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

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.

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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.
 

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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.

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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.
 

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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.

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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."

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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.

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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.
 

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MRSA infection is caused by Staphylococcus aureus bacteria — often called "staph." MRSA stands for methicillin-resistant Staphylococcus aureus. It's a strain of staph that's resistant to the broad-spectrum antibiotics commonly used to treat it. MRSA can be fatal.

Most MRSA infections occur in hospitals or other health care settings, such as nursing homes and dialysis centers. It's known as health care-associated MRSA, or HA-MRSA. Older adults and people with weakened immune systems are at most risk of HA-MRSA. More recently, another type of MRSA has occurred among otherwise healthy people in the wider community. This form, community-associated MRSA, or CA-MRSA, is responsible for serious skin and soft tissue infections and for a serious form of pneumonia.

A Texas doctor has been ordered to pay $7.5 million to a former maintenance man who lost his arms and legs to an MRSA infection.  Judge Jim Jordan ordered Dr. Meenakshi S. Prabhakar to pay David Fitzgerald after a Dallas County jury found in Fitzgerald's favor in his medical malpractice lawsuit.  Prabhakar treated Fitzgerald in 2003 when he developed an infection following surgery.

The jury wanted to compensate Fitzgerald for injuries in the amount of $17.5 million, but because of arbitrary and unconstitutional caps on medical malpractice cases he cannot collect about $10 million the jury awarded for pain, mental anguish and physical impairment.

Linda Turley, Fitzgerald's attorney, called the caps a "tragic unfairness" to Fitzgerald, who "can't bathe by himself, can't get out of the house by himself and will need assistance for the rest of his life,"  Fitzgerald, 53, now must live with his brother in East Texas.

One of the insurance company's defense lawyers for Prabhakar, admitted Fitzgerald was treated with antibiotics but not the one that treats MRSA, which is a type of hospital-acquired infection that can be deadly if not treated quickly.

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The American jury is at the heart of the justice system.  The right to a jury trial is a constitutional right.  But the GOP in Tennesse want to limit the amount a jury may award in cases involving the abuse and neglect of America's most vulnerable citizens.  Arbitrary caps on damages do not work.  If they want to prevent lawsuits, they should require better care including increasing staffing and training.  Advocates for the elderly told a special committee studying the effects of litigation on the nursing home industry that better care would prevent lawsuits.

The main discussion at the committe meeting was on whether caps should be placed on damages in lawsuits against nursing homes. Senate Speaker Ron Ramsey has made malpractice caps for nursing homes part of his legislative agenda for the year. The Republican said limiting damages is necessary because he believes the industry is being targeted by lawyers.

But Daniel Clayton, president of the Tennessee Association of Justice, told the committee that the focus should be on improvement of care rather than capping damages. "If care is good, lawsuits will go down," Clayton said. "If care is bad, lawsuits will go up." Last month, the Centers for Medicare and Medicaid Services released a report that ranked Tennessee's nursing homes worst in the nation and gave 30 percent of them the worst rating possible.  Why would you provide immunity to an industry that is hurting your voters and constituents?

The ratings are based on state inspections, staffing levels and quality measures, such as the percentage of residents with pressure sores, urinary tract infections and declining mobility. Each nursing home was given an overall score of one to five stars, with five stars being the best. The ratings are based on as much as three years of data, ending in November 2008.

Only Louisiana and Georgia ranked lower than Tennessee in the report, which evaluated 16,000 nursing homes nationwide.

Patrick Willard, AARP Tennessee's advocacy director, said his group is studying litigation of nursing homes and preliminary results show the state ranks below the national level when it comes to staffing at nursing homes. "If your staffing level is below the national level, you're more than likely to be sued," he said.

Committee member Charles Curtiss agreed. The Sparta Democrat said his mother has been in two nursing homes, and he noticed their staffing was not up to standard. "I'm not for saying we're going to cap liability, and then let the service be exactly as it is today," Curtiss said. "If they're going to give the operators a break, then certainly we've got to get something for those people who are in the nursing homes, and that would have to be better care."

Rep. Henry Fincher said he's against capping damages, and shows his disdain for the idea in calling it "the kill old people act." "I don't think that limiting liability is the way to make sure that people are treated better," said the Cookeville Democrat.

"If you take away people's chance to recover damages for wrong things done to them, you're protecting the wrongdoer. It turns the whole idea of responsibility on its head."

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