South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

There are legal, ethical, and moral issues that arise when the government imposes legislation to limit the amount of damages a person or their family can be compensated from a jury.   One circumstance (there are many) has raised this inherent unfairness.  Last year in my hometown, a children's train derailed in a public park -- killing a child and seriously injuring 28 others -- but the law said all the victims could only split $600,000 to help compensate for their loss including paying back insurance for medical bills.  All of the victims are children. One family’s medical bills alone exceed the $600,000 that the 29 affected families are supposed to share.  The medical bills far exceeded the $600,000 so the victims of the gross negligence that allowed the accident to happen would get nothing.  Nothing for the loss of a child.

Recently, the politicians got together to discuss a bill that would raise that cap on awards that government agencies and non-profit groups can be ordered to pay, meaning victims of future accidents would have more money to help pay their bills.  The increase is small and meaningless--it should increase every year based on the growth of healthcare costs and/or inflation.

Of course, special interests like the S.C. Association of Counties, insurance companies, and "charitable" organizations have put pressure on the politicians to do nothing and let the bill to increase the caps die on the Senate floor. A ridiculous compromise bill would leave the arbitrary caps alone but give local government agencies the option to set up assistance funds to help pay the medical expenses of victims injured on public property.  Everyone knows that the option would never be used.

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I commend the government for paying $50,000 in wrongful death damages for each Afghan loss from the recent alleged mass murder by the US Army staff sergeant.  Let's run the numbers:

The average Afghan family income is $300.

The average South Carolina family income is $42,117, or 140 times the average income of an Afghan family.

If a SC state employee kills someone wrongly, our state values that wrongful death at no more than $300,000 under the Tort Claims Act.

If the government valued a South Carolina family as much as it does an Afghan family, the Tort Claims cap would be $42,117,000.

We should ask our state legislature why it so grossly undervalues our citizens' lives?

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Several media outlets have discussed the recent decision of an arbitrator in Massachusetts to dismiss the wrongful death case against Brandon Woods Nursing Home.  Elizabeth W. Barrow was strangled to death in 2009 while a patient there.  Her family filed a wrongful death suit claiming the nursing home and staff didn’t do enough to protect Barrow.  In the hours leading up to his mother’s death, Barrow's unstable and violent roommate had several violent episodes. The staff here left her in the room with his mother and never disclosed there was a problem. 

For some unknown reason, the arbitrator decided there was no negligence on behalf of the nursing home.  The state's medical examiner's office declared the death to be a homicide by manual strangulation, following an autopsy. A nursing assistant found Barrow dead in her bed with a plastic bag over her head.

This case is a great example of why the nursing home industry pushes mandatory arbitration in their admission paperwork.  They do not want a jury of their peers deciding these issues when some biased arbitrator can throw the case out without any recourse or appeal.

Where is the justice?

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Market Watch reported that Assisted Living Concepts, Inc. reported net income of $7.3 million in the fourth quarter of 2011 as compared to $5.4 million in the fourth quarter of 2010. Excluding the One-Time Items described below, net income in the quarters ended December 31, 2011 and 2010 would have been $6.3 million and $5.5 million, respectively.

"Fourth quarter results blossomed with the momentum we built up in quarter three," commented Laurie Bebo, President and Chief Executive Officer. "We continued to see improvements in workers compensation and general and professional liability expenses. We believe these items combined with our private pay strategy, increased occupancy and other careful cost controls resulted in record operating income for the fourth quarter and all of 2011."

For the year ended December 31, 2011, ALC reported net income of $24.4 million as compared to $16.5 million in the year ended December 31, 2010. Excluding the One-Time Items described below, net income in the years ended December 31, 2011 and 2010 would have been $22.1 million and $18.2 million, respectively
 

Assisted Living Concepts, Inc. and its subsidiaries operate 211 senior living residences comprising 9,325 residents in 20 states. ALC's senior living residences typically consist of 40 to 60 units and offer a supportive, home-like setting. Residents may receive assistance with the activities of daily living either directly from ALC employees or through our wholly owned home health subsidiaries. ALC employs approximately 4,200 people.

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Nancy W. Trentham represents the nonprofit Kentucky Initiative for Quality Nursing Home Standards.  She recently wrote a great editorial about Kentucky's attempts to create "medical review panels".  House Bill 361 proposed by Rep. Melvin Henley, D-Murray "would create so-called "medical review panels" explicitly designed to thwart resident justice and provide specific benefit to well-heeled corporate interests". 

"It would have to funnel through a "star chamber" chock-full of attorneys and physicians (mind you, there are no consumer representatives on the panel) to obtain the official seal of approval before his case can make its way to court.
Unlike every other citizen, unlike every other injured person, you cannot go to court unless and until you go to the special panel. This will take you and your family more time and will cost you more money.
And, it is important to remember, these panels are tipped in the providers' favor. Not only do operators have a cadre of shrewd lawyers defending them, but the panel members hearing the case would be professionally biased toward their nursing home pals. Even if you decide to engage in this bureaucratic nightmare, you might as well kiss speedy justice goodbye.
These panels could take up to six drawn-out months to render a decision, if all parties are able to participate. Some rural communities may have difficulty locating physicians or attorneys willing to close their practices for a day to take part in these panels. They know if they do participate that would be lost income for them and a hardship on their own patients and clients — not to mention a detriment to their local economies.
 
"So why are lawmakers picking on nursing home residents who have done nothing wrong? Money. Nursing homes rake in millions of dollars. The corporate fat cats have decided profiteering outweighs resident safety and care, and defending against lawsuits is a nuisance to their revenue stream.
If the industry can erect enough barriers to slow or stop lawsuits, then CEOs can fill the corporate coffers and ensure happy shareholders. Meanwhile, care worsens for residents by giving more protection to providers and less to residents."

The solution is to employ sufficient numbers of qualified caregivers.  "According to the nursing home industry's own data, both the cost and the frequency of lawsuits in Kentucky declined when staffing ticked higher. By investing in their own work force, nursing home companies will yield a higher rate of return Not only will residents enjoy a higher quality of life and care, but lawsuits will also decline. Seems like a no-brainer."

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The Huffington Post reported on the judge in North Georgia "who pulled his pistol in a courtroom in an apparent attempt to drive a point home to a sexual assault victim."   District Attorney Jeff Langley told the Atlanta Journal-Constitution that  Judge David Barrett was making "a poor rhetorical point" when he flashed the handgun in open court. , Barrett was presiding over a sexual assault case in which a woman brought charges of rape and aggravated assault against Scott Sugarman, a former Hall County sheriff's deputy.

But when the victim took the stand to testify, Barrett told her that she was "killing her case" -- allegedly because she wasn't cooperating -- pulled out his gat and pretended to hand it her way.

"[Barrett said] 'You might as well shoot your lawyer,'" Langley told the paper.   Langley claims that he objected and approached the bench to tell Barrett to put the gun down.

Georgia law allows judges to carry concealed handguns in the courtroom, but it's a crime to point a gun at another person if there's no reason to do so.

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The Huffington Post reported the outright hypocrisy of Rick Santorum who has a long history of pushing arbitrary limits to damages in medical malpractice lawsuits....except when it will benefit him and his family.  Santorum has advocated capping medical malpractice awards at $250,000, but his wife sued her doctor over a back injury and asked for twice that amount despite no permanent injury. 

The suit alleged a spinal alignment by a chiropractor was performed improperly and resulted in a herniated disk that caused her pain and suffering.  Santorum twice sponsored bills limiting the non-economic awards for pain and suffering that a plaintiff could seek to $250,000.  She sued for $500,000, despite the fact that her medical bills totaled approximately $18,800 and were paid for by her husband's government provided health insurance. The jury awarded Karen $350,000 but a judge reduced the amount to $175,000.

Santorum testified that his wife had "trouble walking, bending and lifting and has suffered humiliation from weight gain associated with her injury." Santorum also testified that it would be tough for Karen to help his re-election "because of her physical limitations and the poor self-image."

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The great and informative website ThePopTort published the hypocrisy of Montana lobbyist and lawyer Mark Baker.  Baker talks out of both sides of his mouth on the issue of so called tort reform.

Baker filed a class action lawsuit for Montana wheat farmers, cattle ranchers claiming that “the failed financial firm run by Corzine stole millions from their accounts to pay off its spiraling debts, and that Corzine's ‘single-minded obsession’ with making MF Global a big player on Wall Street led to the firm's collapse.”  The farmers had “’hedged’ their crop prices by placing millions in MF Global accounts but MF Global made a series of bad investments -- notably in European debt – [and] it began ‘siphoning funds withdrawn from segregated client accounts’ to cover its debts.”

Mark Baker is a lobbyist for the American Tort Reform Association, the DC trade association funded by large corporations that seeks to limit liability for its members.  "Not only that, Mr. Baker specifically lobbied for laws in 2011 written nationally by the corporate-backed American Legislative Exchange Counsel (ALEC), (we’ve covered ALEC quite a bit, like here), which would have placed new burdens on injured Montana victims who bring and win lawsuits, as well as make it more difficult for the state of Montana to hire outside counsel, allowing it to recoup money from corporate wrongdoers for its taxpayers."

"According to lobby report, Mr. Baker supported three bills for ATRA: HB 341, HB 342, HB 585:

HB 341 would limit the interest on judgments for injured victims, but not for corporations. Here’s the ALEC model bill.

HB 342 lowers appeal bond amounts. Here’s the ALEC model bill. This issue has been a huge one for ALEC as far back as we can remember.

HB 585 deals with contracts between state AG's and outside counsel. It is based on the ALEC model bill. This final bill would interfere with the contractual arrangement between outside counsel and the state Attorney General office, which are generally underfunded and understaffed and can't hope to take on big industries without outside counsels' help.

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The July 2011 edition of the Insurance Forum shows that insurance executives were paid hundreds of milions of dollars.  The findings were from the SEC, Nebraska and NY Insurance Dept. 114 executives received more than $5 million.  30 reported more than $10 million. 116 made between 1 to 5 million.  Ridiculous.

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