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 All the initiatives were eventually withdrawn.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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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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Kathleen Glanville, a writer for The Oregonian, wrote an article about a $900,000 verdict for a resident who was treated ridiculously bad by a nursing home.  The jury ruled that an 86-year-old woman with Alzheimer's disease suffered a loss of dignity when Lake Oswego police forced her to the floor of her nursing home and handcuffed her.   The jury awarded more than $900,000 to the family of the late Elvera Stephan for the way she was treated the night of April 13, 2006, at The Pearl at Kruse Way in Lake Oswego.

The jury agreed that Avamere Health Services, the corporate owner of the Alzheimer's care center, had acted with malice or reckless indifference.  Stephan's children moved her into the Alzheimer's care center in early April 2006 after her husband became seriously ill and was hospitalized. Within a few days she became agitated, wandering the nursing home barefoot in her pajamas, confused and, according to her caretakers, dangerously aggressive.

The staff notified a registered nurse in another part of the nursing home, who called the woman's doctor for guidance. He said Stephan should be taken to the emergency room for evaluation and medication.  The nurse called 9-1-1 to summon an ambulance, and because she told the emergency dispatcher that the patient was extremely aggressive, Lake Oswego police responded as well.

But jurors said she didn't look dangerous on a surveillance video from the nursing home. She was gesturing with a telephone receiver but didn't try to hit anyone with it.

Two officers forced the elderly woman to the floor, where they rolled her onto her stomach and handcuffed her hands behind her back. She remained on the floor on her stomach for six minutes until paramedics put her on a stretcher and took her to the hospital, according to Kocher. She returned to The Pearl the next day, when a nurse reported that her wrists were bruised.

A state investigator found the nursing home at fault for failing to assess the woman's condition and intervene in a timely manner.   Stephan's son, James, testified that he didn't learn about what had happened to his mother for six days, when he was told by the relatives of another patient at The Pearl.

The video of the police subduing the woman was played for the jury.   Kocher had asked the jury to award Stephan's family $1 million to send a message to corporations that care for Oregon's elderly and vulnerable.

The jury agreed on $4,200 in economic damages -- the cost of Stephan's shared room for a month -- and $400,000 in noneconomic damages. The jury then awarded $500,000 in punitive damages. Under state law, 60 percent of punitive damages go to the state victims assistance fund.

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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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Here is a sample Power of Attorney that anyone can print and use as long as it is notarized and signed properly.  This power of attorney does not authorize the POA to sign an arbitration agreement and prohibts the POA from waiving the signatory's right to a jury trial.  This should help combat the hidden arbitration clauses that the nursing home industry hides in their admissions paperwork.

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I found a great website that contains many of the standards of care for various specialities related to geriatric care.  Here is the website.

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