Articles Posted in Tort Reform

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Just last week, the Pennsylvania House of Representatives voted down extending the Medical Care Availability and Reduction of Error Act (MCARE) to nursing homes and assisted living facilities in the state. Among other provisions, the MCARE Act currently caps punitive damages against doctors, hospitals, and healthcare providers to 200% of the amount awarded for compensatory damages in medical malpractice lawsuits. The latest version of the bill sought to limit punitive damages against nursing homes to 250%. Punitive damages are dollars awarded to a victim with the intent to punish the party responsible for causing injury. Punitive damages are also intended to deter the likelihood of similar incidents occurring in the future.

Damage Caps: A Solution to a Non-Existent Problem

Robert L. Sachs, Jr., a Pennsylvania personal injury attorney, told the Penn Record that nursing homes are “asking for protections that already exist, and they’re asking for protections…as a cure for a problem that hasn’t even been diagnosed.” Sachs goes on to challenge Pennsylvania nursing home defense attorneys to pull up 5 awards composed of large punitive damages.

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The story of the death of 8 residents at the Rehabilitation Center at Hollywood Hills in the wake of Hurricane Irma has saddened our country. How could a nursing home lose power and leave residents to suffer in over 90 degree temperatures with just a few portable air conditioning units? Before news broke that the facility had a laundry list of violations and lawsuits, Levin & Perconti’s own Steven Levin was interviewed on national news channel HLN about the magnitude of the situation (watch his interview here). Steven Levin told HLN’s Carol Costello “Where was the staff? How could they not be on notice that they would have a power failure in this type of situation? And what, if any, precautions had they made in the event of a power failure. Forget the power failure. They knew there were going to be extremely high temperatures in this area at this time.”

Now, sadness is giving way to anger as news outlets have reported that the nursing home has a long history of violations, lawsuits accusing the facility of abuse and neglect, as well as prior citations for a faulty generator. The lack of a backup plan for a power outage at the nursing home speaks to the facility’s utter disregard for the health and safety of their residents.

Florida Senator Gary Farmer told ABC 10 that the state needs to strengthen the laws for nursing homes. According to Farmer, “We’ve insulated these nursing homes through deregulation in this state, and that’s how things like this can happen.” Stories of nursing home abuse and neglect and health and safety citations frequently go unknown by the public for many reasons. Nursing homes can be quick to settle lawsuits to keep them out of the public eye, and citations are only found by residents, their loved ones, and the public when they know exactly where to search. Citations can be cast aside by remedying the problem and paying a fine to the state Department of Health or the Centers for Medicare and Medicaid Services (CMS). It was only after the 8 deaths that the state, under Governor Rick Scott’s order, shut down the nursing home.

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After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle a case of nursing home abuse or neglect will be more challenging and that financial compensation for injuries such as pain and suffering cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday. 

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Any political battle is also a public affairs fight. In an ideal world both sides of any issue would provide fair, accurate, and honest information about their position, respond fairly to valid points made by the other side, and concede when those opposing arguments are stronger. Unfortunately, we do not live in that world. Instead, misinformation, distractions, and “gotcha” one-liners dominate the landscape. That means that many community members are drastically misinformed about the real facts about any situation.

The sad reality is that this dynamic means that dangerous and downright harmful legislation is passed. Many of these bills take away rights and harm communities as a whole–only benefitting certain powerful interests. The ability of lobbying arms for those interests to convince community members otherwise is the key factor that allows this bad legislation to become law.

Disinformation Campaign

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Last week we shared information regarding the Center for Justice & Democracy’s “Briefing Book” on tort litigation. The takeaway from each post was that there remains serious misunderstandings about how many suits are filed and resolved as they relate to various “injury” cases–including lawsuits alleging nursing home abuse and neglect. While those calling for tort reform laws present an image of a justice system run amok, the data shows otherwise. Most people who are injured do not file suit, and even when they do, only a very small percentage go trial. Following a trial, the average verdict amount is usually far lower than the tort proponent supporters suggest. Similarly, punitive damage awards (always touted as a reason that the civil justice sytem is broken) are rarely given out, and, even when they are given out, the total is far lower than any figure that makes newspaper headlines.

In short: don’t believe what you hear about the current state of the system as promulgated by those seeking to “reform” the system.

On top of that, however, it is a mistake simply to play defense on these issues. It is one thing to say that things “aren’t as bad” as others are suggesting. But it it is another to say forcefully that not only is the system “not that bad,” but it is working as exactly as intended and thriving as a critical societal institution. That forceful case is exaclty what we should be making.

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The right to a jury trial in tort cases–including some nursing home lawsuits–remains under assault. The good news is that those in favor of protecting the unencumbered right to have impartial members of the community settle disputes have the facts on our side. Most of the claims made by big political interests about the need to take away consumer rights are either greatly misleading or sometimes downright false. That is why one of the main ways to fight back against these efforts is to become educated in the reality of tort litigation in America today.

To help, the Center for Justice & Democracy, a long-standing champion of civil justice rights, published its latest report to help provide succinct, accurate, and important information on the topic. The full report can be downloaded here.

The Truth About Tort Litigation

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The Centers for Medicare and Medicaid Services (CMS) may increase the number of events they refuse to reimburse nursing homes and negligent hospitals for carrying out. Currently nursing home residents who develop pressure ulcers and urinary tract infections are not able to have Medicare and Medicaid cover their treatment costs. This is an effort to require adequate nursing home care and to prevent nursing home abuse on elder patients. Currently, CMS is discussing the addition of hospital errors and surgical errors to the list of events that are not redeemable via insurance. If this passes nursing home residents may be impacted since many undergo pressure sore debridement in hospitals relating to the poor elder care they receive in nursing homes. To read more about the possible changes to be implemented by CMS, click here.

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The National Consumer Voice for Quality Long-Term Care is holding its annual meeting in October. The meeting is to be held close to Chicago, in a neighboring state. The organization prides itself on make advances in the care received by nursing home residents and works to prevent nursing home abuse, nursing home neglect and nursing home failures to supervise for patients. Organizations like NCCNHR are crucial to help obtain changes in nursing home reforms and to improve the quality of care that elder residents receive. To register for the conference or learn more information how this organization is working to improve nursing home care and long term care facilities click here.

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The Fairness in Nursing Home Arbitration Act, also known as the Nursing Home Arbitration Bill has been passed by the House Judiciary Subcommittee on Commercial Law and Administrative Law. The nursing home legislation, if passed by the Senate will prevent nursing homes in Illinois and all across the nation from requiring the elderly residents in nursing home to sign an arbitration agreement to gain admission. Amendments did not pass that attempted to exclude nursing home employees and nursing home physicians from the bill. To read more about this piece of nursing home legislation that may bring a change to Illinois nursing home residents click here.

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A recently passed Medicare Bill in the Senate may help provide relief to those who are insured by Medicare. Elderly Health Insurance is a very important topic in today’s world as the nation is facing an increasingly higher age population of seniors. Without the bill payments to physicians would have been cut placing higher costs on elderly patients to pay for their hospital bills, medical bills and even nursing home facilities. Proper elderly treatment and adequate elderly care can only come if the population is financially secure and can afford proper nursing home care and health care. Without insurance coverage or other sources of financial aid the elderly faces a terrifying decision to enter into a neglectful nursing home environment or an abusive nursing home environment. To read more about this bipartisan bill click here.