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Lawsuits, Lies & Lobbyists

$8 Million Campaign to Limit Patients’ Rights

At a time when an estimated 2/3 of California’s nursing homes are out of compliance with state and federal laws; when the average staff turnover rate in California facilities is over 80% per year; and the number of reported elder abuse cases in nursing homes has quadrupled, California’s nursing home industry is proposing that nursing home providers pay a voluntary assessment of $60 per bed per year to help finance an $8 million campaign to suppress evidence of abuse and neglect and to limit the ability of California consumers to sue nursing homes.

The California Association of Health Facilities (CAHF), which represents the for-profit nursing home chains in California, met in Palm Springs on November 12, 2002 and voted unanimously for the proposed plan. Under the guise of “tort reform,” the CAHF plan includes limiting damages under California’s Elder Abuse laws and limiting the use of quality assurance data and surveyor compliance data in elder abuse civil cases.

Currently, such compliance information can be used to show a “pattern and practice” on the part of a nursing home licensee that is being sued for elder abuse. Without such information being admitted into evidence, even the worst facility can allege that the abuse is an isolated incident.

The for-profit industry, which has recently spent millions of dollars to convince state and federal legislators of their dire need for increased Medicare and Medicaid dollars, proposes a two-year, $8 million dollar campaign, which, they claim “…will be the largest and most expensive single effort CAHF has ever launched.”

Blaming the Victims of Abuse

Like homeowners and businesses across the country, nursing home providers have been hit with sharp increases in liability insurance premiums. The problem has been particularly acute for those facilities that provide substandard care that results in the injury or death of residents.

Insurance carriers are being more selective and looking at claims history, enforcement records and patterns and practice from a risk management perspective.

Numerous studies and Congressional hearings have indicated that the true cause of increased liability premiums is directly related to the insurance industry’s need to make up for years of poor investments. However, the nursing home industry hopes to capitalize on the liability insurance crisis by blaming “frivolous lawsuits” and “greedy lawyers” and by trying to convince legislators that limiting lawsuits by abused elders will solve the problem of high liability premiums.

Medical providers and legislators acted similarly during the insurance crisis of the mid-70s. In an effort to reduce high insurance premiums for medical providers, particularly doctors, California’s legislators passed the Medical Injury Compensation Reform Act (MICRA), which allows patients who have been injured by medical malpractice to recover no more than $250,000 in non-economic compensation, regardless of how serious the injury or how egregious the malpractice.

Recent data released by the Foundation for Taxpayer and Consumer Rights and the Center for Justice and Democracy, however, indicate that the average malpractice premium in California has grown more quickly than it has in the nation overall. In other words, MICRA did much to limit patients’ rights, but little to reduce liability premiums. Nevertheless, the nursing home industry would like extend the MICRA limits to elder abuse cases and limit the amount of damages that can be awarded under California’s Elder Abuse statutes.

Elder abuse is not medical malpractice. The purpose of the MICRA statutes was to protect doctors from excessive malpractice claims. The purpose of the Elder Abuse Act was to protect elders and disabled from abuse!

California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) was amended in 1991 in response to the widespread abuse and neglect in California nursing homes and the lack of remedies for those elderly and disabled residents who died or were injured from abuse or neglect.

A specific intent of the legislation was to provide for a private, civil cause of action for those individuals who were abused. Although the burden of proof for elder abuse is higher than in traditional medical negligence cases, the law also included new remedies for elder abuse actions, including permitting recovery for punitive damages even when the victim dies before final judgment.

Nursing home abuse continues to be a major concern in California and in the country. As recently as July 2001, Representative Henry Waxman (D-Los Angeles) released a special report that found nearly 10% of the country’s nursing homes were cited for abuse violations that caused actual harm to residents or worse. Another 1998 study by the U.S. General Accounting Office found that 1 out of 3 California nursing homes had been cited for serious or potentially life-threatening deficiencies.

The Elder Abuse laws have worked well to provide elders and disabled nursing home residents with legal remedies not previously available and to carry out the intent of the law, i.e., “ enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”

What Needs to Be Done

Even long-time industry analysts are aware that the insurance industry’s poor business decisions of the 90s are responsible for the rise in liability insurance premiums. Curbing the rights of abuse victims and suppressing evidence of abuse and neglect won’t solve the problem of a manipulated insurance market.

  • Risk Reduction Programs: instead of spending millions of dollars to lobby legislators, the nursing home industry should spend those dollars to establish risk reduction programs, particularly to reduce falls and bedsores, which account for the majority of claims.
  • Stop Abusive Providers: instead of excusing abuse and neglect and blaming the victims, it’s time California’s nursing home industry put pressure on substandard providers to clean up their acts or leave the business. It only takes a handful of high-risk, frequently sued facilities or chains to increase premiums for all.
  • California’s legislators should prohibit non-disclosure agreements.
    The public, the insurance industry and the providers should all be aware of what types of claims are being made against what facilities and how much is being paid. Only then will we have a realistic picture of the true price of elder abuse in nursing homes.

For more information on the nursing home industry’s campaign to limit the elder abuse laws, contact the CANHR office.