“Resident #1 died because of the facility’s negligence.” Those sobering words recently appeared on the statement of deficiencies (CMS Form 2567) for a nursing facility. It wasn’t long after the Centers for Medicare & Medicaid Services (CMS) issued the 2567 that the estate of the resident filed a wrongful death action against the facility. Worse, the surveyors got it wrong, and the alleged deficiency was subsequently deleted by CMS after an appeal was filed.
Every nursing home administrator, director of nursing and staff member is aware of the mandatory health surveys conducted by state departments of health. According to federal law, all skilled nursing facilities that participate in the Medicare and/or the Medicaid programs must be surveyed at least once every 15 months. In addition to annual or “recertification surveys,” nursing facilities are surveyed when a resident, family member or even a disgruntled employee makes a complaint. These surveys also are called “complaint investigations” or “abbreviated surveys.” When a survey team determines that deficiencies at a certain level of severity have occurred, a “revisit” survey will be conducted to determine whether the facility corrected the deficiency and has regained compliance.
Each survey, regardless of its type, results in a written statement of deficiencies. By federal law, the form must be posted in a conspicuous location in the nursing facility. States also post detailed survey results, without a resident’s name or identifying characteristics, on official websites. CMS does the same on its Nursing Home Compare website.
But what happens when a personal injury or plaintiff’s negligence law firm gets ahold of the 2567 form and tries to use it to convince a jury that negligence resulted in harm or death to a resident? After all, the purpose of a survey is to determine whether a facility is in substantial compliance with federal regulations, not whether the civil tort of negligence occurred.
Negligence and negligence per se
The law recognizes two types of negligence: negligence and negligence per se. Negligence is a civil tort that requires four elements for a plaintiff to prevail: 1) there must be a duty, 2) the duty must have been breached, 3) harm must have resulted from the breach and 4) the breach of a duty must have caused the harm. For example, if a resident was given the wrong medication and suffered an adverse effect, then all four elements of the tort of negligence exist.
By contrast, negligence per se is established simply by violating a statute or regulation. A speeding ticket for driving 65 mph in a 55-mph zone is an example of negligence per se.
Why are the definitions important to nursing homes and their surveys? Law firms specializing in “nursing home negligence” will attempt to use the 2567 as evidence of negligence per se, giving the false impression that the presence of a deficiency always indicates negligence. This is clearly not the case. As most providers realize, many times, alleged deficiencies lack a sufficient factual and/or legal basis. But if left unchallenged, they might be used in collateral civil litigation to the detriment of the facility.