Your Grandmother And Tort “Reform” (Vol. 3)

Cyrus Dugger

Your Grandmother And Tort “Reform” (Vol. 3)

"[T]exans may not become fully aware of what they’ve lost through the state’s tort reform until they need a lawyer. That’s what happened to Jacque Smith last year. In November 2003, Smith’s 85-year-old mother, an Alzheimer’s
patient, was living at the Heritage Duvall Gardens nursing home in Austin. Late one night, a staffer entered Smith’s mother’s room and allegedly raped the elderly woman. Another employee witnessed the assault, but apparently
didn’t bother to report it to anyone and went home after his shift finished. Smith only learned
about the assault because the witness mentioned it to someone at the home during an unrelated
conversation later the next day. After her mother was examined at a hospital, the assailant was
arrested and charged with aggravated sexual assault.

Smith then consulted a lawyer about filing suit against the nursing home for poorly
supervising its employees. In the past, such a suit might have garnered a multi-million dollar
settlement or jury verdict for the victim. Texas has some of the worst nursing homes in the
country. A 2002 study by the special investigations division of the U.S. House
Committee on Government Reform found 40 percent of Texas nursing homes committed
violations of federal regulations that caused harm to nursing home residents or placed them at risk
of death or serious injury. More than ninety percent did not meet federal staffing standards.
Texans may not become fully aware of what they’ve lost
through tort reform until they need a lawyer.

The poor conditions of Texas nursing homes led to a cottage industry in the legal profession,
whose lawsuits posed much larger threats than any state sanctions.

A Harvard University study found that nearly nine out of 10 nursing home plaintiffs
received compensation, a success rate that the study deemed “off the scale” in personal injury
litigation, and a sign that the negligence as well as the severity of injuries in the cases was clear-
cut. Rather than pledge to clean up its act, the nursing home industry lobbied hard for the
passage of legislation that would put the lawyers out of business. The state passed the nursing
homes’ favored medical malpractice bill in September 2003, capping pain and suffering
awards at $250,000.

The new law has produced the results desired by its backers. When Smith looked for an attorney, she discovered her first hurdle might be simply finding one willing to take the case. The first attorney she called declined, as few lawyers in Texas will now handle such a complaint. Then she contacted Bragg, who explained to her that the most her mother could win would be $250,000, because there were no economic damages involved. Smith’s mother, after all, didn’t have a job to lose and she didn’t incur significant medical bills. After taxes and legal fees, she would receive at most $100,000. That would make her ineligible for Medicaid, meaning the money would end up being funneled back into the nursing home industry that failed her in the first place.

As a result, Smith says she’s unsure whether she will pursue legal action because she worries that any money that might result from it would not be used to improve the quality of her mother’s life. But she is frustrated by the prospect of simply dropping the case. “It feels like somebody should be held accountable,” she says.

According to a study by the Dallas Morning News, since the bill’s passage medical malpractice lawsuits in Texas have fallen off by 80 percent.

Ironically, in giving advice to citizens on how to choose a nursing home, the Texas Attorney
General’s office suggests using the number of lawsuits against a home as a good gauge of quality. Its web site counsels, “A nursing home that gets sued frequently should not be your first choice.” How the public will make these choices in the future? The web site doesn’t say - “Tort Reform,” Lone Star Style — Southern Exposure Special Investigation — October 2004 (link)

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But she is frustrated by the prospect of simply dropping the case. “It feels like somebody should be held accountable,” she says.

Uh: After her mother was examined at a hospital, the assailant was arrested and charged with aggravated sexual assault.

Sounds like somebody was held accountable. She just didn't get to get rich as an added bonus just because she was 'lucky' enough to be raped by someone who worked for someone with deep pockets, instead of by a stranger on the street.

Hi David.

You bring up an interesting point.

Above you say....

"Sounds like somebody was held accountable. She just didn't get to get rich as an added bonus just because she was 'lucky' enough to be raped by someone who worked for someone with deep pockets, instead of by a stranger on the street."

I think a problem that your view misses is the "next time problem."

There was likely a problem with the procedure used in screening this eventual rapist.

How does criminally prosecuting this particular rapist help prevent future raps of vulnerable elderly persons in nursing homes?

As stated above

"A 2002 study by the special investigations division of the U.S. House
Committee on Government Reform found 40 percent of Texas nursing homes committed
violations of federal regulations that caused harm to nursing home residents or placed them at risk
of death or serious injury. More than ninety percent did not meet federal staffing standards."

At least a lot of the above stated problem is clearly related to procedures and safeguards.

If you don't hold those in the best position to make these hiring decisions correctly, just prosecuting the one individual when there's clearly a problem with the process of hiring staff this problem will happen again.

Allowing this to happen again because the hiring procedure is not modified does not not seem to be the correct result.

(In addition to the above point is the important goal of making the victim herself whole. Seeing her rapist put in jail surely made this women happier, but it does not address the goal of making the victim herself whole again.)

"Lucky enough to be raped by someone who worked for someone with deep pockets instead of someone on the streets"?

Was this even a serious response...or did someone have a few too many johnny walkers before logging on?

Under a PL theory a parking lot owner could have been liable for her rape by a complete stranger under at least three different circumstances. Doesn't an assisted living facility have a higher standard of care? Isn't such a facility on full notice of the protection needed to protect this vulnerable class from 1) previous offenders and 2)potential offenders through higher staffing ratios, intensive screening processes, close supervision etc, etc.,

Is there one valid reason why this woman and her family should be denied access to damages greater than $100,000.?

CD: I don't think in this case the goal of the damages is to make the victim whole again. There is no way to make a helpless, vulnerable, elderly woman or her family whole again after such an ordeal. the goal is to punish, to deter, to allow the "greedy plaintiff" lawyer pay his detriment to society by acting as a private attorney general and holding this LTC facility accountable for placing profits over safety and quality of life.

Hi John,

I very much agree that in reality this victim cannot be made whole. We can really only ever attempt to make victims whole. The point of that last part of my comment about making "whole" was to make clear the different functions of criminal justice system (i.e. putting a perpetrator in jail) and the civil justice system (making victims personally "whole" by compensating them)

Thank You Cyrus, however, I am aware of what it means to make a complainant whole. Economic damages are nearly impossible to collect in LTC personal injury cases b/c there is no loss of income or earning potential, hence my belief that the problem with this case is not based on "making the complainant whole."

(another problem is that many cases of LTC neglect are treated as med. mal., despite the fact that the injury is caused through negligent custodial, not medical, care. IN this case however I think that should not be an issue of significance.)

Making a complainant whole refers to economic injury...replacement of personal property, payment of lost wages, compensation for property or services where an equitable remedy is unavailable.

As is specifically noted in your essay above..."the most her mother could win would be $250,000, because there were no economic damages involved."
So, there is no way to "make the complainant whole."

My previous point, was a disagreement (without being disagreeable, I hope) with your statement that potential judgment fails to make the complainant or her family whole b/c there ARE NO economic damages we could reasonably expect to be of a substantial amount.

The problem here is that the NON ECONOMIC damages are so severely capped that a complainant is truly powerless to pursue the other societally beneficial outcomes of tort law...damage awards to punish and deter.

Hi John,

Looks like we pretty much agree.