Expert Issues in Nursing Home Care Act Litigation

Written by: Andrew C. Corkery, Boyle Brasher, LLC, Belleville

With an aging population, more people are spending time in long-term care facilities, and as a result, there are more long-term care lawsuits. In Illinois, these claims are brought pursuant to the Illinois Nursing Home Care Act. 210 ILCS 45/1, et seq. The issues disputed in a Nursing Home Care Act case in Illinois are very similar to the issues that arise in a medical malpractice case, including standard of care, causation, and the existence of pre-existing conditions. These issues are critical to the determination of the value of the case. If the case is tried, expert testimony can be critical in how the jury resolves the case.

Under the Illinois Nursing Home Care Act, a resident or a resident’s representative can bring a claim for abuse or neglect suffered at a nursing home. 210 ILCS 45/3-603. Generally, abuse or neglect is determined by whether the nursing facility met the standard of care in its treatment of the resident.

As in medical malpractice cases, expert testimony in Nursing Home Care Act cases is of paramount importance. There are, however, cases where there is no need for expert testimony because the cases do not involve incidents arising out of professional activities. See Myers v. Heritage Enterprises, 354 Ill. App. 3d 241 (4th Dist. 2004). However, most nursing home cases involve some type of professional care from nurses and/or doctors.

Generally, the plaintiffs have a number of serious, long-standing medical illnesses. For purposes of liability, causation, and damages, the jury needs to understand the extent and impact of those conditions. Expert testimony can help to clarify the standard of care of nurses and doctors and thus can be critical to the jury’s understanding of the matter and ultimately their decisions for the outcome of the litigation.

Nursing home cases fall into several major categories including falls, decubitus ulcers, malnutrition, and physical abuse by a staff member or other resident. Cases involving falls, decubitus ulcers and malnutrition are the most common.

Resident falls give rise to most long-term care litigation. One study found that an average of 43 percent of residents in long-term care facilities have at least one fall every year at the nursing home. James T. O’Reilly & Katherine Van Tassel, Litigating the Nursing Home Case, at 84 (2d Ed. 2006) Citing L.Z. Rubenstein, et al., The Epidemiology of Falls and Syncope, 18 Clinics in Geriatric Medicine, p. 141-58 (2002). Understanding the resident’s overall medical condition is critical in cases involving falls. The jury needs to understand why the resident fell. An expert needs to be able to inform the jury of all potential medical factors which could contribute to a fall. Also, a jury needs to understand that not all falls are preventable. This can be explained through expert testimony and is necessary to give context to the claim.

Cases involving decubitus ulcers, also known as pressure ulcers) are also quite common. According to the National Center for Health Statistics, approximately 11 percent of nursing home residents have a pressure ulcer of any stage in any one year. Litigating the Nursing Home Case, Pg. 61. Citing E. Park-Lee, et al., Pressure Ulcers Among the Nursing Home Residents: United States National Center for Health Statistics (2009). With cases involving decubitus ulcers, the chronology of the development of a decubitus ulcer can be explained utilizing a resident’s prior medical history. It is necessary to also explain why certain decubitus ulcers are unavoidable. For this reason, physician and nursing expert opinion testimony is critical to the defense of your case.

In cases involving malnutrition, you need an expert to explain the effects of malnutrition and alternative causes of malnutrition. An expert will need to explain how a resident is fed and to explain the nutritional value of the food being offered and consumed by the resident. Weight loss that may appear alarming at an initial glance may be explained by other physical issues the resident has.

Cases involving abuse by an employee or fellow resident are less frequent, and the expert needs differ from those of most nursing home cases. Specifically, expert subject matter in these types of cases often extends to issues such as security and employment screening. Such cases may require a different approach than what is discussed in this article.

Legal Issues

When assessing what type of expert the case calls for, you need to be familiar with the foundational requirements for medical expert testimony; cases often involve overlapping responsibilities of the physician and the nurses. You will need to identify the correct person to testify to a particular topic. For an expert witness to testify on the standard of care in a Nursing Home Care Act case, the foundational requirements that must be satisfied are that 1) the healthcare expert witness must be a licensed member of medicine upon which the expert proposes to testify and 2) the expert must be familiar with the methods, procedures, and treatments ordinarily observed by other healthcare providers in either the defendant’s community or a similar community. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 115 (2004). In Sullivan, the Illinois Supreme Court held that a physician specializing in internal medicine was not competent to testify regarding the standard of care for a nursing profession and the subject nurse’s deviation therefrom. Sullivan, 209 Ill. 2d at 119. Thus, if you do not have a nurse expert, you will often not be able to offer testimony on the nursing standard of care unless you can proffer testimony from a facility employee. Be wary of the standard of care at issue in your case—physician or nursing, or both.

In Grauer v. Clare Oaks, a nurse was allowed to testify as to the purpose of the drug Coumadin and how it reduces the risk in patients with atrial fibrillation. Grauer v. Clare Oaks, 2019 IL App (1st) 180835 ¶¶ 61-71. She was allowed to testify regarding how lab reports are read and what information is included in such reports. Grauer, 2019 IL App (1st) 180835 ¶ 66. The court allowed her to testify that not receiving the ordered amount of Coumadin increased the patient’s risk of a stroke. Id. ¶ 19. She was also allowed to testify regarding the Illinois Administrative Code that governs resident care policies. Id. ¶ 19. The court noted that there is no bright line rule that prohibits testimony concerning medical matters by healthcare witnesses who are not licensed physicians. Id. ¶ 65. See Valiulis v. Scheffels, 191 Ill. App. 3d 775, 786 (2d Dist. 1989).

Also, in Grauer, there was the issue of whether a doctor was required to respond to a nurse’s request with an order. The doctor testified he would expect an order to be given. The court did not find that the doctor was testifying as to the standard of care of the nurse. The court found his testimony was to the doctor’s standard of care, not the nursing standard of care. It should be noted that there is a limited exception for the rule barring a physician from testifying to the nursing standard of care when the allegations of negligence at issue do not concern the nursing procedure, but instead involve what a nurse is required to communicate to a physician. See Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 906 (2d Dist. 1997). The Grauer case illustrates the complexity of the standard of care issues you will encounter.

You will also need to prepare for objections to discussing pre-existing physical or mental conditions. Generally, any pre-existing condition of the plaintiff cannot be introduced unless there is proof the condition is causally related to the injuries at issue. Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 53 (2000). Credible medical evidence is generally provided by an expert. In Voykin, there was no expert testimony to introduce evidence the pre-existing injury. Voykin, 192 Ill. 2d at 60; see also Johnson v. Baily, 2012 Ill. App. (3d) 110016 ¶¶ 21-22. Expert testimony will, in most cases, provide the best chance of overcoming objections.

An attorney must always keep in mind the disclosure requirements of lay, independent and expert witnesses set forth in Ill. Sup. Ct. R. 213. Special care must be given to the content of the disclosures of any retained experts. Should plaintiff’s counsel opt not to depose them, your expert’s testimony will be limited to your disclosure, which will need to state everything your expert will testify to at trial.

One way in which Nursing Home Care Act cases differ from medical malpractice cases is that a Section 2-622 supporting affidavit is not required. 735 ILCS 5/2-622; see also Eads v. Heritage Enterprises, 204 Ill. 2d 92, 99 (2003). Where there are additional claims plead in addition to the Nursing Home Care Act claim, an affidavit is required for those claims only.

Experts in Long-Term Care Act Cases

Physician Expert

In most Nursing Home Care Act cases, you will need a physician expert. Unlike a medical malpractice case, the physician generally will not testify to standard of care issues. As discussed above, you need an expert to explain the plaintiff’s pre-existing conditions and how those conditions can contribute to the resident’s current condition. Further, you will need the physician expert to testify as to the issue of causation. Even in cases involving falls, causation is not always clear. Finally, the physician expert can discuss issues with respect to damages. The physician expert can explain what the plaintiff’s current condition is and how the fall or other incident impacted their condition. In many cases, there is an argument that the fall or other incident had little or no effect on the resident’s outcome.

The nature of the claims made will determine what type of physician expert is required to defend your case. In most cases, a geriatrician is a good choice. A geriatrician is familiar with the issues facing elderly persons and the health conditions involved. In other cases, you made need a different type of physician expert. For example, in cases involving falls, you may need an orthopedic surgeon or in a medication error case you may need a pharmacology expert. Depending on the alleged injury, you may have to couple a geriatrician with a specialist. You have to assess on a case-by-case basis what are the critical medical issues to your defense.

Any physician expert you retain should be familiar with nursing home care and related issues. It is possible that the plaintiff’s attorney will open the door at trial with your physician expert on standard of care issues, in which case you may be able to elicit favorable testimony on redirect.

In long term care cases you may also need to explain the facility’s practices and procedures. In order to testify, a doctor must have experience as a medical nursing home director and be involved in the making of nursing home facility policy and procedure.

A related issue is the testimony of the medical director of the facility. In many cases, the medical director is not an employee of the facility. Thus, if you are representing the facility, you are not representing the medical director. This raises a very complicated Petrillo issue. If the medical director is not an employee, you would not be liable for his acts. Under Petrillo, defense counsel can generally have contact with any person who is an employee or whose liability can be imposed on the facility. See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 610 (1st Dist. 1986) Under Petrillo, you cannot have contact with a non-employee medical director. While no reported decisions have specifically dealt with the application of Petrillo to this issue; it is certainly one to be aware of when defending these claims.

In Nursing Home Care Act cases, the medical director is usually deposed. In many cases, the medical director’s testimony may be very helpful to your case, even though you cannot prepare the medical director or speak with them beforehand. Pursuant to Ill. Sup. Ct. R. 213, the medical director needs to be disclosed as a Rule 213(f)(2) independent expert witness.

In cases where the medical director or a treating physician is sued separately, it is often a good idea to meet with their counsel so you can coordinate your expert strategy. An often-employed tactic by the plaintiff’s counsel will be to depose the co-defendant physician and attempt to pit one defendant against another. This scenario can obviously be very damaging to the defense.

In preparing your expert strategy, do not overlook the importance of treating physicians. Many times, treating physician can provide valuable testimony regarding a resident’s care, condition, and prognosis. You should investigate the physicians who treated the resident before the incident and those that treated the resident after the incident. Often the testimony of a treating physician is also more persuasive than that of a retained expert. Treating physicians should be disclosed as independent witnesses pursuant to Ill. Sup. Ct. R. 213(f)(2).

Nurse Expert

In most cases, the actions of the nursing staff are at issue. You will need a nurse expert to address the actions of the nursing staff and to state whether the nursing staff met the nursing standard of care. You will want to engage a nursing expert with substantial experience in the long-term care setting. Nurses can provide real-world examples and an understanding of the challenges experienced in caring for long-term care residents. The nurse expert will also need to be familiar with all of the plaintiff’s medical conditions. The expert is often in the best position to assess if the resident’s charts are complete, or if materials are missing. Such early intervention is invaluable, and can allow you to work with your client and locate any missing charts or records before their absence rises to the level of discovery motion practice.

Ideally, you will consult with a nurse expert before your facility nurses are deposed. If so, your nurse expert will alert you to potential problems you may not see. Also, you will be better able to build a consistent strategy throughout.

Your facility nurses can also be experts. They can testify to standard of care and nursing practices. Often these witnesses can be the most effective for the defense. The same amount of effort and detail that goes into disclosing a physician’s report must be used in preparing a nurse’s report in Nursing Home Care Act cases. As discussed above, there are issues that a doctor will not be able to testify to with respect to the actions of the nursing staff. The nurse expert will need to be able to address all of these issues. Thus, you will need be clear that the expert nurse is properly disclosed on all topics and the nurse’s opinions are fully set forth.

Other Types of Experts

In Nursing Home Care Act cases where the mechanics of the fall are in dispute, you may consider using a biomechanical expert. A biomechanical expert can explain how the resident was impacted by the external and internal factors of their body and environment, and the expert can determine and explain the causation of the resident’s injuries. In cases involving abuse, you may need different types of experts, such as psychiatrists and rehabilitation experts to explain the additional trauma and rehabilitation necessary for the abused resident and how the abuse affects the resident’s overall health and well-being. In Nursing Home Care Act cases, the residents are usually no longer working. As such, economic or vocational experts are normally not required. Unlike in medical malpractice cases, you also will not need an expert to determine economic damages.

Conclusion

In Nursing Home Care Act claims, expert testimony is an integral part of every defense. Consideration for physician, nursing and other experts, along with the attendant subject matter of the opinions should be examined at the outset of the case so a cohesive defense strategy can be formulated.

About the Author

Andrew C. Corkery is a partner at Boyle Brasher LLC in Belleville, Illinois. His practice concentrates on defense of transportation and medical malpractice cases. Mr. Corkery is a cum laude graduate of St. Louis University School of Law. He serves on the IDC Amicus committee.