In a labor landscape where worker shortages are leaving many industries short-staffed, many attorneys say they anticipate an increase in personal injury cases stemming from oversight related to understaffing on the horizon.
Plaintiffs’ lawyers who spoke with The Legal Intelligencer said staffing shortages had always been on their radar when looking at possible incidents of negligence, but the problem has come to light more and more recently, particularly in environments such as hospitals, prisons and long-term care facilities. .
“What we’re starting to see is that the shortage has affected potential medical negligence,” said Heidi Villari of The Villari Firm. “It is noticeable in the medical files that arrive. Progress notes are missing. Nursing cards are not filled out. … that kind of stuff that you can actually see on the charts lately.
Villari said she started seeing the change in the early days of the pandemic. She said she’s seen pockets of injury claims come out of some facilities all within a week or two of each other. Upon close inspection, she said, they appeared to coincide with furloughs or other instances of reduced staffing.
Villari said while personal injury claims have largely declined due to the pandemic and its fallout, the types of claims that have cropped up have started to look different. “Although there are no drivers on the road…you can have tired drivers on the road,” she said.
Nancy Winkler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said most of the cases she’s handled where she’s seen a noticeable prevalence of negligence complaints stemming from understaffing were about prison conditions. She said she expects it will only be a matter of time before we see similar disputes arise in hospitals and other health care facilities. “I think we’ll see the effects over the next year or 18 months,” she said.
A US Department of Labor Statistics press release from May reported that the number of job openings in the United States at the end of March was “a streak high of 11.5 million”. According to DOL data, about 2.03 million of those openings were in the healthcare and social assistance sector, an increase from 1.37 million openings in March 2021.
Winkler said she hopes health care facilities can anticipate the problem before damage occurs, but that staffing issues could ultimately lead to issues such as improper triage in the emergency room or delayed treatment, which in turn could result in an injury claim.
Villari said she began to receive more reports of incidents such as a family member not being supervised by a nurse when he should or should not have received medication in time. She said a sign that such events are caused by understaffing is when they occur despite an organization having harm reduction policies in place to prevent such things – a concept which, according to it also applies to accidents occurring outside the scope of medical malpractice.
Post & Schell’s Joseph Bongiovanni IV said his healthcare clients, mostly large organizations, are struggling to keep their workforces high, and he has yet to see an increase in litigation due to shortages. However, he said, “I anticipate the ripple effect of this could be further litigation.”
He said he would expect that for larger organizations, burnout will become a problem as employees take on more work to compensate for the shrinking workforce. Small businesses with fewer resources are less likely to have enough staff to fill staffing gaps, he said.
But Deva Solomon, who heads Steptoe & Johnson’s professional liability group, said he was not particularly concerned about lawsuits stemming from understaffing. “We don’t see, and we don’t expect to see, a whole lot of increased litigation as a result of this,” he said.
Solomon defends nursing homes, which he says don’t suffer from shortages because there are regulations in place dictating the ratio of nurses to patients. Because of that, he said, care homes often pay more to maintain staffing levels despite high turnover, but those levels are the same as they always have been.
Solomon said claims against nursing homes have always included allegations of understaffing, and it’s no different now.
It’s true that understaffing often comes up as a claim in nursing home litigation, said Christopher J. Culleton of Swartz Culleton, but it’s the product of a severe shortage of nurses in those facilities, said he declared.
Culleton, who primarily handles nursing malpractice litigation, said he’s seen more claims stemming from understaffing partly because the problem has become more prevalent, but also because more people are aware of it. He said recently he has heard of more examples of care home workers explicitly saying they are being taxed due to a lack of staff.
“What’s happened is that families are increasingly aware of the link between understaffing and injuries,” Culleton said. He said they are now more likely to notice signs of understaffing when they see loved ones not receiving proper care.
According to Villari, the role that staffing shortages now play on personal injury should be “on every personal injury lawyer’s radar.”
“We need to have a different angle or look at this issue in each case that comes up,” she said.