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Setting the Record Straight on Misleading Nursing Home Litigation Article

Tort reformers have made much ado about a study published this week in the New England Journal of Medicine entitled, “Relationship Between Quality of Care and Negligence Litigation.” The article claims to discuss the connection between federal nursing home quality indicators and nursing home lawsuits.

Proponents for changes in the judicial system that would limit the rights of negligence victims have long engaged in an information dissemination campaign attempting to legitimize their dangerous demands. This latest piece is more of the same-a misguided effort to add presumed sophistication to skewed ideas.

Rooting out the truth in this analysis involves examination of a few basic concerns: Who wrote the article? What information did they use? What results did they find? What do those results mean? A brief examination of those questions follows.

The Authors
It will come as no surprise to objective readers that several authors of this article, including the corresponding author, are paid by organizations seeking to limit the rights of negligence victims. These advocates receive compensation for their promotion of information that would take away possible legal choices from those injured and killed by the wrongdoing of others.

Insurance companies, for example, stand to save vast swaths of money if they are able to minimize their payouts to the victims of their clients. Two of this study’s authors are paid consultants for the American Medical Risk Insurance Company.

All the results that follow should be understood with that caveat in mind.

The Data
One troubling aspect of the research is the hidden nature of the participating nursing homes. The authors explain that the data comes from information voluntarily provided by 5 nursing home chains. For reasons unknown, the chains apparently self-reported the specific number of claims that have been filed against them, the type of claims, and the outcome. The reader is not apprised of what those chains are, what the specific claims were, or how the information was accurately culled.

The researchers also claim that they were made privy to the terms of settlement of claims. It is unclear how or if the nursing homes involved were affected in providing accurate information by non-disclosure agreements often included in settlement matters.

Another potent concern is the possibility that internal differences between quality nursing homes and poor nursing homes affect their self-reporting and consequently skew the entire endeavor.

In short, the data represents hidden information provided solely by a select group of nursing homes in a manner than cannot be tested, verified, or reproduced. No indication is made of why a reader should rely on these self-assessments.

The Results
It is with those glaring concerns about the data that the results must be considered. Surprisingly, the bottom line of the study is a bit underwhelming. The authors are forced to admit that, “the odds of being sued were significantly higher among nursing homes with more deficiencies.” Similarly, those homes that had more serious deficiencies were more likely to face a lawsuit.

Clamor was instead made because the odds of increased lawsuit were apparently not as high as the authors expected. However, even that observation is a bit overstated, as certain measures provided expected results. For example, nursing homes found by federal regulars with more pressure sore deficiencies were 100% more likely to be faced with a pressure sore lawsuit.

Unfortunately, the researchers did not have many different indicators connecting specific types of deficiency and specific type of lawsuit. Instead, the claim of minimal correlation between deficiencies and lawsuits was made on a generic basis. The reality is that certain types of deficiencies are more amenable to a judicial challenge because of the unique difficulties of proof required to succeed in a legal matter. It is entirely possible that some facilities have a higher amount of deficiencies in categories that are not often litigated. Consequently, the connection between deficiency and litigation would be artificially weakened.

The Lesson
In total, the article claims that an average nursing home in this anonymous group was presented with roughly a single lawsuit every two years. In that same span of time, the facility was cited by regulators for at least 7 deficiencies. That does not even account for the problematic incidents that are never caught by infrequent federal inspections. Therefore, the data could be read as revealing a logical reality: only the most egregious examples of nursing home abuse or negligence lead to nursing home lawsuits. Put another way, there are many more found deficiencies than there are lawsuits.

Regardless, nothing indicated in this questionable study has any bearing on the relationship between the legal system and victims of nursing home abuse and neglect. The general claim made here about lawsuits faced by different nursing homes ignores the face that nursing home lawsuits are filed by specific victims based on specific incidents. No legal roadblocks should be impede the option of those who were wronged to seek fair recourse in an impartial legal system.

Our Chicago nursing home lawyers at Levin & Perconti remain proud to fight for the victims of Illinois nursing home abuse. We understand the important role played by those who hold these facilities accountable for their individual acts of negligence that harm others. Our attorneys will continue to work for those seeking a fair hearing of their grievance.

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