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

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

McKnight's had an article about a decision in Colorado regarding the enforcement of an arbitration clause in a nursing home case.  The Colorado court ruled that a healthcare proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident.  Under Colorado law, a healthcare proxy is only empowered to make medical decisions on behalf of another, including “provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient's physical or mental health or personal care,” the Bureau of National Affairs reported.

In the case of Lujan v. Life Care Centers of America, Colorado, Alvin Lujan signed an arbitration agreement, waiving jury trial rights, when admitting his mother, Estella Lujan, to the Life Care Centers of America nursing home. She died three days later, and a wrongful death claim was filed against the facility. Life Care Centers argued that admission to a nursing home is a medical decision and, therefore, the Colorado law applies.  But the Colorado Court of Appeals determined that the signing of an arbitration agreement does not fall under the specific definition of the authorities given to a healthcare proxy. As a result, the Lujan family had the right to sue the facility.

In October, the Nebraska Supreme Court arrived at a similar decision regarding the roll of patient surrogates
 

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

McKnight's had another article on the Fairness in Nursing Home Arbitration Act.  This bill would prevent nursing homes from using pre-dispute arbitration agreements as a way to take away residents' rights to a jury trial. The bill is supported by both Republicans and Democrats and should be able to pass without much difficulty. 

Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI) reintroduced their measure in an effort to "restore the original intent of arbitration laws [and] ensure that families will not have to choose between quality care and forgoing their rights within the judicial system."    The version of the bill introduced in the last session of Congress was approved by the Senate Judiciary Committee, but never came to a full floor vote. The bill does not prohibit the use of all arbitration agreements by nursing homes, only pre-dispute agreements.   Arbitration agreements could still be used after a dispute arises, though the bill would make them a voluntary matter.
 

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

Most Vulnerable Americans Protected By Fairness in Nursing Home Arbitration Act

Bipartisan bill will ensure nursing home corporations don’t eliminate seniors’ legal rights

The most vulnerable Americans and their families will no longer be forced to give up their legal rights and sign one-sided mandatory binding arbitration clauses under new legislation introduced in the U.S. Senate.

The bipartisan Fairness in Nursing Home Arbitration Act of 2009, introduced by Sen. Mel Martinez (R-FL) and Sen. Herb Kohl (D-WI), will prevent nursing homes from deliberately hiding clauses within the fine print of contracts that force seniors to surrender their right to trial by jury and enter an unfair and one-sided mandatory binding arbitration process. The bill was introduced in the U.S. House last week by Rep. Linda Sanchez (D-CA).

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said American Association for Justice President Les Weisbrod. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights. Arbitration should only be voluntarily, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act of 2009 will help people like Minnesota resident Dean Cole, who received unconscionable care from a negligent nursing corporation. Suffering from dementia, Dean needed help eating meals every day; but during his 22 day residency, Dean lost 20.6 pounds without his physician or wife ever being notified. After being admitted to the hospital, he was found to be severely dehydrated, with a water deficit near 10 liters. Dean died less than a month later. His family sought justice by bringing a suit against the nursing home for negligent care, but learned they would be forced into one-sided mandatory binding arbitration on the corporation’s own terms and denied the right to trial by jury. The case is still pending.

For more information on mandatory binding arbitration, visit: http://www.justice.org/newsroom.

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

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."

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