Finally, nursing homes may cynically, and unfortunately, accurately argue
that very few nursing homes in North Carolina provide staffing at RUG
staff time expectations. Therefore, how could this be evidence of the
standard of care? It takes the same amount of time to change a diaper
in Arizona as it does in North Carolina. This is not complex medical treatment,
but instead is just minutes and math. Regardless, the standard of care
is not simply the mean or average, but instead what is reasonable under
the circumstances. One example of such a concept, "testimony of several
physicians that transfer based on the indigency of an emergency patient
was a common practice among private hospitals in the Phoenix area in 1976
is, therefore, only probative of a negligent custom."[i] Most of the cases differentiating negligent custom from standard of care
stem from the T.J. Hooper case.
[ii] In a products liability case, the Arizona Court stated,
"The malpractice requirement that plaintiff show the details of conduct
practiced by others in defendant's profession is not some special
favor which the law gives to professionals who may be sued by their clients.
It is, instead, a method of holding such defendants to an even higher
standard of care than that of an ordinary, prudent person. Prosser, supra
§ 32 at 185. Such a technique has not been applied in commercial
settings, probably because the danger of allowing a commercial group to
set its own standard of what is reasonable is not offset by professional
obligations which tend to prevent the group from setting standards at
a low level in order to accommodate other interests. Thus, it is the general
law that industries are not permitted to establish their own standard
of conduct because they may be influenced by motives of saving "time,
effort or money." Prosser, supra § 33 at 194. Long ago, Judge
Learned Hand expressed the rule in a case in which the defendant claimed
that it had not been negligent in failing to put Mr. Marconi's invention
on its tugboats: 'Is it then a final answer that the business had
not yet generally adopted receiving sets? ... Indeed in most cases reasonable
prudence is in fact common prudence; but strictly it is never its measure;
a whole calling may have unduly lagged in the adoption of new and available
devices. It never may set its own tests, however persuasive be its usages.
Courts must in the end say what is required; there are precautions so
imperative that even their universal disregard will not excuse their omission.'"[iii]
For staffing patterns, go to the CMS website:
http://www.cms.gov/CertificationandComplianc/13_FSQRS.asp#TopOfPage and download the "New! Expected and Adjusted Staff Time Values Data
Set- Updated November 2011". Look down the list of nursing homes
and compare their actual staffing with expected staffing. Some private
pay and smaller nursing homes exceed expected staffing. On the other hand,
look at Britthaven, Beverly, Brian Center and other large chains'
staffing numbers. The type of facility makes a big difference as studies
show that higher profits are associated with lower staffing levels.[iv] The money has to go somewhere, and most of the for-profit chains want
it to go to them. A desire for profit is fine and is simple capitalism.
However, not when someone takes $100 in payment for services then only
spends $50 of what was promised.
To summarize, use the North Carolina standard that requires enough staff
to provide ADLs and personal care. Don't accept the 2.1 nhppd standard
from the defense. Use caution with the RUG expected staffing arguments,
as this is a work in progress that I have argued but not actually attempted
to get into evidence yet. At a minimum explore the RUG staff expectations
with experts and defense witnesses and compare actual reported staffing
to other nursing homes in the community. Aside from litigation, our clients,
or the case itself, we need more attention on nursing home staffing. Insufficient
staffing is the number one cause of
nursing home abuse, and we must stop it.
UPDATE- I have starting reviewing all of the local Greensboro area nursing
homes. If you want to see a rank of local Guilford County nursing homes
then click on
Greensboro Area Nursing Home Ranking.
[i] Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605
(1984), citing T. J. Hooper.
[ii] In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) (Thanks listserve friends)
[iii] Rossell v. Volkswagen of America, 147 Ariz. 160, 709 P.2d 517 (1985),
quoting, T.J. Hooper.
"Nursing home spending, staffing and turnover." Bita Kash, Nicholas Castle and Charles Phillips. Health Care Management
Rev. (July-September 2007)