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

JONATHAN D. GLATER wrote an article on the proganda and millions spent on trying to grant immunity to corporation who committ negligence to protect insurance company profits.  

Thomas J. Donohue, the head of the US Chamber of Commerce congratulated a group of executives, lobbyists and insurance lawyers to commemorate the 10th anniversary of the chamber’s Institute for Legal Reform.  But it is still too early to declare an end to the so-called tort wars, a decades-old propaganda movement to protect coporations and the profits of the insurance companies.  Corporate interests have won several potent victories, but trial lawyers continue to try to undo legislation restricting litigation and are pursuing new strategies of their own.

In state courts, where most civil litigation plays out, the number of suits involving auto accidents, allegations of medical malpractice and the like fell steadily from 1995 to 2005, according to the National Center for State Courts. The Chamber of Commerce says the number of megaverdicts for more than $100 million dropped to 2 last year, from 27 in 2000.

The chief executive of the American Association for Justice, Jon Haber, is skeptical of the results of spending by the Chamber of Commerce and its members to hobble lawsuits. And he defends the new name of his organization as reflecting what it does, rather than who its members are.  “The chamber’s political portfolio looks a lot like the portfolio of many Wall Street banks these days — a large number of bad bets that did not pay off but cost their members an awful lot of money,” Mr. Haber said.

He can rattle off recent victories for trial lawyers including voters in Washington State, for example, last year approved a bill that allows people to collect triple damages if an insurer unreasonably denies a claim.

In Colorado, an initiative to limit lawyers’ fees was answered with a barrage of proposals that would limit executive compensation, cap real estate sales commissions and raise the maximum amount of damages payable as a result of shoddy construction, among other things. All the initiatives were eventually withdrawn.

At the federal level, trial lawyers are pushing for a law that would make it easier for consumers to sue instead of having to submit to binding arbitration, as many contracts — for credit cards, for example — now require. The trial lawyers are also trying to make it harder for defendants to keep legal proceedings secret. “There are a number of things that are very much pro-civil justice that are starting to work through Congress,” Mr. Haber said.

The fight to change tort laws has developed into a big business in itself, with plenty of people invested in keeping the battle going.   Officials at the Institute for Legal Reform, the chamber unit, would not specify how much it spends annually on media and publicity campaigns, except to say it’s in the millions. And many organizations, nationally and in the states, lobby on both sides.

But the chamber itself, which represents millions of businesses of all sizes, is the biggest spender on the lobbying. In 2006, it spent $72.7 million, according to the Center for Responsive Politics, a nonprofit research group that tracks money in politics.

Anti-consumer groups came up with a multipronged propaganda strategy, involving advertising aimed at voters picking judges and continued lobbying of lawmakers. This “demonstration project" was successful enough that the Institute for Legal Reform has expanded it over the years. At the same time, businesses have become more active in state supreme court judicial campaigns and, in the 2006 election cycle, gave twice as much as lawyers did, according to the National Institute on Money in State Politics.

To help deliver a pro-business message, advocates have hit upon a ranking system. One list ranks “judicial hellholes,” as compiled by the American Tort Reform Association, and another identifies those states deemed by corporate general counsels to be most and least friendly to businesses. (That list comes from the Chamber of Commerce.)

In Mississippi, which received the worst ranking on the chamber’s list, advocates of limits on lawsuits made a special effort. In 2002 and 2004, state lawmakers passed legislation that, among other things, capped how much plaintiffs could recover in punitive damages and in noneconomic damages — compensation for pain and suffering, for example.

But Lance L. Stevens, a Mississippi lawyer and former president of the state’s association of trial lawyers, said that even after the changes to the tort laws, the state has moved up in the ranking by only a few spots. General counsels at big corporations are not critical of Mississippi because of its legal system, he said. “It is the corporate lawyers for the Fortune 500 companies expressing their general disgust for Mississippi and their mistaken belief that we are culturally retarded.”

Corporate executives say they want limits on noneconomic damages in order to reduce unpredictability in jury verdicts. But the caps hurt the very people who most need help — low-income people who sustain injuries, Mr. Stevens said. People who earn a lot of money can claim significant lost income as part of their injury. The unemployed, children, the elderly or anyone else with little earning potential stands to recover less for the same injury than someone in the work force.

 

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This is a well-written editorial from the New England Journal of Medicine discussing why it is important to preserve people's rights to bring tort actions. It is written by the editor of the NEJM himself.
http://content.nejm.org/cgi/content/full/359/1/1?query=TOC

Volume 359:1-3 July 3, 2008 Number 1
Why Doctors Should Worry about Preemption
Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D. 

A leading drug company may be poised to win a landmark legal victory next fall. If the drug manufacturer, Wyeth, prevails in a case soon to be argued before the U.S. Supreme Court (Wyeth v. Levine),1 drug companies could effectively be immunized against state-level tort litigation if their products that have been approved by the Food and Drug Administration (FDA) are later found to be defective.

A medical-device company won such a victory in April. In Riegel v. Medtronic,2 the Supreme Court determined that a product-liability lawsuit against Medtronic in a state court was preempted because the device had received FDA approval. Preemption is a legal doctrine based on the supremacy clause of the U.S. Constitution, which states that when federal and state laws are at odds, federal law takes precedence. Its application to state tort litigation is a radical extension of its original meaning.

Medtronic won its case because the 1976 law that grants the FDA authority to regulate medical devices contains a clause asserting that state requirements with regard to medical devices are preempted by federal requirements. Although the preemption clause is silent on common-law tort actions, the Supreme Court (with Justice Antonin Scalia writing for the Court) interpreted the preemption clause broadly to include such actions.

Unlike the law governing medical devices, the Food, Drug, and Cosmetic Act, which provides the statutory framework for the regulation of drugs by the FDA, contains no such preemption clause. Thus, in Wyeth v. Levine — which concerns a patient who lost her arm after an injection of Wyeth's antiemetic drug Phenergan — the Court will decide whether preemption of state tort litigation is implied by the law, even though it is not explicitly stated.

Previous administrations and the FDA considered tort litigation to be an important part of an overall regulatory framework for drugs and devices; product-liability litigation by consumers was believed to complement the FDA's regulatory actions and enhance patient safety. Margaret Jane Porter, former chief counsel of the FDA, wrote, "FDA product approval and state tort liability usually operate independently, each providing a significant, yet distinct, layer of consumer protection."3 Persons who are harmed have the right to seek legal redress. Preemption would erase that right.

But in the past few years, the government's views have shifted, and the FDA has reversed its position, now claiming that common-law tort actions are preempted. The FDA argues that tort liability stifles innovation in product development and delays the approval process, and that lay juries are incapable of making determinations about product safety. It has been argued, however, that Congress, not unelected appointees of a federal agency, has the power to decide whether preemption should apply.

Drug and device companies have chosen an inauspicious moment to attack the right of patients to seek redress. A series of pivotal reports on patient safety from the Institute of Medicine, as well as numerous articles in scholarly journals, has put the issue of patient safety in the national spotlight. Although frivolous lawsuits should not be condoned, product-liability litigation has unquestionably helped to remove unsafe products from the market and to prevent others from entering it. Through the process of legal discovery, litigation may also uncover information about drug toxicity that would otherwise not be known. Preemption will thus result in drugs and devices that are less safe and will thereby undermine a national effort to improve patient safety.

Owing in part to a lack of resources, approval of a new drug by the FDA is not a guarantee of its safety (see timeline).4 As the Institute of Medicine has reported, FDA approval is usually based on short-term efficacy studies, not long-term safety studies.5 Despite the diligent attention of the FDA, serious safety issues often come to light only after a drug has entered the market. The FDA, which — unlike most other federal agencies — has no subpoena power, knows only what manufacturers reveal.

Why should doctors be concerned about preemption? In stripping patients of their right to seek redress through due process of law, preemption of common-law tort actions is not only unjust but will also result in the reduced safety of drugs and medical devices for the American people. Preemption will undermine the confidence that doctors and patients have in the safety of drugs and devices. If injured patients are unable to seek legal redress from manufacturers of defective products, they may instead turn elsewhere.

In May, a Congressional hearing on preemption was held by Representative Henry Waxman (D-CA) and the House Committee on Oversight and Government Reform. As we stated in our testimony to the committee, to ensure the safety of medical devices, we urge Congress to act quickly to reverse the Riegel decision. Congressman Waxman and Congressman Frank Pallone, Jr. (D-NJ), are poised to introduce legislation that would unambiguously eliminate the possibility of preemption of common-law tort actions for medical devices. And if the Supreme Court rules for preemption in Wyeth v. Levine, which we hope it will not, Congress should consider similar legislation for drugs. Such legislation is in the best interest of the health and safety of the American public.

Dr. Curfman is the executive editor, Dr. Morrissey the managing editor, and Dr. Drazen the editor-in-chief of the Journal.   An interactive timeline is available with the full text of this article at www.nejm.org.

References

1. Wyeth v. Levine, cert. granted, 128 S. Ct. 1118 (2008).
2.  Riegel v. Medtronic, 128 S. Ct. 999 (2008).
3..Porter MJ. The Lohr decision: FDA perspective and position. Food Drug Law J 1997;52:7-11. [ISI][Medline]
4.  Kessler DA, Vladeck DC. A critical examination of the FDA's efforts to preempt failure-to-warn claims. Georgetown Law J 2008;96(2). (Accessed June 13, 2008, at  http://lsr.nellco.org/georgetown/ois/papers/2/.)
5. Baciu A, Stratton K, Burke SP, eds. The future of drug safety: promoting and protecting the health of the public. Washington, DC: National Academies Press, 2007.

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John Nichols wrote a great article for The South Carolina Lawyer Bulletin for Spring 2008 discussing the admissibility of expert's opinions pursuant to Rule 702, and the lack of necessity for South Carolina to adopt the federal standard described as Daubert for the infamous 1993 decision Daubert v. Merrill Dow Pharmaceuticals, Inc., 526 U.S. 579 (1993).  Daubert was intended to make expert testimony more admissible but Defendants and sympathetic Courts have made it more difficult and more costly to admit qualified expert opinions.  Mr. Nichols explains why the change is unnecessary and uncovers the disingenous arguments for adopting the change.  Below are excerpts from the article.

And what of Copernicus and Bruno?

“How do you know what you know?” That question was posed by Circuit Judge Roger Young in a November 2003 article he authored that was published in the South Carolina Bar’s magazine, The South Carolina Lawyer. Judge Young’s article has become somewhat of a centerpiece for the current efforts by the South Carolina Chamber of Commerce’s front group, the misnamed “Civil Justice Coalition,” in its efforts to have our General Assembly enter into the role of rule-maker by adopting a statute that would conflict with Rules 701 through 703 of the South Carolina Rules of Evidence. Of course, the role of making rules governing procedure and evidence in our judicial system is traditionally, and generally constitutionally, delegated to the Supreme Court. But the current effort, known as Senate Bill 687, attempts to usurp that authority in favor of a statutory revision of these rules of evidence.

In his article, Judge Young summed up his view of one means of determining reliability for scientific expert testimony by asking the expert the simple question: “How do you know what you know?” Judge Young pointed out that to assist the judges in interpreting the expert’s response to that question, the state and federal Supreme Courts have provided broad starting points, founded in evidence Rule 702. South Carolina’s version, which was adopted in 1995, was identical to the federal version until Congress amended the federal rule in 2000, which Judge Young points out was altered “to reflect the changes brought about by Daubert, although it does not enumerate the Daubert factors in the amendment.”

There’s the first rub: The United States Congress felt that Daubert and its progeny, particularly Kumho Tire, somehow strayed from the plain language of Rule 702, so much so that Congress felt the need to amend the Rule “to reflect the changes” in the Rule brought about by the United States Supreme Court in interpreting Rule 702 of the Federal Rules of Evidence. The Advisory Committee Notes to the 2000 Amendments say as much.

Turning to the current effort by the Chamber, in a hearing before a Senate subcommittee considering S. 687, advocates for the proposal claimed the current rules regarding admissibility of expert witness evidence in South Carolina resulted in a “lack of predictability” in our judicial system and that such unpredictability caused businesses to turn elsewhere when looking to locate. Advocates presented nothing other than their apocryphal stories, and the reason is clear: Businesses are simply not avoiding South Carolina because there is some perception that because South Carolina is not a “Daubert state,” our court system is unpredictable when it comes to the admission of expert evidence.

For example, on February 20, 2008, which ironically was the same day as a hearing before the Senate subcommittee, The State newspaper ran a front page article entitled “Massive trade center planned,” with the subtitle “Company could invest $100 million in first phase of I-26 project.” The article indicated an investment group known as World Trade City Orangeburg, LLC, which has ties to China and the United States, plans to purchase 1,200 acres of farmland near Bowman, South Carolina, for an international trade center that could employ more than 1,000 people. The group intends to eventually buy 5,000 acres, and its trade center will be near a 1,300-acre warehouse complex planned by a Dubai company, Jafza International, which bought land along I-95 near Santee for a project that could lead to construction of over $700 million in buildings and employment of 5,500 people by 2015. These international companies are investing significant sums into the Orangeburg economy.

Interestingly, on its website the South Carolina Commerce Department makes the following claim: “South Carolina is one of the most business-friendly states in the nation and continues to be the destination for companies to locate and expand.” The Department provides a “2006 Activity Report,” which brags about how “business friendly” South Carolina is; claims 14,420 new jobs were created in 2006; and lists “Top Ten Job Creations” during the year, all of which were investments in the State by out-of-state businesses.

In 2006, the “Small Business & Entrepreneurship Council” ranked South Carolina 11th among entrepreneur-friendly states, ahead of neighboring states Tennessee (13th), Georgia (25th) and North Carolina (40th). So the claims that there is no predictability in our rules of evidence and that this lack of predictability is scaring off business is completely untrue and as such cannot serve as a factual basis for just changing the established and familiar rules of evidence in a way deliberately designed to hurt the citizens, consumers, and small business people in favor of large out-of-state corporations.

Advocates for the rules changes in S. 687 often claim that “33 States have adopted Daubert,” but this is not true—even basic legal research belies this claim.  In fact, however, only 10 states currently adopt Daubert and Kumho Tire in their entirety, and a majority of States addressing the issue either limit its application or reject it outright like South Carolina’s current evidentiary rules.

The proponents of changing the rules also claim that other states have adopted legislation similar to S. 687, and thus South Carolina needs the statute in order to compete for business opportunities and create jobs. The truth is that only one other state has adopted anything like S. 687, and that legislation has not withstood a challenge on its constitutionality yet. Two other States have incorporated Daubert into their law by statute, but these are far from the broad reaching measures pushed by the Chamber of Commerce in South Carolina.

It is telling that the only proponent of S. 687 is the South Carolina Chamber of Commerce and its front group, “Coalition for Justice.” Groups that have testified and spoken openly in opposition to changing rules of evidence by statute include the South Carolina Attorney General, the South Carolina solicitors, consumer groups, small business groups and the courts. The Chamber simply has not made the case for change. Moreover, the General Assembly should consider the enormous financial impact on small business, consumers, and our increasingly burdened court system these changes would impose. The judges in our court system, who ironically we ask to rule on matters of life and death, are now being accused by the Chamber of Commerce of not knowing how to adequately deal with expert witness evidence in South Carolina after doing so for hundreds of years; those judges should be asked what they think of this ill-advised power grab by big business, and the rules changes’ costs and consequences.

Senate Bill 687 is a bad idea being promoted by the self-serving interests of large corporations intent on making access to justice and fairness under the law hollow promises. It is our hope that the facts will emerge through the fog of hyperbole and misinformation driving this effort to favor out-of-state corporations over the people of this state.

Addendum:  We would like to thank John nichols for allowing us to use his article. Nobody knows more about South Carolina law, or writes better than John Nichols.

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The Atlanta Journal constitution wrote a story about a Georgia Judge finding tort reform caps to be unconstitutional.  The cap on monetary awards in a medical malpractice case was found to be unconstitutional.

Superior Court Judge Marvin Arrington wrote in an order that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by others.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can't," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

The legislature approved the $350,000 cap in 2005 as part of a civil-justice tort reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups.   In 2006, the Georgia Supreme Court stuck down another provision of tort reform when it ruled that defendants couldn't decide in which county their medical-malpractice case was tried.

In his written opinion, Arrington complained that limiting the caps meant that in many cases, large jury awards would be issued only to wealthy people who could point to the loss of large incomes.

"The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

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Here is an article showing how profitable the nursing home industry actually is while the insurance companies are requesting immunity and protection from their neglect and abuse.  

Robust Financial Standing Of California Nursing Homes Observed Amid Slump In Quality Care
Vittorio Hernandez - AHN News Writer

A study released Tuesday reported growing profitability of the nursing home industry, but declining health care quality.

Researchers from the University of California San Francisco found out that two years after the state passed legislation increasing reimbursements from Medi-Cal, average nursing home income from the state's healthcare program went up to $152 from $124 daily.

The same study discovered 16 percent of nursing homes in the state failed to measure up to California's minimum staffing benchmarks. A minimal rise in average salary for nursing assistants by less than one dollar was not sufficient to cover inflation rate increases. Even higher-paid nurses had a fast turnover rate, with 7 in 10 resigning from their jobs in 2006.

But average spending on direct patient care went down by 3.6 percent, while complaints of patient mistreatment proven went up by 36 percent.  Charlene Harrington, the lead author of the study, wrote as her comment, quoted by the Los Angeles Times, "They got so much money, they should have been able to do something."

See also the L.A. Times article on this study which added the following:

California nursing homes bolstered their bottom lines with $590 million that state lawmakers provided them to better tend to the poor, while patient care declined by several key measures such as turnover among nurses increased slightly, with nearly 7 in 10 leaving their jobs that year, the amount nursing homes spent on direct patient care actually decreased by 3.6%, and substantiated complaints of patient mistreatment increased by 38%. State and federal regulators cited homes for 6% more violations.  Said Michael Connors of California Advocates for Nursing Home Reform, a patient watchdog group, "to a great degree, no one knows where the money went and how it was used. What's clear is it hasn't been used for beneficial effects on residents, which is appalling."

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There is a great editorial by Tamara Hill in the Tennessean.  Here it is in its entirety.

Lawsuits are the only way some nursing homes will provide the services they're supposed to offer

By TAMARA L. HILL   Tennessee Voices

In response to a letter to the editor by Debra Fish ("Nursing homes are pot of gold to lawyers," March 5):

Taxpayer money does not line the pockets of attorneys who sue nursing homes for providing negligent care. If the facility is found to be negligent because a civil justice attorney brings its behavior to the attention of the courts and jury system and the facility pays a judgment or settlement, Medicaid and/or Medicare, whichever paid for the negligent care, is reimbursed ... meaning the taxpayers are reimbursed when a facility is found negligent, not that the taxpayers' burden is increased.

It has also been suggested that lawyers "pile on huge sums of money that bankrupt nursing homes and keep money from being spent on improving care for the residents" on top of judgments allowed by judges and juries. This simply is not true. A lawyer cannot force the nursing home to pay more than the judgment or settlement amount.

As a former nursing-home nurse working in administration, there were multiple instances in which I had to beg corporate for things needed to provide basic patient care ... soap, shampoo, gloves, bandages, dressings, towels, sheets, equipment and, of course, the staff to actually provide the care. I was often told that it wasn't in the budget.

Sometimes the ONLY way I could get what I needed for the residents was to say "OK, but if I can't get what I need for my staff to take care of them, then you are just buying a lawsuit." Then, suddenly, someone "found" money in the budget to get the things the patient needed. If there were caps, then it would become a cost-benefit risk analysis, weighing a known cost (about 75 percent of the cap) and the savings (benefit) by not providing the staff, supplies and care vs. the risk that someone would take the lawsuit with caps in place.

National HealthCare Corp. is using some of its money in two ways: One is to give bonuses to its corporate employees. Another is to pay lobbyists to convince your state legislators that it needs "liability reform" so that it can't be held responsible for its negligence.

The proposed bill seeks to put a cap on so-called non-economic damages suffered by nursing-home residents, such as pain and suffering, emotional distress, disfigurement and death. It also seeks to make the cases much more expensive to pursue and defend by placing nursing homes under the Medical Malpractice Act.

Finally, the bill seeks to give nursing homes the ultimate immunity by forcing residents to sign away their right to access to the courts as a condition of admission. How does this protect patients? I submit to you that it does not. It protects nursing-home profits.

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Insurance companies, the Chamber of Commerce, and the American Medical Association attempt to advance tort reform (i.e immunity for their members) by making up frivolous cases and trying to convince juries that doctors are fleeing states without caps on damages for victims of negligence and abuse.

However, new information based on the AMA's own data on the number of physicians practicing in the states proves that these disingenous Chicken Littles are flat wrong.  Some key findings include:

1)  The number of doctors is increasing across the country. There were 921,904 physicians in the U.S. in 2006, nearly 20,000 more than in 2005.  Despite the alleged "physician flight" crisis, the number of physicians rose in every state except Louisiana, which had a total decrease of seven doctors (mostly related to the economic devastation of Hurricane Katrina).

2)  The numbe rof doctors is increasing faster than the population growth. There were 303 physicians per 100,000 people in 2006, an all-time high nationwide.

3)  The numbe rof physicians per 100,000 resdients is much higher in states without caps on damages (311 vs. 280).  Since 2000, the physician-to-population ratio in states without caps has increased twice as much as in states with caps.

Do not be fooled by the propaganda of the insurance companies and for profit health care providers.  They are interested in what is best for them and their bottom lines and not what is best for the victims of their malpratice.

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The Houston Chronicle has an article about the amount of money and influence that the nursing home lobbysit have in creating legislation to protect their industry.   The American Health Care Association spent about $1.7 million lobbying the government last year on a variety of bills affecting health care.  The AHCA, which represents nursing homes and assisted-living facilities, spent $860,000 in the first half of 2007 and $881,000 in the second half.  The organization also paid Patton Boggs LLP $160,000 in the second half to lobby the government.   The AHCA lobbied on a range of legislation including laws affecting Medicare and Medicaid, caps on damages, immunity for neglect and abuse, and compelling arbitration in nursing home cases. 

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There is a NY Times article discussing the litigation against certain insurance companies for cheating patients and doctors from reasonable reimbursement based on an investigation of the industry’s arcane procedures for calculating “reasonable and customary” rates.

The investigation, by the New York State attorney general, Andrew Cuomo, indicates that  procedures used by insurance companies to determine what they will pay when patients visit a doctor is rigged to shortchange the beneficiaries.

When patients get treated by certain doctors, insurers agree to pay 80 percent of the "reasonable and customary rate" in the same geographic area. The patient pays the difference.  The rate always falls short of what their own doctor is charging.   The numbers are compiled by an obscure company known as Ingenix, which is owned by UnitedHealth Group, one of the nation’s largest health insurers. This system is abused for profit.

UnitedHealth and subsidiary Ingenix  both have a strong financial interest in cheating insured by keeping reimbursement rates low and making patients pay the difference.  Ingenix is unwilling to stand behind its numbers.  In licensing its database to insurers, it stresses that the data is “for informational purposes only” and does not imply anything about “reasonable and customary” charges. Yet that is precisely what the health insurers use the data for, as Ingenix knows. 

The  American Medical Association, which has a long-standing suit filed against Ingenix and various UnitedHealth companies, claim that the data is manipulated. They claim that health insurers and Ingenix disproportionately eliminate high charges, thus skewing the numbers for customary charges downward.   Ingenix uses outdated information, which would guarantee that reimbursement rates will always lag behind medical inflation. 

It is clear that the system for calculating “reasonable and customary” charges ought to be reformed by making it truly independent and objective. No consumer can reasonably trust numbers generated by a company whose loyalties and financial interests lie with the health insurers.

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Tennessee nursing homes are seeking unprecedented legal protection from residents who are abused or neglected.   Politicians influenced by nursing home lobbyist campaign donations introduced a bill that would severely restrict the rights of nursing home victims to seek justice no matter how bad the injury they suffer and no matter how bad the conduct of the home.

NHC, which reported more than $500 million in annual gross profits in 2006 and whose CEO Robert G. Adams makes more than $1.3 million a year, pushed for the legislation.   The legislation would ensure that:

Residents would have little to no recourse against nursing homes no matter how bad the conduct of a home.

Nursing homes can demand that residents sign arbitration agreements waiving their constitutional right to a jury trial in order to get medical care, making nursing home residents the least protected class in the state.

“This proposed legislation is a slap in the face to some of Tennessee’s most vulnerable citizens – the residents of nursing homes and their families,” said Karla C. Hewitt, president of Tennessee Citizen Action, a grassroots consumer protection organization.  “Nursing home residents are suffering. Inspectors have found residents with maggots in their wounds and broken bones that aren’t treated,” Hewitt continued. “And now this billion dollar industry wants to take away the rights of individual residents to sue? This shows how low the nursing homes will go to protect their shareholders' profits.”

Though the multi-billion dollar nursing home industry complains of an epidemic of frivolous litigation, in fact only four verdicts were awarded against Tennessee nursing homes from 2005-2007.   During that same period, nursing home admission suspensions tripled. In 2007, 22 nursing homes had their admissions suspended for putting their residents in “immediate jeopardy.” According to records at the Tennessee Department of Health, the 152 immediate jeopardy violations in those homes include reports of patients suffering the following:

Risk of injury or death by fire
Maggots in wound
Broken bones unattended for days
Drastic weight loss due to improper nutrition/oversight
Impacted bowels caused by inattention/oversight
Extreme pain with no relief
Fear of staff

In addition to these violations, a worker at a home in Madison was arrested in May 2007 for raping a 70-year-old resident.

The State of Tennessee allocates 99% of funding from the Centers for Medicare & Medicaid Services – more than $1 billion a year – to nursing homes and only 1% to home and community-based care.  

About Tennessee Citizen Action (TNCA)

TNCA is Tennessee’s consumer watchdog organization working on behalf of a number of consumer protection issues, including patients’ rights; nursing home reform; quality health care; increased home- and community-based options with more consumer control; title lending; aftermath of sub-prime lending crisis; workplace health and safety; and voter education, registration, GOTV, problems with electronic voting and lack of a paper trail. TNCA is a grassroots citizen group based in Nashville seeking to build a unified movement for reform in Tennessee. TNCA works to create long-term political change by building diverse coalitions around our major issues. The organization actively works in coalition with a range of health care, environmental, government reform, and labor organizations. For more information, visit: http://www.tnca.org.

Contacts
Tennessee Citizen Action
Shelby White, 615-327-7999

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We’ve all heard the argument made by the insurance companies and nursing home industry: so-called tort “reform” will lead to better healthcare for everyone. This is the line that the insurance and medical industries have been pushing in states all across the country.  The truth is that patients in states with arbitrary restrictions on their access to the legal accountability system are more likely to have worse overall healthcare.

Using the non-profit Commonwealth Fund’s independent ranking of state health system performance, access, and quality, Texas Watch compared states that restrict patient access to the courthouse with those that do not. In every category, it is clear that patients in states that restrict patients’ legal rights fare worse than those in states that allow patients to hold wrongdoers accountable.

Here are the key findings:

69% of states with poorest overall health system performance (bottom quartile) limit patient access to the courts
79% of states with the worst access to healthcare limit patient access to the courts
84% of states with the poorest quality of care limit patient access to the courts

To read the full report, click here.

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The West Virginia Supreme court recently discussed how pre-suit notice and expert affidavit creates absurd results. This is very important since South Carolina passed similar legislation 2 years ago.  The article was written by Justin D. Anderson for Daily Mail Capitol Reporter.

Supreme Court Justice Larry Starcher wrote  "I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform) in its entirety," in a dissenting opinion last week. 

The lower court found - and the Supreme Court agreed - that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.  Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and an affidaivt from a qualified expert.

Also, under the act, the plaintiffs' non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe.  "To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.

He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence." 

Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."

Starcher called the act "cookie-cutter" legislation that has created "absurd conundrums." He said the courts are more responsible and adept at making meaningful changes than the Legislature.

"But the Legislature, when changing the common law, often makes drastic statutory changes in response to real or perceived crises, and often without a clear understanding of the impact those changes might have on individual cases."

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Here is an interesting article about a pro tort reform doctor who has had a change of heart after experiencing first hand the law of unintended consequences as a result of tort reform.  Here is an excerpt from that article.

Dave Stewart's mother went to the hospital for surgery in April. Four days later, she was dead.
To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. Stewart and his two sisters wanted to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state. The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000.  Proponents say it discourages "frivolous" lawsuits.   The cap on pain and suffering has never been raised nor tied to inflation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.

Some malpractice victims and their families say the benefits of the law have swung too far in favor of doctors. Without accountability, some ask, what will keep physicians from making careless mistakes?

On average, California juries (which are rarely informed of the cap during trials) awarded $800,000 in malpractice death cases from 1995 to 1999, but the amounts were later reduced to $250,000 under the law. This suggests that medical malpractice victims and their families could be reaping much larger payouts than the law allows.

Recent malpractice premium increases may have had more to do with insurers' business models and financial investments -- including documented losses in their investment portfolios in recent years -- than with their core businesses.

Stewart, of San Diego, said he had long been a MICRA advocate, believing it was in the best interest of doctors and patients. Not anymore.

After he and his family got over the initial shock of losing their mother, they wanted justice. Most attorneys turned them down over the phone, although three agreed to meet in person. Last summer, the entire family and their 80-year-old father made the trip to San Francisco and Oakland for meetings.

One lawyer said he would take the case only if the family paid the expected $50,000 in trial costs upfront.

San Francisco lawyer Brad Corsiglia at first seemed interested but later sent a letter dated July 11, 2007, that read: "As you can understand, with a cap of $250,000, we are limited in the type of case we can take on a contingency fee basis to only those cases that involve catastrophic economic losses."

"In 1975 you could buy a house for that money, and today what does it get you?" asked Stewart, whose parents would have celebrated their 54th anniversary last month. "Every year MICRA stays the same is another year that people who have been wronged will be denied the same justice."

Some state courts have struck down malpractice caps that didn't rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state's Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Becky Dessenberger's 2-year-old son, Jacob, died at Children's Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day.

In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000.

Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face.

"Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don't think it's fair."

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In the latest issue of the magazine Trial, thereis an interesting article about how medical malpractice settlements are reasonably related to the quality of care provided according to an analysis of 11 different studies on settlements.    The article is in the December 2007 | Volume 43, Issue 12 and the author isValerie Jablow, Associate Editor.

Below is an excerpt of that article:

An analysis of the results of 11 studies of medical malpractice claims and settlements shows that “medical malpractice settlements are neither random nor irrational” and that “quality of care drives settlement outcomes,” with the likelihood of payment and the amount paid “closely related to the merit of the underlying claim of medical negligence.” (Philip G. Peters Jr., What We Know about Malpractice Settlements, 92 Iowa L. Rev. 1783 (2007).)

“People who studied the field have been aware of these findings for some time,” said Philip Peters, a University of Missouri law professor who conducted the analysis. “But the previous descriptions of them have tended to be relatively anecdotal, not attempting to tie them all together in a concrete way to show what the pattern is.”

Tort “reformers” have long alleged that medical malpractice settlements are an “irrational lottery,” where fault and settlement are unrelated, Peters noted in his report. Many critics have relied on a small analysis in the widely cited Harvard Medical Practice Study, which concluded that the merits of 51 malpractice claims examined had no relation to the likelihood of settlement. (Troyen A. Brennan et al., Relation Between Negligent Adverse Events and the Outcomes of Medical Malpractice Litigation, 335 New Eng. J. Med. 1963 (1996).)

Peters looked at that study and 10 others completed between 1988 and 2006 that examined settlements in almost 20,000 medical malpractice cases. He found that the 1996 Harvard study is an “outlier”: Taken together, the data Peters analyzed showed that “weak claims are much less likely to result in a settlement payment than strong claims,” with only 10 percent to 20 percent of weak cases resulting in payment (and then, usually only a “token” amount, such as forgiveness of unpaid medical bills).

Strong cases, Peters found, settle at a higher rate (85 percent to 90 percent) and for much larger average payments. “Borderline” cases fall somewhere in between strong and weak ones.

Peters also found that many cases settle at a “discount,” often for less than their expected value. Such discounts operate in two ways, Peters wrote, “once in the insurer’s decision whether to make any settlement offer at all and again in the size of the offer to make.” He found settlement offers to be significantly less likely in weak cases than in strong ones, and when an offer is made in a weak case, it is significantly smaller.

This “surplus discounting,” Peters noted, reflects the “superior bargaining power of malpractice defendants,” including greater risk tolerance, better access to information and experts, and more experienced lawyers.

The fact that some weak cases settle “does not mean that the process is working unfairly,” Peters wrote. “This conclusion would only be justified if the payments were not being discounted to reflect the weakness of the claims being settled.”

The report also noted that about the same percentage of strong cases—10 percent to 20 percent—get no payment at all.

However, the study also concluded that “to the extent that settlement outcomes depart from the merits, the discrepancies usually favor malpractice defendants. . . . As a result, plaintiffs have more reason to complain about the system’s imperfections than defendants do.”

“Through 11 studies, we have the benefit of people who have accessed the files and found that cases settle much the way ordinary people would handle them if they were lawyers,” he said. “The reassuring finding from these studies is that the civil justice system really is asking the right question: ‘Did the patient get competent care or not?’ The findings show the system works.”

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I read a great article about the myth of frivolous lawsuits and how insurance companies have created the Stella Awards to mislead the public (and juries) about frivolous lawsuits.  If there is so many frivolous lawsuits, why does the Chamber of Commerce and the insurance industry feel the need to make up these ridiculous lawsuits?  Below is an excerpt of the article.

  Recently one of my oldest and dearest friends, a man whose Harvard Ph.D. doesn't begin to measure his intellect and wisdom, sent out one of those mass e-mails meant to amuse and appall. "OMG! It's even worse than we thought," his message began. It was followed by something called the annual Stella Awards, a list of the year's seven "most outlandish lawsuits and verdicts in the U.S."

In last place was the tale of Kathleen Robertson of Austin. A jury decided a furniture store owed her $80,000 for a broken ankle she suffered tripping over a toddler running wild in the store. "The store owners were understandably surprised by the verdict, considering the running toddler was her own son," the e-mail said.

Numbers six through two are more ridiculous.

Then comes numero uno. Winnebago winner? "This year's runaway First Place Stella Award winner was Mrs. Merv Grazinski, of Oklahoma City, who purchased a new 32-foot Winnebago motor home. On her first trip home, from an OU football game, having driven on to the freeway, she set the cruise control at 70 mph and calmly left the driver's seat to go to the back of the Winnebago to make herself a sandwich. "Not surprisingly, the motor home left the freeway, crashed and overturned. Also not surprisingly, Mrs. Grazinski sued Winnebago for not putting in the owner's manual that she couldn't actually leave the driver's seat while the cruise control was set. "The Oklahoma jury awarded her – are you sitting down? – $1,750,000 plus a new motor home. Winnebago actually changed their manuals as a result of this suit, just in case Mrs. Grazinski has any relatives who might also buy a motor home."

The e-mail concludes: "Are we, as a society, getting more stupid?" Guffaws around the world The answer may well be yes, stupid enough to believe that this sort of nonsense really happens.

 My friend was not the only credulous one. A Nexis search for the name "Merv Grazinski" turned up scores of articles, the vast majority buying the Winnebago story as gospel truth. More than a few are lazy columnists, who were too dazzled by marvelous stories to do even the easiest research to determine whether they were true.

Among outlets falling for the hoax were the New York Daily News, CNN and U.S. News & World Report. American writers weren't alone in their gullibility. Even more credulous mentions of the daffy Mrs. Grazinski (or Mr. Grazinski in some accounts) appeared in foreign papers. Readers in Canada, England, Australia, Ireland, New Zealand and even Vietnam guffawed at the expense of us stupid Americans.

To its credit, the Austin American-Statesman debunked the story of Ms. Robertson and her toddler several years ago, when the "Stella Awards" started making the rounds. Los Angeles Times reporter Myron Levin went one better. He called Winnebago. "Wide acceptance of the myths has been an eye-opener for Sheila Davis, public relations manager for Winnebago Industries in Forest City, Iowa," he wrote. "Davis says she has repeatedly had to explain that no, there was no Grazinski lawsuit, and, no, the company did not have to change the owner's manual to avoid a swarm of copycat claims."

 Even ones such as the notorious McDonald's scalding coffee suit are not nearly so silly as they become in manufactured legends. The Albuquerque jury did award Stella Liebeck, 79, (after whom the "Stellas" are named) almost $3 million after she spilled coffee on her lap, causing third-degree burns, a week's hospitalization and skin grafts. But the jury had learned that McDonald's served its coffee much hotter than other restaurants, that it had received more than 700 previous complaints and had paid more than $500,000 in earlier settlements. Liebeck originally asked for just $20,000 to cover her medical bills and other expenses, and that McDonald's serve its coffee at a more moderate temperature. McDonald's offered her $800. Shortly before trial, a mediator recommended McDonald's pay $225,000. The company said no. Jurors awarded $160,000 in damages and $2.7 million in punitives, hoping to change the company's behavior. The judge lowered the punitives to $480,000, and the case settled for an undisclosed amount, presumably less.

Here's the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations. One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."

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In response to the Trackback added to the Nursing Home Reform post by Civil Gideon I would like to offer my thoughts on the subject.  If nursing home regulators and agencies acted decisively  when problems appear, then much improvement could occur in overall care.  But that typically doesn't occur.  In most states (especially South Carolina) the regulations are ineffective, or overly protective of the industry.  (In South Carolina, the state agency usually only decides that a complaint is "founded" if the facility admits the allegations; even then, enforcement is minimal).  Thus, in most states, when patient injury occurs from the facility's negligence or abuse, litigation is typically the ONLY way of obtaining reasonable redress of any kind.

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NEW YORK (MarketWatch) -- Manor Care Inc. has agreed to be acquired by private-equity firm Carlyle Group for about $6.3 billion in cash, the nursing-home operator said Monday.
Under terms of the deal, Manor Care's stockholders will receive $67 in cash for each share of common stock they own.
This represents a premium of less than 3% to Friday's closing price of $65.29, but it's 20% higher than Manor Care's $55.75 price on April 10, the day before the company announced it was exploring strategic alternatives.

This sale proves the healthy financial condition of the nursing home industry, and the lack of need for so called tort reform to insure their profitability.

for more information about Carlyle Group, click here.

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There is no need for "tort reform" when 100,000 patients die each year as a result of medical malpractice and juries tend to side with the doctors anyway!

Juries in medical malpractice cases sympathize with the doctors being sued rather than the patients who are suing them, a law professor at the University of Missouri at Columbia has concluded after analyzing three decades of research on the subject.

There is no evidence to support the propoganda that the tort system amounts to a lottery for injured plaintiffs. If anything, the system is biased against them.

For several years the Bush administration has pushed to reform the tort system, decrying an "epidemic" of frivolous malpractice cases and "runaway" jury verdicts that officials maintained were forcing doctors out of practice and leaving patients without needed medical care.

"The studies reveal that juries treat physicians very favorably, perhaps unfairly so," Peters writes, "and are more likely to defer to the judgment of a physician defendant than other physicians are."

Doctors, he found, win about half of the cases that independent experts who review them believe should result in a plaintiff's victory. That juries rule in favor of doctors more often than independent medical reviewers do is particularly surprising, Peter says, "given the documented reluctance of physicians to label another physician's care as negligent."

Overall, injured patients win only about 27 percent of all cases that go to trial -- the lowest rate of any category of tort litigation, researchers have found.

There are several reasons for the bias in favor of physician defendants, Peters notes. Among them are the defendants' superior economic resources and social standing; jurors' willingness to give a doctor the benefit of the doubt in cases in which the evidence is confusing or complicated; and cultural prohibitions against seeming to profit from injury.

A jury's lack of medical expertise, Peters says, tends to favor the doctor, not the patient.

"Critics assume that the 'battle of experts' frees juries to award unjustified recoveries," he writes. "The data suggest that it is more likely to shelter negligent physicians."

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Oklahoma Governor Brad Henry has vetoed a tort reform bill that would have changed the way medical malpractice cases were litigated in the state.  Governor Henry said he found the bill unconstitutional and restrictive of citizen's rights. 

One example he cited was a $300,000 cap on non-economic damages such as pain and suffering.  The bill would also restrict punitive damages in several circumstances.  Governor Henry says he will work with lawmakers to address some of his issues with the bill.

Read the article at :  http://www.insurancejournal.com/news/southcentral/2007/04/30/79077.htm

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I have been surfing around on the internet today, and was looking at one of David Swanner's most recent blog posts, where he talks about Stephanie Mencimer's blog, The Tortelinni.  That led me to a post on there about tort reform and nursing homes.  That got me thinking . . .

This is an issue we deal with a great deal, and that we fight against every day - the idea that "frivolous lawsuits" are increasing insurance premiums for nursing homes to the point that they might have to close their doors.  Never mind the evidence the feds are not providing the oversight needed to prevent abuse and neglect in nursing homes in the first place.  Nevermind the amount of money some nursing homes are making.  Just look at this example.  $959 million in one quarter?!

What no one is talking about is the actual lawsuits being filed against these nursing homes.  What no one thinks about is what if it was your mother, your father, your husband or wife who lived in a nursing home where staff wouldn't answer the call bell to take them to the bathroom, forcing them to lie in their own feces or urine for hours - add to that pressure sores without bandages, so that urine and feces soak into open wounds.  What no one thinks about is what if your family member was given the wrong medication which led to brain damage or even death?  This is not made up stuff, these are the kinds of cases we see all too often.  Put yourself in that position, and then lets talk about "frivolous lawsuits."

Continue Reading...

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