Insurance companies, the Chamber of Commerce, and the American Medical Association attempt to advance tort reform (i.e immunity for their members) by making up frivolous cases and trying to convince juries that doctors are fleeing states without caps on damages for victims of negligence and abuse.

However, new information based on the AMA’s own data on the number of physicians practicing in the states proves that these disingenous Chicken Littles are flat wrong.  Some key findings include:

1)  The number of doctors is increasing across the country. There were 921,904 physicians in the U.S. in 2006, nearly 20,000 more than in 2005.  Despite the alleged "physician flight" crisis, the number of physicians rose in every state except Louisiana, which had a total decrease of seven doctors (mostly related to the economic devastation of Hurricane Katrina).

2)  The numbe rof doctors is increasing faster than the population growth. There were 303 physicians per 100,000 people in 2006, an all-time high nationwide.

3)  The numbe rof physicians per 100,000 resdients is much higher in states without caps on damages (311 vs. 280).  Since 2000, the physician-to-population ratio in states without caps has increased twice as much as in states with caps.

Do not be fooled by the propaganda of the insurance companies and for profit health care providers.  They are interested in what is best for them and their bottom lines and not what is best for the victims of their malpratice.

Santa Cruz Sentinel has an article about the tragedy that is all too common for many nursing home residents.  Nursing homes fail to train on what DNR status means, and far too often simple care is not provided that would save a resident’s life.  Below are excerpts from the article.

The Tragedy: On Sept. 11, 2007, a 71-year-old woman with cancer was transferred to Pacific Care Manor, a nursing home in Capitola. Just prior to her admission, the woman’s doctor noted that her patient was lucid and responsive and "could have years to live." Most importantly, the patient had also expressed a desire to live.

Shortly after her admission, the woman began refusing food, water and any treatment. Within two days, she was screaming and combative. On day three, the nursing staff suggested that lab work be ordered to determine the cause of the resident’s distress. The facility’s director of nursing overruled the suggestion because "once we know what is going on then we will have to treat her." Instead, the nursing director asked the facility doctor to prescribe pain medication and a "do not resuscitate" order. The doctor complied and, despite the woman’s documented opiate intolerance, he prescribed a Fentanyl patch, Haldol, morphine. He also wrote an order for "no CPR, no hospitalization." His patient cried out "you are all going to kill me" after the forcible administration of the prescribed medications. On Sept. 16, just five days after her admission, the resident died. 

All residents of nursing homes have the right to grant or withhold consent to any proposed treatment.  Residents have the right to refuse or consent to treatment and to receive all information relevant to making their treatment decisions. Providing such information is part of any responsible nursing home’s assessment and care planning process. Federal regulations also reaffirm residents’ rights to informed consent and to refuse treatment.

Regardless of a resident’s mental capacity, no facility may administer treatment unless the resident has agreed or has been specifically adjudicated incompetent by a state court judge. Even after a court has determined that a resident is incompetent, it must make additional findings before terminating a resident’s right to refuse treatment. Without a court order, the provision of any treatment over a resident’s express refusal is a violation of several residents rights and is criminal battery.

Similarly, doctors cannot order "Do Not Resuscitate" orders without the written authorization of their patients. For DNR orders, designated health care agents may sign for the patient. However, doctors may not unilaterally impose DNR orders without a resident or resident representative signature.

Nursing homes throughout California are accustomed to interposing their notions of a resident’s best interests over the expressed wishes of their residents. The Department of Public Health and resident advocates have been generally weak in preventing this illegal conduct. Hopefully, the tragedy in Capitola will serve as a warning to both facilities and advocates about the deadly consequences of disregarding residents’ critical rights to direct their own treatment.

Anthony Chicotel is an attorney for the California Advocates for Nursing Home Reform in San Francisco.

Connecticut Attorney General Richard Blumenthal wrote an editorial about the nursing home industry.  We have included it below.

 Recent revelations of shameless self-dealing, massive mismanagement and substandard care at one of the state’s largest nursing home chains, Haven Healthcare, have rightly shocked the public. Haven, which operates 15 nursing homes in the state, received tens of millions in taxpayer dollars, but often failed to pay its medical and other suppliers, even at times its utility bills.

When it came to patient care, managers constantly cut corners, endangering residents’ health and well-being. Adding insult to injury, Haven CEO Ray Termini improperly diverted money to fund his fantasy of becoming a country music mogul. Termini’s name for his failed label — Category Five —proved prescient: His mismanagement devastated Haven like a Category 5 hurricane.

After The Courant broke this story, causing Haven to seek bankruptcy protection, my office successfully sought appointment of a chief restructuring officer who is currently supervising the chain’s operations until a responsible buyer is found and a patient care officer has stabilized and improved care at the facilities. This remedy required a Herculean legal battle, which took tremendous time and determination from my office, as well as the court. In addition to wasting state tax dollars and endangering residents, this abysmal episode exposed severe deficiencies in state oversight of nursing homes.

Haven’s secret self-serving diversion of scarce resources exemplifies the dark side of nursing home consolidation, leading to a fiscal debacle and endangering patient well-being. As nursing homes are swallowed by corporate chains and conglomerates such as Haven, state supervision becomes more difficult. Byzantine corporate constellations — like the 45 interlocking entities established by Haven’s owners — conceal and confuse, frustrating accountability and oversight. Such improper practices must be prevented, not just punished.

The state must demand more financial disclosure and transparency to prevent plunder of nursing home assets. To forestall future bankruptcies or insolvencies — as happened to Haven — the state should impose expanded auditing and reporting requirements, prohibitions on bleeding or abuse of resources, accountability of landlords and other measures that safeguard public dollars and cents — the lifeblood of patient care.

Symptoms of fiscal crisis should immediately land nursing homes on a watch list with the same stringent monitoring and scrutiny as a patient in intensive care, and with prompt state intervention when necessary. I have proposed a package of reforms to guard against abuses, better protect patients and ensure that state tax dollars are properly spent.

My proposals include:

 • Empower the state comptroller to monitor and review nursing home finances through regular forensic financial audits of nursing homes and their owners. The comptroller could subpoena records, compel testimony and review financial information of nursing home operators and their affiliates.

 • Provide for a court-appointed receiver upon a finding of gross financial mismanagement. Currently, a receiver may only be appointed if financial mismanagement threatens patient care — a higher bar that hindered our ability to obtain a receiver for Haven sooner.    

 • Cap management fees and rental payments that nursing homes pay to related entities at the amount allowed under Medicaid reimbursement rates and prohibit use of nursing home assets as collateral for loans unrelated to operations. This step will prevent nursing home affiliates from soaking taxpayers through sweetheart contracts with related management or landlord companies.

• Require a minimum level of malpractice and liability insurance coverage for nursing home owners and management companies.                 

• Clarify and strengthen the state Department of Public Health’s authority to regulate and approve nursing ownership structures and agreements. As happened with Haven, nursing home operators too often disperse ownership among numerous limited liability corporations, affiliates, subsidiaries and wholly owned partnerships — hindering efforts to identify, evaluate and hold accountable a home’s real owner.

 • Make landlords legally responsible for nursing home repairs and maintenance. The health department should also be authorized to seek appointment of a building monitor to do repairs and divert rent to pay for the work if the home’s owner fails or refuses to do it.

Massive nursing home conglomerates like Haven Healthcare are leaving mountains of financial ruin after squandering massive public funding, imperiling patient care and safety. The regulatory landscape of nursing homes in Connecticut must be reformed to halt these abuses.

McKnight’s has an article about diabetes in the nursing home population. One out of every four residents over the age of 65 is diagnosed with diabetes, according to a new report from the Institute for the Future of Aging Services. Researchers analyzed data representing 1.32 million nursing home residents over age 65.

Among the findings: Non-white residents were twice as likely to have diabetes as white residents; diabetic residents were younger than their non-diabetic counterparts; and the prevalence of diabetes in U.S. nursing homes was higher in 2004 compared to previous years. IFAS is the applied research arm of the American Association of Homes and Services for the Aging. Those afflicted with the disease are at a greater risk for developing other conditions that can affect their quality of life and care needs, according to researchers. Diabetics are more likely to take more medication and arrive at a nursing home with pre-existing circulatory problems. Diabetics are also 56% more likely to have a pressure ulcer upon admittance. The research was published in the February 2008 issue of Diabetes Care. To view the report, please go to http://www.futureofaging.org.

This underscores the need for better nutritional assessments and interventions requiring getting blood work and lab results on a regular basis.  This also shows why preventative measures are needed to prevent skin breakdown.

Trial Judge Denies Defendant’s Post-Trial Motions, Upholds Jury Verdict for Plaintiff in
Fall/Injury Case (Hawkins v. SSC Hendersonville Operating Company, LLC, d/b/a
The Brian Center Health and Rehabilitation)

On February 21, 2008 the trial Judge (the Honorable Judge Dennis Winner)  DENIED all of Defendant’s post-trial Motions in the fall/injury case, leaving intact the jury verdict of $800,000 ($200,000 in actual damages, $600,000 in punitive damages).

The case was tried in Superior Court in Hendersonville, North Carolina from November 6-16, 2007. Plaintiff proved that the Defendant failed to provide the reasonable and necessary care to prevent decedent, Neal Hawkins, from falling on three separate occasions in one day when it was documented he was a significant fall risk, and was suffering from a significant change in his condition.  Defendant failed to care plan or intervene for the known risk.

On February 11, 2006 Mr. Hawkins fell three times in a single day,  fracturing his hip on the last fall. The facility did not discovery the severe fracture for seven (7) more days. Mr. Hawkins underwent hip surgery. Five (5) weeks later he died of pneumonia. After nearly two (2) weeks of trial, the jury returned a verdict of $200,000 actual damages, plus $600,000 in punitive damages.

Defendant filed post-trial Motions on various alleged issues, seeking to eliminate the punitive damages award, challenging Plaintiff’s expert opinions regarding North Carolina’s "community standards" rule, and objecting to the Judge’s jury instructions. The trial Judge received Memoranda from both parties, heard oral arguments, and has entirely DENIED all of Defendant’s post-trial Motions. Defendant has indicated that they may appeal.

 Warren Wolfe of the Star Tribune in St. Paul, Mn. wrote a great article on the overuse of medications in the nursing home population.

Thousands of nursing homes nationwide are using powerful antipsychotic drugs to quiet disruptive people with mild dementia — at times a step that’s easier and cheaper than training staff to fix the problem.   The practice is alarming Medicaid officials so they ordered state nursing home inspectors to crack down on it. 

The Food and Drug Administration requires some to carry a "black box warning" that they heighten risk of death for older patients, a warning that it might extend to all antipsychotic drugs. They also increase the risk of confusion and falling.   The drugs often are prescribed whether the resident is psychotic or not.

Antipsychotic drugs have become the No. 1 drug paid for by Medicaid, which regulates and pays for nursing home care.  It’s easy to understand why an overworked and burnt out nurse might want a resident drugged as a chemical restraint.  However, unless the resident is combative because of a mental illness such as paranoia, there’s always a better way to control disruptive behavior in someone with dementia than with drugs, said John Brose, a Minneapolis psychologist who consults at more than 100 nursing homes, including Hopkins.

"Usually, that person is trying to communicate something — I’m too cold, too hot, constipated, frightened, tired, thirsty," he said. "Figure that out, then deal with the real problem."

A newly released poll from Zogby International shows that 63% of respondents oppose President Bush’s proposed nursing home Medicare cuts.

Also, 61% of those surveyed would be less likely to vote to re-elect their representative in Congress if he or she voted for the president’s plan containing Medicare reductions. Bush’s proposed budget would slash $24 billion to the nursing home benefit over five years. Zogby conducted the poll for the American Health Care Association, a major lobbying group for the nursing home industry.

Other results of the poll: 50% of respondents say that any nursing home benefit cuts would have "a negative impact on the quality of care for seniors" and 73% say they would support a presidential candidate who will not reduce Medicare funding for nursing homes.

WHEC-TV ran a story about a neglected resident who sued a nursing home for pressure ulcers, bedsores, and gangrene at Blossom South Nursing and Rehabilitation Center.  The nursing home is already facing nearly $150,000 in fines from the state for other deficiencies.

Resident Ruby Myers’ right leg was amputated after gangrene had set in.  Myers broke her leg last September. Doctors put her leg into a brace that apparently caused severe pressure ulcers and open sores. The circulation in the leg was stopped.  The woman also suffered from bedsores.

D.A. Mike Green has decided to defer to the state health department for possible action but no penalty has been decided yet.   Over the last three years, Blossom South had 70 standard health deficiencies, while the statewide average was 16. And deficiencies related to "actual harm" or "immediate jeopardy" were 10 for Blossom South, compared to just one for the state average for a nursing home.

The Houston Chronicle has an article about the amount of money and influence that the nursing home lobbysit have in creating legislation to protect their industry.   The American Health Care Association spent about $1.7 million lobbying the government last year on a variety of bills affecting health care.  The AHCA, which represents nursing homes and assisted-living facilities, spent $860,000 in the first half of 2007 and $881,000 in the second half.  The organization also paid Patton Boggs LLP $160,000 in the second half to lobby the government.   The AHCA lobbied on a range of legislation including laws affecting Medicare and Medicaid, caps on damages, immunity for neglect and abuse, and compelling arbitration in nursing home cases. 

Brandunson.com has an article about Extendicare REIT reporting fourth quarter profits of $10.5 million.  Revenue in the quarter totalled $469.7 million, up from $453 million.

Extendicare REIT, through its owned subsidiaries, operates 269 nursing and assisted living facilities in North America as well as medical specialty services.

For the full year, Extendicare earned $70.4 million or $1 per diluted share on $1.8 billion in revenue. That compared with a loss of $35.7 million or 53 cents per diluted share on $1.73 billion in revenue in 2006. Shares in Extendicare, which released its results after the close of markets, were down 18 cents at $11.30 on the Toronto Stock Exchange.

This shows that nursing homes are very profitable even during bad economic times.  It also shows there is no need for ridiculous caps on damages.