience of facilities in Florida, but these results may not be general enough to be applied outside of the state. The robustness of our quality and resource explanatory variables represents the best that were available to this study, but they are not a perfect set. The reliability of staffing variables collected by OSCAR and during nursing home quality inspections has been questioned in national studies (Centers for Medicare and Medicaid Services, 2001). The litigation environment in Florida is such that good financial data about nursing homes are not released to researchers or the public in any meaningfully way except through Securities Exchange Commission reports for those homes and chains required to file those reports. Despite these limitations, what can be said is that (a) staffing and deficiency-related quality measures significantly affected litigation in Florida, (b) size and for-profit resource explanatory variables significantly affected litigation in Florida, and (c) the complete set of factors related to predicting lawsuit activity against nursing homes still remains obscure. It appears that decisions to sue nursing homes are driven neither by the specific clinical-outcome-related quality measures used in this analysis nor the targeting of multisystem chains with fewer Medicaid residents.
The implication for administrators, owners, and boards from these results, if taken at face value, is that meeting the CNA and RN long-stay estimated standards and meeting minimum quality standards as measured by the health survey are the main protections that a nursing home has against increased litigation. The implication for the nursing home industry is that increased litigation activity may be the cost of doing business in Florida if (a) the facility is for-profit owned and (b) it is a large nursing home. The implications for research are that we need to better understand in larger samples (a) the relationship between staffing and litigation activity in homes, (b) the relationship between deep financial pockets and increased lawsuits against facilities, (c) the relationship of lawsuits to the availability and affordability of liability insurance, and (d) the decision-making processes used by lawyers and families to sue nursing homes. For policy makers, the implications are less clear. Although causality cannot be demonstrated in this study, litigation may have the societally beneficial effect of helping to ensure that facilities meet minimum standards. However, the impact of other structural factors requires further inspection because this study did not examine whether for-profit and larger facilities are providing inferior care compared with not-for-profit or smaller facilities.
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Footnotes |
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2 Health Grades, Inc., Lakewood, CO.
3 Florida Policy Exchange Center on Aging, University of South Florida, Tampa.
4 Department of Health Services Administration, University of Florida, Gainesville.
Decision Editor: Linda S. Noelker, PhD
Received for publication February 27, 2003. Accepted for publication June 2, 2003.
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This article has been cited by other articles:
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  N. G. Castle Nursing Home Caregiver Staffing Levels and Quality of Care: A Literature Review Journal of Applied Gerontology, August 1, 2008; 27(4): 375 - 405. [Abstract] [PDF]
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