LTC Bullet: Working Both Ends

Tuesday August 7, 2001

Seattle—

What would you think of a lawyer who shoved you off a stepladder and then calmly offered to represent you in a liability suit against the manufacturer?

That's what elder law attorneys do when they load up nursing homes with their low-reimbursement Medicaid planning clients and then sue the financially struggling homes for providing inadequate care.

First, they pull in large fees for artificially impoverishing prosperous clients to get them on Medicaid without spending down. Then, they turn right around and invite families to report any and all care deficiencies that might lead to a profitable lawsuit.

An article in the Spring 2001 edition of the "NAELA Quarterly" urges members of the National Academy of Elder Law Attorneys (the Medicaid planners' trade association) to jump onto this lucrative new gravy train.

Is there anything wrong with suing a nursing home that provides deficient care? Of course not. Redress of grievances by legal means is a fundamental right. But seeking to profit from the very tragedy you helped to create is an equally fundamental wrong.

Here are some sample excerpts from Julie A. Braun and Elizabeth A. Capezutiph, "Nursing Home Litigation and the Elder Law Attorney," in NAELA Quarterly, Vol. 14, Number 2, Spring 2001, pps. 3-9.

"Thus, nursing home litigation is a natural extension of the traditional elder law practice." (p. 3)

"Elder law attorneys (as compared to personal injury or medical malpractice attorneys) have an advantage in their ability to acquire nursing home injury cases as a consequence of their extensive contact and established relationships with residents and their families developed through years of working with the client--drafting the will, estate planning, etc. Thus, the elder law practitioner often is the first person notified about a resident's injury or death. The traditional elder law practice grows if the attorney educates existing clients about potential negligent nursing home care and the attorney's and/or firm's ability to handle nursing home injury." (p. 3)

"Elder law attorneys may acquire the necessary skills and training to handle a nursing home injury action themselves or can partner with, among other possibilities, a personal injury and/or malpractice attorney to gain valuable experience in the highly specialized area of nursing home litigation. . . . Moreover, this relationship allows the elder law attorney to participate in the substantial rewards that such cases may yield without exposing the attorney to the high costs of litigation or the risk of a professional malpractice claim." (pps. 3-4)

"The cases usually are handled on a contingency fee basis. Thus, the decision whether to accept a nursing home tort case may turn, in part, on the potential damages recovery the case likely will yield." (p. 4)

"In general, state law causes of action may include . . . breach of contract with the Medicare and/or state Medicaid program which obligates the facility to comply with federal Nursing Home Reform Act provisions. . . ." (p. 4)

"Under federal law, consider listing causes of action based on the federal False Claims Act alleging, for example, substandard quality of care; Racketeer Influenced and Corrupt Organizations statute asserting, for instance, excessive charges assessed by the facility for resident medications with the underlying mail fraud evidenced by the mailing of medication invoices to residents and their representatives; and Section 504 of the Rehabilitation Act has been used successfully to combat discrimination in nursing facility admission invoked successfully on one occasion to force a facility to admit a resident with dementia-linked behavioral problems." (p. 4)

"The complainant should name every entity involved in facility ownership and operation whether that entity holds the license, owns the property, or operates the facility through a management agreement. . . . Under appropriate circumstances, the following parties also may be named defendants in nursing home injury cases: nursing home staff and others responsible for resident care, facility medical director; resident's treating physician(s); nursing home administrator; and the director of nursing." (p. 4)

The article quotes nationally-known Medicaid planner Thomas Begley "discussing how elder law attorneys are shaping the future of elder law" to the effect that "Tort litigation against nursing homes is a fertile area for the expansion of the practice of elder law." (p. 5)

"Claims against nursing homes are on the rise. The elder law bar may further efforts to help older adults by becoming more actively involved in nursing home injury cases." (p. 9)

CLTCF Comment: If elder law attorneys diligently warned their affluent clients to avoid Medicaid instead of charging large fees to trap them on welfare, far fewer people would depend on publicly financed long-term care. With many fewer recipients, Medicaid could afford quality care for the genuinely indigent and lawsuits against nursing homes for deficient care would be far less common. But this kind of ethical behavior would destroy both ends of the lawyers' profit stream--the old-faithful Medicaid planning and the promising new field of nursing home litigation. So, don't hold your breath.