The Atlanta Journal constitution wrote a story about a Georgia Judge finding tort reform caps to be unconstitutional.  The cap on monetary awards in a medical malpractice case was found to be unconstitutional.

Superior Court Judge Marvin Arrington wrote in an order that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by others.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can’t," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

The legislature approved the $350,000 cap in 2005 as part of a civil-justice tort reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups.   In 2006, the Georgia Supreme Court stuck down another provision of tort reform when it ruled that defendants couldn’t decide in which county their medical-malpractice case was tried.

In his written opinion, Arrington complained that limiting the caps meant that in many cases, large jury awards would be issued only to wealthy people who could point to the loss of large incomes.

"The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

I read an interesting article about getting medical records earlier this week.  The article raised several important points:  1) Its hard to get your own records, but its much harder to get someone else’s; 2) Its hard to get ALL records; 3) Its hard to be sure that the records are accurate.

USA Today specifically points out that its harder to obtain medical records from treating facilities after something has gone wrong.  In fact, the article suggests that one way to avoid just this sort of problem is to routinely request copies of medical records.  This advice, which I think is very good advice, led me to wonder, well, just how often do you request records?  I mean, consider you’re in the hospital having a baby.  Do you request the records on day 2?  Do you request the records upon discharge?  Do you request the records on day 2 and upon discharge? 

The article also points out that under federa law, every patient or designated representative has the right to see and copy the patient’s medical records.  This is aparently not the case in nursing homes.  Nursing homes in this area routinely say that once a patient is discharged, they are no longer a patient, and therefore have no right of access to their records, at least not until those records have been thoroughly reviewed by their corporate attorneys.  Clever, don’t you think? 

Worse than that, try arguing with in-house counsel about whether or not your deceased client’s daughter (who was the Responsible Party for purposes of admission, who likely signed an arbitration clause that the nursing home will try to enforce against her) is a "designated representative" for purposes of reviewing and/or receiving medical records.

The article is worth the read.  And I don’t think its exaggerated.  And its certainly something to think about. 

Inevitably in most of our nrsing home cases, numerous documents that are intended to show the care, treatment, and services provided to the resident are missing, lost, or never done by the staff.  This occurs because the care was not provided or understaffing caused the staff not to have time to document or poorly trained and supervised staff.  Despite the fact that all nurses were taught and accept the axiom that "If it wasn’t documented, it wasn’t done", the insurance companies, nursing home industry, and their defense counsel always say the missing information is not relevant and does not show that the care wasn’t given but rather wasn’t documented.  Hopefully, the new Medicare reimbursement policies will preclude this frivolous argument.

McKnight’s has an article discussing the new Medicare reimbursement policies and the necessity of documentation to prove care provided.  Nursing homes will have a greater role in ensuring accurate documentation of care.    Compliance officers’ experience in billing and coding could be easily transferred to the area of quality-of-care forms.  Physicians and care workers will need to learn the appropriate language from compliance officers to best fill out the claims forms. had a story by Jack Kuenzie about a resident being neglected in a Prosperity, S.C. nursing home.  The owner of the Southside Residential Care Facility, Roy Lee Bowers, 64, has been arrested and charged with felony neglect of a vulnerable adult, resulting in the death of a patient.   His health care administration license was also suspended Friday by the state.

Investigators started looking into the facility when they found 59-year-old William Sealy malnourished and only weighing 94 pounds.  Sealy had injuries to his legs, bed bugs, a toenail rotted off and a toe beginning to rot off, and his socks had been left on for so long that his skin was pulled off when his sock was removed. They said he also had a scalp disease, appeared as if he hadn’t been bathed in over a week, and was severely malnourished. He weighed 94 pounds and officials said he should have weighed at least 160 pounds.

Sealy died on Saturday, April 12th. Autopsy results show he died of pneumonia and severe infection.   Until he died, Sealy’s family had no idea he was even there. A spokeswoman says the family had been told by his guardian to avoid contact with Sealy for fear of damaging his fragile mental condition.

To those who monitor the state’s system for protecting sealy and others like him, it’s another indication of just how weak that system can be.

William C. Lhotka of the St. louis Post-dispatch wrote an article about a Judge preventing a nursing home from evicting a resident from a nursing home.  Below is an excerpt of his article:

A judge has barred an Ellisville nursing home from discharging a resident in a billing dispute because of the possible traumatic effects of transferring her to another care facility.  The judge found for the family of Barbara H. Lindsay and against Bethesda Long Term Care Inc. which operates Bethesda Meadow.  The ruling means the nursing home cannot move Lindsay to another nursing home when Bethesda alleged Lindsay’s family owed the company past due bills.

Lindsay’s son Douglas contended that the bill was erroneous and that his mother was too fragile to move.   Jacqueline Levey, attorney for the Lindsays, argued before Vincent that "any nursing facility wishing to expel an elderly or disabled resident can simply manufacture a series of grossly inaccurate billing statements."

Bethesda lawyer James W. Erwin had contended that some billing errors by Bethesda didn’t negate the failure of the Lindsay family to make payments.  On the day before the hearing in October, the Lindsay family paid its bill in full. Nonetheless, the nursing home proceeded with the discharge, said Levey, the family’s lawyer.

Vincent cited medical testimony in his order that Barbara Lindsay "is very fragile and has very little strength." The judge said the nursing home provided no evidence that "a safe and orderly discharge could be accomplished."

Below is an excerpt of an article I recently saw from The Choate News about how California nursing homes used an increase in reimbursements from the State for profit instead of providing adequate care.

Nursing Home Pocket Money Meant For Care
By Jordan Rau

SACRAMENTO, Calif. — California’s nursing homes pocketed much of the $590 million that state lawmakers provided them to better tend to low-income people, while patient care declined by several key measures, according to a study to be released Tuesday.

A law boosting reimbursements from MediCal, the state’s health-care program for poor people, passed in 2004. By 2006, the first full year the higher rates were in place, average nursing-home revenues from MediCal had increased from $124 a day to $152 per day, according to the study by a team of researchers at the University of California, San Francisco — but few of the promised improvements for patients or staff had come to pass.

Nursing attention for patients grew, on average, by 3 percent. But the study also found that 144 homes, or 16 percent, did not meet the state’s minimum staffing standard.

Average wages for nursing assistants increased from $10.61 an hour to $11.32, not quite enough to keep pace with inflation, the study said.   Turnover among nurses grew slightly worse, with nearly 7 in 10 leaving their jobs that year.

The amount nursing homes spent on direct patient care actually decreased by 3.6 percent, according to the study. Substantiated complaints of patient mistreatment increased by 38 percent. State and federal regulators cited homes for 6 percent more violations.

“They got so much money, they should have been able to do something,” said the study’s lead author, Charlene Harrington, a UCSF professor and nationally recognized authority on nursing homes.   “The fact that they let the nursing-assistant wages actually decline with inflation, I think there’s no excuse for that,” Harrington said. “They’re the bulk of the workers and they’re the lowest paid.”

The higher reimbursement rates were pushed through the Legislature in the final two weeks of its 2004 session by a powerful alliance between the nursing-home industry and Service Employees International Union, which represents many health-care workers.

At the time, several nursing-home advocates objected that the measure lacked sufficient safeguards to ensure that the money went to patient care.

Along with more money, the new law changed the way facilities were reimbursed from a flat fee for each patient to one based on how much the homes spent on workers, patients and the physical plant. Supporters pledged that the change would reward homes that hired more nurses and paid them better.

The average nursing home netted $248,047 in 2006, a 233 percent increase from 2004, the study said.   The study found some areas where nursing-home spending did increase substantially.

For example, administrators’ wages rose by 13 percent, and the pay for licensed nurses — who have more training than assistants — grew by 9 percent.

Nonprofit nursing homes raised their wages more than for-profit homes. Still, 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.” has an article referencing a recent Wall St. Journal article showing how the nursing home industry is using mandatory arbitration to avoid compensating victims of abuse and neglect.  Below is an excerpt from the article:  

Nursing home residents and their families increasingly are "giving up their right to sue over disputes about care, including those involving death, as the homes write binding arbitration into their standard contracts," the Wall Street Journal reports.  According to the Journal, "Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s."

The practice has "profound implications" on the nursing home industry, according to the Journal. An industry study released last year found that the average cost of settling cases has declined for nursing homes.

Consumer advocates and plaintiffs’ lawyers have criticized the arbitration systems for nursing homes, saying that people too often do not understand whether the arbitration clauses are mandatory or that they are waiving their right to sue.  Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) introduced legislation that would prohibit nursing homes from requiring patients to sign an arbitration agreement as a term of service. Martinez said, "It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home."

The American Arbitration Association, which is the largest arbitration provider in the nation, generally refuses to handle cases of nursing home arbitration and opposes arbitration requirements in nursing home claims. The American Health Lawyers Association has a similar stance, and other arbitration groups said they only accept the cases when the agreements are in compliance with law. Eric Tuchmann, general counsel for the American Arbitration Association, said that some patients "really are not in an appropriate state of mind to evaluate an agreement like an arbitration clause."

The has an article about Colorado lawmakers prohibiting insurance companies and nursing homes from coercing residents to waive their right to a jury trial in exchange for recieving health care.  Excerpts are below:

Rep. Cheri Jahn believes more and more nursing homes are taking advantage of elderly patients and their families by including binding arbitration clauses in their contracts, and she is sponsoring legislation to prohibit the clauses.   The arbitration clauses mean that no matter how egregious the treatment, the patient can’t file suit in public court to settle a dispute, Jahn said. The patient can only negotiate behind private doors with an arbitrator chosen by the nursing home, she said.

Jahn said she is drafting a late bill to ban binding arbitration agreements in long-term care contracts.   The Colorado Health Care Association, a trade organization representing the state’s nursing homes, is opposed to the bill.

It takes tremendous courage for Rep. Jahn to propose this legislation since she will now be a target for the insurance groups and lobbyists for the nursing home industry.  She is my hero of the week!

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."

Here is an article from Long Term Living online editor John Oberlin that indicates that the economic slowdown will not affect the profits by the nursing home industry.  Cambridge Chairman Jeffrey A. Davis points out that all components of the senior housing sector appear to be in good shape, with nursing homes, assisted living, and independent living facilities all at their highest occupancy levels in years

Although the economy apparently is at a tipping point, the outlook for the senior housing/healthcare industry remains remarkably upbeat, one industry expert maintains.

"While no industry is completely recession-proof, owners and operators of senior housing/healthcare properties are better positioned to deal with an economic downturn than they’ve been at other periods in the past," believes Jeffrey A. Davis, chairman of Cambridge Realty Capital Companies, a senior/healthcare debt and equity financing firm.

"Historically, the pattern has been for the industry to go through debilitating boom/bust cycles. However, at this time, there’s no over-building and occupancy levels for all product types are high," he observes.

Davis points out that all components of the senior housing sector appear to be in good shape, with nursing homes, assisted living, and independent living facilities all at their highest occupancy levels in years.

"This time around, there has been significant restraint regarding new construction. Generally speaking, management appears to be more enlightened in this regard and consumers more aware of the expanding range of products available to them. Even if the economy tanks, the industry will not be as vulnerable as some other segments of the commercial real estate market because there hasn’t been an artificial demand component working against sound economic judgment," he said.

"Going forward, capital will continue to be available but more constrained in 2008. The crisis in confidence has impacted various lenders in different ways, and underwriting criteria has become more stringent across-the-board.

"But credit will be available from sources attracted to the industry by its long-term outlook. Investors and commercial lenders notice that demographics for the industry continue to move in a positive direction, and that the product that has emerged in the marketplace today has a much broader appeal to users than it did 25 years ago," he said.

HUD has emerged as the preeminent lender of choice for qualified borrowers in the skilled nursing home and assisted living segments and continues to solidify its role as a capital provider to under-served markets. But capital will also be coming from a variety of other sources, including Fannie Mae, Freddie Mac, commercial banks, insurance companies, private equity firms, and credit companies, he noted.