The Pennsylvania Superior Court Expands the Doctrine of Corporate Negligence to Skilled Nursing Facilities on the Basis of Understaffing

Pennsylvania – Long-Term Care

On July 15, 2010, the Superior Court of Pennsylvania granted a new trial in the case of Scampone v. Grane Health care Company, et al., 2010 Pa.Super. 124 (2010), holding that the doctrine of corporate negligence does apply to skilled nursing facilities. The court further concluded that the jury should have been permitted to consider an award of punitive damages based upon the testimony of former employees who claimed that the facility was understaffed.

The plaintiff in Scampone brought claims for vicarious and corporate liability, alleging that understaffing at the facility led to the decedent developing a urinary tract infection, dehydration and malnutrition, which caused the decedent's death. In support of his contention, the plaintiff presented the testimony of numerous former employees who testified that they were not able to complete their job duties as caregivers because the facility did not have enough staff. Ironically, most of the employees who testified on behalf of the plaintiff were terminated from their employment at the facility.

At the time of trial, it was the defendant's position that the plaintiff did not set forth any evidence or expert testimony to establish that the facility was in fact understaffed. However, the Superior Court disagreed. The plaintiff's nursing expert, Kathleen Hill-O'Neill, testified that there was no documentation that the decedent received nursing care for nineteen days after the decedent had a change in condition and, as such, the standard of care was breached. The court reasoned that since there was a lengthy breakdown in care rendered to the patient, the testimony was sufficient to establish corporate negligence.

The doctrine of corporate negligence was first adopted by the Pennsylvania Supreme Court in the case of Thompson v. Nason Hospital, 527 Pa. 300, 591 A.2d 703 (Pa. 1991), wherein the Superior Court held that a hospital has the following duties to a patient: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. The corporate negligence doctrine was essentially established to hold corporations directly responsible for the medical care provided to the patient given the corporation's role in the total health care of the patient. As such, the courts refused to expand the doctrine to other entities, such as physician outpatient offices.

In Scampone, the court found that a skilled nursing facility may be held liable for corporate negligence as the facility was analogous to a hospital in its level of involvement in the patient's overall health care. This finding could greatly impact future lawsuits involving skilled nursing facilities and possibly even lawsuits involving personal care homes and assisted living facilities. To those working in long-term care, the role of the nursing home has always been just that: to provide "nursing" care. In light of the Scampone opinion, long-term care facilities are going to be scrutinized for the "medical" care provided to residents. This greatly expands the potential liability of long-term care corporations and may lead to a heightened investigation of the physicians treating residents at nursing homes.

Additionally, the Scampone Court concluded the facility acted with "reckless disregard to the rights of others and created an unreasonable risk of physical harm to the residents" of the nursing home. Therefore, the question of whether an award of punitive damages was appropriate should have been submitted to the jury. In making this conclusion, the court relied upon the testimony of former employees, who testified that the facility was understaffed and that their complaints about the staffing were never addressed by management. The court also relied upon the testimony of a former nursing supervisor, who claimed that the facility had advance notice of Department of Health surveys, which allowed the facility to superficially increase the staffing levels during the surveys.

In light of the foregoing, the following points are instructive:

• Nursing homes should maintain accurate staffing schedules and employee time cards to assist defense counsel in establishing that the staffing levels were adequate.
• The documentation of the nursing staff and the nursing aides is crucial to not only establish what care was provided, but also to avoid any large gaps in treatment that can be used to establish a claim for corporate negligence.
• Nursing facilities should maintain meticulous personnel files, which should include any complaints made by the employee and a signed acknowledgment of the abuse and neglect policy for the facility by the employee for use in the cross examination of disgruntled former employees.
• Defense counsel should retain an expert to testify as to staffing, including a review of the staffing sheets and daily census documents, to establish that adequate staffing was employed by the corporation.
• Defense counsel should consider calling a Department of Health surveyor as a witness to establish that the facility did not have advance notice of state surveys and to establish that the facility was not cited for a failure to maintain adequate staffing levels.

*Michele is an associate attorney in our Pittsburgh, Pennsylvania, office and can be reached at (412) 803-1195 or mvprimis@mdwcg.com.

Defense Digest, Vol. 17, No. 1, March 2011