The Canadian Medical Association Journal released a report disproving one of the many myths used by tort "reform" advocates to push their agenda of protecting insurance comapnaies and nurisng home profits. 

After years of warnings from former United States president George Bush that "frivolous" medical malpractice lawsuits were driving doctors out of practice and inflating the cost of US health care, the weight of evidence now points to preventable errors — not misguided lawsuits — as the real source of the concerns.

In 6 consecutive State of the Union addresses, beginning in 2003, Bush urged the US Congress to pass what he called medical liability reform. He justified that reform, which urged the capping of pain-and-suffering awards at $250 000, by touting the need to ensure access to health care and to control rising costs.


The reform campaign was conducted against a backdrop of rising insurance premiums for US doctors. Despite the fact that volatile premiums have largely been found to be products of the insurance underwriting cycle (a cycle of gains and losses within the insurance industry), Bush, some Republicans, medical societies, hospitals and insurers exploited the "crisis," pushing lawmakers to make it more difficult for injured patients to sue doctors.   In fact, there is no evidence that doctors were hit with increasing numbers of malpractice claims during 2001-2004. Over the past 15 years, states that require insurers to file reports on malpractice claims indicate that rates have remained flat, or have even declined, relative to economic growth and population increases.

The real problem, says Tom Baker, a law professor at the University of Pennsylvania, is "not too much litigation, but too much malpractice. … The idea that Americans are suit-happy, litigation-crazy, and ready to rumble in the courts is one of the more amazing myths of our time."

In his 2005 book The Medical Malpractice Myth, Baker claims doctors, patients, legislators and voters have been misdirected and should be seeking ways to prevent malpractice. "It’s not pretty to say, but doctors and nurses make preventable mistakes that kill more people in the United States every year than workplace and automobile accidents combined."

The best-available research supports Baker’s position. Most Americans injured by medical malpractice do not sue. Most lawsuits are not frivolous, and courts efficiently weed out weak claims. Jury awards have not spiralled out of control, and lawsuits have not reduced access to doctors.

In a landmark study, the Institute of Medicine of the National Academy of Sciences estimated that medical errors kill up to 98 000 US hospital patients each year (Kohn LT, Corrigan JM, Donaldson MS, editors. To Err is Human: Building a Safer Health System. Washington, DC; 2000). In 2004, Healthgrades, an independent health care ratings company, reported nearly double that figure. Its examination of 37 million patient records from all 50 states, representing 45% of all US hospital admissions, found 195 000 hospital deaths from preventable medical errors annually between 2000 and 2002, (

"It’s really an epidemic," says Joanne Doroshow, who heads the New York-based Center for Justice and Democracy, a nonprofit, nonpartisan consumer rights organization. "It’s a terrible problem we have in this country, and I imagine around the world. Hospitals are dangerous places."

Evidence that medical malpractice in the US greatly exceeds malpractice lawsuits has been available since 1974, when California’s medical and hospital associations sponsored a study intended to buttress their efforts to get lawmakers to pass tort reform. Instead, it found that doctors and hospitals negligently injured 0.8% of hospital patients (Mills DH, editor. Report on the Medical Insurance Feasibility Study. Sacramento: California Medical Association and California Hospital Association; 1977). A later analysis of the data found that, at most, only 1 in 75 of those injured were compensated (Danzon, Patricia A. Medical Malpractice: Theory, evidence and public policy. Cambridge: Harvard University Press; 1985).

Recent research has confirmed that malpractice is rampant and few medical errors result in legal claims. In 1990, Harvard researchers examined more than 30 000 randomly selected records from New York hospitals. They concluded that 1% of patients were negligently injured, while only 4% of those who were injured, sued (Patients, doctors and lawyers: Medical injury, malpractice litigation, and patient compensation in New York. Cambridge: Harvard University Press; 1990).

The notion that frivolous lawsuits abound is also unsubstantiated. A 2007 study by Public Citizen showed the court system was "on the whole, a rational one that provides money for valid claims and dismisses invalid ones," ( Using data from the US government’s National Practitioner Data Bank, the consumer nonprofit group concluded that complaints by "the business and medical lobbies are exaggerated and unsupported by the facts."

Harvard researchers reached a similar conclusion when they examined files from 1452 malpractice claims (NEJM 2006;354[19]:2024-33). Almost three-quarters had outcomes consistent with their merit. Only 10% of patients received payouts in the absence of error, while 16% received no payout despite the presence of error. "Portraits of a malpractice system that is stricken with frivolous litigation are overblown," the researchers concluded. The system performs "reasonably well" in dismissing such lawsuits and in compensating the injured.

In addition, there is evidence that jury awards are simply keeping up with the costs of medical care, rather than being out of line. In 2005, Dartmouth College economists studied payments made to patients between 1991 and 2003. Actual payments, not jury awards, grew an average of 4% annually — slowing to 1.6% a year since 2000 — or 52% since 1991, roughly equivalent to increases in health care costs (Health Aff January-June 2005; suppl Web exclusives:W5-240-W5-249). A 2004 RAND study examining 40 years of jury verdicts concluded that average payouts grew by less than real income, with more costly medical care responsible for more than half the growth in jury awards.

In 2007, Americans for Insurance Reform used the insurance industry’s own data to show that higher insurance premiums between 2001 and 2004 were not the result of sudden increases in claims and payouts. Instead, payouts per doctor were stable, or fell, with premium increases unconnected to actual payouts. Malpractice insurers "vastly" and "unnecessarily" increased reserves for future claims, the study found, (

Even if caps and other limits on torts are imposed, they do not decrease malpractice premiums, according to the Center for Democracy and Justice. In 2002, it compared malpractice premiums to the amount of state-level tort "reform." Premiums did not decrease as tort law was restricted.   Some states that resisted enacting changes to malpractice lawsuits had low premium increases; some states that made major changes had high increases. "Laws that restrict the rights of injured consumers to go to court do not produce lower insurance costs or rates," the report concluded. "And insurance companies that claim they do are severely misleading this country’s lawmakers," (

Overall, malpractice insurance and claims account for, at most, 2% of US health care spending, according to the US General Accounting Office, the investigative arm of Congress.

Allegations that the threat of lawsuits and high premiums were driving doctors out of business were also unfounded, according to an extensive investigation by the General Accounting Office into anecdotal stories from 5 "crisis" states, so-classified by the American Medical Association. The investigation concluded that access to health care was not widely affected, and that the number of physician departures were sometimes inaccurate.

The problem of volatile premiums won’t be solved without reform of the insurance industry, says Doroshow. In most states, insurance companies can raise rates without government oversight. Requiring companies to justify rate hikes in regulatory hearings could control fluctuations, she says. And forcing malpractice insurance companies to open their books would increase competition in the industry.

The political debate has begun to refocus, a reflection that the real malpractice problem concerns the number of injured patients who don’t receive compensation, says Baker. "The political rhetoric has shifted pretty dramatically in that direction."

As a senator, US President Barack Obama recognized the fallacy of the tort-reform remedy. In 2005, Obama and then-Senator Hillary Clinton cosponsored legislation aimed at reducing malpractice suits by reducing the number of patients medical malpractice killed or injured. During his campaign, Obama’s health platform called for doctors and hospitals to be required to report preventable errors. He also promised support to providers to create guidelines and technology to prevent future errors.

In the years ahead, as Obama and the Democrats focus on health care reform, US anesthesiologists are likely to serve as the model for patient-safety improvements. Anesthesiologists once sued more than any other speciality and once paid some of the highest malpractice premiums in the country. In the 1980s, the American Society of Anesthesiologists scoured every claim filed against its members to identify unsafe practices and developed new guidelines to reduce errors. The anesthesiologists are now among the safest practitioners, and their insurance rates have fallen. Similarly, some US hospitals have recently examined malpractice claims made against them to find ways to make procedures safer, resulting in fewer lawsuits and lower litigation costs.



The Des Moines Register has an interesting story about Congress considering legislation that would eliminate taxpayer funded bonuses to nursing homes. Nursing homes around the country are getting hundreds of millions of dollars in taxpayer funded bonuses despite history of violations.

The legislation is an amendment to the budget bill that has been debated by Congress. The amendment was accepted by unanimous consent of the Senate on Thursday, but the bill itself has yet to be approved. The Des Moines Register reported last November that nursing homes throughout the country are earning hundreds of millions of dollars in taxpayer-funded bonuses despite violations of basic health-and-safety standards.

Nationally, the total cost of the bonuses is unknown. The Centers for Medicare and Medicaid Services, which approves and helps fund each of the bonus programs, does not track the payments. Currently, there are 81 bonus-payment programs in 36 states.  How and why do not they not track these bonuses?  Why would we give bonuses to profit-driven companies that short change residents on care and essential activities of daily living such as eating, bathing, and hygiene?  What a waste of taxpayer money!

The Register examined eight programs in the seven states where recent regulatory violations don’t disqualify a nursing home from receiving a bonus that is touted as being directly related to quality care. Those eight programs cost taxpayers $312 million per year. Some of the largest bonuses to poor-performing homes have been in Oklahoma, the home of Republican Sen. Tom Coburn, a medical doctor. Coburn authored Thursday’s amendment, telling his Senate colleagues that taxpayers shouldn’t be billed for bonuses paid to inferior care facilities.

"We paid out in excess of $300 million in bonuses to nursing homes that had significant problems in terms of giving the care and meeting Medicare standards," he said. "Why? Why wouldn’t we fix that?"

Coburn’s amendment would prohibit federally funded bonuses to nursing homes and any other government contractors that "fail to meet basic performance requirements." Coburn has likened the bonuses to those paid to executives at American International Group, or AIG, the insurer that has received $182 billion in federal bailout money.

In Iowa, the Register found that 16 of 23 homes hit with major fines in 2007 qualified for 2008 bonuses. Two homes that earned bonuses were on a federal list of the worst nursing homes in the nation, and a third faced the threat of having its license pulled because of substandard care.

In New Hampshire, the bonus program was dubbed the Medicaid Quality Incentive Payment to ensure legislative approval, although state officials there acknowledge the program includes no incentives or benchmarks for quality care. In other states, homes have been given bonuses to pay for legally mandated requirements, such as the installation of fire sprinklers or the payment of minimum wage.


The Traverse City Record Eagle had a story about  a pattern of abuses uncovered at Tendercare Health Center-Birchwood resulting in fines and prompting an ongoing criminal investigation by the Michigan Attorney General’s office.   Several residents suffered repeated physical and sexual abuse at the hands of their fellow residents in 2006-07, a pattern of violence that nursing home management failed to stem or report.   Victims included both male and female residents at Birchwood, which in November was named to a federal government list of the nation’s most troubled nursing homes.

Ellen Miller lived at Birchwood for just more than a year, until November 2007, and knew several residents who were harassed and assaulted.   Miller moved into Birchwood in November 2006 while she underwent rehabilitation and physical therapy following a leg amputation. She warned a male resident who sexually assaulted her neighbors that he’d have to pick himself off the floor if he laid a hand on her.  "I wouldn’t send a dog there," said Miller, 68, of Bear Lake.  Nursing home employees didn’t prevent aggressive patients from striking time and again, she said, an allegation backed up by state reports.

More recently, state regulators cited Birchwood for problems with patient confidentiality, incomplete medication records, improper care for bedsores and not preventing residents from falling. The nursing home was fined less than $38,000 in 2007-08 for all the violations.  Birchwood is owned by Milwaukee, Wis.-based Extendicare Health Services Inc.

Michigan Department of Community Health personnel inspected Birchwood in July 2007 and found an extensive history of physical and sexual assaults dating to 2006. Nursing home staff didn’t investigate the incidents as abuse or report them to the state. Inspectors said Birchwood employees neglected to protect the residents, often leaving them to fend for themselves.

Some men groped and grabbed women who couldn’t physically defend themselves. One man exposed his genitals; another touched women’s legs while he sat next to them playing bingo.  State officials found that nine female residents were sexually harassed and/or assaulted by five male residents. One of the repeat sexual assault victims also was physically attacked multiple times, state documents show. At least three other residents, including men, were physically assaulted by fellow residents.

Nursing home staff recorded most of the incidents on residents’ personal history charts, but did not report them to state regulators or local law enforcement.

"Despite the facility’s knowledge of residents with a history of sexually aggressive behaviors and of ongoing sexual and physical assault of several facility residents, they neglected to investigate and report these incidents and to intervene to protect facility residents from the pervasive and continuous abuse/assaults being perpetrated on a regular basis," the Department of Community Health report stated.

The report detailed several attacks from a 71-year-old male resident with dementia, behavior disturbance and "high-risk sexual behavior." A female resident told inspectors the man grabbed her breast while she was in the hallway.  She said the facility’s social worker told her she needed to watch how she spoke to men, "because some of them might consider it an invitation." "That’s like telling me if I’m a little girl in a pretty dress that I’m asking to be raped," the woman told state inspectors. "I’m not stupid. They should have stepped in and protected me. They should have stood up for me. Do I have no rights? Do I matter to anyone?"

The man also targeted a 52-year-old woman with Huntington’s disease, a neurological disorder. The woman’s chart indicated the man molested her five times.  One time, the man was found in bed with the woman. He was clothed, but the woman’s pants and underwear were around her thighs. She said "He hurt me," according to the woman’s chart.

The man lived in the section of the nursing home reserved for residents who require additional care and supervision. Employees later moved him to a different wing because residents there were more alert and could better defend themselves. "They thought residents would handle themselves, and that’s really not the residents’ role. They’re there to protect the residents," said Alice Turner, director of nursing home monitoring for the Department of Community Health.

A 70-year-old male resident with schizoaffective disorder committed at least 13 physical assaults over a three-month span in 2007, nursing home records show. Most attacks were violent, unprovoked and involved repeated punches to the face or head.

State inspectors asked Birchwood Administrator Kim Kloeckner if she investigated those incidents.  Kloeckner, the report stated, told state officials she didn’t think incidents involving a man with dementia needed to be investigated or reported as abuse.  Birchwood may have had "more behavior problems than they could manage," Alice Turner said.  Probably because of understaffing and the inability to supervise all the residents.

Nursing homes are required to notify residents’ families of significant incidents, but Birchwood didn’t do so in the assault cases. 


The Des Moines Register had an article on a new fee on most nursing homes in Iowa.  The idea is for the state to create a provider fee on nursing homes, then use the extra money to boost nurse’s aides’ wages and for other expenses for caring for low-income elderly Iowans.  The bill would impose a 3 percent fee on non-Medicare revenues of licensed nursing facilities. The plan would tap about $33 million for the state. The state would then increase Medicaid payments to nursing homes and draw in nearly $41 million extra each year in federal money.  Of the 421 nursing homes that would pay the tax, about 415 would get back more in government money than they paid out, according to a nursing home group called the Iowa Health Care Association.

The Iowa Senate passed the idea 45-5 with bipartisan support. Thirteen Republican senators and all 32 Democratic senators voted yes.

I wish the federal government would do this for all nursing homes.  We, as a country, need to make sure that the people providing care to our elderly and most  vulnerable citizens are getting paid a fair and living wage. had a short summary of a new Centers for Medicare & Medicaid Services (CMS) plans to test a pay-for-performance program to improve the quality of care in nursing homes.  All Medicare-certified nursing homes in Arizona, Mississippi, New York, and Wisconsin will be invited to join the Nursing Home Value-Based Purchasing demonstration project, which will run for three years starting in July.  CMS expects to enroll at least 100 homes from each state.

Under the program, participating institutions will be awarded points on the basis of staffing measures, avoidable hospitalizations, resident outcomes, and deficiencies identified during inspections.   Homes that score the highest and that show the greatest improvements over time will receive payments.  CMS expects to pay for the program with the money saved by reducing avoidable hospitalizations through improved performance. The funds will be placed into state pools from which incentive payments will be drawn.

I think this is a good idea but shouldn’t nursing homes provide quality care and adequate staffing anyway for the billions of tax payer dollars they get every year?

Tulsa World had a story about a sick nursing home employee who abused and mistreated residents at a nursing home.   Jason Lynn Pearl who worked at the Silver Lake Care Center was charged with two felony counts of caretaker abuse and one misdemeanor charge of verbal abuse, all stemming from his employment as a certified nursing assistant.


The wife of a resident complained to police Feb. 28 that she found a scratch on her husband. According to a court affidavit, the elderly male victim repeatedly complained that Pearl stripped off his clothes and touched him inappropriately, spit in his face and threatened to hurt him.

The victim’s family members told authorities he had complained for weeks about being abused by a nursing aide.  The nursing home ignored the complaints because they assumed the complaints were a result of dementia.   Upon further investigation, police learned that situations involving three patients at the nursing facility were videotaped on Pearl’s cell phone and had been seen by several witnesses before they were erased.   Why didn’t these witnesses report him?  were the witnesses employees of the nursing home?  There is no mention of how long he worked there or if a criminal background check had been performed.

The videotapes showed Pearl yelling at one elderly patient and violently jerking the shirt of another, the affidavit stated.  The charges against Pearl are based on victim testimony, as well as the testimony of witnesses who saw the cell-phone videos.

The family of the man who had been scratched reportedly said he had difficulty sleeping, was hard to calm down and had been fearful for his wife’s safety at their home.

Most of the information in this entry comes from John DeMoor "Trends in nursing home litigation". Daily Record and the Kansas City Daily News-Press.

When St. Louis defense attorney Stephen Strum finished his closing argument on behalf of a nursing home client earlier this year in Hannibal, Mo., he and his uninsured client were prepared and almost eager to hand over the keys to the facility’s front door.  The jury returned a $400,000 verdict, with $240,000 of it for punitive damages involving aggravating circumstances.  Defendant is appealling the jury’s findings.  Strum siad if the appeal is unsuccessful, "we’ll just hand over the keys".

Strum is one of many defense attorneys with nursing home clients that have converted each of their facilities into an independent limited liability corporation while at the same time have opted not to carry long-term-care liability insurance so they can’t be held accountable for neglect and negligence.

This tactic is just one of the latest trends that nursing homes are using to avoid responsibility for their actions.  Setting up nursing homes as their own limited liability corporation, not carrying liability insurance, refusing settlements and trying each case to the bitter end is part of a growing local and national trend the nursing home industry is using to protect itself from resident related lawsuits.

Defendants are quick to use the tactic to intimidate plaintiffs, concedes Kansas City defense attorney Roger Slead of the law firm Horn, Aylward & Bandy. I have heard it threatened more and more: ‘If you think this is a $5 million case, here’s the key to the facility because it’s not even worth $5 million as an ongoing business concern. Here, you can have the keys to the facility and we’re going to walk away,’ Slead said.

Plaintiff attorney Derek Potts of the Potts Law Firm in Kansas City said that incorporating into an LLC and not carrying insurance is merely a strategy for nursing homes to shield themselves from liability.  He sees the dangling-keys tactic often used early in a case to discourage attorneys from proceeding with costly litigation. They come out early and say, ‘We’re just going to be honest with you. There is no insurance, no money and you should probably abandon your case, or we can pay you a nominal amount to go away,’ Potts said. And it does work. I know a lot of attorneys who are daunted by that and don’t want to risk their time and expense going forward.

Many national nursing home companies have developed shell corporations with elaborate management systems and corporate structures. Potts explained that the corporation at the bottom level of the structure is often a not-for-profit corporation or a pass- through entity which rarely realizes profit or gain on its books.

The defendant will typically file a motion for summary judgment to sever the parent corporation or owner from the case. He points out that the plaintiff must counter by directing discovery towards piercing the corporate veil or showing to what extent the owner controls the care given and how that caused the injury.  Potts says the plaintiff should argue that owners control the quality of care based on how much money they provide for the amount of staff, salaries, training and adequacy of the equipment.

All these things directly impact patient care and controls how much profit they make, but they are also things that can impact how people get hurt or even killed, he said. The challenge is to follow the money trail to establish exactly who profited from the operation of the nursing home and tie that ultimate profit to the injury and, or death.

During discovery, Potts suggests the plaintiff seek the disclosure of ownership statement from the Missouri Department of Health and Senior Services; identify the named insureds on the liability policy at issue; and depose corporate executives about their understanding of the nature of the relationship.

Decisions by the Missouri Court of Appeals have helped to provide guidelines on how to build these cases. In Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, (Mo.Ct.App. 2002), the Missouri Court of Appeals held that to establish an agency relationship in the healthcare setting, (1) the principal must consent, either expressly or impliedly, to the agent’s acting on the principal’s behalf, and (2) the agent must be subject to the principal’s control.

Potts currently has a case where he has been told that all his client will receive are keys to a building the nursing home leases. However, he has yet to see a situation where a plaintiff has won and proceeded with collecting the assets of the nursing home.
 out of Ohio had a story about the use and effectiveness of Wii therapy for residents of nursing homes.  I have discussed Wii therapy other times on this blog and encourage all nursing homes to use this kind of therapy.  It is interactive, fun, and effective in assisting residents with social interaction, mobility, and exercise.  Doctors and therapists say the Nintendo Wii is a huge hit with senior citizens by helping with motor skills and mental acuteness.

The article talks about a tournament in Ironton, Ohio.  The Wii was like a form of medicine.  Bryant’s Health Center in Ironton was hoping for a little home team advantage Monday. It played host to three other local nursing homes for a Wii bowling tournament.

"When they’re having bad day or something, it helps them with the stress," says Norma Thomas, a senior activities director.

"We all just have fun doing it, that’s all it is, having a good time," nursing home resident Willie Nelson said.

Many of the residents enjoyed the competition and chance for exercise.

"It has been very therapeutic for our patients; range of motion, socialization has been great, we’ve loved this," Natalie Adams said. "The elderly, a lot of them used to bowl years ago, and it’s brought it back in their lives and it’s been great."

The St. Paul Star-Tribune had a tragic story about abuse in local nursing homes, and new measures used to protect residents.   After state investigations at two homes last year, three former aides were charged with 10 or 11 counts of physically and sexually abusing residents with dementia.  Ashton Larson and Brianna Broitzman were accused of abusing seven residents at Good Samaritan Albert Lea.  Maria J. Bjerke was charged with abusing six residents at Luther Haven in Montevideo.  

The episode started when the doctor of a resident in Cerenity’s 30-bed dementia unit reported Oct. 13 that she had trichomonas, a sexually transmitted disease.   Cerenity’s investigation swung into high gear 16 days later, when a different resident with dementia said she had been attacked.

The home notified regulators and began to investigate.  The medical director and nurses from other homes started to examine every woman on the unit, and by nightfall six were sent to a hospital for sexual assault exams.  Doctors there found that three showed "lacerations and physical findings consistent with recent sexual assault."

The home reported the allegations to the state and to police, and launched a two-prong plan to investigate the case and protect residents from a potential sexual predator.

The Cerenity Bethesda nursing home stationed guards at its doors to register and escort visitors, sent eight male employees home with pay and called in national experts to examine all male and female residents in the 117-bed facility.   It also retrained staff on how to spot sexual abuse and for more than a month used a "buddy system” to ensure that no resident was alone with an employee or visitor. The Department of Health cited Cerenity Bethesda twice during its investigation for inadequate measures. The "immediate jeopardy” citations faulted the home for failing to adequately protect residents and failing to take immediate corrective action.

There has been growing public awareness in the past year that Minnesota nursing home residents with dementia are particularly vulnerable to physical and sexual abuse. reported the filing of a lawsuit against Windsor Chico Creek Care and Rehabilitation Center for negligence and the wrongful death of a Geraldine Pavcik.  Pavcik was admitted to the facility on June 17 for short term rehab after a minor back injury.

Because Pavcik was at risk of falling, her doctor had ordered bed-rail restraints, a lowered bed, an alarm system, and that she be closely attended to.   All are standard preventative measures available in most nursing homes but they depend on proper supervision and a quick response time to call bells and alarms which, of course, depends on adequate staffing.  Most residents fall because the nursing home chose to be understaffed and that leads to falls.

These measure were not in place on "multiple occasions" while Pavcik was in the nursing home.  On July 3, Pavcik was left unattended and without bed rails and a bed alarm.  At 7 a.m. that day, she fell out of bed, severly fracturing her left hip.  Although her hip was X-rayed at the facility at 2:45 p.m., she wasn’t transferred to an acute-care hospital until after 9 p.m.

Pavcik had surgery for her fractured hip, but the operation affected her mental condition, and she was no longer able to eat or drink effectively.   As a result, she contracted "aspiration pneumonia," a type of pneumonia that can develop in people who inhale liquid or bits of food. The woman died of respiratory failure as a result of pneumonia.

Among the accusations against the nursing home are that its administrators failed to hire enough staff to keep Pavcik safe, that her doctor’s orders were not followed, that she wasn’t transferred to an acute-care hospital when she needed to be, and that her doctor was not notified as her condition declined before she died.