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    • 1.01 — Introduction 

    The most important decision made on a recurrent basis by the personal injury practitioner is the decision to accept a case and invest time, experience and money towards its resolution. The lawyer prone to accept a number of speculative or marginal cases is destined to drain his or her office of the substantial energy and resources needed to pursue meritorious cases. Perhaps nowhere is this more true than in the evaluation of cases arising out of the alleged negligent conduct of health care professionals and long term care institutions. The cost of development, in terms of time and money, is so demanding that the initial determination as to whether a case is meritorious is of primary importance. 

     As a general rule, the screening of this type of case involves two fundamental decisions: 1) Is the evidence sufficiently aggravating to support a substantial damage award? and 2) Can the resident’s injury be causally linked to a breach of duty on the part of defendant? 

    A proper evaluation of the facts and understanding of the complex issues involved is essential to the drafting of pleadings and discovery in the nursing home case. Accordingly as a predicate to pleading and discovery strategies, the following topics will be considered: 1) common evaluation concerns; 2) causation problems; 3)key damage elements and appraisal questions; 4) comparative verdicts and settlements; and 5) factors influencing the size of a verdict or settlement. This discussion is followed by an examination of: 1) the causes of action that are generally available to plaintiff in a nursing home case; and 2) the pleadings and initial discovery in such case.

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    Implications of Increased Autonomy

    Accelerated Accountability 

    Why is this trend particularly relevant to the gerontological nurse? Nowhere are the factors that precipitated the emergence of legal responsibility and independent liability for the professional nurse more pronounced than in the discipline of gerontological nursing. As a consequence, a climate ripe for litigation presently surrounds the care of the geriatric patient. 

    This climate has been substantially influenced by a successive floor of profoundly disturbing exposes, studies, and investigations dealing with the topic of inadequate care in America’s long-term care facilities. Since the first federal study of nursing quality in 1956 revealed that care was “universally poor,”13 a sustained epidemic of widespread neglect, recurrent physical abuse, and “abysmally poor care”14 has been chronicled in America’s long-term care institutions.15 Typical of the voluminous findings are those made public in 1974 by the Senate Special Committee on Aging, 93rd Congress, 2nd Session. Following a 15-year study, the committee concluded that at least half of the nation’s nursing homes had one or more serious, life-threatening conditions and that residents frequently

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    encountered abuse and physical mistreatment including negligent and intentional actions by nursing staff, which led to injury or death.16 

    Unfortunately, current studies establish that the problems identified in the past continue to exist. This reality is perhaps best captured by the Institute of Medicine report published in 1986, which issued the following finding: 

    Today, nursing homes can be found in every state that provide seriously inadequate quality of care. In many government-certified nursing homes, individuals who are admitted receive very inadequate-sometimes shockingly deficient-care that is likely to hasten the deterioration of their physical, mental and emotional health.15 

    Such reports have caused long-term care facilities to become symbols of abandonment, isolation, and neglect; galvanized public concern for the quality of nursing care provided the aged; and increased the likelihood that consumers, in cases where elder malfeasance is suspected, will seek the advice or legal assistance of an attorney. Awakened to the effects of “nursigenic”17 behavior by years of publicity, both public and private, attorneys have begun to pay careful attention to allegations of substandard care and devote substantial thought to theories of liability. The result of such heightened sensitivity has led to a burgeoning number of suits filed on behalf of nursing home residents and their families for violations of governmental nursing regulations and professional standards.18 

    In this atmosphere, a second factor relevant to the legal risks of the gerontological nurse becomes evident – the enhanced vulnerability of aged individuals to iatrogenic and nursigenic behavior. Aging is typified by a decreased capacity to respond to stress. Whereas a mature adult, in most cases is resilient enough to enter a provider facility, suffer the vicissitudes of care, and then leave in an improved condition, the disabled and dependent elderly patient is less able physically to cope with or adapt to nursing care that deviates from professionally recognized standards.19 Given this reality, it is hardly surprising that the magnified vulnerability of an elderly patient to problems induced by the inadvertent, indifferent, or negligent conduct of a professional nurse is directly related to an escalated potential for legal scrutiny. 

    Further portending the likelihood of expanded liability for the gerontological nurse is a third and final factor. This factor consists of five circumstances relevant to the practice of nursing in a long-term care setting: 

    1. The marked absence of both leadership and often interest in long-term care facilities by medical professionals; 
    2. The critical role that professional nurses have assumed in the initiation of care programs and management for geriatric patients with chronic health problems and superimposed acute illness; 
    3. The emphasis placed by extensive state and federal nursing home regulations (which seek to define the level of care expected by the government) upon compliance with professional nursing standards and adherence to scientific nursing principles; 
    4. The development of specialty standards that expand upon the generic standards promulgated by the American Nurses’ Association and describe

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    the minimum level of acceptable performance in the specialty area of gerontological nursing;4 and 

    1. The frequent number (comparatively speaking)20 of nursing home inspections and surveys conducted by government agencies to assure compliance with the above regulations and professional standards incorporated therein. 

    Operating synergistically to influence the probability of legal intervention, these circumstances not only underscore the importance of the gerontological nurse’s professional and legal responsibilities, but also created a setting that yields bountiful amounts of quality assurance data and is potentially pregnant with pertinent legal fact. Moreover, when the emphasis on professionalization and the abundance of available proof is combined with the factors discussed above, a litigious environment, increasingly capable of supporting a mushrooming number of lawsuits, evolves. 

    The Dilemma 

    Having completed an excursion into those factors accelerating the gerontological nurse’s risk for liability, the final question considered by this article is: How should the gerontological nurse (and for that matter the nursing profession as a whole) respond to the emerging nursing malpractice trend? Certainly one response that practitioners might consider is to treat this escalation of legal scrutiny as a threat to professional honor and an encroachment upon nursing action that can only be halted by the erection of protective, impenetrable walls, designed to mystify “outsiders” who seek to evaluate quality. 

    Charges of recurrent patient neglect and abandonment on the part of nursing home and administrative staff recently evoked this very response from a nursing expert2l in a criminal trial in the state of Texas. After months of testimony by nursing personnel (registered nurses, licensed vocational nurses, nurses aides, and other staff) as well as visitors, relatives of residents, inspectors, and numerous nursing and medical experts had revealed a total and prolonged breakdown of the nursing process; a continual and critical shortage of staff and supplies; and a habitual and extensive practice of falsifying clinical records, the nursing expert (referred to above) was called as a witness for the defense. Adamantly refusing to consider the voluminous eyewitness testimony described previously (while at the same time dismissing as meaningless a proliferation of falsified record entries such as documentation indicating that 24 hours after the body of a patient had been removed to a funeral home, medications were still being administered to the corpse), the defense expert absolved the nursing profession of all wrongdoing. 

    Further opining ??? that breakdowns, such as the failure of nurses (for 40 days) to question an order that called for a 600-calorie diet to be administered to an undernourished resident, were trivial and acceptable, the defense expert steadfastly maintained that care provided was “within nursing norms, probably better.” Finally and most important, outraged that the name of nursing had been besmirched by these charged, the nurse for the defense declared that “it was impossible [for her] to discuss the effects of nursigenic behavior because [she] could not possibly conceive of a nurse neglecting or abandoning a patient.”

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    The loud and discordant notes sounded by these words are significant not because of their impact on the aforementioned case or because the opinions enunciated opposed those of nursing experts called by the state, but because these views, no matter how well intentioned, exemplify a rather defensive and visionless attitude, which stubbornly refuses to acknowledge the existence of deviant and substandard conduct within the ranks of nursing and thereby willfully blinds itself to reality. In a society that has become extremely cognizant of the scars left by inadequate care, the manifestation of such an attitude is as detrimental to the nursing profession as conduct violative of professional standards. Not only does it risk the credibility of the profession and the faith of the public, but it also tarnishes the image projected by both the American Nurses’ Association and state licensure boards that a nurse is first and foremost a patient advocate. 

    Moreover, this position calls into question the will of nursing to examine and solve the myriad of quality assurance problems confronting consumers and raises an ethical issue of the highest priority – does the nursing profession, in its continuing struggle to receive the recognition and dignity it deserves, owe primary allegiance to this cause or to its patients? I hope that by asking the question I have answered it. Nursing must never become so preoccupied with the advancement of its own prestige and power that it forgets the basic premise upon which its professional status depends – public protection. Nurses must realize when this foundation vanishes, so does the need for their profession. 

    Instead of reacting as if this recent upsurge in legal accountability constitutes a doomsday for the nursing profession (activated by a motley crew of ill-informed outsiders who will, if permitted, permanently stain the honor of nursing and dash all hopes of an expanded healthcare role), I hope the profession of nursing will consider another approach – an approach that treats the law not as an invading enemy but as a powerful ally, capable of improving judgment and extending the dimensions of nursing responsibility. 

    The first step that must be taken in this regard is for practitioners to appreciate at the outset the, ability of the law to limit professional practice, control nursing actions, penalize imprudent conduct, and elevate the status of nursing by redefining provider boundaries and expanding through case precedent the role of the professional nurse. It must further be realized that the legal framework presently in place is subservient to neither hospital nor nursing home policy, doctors’ orders, nor physician or colleague direction. Nurses must understand that no more authoritative reference exists than the law. Moreover, in situations involving competing interest, the law takes precedence even though it may run counter to institutional policy, orders of a physician, or professional tradition. 

    Once the capability of the law to extend or limit nursing action is accepted, nursing then needs to approach the study of this discipline with the same conviction and purpose evidence in the study of physical, biological, and psychological processes related to nursing theory.5 Inasmuch as the hallmark of the professional nurse is informed judgment resulting from synthesis of ideas, interdisciplinary principles, and constructs, practitioners should expand their knowledge base to include an understanding of legal precedent and principles. In determining, in a given situation, whether to act or withhold actions, they should rely upon the law as a supportive science, automatically integrating into the decisional process an appraisal of all legal variables.

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    Obviously, the development of this knowledge base will not occur overnight. However, if the law is to become an integral part of the nurse’s thinking process, and a significant dimension of the nursing process, an aggressive educational program must be implemented. Until all professional curricula and continuing education programs recognize the law as an essential component of nursing practice, the positive force of the law is missing from the decision-making process and both nurse and patient are the losers.5 

    Once these educational objectives have ripened into reality, a legally aware nurse will emerge capable of operating safely and securely within the healthcare field, and able to advise other providers how to diminish the risk of legal intervention. Armed with this knowledge, nurses can not only exert a positive influence upon the quality of provider care, but also fill the large void existing between the legal and healthcare communities and, in so doing, further expand the role and autonomy of the professional nurse. 


    As nursing has crossed the professional malpractice threshold and journeyed into the land of legal accountability, it has been confronted with an ethical issue of the highest priority: How should practitioners respond to the growing scrutiny of the legal profession? It has been the goal of this article to bring into sharp focus the escalating relevancy of this question as well as the far-reaching consequences of the decision to be made. It is this writer’s belief that the best interest of the public and nursing will be served not by resisting the upsurging tide of consumer and attorney awareness, but rather by embracing the principles of the law and incorporating them into the interdisciplinary decisional process, which is the hallmark of the professional nurse. In making this suggestion the author seeks not to substitute his perception of the world for that of the reader, but rather to provoke thought on the part of those within the nursing profession about different approaches available to them and the effect the selected response will ultimately have on the practice of nursing. 


    1 . Kravis G: Medical Malpractice. Thoughts and Perspective, Vol. 19 of Trial pp 50-55, (May 1983). 

    1. Perdue: The Law of Texas Medical Malpractice 22 Hous. L. Rev 1.285 (2d ed, 1985) at 1-46. 
    2. See eg. Homicide: Failure to Provide Medical or Surgical Attention, 100 American Law Reports Annotated 2d 483 -519. 
    3. See a Revolution in White – New Approaches in Treating Nurses as Professionals. 30 VandL Rev 839-879; also see note 2. 
    4. See Murchingson I, Nichols T, Hanson R: Legal Accountability in the Nursing Process 1, 185 (1978).

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    1. Nursing Malpractice Litigation: Toward Better Patient Care, 18 Trial 78-81 (Oct. 1982). 
    2. Bullough: The Current Phase in the development of nurse practice acts. 28 St. Louis L Rev: 365-395. 
    3. Extending the Scope of Nursing Practice: A Report of the Secretary’s Committee to Study Extended Roles for Nurses 4-6 See US Dept of Health, Education, and Welfare publication Government Printing Office, 1971. Also see note 7, where according to Bullough, “medical specialization has resulted in a shortage of medical providers who can treat common episodic and chronic illnesses at a price that ordinary people, the government, and third party payers can afford.” 
    4. Scholin M: The Use of Nurses as Expert Witnesses, 19 Houston L Rev 555-578. 10. Walker D: Nursing 1980: New Responsibility, New Liability, 16 Trial 43-47. 
    5. See generally, Fiesta J: The Law and Liability: A Guide for Nurses 1, note 4; and see specifically, Lundsford v. Board of Nurse Examiners 648 SW2d 391 (Tx Civ App-Austin 1983 no writ); Childs v. Greenville Hospital Authority 479 SW2d 399 (Tex Civ App-Texarkana 1972, writ ref d n re), and State v Autumn Hills Convalescent Center, Inc. et al; Cause No. 84-CR-0727-28,29,30,31, and 32, 212th District Court, Galveston County, Texas. 
    6. The demise of the “captain of the ship” doctrine has forced nurses to become more responsible for their own acts. Mavullt v. Elshire 27 Cal App 3d 180, 187, 103 Cal Rptr 461, 465 (Dist Ct. App. 1972) Sprager v. Worley Hosp Inc. 547 SW2d 582 (Tex 1977). In the past nurses were viewed as falling under the umbrella of the physician, who was legally regarded as the “captain of the ship.” Presently the courts have begun to recognize the nonliability of the physician for a nurse’s negligent acts or omissions. See note 10. 
    7. U. S. Senate 1957; Recommendations of the Commission of Chronic Illness on the Care of the Long-term Patient, in Studies of the Aged and Aging, vol.2 Committee on Labor and Public Welfare, U.S. Government Printing Office, 1956. 
    8. Butler P: Nursing Home Quality of Care Enforcement. Clearinghouse Review (special issue) October 1980. 
    9. Improving the Quality of Care in Nursing Homes, Appendix A, 239-253. National Academy of Science, Institute of Medicine, Committee on Nursing Home Regulation, 1986.

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    1. Subcommittee on Long-Term Care of the Aged. Senate Special Committee on Aging, Nursing Home Care in the United States; Failure in Public Policy; No. 93-1420, 93rd Congress, 2nd Session (1974). 
    2. For a proposed definition see: Miller M: latrogenic and Nursigenic effects of prolonged immobilization of the ill aged, J AM Geriatr Soc 1975; 23, pp. 360-369. “…In a variety of dictionary and word sources, terminology identifying a nurse induced abnormal state in a patient by inadvertent or erroneous treatment is singularly lacking. In the absence of a suitable word, we proposed the term ‘nursigenic,’ derived from the French ‘nourrice’ for nurse.” 
    3. Nemore P: Protecting Nursing Home Residents, 21 Trial 1985: 56, and Enforcing Compliance with Federal Standards, in Institute of Medicine Report, 56 (1985), chapter 5, see note 15. 
    4. Kune R., Ouslander J., Abrass I.: Essentials of Clinical Geriatrics, 1984 McGraw Hill Book Co. 
    5. The nursing home industry is more frequently surveyed than the hospital industry and other health institutions. This should not betaken to mean that the frequency of inspection is sufficient to assure compliance with regulations. 
    6. This expert was not an eyewitness to any of the events that transpired, but rather based her opinions on a review of clinical records. She was presented by the defense as a leader and staunch advocate of nursing. 

    About reference style 

    Legal references are cited according to “A Uniform System of Citation” 14 ed. 1986 published by Columbia, Yale, Harvard and The University of Pennsylvania Law Review Association. 

    About the author 

    David T. Marks is assistant attorney general of the Consumer Protection Division in Austin, Texas.

    Rape Leads to Reform

    Dorothy Cooper was a child of the Great Depression, one of eight children who went to work in the West Texas cotton fields after their father lost his railroad job.
    Her schooling was sporadic, her life difficult. But Ms. Cooper was a survivor.
    “She viewed her life as having been a hard one, but she was proud of learning to survive without welfare and knowing how to live on nothing,” said psychologist Cynthia Martin Cannici.
    Despite Ms. Cooper’s independence, age and infirmity eventually sent the childless woman, who had outlived five husbands, to a Midland nursing home.
    There, in 1993, the partially paralyzed 65-yearold was raped by a nurse’s aide. She died the next year, one of thousands of people who finish their lives in long term care facilities, unnoticed by the outside world.
    Four years later, she has found a niche in history: Prodded by a lawsuit, the Denton company that owns the nursing home where Ms. Cooper was assaulted has agreed to set up a system named for her that is designed to prevent the hiring of known abusers.

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    CASE TYPE: negligence, fraud CASE: Holder v. Beverly Enterprises Texas Inc., 95437 (Dist. Ct., Rusk Co., Texas)
    PLAINTIFF’S ATTORNEYS: David T. Marks, of Houston’s The Marks Firm: David Hill, of Henderson, Texas’ Wellborn, Houston, Adkinson, Mann, Sadler & Hill; and Timothy Lee, of Houston’s Ware, Snow, Fogel, Jackson & Greene
    DEFENSE ATTORNEYS: Deanna Smith and Nathan Rymers, of Houston’s Carlson & Smith
    JURY VERDICT: $83 million
    RUTH WAITES was 83 years old when she began living at the Borger Nursing Center, in Borger, Texas, in 1993. At the time, said plaintiffs counsel David T. Marks, Ms. Waites was mentally alert, but largely unable to walk and a diabetic. While at the Borger home, he said, Ms. Waites became severely dehydrated and was hospitalized. After she returned to the center, she developed pressure sores and was hospitalized again. These bed sores were so severe, he said, that hospital staff “cut out hunks of rotten tissue,” from her body. Ms. Waites died Oct. 29, 1994; the cause of death, Mr. Marks said, was “infected pressure sores.”

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    Resident with violent history beat roommate’s face to a pulp

    FACTS & ALLEGATIONS On Sunday, Sept. 28, 1997, plaintiff’s decedent Tranquilino Mendoza, then an 81-year-old dementia sufferer who resided in the general population of Comanche Trail Nursing Center in Big Spring was attacked by his roommate, Geronimo Vela, resulting in serious, disfiguring injuries to his head and face. 

    On behalf of her father, Rosamarie Paradez, sued Comanche Trail owners Summit Care Corp. and Summit Care Texas L.P.; Summit’s regional vice president, Robert Gundling; and nursing home administrator Sylvia Casas, for negligence and, against the two business entities, malice. After Mendoza died of unrelated causes on Dec. 20, 2000, Paradez was appointed administrator of the estate and the caption was restyled accordingly.

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    Severe expense reductions by large corporate nursing home chain (Senior Living Properties) leads to horrific bedsore and systemic neglect.

    “Plaintiffs’ decedent Dud Grover Bailey, 90, resided at Electra Healthcare Center from February 1992 until his death on Oct. 14, 2000. While there, his diagnoses included organic brain syndrome, neurogenic bladder with suprapubic catheter after prostate-removal, multiple strokes, myocardial infarction, hypotension, iron deficiency anemia, dementia with psychosis, skin breakdown, constipation and urinary tract infections.

    Alleging that Bailey suffered injuries and died as the result of the facility’s neglect, Bailey’s estate and his adult daughter sued Senior Living Properties LLC, of Carmel, Ind., operating as Electra Healthcare Center; SLP Management Inc., Complete Care Services L.P., of Horsham, Pa., and Complete Care Services of Texas Inc., one or more of which allegedly staffed and managed the facility; administrator Robert D. Caird; nursing director Cathryn J. Orona; Sharon A. Hohenstein; and Susan Crume. The plaintiffs alleged that Bailey was completely dependent on the facility for his daily care, and that the defendants failed to follow their own policies and procedures, staff the nursing department adequately, notify his attending physician of significant changes, follow physician orders, and care for Bailey’s needs timely and appropriately. These failures resulted from understaffing at the facility generally, of which the corporate defendants were aware, the plaintiffs alleged.”

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