Cyrus Dugger

Your Grandmother And Tort “Reform” (Vol 2)

Here's an excerpt of an article about tort "reform" and nursing homes that is well worth reading before leaving a loved one in the care of a nursing home.

Michael Rustad, Suffolk University Law School, Professor of Law


The 1.6 million elderly, disabled, and vulnerable residents of America's nursing homes, and another one million living in residential care facilities, are in danger of being victimized by abuse or neglect. The Government Accounting
Office (GAO) documented that one in three nursing homes, or 5,283 of approximately 17,000 long-term care facilities, had been cited for one or more serious abuse violations in a two-year study of state inspection and complaint investigation records. A total of 1,345 nursing homes were cited for violations of minimum quality standards that actually harmed residents from 1999 to 2001. The state inspection reports and citations reviewed by the GAO describe nightmarish conditions of abuse and neglect. A total of 1,009 nursing homes were cited by state inspectors for failing to protect residents from sexual, physical, or verbal abuse, or corporal punishment. The GAO study uncovered shameful conditions in our nation's nursing homes, and even evidence that elderly residents were molested or raped by nurse's aides, [*338] verbally abused by the staff, and endangered by systemic abuse, mistreatment, and neglect.

Nursing homes are the "ugly stepsisters" of our healthcare system, a shadowy industry ill equipped to offer high quality care for the older American. n10 The worst facilities are short-staffed, non-unionized, and they short-change elderly residential care to fatten corporate profits. These facilities are "total institutions" because they are places of residence where elderly or disabled individuals are cut off from the wider society twenty-four hours a day, seven days a week. In the worst of these facilities, the victims of abuse, mistreatment, and neglect do not receive even a minimal standard of care.

Nursing home negligence and abuse lawsuits have increased in recent years to champion the cause of elderly
Americans who deserve redress for the consequences of abuse or neglect. The elderly claimants in these cases look like your typical nursing home residents, often "elderly Medicaid recipients, often with dementia or Alzheimer's disease. Claims often involved serious injuries.More than halfinvolved deaths, while allegations of pressure sores, dehydration/malnutrition, and emotional distress featured prominently." Even though there is widespread neglect and abuse in our nation's nursing homes, there are relatively few nursing home negligence or abuse verdicts.

Part I of this Article analyzes a hypothetical as a device to examine the reasons why there are so few nursing home abuse, neglect, or mistreatment cases nationwide, despite the fact that substandard care is routine. Part II explains the functions of uncapped noneconomic damages, including making it possible for law firms to represent the victims of shameful nursing homes, augmenting often ineffective public regulation of facilities with private attorneys general, and revealing shocking conditions otherwise hidden from the public. Given the cost of experts, investment of time, medical complexity, and expense of discovery involved in nursing home liability lawsuits, it is critically important to permit the recovery of uncapped noneconomic damages. Nursing home negligence cases not only compensate the elderly resident or his or her estate, but serve to correct horrible conditions in which there is excessive and preventable suffering.

Part III argues that a tsunami of nursing home abuse, neglect, and mistreatment is imminent in the near future. One factor is the startling demographic wave of Baby Boomers reaching the age of sixty-five. Another factor is the
corporatization of nursing homes, which often leads homes to understaff their facilities, thus trading the well-being of patients for profits. A third factor is the abysmal record of the states in enforcing nursing home quality standards.

In light of these factors, we need nursing home lawsuits, more now than ever, to discipline this profit-oriented industry.

The tort reformers have a very different message. They view nursing home cases as "frivolous lawsuits" filed by
greedy claimants and their even greedier lawyers. Tort reformers regale the public with horror stories about nursing homes going bankrupt or having to forgo insurance coverage as a result of frivolous lawsuits. They want to cut off the ability of injured residents to obtain legal representation by reducing the incentives for lawyers to represent elderly victims of neglect. Tort reformers know that it is expensive for the nursing home industry to react to lawsuits by improving conditions; unfortunately, they are more concerned about saving corporate profits than about preventing an epidemic of pain and suffering. Any concept of morality or family values should include robust legal remedies to redress the consequences of disgusting nursing home conditions. Capping noneconomic damages will mean that fewer worthy lawsuits will be filed because the potential payout will not justify the cost and risk of bringing these claims. Thus, it would be callously indifferent public policy to institute noneconomic damages caps, which will, in effect, lock the courtroom door to the victims of nursing home neglect and abuse.

The Granny Smith hypothetical below represents this larger universe of non- frivolous nursing home cases. These
are our mothers and grandmothers who are targeted by corporate-friendly tort reformers who want to sacrifice quality, compassionate care for the sake of investors. If this tort reform movement succeeds, more and more elderly Americans will die of neglect and abuse, as their cries will not be heard. Moreover, the Baby Boom generation will be doomed to live the last years of their lives in even more horrendous conditions than did their parents or grandparents. The hypothetical introduces the conundrum of factors that go into representing a plaintiff in a nursing home abuse or neglect case. The costs of pursuing litigation against a corporate nursing home must be balanced with the low economic worth of an elderly plaintiff who has no past, present, or future earnings. Nursing home cases must be decided in a legal environment in which the only meaningful recovery is noneconomic damages, since elderly residents have no significant compensatory damages. Given this environment, it is critically important to permit uncapped non-economic damages so that trial lawyers will take more cases like the hypothetical case described in the next section

(link to full article)

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Posted at 2:53 AM, Nov 09, 2006 in Corporate Abuse | General Debunking Resources | The Profits Over Safety Business Model
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