The National Consumer Voice for Quality Long Term care wrote a great article on why Americans should oppose tort reform.

"In the legal system, a tort is defined as a civil wrong against an individual or a violation of an individual’s rights for which some kind of compensation – or damages – may be obtained.  In nursing home cases, the most common damages are noneconomic damages and punitive damages. Noneconomic damages are to compensate for pain and suffering, while punitive damages are designed to punish the person or entity that committed the wrong and stop further harm from occurring.  Tort reform refers to efforts by state and federal legislatures to place limitations on the amount of damages that can be recovered by individuals in certain cases involving personal injury or the improper care or treatment of a patient by a health care provider. Tort reform would limit the amount of damages nursing home residents – who are among the most
frequent and vulnerable victims of abuse and neglect in health care institutions – could receive. Several states have passed tort reform laws, and there are efforts to pass a national law to cap damages.

Tort reform would harm long-term care consumers by:
                Making long-term care facilities less accountable for harmful actions
Government studies have repeatedly shown that state inspection agencies fail to cite or penalize
facilities for harming residents, even when they find serious injuries; moreover, many serious
problems are never cited at all. Often the courts are the only branch of government that holds nursing homes accountable. By reducing damages, tort reform would lessen the degree of nursing home accountability. Less accountability could lead to more, not fewer, injuries.

                Limiting consumer access to the civil justice system
Many residents who have been abused or neglected – or their families – do not file suit because they are unable to find attorneys willing to take their cases. Lawyers are increasingly unable to accept cases because the amount awarded for damages under tort reform will not offset the high cost of handling the lawsuit. As a result, residents or their families are left with no legal representation and are shut out of the civil justice system.

                Limiting compensation for long-term care consumers
Noneconomic damages are often the only compensation most nursing home and other long-term care facility residents receive. A recent study found that eighty percent of nursing home awards are for noneconomic damages for residents’ pain and suffering because most residents do not have earned income to replace. Noneconomic damages compensate residents for very real injuries–such as the loss of a limb due to a deep and infected pressure ulcer, the loss of mobility due to a preventable fall, or severe pain and permanent impairment. They also compensate for the loss of a spouse or parent. These are very real damages and should not be subject to arbitrary limitations.

              Protecting corporations, not consumers
Damages, particularly punitive damages, must be large enough to deter future poor care. Tort reform proposals protect the pocketbooks of health care providers, including multi-million dollar corporations operating nursing homes, by decreasing the amount of damages they are required to pay. If corporate behavior is to change, the size of the damages must get the attention of the corporate boardroom; otherwise, corporations simply see the amount as the “cost of doing business.”

 

The mainstream New England Journal of Medicine published a thorough article by physicians advocating comprehensive overhaul of our medical care system, and among other recommendations, advocating against arbitrary damage caps:

“More than 75% of physicians — and virtually all physicians in high-risk specialties — face a malpractice claim over the course of their career. Regardless of whether a claim results in liability, the risk of being sued may cause physicians to practice a type of defensive medicine that increases costs without improving the quality of care.
Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.”

The Missouri Supreme Court ruled recently in Watts v. Cox Medical Center that limits on non-economic damages are unconstitutional for cases involving medical malpractice.  However, the opinion did not address cases of medical malpractice that result in wrongful death (which are most nursing home cases). The Court ruled that “The judgment is reversed to the extent it caps non-economic damages pursuant to section 538.210.”

 

Section 538.201 says: In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars for noneconomic damages irrespective of the number of defendants.to completely overturn the statute that implements the cap on medical malpractice and death cases.

This is great news for the victims of negligence in Missouri.

KSAT.com out of Texas had an interesting article and a good followup from this morning’s blog about Texas tort reform.  KSAT reported that since tort reform passed in Texas a few years ago, lawsuits against nursing homes are few and far between.  Nursing homes in Texas (and many other states including South Carolina) do not have to carry insurance and there is an arbitrary cap on damages that discourages lawyers from taking cases, even worthwhile ones.  Additionally, despite the arbitrary caps, the victim must pay back Medicare and Medicaid for any medical bills paid caused by the nursing home’s negligence.  In the end, tort reform protects negligent health care providers, unjustly limits a victim’s compensation, and takes away the constitutional right to a jury trial.

"Consumers of nursing home services are being badly, badly deprived of a remedy," attorney Marynell Maloney said.  She said "If there were bad lawsuits before, now there’s really bad care with no remedy for a lot of injured people," Maloney said. 

 

There are legal, ethical, and moral issues that arise when the government imposes legislation to limit the amount of damages a person or their family can be compensated from a jury.   One circumstance (there are many) has raised this inherent unfairness.  Last year in my hometown, a children’s train derailed in a public park — killing a child and seriously injuring 28 others — but the law said all the victims could only split $600,000 to help compensate for their loss including paying back insurance for medical bills.  All of the victims are children. One family’s medical bills alone exceed the $600,000 that the 29 affected families are supposed to share.  The medical bills far exceeded the $600,000 so the victims of the gross negligence that allowed the accident to happen would get nothing.  Nothing for the loss of a child.

Recently, the politicians got together to discuss a bill that would raise that cap on awards that government agencies and non-profit groups can be ordered to pay, meaning victims of future accidents would have more money to help pay their bills.  The increase is small and meaningless–it should increase every year based on the growth of healthcare costs and/or inflation.

Of course, special interests like the S.C. Association of Counties, insurance companies, and "charitable" organizations have put pressure on the politicians to do nothing and let the bill to increase the caps die on the Senate floor. A ridiculous compromise bill would leave the arbitrary caps alone but give local government agencies the option to set up assistance funds to help pay the medical expenses of victims injured on public property.  Everyone knows that the option would never be used.

 

The Huffington Post reported the outright hypocrisy of Rick Santorum who has a long history of pushing arbitrary limits to damages in medical malpractice lawsuits….except when it will benefit him and his family.  Santorum has advocated capping medical malpractice awards at $250,000, but his wife sued her doctor over a back injury and asked for twice that amount despite no permanent injury. 

The suit alleged a spinal alignment by a chiropractor was performed improperly and resulted in a herniated disk that caused her pain and suffering.  Santorum twice sponsored bills limiting the non-economic awards for pain and suffering that a plaintiff could seek to $250,000.  She sued for $500,000, despite the fact that her medical bills totaled approximately $18,800 and were paid for by her husband’s government provided health insurance. The jury awarded Karen $350,000 but a judge reduced the amount to $175,000.

Santorum testified that his wife had "trouble walking, bending and lifting and has suffered humiliation from weight gain associated with her injury." Santorum also testified that it would be tough for Karen to help his re-election "because of her physical limitations and the poor self-image."

 

As we previously discussed, a jury decided in August that the family of Dorothy Douglas, who
died from neglect at ManorCare’s Heartland of Charleston facility in 2009, should receive $11.5
million in compensatory damages and $80 million in punitive damages. She was deprived of
proper hydration that led to her death. Staff failed to make sure she had enough water and
that she was eating properly. On several occasions, Douglas told his mother’s nurse aides that the woman was not getting enough to drink, and asked them to make sure she had water next to her bed at all times.  The nursing home did not have enough staff members, an assertion backed by former employees who said due to the poor working conditions they could not properly care for residents.

However, a circuit judge has now entered a judgment order reducing a portion of a $91.5 million
jury award. The order reduces a $5 million segment of that award to a maximum of $4,594,615.

At issue is whether a 2003 state law arbitrarily limiting medical malpractice awards to $500,000
should apply to a simple negligence action against a nursing home. The caps, which state
lawmakers instituted under West Virginia’s Medical Professional Liability Act, prevent victims alleging medical malpractice from recovering more than $500,000 in non-economic damages. Heartland and parent company ManorCare, believes the case is subject to those caps because nursing homes are medical providers. But making sure a resident has enough water is not a medical decision. Such verdicts call attention to improper care in some nursing homes and are warranted based on the profits large companies report.

The defense lawyers also complain that multiple legal errors were made during the trial —
including a misstatement of the earnings of the home’s umbrella corporation. The jury was told
that HCR Manor Care made $4 billion in profits in 2009 based on a tax return statement from
that year but that was gross revenue.  Defendants also argue that the verdict form the jury used during the trial did not specify damages for each defendant named in the suit, and instead lumped them together, denying their rights of having a separate determination of liability. The verdict form also directed the jurors to give a $5 million award to Douglas’ sister Carolyn Douglas Hoy, who wasn’t named as a party in the lawsuit.

Nursing home employee Amanda Tibble pleaded guilty to abusing her patients in Washington County, TN Criminal Court. Tibble pleaded guilty to four counts of willful abuse or neglect of an adult at John M. Reed Nursing Home.  She only admitted guilt to the mental abuse. She took best interest guilty pleas for the two counts of physical abuse of two male patients.  Prosecutors accused Tibble of twisting one man’s hand and bending back another man’s hand.

Meanwhile, lobbyists for the nursing home industry are attempting to manipulate the judicial system in Tennessee to benefit nursing homes guilty of abuse and neglect.  Tennessee is moving toward lighter regulation of nursing homes, fewer state investigations and laws that make it more difficult to bring potentially costly lawsuits against operators.  The legislature placed strict new limits on the rights of nursing home patients and their families to sue nursing homes for poor care. That law also caps the amount a jury can award.  Many nursing homes in Tennessee require patients or their families to sign arbitration agreements waiving their rights to a trial before admission. 

The legislature in 2009 reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents.

The tort reform bill sets a $750,000 cap on pain and suffering claims against a nursing home. A higher $1 million cap applies to limited types of cases. Caps do not apply if intentional misconduct is found. Nor is there any cap on economic damages, such as doctor and hospital bills or lost wages.

Data compiled by the federal Centers for Medicare & Medicaid Services show Tennessee ranks fourth out of 50 from the bottom in the number of hours per patient per day provided by certified nurse assistants. It ranks seventh from the bottom in registered nurse hours per patient per day, according to the CMS data.

According to state health officials, current law and regulations require licensed nursing personnel to provide only 0.4 hours of direct care per patient each day. Professor John F. Schnelle of the Vanderbilt Center for Quality Aging said studies have shown that increasing the hours of nursing care provided to patients can improve quality. Several published studies, including a report from the Institute of Medicine and one co-authored by Schnelle, have found links between staffing levels and the quality of care provided in licensed nursing homes.

Despite protests from advocates for the elderly, the nursing home provisions in the tort reform bill included a key provision that brings all claims against nursing homes under the strict limits of the medical malpractice law, eliminating separate claims for negligence and requiring plaintiffs to provide certification that the care provided did not meet local standards. Punitive damages also are limited to $500,000 or two times the pain and suffering claims. Claims under a protection from abuse also will be blocked. The sponsors of these bills were all recipients of large campaign contributions from nursing home political action committees.  Follow the money.

Tennessee does poorly compared with other states in some key quality measures of nursing homes.  Federal officials have said the state has failed in its regulation of such homes. A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.

 

 

See article at The Tennessean

 

We wanted to help explain the study that was published in the New England Journal of Medicine . The study examined medical malpractice claim rates and payments. Only 1 in 5 malpractice claims against insurance companies lead to a settlement or other payout.   This study has proven two points: insurance companies deny far more medical malpractice claims than they pay out and doctors’ perceptions of medical malpractice claims are not in line with their actual risk.  The researchers found that most claims are dropped without payment.

The researchers looked at closed claims made against doctors across 24 specialties and three time periods (1991-1995, 1996-2000 and 2001-2003). The study was conducted by Anupam Jena, Seth Seabury, Darius Lakdawalla and Amitabh Chandra of Harvard and the University of Southern California and was funded by RAND.

 

 

There are also two important points to clarify with the study. First, the researchers and some of the subsequent media coverage use the words “sued” and “claim” interchangeably. This is not accurate. This study only looked at claims filed with one insurance company, not lawsuits filed in courts. Additionally, this study does not evaluate the merit of the claims that are dropped. Studies that have actually looked at the merits of closed claims have found that most negligence claims involve medical error and serious injury.

 

 

Hundreds of thousands of Americans are injured by medical negligence every year without compensation or apology.  Previous research has shown the majority of malpractice claims are valid and meritorious.    The "high cost of litigation" is actually a myth that has been built up by the scare tactics of insurance companies and tort reform groups.

The study does not support a common opinion among doctors and many jurors that most malpractice lawsuits are frivolous.  However, a tiny fraction of the patients harmed by medical mistakes actually file claims because of cost and caps on malpractice awards.

 

Last week in The Atlantic, Andrew Cohen wrote on the real world effects caps on damages have on the victims of tragedies and the ability of judges and juries to deliver justice. Below is a summary of the article.

When Congress passed the Amtrak Reform and Accountability Act in 1997, the railroad industry had successfully lobbied to include in "accountability" legislation a statutory-mandated limitation on damage awards in major railway negligence cases. The Amtrak Reform Act imposes such a cap, limiting the ability of American judges and juries to perform their constitutional roles in determining award amounts in civil cases where liability has been proven. 

" The new law meant that the average citizen could no longer use the justice system to determine the fair amount of damages in mass casualty cases. The statute told judges, juries and victims alike that federal lawmakers had determined, in advance, the amount of pain corporate America would be allowed to suffer at the hands of legitimate plaintiffs who had proven gross negligence cases in court. The railway industry cheered the arbitrary cap. So did the insurance companies. Certainty is a good thing in the world of the law and universe of business."

 

On September 12, 2008, an accident occurred in Chatsworth, California. Twenty-four people were killed and more than 100 were injured, many horrifically, when a Metrolink passenger train ran a red light and slammed head-on into a Union Pacific freight train. The passenger train engineer, who died in the crash, was texting someone and missed the stop signal.

 

 

"Metrolink, and a French company named Veolia Environment, which had employed the engineer (and which, it was said, had known before the crash of the man’s chilling propensity to text while steering trains full of people), decided not to fight liability. They took the blame. In 2010, two years after the accident, knowing that the damage award for their gross negligence would be huge, the companies paid into a special fund the $200 million ordained by the Amtrak Reform Act. And then they essentially washed their hands of the matter—as they were permitted to do by federal law."

 

Superior Court Judge Peter D. Lichtman was given the task of dividing up the money to the hundreds of people impacted by the deadly crash.  By all accounts, the exercise was brutally emotional for all concerned.  Judge Lichtman issued a 33-page ruling describing the results of the hearing and ordering the distribution of the $200 million fund. The opinion, which you can read here, is heartbreaking.

 

Heartbreaking—and particularly effective at describing in vivid detail the other side of so-called "tort reform." This other side focuses upon the terrible consequences people often face because legislators have limited the amount of damages that can be awarded to plaintiffs in negligence cases against big companies.   The opinion showcases the true cost of "tort reform" and, on a larger scale, the real cost of the nation’s current crest of corporatism. Here you have innocent victims whose rights and liberties were limited so that corporations could have litigation certainty. Here you have an honorable American judge hamstrung by statute to do right to the litigants before him. Justice in America in tort cases does not have to be, as the judge said, a "Sophie’s Choice" Yet in many respects it is.

 

From the evidentiary hearing, Judge Lichtman concluded:

 

Simply put, the sheer weight of the freight train crushed the lighter and more flexible passenger train. The fate of every passenger riding on Metrolink #111 that day, be it death, serious injury or the ability to walk away hinged on a passenger’s choice of seat and that seat’s direction of travel.

 

 

The judge wrote about the way the victims and survivors reacted in those first few moments.  And then the judge turned his attention to the assessment of the damages caused by the accident. He wrote:

 

This Court is powerless to express any words concerning the 24 souls that lost their lives that day. Each one of the victims was remarkable. Many families were left without any providers, not to mention the loss of a mom or dad. There were a number of families that lost their sons and daughters as well. The average age of the children who died was 19 years old…. Several of the passengers that died left behind special needs children at home with an already stretched budget and caregiver.

 

 

The argument against "tort reform"— the giving back to judges and juries the power to dispense justice—is a great populist argument in an age where there seems to be so much populist rage. And some Tea Party members, indeed, have been reluctant to vote for a federal malpractice damages cap. But not out of any expressed concern for the 7th Amendment’s right to trial by jury. And certainly not because the caps are unjust to individual plaintiffs. Instead, the Tea Partiers argue that a federal malpractice limitation law would encroach too heavily upon 10th Amendment rights "reserved to the states." In other words, the Tea Party, great populist bastion that it is, doesn’t mind if states dramatically limit the power of judges and juries to dispense justice—it just doesn’t want the feds doing it as well.

According to OpenSecrets.org, members of the House Transportation and Infrastructure Committee alone received just under $52 million during the 2010 election cycle from corporate political action committees, including $6 million from the transportation industry.

"I believe the American people often are duped into believing that so-called "tort reform" almostly always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.  Nor do I believe that most Americans understand how deeply these "tort reforms" undercut the fundamental democratic importance of the jury’s verdict. Judge Lichtman’s order is a testament to the neutering of the justice system—another policy choice which I don’t believe has ever been sufficiently explained or justified to the American people. So here’s what to do. The next time a politician shouts "tort reform" in your face, tell her or him to go spend a day with the victims and survivors of the Chatsworth crash, to live in their world for just a few hours, before talking again about why it makes sense to continue to give to the rich at the expense of the poor."