On June 28, 2017, the United States House of Representatives passed H.R. 1215 titled, Protecting Access to Care Act of 2017. Among other provisions in this bill is a limit on non-economic damages that can be recovered from a nursing home that accepts Medicare or Medicaid funds. This encompasses essentially all nursing homes. The bill will become law if passed by the Senate by a simple majority. With the republican majority in the Senate and, with tort reform being a battle-cry campaign platform for the Republican party, the chances of this bill passing are a real concern.
What are the effects of this bill?
Non-economic damages compensate a person for the emotional harm he or she has suffered. Non-economic damages do not include medical bills, funeral costs or lost wages that might result from injuries caused by neglect. Economic losses are not subject to any cap or limitation and, under this bill, would remain uncapped. With nursing home residents, this provides little assistance as there is almost never a lost wage claim given the age and infirmity of the residents. Further, the medical bills resulting from injuries caused by neglect are typically paid by Medicare or Medicaid, and any sums recovered for medical bills must be turned over to the government. As such, practically speaking, non-economic damages (i.e., pain and suffering) provide the only recovery that can compensate an injured victim of nursing home abuse or neglect.
Currently, the pain and suffering damages are uncapped. If a jury is horrified by neglect or abuse, it can render a verdict that provides incentive for the nursing home to provide quality care for its residents. Without this “check and balance” in place, the nursing homes’ financial incentive will be to minimize their costs. As the single largest expense of operating a nursing home is staffing, an incentive to lower costs translates into fewer nurses and nurse assistants available to provide care.
The Practical Effects of a $250,000.00 Cap
At first blush, $250,000.00 may sound like a lot of money. However, it is necessary to keep in mind that this is the worst case scenario for a negligent nursing home operator. Why would the operator voluntarily agree to pay its worst day? Rather, in all but the most egregious cases, the operator will offer only a fraction of that amount. One reason for this is that they know going to trial is nearly impossible for the plaintiff’s attorney with such a cap in place.
Even if we were to achieve a verdict of $250,000.00 at trial, the years of work and tremendous amount of time we spend on these case make such a recovery unprofitable. Add to that the uncertainty of winning when we decide to take a case and it quickly becomes obvious that agreeing to handle a nursing home neglect case is a poor business decision.
Some specifics may flesh this out. Abuse or neglect in nursing homes almost always start at the top with a corporate culture of saving money at the expense of resident care. This is typically done by under-staffing the nursing home leaving nurses and nurse assistants with more work than can be done during their shifts. In order to prove that under-staffing is the root cause of neglect, we must perform a very thorough investigation. The time records of every nurse and cna must be evaluation and matched with the shifts in question. In addition, the census and overall acuity of the health needs of the nursing home residents must be considered. Multiple expert witnesses are needed to perform this analysis, each with a hefty price. Further, nursing home operators fight tooth and nail to try to keep the time records and budget information from being provided to us, creating delay and additional expense.
As an example, in a recent case, our law firm spent approximately $150,000.00 on experts and litigation expenses – this figure includes nothing the reflect the value of the time we spent on the case. We worked on the case for four years. The result of our work was nothing short of alarming – the nursing home understaffed the facility by: having employees listed as working when they were not; counting nurse managers as providing hands on care when they did not do so; and having a system in place designed to staff the facility at the bare minimums regardless of the overall complexity of the health needs of the facility’s residents. Only upon the discovery of this damming information was the case was settled for a fair amount. With the cap in place, we could not have done the investigation and we never would have uncovered the nefarious reason why the nursing staff failed to provide sufficient care. Simply put, with the cap in place, we cannot prosecute these claims.
Nursing home neglect is a serious problem. Capping damages decreases the incentive to provide quality care as plaintiff’s lawyers will no longer investigate these incidents. With the aging of our country, this is the last thing Americans should support. Continue reading