If you are a lawyer with a nursing home bed sore client in Maryland, I want you to refer your case to Miller & Zois (with an attorneys’ fee-sharing relationship). This post is directed to lawyers who do not regularly handle bed sore care to better understand the pros and cons of bed sore nursing home claims in Maryland and what types of claims are the most viable.
Why Bed Sore Cases Are Good Cases
Nursing home cases are medical malpractice cases in Maryland. You have to file in Maryland Health Claims Arbitration and follow the malpractice statute. But bed sore cases are the exact opposite of medical malpractice cases. In a malpractice case against a doctor, the presumption the patient or the patient’s family must overcome is that the doctor is competent and did her very best. You start behind the eight-ball and need to present overwhelming facts to win. It is hard to win jump ball medical malpractice cases even in victim-friendly jurisdictions.
It is just the opposite in nursing home cases. Juries go into nursing homes assuming that the nursing home probably made a mistake. There is a good reason for this. The quality of nursing homes in Maryland and throughout the country is awful. We have a small number of good nursing homes and a large number of awful facilities that mistreat and neglect their residents on a daily basis. Our worst nursing homes are not hiring the best of the worst, but the worst of the worst and then people are charged with the life and safety of our elderly. It is a mess. Everyone gets it.
A cousin of this effect is how the medical records in nursing home cases read. Doctors in medical malpractices instinctively cover for each other. Autopsies and subsequent treatment notes are written with malpractice considerations in mind. Make no mistake about it. As bitter as I often get about this, I do understand the instinct to protect your own. If I don’t protect this doctor who might be accused, the thinking goes, who is going to protect me when I get blamed for something? In nursing home cases, doctors are more willing to blame the nursing home for poor care. When a patient gets harmed or killed by malpractice by someone other than a doctor, it makes doctors mad.
Another driving force that makes nursing home cases so appealing is that these nursing homes are terrified to go to trial. These cases almost always settle before trial. So if you are a lawyer who is willing to go to trial and you have a track record of success to support that willingness besides just bluster and the result is often a very favorable settlement.
Finally, bed sore should not get out of control in the absence of negligence. Yeah, yeah, it CAN happen without negligence, a fact that every single defense expert in nursing home cases is quick to point out. But those cases are exceptions that usually jump off the page based on distinctly unique facts. Most bed sore cases are because the nursing home screwed up.
- Settlement value of nursing home cases
- Frequently asked bed sore claim questions
- Pressure sore settlements and verdicts
The Downside to Nursing Home Cases
There are two significant downsides to nursing home cases. The first is that the best-case scenario for damages in these cases is often shy of $1 million. There is rarely any economic damages because there is rarely future care required connected to the malpractice and nursing residents rarely have future projected earnings in wrongful death cases. So the bar to take a case is higher than it would be for a case with greater upside. Also, in non-death cases, because the victims are older, they often die of unrelated causes after the negligence. Trying to collect pain and suffering damages by the victim’s surviving family is an uphill battle.
The second problem is that causation is more frequently a challenge with an older patient population. By the time we get to the nursing home age, there are usually other health considerations. So there is often a question of causation with respect to what caused the death. Was it the bed sore or was it the patient’s uncontrollable diabetes? These issues always arise in these cases which means you are battling not only on the negligence front but on causation as well.
Viable Bed Sore Cases
Bed sores, also called “pressure sores” and “decubitus ulcers,” are usually mentioned in medical records by grade or stage to classify the degree of tissue damage. Stage I is characterized by redness of intact skin. It is certainly not a big deal but when left untreated in a harbinger or problems to come. Stage II is defined as partial thickness skin loss involving the epidermis and/or dermis. Stage III as full-thickness skin loss involving damage or necrosis of subcutaneous tissue, which means that it has eaten through both layers of skin. Stage IV as full thickness skin loss with extensive destruction, tissue necrosis or damage to muscle, bone, or supporting structures. Some doctors use the term “unstagable” which means they are beyond Stage IV.
Stage IV and Unstagable Cases Are Best Cases
Nursing home negligence can cause a bed sore staged in the first three grades of bed sores. Are there bed sore cases worth filing in Maryland? The answer, generally, is no. This is understandably maddeningly frustrating because a patient can really suffer from a Stage II or Stage III pressure sore. But from a nursing home lawyers’ perspective, Maryland law typically does not make the juice worth the squeeze economically.
Failure to Follow Orders
Juries find it maddening when nursing homes do not follow their own protocols or the employees do not follow the doctor’s instructions. The big problem with bed sores is not the failure to identify the problem or develop a plan to resolve the issue. The larger problem is the failure to follow the plan already in place. Often you will see orders to have the patient turned every two hours that just get completely ignored. Doctors will order that special heel protectors be applied to the feet and special padding can be applied to the bed to decrease pressure to sensitive areas of the skin and the nursing home employees will just shrug their shoulders.
Pictures Are Powerful
Bed sores look awful. Every single time I see pictures in these cases it is like I’m seeing it for the first time. No kidding, I saw pictures today and I was convinced they were the worst pictures I have even seen. It must be the 10th time this year I have made such a proclamation. Juries have the same reaction. Good pictures can really make a case.
The value of nursing home cases in Baltimore City and Prince George’s County, the settlement value of your claim is higher. Certainly, there is a great deal of variation in the other 23 counties in Maryland. But there is no question there is a large gap between these two best jurisdictions and all the others.
Getting a Lawyer or Co-Counsel
This is not an exhaustive list of the variables that matter in these cases. But if you are strong in most of these categories, the likelihood is that you have a strong case. If you have questions about your case, I’d be glad to speak with you. Call me at 800-553-8082 or reach out to me online.