The NY Times reported on a new report that indicates that lawsuits improve the quality of health care because providers learn from their mistakes. "New evidence, however, contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk."

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Experts agree that the best way to reduce medical error is to gather and analyze information about past errors with an eye toward improving future care.  Full disclosure and transparency is the best way to improve safety and prevent injury.  Several factors appear to have overcome resistance to transparency, including widespread laws requiring disclosure to patients.  Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

 

Consumer advocate and nursing home expert Brian Lee wrote a guest column for Florida’s Herald Tribune on the new tort reform measures to protect the nursing home industry.  Below are some excerpts.

In his recent guest column, "Nursing home articles disputed," the nursing home industry’s lead lobbyist and spokesperson, Emmett Reed, claimed that he would "set the record straight" on Senate Bill 1384 — an awful bill sponsored by Sen. Bill Galvano.

Unfortunately, Reed never actually got to the record.

Instead of presenting clear and convincing evidence on how this legislation would benefit residents, he has offered obfuscations shrouded in a great deal of industry spin.

First, Reed claims that his bill will "continue" to "ensure" that nursing homes are held to the "highest standards."

That is simply not true.

Not a single line, phrase or word — not even a comma — in the bill addresses the standard of care. Does Reed’s definition of "highest standard" recognize the 17,021 deficiencies cited at Florida nursing homes, 50 percent of which were directly related to resident care, during the past three years, more than $4.6 million in federal fines against nursing homes in the state, and the fact that one in five nursing homes are so bad they are on the state’s notorious watch list? If this is Florida’s definition of "highest standard," it is a sorry one.

Nurse hours at low level. Reed also states that nursing home residents are "receiving more time with nurses on a daily basis." Also not true.

The latest federal staffing data compiled by independent sources (Online Survey, Certification and Reporting) show that Florida’s total nurse hours have dropped to their lowest levels in the last five years. Absolutely nothing in SB 1384 would guarantee higher staffing levels for residents.

Reed has the audacity to assert that injured residents and their personal injury lawyers deprive nursing homes of resources "devoted" to the care of residents. What? This makes no sense.  He is actually blaming victimized elderly and disabled adults who’ve suffered horrible and provable mistreatment at the hands of negligent caregivers.

Don’t they, like all Americans, have the right to seek redress through the courts and to pursue punitive damages in horrific cases? This bill only addresses serious cases involving care that is so bad, it rises to the level of punitive conduct. We are not talking slip-and-fall cases. We are talking about cases of physical abuse, sexual assault, chronic and purposeful understaffing, fraudulent behavior by owners and a host of other very bad acts.

As the profits of nursing homes soar to record levels, as the publicly traded stocks of nursing homes outpace the Dow Jones Industrial Average by a 2-to-1 ratio, and as per-bed prices of homes in Florida soar to new levels, staffing levels are dropping. Yet SB 1384 says, according to the testimony we heard from experts, thta the corporate owners can never be punished in court?

He says this despite the facts that the nursing home industry’s own actuarial report (published annually by Aon, a risk-management firm and insurer) clearly and repeatedly states that the frequency of lawsuits in Florida have "steeply declined" and that "loss costs per bed have dramatically decreased." Things are so good for nursing homes here in the Sunshine State that Florida is no longer listed among the problem states — and, to repeat, this is a report from Reed’s own people.

This contrived "lawsuit problem" devised through Senate Bill 1384 is smoke and mirrors meant to financially benefit owners who cause serious harm to residents in lieu of improving care for elderly and disabled residents.

That’s the real story.

And as for the personal attacks against me, they don’t warrant a response because, as the old saying goes, words will never harm me.

But when it comes to harm, the real harm is what his association is pushing before this Legislature with Senate Bill 1384.

Brian Lee is executive director of Families for Better Care, based in Tallahassee. Web: www.familiesforbettercare.com

 

Attorney John Hawkins who was a former legislator in SC recently wrote an editorial explaining how "tort reform" creates injustices in our legal system.  Below are excerpts but see the full editorial at Spartanburg Herald.

"The Cleveland Park train wreck case is a painful reminder of why so-called “tort reform” doesn’t work. Under current law, no matter how many people get killed or injured in a single catastrophic incident due to the government’s negligence, the total liability for all victims is $600,000.

This law is an example of tort reform. This newspaper, which has advocated tort reform before, is correct in arguing that the limit needs to be raised to help the victims of the train wreck.

But it cannot stop there. We cannot raise the limit for just one group of victims while ignoring other horrible cases that have not received the same degree of publicity.

As an attorney representing injured people in the Upstate for almost 20 years, I have seen too many cases where limits on liability have resulted in gross injustice. I represented a man who lost his beloved wife to a drunken driver, only to have his loss mocked by the state’s ridiculously low requirements for how much liability insurance people are required to carry. I could cite other cases involving catastrophic injuries where the insurance limits of the at-fault party were not anywhere near enough to pay for the medical bills.

Setting arbitrary limits on liability will always result in certain terrible injustices. The train wreck, horrific as it is, is just one of many situations where wrongdoers are allowed to escape responsibility for their actions due to the government granting them immunity of some kind.

At its essence, tort reform is merely the government picking winners and losers in the American justice system. The winners are those whose negligence kills, injures, maims and devastates. The losers are the many families who find themselves unlucky enough to have been injured by a specially protected class of wrongdoers."

Below is a reader’s response and Hawkin’s reply from his blog.

Read More →

The Miami Herald also had an article on the new tort reform measures in Florida.  "Despite the emotional testimony from the families of nursing home patients who suffered abuses, the bill cleared its last stop on Monday — with a 12-3 vote by the Senate Rules Committee — and is headed to the Senate floor."
Ken Thurston and his sister, Sandra Banning, who have been speaking out against this legislation, told committee members their mother, Virginia, was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assaults. The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down.  Thurston asked the panel: “Who benefits from this legislation? To put it another way, whose rights are being subordinated and whose are being protected by this bill?”

AARP Florida advocacy manager Jack McRay calls the bill “unnecessary and unconscionable.”
“It’s already exceedingly difficult to get punitive damages in a case,” he said.. Making it even harder to sue for punitive damages “eliminates the deterrent factor for future behavior.”
Since 2001, the state has required that half the funds from punitive damage cases against nursing homes be placed in a trust fund — and that has yet to happen, according to the Agency for Health Care Administration.
 

The Tampa Tribune reported on the new Florida tort reform measures that protect corporate owners and operators of nursing homes for neglect and abuse.  It requires the victims to show "conclusive evidence" of abuse before proceeding with a claim for punitive damages, raising the legal requirement that traditionally exists. Under current law, parties seeking punitive damages must make a “reasonable showing” of the evidence supporting their claim before being allowed to proceed. The bill accelerates the process for parties seeking punitive damages by forcing them to provide “clear and convincing” evidence before being allowed to pursue a claim for punitive damages.

The bill would make it more difficult for families to get their full measure of justice when abuse occurs.  Families also would face a higher standard before proceeding with a punitive claim.  Under the bill being proposed, only nursing home owners found to have “actively and knowingly participated in intentional misconduct” would be liable for punitive damages. That would reward an owner’s ignorance of their own operations. 

"Unlike compensatory damages, which calculate the loss and expense suffered by victims, punitive damages are meant to punish reprehensible conduct and to deter its reoccurrence."

"When the elderly are abused, and families seek compensatory damages from those responsible, the judgments can be limited by the victim’s incapacitation. Punitive damages are the clear and imminent threat that gets the attention of the nursing home operators and owners."

 

 

In Jacksonville, a woman tries desperately to get justice for her mother’s sexual assault at a nursing home. Sandra Banning went before the Senate Judiciary Committee this month to try and improve the way nursing home cases were conducted in the state of Florida.  The Senate is attempting to pass more tort reform that protects nursing homes from accountability and responsibility.   It raises the threshold for those suing nursing homes to seek damages for excessive misconduct, or “punitive damages.”  The bill (SB 1384) would require that before a person seeks punitive damages, a judge must first grant permission and require a detailed hearing to vet evidence used.  In other words, the victim has to disclose his strategy and trial tactics in a mini-trial to convince the judge, and then have another trial in front of the jury.  What a waste of judicial time and money.

Banning told the tragic story of how her mother was raped in a nursing home when a man used his wheelchair to block the door.  Sandra Banning was awarded a $750,000 judgment but it was never paid by the nursing home corporation. Florida has a state trust fund where 50% of punitive damages are required to go into this fund to assist with reform. However, since that bill was enacted in 2001, there have been zero successful punitive damages claims brought against nursing homes. The bill has two more stops before the Senate can completely come to a decision on it.  See article at the Florida Times-Union.

San Francisco Gate had an Associated Press article on the attempts of West Virginia legislators to include nursing homes under the tort reform caps meant for doctors who commit medical malpractice.  Nursing home lawsuits do not involve medical malpractice.  The allegations typically include simple negligence of unlicensed certified nurse aides or nursing malpractice.

"The measure explicitly includes nursing homes under the protections of a 2003 law that places limits on medical malpractice suits. The Medical Professionals Liability Act places a $500,000 cap on the non-economic damages for which health care providers are liable."

The West Virginia Association for Justice, a group representing plaintiffs’ lawyers, called the bill unnecessary. "Nursing homes are already identified as medical providers under West Virginia’s existing Medical Professional Liability Act," said Scott Blass, the group’s president. "This is an attempt by nursing homes to try to further limit their liability when their patients are harmed."

 

The Palm Beach Post reported on Florida’s attempts to protect the corporate decision-makers from accountability for their decisions that affect the care provided at the facility.  In the case of “vicarious liability,” HB 869 says, punitive damages may not be imposed unless “an officer, director, or manager of the actual employer, corporation, or legal entity condoned, ratified, or consented to the specific conduct.”  The bill makes it even more difficult to hold the corporate decision-makers (who make millions from taxpayers) responsible for the neglect and abuse at their nursing homes.  

Advocates for residents warn it’s a bad move in a state with one in five homes on a watch list for safety concerns.  15 more nursing homes recently joined the state watch list, joining some 123 others already on it.

“All this legislation does is immunize corporate decision-makers from any accountability,” said Brian Lee, the state’s former long-term care ombudsman and now the executive director of an advocacy group, Families for Better Care.

Meanwhile, executives who controlled nursing homes in Palm Beach and two other counties face felony charges in a $2.75 million Medicaid fraud case. A Pahokee nursing home paid more than $26,000 for an assistant CEO’s BMW and a Gainesville affiliate paid more than $50,000 for her Cadillac convertible, according to documents supporting the arrests. The Gainesville home is on the watch list.

This additional protection is not needed.   Florida had the most dramatic changes in liability costs in the country, with claims per 1,000 beds dropping by half from 2000 to 2007 and severity falling from $450,000 to $100,000 per claim.

 

What is going on in Wisconsin?  Nursing homes that receive Medicare and Medicaid are required by federal law to report all instances of alleged mistreatment, neglect or abuse, including injuries of unknown origin, to the state health department’s Division of Quality Assurance within 24 hours.  A recent investigation by the Wisconsin Center for Investigative Journalism found facilities do not get punished when they fail to comply with the legal requirement and report incidents.  Most of the time they don’t even investigate the incidents themselves.

Families of residents complain that facilities’ failure to report serious injuries or deaths related to abuse or neglect is not uncommon, and the state health department only learns about incidents after a family member files a complaint.  In some cases, nursing homes file internal reports after a resident injury or death, but do not report the incident to the state, in hopes to cover up the incident.

The number of complaints the state received about Wisconsin nursing homes and assisted living facilities rose from 1,684 in 2000 to 2,562 last year — an increase of more than 50 percent.  At the same time, the Wisconsin health department has cut its staff of full-time nursing home surveyors from 100 in 2002 to 64 in 2012 despite an aging baby-boomer population. A state report found that Wisconsin will have 1.3 million residents over 65 by 2030, compared to about 777,000 residents in 2010.

Meanwhile new laws to help nursing homes avoid accountability prevent juries from hearing about state investigation reports of nursing homes even in criminal cases which means that more neglect or abuse will go undetected and unpunished. Critics say the law removes a useful tool for ferreting out abuse and neglect, noting that attorneys cannot use state inspection reports to affirm allegations or impeach witnesses.

Representative Jon Richards, a Democrat from Milwaukee, says the new law is making it harder for families to win their cases in court. “The bill was passed, nominally, to produce job creation, but I don’t see how letting abusers off the hook creates a single job. That is a real problem.”

 

 

Articles at HaywardWI.com, GreenBayPressGazette, and Wisconsin in Watch.