Nursing Home Litigation While it would be a rare occasion in which damages would


be recoverable for loss of past and future earnings, recovery for past medical expenses – and future medical costs -- almost always are an issue in a nursing home action. Virtually all nursing home clients will be Medicare recipients and as such, will have a substantial portion of their medical bills paid by this federal program. Many also will be Maryland Medicaid recipients. When pursuing a personal injury action on behalf of a Medicare recipient, it is the responsibility of the attorney to notify the Medicare Secondary Payer Recovery Contractor (“MSPRC”) of the claim, date of injury and health care provider involved. Once this is done, Medicare will issue a conditional payment letter advising the attorney what the claimed payouts are for the injury at issue. Most times, Medicare will be over- inclusive in the health care costs it claims are associated with the injuries to your client. For example, if you are pursuing a claim for a fall that resulted


1. Living Client, Traditional Malpractice Where the client is still is alive, a traditional malpractice


action may be brought. Typically, such actions are for


pressure ulcers, falls and fractures, physical abuse and assault (either resident on resident or staff on resident), restraints, dehydration and malnutrition, and exposure to the elements as a result of elopement. Where the resident is married, a loss of consortium claim may be joined. Consortium damages are meant to compensate for loss of society, affection, assistance, and impairment to sexual relations. Where a consortium claim is brought, there is a single cap for non-economic damages. Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995).1 As with a typical personal injury case, recoverable damages


include past and future medical expenses, past and future loss of earnings capacity, and past and future non-economic damages. Tese noneconomic damages include pain, suffering, pre-impact fright,


inconvenience,


in a fractured hip on March 1, 2011, Medicare may reflexively claim that all Medicare payments made after March 1, 2011 are related to the injury. It is incumbent on the attorney to write a letter to the MSPRC that carefully and fairly challenges the conditional payment letter. Your goal is to have the MSPRC issue a new conditional payment letter that only captures medical payments for bills and costs directly related to the injury for which you are seeking compensation. An effective way to do so is to review and compare the codes listed on a conditional payment letter with the ICD-9 codes. Or, there are many lien resolution groups that perform this service at a reasonable cost.


By challenging claimed conditional payments from the


MSPRC, you can fairly meet your obligations under the statute while maximizing the amount of recovery to your client. Future medical costs can be an issue in a case involving a


living nursing home client. Tis most often is the case where damages for pressure ulcers and fractures are involved. For these injuries, future damages may reasonably be claimed for the costs of additional physical and occupational therapy, or plastic surgery like a flap closure. Punitive damages are all but unavailable in Maryland.


Owens Corning v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) and its progeny require a punitive damages litigant to prove by clear and convincing evidence of actual malice towards a particular individual. Actual malice is defined as evil motive, intent to injure, ill will or fraud.


physical impairment,


disfigurement, and loss of consortium. MCPJI 10:2. For causes of action arising after January 1, 2011, the statutory cap on noneconomic damages is $695,000. Md. Cts. & Jud. Proc. Code Ann. § 3-2A-09. Starting January 1, 2009, the $650,000 cap on noneconomic damages increases $15,000 each year.


1 For an excellent review of theming damages cases involving elderly clients, see Jon Gowen, Bruce J. Klores and Scott M. Perry, “Damages For Te Elderly,”Trial Reporter, Summer 2007, p. 48.


42 Trial Reporter / Fall 2011


2. Deceased Client, Malpractice and Wrongful Death


Where a client is deceased, there are two potential claims


that may be brought. Te first is a claim brought by the Personal Representative of the Estate of your client for all injuries and damages suffered between the time of the malpractice and the


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