The Orlando Sentinel had an article about Florida Governor Rick Scott’s attempt to protect negligent nursing homes, and protect his campaign contributor’s profits.  Advocates for Florida nursing home residents already are fighting proposed legislation that would severely limit lawsuits against nursing homes for negligence and wrongful death.  Experts state that the legislation will protect owners from being individually named in lawsuits, allowing nursing homes that are sued to shield their assets by setting up shell corporations.

Twin bills in the Florida House of Representatives and Senate aim to cap noneconomic damages — including those for pain and suffering and punitive damages — at $250,000. They also would shield owners from being held individually liable, even if those owners knew there were dangerous conditions at the nursing home and did nothing.  Neither proposal would improve quality of care for residents.

"This is just an outright handout to the nursing-home industry at the expense of some of Florida’s oldest and most vulnerable and most frail citizens," said David Bruns, a spokesman for AARP Florida, which is lobbying heavily against the legislation.

"When you look at the staff report for the bills, nowhere does it say that this is an increasing problem, which leads us to question: What is the need for this legislation?" said Jack McRay, AARP Florida’s advocacy manager. "All this legislation does is create an uneven playing field — one that’s heavily biased in favor of nursing homes."

The U.S. Administration on Aging is currently investigating Governor Rick Scott’s dismissal of Lee, who had led the ombudsman program for the past seven years. In part, officials are looking into allegations that Scott broke federal law by "interfering" with the watchdog program, which is supposed to be independent.

"The timing couldn’t be better for the nursing-home industry," Lee said. "First, they dismantle the ombudsman program, so it takes out the voice that represents the residents before the Legislature. Then they put this legislation out there that limits the ability of consumers to hold the facilities accountable.

All this while profits and fraud increase to record levels.



The New York Times also had an article about the NEJM’s report discussed yesterday.  The NY Times reported that nursing homes are required to collect masses of data for the Online Survey, Certification and Reporting system — which covers facility characteristics, staffing ratios and the results of state inspections — and the Minimum Data Set assessing residents’ conditions. Dr. Stevenson and his colleagues used these surveys to distinguish the homes with the best records from those with the worst.  This is not a reliable method to determine which facility is good or bad because the data relies heavily on self-reporting, and lax and inconsistent regulatory enforcement.

"Nursing homes aren’t sued all that frequently, it turns out. Plaintiffs filed 4,716 claims against the homes during those years, an average of one every two years, most commonly for injuries from falls and bedsores. The data don’t indicate whether these claims were warranted but do show that 61 percent resulted in a payment — typically, they’re settled out of court — and that the payment averaged nearly $200,000."


The New England Journal of Medicine recently published an unscientific piece claiming to imply that the quality of care at a nursing home is not related to how often they are sued for negligence.  NEJM should be ashamed of themselves for publishing it.   The author’s motivation might be financial and political but certaintly not scientific.

One author, Studdert, stated on their disclosure forms: 

(Paid) Consultant to a project promoting medical liability reform (administrative compensation systems,or "health courts") in the states; provided technical assistance American Medical Risk Insurance Company (Paid) Consultant to private company offering adverse event insurance to health plans and patients; provided advice on product design.

 Follow the money.

 Five large U.S. nursing home chains provided the "researchers" with limited information on lawsuits brought against them between 1998 and 2006. Researchers looked at the alleged reason for the suit and the outcome, not whether the lawsuits had merit or not nor whether the defendant had insurance or whether arbitrary caps prevented lawsuits from bankrupt entities.

On average, each nursing home was sued once every two years. The most common harms alleged were fall-related injuries (27 percent) and pressure ulcers or bedsores (16 percent). Other claims were for dehydration, malnutrition and excessive weight loss, physical or verbal abuse and medication errors. Sixty-one percent of the claims resulted in a payment, which averaged nearly $200,000.

But see AHRQ Research here and HealthGrades Seventh Annual Patient Safety in American Hospitals Study March 2010

How our cars got safer
By Gibson Vance

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year.

The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features.

Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.

The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled.

As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006.

It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers.

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed.

There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

The writer is president of the American Association for Justice. 

See AAJ’s report from last year on auto safety and litigation.


I was recently sent the cover story from last month’s Employee Benefit News, which features an  investigation of how employers are using technology to improve workforce health — and save money. The article features interviews with three representatives of the Healthcare Performance Management Institute: Executive Director George Pantos and Board Members Henry Cha and Bill Lavis.

Excerpts from Piecing together chronic care are below.


"New technologies combat this problem by identifying at-risk individuals and reaching out to them with coordinated care management programs designed to cater to all of their conditions simultaneously and funnel them into the appropriate wellness programs."



"Technology is now able to drill into a plan based on an analysis of historical claims data – clinical and prescription drug claims data – and run that information through cutting-edge data warehouses, which have come up with almost a 95% accuracy rate," details George Pantos, executive director of the Health Performance Management Institute, a think tank dedicated to finding private-sector solutions to rising health care costs. debunked six mythical “frivolous lawsuits”.  See full article here.

Great article especially the discussion of the McDonalds coffee burn case.  See blog post from Newnan Pratlaw explaining the Stella Liebeck v. McDonald’s case.

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson’s car when she was severely burned by McDonalds’ coffee inFebruary 1992.  Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.)  Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds’ knowledge about the extent and nature of this hazard. McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee.

Plaintiffs’ expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn. McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a “warning” but a “reminder” since the location of the writing would not warn customers of the hazard.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales. Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit. The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful.

No one will ever know the final ending to this case. The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned. —– excerpted from ATLA fact sheet. © 1995


CNN Money had an article about the epidemic of "dumping" and how budget cuts will increase this tragic problem.  For the elderly, state budget cuts could mean losing their beds at the nursing home. Here’s a look at what’s at risk for many of the nation’s elderly.

Shuttering nursing homes
Among the most dramatic of the proposed cuts is the severe reduction in Medicaid reimbursement rates to nursing homes in Texas. Facing a shortfall of up to $27 billion, state lawmakers want to reduce the rate by 10%. But payments to nursing homes would plummet by a total of 34% because they would also lose federal matching funds.  This would result in the closing of 850 of the state’s 1,000 nursing homes, forcing up to 45,000 elderly residents to find other accommodations, said David Thomason, chair of the Texas Senior Advocacy Coalition.

Losing their center
If New York State does not restore $27 million in funding for New York City’s senior centers. Without this money, Mayor Michael Bloomberg has said he’ll have to close 105 of the city’s 256 centers.  Most center’s services are critical to keeping senior citizens living at home, said David Gillcrist, executive director of Project Find.  They receive a nutritious meal and take classes that improve their balance, strength and confidence. Equally as important, they are able to socialize with friends and not become isolated and depressed.

Meals on Wheels saved for now
Senior services agencies in Georgia looked like they’d lose a million dollars of funding for Meals on Wheels. Agencies prepared to stop feeding a total of 138,000 elderly residents. Georgia reduced its support for Meals on Wheels in 2009, supplanting it with $1 million in federal stimulus money. That federal funding is running out this year. Gov. Nathan Deal did not replace it with state money.

Lawmakers agreed that the program was too important to gut. The state Assembly restored the funding in early March by cutting some other contracts in the budget, and the Senate is expected to follow suit soon.



Glenn Mandel of Escalate Communications for sent me an email about a new survey that reveals that depression levels among caregivers are more than two times the national average.  In addition, 86 percent of caregivers said that caregiving impacted their work situation because they had to take time away from their jobs, quit, retire early, reduce hours, or take a leave of absence (this excludes those who were already not working). 

If you need more information on the survey, or would like to speak with an expert at about the results, please contact him at 704-321-0351 or

Twenty-five percent of respondents also stated that they suffer from depression, well above the national figure of 9 percent cited in a 2010 study by the U.S. Centers for Disease Control and Prevention.  Family caregivers are also seeking support online (25 percent) via discussion forums, chat rooms, and through social networks such as Facebook. regularly surveys family caregivers and conducted this study in March 2011. Additional findings include:
• A third (32 percent) of family caregivers spend more than 30 hours per week on caregiving tasks.
• Seventy-seven percent of caregivers are concerned about the impact of their caregiving on their savings.
• The majority of family caregivers suffer from their own health issues, including high blood pressure (35 percent), arthritis (30 percent), and high cholesterol (28 percent).
• Over half (53 percent) of respondents report having trouble falling or staying asleep due to stress.
Caring for a loved one with Alzheimer’s disease is particularly challenging. "Alzheimer’s caregivers who participated in this study rated caring for their loved one as their highest source of stress," said Andy Cohen, co-founder and CEO of "Their unique needs led us to create Steps & Stages, which provides guidance and comfort to those in a role that can last many years and become increasingly intense as their loved one’s condition progresses." More than 25,000 family caregivers are now receiving free, stage-appropriate help from Steps & Stages, which was launched in October 2010.

About is the leading online destination for caregivers seeking information and support as they care for aging parents, spouses, and other loved ones. offers helpful content, advice from leading experts, a supportive community of caregivers, and a comprehensive directory of eldercare services. Based in San Mateo, California, is a private company funded by DCM, Intel Capital, Shasta Ventures, and Split Rock Partners.

Here is a white paper on the importance of appropriate restorative nursing programs for residents’ quality of life. Author Barbara Acello is an independent nurse consultant and educator in Denton, Texas.

The paper discusses the background and importance of restorative nursing programs.
"Restorative nursing is more important now than it has ever been. The Omnibus Budget Reconciliation Act of 1987 (OBRA) required skilled nursing facilities to identify and act on risk factors to prevent functional decline in residents.  OBRA included the legislative mandate for facilities to allow only medically unavoidable declines. Facilities are expected to plan care that will delay any decline in function in the residents. When the Resource Utilization Groups (RUGs) were
initiated, restorative nursing programs became part of Medicare reimbursement. The Resident Assessment Instrument (RAI) Manual for 2010 defines restorative nursing as “nursing interventions that promote the resident’s ability to adapt and adjust to living as independently and safely as is possible” (CMS, 2010).

The RAI Manual instructs facilities to begin restorative nursing programs when a resident is discharged from therapy, at admission if the resident has restorative needs and is not a therapy candidate, and at any time during the resident’s stay that restorative needs arise. In March of 2011, the National Quality Forum released 21 measures for public reporting and quality improvement that will be used at the Nursing Home Compare website. Both short-stay and long-term residents are included in this data.

Restorative nursing programs affect resident quality of life by allowing the resident to be as independent as possible. Restorative nursing programs also affect reimbursement, survey, and resident/family facility choice.  Restorative nursing is basically person-centered, whole-person
nursing care; the kind of nursing that we practice every time we care for a resident. The difference in a formalized restorative nursing program is that activities of daily living are considered therapeutic modalities. Nursing assistants are trained to instruct, encourage, guide, and assist residents to perform self-care skills with as much independence as possible. Quality of life is a natural outcome of restorative care.

Functional decline, on the other hand, can lead to depression, withdrawal, social isolation, and complications of immobility, such as incontinence and pressure ulcers. Functional decline has
been described as the “main determinant of quality of life, cost of care, and vital prognosis” (Baztan, 2009). The OBRA legislation and Medicare recognized the importance of preventing decline and created both a legislative and financial incentive to provide restorative nursing programs in skilled nursing facilities.

Regulations drive reimbursement, a fact of life in long-term care. Reimbursement dictates the amount of resources available for resident care and services. A well-managed restorative nursing program can bring profit to the facility’s bottom line. This is one of the ways that good care creates
resources for more good care – a positive cycle.

For the program to be profitable, attention to, and support for, the restorative nursing must come from the top. The facility administrator, director of nurses, and therapy director must be on board. A facility-wide culture of restorative nursing must be present. If not, the “helpful” housekeeper who does a task for the resident instead of with the resident will undermine the program.

Nurses, not physicians or therapists, order restorative nursing programs. Therapists work with nurses as consultants.  However, restorative nursing is not rehabilitation therapy. Rehab and restorative nursing are complements to one another, but not the same.  Restorative nursing, on the other hand, focuses on maintaining function in a long-term, ongoing process.   Improvement is hoped for but not required.  Restorative nursing bases treatment on restoring or compensating for skills lost through chronic disease, disuse, or other physiological factors.

CMS believes strongly that restorative nursing programs are appropriate for almost every resident. Quoting from the RAI Manual:
Most residents are candidates for nursing-based rehabilitative care that focuses on maintaining and expanding selfinvolvement in ADLs.

Greenwood physician Dr. Charles Franklin Bruyere pleaded guilty to 20 charges related to controlled substances.  Chief Deputy Solicitor Andrew Hodges said Dr. Bruyere pleaded guilty to 20 counts of unlawfully, knowingly and intentionally preparing pre-printed prescriptions for controlled substances. Hodges said all 20 counts are felonies.
Bruyere’s pleas were part of a negotiated agreement.  Bruyere was only sentenced to time served, which amounted to 10 days. Bruyere served the 10 days after he initially was arrested last July. The state Department of Health and Environmental Control brought the charges against Bruyere.