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."

 

 

The West Virginia Gazette reported the Court has denied a new trial in an elderly neglect case that resulted in a $91.5 million jury verdict against Heartland of Charleston nursing home’s billion-dollar parent company.  The Court found that the damage award was appropriately scaled to punish Heartland’s corporate owner, HCR Manor Care, for what the judge called a history of intentionally short-staffing nursing homes to maximize profit.  The Court found that short staffing issues arose as the company sought to keep margins high by hiring as few nurses’ aides as possible. Tax forms presented at trial listed more than $4 billion in revenue in 2009, including $75 million in outright profit.

One nursing care staffer, Tara Boweles, testified during the trial that conditions in the home were “horrible,” saying: “I wouldn’t put my dog there.” She said patients sometimes would lay in their own urine and feces for hours. Staff supervisor Beverly Crawford testified that employees feared getting fired for reporting patient neglect.

Tom Douglas sued Heartland because his 87-year-old mother died of dehydration complications that stemmed from her 19-day stay at the facility in 2009.  The elderly woman suffered head trauma from several falls and was eventually confined to a wheelchair. Experts said during the trial that staffers at the nursing home also failed to provide the woman with basic needs, like food and water, which had been a contributing factor in her death.  She formed sores in her mouth that generated dead tissue that doctors had to scrape away with a scalpel.

It is our hope that this will set an example,” Douglas’ lawyer, Mike Fuller, said of the $90 million verdict. “The community of West Virginia will not accept nursing home residents having to die from dehydration because of a corporation’s failure to provide even a cup of water.”

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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.

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

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

Joe Chapman posted a great article from Scott Cooper in the Legal Examiner about recent tort reform attempts in Pennsylvania.

“In Pennsylvania there is a move to cut punitive damages in cases where abused residents try to fight back against the greed of nursing home companies. An article appeared in the Pittsburgh Post Gazette, and here is the Answer from Schmidt Kramer’s own Scott Cooper, who is serving as the President of the Pennsylvania Association for Justice (Pa. Trial Lawyers).

 

Letter to the Editor of the Pittsburgh Post Gazette Damage limits worrisome
In the article “Nursing Homes’ Bid for Law to Limit Punitive Damages Stalls in Harrisburg,” July 3, representatives of the nursing home industry seriously misstate the facts about lawsuits filed against them in an effort to lessen legal protections for the seniors and vulnerable entrusted to their care.

Although they are rarely awarded under current law, it is the threat of punitive damages that helps increase safety in every industry, including in nursing homes and long-term care facilities. Making the legislation worse, the Pennsylvania House stripped from the bill a provision that would have at least allowed punitive damages if there were evidence of illegality — including inadequate staffing, training and oversight.

As it is, too many for-profit nursing homes place their profits ahead of safety. Passage of limits on punitive damages would give them virtual immunity from being held responsible for that decision.

 

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

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

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

 

The Louisville Courier Jornal reported the jury’s verdict in a recent two week nursing home neglect trial against Treyton Oak Towers.  The jury awarded $8 million in damages to the estate of a retired surgeon whose legs were broken becuase of neglect.  Dr. David Griffin died less than two months after he was improperly transferred from a chair into his bed causing fractures.  The plaintiffs claimed Griffin was transferred without a lift and by only one nursing assistant, in violation of the nursing home’s care plan, which required two assistants.

The worse part is that Defendants tried to cover up what happened.  Employees were ordered to change medical records to cover the incident up.  This happens all the time in nursing homes. 

The verdict was returned after the jury deliberated for about two hours and included $2 million for pain and suffering, $1 million for violating the state nursing home statute and $5 million in punitive damages.
 

An uninsured skilled nursing home operator was found liable yesterday of abusing an elderly resident. After the jury returned a verdict that would have led to a $1.5 million liability and an expected punitive damage verdict in the range of $20 million soon to follow, Erwin Cablayan, shareholder of San Marino Manor, Inc., cavalierly advised the trial court that San Marino Manor had filed bankruptcy.

Cablayan and his legal defense team of lawyers attempted to stave off litigation by informing the Plaintiff that the nursing home operated without insurance.  Most nursing home do not carry insurance or it is a wasting policy that goes to defend the owners but not to pay verdicts for abuse and neglect. 

"We have been tracking for about three to four months how they began transferring assets to a shell corporation, which put Erwin Cablayan’s son Kevin Cablayan ostensibly in charge,"  attorney Garcia said. "As if they had not already abused Mrs. Angelo enough, now they are going to try to defraud their way out of responsibility for abusing elders."

Garcia continues, "I’ve known since Day One that the Cablayans, as shareholders of Coordinated Care, would refuse to pay any verdict. They seemed to believe that this would cause us to dismiss the case and allow them to go on their merry way. They were wrong. The jury very clearly confirmed the abuse of our client Mrs. Angelo. And, quite candidly, we will not rest until justice is obtained for Mrs. Angelo and abusive corporations, such as San Marino Manor, with indifferent shareholders, such as the Cablayans, are put out of business."

Reyes C. Angelo vs. Coordinated Care Center, Inc. dba San Marino Manor and DOES 1 through 250, inclusive (Case No. 6C038713) was heard in Superior Court of the State of California, Northeast Division.

Angelo’s death on March 16, 2006, was referred by an investigator to the Los Angeles County Coroner’s office as a suspicious death. The coroner found her death to be caused by infection of accumulated pressure sores.  Laboratory results indicating malnutrition and dehydration were also never revealed to the family.
After admission, Angelo had developed more than 10 pressure sores on her toes, hips, lower buttocks, inner thighs, inner buttocks, and coccyx, with more than half of them Stage IV pressure sores. Many of the sores became black and necrotic, and later were found to be infected with MRSA.  The pressure sores were in places easily hidden from the family by bandages and clothing. It was not until Jan. 20, 2006, when Angelo’s daughter found Angelo sitting in a wheelchair over a puddle of urine and in a urine-soaked diaper with fecal matter with her bandages saturated, that the family realized Angelo’s medical condition.

At the family’s insistence, Angelo was transferred on Jan. 21, 2006 to the hospital. A staff person rode with Angelo, bringing her medical records with her. Upon returning to San Marino Manor, Angelo’s medical records were rewritten and adapted to cover the lack of care Angelo had received.  For example, the records that went to the hospital demonstrated that Angelo did not receive numerous doses of diabetic insulin she was prescribed. In the nursing home’s copy of medical records, all of the doses were filled in.

The admitting doctor at the hospital noted Angelo’s condition, including extensive pressure sores, many of which were infected and black and necrotic, and that they indicated that she had been left to lie on her side for long periods of time. He also noted that Angelo was suffering from diarrhea, vomiting, and malnutrition.

Coordinated Care Company, Inc., the parent company of San Marino Manor, is headquartered in San Diego, Calif. It is owned by Erwin Cablayan, who also owns the Bradley Gardens in San Jacinto in Riverside; Senior Day Centre of Hemet Valley and Cherry Valley Healthcare Management Center in San Marcos; Bradley Court Convalescent Center in El Cajon; and Tri Care Center, Inc., headquartered in San Diego. In Colorado, Erwin Cablayan also owns Aspen Siesta, also known as Coordinated Health Center.

For more information, contact Stephen Garcia at www.lawgarcia.com or at (800) 281-8515.

 

See article from PR Newswire.

A West Virginia jury has awarded $91.5 million to the family of Dorothy Douglas who died as a result of nursing home neglect at a HCR ManorCare nursing home called  Heartland of Charleston.  Douglas died as a result of malnutrition and dehydration that was preventable. Just a couple of weeks after admission, she suffered kidney failure due to dehydration and malnutrition, caused by neglect and understaffing. 

Nursing home dehydration and malnutrition occur when facilities fail to provide sufficient food and fluid or monitor the intake of residents. Failure of staff to keep adequate records, assess a residents dietary needs or understand that nutritional needs of residents can lead to severe and life-threatening nursing home injuries.

Following trial, the jury deliberated just two hours before finding the facility and its corporate owners guilty of negligence, and awarded Douglas $11.5 million in compensatory damages and $80 million in punitive damages.

There are more than 500 HCR ManorCare Inc. (Manor Care) nursing homes owned by parent company The Carlyle Group in 32 states throughout the country. nursing home subsidiary,

Mike Fuller, a partner in McHugh Fuller, whose lawyers tried the case, said they won a $1.5 million verdict for compensatory damages in a similar HCR lawsuit last year targeting the same Charleston facility. The case settled for a confidential amount before the jury decided how much to award, if anything, in punitive damages.

 See articles at Bloomberg News and AboutLawsuits.com.