How Nursing Homes Are Struggling to Protect the Most Vulnerable Members of Society
Attorneys Marc Lopez and Kent Winingham recently discussed the typical hazards of nursing home life, how almost all health risks are exacerbated by a pandemic, and why the State isn’t being quite as transparent as it could be regarding our most at-risk population. What follows is a lightly edited transcript of their conversation.
Marc Lopez
This is attorney Marc Lopez, and I am with my good friend Kent Winingham. Kent, say good morning.
Kent Winingham
Good morning.
Marc Lopez
We’re recording this on May 5. Happy Cinco de Mayo.
Kent Winingham
That’s right. Wow.
Marc Lopez
I’ve been following the news along with most people, and it seems that the most affected individuals with the coronavirus are people who are residing at nursing homes or long-term care facilities. One of the people that I wanted to talk to was my good friend Kent. Kent has done a lot of litigation fighting for people who have been injured in nursing homes. He’s not a medical doctor, but when you work on cases, you get to know the subject matter. I just thought I’d talk to him a little bit. At some point, he and I decided we’d record this interview so others could listen. Kent, that’s the background. Give us a little background on you.
Kent Winingham
Sure. Yeah. I went to law school in Chicago, and I practiced in Chicago for a few years predominantly in the area of nursing home negligence and medical malpractice. That was really all I did for two or three years before moving back to Indianapolis and joining Wilson Kehoe Winingham where I now do . . . about half of my practice is general personal injury, and then the other half is medical malpractice and nursing home negligence. Nursing home negligence falls within the area of medical malpractice. It’s a subset of it, so that’s about half of my practice I would say.
Marc Lopez
Kent, that’s a great question, and I don’t know the answer. It sounds like you answered that. Is nursing home negligence always medical malpractice?
Kent Winingham
That’s a good question. It depends on who the facility is. If the facility is what’s considered a qualified healthcare provider—meaning they’ve opted in with Indiana’s Department of Insurance—then your act is most likely going to fall under the Medical Malpractice Act. It depends on the actions as well as what is that issue in terms of the actual conduct, but some of these nursing homes—really, most of them are considered qualified healthcare providers.
Some of them are not, so if you have a nursing home or assisted living facility that’s not under the umbrella of the Indiana Department of Insurance and that’s not thus a qualified healthcare provider, you file your case like any other civil case. You pursue it as a negligence case, and it doesn’t fall under the Medical Malpractice Act, but it’s still considered a medical malpractice case. It just doesn’t fall under that Medical Malpractice Act like it would if that facility was a qualified healthcare provider.
Marc Lopez
Would you prefer a case be under the Medical Malpractice Act or not under the Medical Malpractice Act?
Kent Winingham
The Medical Malpractice Act in Indiana makes things quite difficult for patients. It is incredibly patient adverse. It is a system where you’ve got to go through a medical review panel. Unsurprisingly, 85% of the time, the medical review panel finds against the patient, and so that makes things doubly difficult, and under the Medical Malpractice Act, you’re also capped. Your damages are capped, as well. It’s a laborious process, and playing devil’s advocate—on the other side, people say it’s great for physicians—and it can be—but it is really quite patient adverse. It can be difficult to pursue a case under the Medical Malpractice Act, but that’s all you’re left with for the most part, typically.
Marc Lopez
I don’t want to talk too much about medical malpractice, because I know that’s a very long and drawn out process, but just for clarification—even if you win at the medical review panel, the case—it’s not over?
Kent Winingham
Right. No, you’re absolutely right. Win or lose. It’s three doctors or nurses or a combination of the two that are in that area of expertise, and they read your evidence and your materials and your deposition testimony. You take in depositions, and then they render an opinion—either 2-1 or 3-0, as to whether the standard of care in your case was met. That’s not dispositive of the case. Meaning—your case—you don’t win it, you don’t lose it there.
Oftentimes, cases might get resolved at that point, but after that, you’re moving on to trial, and at that point, all of the process about the decisions of those three supposedly neutral parties—those are all admissible at trial. So you can talk about all that at trial, as well. It can make it harder for the plaintiff, or it can help your case if you have a panel that does agree with you. So you’re right—it doesn’t mean your case is over with at all.
Marc Lopez
That is absolutely wild. It’s like a mini-trial to get to the trial. That just seems like so much extra work, especially for the consumer.
Kent Winingham
Well, it’s a mini-trial that is operated by people in the world of healthcare judging other people in the world of healthcare. We call it sometimes the fox guarding the hen house, but maybe that’s a little unfair.
Marc Lopez
I was going to say, The cards were stacked against the plaintiff, but I like this—The fox guarding the hen house. When you have done these nursing home cases in the past, what are the typical things that you have seen and you have litigated?
Kent Winingham
A lot of the cases tend to be pressure ulcer cases. People develop bedsores on their backside—their sacrums or their coccyx areas that—I didn’t even know what a bedsore was before I started this work. I thought maybe that was like a bug bite. I didn’t know, but if someone’s not being turned and repositioned and they’re not getting skin treatment, their skin breaks down, and they develop these horrible, horrible wounds and holes in their body that can really lead to death. They’re really painful.
Those are some cases. Sometimes when people—they’re supposed to have a care plan in place because they’re a fall risk, and they’re supposed to have interventions in place, but sure enough—none of those interventions are in place, and then they do fall. They have a brain injury and die, or they fracture their femur. Those are some common cases, or improper medication administration—someone getting excessive amounts of medication. When their medication administration record says they’re supposed to get five milligrams, but instead they get 20 milligrams five days in a row, and they have some cardiac event or stroke or something. Cases can be really different, but I would say those are three of more common cases you might see.
Marc Lopez
Just to jump on that bedsore—when you hear the word bedsore, you’re like, Oh, can’t be that bad. I have seen horrible bedsores. I feel like bedsores got off easy when it came to naming things, and so please don’t—anyone listening to this—think, Oh, bedsore. Can’t be that bad. They can turn terrible and—just like Kent said—lead to infection and lead to death.
Kent, when we are reading in the news about COVID-19 having a significant impact on people living in nursing homes or long-term care facilities, does that surprise you at all?
Kent Winingham
No. No. Doesn’t. This is the most at-risk population, and they’re all housed under one roof. Some people are pretty frustrated about how long-term care facilities are handling this, and I do not blame them. They’ve really dropped the ball in a lot of cases, and at the same time, it’s inevitable that sometimes these people are going to contract it. They’re all under one roof.
It’s a double-edged sword, and it’s sad to see, because you know this is the most high-risk population, and they’re all in one facility together. There are certainly a lot of things that can be done to separate people and to make sure you’re providing a safe environment, but no, it’s not surprising to me at all.
Marc Lopez
It just seems like a cascading type of effect. The things you’ve mentioned—not turning individuals leading to bedsores, not following life care plans, not following medication routines—those are things that seem to be popping up as perhaps the facility is understaffed or poorly-staffed. It just doesn’t seem like a stretch to imagine that if those conditions already existed, they’re going to have an increase in coronavirus cases, which—I got some numbers earlier today.
This is May 5. There are more than 1,400 Covid related deaths in the state of Indiana, and 420 of those are at nursing homes. Literally one-third of the deaths are at nursing homes, and that’s absolutely devastating. You read these articles—whether they’re paper or online—and you see family talking to their loved ones through these windows, and it just breaks your heart. It absolutely breaks your heart.
Kent Winingham
It does, and you see these healthcare workers in these facilities—like the CNAs, the certified nursing assistants and nurses—you see they’re at their wits’ end, because they’re not getting the support that they need. They don’t have the staff that they need, so you’re right—I think that it’s kind of an exacerbation problem. You already have all these facilities that are typically understaffed, and then you have something like this happen, and it really exposes that problem. That issue exacerbates your pandemic issue within your facility even further. It’s kind of the worst of both worlds.
Marc Lopez
It sounds terrible, quite frankly. Other states, they’re being a little bit more forthcoming in their reporting. Indiana is starting to change with some new rules this past Monday, but why isn’t Indiana being forthcoming with their information regarding coronavirus and nursing homes?
Kent Winingham
I don’t know, and it’s frustrating. I have an idea why, and really—the lack of communication—to me—is scary for families, because if you’ve got a loved one in a rehab facility, an assisted living facility, a nursing home—you’re going to want to know what’s going on there. The facility can communicate that to you without violating HIPAA—without disclosing anyone’s personal identifiable information—and they should, because they’ve got a duty to make sure that their residents are not at risk as a result of other residents who are endangering them.
If that is the case, they’ve got to either inform the resident and/or their guardian or their personal representative. I don’t think it’s a coincidence. What you’re seeing—and the IndyStar has done an unbelievable job on this—is that the states have a vested interest in these nursing homes.
Over 90%—93% of these nursing homes throughout the state of Indiana are county-owned facilities. They’re owned by the State, so the State has an interest in keeping this information close to their vest, and there’s been some pretty exposing articles about the ownership of these facilities and how the state was able to allocate funding. Really—they received Medicaid funding, and then the counties used it as they wished, and nursing home residents didn’t get the benefit of the funding as they were intended. I don’t think it’s coincidence that we’re seeing these worlds colliding right now.
Marc Lopez
That sounds so horrible, man. That’s absolutely insane. The money that’s supposed to be spent on them is not, and then obviously, they’re suffering for that.
Kent Winingham
Yeah.
Marc Lopez
When you mentioned that the 93% are owned by the State or the counties, does that also invoke the Tort Claim Act?
Kent Winingham
It doesn’t, typically. That’s a good question. It doesn’t typically, because most of these are qualified healthcare providers. If you’re a qualified healthcare provider, you’re not dealing with the Tort Claims Act typically, so no. For example, if you’re Johnson County Memorial, Johnson County Hospital, Johnson County Memorial DBA X nursing home—you’re likely to be a qualified healthcare provider, and thus, you’re not going to have the same tort immunity and Tort Claims Act issues that you might with a case against a city or county in another venue.
Marc Lopez
That’s absolutely insane. Kent, if anybody has any questions they want to talk to you about regarding issues they’re having with loved ones and nursing homes, what is the best way to reach you to contact you?
Kent Winingham
Yeah, call me, email me. My phone number is 317-920-6409, and then my email is kwiningham—which is W-I-N-I-N-G-H-A-M—@wkw.com.
These are strange times. The State Department of Health, I think they’re doing their best, but it’s just . . . I don’t want to use the word unprecedented, because if I hear the word unprecedented one more time, I’m just going to flip—but it is that. I think our healthcare workers are doing everything they can, and it’s just a tough, tough, tough time.
Marc Lopez
Thanks so much for spending some time with me this morning. I appreciate it.
Kent Winingham
Yeah, thanks, Marc.
