Much Ado About Nothing:
The Myth of Frequent and Frivolous Law Suits
If you say something often enough, people might start to believe it. That philosophy seems to be at the heart of the nursing home industry’s multi-million dollar campaign to roll back consumer rights in California’s landmark Elder and Dependent Adult Civil Protection Act (EADACPA). Nursing home lobbyists are spinning this myth: that thousands of frivolous elder abuse lawsuits are responsible for the sharp increase in liability insurance premiums.
How do we know the industry’s claim is wrong? Well, CANHR counted and studied the actual lawsuits filed. These findings are published in a just released report, Much Ado About Nothing: Debunking the Myth of Frequent and Frivolous Elder Abuse Lawsuits Against California’s Nursing Homes, available on the CANHR web site: www.canhr.org. The first-of-its-kind study examined the actual lawsuits filed during the three-year period of 2000-2002 in 16 California counties housing 577 freestanding skilled nursing facilities with 50% of the licensed beds in California.
The numbers tell the truth. Rather than thousands of lawsuits, court records show that an average of 167 cases were filed each year against nursing homes serving over 100,000 residents annually. In many counties, the number of cases being filed is declining. Less than half of the skilled nursing facilities studied were sued for elder abuse even once during the three-year study period. The truth is that thousands of California nursing home residents suffer elder abuse and neglect, but very few legal actions are filed to defend victims of these crimes.
While the industry’s claims are much ado about nothing, the basis for the lawsuits is another matter. The cases filed are hardly frivolous. Half of the lawsuits involve wrongful deaths and the remaining cases address serious injuries caused by neglect or abuse. Many of the cases were filed on behalf of residents who suffered from severe, untreated bedsores that became infected, leading to amputation or death.
A disproportionate number of elder abuse lawsuits are filed against a small group of facilities. In fact, 23 percent of the facilities studied are responsible for 71 percent of the lawsuits; just 10 percent of the facilities account for almost half the lawsuits. Most of the lawsuits are filed against nursing homes that have a pattern and practice of abusing and neglecting residents, not against facilities that make innocent mistakes.
The study found a very strong association between a skilled nursing facility’s history of neglect and the likelihood of being sued. Compared to facilities that were not sued, nursing homes sued for elder abuse had much higher levels of deficiencies, citations and complaints. For example, nursing homes with at least three lawsuits averaged about twice as many deficiencies and three times as many complaints than facilities with no lawsuits.
There is no question that liability insurance premiums for California’s nursing home industry have increased substantially over the past few years. However, as the study indicates, these increases are more likely the result of insurance industry pricing and accounting practices and declining investment returns than a "flood" of lawsuits by abused elders.
In a better world, CANHR’s findings would derail efforts to gut the EADACPA. But facts don’t figure to dissuade an industry that sees no shame in blaming elder abuse victims and stripping them of their rights. So it is critical to share the study’s findings with California legislators who represent you. Urge them to defend the EADACPA and to support CANHR’s recommendations, including support for AB 1448 (Liu), now on the Assembly Floor. This bill would prohibit pre-dispute arbitration clauses in nursing home admission agreements. Send a letter of support for this important bill to your Assembly member today. (For more information on AB 1448 (Liu), contact the CANHR office.)