Once again Ken Connor has wrote an incredible article on the true conservative’s viewpoint of tort reform.  Mr. Connor wrote the below article in response to John Stossell’s ridiculous propaganda on the justice system.  

“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Thomas Jefferson

American conservatives are generally associated with a “strict constructionist” view of the U.S. Constitution. They believe America’s founding legal document should be interpreted in accordance with the original intent of the Framers when the document was ratified by the original States. They believe that the principles embodied by our Constitution are reflective of a nation rooted in the virtues of human dignity and individual liberty. These principles include the freedom to speak, write, congregate and worship freely, the right to own property, the right to bear arms in defense of person and property, and the right to conduct business legally and ethically in a free market economy. In short, conservatives subscribe to the idea that the Constitution exists to protect and preserve Americans’ rights to protect their lives, exercise their liberty, and pursue their happiness.

Somehow along the way, however, many conservatives have lost an appreciation for one of the most fundamental rights of America’s political heritage – a right believed to be so important to preserving ordered liberty in the fledgling republic that was included in the Bill of Rights, the first ten amendments to the U.S. Constitution. This much maligned right is set forth in the Seventh Amendment, which states that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Of course, the concept of “innocent until proven guilty” is not an unfamiliar principle in the American political lexicon, nor is the idea that a person accused of a crime has a right to stand trial before a jury of his or her peers. Few Americans, regardless of their political affiliation, would dispute the justice of this principle. The Seventh Amendment, however, is not referring to criminal suits, but civil ones. All too often, however, the only kind of attention this constitutional right gets from conservatives is via attempts to erode it through so-called tort reform.

The term “tort” means a private or civil wrong, with the added implication that the wrongdoer is required to compensate an innocent party for damages suffered as a result of the wrongdoing. At its root, the word “tort” denotes something that is twisted and needs to be put straight. Critics of the tort system say the system itself has become twisted and is in need of straightening out. They point to “frivolous” lawsuits and “unreasonable” verdicts as evidence of the need for reform. They argue that aggressive trial lawyers and runaway juries are driving up the cost of doing business for everyone.

Just this week, John Stossel discussed “the trouble with lawyers” on his libertarian-leaning program on the Fox Business Network. While legitimate complaints can be made about “ambulance chasing” by unscrupulous lawyers, Mr. Stossel, a self-described champion of constitutional principles, seems all too ready to toss the proverbial baby out with the bathwater. In making his case against trial lawyers, Mr. Stossel ignores some of the reasons why America’s tort system is a critical ingredient in America’s constitutional framework.

These principles are as essential to American society today as they were in the time of our nation’s founding:

The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, the worth, value, and dignity of every member of society is affirmed. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society’s view of the importance of human dignity and the sanctity of human life.

The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community – that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.

In the companion article to his segment on lawyers, Mr. Stossel opens with the accusation that “tort lawyers lie”:

“They say their product liability suits are good for us. But their lawsuits rarely make our lives better. They make lawyers and a few of their clients better off – but for the majority of us, they make life much worse. . . . Even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things: Swimming pools, playgrounds and gymnastics programs close because liability insurance is so expensive.”

Setting aside for a moment the irony of a libertarian appealing to the “common good” as an argument against a constitutionally-protected right, Stossel is guilty of either willful ignorance or the very duplicity of which he accuses lawyers—or both. Products liability lawsuits have led to huge advances in safety in the airline, auto, and drug industries, to name just a few. Remember Ford Motor Company’s exploding Pinto gas tanks and Firestone Tire Company’s exploding radial tires? Have we forgotten the devastation wrought by unsafe drugs like Thalidomide and Vioxx and products like the Dalkon Shield? Guess where the impetus for seat belts, airbags and anti-rollover technology came from? Advances in safety in all these areas were the result of lawsuits filed by trial lawyers on behalf of victims who were killed or injured by the negligence of manufacturers. These companies knowingly marketed dangerous products, endangering the health and safety of their customers, until their negligence and malfeasance were exposed and they were forced to render an account through the tort system. Many of the regulations Americans rely on today to keep their families safe and healthy are a result of suits brought against companies that – had they not been forced to implement changes – would have been happy to take chances with their customers lives rather than make costly quality and safety improvements. Any parent whose child has died because of an faulty pool drain or a defective car seat can attest to the fact that product liability suits can and do make a difference in the lives of many.

Of course, it will be readily admitted by this attorney that yes, tort lawyers can, and sometimes do, lie. Unscrupulous attorneys have been known to pursue frivolous claims in hopes of making a fast buck. When that happens, the lawyers and their clients should be sanctioned and made to pay. The American legal system, as all manmade social institutions, is imperfect and sometimes abused. But we should not do away with the constitutional right to trial by jury because of the malfeasance of some lawyers any more than we should do away with the free market due to the recent malfeasance of some on Wall Street. Mr. Stossel, more than anyone, should agree with that.

What this really boils down to, then, is a question of principle. With regard to other questions constitutional, conservatives (and libertarians, for that matter) argue that an exception should not be allowed to undo the rule. We shouldn’t revoke the 2nd amendment just because some individuals commit crimes with guns. We shouldn’t axe the 1st amendment just because some choose to exercise their free speech in a hateful manner. And we shouldn’t do away with the 7th amendment just because some tort lawyers and their clients make frivolous claims in court.

Can we do better? Of course, and there are responsible ways to pursue “reform” in the courts without resorting to ad hominem attacks on lawyers or stripping the American people of their constitutionally protected rights. There is a much bigger principle at stake; one that has been under attack, and one that must be defended honestly and thoughtfully. It’s too bad that Mr. Stossel couldn’t bring himself to do that.
 

Ken Connor is an attorney and co-author of “Sinful Silence: When Christians Neglect Their Civic Duty”  He is also Chairman of the Center for a Just Society.

The Sacramento Bee reported a $29 million nursing home abuse and neglect verdict upheld by the Court in California.  A Sacramento Superior Court judge upheld a $29 million verdict against Horizon West Healthcare in the 2005 death of a resident, Frances Tanner.  The case revolved around the last months in the life of Tanner, 79, a retired public servant who worked for agencies including the FBI and the Internal Revenue Service. Tanner had mild dementia when she moved into Colonial Healthcare. Seven months later, after a fall that resulted in a hip fracture that went undiagnosed for days, she was dead of an infected bed sore.

Judge Candee said "overwhelming" and "devastatingly powerful" evidence in the trial in May supported the jury’s verdict and damage awards against Horizon, which owns 33 nursing homes.  The judge called the trial "a classic demonstration of how well the jury system works."  Candee said panel members were unimpressed by the testimony of staffers of Colonial Healthcare in Auburn, one of Horizon’s facilities, who came across as "overworked, untrained and uncaring."

Testimony proved that Horizon West Healthcare illegally understaffs its facilities and runs its business "based, time and again, predominantly on a concern for the bottom line" instead of compassionate patient care, Candee wrote. He said the jury clearly intended to "discourage future wrongful conduct" in awarding $28 million in punitive damages.

The jury ruled that Horizon and Colonial committed elder abuse and awarded $1.1 million in damages for Tanner’s pain and suffering and for her daughter’s loss of companionship. A day later, after hearing evidence about the corporation’s finances including its net worth of about $200 million, the panel made the $28 million punitive award.

Candee reduced the pain and suffering damages to $800,000. Including $1.2 million in attorney’s fees, the total judgment is for $29.1 million, believed to be the largest ever for an elder abuse case in Sacramento County.

 

NewsInferno reported the recent (historic) verdict against Skilled Healthcare for insufficient staffing at assisted living and nursing homes in California.  The class action jury award of $671 million was a result of Shilled Healthcare’s failure to provide reasonable and appropriate staffing.   The complaint involves the time from 2003 to 2009 and 32,000 patients at 22 facilities.

The civil trial began over seven months ago and revolved around the violation of a California statute that calls for 3.2 nursing hours per each patient every day.   A 2000 state law determined that nursing homes must provide 3 hours and 12 minutes of direct care per day to each patient.

Skilled Healthcare confirmed that $613 million were mandated in statutory damages and $58 million in damages for restitution.  Michael Thamer, a Callahan, Calif. attorney, said in an interview that the statutory damages are meant to refund care for each patient on each day the Skilled Healthcare Group’s 22 California nursing homes failed to meet state staffing minimums.

Thamer said the jury determined that the chain had engaged in “oppression, fraud or malice” in violating state staffing standards. He said the case was meant to underscore the importance of following state nursing home staffing laws, “because the consequences are so profound when they are not.”

Thamer, one of the plaintiff’s attorneys, said he and other lawyers succeeded in getting 250,000 pages of internal company e-mails, some of which were used as evidence in the case. He said one administrator told corporate that understaffing was “playing with fire.”

An injunction could be issued ordering Skilled Healthcare to maintain compliance with legal staffing levels. Skilled Healthcare employs about 14,000 staff, operates in seven states, and is one of this country’s largest nursing home chains with 78 facilities.

California Watch also had an article.  California Watch reported in April that nursing homes saw an $880 million increase in reimbursement from 2004 to 2008, even as scores of homes trimmed staffing levels.  See article from L.A. Times here.

 

SouthTown Star had an article written by Donna Vickroy about the benefits of pet therapy at nursing homes including maintaining memory. Restoring memories is just one of the benefits animal therapy can bring to nursing home residents, said Jackie Sinwelski, memory support coordinator at Providence Healthcare.   According to the Centers for Disease Control, pets can have multiple health benefits, especially for seniors. Animals can decrease blood pressure, cholesterol levels and feelings of loneliness.

The visits also lift moods, create excitement and provide comfort for many of the residents, she said.  "It’s such a thrill for many of them to see the cats and dogs," Sinwelski said. "They can’t keep a pet here, so it’s nice that someone brings the animals to visit."

Four times each year, volunteers from Peoples Animal Welfare Society in Tinley Park bring shelter cats and dogs into the facility, allowing residents to pet and snuggle with the animals.   Now in its fifth year, the PAWS program benefits eight homes in the Chicago area. The animals visit four times a year, staying for about an hour and a half at a time.

"We’re the only shelter in the Chicago area that has an animal therapy program," said John Greenan, PAWS animal therapy program coordinator.

Some members of the staff also seem to perk up at the sight of a smiling dog or inquisitive cat.

The outings are also good for the animals, all of which have managed to retain their gentle nature despite their own stories of hardship and abandonment.

 

Barbara Quirk wrote an article on The Cap Times regarding certain aspects of the Affordable Care Act.  The federal Department of Health and Human Services announced the availability of $60 million in Affordable Care Act grants to help people navigate their health and long-term care options. Through these grants, HHS’s Administration on Aging will collaborate with the Centers for Medicare and Medicaid (CMS) to encourage an integrated approach to health care and social services. It is a model that has long been recognized as essential for patients and their caregivers.

The Affordable Care Act seeks to lower health care costs, improve the quality of health care and, perhaps most importantly, give people more control over their own care. These new grants, authorized under the new law, will help seniors, individuals with disabilities and their families get better quality care and more control. We’ve also streamlined the process for states and people who rely on these funds,” said HHS Secretary Kathleen Sebelius.

“We know how difficult it can be for caregivers and patients to try and deal with a sudden illness or chronic disease while at the same time trying to negotiate through a complex health care system to figure where you can get help. These new funds that we have bundled together will help promote better opportunities for coordination of health and long-term supports,” said Sebelius.

“When it comes to long-term health care, each patient has a unique mix of complex medical and social needs that must be considered when seeking care,” says Marilyn Tavenner, acting CMS administrator. “Our health care system can offer many options to meeting those needs from traditional nursing home care to home and community-based services. Making patients and their families aware of these options will help them make inherently difficult decisions about long-term care. The integrated program will help families make informed choices and make sure patients have more control over their own care.”

This is part of a larger nationwide effort to bring direct-care workers into positions of respect and acknowledgment by giving the patients or the families a bigger voice in decisions about working conditions and wages. Whether in a traditional nursing home setting or an in-home setting, a critical factor is continuity of care.

Basic to any effort to improve long-term care is retaining, supporting and strengthening this core group of personal care providers.

Affordable Care Act funds will be available to states, area agencies on aging and Aging and Disability Resource Centers to coordinate and continue to encourage the use of tested Care Transitions Program models that integrate the medical and social service systems. This will smooth the transition of individuals from hospitals and nursing homes back to their communities and homes.

Barbara Quirk is a Madison geriatric nurse practitioner. Tandbquirk@aol.com
 

The Providence Journal had a great article on a government program ––called Shared Living––  which is part of Rhode Island’s effort to save nursing-home costs while allowing people to stay in their homes.  States have been offering the Shared Living program for people with developmental disabilities and now is expanding the concept to frail elderly people and adults with disabilities who are eligible for Medicaid. The first participants are expected to be paired up in about four weeks.

Through two agencies selected by the state, the program provides caregivers with money ($13,000 to $18,000 a year, nontaxable), nurses, caseworkers, training and respite. The caregiver lives with the elderly or disabled client and helps with such tasks as bathing and dressing. Typically the caregiver and patient know each other, may be related and may already be living together.

Shared Living bolsters efforts to care for people at home so they are less likely to need a nursing home. “It’s not just the money, but the support behind it,” said Jane E. Korb, program director for the Homestead Group, one of the two companies that will run the program. The other is Caregiver Homes of Rhode Island.

In Rhode Island, the Shared Living program sprang from the state’s “global waiver” to its Medicaid program, which frees the state from Medicaid rules to allow innovative programs.

The state has focused its efforts on reducing nursing-home use in favor of community-based programs. Long-term care accounts for nearly a third of Medicaid spending, and more than half of that long-term care money pays for nursing homes, according to 2007 data from the Kaiser Family Foundation.

The agencies that will run the program are not licensed. The Health Department has no oversight, even though it regulates nursing homes, assisted living and home care. The state Department of Human Services plans to monitor client and caregiver satisfaction, length of stay in the program, caregiver retention rates and complaints. 

The Homestead Group has been running the state’s Shared Living program for developmentally disabled people for years. Caregiver Homes is among the agencies that have been providing a similar service in Massachusetts. Its Rhode Island program director, David E. Bell, was formerly director of elder services at Child and Family Services of Newport County.

 

 

 

 

Read More →

The Las Vegas Sun had an interesting article about the the Nevada Supreme Court’s correct decision to upheld an arbitration award of $754,431 against the Manor Health Care Center in the negligence care of a patient in Las Vegas.

The court upheld the finding of an arbitrator that the standard of care was violated in the care of Edward Monsour.  Monsour died while in the care of the nursing home. The surviving children and the estate filed suit against the center. Both sides agreed in 2008 to binding arbitration before retired District Judge Stephen Huffaker.

Huffaker ruled the nursing home failed to provide the appropriate care mandated by skilled nursing home rules; that it did not keep accurate records of the care and “through neglect and recklessness, failed to provide adequate care, causing pain and suffering to both the deceased and his family.”  Huffaker rejected the wrongful death claim filed by the children.

Manor Health Care appealed but District Judge Timothy Williams backed up the arbitration award.

The Supreme Court rejected the argument of the health care center that the arbitrator wrongfully doubled the amount of certain damages.

The court said there is no evidence that Huffaker knew and disregarded the law in the handling of these claims.

 

Alexis Bonari is a freelance writer and blog junkie. She is currently a resident blogger at onlinedegrees.org and performs research surrounding online colleges and education. In her spare time, she enjoys square-foot gardening, swimming, and avoiding her laptop.

Hillcrest Nursing Home Resident, Grace Fugate, Wins Seven Million Dollar Lawsuit

In 2004, Grace Fugate had undergone a knee replacement and was recuperating at Hillcrest Nursing Home. When she used to call button to ask for assistance walking to the restroom, a nursing assistant told her , “Do it yourself,” and “Get over yourself”. She was then left alone, and nobody would respond to her calls for help. Her call button was intentionally left out of reach. As she tried to walk to the bathroom without assistance, she fell and her stitches burst open. When they found her passed out on the floor, she had nearly died from the blood loss. The hospital staff was forced to amputate her leg (http://www.sentinel-echo.com/local/x383290652/Woman-awarded-7-million-in-court-case).

Legal action.

Represented by Annette Morgan from Morgan & White Law Firm, Grace took on Hillcrest Nursing Home for their role in her accident. Ginda Rogers, the nursing assistant who refused help, could not be found for seven years. This stalled the investigation and the ensuing lawsuit. When the case came to trial, Grace was too ill to personally attend. She suffers from ongoing infections.

When the case was decided two weeks ago, the award totaled to nearly seven million dollars. Although Hillcrest Nursing Home has thirty days to appeal, it is unlikely they will overturn the ruling. Grace intends to use the award to finance home care for the remainder of her life. Thanks to the efforts of Morgan & White Law Firm, she will be able to do just that.

The Orlando News had an article about the investigation at Springs Group Home into the abuse of a resident with cerebral palsy. DCF is looking into allegations that two caregivers at Springs Group Home used excessive force on Bryan Barborka. His arm was fractured and his body was badly bruised when the workers were trying to restrain him.

DCF investigated this nursing home back in 2008 for a complaint as well.

 

The Hamilton Spectator reported a fatal outbreak of C. difficile at Grace Villa Nursing Home in Ontario. Clostridium difficile, also known as "CDF/cdf", or "C. diff", is a species of Gram-positive bacteria of the genus Clostridium that causes diarrhea and other intestinal disease when competing bacteria are wiped out by antibiotics.  The C. difficile bacteria can become overpopulated: The overpopulation is harmful because the bacterium releases toxins that can cause bloating, constipation, and diarrhea with severe abdominal pain. Latent symptoms often mimic some flu-like symptoms. Often, it can be cured simply by discontinuing the antibiotics responsible.  In more serious cases, oral administration of metronidazole or vancomycin is the treatment of choice.

An elderly resident died during the outbreak and left six others ill. Ontario hospitals were hit hard by clostridium difficile outbreaks in 2008. At Burlington’s Joseph Brant Memorial Hospital, 91 infected patients died. Eight others died in an outbreak in 2009 at St. Joseph’s Healthcare. The outbreaks prompted questions about hospital cleanliness and public safety.

C. diff causes diarrhea and fever, and is one of the most common serious infections in hospitals and long-term care facilities.  Staff are required to monitor the resident’s intake of antibiotics and  wash their hands to protect the residents.