Historically, nursing homes had low rates of litigation, but those rates picked up in the 1990s. Recently there has been another decline from the peak; which was around 1.5 claims per 1000 nursing home residents in 1998 to .3 claims per 1000 in 2006. The most prevalent basis for claims are falls and bed sores. Although there are not a huge number of claims, 61% result in some payment and the payment averages $200,000, much of which goes to lawyers. A study published in the New England Journal of Medicine attempted to evaluate whether worse performance on quality metrics was associated with a greater likelihood of having claims filed agains the nursing home. (NEJM Article)
The authors looked at claims at 1500 nursing homes in 48 states. A claim was any written demand for compensation for an alleged injury. They compared claim rates with quality indicators they constructed from the OSCAR database which contains Medicaid and Medicare nursing home survey and certification data, including regular reporting on non-compliance with standards, and the MDS dataset which tracks nursing home residents in regard to level of care processes and resident outcomes. The odds of being sued were higher for nursing homes with more deficiencies and more serious deficiencies but all of the tested associations with various indicators and other factors were weak, resulting at most in a 15% or less increased likelihood of a claim.
As the authors point out, the results of their study suggest that tort law isn’t doing a particularly good job of ensuring that only poorer quality, and theoretically more deserving, nursing homes are sued, nor is it serving its function of supposedly providing an incentive for nursing homes to improve quality to avoid suits. Sounds like one more reason to ditch medical malpractice and save us all a lot of wasted money. Several hundred million dollars a year is spend by nursing homes in claims and defense, apparently to little avail.