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

The Atlanta Journal Constitution reported the unanimous Georgia Supreme Court decision striking down arbitrary caps on jury awards in medical malpractice cases, part of the state's 2005 tort reform law.  The state high court determined that a $350,000 cap on noneconomic damages, which includes compensation for a plaintiff's pain and suffering, violates the right to a jury trial as guaranteed under the Georgia Constitution.

The 2005 law's cap on damage awards "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function," Chief Justice Carol Hunstein wrote for the court. She added, "The very existence of the caps, in any amount, is violative of the right to trial by jury."

The ruling upheld a $1.265 million jury award to Betty Nestlehutt after an operation in 2006 resulted in Nestlehutt's face covered with gaping wounds that required prolonged, excruciating treatments to keep them from becoming infected. The wounds left her permanently disfigured.

About two dozen states have enacted caps on damage awards in medical malpractice cases. Last month, the Illinois Supreme Court declared unconstitutional a $500,000 cap against doctors and a $1 million cap against hospitals. Georgia's tort reform law limited awards to $350,000 against doctors and capped total awards at $1.05 million in cases involving multiple health-care providers and medical facilities.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Ohio Supreme Court has enacted a monumental change that impacts doctors and patients, shifting malpractice judgments from doctors’ insurers to the taxpayers.  More info at WCPO.  The decision limits recovery, ignores the right to a jury trial, and promotes injustice and inadequate compensation. The ruling means your private doctor can make a serious medical mistake - take off the wrong leg, operate on the wrong side of your brain - and you can never sue him in a jury trial.   No other state has ruled the same way. 

The Theobald ruling was named after Keith Theobald. Theobald was a healthy, fit husband and father of two young children, when an elderly driver clipped his pickup truck as he was driving to work 11 years ago. The impact flipped the truck across all lanes of the highway into a field, crashing in a stand of trees. Rescue workers found Theobald hanging upside down in a tree. He was paralyzed from his chest down.

Theobald and his wife, Jacqueline, took the news in stride. “I remember pre-operatively we said, ‘You can still do basketball with Jake (his then 5-year-old son) and watch TV and share things with the kids. We’ll get a van and we’ll adapt it.’” Keith Theobald agreed. He felt he could still work and live a full life. “I could do about anything. The wheelchair doesn’t hold you back.”

Theobald could see and use his arms after the accident. He was alert and ready the next day when doctors at University Hospital suggested surgery might improve his back injury.

Instead, he woke up in a different world. Not only was he still paralyzed, but now he also was blind and had lost the use of his arms.  Medical records prove a series of mistakes during surgery led to oxygen deprivation and injuries worse than the accident had caused.

Trapped in darkness and unable to move on his own, Theobald will need round-the-clock care the rest of his life. He sued the doctors who did the surgery, only to get this devastating shock: The doctors weren't liable. They had immunity from all malpractice claims because they had students in the room with them.

In the Theobald case, the Ohio Supreme Court ruled that doctors who sign with a state university like the University of Cincinnati to let medical students learn from them, even if that just mean one student walking in the room for a second, now are considered state employees. As such, they get immunity if anything goes wrong on the job, even in their private practices.

Jacqueline Theobald says, “The state didn’t come in and take care of Keith. The university didn’t come take care of him. This doctor took care of him. We’re suing the doctor.”

But the Ohio Supreme Court said they couldn’t sue the doctor because some students were allegedly in the operating room, the doctors were teaching per their State of Ohio U.C contracts. Therefore those doctors were not liable for any mistakes. Instead, the Supreme Court ruled that the Theobalds belonged in the Court of Claims, a separate court set up in 1980 to handle suits against the state, usually against public state employees like highway workers, never before used to protect private doctors in their private practices.

The Court of Claims has no juries. Single judges, hired by the state, issue rulings for or against the state. The top award is $250,000, no matter the severity of the damages. Most importantly, the taxpayers foot the bill, not doctors’ malpractice insurers who must pay when suits are filed in county courts of common pleas.

Of course, Keith Theobald never knew to ask if a student would be watching his operation, and if so what the impact might be. But if you think doctors from now on will have to tell patients and get consent to have students in the room, you’d be wrong. The Supreme Court ruled the law doesn’t demand disclosure. No one has to inform patients they could lose their rights to sue the doctors without ever knowing it.

Keith Theobald hasn’t lost hope for a medical miracle. But in the end, he never did get a chance at even the Court of Claims the Ohio Supreme Court said he should access. That’s because the same state attorneys for U.C. who argued that’s the court where the Theobalds belonged, now argued it was too late. The statute of limitations had passed. No recovery, not even $250,000, for Keith Theobald’s lifetime injuries.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The South Carolina House has passed another "tort reform" measure which is not necessary, most likely unconstitutional, and clearly arbitrary.  The Sun News had an article and it is very interesting what critics and proponents said.  The bill will place an arbitrary cap on how much a jury could award against reckless or intentional conduct.  The measure limits the amount juries could award to deter or punish a business for gross negligence. Punitive damages could be $350,000 or three times compensatory damages, whichever is greater.  The purpose of punitive damages is to deter or punish.

Opponents said multi-million-dollar lawsuit awards are extremely rare in South Carolina.  The executive director of the South Carolina trial lawyers' association said a review of verdicts from courts in the state's three largest counties - Richland, Charleston and Greenville - shows how extraordinary it is for a jury to award punitive amounts at all in this state. Of the 136 personal injury verdicts in those counties in 2007 and 2008, juries awarded punitive damages in seven of them, and only two of those involved more than $7,000, said Mike Hemlepp, executive director of South Carolina Association for Justice. He noted an amount seen as unfair could be decreased either by the trial judge or an appeal.

"Is there any evidence they're saying, 'We're not coming because of tort law?'" asked Rep. Bakari Sellers, D-Denmark. "Tort reform is something people want until it's their family member or friend who gets injured."

House Judiciary Chairman Jim Harrison, R-Columbia, acknowledged those numbers don't indicate a problem.

Rep. Doug Jennings, D-Bennettsville, argued punitive awards are meant to discourage companies and people from blatantly disregarding how their actions may injure others, but the limits mean they won't be discouraged from changing their ways.

Hemlepp said the measure is designed to squash cases from going to court. Civil lawsuits often involve clients who can't pay lawyer fees upfront, which means lawyers won't take frivolous cases. But since lawyers often get paid by taking one-third to 40 percent of the award, capping punitive damages means fewer cases will be taken.

The vote comes five years after the Legislature capped pain-and-suffering awards for medical malpractice lawsuits at $350,000.  Todd Atwater, CEO of the South Carolina Medical Association, said the rates of medical malpractice insurance are going down, as are the number of claims.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

See article from CBS News legal analyst Andrew Cohen in The Atlantic, where he calls tort reform, "one of the most blatantly anti-democrat concepts to have hit the legal system in the past century."

If President Barack Obama has to hand his adversaries a bauble in order to achieve success with health care reform, it might as well be the misnomer commonly known as "tort reform." The ends of providing insurance for millions of uninsured Americans, never mind whatever good it might do for the rest of us, is worth the means of giving Corporate America yet another legally-sanctified level of protection against the wailing interests of its customers, consumers, patients, and just plain innocent bystanders.

But let's not kid each other any longer. As we brace ourselves for yet another round of wrangling over the tail and not the dog, let's all stipulate that "tort reform" is one of the most blatantly anti-democrat concepts to have hit the legal system in the past century. It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

"Tort reform is little more than a scam by an unpopular minority (corporations) against an enormous majority (anyone who is eligible to serve on a jury or who ever already has)." Wouldn't it be great if the President forced those words out of the mouth of the Chamber of Commerce president in exchange for even friendlier litigation rules for Big Business as it confronts changes to our national approach to health care?

I don't use the word "scam" lightly above. Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.

Instead, these verdicts came from jurors, one of the justice system's--one of all of governments'--few remaining unassailable cogs. Each time a jury awards a large sum to a plaintiff against a negligent defendant, it's a statement from jurors that the sort of conduct alleged and proven is worthy of punishment by the community. Sometimes, this is the only time in the lives of these people, these jurors, when they will have such an extraordinary say about the events of their time and place. Sometimes they are right. Sometimes they are wrong. But at least in these circumstances they make a difference based solely upon the fact that they are residents of a particular venue.

Make no mistake--the "reform" in "tort reform" is about eliminating or reducing the ability of trial juries to act as levelers of the playing field; as avengers of otherwise toothless victims; as the voice of a community in meting out justice. It is about helping corporations before individuals; about the bottom line and not the bottom rung. Alas, many of the same folks who tout individualism and freedom and liberty against government control evidently have no qualms about using support for tort reform as their ticket to worship at the Altar of corporate control.

The reason the topic is again in the headlines is because opponents of health care reform evidently don't have anything better to argue about in their efforts to stop passage of the pending legislation. Fine. The President and his fellow Democrats should concede on tort reform. And at the same time, he should figure out a way to track whether reductions in jury awards, and concomitant decreases in the costs of malpractice insurance, reduce the ultimate cost to consumers of health care and at the same time generate better quality of service.

Of course, we all know what the answers to those questions will be. Which now that I think about it is another thing we ought to be honest about.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Illinois Supreme Court struck down the state's medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts.  The decision shows why judges and juries, not legislators, should decide merits of individual cases.  Illinois’ cap on malpractice damages was today ruled unconstitutional, illustrating why federal efforts to place arbitrary limits on the amount injured patients receive won’t fix America’s broken health care system.  The Illinois Supreme Court held that the legislature violated separation of powers by enacting the damage cap, thus intruding on the authority of judges to assure that jury verdicts conform to the evidence. The ruling was the third time since 1976 that the Illinois court had found a damage cap unconstitutional. 

"This decision is a victory for the families of patients who are killed or seriously injured by preventable medical errors,” said American Association for Justice President Anthony Tarricone. “For years, groups on the federal and state level have used scare tactics to restrict the rights of injured patients. But the facts show time and again that caps or similar one-sided measures do nothing to lower costs, cover the uninsured, or improve access to care. As the health care reform debate continues, the ruling in Illinois shows that judges and juries - not legislators - should decide the merits of each case and appropriate compensation for injured patients.” 

The plaintiff in this case, Abigaile Lebron, was born horribly impaired in October 2005, after the doctors failed to perform routine and necessary tests to treat her troubled pregnancy, which indicated a need for immediate delivery.  When she was finally delivered by Cesarean sections, Abigaile had suffered severe brain injury, cerebral palsy, cognitive mental impairment, and inability to develop normal neurological function.  Under the 2005 statute, any jury verdict in Abigaile’s favor would be capped at $500,000 against physicians found liable and $1 million against the hospital, if held liable.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Josephine Sciacca died on October 24, 2007 after a year and a half in a nursing home in Trinidad, Colorado.  Her family has filed a wrongful death lawsuit alleging that negligent care resulted in the fatal injuries. The lawsuit alleges that Sciacca died due to dehydration, malnutrition and complications due to a pressure ulcer, all problems stemming from neglect and mistreatment at the facility.

The nursing home was negligent in failing to heal and prevent the reopening of a pressure ulcer,  not properly feeding or hydrating Sciacca, and tampering with Sciacca’s medical records.  Sciacca’s mistreatment and death were the result of “knowing and/or intentional actions” by the Colorado nursing home officials and staff, according to the family.

Although there is a cap of $150,000 for Colorado wrongful death lawsuits against the state, the family indicates that they hope to force changes in how the state administrates medical facilities, to make them more caring facilities and less like assembly lines and storage houses for the elderly.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Alex Nussbaum of Bloomberg had a great article about health care spending and the lack of need for tort reform. Some highlights from the article are below:

Annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums.

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.  The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said "defensive" medical practices accounted for 5 percent to 9 percent of the overall expense.

A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.

The proportion of medical malpractice verdicts among the top jury awards in the U.S. has declined during the past 20 years, according to data compiled by Bloomberg. Of the top 25 awards so far this year, only one was a malpractice case. At least 30 states cap damages in medical suits, primarily for “pain and suffering” awards.

The development of new drugs and medical procedures, and their growth in price, has been a bigger factor in costs, said Chandra, citing his research and that of other economists. Studies haven’t found a link between increasing procedures, such as Caesarian-section births, and areas with rising malpractice damages, he said.

Medical malpractice is “not a major driver” of spending trends in recent years, Indianapolis-based WellPoint, the largest U.S. insurer by enrollment, said in May 27 report. The report cited advances in medical technology, increasing regulation and rising obesity as more significant reasons for rising costs.

The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year, said Les Weisbrod, president of the lawyers’ association. “By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously,” he said.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Tennessean reported on Murfreesboro-based National Healthcare Corp's CEO defending the ridiculous legislation to impose limitations on the amount of damages a victim of neglect, abuse, or negligence can be compensated for their injuries and pain and suffering.

Critics have labeled the bill the "Kill Old People Cheap Act."

"If we could lower our liability expense, we could put more into staffing," NHC President Steve Flatt said.  However, in all the states with caps on damages, the staffing remained the same!  These nursing homes have insurance and staffing is not affected by potential liability.  If they staffed properly to begin with then there would be less victims of neglect and negligence.  Flatt said his company saw a 20 percent loss in profits, going from $45 million in 2007 to $36 million in 2008. Opponents of the bill contend the nursing home industry spent between $700,000 to $850,000 to lobby for last year's version of the legislation.

 Daniel Clayton, a Nashville attorney and president of the Tennessee Association for Justice, says while the legislation falls short.   "There's not one word in their legislation that requires the nursing homes to improve the quality of care," he said. "We're (ranked) 47th in the country in quality of care of nursing homes by the federal government." "Quality of care comes first," said Clayton. "The legislation that they are proposing is to make good care optional. Good care should not be optional. It should be mandatory.

Opponents see the legislation as a way to enhance profits by the industry.

"This bill is all about the nursing-home industry trying to avoid full responsibility when it neglects or abuses a vulnerable resident. Caps don't improve care. If care improves, lawsuits go down."

NAACP Tennessee President Gloria Sweet-Love says the legislation comes at a time when state and federal reports have uncovered severe staffing and quality of care deficiencies. The CMS report uncovered that 49 percent of Tennessee Nursing Homes scored the poorest possible rating for staffing levels.

A report from the Government Accountability Office uncovered that Tennessee was one of nine states nationwide where health inspectors missed more that 25 percent of serious health and safety violations.  And a report recently released by AARP reconfirmed the poor state of Tennessee Nursing homes and found that tort restrictions have little impact on improving the quality of care in nursing homes.

The legislation would place arbitrary caps on non-economic and punitive damages in addition to making every negligent act that occurs in a nursing home protected under the Medical Malpractice Act.   "The nursing home industry's effort to conceal its true intentions is despicable and should be rejected by anyone who has ever had a loved one in a nursing home," Sweet-Love said.

"We need laws to protect our nursing home residents, not ones designed to protect the profits of greedy nursing home operators."

"If the nursing home industry would spend its money on more nursing staff, rather than on high-priced insiders, the quality of care in nursing homes would improve," Sweet-Love, the NAACP official, states in the news release. "The industry chooses to spend their resources on backroom conversations aimed at passing a law that immunizes the industry from negligent and abusive acts against helpless residents."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Chamber of Commerce, the Insurance lobbyists, and the nursing home industry always claim that caps on the amount of damages a victim of malpractice or neglect can be compensated is needed because doctors are leaving states without caps.  A new analysis based on data from the American Medical Association proves that this propaganda is patently false.

The AMA statistics show that the number of doctors continue to rise nationwide and in every state.  The number of doctors has actually risen over the last five years in all states--with or without tort reform measures.  In fact, only in Alaska, Georgia, Montana and Utah--all of which have caps on damages--did the increase in doctors lag behind population growth.

The data also shows that the number of physicians per captia is 13 percent higher in states without caps.  This finding corroborates research done by The Commonwealth Fund and The American College of Emergency Physicians which found that health care quality and patient safety are dramatically worse in states that have eliminated accountability by enacting tort "reform" measures. 

Once again, facts and research disprove the false propaganda of tort "reform" advocates who clearly care more about profits than quality of care and patient safety.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mark N. Geller is a Memphis attorney with Nahon, Saharovich & Trotz PLC. He leads the firm's nursing home practice group. He wrote the following column which can be found here:

The federal government's Medicare program recently released a rating system that ranks the quality of care for residents in nursing homes. Among our nation's 50 states, Tennessee ranked third from the bottom in its percentage of nursing homes that received the report's highest five-star rating -- ahead of only Louisiana and Georgia.

According to this rating system, Tennessee also had the fourth-highest percentage of poor-performing nursing homes in the nation (those that received the lowest possible rating of one star), behind Louisiana, Georgia and Virginia.

On the surface, these results are bad enough for Tennessee's elderly population and their families. Unfortunately, though, the Medicare Nursing Home Compare report fails to capture the true extent of how poorly our fellow Tennesseans who live in nursing homes are being cared for right now.

In fairness to the nursing home community, four nursing homes within 50 miles of Memphis were given the highest ranking by Medicare's report, and they stand out among the best in the country. (To view the full report, go to medicare.gov.)

As an attorney who practices in the area of nursing home litigation, I witness almost daily the substandard level of care many elderly Tennesseans must endure. I have seen the wide range of poor nursing home care across this state; poor care that sometimes includes leaving people in their own excrement for long periods of time, which results in bed sores and even death. There are cases -- and they're not uncommon -- in which elderly nursing home residents have been left begging for food and water, but have been ignored. Or cases -- including one recently in Memphis -- where elderly residents have wandered out of their nursing facility unsupervised and were severely injured.

Even this bare recitation of facts pales next to actually hearing a family's story. Family members have spoken about how they begged and pleaded for care that never came. They have talked about the heartrending suffering their loved ones go through in their last days of life.

Despite these stories and the objective data ranking Tennessee among the worst in the nation for nursing home care, Tennessee legislators recently sponsored bills (HB2243 and SB2160) to reform lawsuits against the nursing home industry by putting a monetary value on human life.

The bills set the price of a human life at $300,000. If they become law, that would be the maximum amount of noneconomic damages that could be awarded to plaintiffs in lawsuits against a nursing home. In addition, if a jury concludes that the nursing home's actions were so wrong that they warrant the award of punitive damages, that amount would be limited as well, by a formula that uses calculations provided by the nursing home itself relating to its level of patient care.

These proposals, which are under review in legislative committees, are bad bills that are primarily focused on limiting the compensation that a family can recover if a jury finds that a nursing home acted improperly. They would protect nursing homes from liability. Nothing in them would protect nursing home residents.

There is no serious measure within these bills that sets out minimum standards for proper care of nursing home residents. The proposals fail to provide measures to protect the residents from negligent or improper care. They have no provisions to require nursing homes to maintain proper staffing levels or even treat their residents well.

Tennessee's low ranking in the nursing home industry is easy to understand. Typically, nursing homes are operated by multibillion-dollar, multistate corporations whose main purpose is to make as much money as possible for their shareholders. Of course, there's nothing wrong with making money. What is wrong is that many nursing home chains too often cut operational costs to increase profits. Such cuts are unconscionable when they are done at the expense of their stated business goals: the comfort and well-being of the elderly.

When a nursing home's budget is cut, the nursing home must function with less supplies, equipment and staff. Less staff means fewer people to provide care to the residents. Eventually, it reaches a point at which the staff, no matter how caring or qualified they may be, are simply unable to meet the needs of the residents.

Life is precious and should be treasured. Every human being deserves to be treated with dignity and respect.

Making money is perfectly acceptable so long as you are doing your job first. Here, the primary job should be to provide skilled and humane care to the residents of Tennessee's nursing homes and to make sure their needs are being met.

The state should legislate serious standards of care for nursing homes. And nursing home operators should be held accountable if they fail to live up to those standards.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link