Here is an interesting article about a pro tort reform doctor who has had a change of heart after experiencing first hand the law of unintended consequences as a result of tort reform.  Here is an excerpt from that article.

Dave Stewart’s mother went to the hospital for surgery in April. Four days later, she was dead.
To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. Stewart and his two sisters wanted to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn’t worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state. The law limited the amount of money for "pain and suffering" — usually the physical and emotional stress caused from an injury — to $250,000.  Proponents say it discourages "frivolous" lawsuits.   The cap on pain and suffering has never been raised nor tied to inflation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.

Some malpractice victims and their families say the benefits of the law have swung too far in favor of doctors. Without accountability, some ask, what will keep physicians from making careless mistakes?

On average, California juries (which are rarely informed of the cap during trials) awarded $800,000 in malpractice death cases from 1995 to 1999, but the amounts were later reduced to $250,000 under the law. This suggests that medical malpractice victims and their families could be reaping much larger payouts than the law allows.

Recent malpractice premium increases may have had more to do with insurers’ business models and financial investments — including documented losses in their investment portfolios in recent years — than with their core businesses.

Stewart, of San Diego, said he had long been a MICRA advocate, believing it was in the best interest of doctors and patients. Not anymore.

After he and his family got over the initial shock of losing their mother, they wanted justice. Most attorneys turned them down over the phone, although three agreed to meet in person. Last summer, the entire family and their 80-year-old father made the trip to San Francisco and Oakland for meetings.

One lawyer said he would take the case only if the family paid the expected $50,000 in trial costs upfront.

San Francisco lawyer Brad Corsiglia at first seemed interested but later sent a letter dated July 11, 2007, that read: "As you can understand, with a cap of $250,000, we are limited in the type of case we can take on a contingency fee basis to only those cases that involve catastrophic economic losses."

"In 1975 you could buy a house for that money, and today what does it get you?" asked Stewart, whose parents would have celebrated their 54th anniversary last month. "Every year MICRA stays the same is another year that people who have been wronged will be denied the same justice."

Some state courts have struck down malpractice caps that didn’t rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state’s Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Becky Dessenberger’s 2-year-old son, Jacob, died at Children’s Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day.

In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000.

Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face.

"Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don’t think it’s fair."

I realize that this post might be a bit off topic but it shows the arrogance of insurance companies and their contempt and disdain for the rule of law.  Nursing home attorneys routinely see this when the insurance companies refuse to provide nursing home records or when they state an elderly resident’s life is not worth much because "they were already going to die" or when they blame neglect on resident complaince.

Allstate Insurance Co. told a judge that they refuse to produce key records to the Court no matter how much the Court fines them.  Judge Michael Manners has already fined them $25,000 a day since mid September — a total of $2.4 million and growing.

Last month the Missouri Supreme Court ordered the documents produced. At issue are the so-called McKinsey documents which show how Allstate set up a claims scheme in the 1990s that shortchanges clients while earning the insurance company huge profits.

Allstate still refuses to disclose the damaging documents.

The case stems from a car wreck seven years ago on Interstate 70. Allstate client Paul Aldridge of Hawaii ran into the back of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years.

The Columbia Tribune of Missouri has an article about a new study that shows nursing home admission paperwork to be confusing and takes away a resident’s fundamanetal rights without explanation to the residents.

Nursing home admission agreements are confusing, can run 10 pages or more with unfamiliar language, are often signed in moments of distress, and force residents to sign away fundamental rights.

"It’s a situation where they’re worried about health, they’re worried about their family, and often they’ll just sign anything," said Richard Royer, CEO of Primaris, a Medicare quality improvement organization.

A study released today by the not-for-profit National Senior Citizens Law Center evaluated 175 legal agreements signed by residents who entered Missouri nursing homes. The study found many agreements allow facilities to evict residents for almost any reason, limit their rights to be visited by family members and require family or friends to assume personal financial liability for care. All such provisions are in violation of the federal Nursing Home Reform Act of 1987.

The study found that 17 percent of surveyed nursing homes reserved the right to evict someone for any reason even though federal law lists only six valid reasons for eviction. Consequently, patients with Alzheimer’s disease and dementia or residents who complain about the care received are being evicted for being "difficult."

The survey also found that 19 percent of nursing homes required a guarantee asking a family member or sponsor to take financial responsibility for the cost of care. The study argues it’s illegal to require fiscal responsibility and that Medicaid is required to cover expenses when a resident is unable to pay.

The study found 5 percent of agreements instituted visiting hours for residents, also in violation of the federal law.

One of the things not mentioned in the study but is very disconcerting to many residents is the inclusion of an arbitration clause hidden in the admissions paperwork that waives the resident’s right to a jury trial if the resident gets abused or neglected.

The study and a consumer guide outlining the rights of residents are available online at

The L.A. Times has an incredible story that is far too common in today’s nursing home industry.  

 Rita Kittower buried her husband last month.  She had bade a tearful goodbye to her mate of 49 years, who had passed away in an exclusive assisted living facility in Calabasas. "He just stopped breathing," Kittower said she was told by a staff member.

Then came the anonymous phone call the day after the funeral. A female employee of the nursing home told Rita that her 80-year-old husband’s death had been anything but peaceful. She said Elmore Kittower had been beaten to death by someone on the staff. 

Detectives from the Los Angeles County Sheriff’s Department asked if they could exhume her husband’s body to determine what actually happened.

Mr. Kittower had a stroke which necessitated a stay at a nursing home for rehabilitation. Through a recommendation, Mrs. kittower found a place called Silverado Senior Living in Calabasas. The place specialized in taking care of residents like Mr. Kittower.  The price for such service wasn’t cheap. Rita said she paid nearly $75,000 a year for her husband to share a room with another patient.

On Sunday, Oct. 28, the Kittower family gathered at Silverado to celebrate Elmore’s 80th birthday. The following Sunday, Rita and Elise came back for another visit.  It was the last time they would see Elmore alive.

Two days later, a sheriff’s deputy told her that her husband had died at 8:30 that morning. When Rita called the nursing home she was told that Elmore had "just stopped breathing."

On Nov. 10, the day after her husband was buried, Rita received the mysterious call from a woman who identified herself only as Maria. The woman said she hadn’t slept in three days.

The woman said a staff member had punched Elmore in the eye and wrapped a towel around his head in an apparent attempt to suffocate him.

She hung up the phone, but not before getting the woman’s number. Rita asked her son to call the woman back. He elicited more details from the caller. When Rita asked about it, he said, "You don’t want to know."

Rita asked her nephew, Paul Zwerdling, to call the Sheriff’s Department.   As it turned out, sheriff’s officials already had their suspicions about Elmore Kittower’s death. The woman who called Rita Kittower also made an anonymous call to the Lost Hills sheriff’s station and mailed an anonymous letter to a nearby fire station.

Lt. Al Grotefend said detectives gathered sufficient evidence to warrant an exhumation.  After consulting with family members, she agreed to the exhumation in order to "find out the truth" and protect any other potential victims. 

Sources confirm some trauma to Kittower’s remains that was consistent with an assault.

Grotefend said detectives developed a prime suspect in the case — a caregiver who no longer works at the facility.  The suspect was arrested shortly after Kittower’s death on suspicion of elder abuse, but the case was rejected by the district attorney’s office.

Grotefend said that the arrest was made before the exhumation and that detectives have since gathered additional information and plan to resubmit the case to prosecutors.

Not surprisingly, Mark Mostow, a paid spokesman for Silverado Senior Living, said the company had completed its own "investigation" and "found nothing to substantiate any wrongdoing."   However,  Mostow admitted that the employee accused of assaulting Kittower had been terminated for violating an undisclosed policy.

There is a great article at about dozens of deficient Tennessee nursing homes that have been closed or fined as a result of neglect including drug dealers visiting The Cornelia House nursing home to sell crack to employees and residents; at Mitchell Manor, patients went without necessary pain medication for a week because the facility was out; and at McKendree Village, staffing shortages caused multiple problems, such as one patient lying in his own feces for 3½ hours, despite pushing the call light five times.

"Things aren’t right here," one Cornelia House resident told a state inspector. "Residents are buying drugs almost every night. … Staff are aware but don’t do anything. The patients are left wet and not taken care of." 

The 159-bed Cornelia House and the 42-bed Mitchell Manor have closed since losing tax payer funding. The 300-bed McKendree is still open to private-pay residents, but 200 of its residents dependent on federal funding must find a new place to live by Dec. 29.   However, plenty of nursing homes in Tennessee have been identified as having serious violations without losing funding. 

While lots of facilities have been cited with these serious violations, the facilities that lost their funding were unable to fix the problems within the reasonable time given or were unable to stay in compliance.

"These facilities were afforded the same number of days as others across the country to develop and implement a plan to correct the violations, maintaining an appropriate standard of care for residents," said Christy Allen, assistant commissioner of the Tennessee Department of Health, Bureau of Health Licensure and Regulation.

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Residents at a nursing home in Idaho are alleging the facility is neglecting its residents and has failed to provide hot water for nine days.

A new water pump was ordered Thursday when hot water went out at the home.  Hot water was  available in the home’s kitchen and laundry room. The hot water was temporarily restored Thursday, failed again Friday and was not repaired until Sunday because the replacement pump was damaged in transit.  Relatives of some patients deny hot water was available.

"My mom hasn’t had a bath since she’s been here," said Butch Malone, whose mother arrived at the care center Dec. 10.

The families also say the center’s staff is unresponsive when patients call for help. For example, Randy Speaks’ 40-year-old daughter said it has taken staff as long as an hour to respond when his daughter is in need.

During the facility’s last inspection in September, state inspectors said the home was deficient in failing to properly treat or prevent bed sores, according to reports posted on the national Medicare Web site.

The inspection also found the home "failed to prepare food that is nutritional, appetizing, tasty, attractive, well-cooked and at the right temperature."

See full article here.

Here is another article about a nursing home’s failure to prevent a resident from falling and then failing to intervene or inform the family. 

The family was never told that their 60-year-old mother had broken both legs in a fall and died of complications.  Eventually,  the family discovered the horrific details. Their mother, Linda Ober, had been dropped by staff at the nursing home where she lived and left to moan for help in her bed for five days.

Employees tried to cover up the injury by giving her pain medication and telling her that her memory of being dropped as they moved her out of her wheelchair was simply a bad dream.  The family is haunted by the thought that her mother spent her final hours wondering why her daughter didn’t come to see her. According to the suit, the resident  told hospital staff that they didn’t need to call her daughter, because nursing-home employees said they would. Cunningham, who lives a mile from the nursing home, said she was not told.

"I wasn’t there to hold her hand," said Cunningham, breaking into tears. "All I needed was a phone call."

Thomas D’Amore, the attorney representing Cunningham and her siblings, said Ober’s death was the result of having too few staff and not adequately training them to care for the center’s residents. According to the U.S. Department of Health and Human Services, a review of the Gateway nursing home about the time of Ober’s death found that the number of nurse-hours per resident was below the state average by 33 percent.

She was critically injured Oct. 29, 2006, when two employees dropped her after improperly wrapping a sling around her torso to move her from her wheelchair to her bed, according to the suit.   X-rays show Ober’s badly broken legs. In one X-ray, her femur is jutting away from its normal position by 45 degrees. According to a summary of a state investigation that D’Amore provided, staff who treated Ober at Mount Hood Medical Center said Ober’s pain was "off the scale" and that "you could feel the bones in her legs moving in your hands, and they were crunching."

Here’s an interesting little article about the former director of operations for Beverly LIving Centers in one of the midwestern states.  "Ken Williston," as he’s called in the article, says he was the representative of the national office, and assisted nursing home administrators in meeting the company’s clinical and financial goals.  Seems he realized that Beverly was attempting to eliminate family choice of hospice care in favor of SeraCare, which is owned by Beverly.  Mr. Williston reported this finding to his immediate supervisor and to the company compliance officer, and was unemployed within 30 days.

Williston, himself a nursing home administrator, states "Its all about family choice, patient choice.  That’s what its all about.  By law, the family has the right to choose their hospice care and home care.  I raised that point with management, and that’s why I’m sitting here right now."

Beverly is one of the chains that was recently (2005) acquired by a private equity firm (Fillmore Capital).  Williston says that they know nothing about nursing homes, and they’ve cut the overhead by ten to fifteen percent to increase their income.

Also sounds like Beverly was increasing their income by encouraging families to "choose" additional health care from their own companies – more money in, less money out.

Theres an article out of Lafayette, Louisiana about short staffing which points out that short staffing can lead to abuse and neglect in more ways than one.  Typically, we think that short staffing leads to poor care because of the high patient to staff ratio, or because of employee stress, but this article points out something I hadn’t thought of.  When facilities are short staffed, they often turn to agency staffing out of necessity.  However, although nursing home facilities are required to run background checks on all of their employees, staffing agencies don’t always do this, and the nursing home is "caught in the middle"  They have to have sufficient staff, and they can’t wait, so they use agency staff – they don’t always know if background checks have been performed. 

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Here is a link to an article about a Nashville CNA arrested for raping a 70-year-old resident of a nursing home.  Police arrested 44-year-old Harvey Eugene Taylor for allegedly raping a woman in her room at Madison Healthcare and Rehabilitation Center.

Police said the woman suffered from dementia. He was charged with aggravated rape.
In May, the 70-year-old woman told staff members that Taylor sexually assaulted her.

She was taken to the hospital. Tennessee Bureau of Investigation analyzed DNA recovered from her and it matched a sample from Taylor, who denies having any sexual contact with the patient.

Taylor has been a licensed nurse’s aid since 2000.