Defense Digest 12/08: On The Pulse...Our Long-Term Care Litigation Practice Group

By Frank P. Leanza, Esq.*

With the aging of our population we have seen an ever increasing need for long-term care facilities, nursing homes, and assisted living facilities to care for an expanding patient base. Long-term care facilities are expected to provide quality care, often under very difficult circumstances, to a diverse patient population, many of whom suffer from severe physical and psychiatric illnesses. Over the past decade, long-term care facilities have faced greater governmental oversight and intervention, including mandatory reporting requirements, inspections, and the establishment of patient care guidelines. Many states have enacted "Patients' Bill of Rights" statutes governing long-term care facilities. Some jurisdictions allow for the assessment of counsel fees and for an award of punitive damages whenever a violation has been found.

Not unexpectedly, the past decade has also seen an explosion in nursing home lawsuits. Plaintiff attorneys have begun to specialize in this area of the law and frequently pool information and resources. As such, it has become incumbent for defense firms to master this area of the law as well. At Marshall, Dennehey, Warner, Coleman & Goggin we have dedicated a practice group, the Long-Term Care Litigation Practice Group, to focus its energy and attention on defending nursing homes and assisted living facilities. The Long-Term Care Litigation Practice Group is part of the firm's Health Care Department, with attorneys in each of our offices who are dedicated to providing diligent representation to physicians, physicians' groups, dentists, nursing homes, and assisted living facilities. The attorneys who are part of the Long-Term Care Litigation Practice Group are able to provide clients with experience in what has become a discrete area of the law. Additionally, Dr. Jo Marie Simpkins, a physician/paralegal in our Pittsburgh office, is an integral part of our long-term care team. Dr. Simpkins provides early medical assessment and analysis for our clients.

While certain aspects of long-term care cases are similar to other medical malpractice cases, such as the need for expert opinions to support allegations of deviation or compliance with the standard of care, the cases are also unique. They frequently involve federal and state statutes and regulations, which establish "resident rights" and the level of care required, and provide an array of penalties for any violation. These statutes and regulations are often phrased in ambiguous language, leaving them open to interpretation and argument, highlighting the need for attorneys who are familiar with the various statutory requirements. The attorneys in the firm's Long-Term Care Litigation Practice Group are knowledgeable of the various statutes and regulations that apply, which affords clients in each of the states in which we practice thoughtful and experienced representation.

Factually, long-term care cases present many challenges, including the need to defend multiple depositions of nurses and certified nursing assistants, and often involve care that was provided over an extended period of time. Depositions of corporate designees, facility administrators, directors of nursing, and others are typical. These cases demand an insightful and comprehensive review of medical records, policies and procedures, and compliance with governmental requirements. They also demand thorough preparation.

The attorneys in the Marshall, Dennehey, Warner, Coleman & Goggin Long-Term Care Litigation Practice Group have years of experience in this unique area of the law and in defending long-term care facilities. This knowledge and experience is critical in assessing the appropriate action plan upon receipt of the case and throughout the litigation process. We meet the needs of our clients by providing a fair assessment of liability and potential exposure and the development of an appropriate litigation plan to obtain the best resolution of the case and the best result for the client. This includes vigorously defending cases up to and including trial, when necessary, or through arbitration/mediation where appropriate. Our clients are kept fully appraised of all significant aspects of the litigation process, from initial assessment of the case through discovery and trial, with attention to compliance with client guidelines.

Early, insightful evaluation of cases includes consideration of anticipated expenses and permits clients to gain an understanding of the costs involved in defending long-term care cases. The experience and specialized knowledge of the attorneys in the Long-Term Care Litigation Practice Group also advances cost containment, as the group's extensive and collective experience permits efficient and cost-effective preparation of cases. Members of this firmwide group have the invaluable opportunity to confer with other members to assist with the evaluation of a case and the implementation of an appropriate plan of action.

Expert review is essential in long-term care matters and is initiated early on in the litigation process to assist the attorney in the evaluation and preparation of the case. The Long-Term Care Litigation Practice Group has developed extensive contacts throughout the medical community, which allows our attorneys to consult with and retain highly qualified experts in all medical specialties who are intimately involved in clinical practice. This enables the defense to be premised upon a solid foundation of credible expert opinion.

The members of Marshall, Dennehey, Warner, Coleman & Goggin's Long-Term Care Litigation Practice Group are highly regarded trial attorneys who are fully invested in successfully defending the interests of our clients. We pride ourselves in providing our clients with professional, individualized legal representation, frequent communication regarding the status of a case, and adherence to client guidelines, all at a reasonable cost. This practice is not limited to the firm's Long-Term Care Litigation Practice Group, but is the credo by which the entire firm operates.

*Frank is a shareholder and the Chair of our Long-Term Care Litigation Practice Group. He can be reached at (973) 618-4174 or fpleanza@mdwcg.com.