In cases where the medical records contain peripheral,
non medical information, courts have ruled such
information is not privileged. See Ashford vs
Brunswich Psychiatric Center
, 456 NYS 2d 96, (1982),
Moore vs St. John’s Episcopal Hospital, 452 NYS2d 669

Notes written by a nurse are generally not protected
by the physician-patient privilege. See Weis v Weis,
72 NE2d 245. Weis is a leading case on this issue. In
Weis the court held that because the statute governing
the physician-patient privilege made no mention of
communications between a nurse and a patient, any
information given to a nurse was not privileged. This
case illustrates the trend seen in many cases where
the courts have interpreted the physician-patient
privilege. The privilege did not exist at common law
and courts construe the statute narrowly.

Hip Fractures Among Older Adults

More than 95% of hip fractures among adults ages 65 and older are caused by falls (Grisso et al. 1991). These injuries can cause severe health problems and lead to reduced quality of life and premature death (Wolinsky et al. 1997; Hall et al. 2000).

How big is the problem?

In 2003, there were more than 309,500 hospital admissions for hip fractures (NCHS 2006).
From 1993 to 2003, the number of hip fracture hospitalizations increased 19%, from 261,000 to 309,500 (NCHS 2006).
However, after adjusting for the increasing age of the U.S. population (U.S. Census Bureau 2006), the hip fracture rate decreased 14%, from 901 per 100,000 population in 1993 to 776 per 100,000 population in 2003 (NCHS 2006).
In 1990, researchers estimated that the number of hip fractures would exceed 500,000 by the year 2040 (Cummings et al. 1990).

What outcomes are linked to hip fractures?

As many as 20% of hip fracture patients die within a year of their injury (Leibson et al. 2002).
Most patients with hip fractures are hospitalized for about one week (Popovic 2001).
Up to 25% of adults who lived independently before their hip fracture have to stay in a nursing home for at least a year after their injury (Magaziner et al. 2000).
In 1991, Medicare costs for hip fractures were estimated to be $2.9 billion (CDC 1996).


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Falls in Nursing Homes

How big is the problem?

In 2003, 1.5 million people 65 and older lived in nursing homes (National Center for Health Statistics 2005). If current rates continue, by 2030 this number will rise to about 3 million (Sahyoun et al. 2002).
Each year, a typical nursing home with 100 beds reports 100 to 200 falls. Many falls go unreported (Rubenstein 1997).
As many as 3 out of 4 people in nursing homes fall each year (Rubenstein et al. 1994). That’s twice the rate of falls for older adults living in the community.
Patients often fall more than once. The average is 2.6 falls per person per year (Rubenstein et al. 1990).
About 35% of fall injuries occur among residents who cannot walk (Thapa et al. 1996).
About 5% of adults 65 and older live in nursing homes. But people in nursing homes account for about 20% of deaths from falls in this age group (Rubenstein 1997).

How serious are these falls?

About 1,800 people living in U.S. nursing homes die each year from falls (Rubenstein et al. 1988).
About 10% to 20% of nursing home falls cause serious injuries; 2% to 6% cause fractures (Rubenstein et al. 1988).
Falls can make it hard for a person to get around, cause disability, and reduce quality of life. Fear of falling can cause further loss of function, depression, feelings of helplessness, and social isolation (Rubenstein et al. 1994).

Why do falls occur more often in nursing homes?

Falling can be a sign of other health problems. People in nursing homes are generally more frail than older adults living in the community. They tend to be older, have more chronic illnesses, and have difficulty walking. They also tend to have problems with thinking or memory, to have difficulty with activities of daily living, and to need help getting around or taking care of themselves (Bedsine et al. 1996). All of these factors are linked to falling (Ejaz et al. 1994).

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SHARON OSTROFF, Individually and as Power of Attorney for Lillian Restine,





2006 U.S. Dist. LEXIS 50730

July 25, 2006, Decided

Sharon Ostroff, individually and as power of attorney for Lillian Restine, her mother, filed suit against Alterra Healthcare Corporation ("Alterra") for personal injuries suffered by Restine while she was a resident at an assisted living facility operated by Alterra. Defendant moved to compel arbitration pursuant to a Residency Agreement signed by plaintiff Ostroff. In an Order & Memorandum dated June 7, 2006, the Court denied defendant’s motion to compel arbitration. Ostroff v. Alterra Healthcare Corp., F. Supp. 2d , 2006 WL 1544390 (E.D. Pa. June 7, 2006). In that Order & Memorandum, the Court held that the Residency Agreement was a contract of adhesion and thus procedurally unconscionable. Id. at *5. The Court also ruled that the Agreement was substantively unconscionable, because it severely restricted discovery available to plaintiff n1 and reserved access to the courts for defendant while requiring plaintiff to arbitrate all disputes. Id. at *8. Because the arbitration clause was procedurally and substantively unconscionable, the Court refused to enforce it. Id. Defendant has now filed a Motion for Reconsideration and to Vacate that Order of June 7, 2006. For the reasons below, defendant’s motion is denied.

15. Treatment of Pressure Ulcers
Treatment of Pressure Ulcers
Clinical Guideline Number 15
AHCPR Publication No. 95-0652: December 1994

The incidence of pressure ulcers is sufficiently high, especially among certain high-risk groups, to warrant concern among health care providers. These groups include elderly patients admitted to the hospital for femoral fracture (66-percent incidence) and critical care patients (33-percent incidence). In addition, the prevalence of pressure ulcers in skilled care facilities and nursing homes is reported to be as high as 23 percent. An extensive study of acute care facilities reported a prevalence of 9.2 percent, and in one study of quadriplegic patients the prevalence was 60 percent.

Because prevention of this debilitating condition is believed to be less costly than its treatment, the panel initially produced a guideline entitled, Pressure Ulcers in Adults: Prediction and Prevention. Clinical Practice Guideline, No. 3. Although it is certainly desirable to prevent pressure ulcers, individuals still enter the health care system with ulcers or develop ulcers during periods of increased vulnerability as their physical condition deteriorates. This guideline addresses the treatment of pressure ulcers. It is intended for clinicians who examine and treat persons with pressure ulcers, and the treatment recommendations focus on (1) assessment of the patient and pressure ulcer, (2) tissue load management, (3) ulcer care, (4) management of bacterial colonization and infection, (5) operative repair, and (6) education and quality improvement.

AHCPR appointed an external panel of multidisciplinary experts in this field to develop the guideline. To provide a scientific basis for this guideline, the panel conducted comprehensive literature searches, reviewed more than 45,000 abstracts, evaluated approximately 1,700 papers, and cited 333 references to support this guideline.

The panel solicited input from a broad array of organizations and individuals. Testimony was provided by interested parties at a public forum on April 9, 1992, in Washington, DC. A draft of the guideline was distributed to and analyzed by participants at a conference sponsored by the National Pressure Ulcer Advisory Panel and the Wound Ostomy and Continence Nurses Society in March 1993. The Treatment of Pressure Ulcers Guideline Panel also invited peer review by individual experts, professional organizations, consumers, and Government regulatory agencies. Health care agencies conducted pilot reviews to evaluate the clinical applicability of the guideline. In all, more than 400 reviewers have critiqued various drafts of this guideline.

This first edition of Treatment of Pressure Ulcers will be periodically revised and updated as needed so that future editions reflect new research findings and experience with emerging technologies and innovative approaches. To this end, the panel welcomes comments and suggestions regarding the current guideline. Please send written comments to Director, Office of the Forum for Quality and Effectiveness in Health Care, AHCPR, 6000 Executive Boulevard, Suite 310, Rockville, MD 20852.
Treatment of Pressure Ulcers Guideline Panel

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Pressure Ulcers

Also referred to as decubitus ulcers or bed sores, these are lesions caused by unrelieved pressure resulting in damage to underlying tissue. Pressure ulcers usually occur over a bony prominence such as the sacrum or heel, and are staged to classify the degree of tissue damage1. The risk for pressure ulcer development is increased for the person who is immobile and confined to a bed or chair. Pressure ulcers are classified into four categories, depending upon their severity, and are generally caused by unrelieved pressure on the bodies soft tissue.

In addition to pressure, the forces of friction and shear may contribute to wound development in the patient who is malnourished, incontinent, insensate and/or cognitively impaired. Assessment tools, such as the Norton2 or Braden3 tools, assist the clinician to identify patient factors that increase the risk for pressure ulcer development. Appropriate interventions and resources can then be targeted to intervene and reduce patient risks of pressure ulcer development or recurrence.

1. European Pressure Ulcer Advisory Panel. Pressure Ulcer Treatment Guidelines
2. Norton, D., McLaren, R., Exton-Smith, A.N. (1962) An investigation of geriatric nursing problems in hospital. Edinburgh: Churchill Livingstone
3. Bergstrom N., Braden, B. Lazuzza, A. (1987) The Braden scale for predicting pressure sore risk. Nurs Res; 36:4, 205-210

Information provided with support from the Wound Healing Research Unit, Cardiff

Article published Mar 22, 2006

Ex-nursing chief sues White Oak Manor

A former nursing director at a Spartanburg long-term care facility is seeking court relief on claims she was fired for refusing to help cover up a medication error that sent a resident into a brain-damaging insulin shock.

Management at White Oak Manor–Spartanburg warned Carol Hodge not to disclose the outcome of her investigation into the medication mistake to the S.C. Department of Health and Environmental Control or to the resident’s family, according to Hodge’s lawsuit, filed this month in Spartanburg County Court of Common Pleas. Hodge’s lawyer, Donald Coggins of Spartanburg, said Hodge’s superiors began finding problems with her work when she ignored those directives.

"She was told by her superiors because it was a medication error, it didn’t have to be reported and they would rather she didn’t," he said.

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The day will come when my body
will lie upon a white sheet neatly tucked
under four corners of a mattress located in a
hospital busily occupied with the living and the dying.
At a certain moment a doctor will determine
that my brain has ceased to function and that,
for all intents and purposes, my life has stopped.

When that happens, do not attempt to instill
artificial life into my body by the use of a machine
and don’t call this my deathbed. Let it be called the
Bed of Life, and let my body be taken from it
to help others lead fuller lives.

Give my sight to the man who has never seen
a sunrise, a baby’s face or love in the eyes of a woman.

Give my heart to a person whose own heart has
caused nothing but endless days of pain.

Give my blood to the teen-ager who was pulled
from the wreckage of his car, so that he might live
to see his grandchildren play.

Give my kidneys to one who depends on a
machine to exist from week to week.

Take my bones, every muscle, every fiber and nerve
in my body and find a way to make a crippled child walk.

Explore every corner of my brain. Take my cells,
if necessary, and let them grow so that someday,
a speechless boy will shout at the crack of a bat and
a deaf girl will hear the sound of rain against her window.

Burn what is left of me and scatter the ashes to
the winds to help the flowers grow.

If you must bury something, let it be my faults,
my weaknesses and all prejudice against my fellow man.

Give my sins to the devil.

Give my soul to God.

If, by chance, you wish to remember me, do it with
a kind deed or word to someone who needs you.

If you do all I have asked, I will live forever.

by Robert N. Test

Damages and Awards in Medical Malpractice Cases

The voice at the other end of the phone says, "My mother was terribly hurt at the hospital. Will you take my malpractice case?" How should the attorney or the office staff taking this call respond? Medical malpractice cases are among the most complex and costly in the plaintiff personal injury law firm. Careful screening of these cases will avoid much fruitless work and expense. This article will focus on the evaluation of damages as well as recent award trends in medical malpractice cases.

One model of screening the medical malpractice case suggests that the attorney should evaluate the four components of liability in their order: duty of the healthcare practitioner to the patient, breach of this duty, proximate causation of damages and damages. A more useful model is to first evaluate damages, before even addressing duty, breach of duty and causation issues.

Given the estimated $25,000-$100,000 cost of bringing a medical malpractice case through five or more years of litigation before trial, it is essential to understand the damages alleged by the plaintiff. The severity and permanency of the injuries must both be considered. Some of the questions to ask when the phone call comes in as described at the beginning of this article include: What happened to your mother? Who said she was injured? How old is your mother? Is she working? Did she lose work as a result of the injury? Have the injuries been permanent? What is her current condition? What was her health before the incident?

High damages cases
Significant injuries are relatively easy to identify during the initial screening. An analysis of plaintiff verdicts in medical malpractice cases1 showed that between 1994-2000 the most frequently claimed injury was other, followed by death. Birth injuries, cancer diagnosis, delayed treatment, (incorrect) diagnosis and medication errors resulted in the highest verdicts. The highest median award was given for severe brain injury ($4,280,000). Median award refers to the middle value or the norm among awards arranged in ascending order.

The median compensatory award in 2000 was $1,000,000, up from $700,00 in 1999.

Low damages cases
Clearly the low to moderate damages cases outnumber the significant damages claims. These claims can eat up the resources of a law firm, with sometimes disappointing results. Low damages cases tend to fall into several categories:

Podiatric or chiropractic: Unless the person has a loss of a foot or part of afoot, or develops paralysis as a result of chiropractic manipulation, these are low damages case.

Minor treatment injuries: Minor treatment injuries, such as suturing a wound and leaving behind glass or embedded objects, or loss of a toe, are low injury cases.

Eye cases: Eye cases include the common allegation of a bad outcome after cataract extractions. Eye cases that are difficult to defend include loss of vision due to prolonged use of corticosteroids, failure to diagnose glaucoma, failure to diagnose a penetrating foreign body, and failure to diagnose an infection. Eye records are challenging to interpret and therefore can complicate the screening of these types of cases.

Dental cases: Dental cases include loss of a tooth or nerve injuries following extraction of a tooth or surgery. In teeth cases, the expenses of the treatment must be balanced against the expenses which would have been incurred had the malpractice not occurred. Osteomyelitis of the jaw after dental surgery is an example of a high damages claim for this category of malpractice. Like eye records, dental records are usually difficult to read.

Surgical scarring or bad results from plastic surgery such as a face lift or tummy tuck may occur. The jury may feel little sympathy for these patients. An exception may be deformity of the face caused by failure to diagnose a postoperative infection or an error in surgical technique. The pursuit of these claims is frequently hampered by the difficulty in finding affordable plastic surgeons willing to act as expert witnesses.

Burns, unless they are to exposed parts of the body such as the face or hands, are low value cases.

Time limited damages with no permanency such as a brief overnight admission to the hospital following a medication error, or anger over the treatment provided by the healthcare provider are low damages cases.

Bad outcomes in very sick people are difficult cases to litigate. Damages of significant intensity (such as death or amputation) may lose their impact when the patient was critically or terminally ill. These cases are time consuming and costly to screen, given the costs of obtaining the volumes of medical records and the time needed to wade through the medical chronicles. These cases may additionally be complicated by the difficulty in convincing the plaintiff that while the outcome was severe, the case would be complex and expensive to pursue, with no guarantee of success.

Bad outcomes not affected by missed or delayed diagnosis such as terminal cancer or chronic incurable diseases and difficult to litigate. A delay in diagnosis may have had no impact on the patient’s prognosis. These cases require careful screening to determine the nature of the condition and the availability of effective treatment.

Moderate damages
Moderate damages cases, as defined by the typical size of the award, in the last decade resulted in median verdicts ranging from $355,000-$668,000. These included (in order of lowest to highest median award): negligent supervision, negligent surgery, nonsurgical treatment, lack of informed consent and medication errors. Medication errors resulted in a median award of $668,000, the highest of the moderate damages awards.

If the case meets the criteria of having sufficient damages to warrant further investigation, consider using a medical professional to screen the case to look for plausible explanations for the damages. Determine in advance if the screening professional will act as an expert witness for you or will be in the role of gatekeeper. Since the screening professional’s hourly fees are usually lower than those of an expert witness, it is economical to use the screener to identify the cases without merit. The screening professional (doctor or nurse) should be experienced in recognizing the valid cases and not hesitant to identify the claim without merit. Although identification of the value of the damages in the claim is a vital first step, the screener cannot stop there. Recognition of the critical link between proximate cause and damages, knowledge of the applicable standard of care, and the ability to identify the plaintiff who lacks jury appeal are equally important.

Med League Support Services Inc. provides screening of medical and nursing malpractice cases and expert witnesses. Contact our office for more information.

1. Shannon, J. and Boxold, D., Medical Malpractice: Verdicts, Settlements and Statistical Analysis, LRP Publications, Horsham, PA, 2002.


(202) 514-2007


TDD (202) 514-1888



WASHINGTON, DC – National Healthcare Corporation (NHC) will pay the United States $27 million to resolve allegations under the False Claims Act that the company submitted falsely inflated reports to Medicare, the Justice Department announced today. The government alleged that beginning in 1991 the company submitted nursing home cost reports that falsely claimed that facility staff members spent more time caring for Medicare patients than they actually did in order to collect additional money from the federal health care program.

The complaint against NHC alleges that the company submitted cost reports that included false claims for reimbursement. NHC, headquartered in Murfreesboro, Tennessee, owns, leases or provides services to 105 nursing homes nationwide.

"Today’s settlement by the Justice Department demonstrates the government’s determination to combat health care fraud by providers," said David W. Ogden, Assistant Attorney General of the Department of Justice’s Civil Division.

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