Insurance Rates Won't Be Reduced By Limiting Rights and Harming Patients

Insurance Rates Won't Be Reduced By Limiting Rights and Harming Patients; Oppose House Bill 5 (formerly numbered House Bill 534)

While some doctors may be facing large price hikes for medical malpractice insurance, so-called "tort reform" is not the answer. Nothing in the so-called Health Act of 2005 (H.R. 5) would decrease premium costs or increase the availability of medical malpractice insurance.

California, which limited non-economic damages in medical malpractice cases to $250,000 as long ago as 1976, did not see a reduction in premium rates until after the enactment of Proposition 103, a ballot initiative that rolled back rates and provided antitrust enforcement of price-fixing and other anti-competitive insurance practices. In fact, states with caps on damages have average insurance premiums that are 9.8% higher than insurance premiums in states without caps on damages.

Even the American Insurance Association (AIA), a major insurance industry trade group, says lawmakers who enact "tort reform" should not expect insurance rates to drop. Severe limitations on medical malpractice remedies only hurt those patients with debilitating injuries while doing nothing to lower insurance rates.

H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2005, would severely limit the ability of patients and other health care consumers to hold health care and medical products providers accountable. Members of Congress should not cosponsor this legislation and should oppose these provisions on the House floor.

Not just medical malpractice, but also product liability, nursing home, and insurance claim reform. The bill applies to medical malpractice, medical products, nursing homes and health insurance claims. If the proponents were truly concerned about an insurance crisis facing doctors, why does this bill cover product liability claims against pharmaceutical and medical device manufacturers, and civil actions against nursing homes, HMOs, and insurers?


Reduced statute of limitations. The legislation reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the "manifestation" of injury. This statute of limitations, which is much more restrictive than a majority of state laws, would cut off meritorious claims involving diseases with long incubation periods. Thus, a person who contracted HIV through a negligent transfusion but learned of the disease more than five years after the transfusion would be barred from filing a claim.


An arbitrary and discriminatory $250,000 cap on non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought. This cap is more restrictive than any state cap. Non-economic damages compensate patients for very real injuries-such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are very real damages, and juries are able to calculate them fairly. Caps on non-economic damages disproportionately affect women, children, the elderly, the disabled, and others who may not have substantial economic loss (i.e., lost wages or salary).


Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, thereby upending the law in many states. Under joint liability, injured patients are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff. Our civil justice system has determined that it is the injured patient-not multiple negligent medical providers-who deserves the greatest measure of protection.


Severe restrictions on contingent fees. The bill gives the court power to restrict plaintiff's attorney fees regardless of whether recovery is by judgment, settlement, or any form of alternative dispute resolution. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed:


40% of the first $50,000 recovered;
33 1/3 % of the next $50,000 recovered;
25% of the next $500,000 recovered; and
15% of any recovery in excess of $600,000.
It is unfair to restrict plaintiff's attorney fees when defendants have no such restrictions. Under the contingent fee system, lawyers are paid only if they are successful, giving plaintiffs' attorneys have a built-in incentive to accept the most meritorious cases.

Allows evidence of collateral source benefits. H.R. 5 gives defendants in medical malpractice and medical product liability cases an absolute right to introduce evidence of "collateral source" benefits. While the plaintiff can then introduce evidence of amounts paid to secure that benefit, this rule allows the wrongdoer to profit from the plaintiff's prudent investment in insurance. If doctors want evidence of the injured patient's collateral sources admitted at trial, then the extent of the doctor's own liability insurance should also be admissible.


Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened standard of "clear and convincing" evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don't recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater.


Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court's discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail.


Immunity from punitive damages in product liability cases. The bill completely immunizes manufacturers of drugs and devices that are approved by the FDA from punitive damages. The bill also extends immunity to the manufacturers of drugs and devices that are not FDA-approved yet are "generally recognized as safe and effective." Finally, the bill immunizes the manufacturer or seller of drugs from punitive damages for packaging or labeling defects. These broad-based immunities completely undermine patient safety by eliminating the deterrent effect of punitive damages and have no relation to issues regarding medical malpractice.


Medical products and medical provider suits must be brought separately. H.R. 5 requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers. Further, health care providers may not be held liable to an injured patient in a class action against pharmaceutical or medical device manufacturers. Of course, these requirements do not mean that the provider was not negligent. Instead of having all parties present and allowing the jury to evaluate the evidence, this provision will allow the defendant to blame another defendant who is not a party to the case. The result will be finger pointing by wrongdoers while injured patients remain uncompensated.


Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and under-compensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff's jury award.


Preemption of State Law. The bill includes a sweeping preemption of state law. This preemption is designed to override state laws that protect consumers and patients while keeping in place state laws that favor doctors, hospitals, nursing homes, HMOs, pharmaceutical and medical device manufacturers, and other health care defendants.

Specifically, the bill preempts all areas of state law covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorneys' fees, and periodic payments. The bill does not preempt any state defenses designed to protect health care providers. The bill would leave in place existing state damage caps on economic, non-economic, or punitive damages, but would impose the caps in the bill on states that do not have limitations on damages, including states whose limitations were struck down as unconstitutional by state supreme courts.

Only 23 Indiana Nursing Homes Found Deficiency Free

INDIANAPOLIS--Twenty-three Indiana comprehensive care nursing homes boasted zero deficiencies in their annual surveys conducted from October through December 2004, state health officials announced today.
A total of 117 nursing homes in Indiana had their annual surveys during this period.
'As part of our continuing effort to inform the public about nursing home care in Indiana, we want to let people know when facilities have an outstanding annual survey,' said Terry Whitson, assistant commissioner for Health Care Regulatory Services at the Indiana State Department of Health.
'Our inspection process is rigorous, so we want to congratulate the managers and staffs of the 23 facilities that had zero deficiencies,' Whitson said.
For each annual survey of a long-term care facility, a team of three or four professional surveyors performs detailed inspections that last from four days to two weeks. The team members are registered nurses or social workers.
The annual surveys cover these areas:
� residents' rights, including admission, transfer, and discharge;
� residents' behavior and facility practices (how the facility protects
its residents);
� quality of life;
� resident assessment (how the facility determines the appropriate
care for each resident);
� quality of care;
� nursing services;
� physician services;
� dental services;
� infection control;
� physical environment; and
� administration.
The 23 nursing homes that had deficiency-free annual surveys in the fourth quarter of 2004 (listed by county of location"

Beverly Nursing Home Chain Sanctioned by Judge

The Arkansas Democrat Gazette reported that:
"A Saline County judge ordered Beverly Enterprises Inc. to post a $20 million bond after the company intentionally delayed releasing documents to plaintiffs in a nursing-home care case, according to the ruling filed Friday. "

For the entire story click here.

Milwaukee's Havenwood Nursing Home To Be Shut Down

According to the Wisconsin Department of Health & Family Services, Milwaukee's Havenwood Nursing and Rehabilitation Center will be closed down by this fall. The state agency took control of the facility in May after state and federal regulators found "dire conditions" at the facility. According to the DHFS, the state and federal authorities began their criminal investigation after allegations of widespread neglect and abuse, Medicaid fraud and complaints of employee's checks bounding. The investigation is ongoing.

For more information, see: http://milwaukee.bizjournals.com/milwaukee/
stories/2005/07/04/daily33.html

Florida Nursing Home Under Investigation for Possible Neglect

According to a story from Florida's wftv.com, The Gables at Lake Mary is under investigation and facing possible charges of neglect arising from the death of an 89 year old woman. According to the report, the case is so disturbing, workers could even be charged with manslaughter in the future. Find the story here.

Michigan Attorney General Charges Certified Nurse's Aide With Physical Abuse of Nursing Home Resident

Below is a press release from the Michigan Attorney General.

LANSING, Mich., June 21 -- Attorney General Mike Cox announced today the
arrest of a Certified Nurse's Aide, or CNA, for physical abuse against an
85-year-old wheelchair-bound Muskegon nursing home resident. "Michigan's most vulnerable citizens deserve the highest standard of care and anyone who violates that standard will be prosecuted," said Cox. "This case highlights the need for
the Legislature to pass the criminal background check bills being introduced
today to prevent this kind of risk to nursing home residents in the future."
Laticia Schevette Brown, 30, of Muskegon, was arrested by Attorney General
investigators on Tuesday. She was arraigned before Judge Wierengo in Muskegon's
60 Judicial District Court on one count of Patient Abuse, which carries a maximum penalty of one year in jail and $10,000 in fines. Brown, who was
released on a $1,000 personal bond, will be back in court July 26 at 8:30 a.m.
for a preliminary examination.

The charges arise from Brown repeatedly striking an elderly patient in
the head between June and September 2004 while employed as a CNA at Roosevelt
Park Nursing and Rehabilitation Community in Muskegon. Witnesses reported the
incidents to the facility administration, which contacted Cox's Health Care
Fraud Division, and terminated Brown's employment. The Health Care Fraud
Division, which conducted the investigation into Brown, recently unveiled two
studies showing that approximately 10% of employees working in Michigan's
nursing homes and residential care facilities have criminal histories.

As a result of the studies, Sen. Patricia Birkholz (R - Saugatuck Twp.), Sen. Tony Stamas (R - Midland), and Sen. Jud Gilbert (R - Algonac) introduced legislation that expands the scope of the Adult Foster Care Facility Licensing Act and the Public Health Code by requiring Michigan's almost 5,000 residential care facilities to conduct criminal background checks of all employees and to conduct the checks annually. The legislation also enhances the criminal sanctions for failing to comply with the requirements of the criminal background check statutes.

The Attorney General's Health Care Fraud Division is one of 49 federally certified
Medicaid Fraud Control Units. Medicaid fraud investigations and prosecutions
include false billings, unlawful delivery of controlled substances, practicing medicine
without a license, kickbacks, and bribery schemes. Abuse and neglect investigations and prosecutions include physical assault, criminal sexual conduct, identity theft, theft of residents' property and funds, and harmful neglect in Michigan residential care facilities. The division also initiates civil actions, including asset forfeiture and claims for Medicaid overpayments.

In conducting its activities, the division works closely with other agencies such as the Federal Bureau of Investigation, Drug Enforcement Administration, Department of Justice, Michigan State Police, state regulatory agencies, local law enforcement
agencies, and private health insurance companies.

To report Medicaid provider fraud or identity theft/patient abuse in a resident care facility, call the Attorney General's 24-hour Hotline at 800 24-ABUSE (800-242-2873); e-mail hcf@michigan.gov ; or visit the Attorney General's Web site at http://www.michigan.gov/ag .

Source: Michigan Attorney General

Nursing Home Abuse Complaint by Family Results in Felony Charges Against Administrator

According to a report by NBC 10 News, a former administrator of Hillside Health Center in Providence, Rhode Island was charged with 11 counts of felony patient neglect in connection with problems at the now-closed nursing home. According to the report, the administrator was charged with intentionally failing to provide appropriate care and services to 11 patients. The state alleges that the 11 victims' health and safety suffered because of a lack of basic humane care and treatment at the facility while the administrator was in charge. According to the report, the state's Medicaid Fraud and Patient Abuse Unit started investigating Hillside in September 2003 following a complaint from the spouse of one of the patients named in Thursday's charges. The report can be found at : http://www.turnto10.com/news/4618572/detail.html

While in this case the family complaint resulted in an investigation and ultimately charges being filed, I am confident this is the exception rather than the rule. Unfortunately, too often families are unfamiliar with the complaint reporting systems available in each state. For each complaint that is reported each year, it is anyone's guess as to how many other incidents of neglect or abuse go unreported each year. In my own practice representing families of neglected or abused nursing home patients, I find that very few of them are aware of the complaint system in place. Unfortunately, the nursing homes benefit from this gross under-reporting and the resulting under-investigation of nursing home abuse and neglect.

If you have questions about how to make a complaint, you can call the facility's ombudsman for more information. You can also call the attorney general's office or the department of health in your state (it may go by different names) and request the long-term care complaint hotline telephone number. Typically, you can make your complaint by telephone or in writing.

If you have more questions about this process, you can call my office at 888.922.2889.

Recognizing and Reporting Nursing Home Abuse and Neglect

Nursing home abuse and/or neglect can involve not only the physical well-being of the resident, but also the mental, and/or psychological well-being of the resident as well. Nursing home abuse and/or neglect can take many forms, all of which are too numerous to list. The following, however, represent common examples of nursing home abuse and/or neglect:

• failure to provide proper nutrition and hydration
• failure to assist in personal hygiene when needed
• over-medication or under-medication
• failure to take reasonable precautions to prevent falls
• failure to answer call lights in a timely fashion
• failure to turn residents in their beds (leading
  to pressure sores)
• failure to take residents to the toilet (leaving them in
  soiled garments or beds)
• slapping or other physical abuse of the resident
• use of unwarranted chemical or physical restraints
• emotional or verbal abuse of the resident
• retaliation for making a complaint or filing a grievance
• failure to take adequate precautions to prevent injury to the resident
• failure to provide for appropriate medical care
• sexual assault or rape of the resident
• theft of the resident's money or other personal
  property
  

If you have any suspicion that a loved one may have been the victim of nursing home abuse or neglect, and the loved one is still a patient at the facility, you should report the matter to the patient's physician, the director of nursing and the facility administrator. To document your complaint, you can fax it to your physician and the facility. (remember to keep a copy of the complaint and the fax confirmation page.) In addition, you may report the matter to the facility ombudsman, and call the state complaint hotlines which are administrated by the regulatory agency which oversees each state's nursing homes. For more information, or to find out contact information for ombudsmen and state officials in all 50 states, check out the "State Resources" section at www.nursinghomepatientrights.com.