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Press Release: Medmal Reform Abuses Nursing Home Residents

August 9, 2011

The healthcare community claims that we are in the midst of a medical malpractice crisis that threatens to close hospitals and force our doctors into retirement or relocation. Their favorite proposal addressing this crisis is to place a cap on lawsuit damages for pain and suffering caused by medical negligence, similar to California’s $250,000 cap which, according to some, has successfully controlled California’s medical malpractice insurance crisis.

Victims of nursing home neglect very often do not have advocates for their rights. They almost never have any substantial past or future medical bills requiring compensation. These victims never have claims for lost wages or diminished earning capacity. Dramatic medical bills and income lost over an extended period typically fuel large jury verdicts that create newspaper headlines.

Nursing home neglect victims have traditionally been unable to retain lawyers to represent them, because society has not placed much value on the pain and suffering of 80 and 90 year-old nursing home residents. Like most personal injury victims, nursing home neglect plaintiffs retain lawyers on a contingency fee basis. Victims’ attorneys are compensated only if the attorney succeeds.

In the past 10 years or so, however, the public’s attitude has changed. Our communities now recoil in shock and disbelief at the abuse and neglect that some elders have endured in nursing homes. Legislative and regulatory efforts have focused government resources on solving some, but not all, of the problems. Private litigation has played an important role, too.

As the intolerance of elder neglect and abuse grows, so too have jury verdicts. With verdicts increasingly based almost exclusively on pain and suffering damages, civil lawsuits are forcing nursing homes to reevaluate their conduct and implement changes by amending policies and procedures, hiring more staff, and providing better care.

This issue is particularly important in Pennsylvania. As of the year 2000, the Commonwealth of Pennsylvania was home to nearly 2.5 million people older than 60, with almost 255,000 people over 85. Unfortunately, the safety net of social services created to protect elders from neglect and abuse has not stopped these events from occurring.

In July 2001, the Minority Staff of the Special Investigations Division of the Committee on Government Reform of the United States House of Representatives released a special report at the request of Representative Joseph M. Hoeffel. The report detailed nursing home conditions in Pennsylvania’s 13th Congressional District. It concluded that:

• More than 70 percent of the nursing homes in the District violated federal health and safety standards during state inspections.

• More than half the nursing homes had violations causing actual harm to residents or had potential to cause death or serious injury. (It is even more frightening to note that the report itself explained this was based on data that might actually understate the extent of the deficiencies.)

• Those facilities surveyed were routinely faulted for failure to prevent falls and accidents, provide adequate nutrition and hydration, prevent physical abuse, prevent pressure sores and keep residents clean.

A $250,000 cap on pain and suffering damages would return us to the days when abuse and neglect victims had no hope that their individual rights and injuries would be protected and compensated. Such a cap would discourage lawyers from agreeing to represent these victims. As a practical matter, it would not be economically feasible for private lawyers to incur the great costs and commit the time to undertake this litigation when faced with a cap. Such costs and time commitments are largely driven by the litigation practices of the wagon-circling nursing home industry. Cap supporters understand that reality; cap supporters count on that reality.

Even if some form of a cap on damages was a justifiable step, one cannot in good faith accept that $250,000 is the proposed amount. California’s $250,000 cap was enacted in 1975, and has not changed in nearly 30 years. Residents of Pennsylvania and California have certainly experienced an increase in the cost of living since then! Just compare housing costs, education costs, car costs between 1975 and now. Why should a cap envisioned as adequate 30 years ago guide discussions now?

California took steps to minimize the consequences of its cap on nursing home neglect victims, prudent and protective steps which are not under consideration here. Despite its $250,000 cap, California victims of nursing home neglect and abuse can still retain lawyers to help them. California law makes a nursing home pay to the successful plaintiff reasonable attorney fees along with costs above and beyond pain and suffering damages, where the plaintiff establishes clear and convincing evidence that the nursing home is liable for physical abuse, neglect or fiduciary abuse and that the nursing home is guilty of recklessness, oppression, fraud or malice.

So even as California’s $250,000 cap becomes more and more outdated, victims of nursing home abuse and neglect can still secure legal representation, because nursing homes who have committed neglect and abuse are required to pay those costs. (Incidentally, other states have similar laws, including New Jersey, where some of our fleeing doctors will reportedly transfer their practices.) The Pennsylvania legislature not only is not considering this cost shifting, some lawmakers want to cap attorney fees.

Why does California have such a cost shifting law? Because the California legislature realized that residents of nursing homes were suffering chronic, industry-wide and criminal neglect and abuse which was not being criminally prosecuted, and therefore going unchecked.

The California legislature also realized that private lawyers had no incentive to represent the victims of nursing home neglect and abuse. Recognizing a public policy crisis supported by in depth studies -- studies consistent with national trends, not confined to California -- the legislature declared infirmed elders a “disadvantaged class” and provided incentives for private lawyers to fight for rights of such victims.

Like California, the Pennsylvania legislature has enacted legislation to stress the Commonwealth's recognition of the unique vulnerability of elders. In fact, the Pennsylvania legislature passed legislation making elder abuse and neglect a first-degree felony. In essence, the Pennsylvania legislature placed our state’s elderly into a protected class. Yet as it ponders ways to protect doctors, the Pennsylvania legislature has apparently not considered how these protections for doctors will devastate our elders. (One wonders if the healthcare community has thought about it at all.) To the contrary, if the Pennsylvania legislature acts in the way many anticipate, our nursing home residents will grow even more vulnerable. The consequence is beyond ironic.

Lost in the fight over medical malpractice insurance reform in Pennsylvania, is the untold story of how the reforms are inevitably going to further victimize victims. Simply put, if draconian caps are imposed on pain and suffering damages, legitimate legal claims of the most vulnerable members of our society will be washed away.

In our rush to help the doctors, let us not forget those among us who really need our help. If our state is to going to emulate California and adopt its $250,000 cap, let us also adopt the measures California enacted to ameliorate the cap and protect its most vulnerable citizens.

There is no valid reason to assume that the situation is confined to the 13th Congressional District. Doubtlessly, such problems exist throughout the Commonwealth, perhaps at an even more alarming rate.


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