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.
[iv] "Nursing home spending, staffing and turnover." Bita Kash, Nicholas Castle and Charles Phillips. Health Care Management Rev. (July-September 2007)