No longer can nursing home owners look at potential lawsuit settlements and jury verdicts as a cost of doing business. Juries are sending a message to nursing home owners by handing down large awards to elders who may be victims of poor care or neglect. This article also demonstrates the importance of nursing homes having adequate insurance coverage to satisfy a large verdict or settlement.
This article appearing in the Association of Trial Lawyer’s magazine addresses the new message being sent to nursing home owners. Below are excerpts from the article.
A growing number of civil lawsuits over elder abuse and neglect reflect both federal and state laws and growing public consciousness, and may be leading to long-overdue changes in the industry. Most such cases are brought against care-providing institutions, and six-figure awards are the norm, with multi-million dollar ones common. Plaintiffs’ lawyers say juries have great empathy and sympathy for abuse victims and now consider quality of life an important factor, often more so than life expectancy.
As a large proportion of the U.S. population grows older, awareness of elder abuse and neglect is coming of age, according to plaintiffs,attorneys handing these cases. Jurors deciding civil cases against abusers are increasingly willing to place a higher monetary value on loss of life or diminished quality of life–even when the plaintiff’s future may best be measured in months rather than years. While strangers and family members are often found to be abusers of elderly people, institutional abuse is more commonly the object of litigation. More than 1.5 million people live in nursing homes, according to the National Citizens, Coalition for Nursing Home Reform in Washington, D.C. The U.S. Census Bureau recorded a 24 percent increase in the nursing home population from 1980 to 1990.
“There’s a lot more litigation involving nursing homes today,” said Jules Olsman, a Royal Oak, Michigan, attorney and cochair of ATLA’s Nursing Home Litigation Group. “Juries no longer accept bad care as an inevitability of nursing home care.” While few comprehensive statistics exist on the size of jury awards, a survey of nursing home cases compiled by the litigation group shows that multimillion dollar verdicts are not uncommon, and six-figure awards are standard. “There’s an over-whelming empathy factor among jurors and an overwhelming sympathy factor,” Olsman said. A combination of state and federal laws aimed at deterring abuse and increasing public awareness has made it somewhat easier to develop civil cases against abusers, said Liz Capezuti, an assistant professor at the University of Pennsylvania School of Nursing and an expert witness in elder abuse and neglect cases.
“This is a really hot area of law,” Capezuti said. “It used to be if care wasn’t good, attorneys assumed the damage award wouldn’t be very much. Attorneys today have been successful in convincing judges and jurors that bad care results in injury and death.” Significant nursing home reform began a decade ago when Congress approved the Omnibus Reconciliation Act of 1987. That law set standards of care for nursing homes, creating a civil cause of action against facilities whose workers fail to treat residents properly or are negligent in securing their safety.
Common causes of action include debilitating injury or death from bedsores, over-medication, malnourishment and dehydration, and misuse of bed side rails and physical restraints by staff. Capezuti said that jurors today seem more often to be taking quality of life issues into account in their deliberations. “You don,t have to be an expert to know that no one should die like this,” she said. “They don,t deserve that kind of care.” An increasing number of state legislatures have enacted laws to prevent all types of elder abuse, from financial scams to negligent care by health workers and physical assault. Many states, such as California and Illinois, have laws that allow for attorney fee awards in addition to compensation for pain and suffering. While most statutes create civil remedies for abuse, Pennsylvania has passed a law–the Neglect of Care-Dependent Persons Act–that criminalizes the infliction of injuries on people who cannot take care of themselves.
The specific statutes vary- from state to state, but the primary message is clear: Nursing home residents have a right to be free of abuse and neglect. “There aren’t many businesses that have to be told to be nice to their customers,” Olsman said. “All of these regulations have helped enormously.”Capezuti agreed that state and federal oversight has improved conditions at nursing homes in recent years. She added, however, that “nursing homes have been very savvy at covering up abuse and making documentation look good.” Steven Levin, a Chicago plaintiffs, attorney whose practice concentrates on elder law cases, said nursing home litigation “is where medical malpractice and products liability were 25 years ago. Personal injury litigation is a very good way to create positive change.”
For laws related to Pennsylvania nursing homes, look here.