Nursing Homes Are Understaffed, Group Claims in Lawsuits

By David Kline
Editor

A local advocacy group filed suit last week against four nursing home chains, charging them with failing to meet minimum staffing levels required by state law.

The Foundation Aiding the Elderly filed suits in Alameda and San Francisco against Covenant Care California Inc., Kindred Healthcare Inc., Mariner Health Care Inc. and Pleasant Care Corp.

The suits specifically name 62 facilities as defendants, including two Sacramento nursing homes — Mariner’s Florin Health Care Center and Covenant’s Emerald Gardens Nursing Center.

“It is well documented that inadequate staffing leads to inadequate care,” Carole Herman, founder of Sacramento-based FATE, said.

“Nursing home residents are among the most fragile and vulnerable members of our society,” Herman said. “Understaffing exposes them to significantly increased risk of serious health complications ranging from poor hygiene and incontinence to pressure sores, infection, dehydration, malnutrition and serious accidents.”

Mark Todzo, an attorney representing FATE, said the homes have violated California Health and Safety Code Sec. 1276.5, which requires nursing homes to provide at least 3.2 skilled nursing hours per patient.

For example, Todzo said, a home with 60 residents is legally required to provide 192 personnel hours of nursing service per day, equal to eight skilled nursing employees per eight-hour shift, around the clock.

In court papers, Todzo claimed the four nursing home chains are operating well below that required level, from a low of 2.51 hours per resident at Pleasant Care’s facilities to a high of 2.84 hours per resident at Kindred’s.

Administrators for the two local facilities would not comment on the suits.

The parent companies have not yet responded to suits, but three of the chains have well-known law firms preparing defense arguments.

Kindred Care has retained Manatt, Phelps and Phillips, a Los Angeles firm headed by former Democratic National Committee Chairman Charles Manatt. The firm’s clients include AOL Time Warner, Bank of America, Pfizer Inc., Barbra Streisand and Wal-Mart.

Covenant has hired Hooper, Lundy and Bookman, which touts itself as “the largest law practice in the country dedicated solely to the representation of health care providers.”

Pleasant Care is represented by Gordon and Rees, a San Francisco-based firm whose partner Stuart Gordon recently received a California Lawyer of the Year Award from a legal publication.

FATE’s suits seek injunctions requiring the facilities to increase staff levels, along with restitution to residents and former residents, who, Todzo said, “didn’t really get what they paid for” because of understaffing. Where former residents are deceased, money would go to heirs, the attorney said.

The amount of the restitution will depend on how many residents were in the homes and what the staffing levels have been since Jan. 1, 2000, when the state’s staffing requirements went into effect.

“It’s a little bit unclear right now, but it could be substantial,” Todzo said. “It certainly could be in the millions of dollars, because, you know, they are expensive homes.”

The lawyer said it’s not known whether any money would go to FATE, which is suing under a statute which allows any citizen or group to act as a “private attorney general” to enforce state laws.

The case is based on staffing levels calculated using public documents filed by the facilities.

“They have to provide data to the state [which licenses nursing homes] and Medicare [which pays for many nursing home residents’ care], so it’s public information,” Todzo said. “We believe we have a very strong case.”

The next step is a May 19 conference to schedule future proceedings for three of the suits.