Thursday, March 06, 2008

It never ends:
The nursing home industry, lending new meaning to the term audacious, is pushing legislation to limit its liability in Tennessee courts at a time when violations for neglect and abuse of residents are higher than ever before. It may seem outrageous to many, but inside Tennessee’s ethically challenged legislature, the measure’s chances of passage are better than even.

When I first blogged here in 2003, I advocated against limiting liability in medical malpractice cases. We've seen over the last five years that the only group that has benefited from that spate of legislation has been Big Insurance. Now, the "forces of darkness" are at it again, trying to screw the old and infirm by sliding this legislation through with lots of cash and legislative insider connections. They're even using the same threat: protect our profits or we may have to close nursing homes.

Anyone who wants to register their opinion with their legislator can locate him/her here.

UPDATE: Comment below: "I notice you haven't jumped into either the medical profession or the nursing home business but instead have chosen, ahem, to be a lawyer." It's funny, that comment. I keep saying, when I see some other type of work that is really lucrative, "I picked the wrong line of work again!" Seriously, though, regardless of whether I decided decades ago to be a lawyer, a doctor, or a nursing home proprietor [and who tells mommy and daddy when they're groing up, "I want to be a nursing home operator when I grow up!"], that does not excuse a doctor when he screws up, or a nursing home when it maltreats its residents.

ANOTHER UPDATE: I love all the folks that bash trial lawyers. They're the same people for whom trial lawyers are their best friends, when they need help.

YET MORE TO SAY: I do have to say this to the commenter who said that consumer law benefits lawyers always, but consumers only sometimes. Unless the comenter is referring to insurance defense lawyers who defend cases by the hour, that statement is just not true. I handle most or all of such cases on a contingent fee, i.e., I make no fee unless the client recovers. Thus, the client will make a recovery before I get paid. It's just a terrible distortion of the way things really are to paint all trial lawyers as profiting while their clients are losing. In my practice, and every other trial lawyer I know and respect, that just ain't the case. Like it or not, most trial lawyers are in this business to make a living by helping people solve their problems. Putting aside the top 1 or 2% of the lawyers who make the big money in the plaintiff's bar, most of us work for very modest wages. Frankly, what is extraordinary to me is what the big firms are paying the top 1 or 2% of law school graduates these days -- $150,000 and up. Now that's obscene [and how do I get some of that?]!

20 comments:

Anonymous said...

The only people I trust less than nursing home operators (and their paid-for legislators) are the trial lawyers.

EDH said...

Whether the changes to the liability laws you talk about make sense or not, I notice you haven't jumped into either the medical profession or the nursing home business but instead have chosen, ahem, to be a lawyer.

John Lynch said...

Economics is fairly simple: the service will not be provided unless one can expect recompense.

Lawyers seem safe.

I hope the aged have family.

tyree said...

Douglas...
Perhaps you have a point, but "consumer law" always benefits the lawyer, and only helps the consumer sometimes. If I was a legislator I would address the problem similar to what has been proposed to FISA. No civil penalties allowed but no excuse for criminal action. Then I would sunset the law after 5 years and tell the citizens to watch the industry carefully during that time. 5 years later we could see whether the law needs to be renewed. Anything that sucks millions out of the trial lawyers hands has to be good for the vast majority of Americans.
My father was a doctor, can you tell?

Cujo Liva said...

I'll add my voice to the so far unanimous collection that condemns lawyers as part of the problem and not part of the solution.

Anonymous said...

Just who are the "forces of darkness"?

Ain't if funny, that's just how the defense bar refers to the plaintiff bar.

Anonymous said...

You know, there are certainly instances where nursing home directors, managers, or companies are negligent ... but typically what I see is that the abuses are the result of one or two bad apples.

Tarring everyone in the industry with a wide brush is unfair, and - your mocking comments aside - there really is a danger of these places shutting down, and the services - and people who actually give a damn and are willing to provide them - not being available.

I have several close relatives who work in the field. One was an administrator who had a reputation for straightening up facilities. The last building they sent him to had some prior deficiencies which he was tasked to correct (this would be verified by follow-up inspection).

Well, shortly thereafter one of the nursing managers got pissed off because she didn't want to change the way she did things. She started going to residents' family members and convincing them to spam the state gov't with all manner of complaints, no doubt with promises of large settlements. The state came in and - because of "get tough on nursing home" laws, and those prior deficiencies - threatened the director with criminal conviction and jail time.

The director had nothing to hide and cooperated. They then hung up their license, went back to school, and found another career. Wouldn't you?

I won't condemn lawyers as a whole, either, but it would not be my pedestal of choice for condemning another industry for greed and malfeasance.

Lyn said...

This was a good article. I clicked on the link to the main story. The proposal is insidious.

Many people don't realize what "caps" can do in civil cases. Place the maximum verdict low enough and lawyers won't be able to sue and recover sufficient damages to cover their expenses and fees. That limits lawyers' willingness to accept these cases. In turn that limits people's ability to do anything about mistreatment and abuse. And without access to a lawyer it's almost impossible to effectively pursue any kind of case.

When facilities know that there is a limit to how much they can be punished this frees them up to be as negligent as they want to. That's what is so bad about this proposed Tennessee law.

I wish more people would smarten up about plaintiff's lawyers. Does the average person - I don't care what his job or career - work for free? No? Neither should lawyers. Don't villify lawyers - when you need someone to protect your assets or your freedom they're the only ones that can do it.

EDH said...

Doug,

I didn't notice your update until after I posted a response to Lyn.

You wrote: "Seriously, though, regardless of whether I decided decades ago to be a lawyer, a doctor, or a nursing home proprietor...that does not excuse a doctor when he screws up, or a nursing home when it maltreats its residents."

No, it doesn't, and nobody here said it did.

What we're talking about how to bring about quality care in the first place. And what incentives are in place for people to do that versus hovering like vultures for the random opportunity to drain disproportionate resources from that endeavor.

Your question: “who tells mommy and daddy when they're groing up, ‘I want to be a nursing home operator when I grow up!’” is precisely the point.

Again, I'd simply ask what about being lawyer is mutually exclusive with running a quality elder care facility?

Think about it. It'd give lawyers the opportunity to prove in real life the appropriate standard of care they profess so easily in the courtroom.

Certainly you’ve heard about the personal injury lawyers who fund businesses, boutique and mundane, with their contingency fees.

Funny how one never seems to enter the businesses he or she has just tried to convince a jury could be run so much better than the defendant's.

EDH said...

My original response to Lyn, which was lost.

Lyn,

This is not a broadside against the legal profession. What people here are saying is that there are at least two possible responses to the need for quality elder care.

One is to employ costly litigation in the hope that it will somehow force others to provide such care.

The other is to become an ethical provider yourself.

All we're saying is that lawyers here have revealed their preference to make a living off the consequences of claimed poor care rather than providing good care.

That tells us something very important about societal incentives, and the availability of quality care likely in the future.

Meanwhile, what prevents one or more of these "concerned" lawyers from operating an elderly care facility to show us all how it's done?

I think you know the reason why "concerned" lawyers don't, and why fewer people generally will, under the liability regime they are creating.

Anonymous said...

Of course class action trial lawyers make all the money while the "plaintiffs" (the ones ostensibly damaged) get coupons.

I don't think contingency work is very pure either. Take ten cases with a 1/10 chance of winning, and win one to pay for the others. Still makes for a lot of frivolous action.

That being said, I agree with you that medical liability should not be limited when it comes to institutions (Hospitals, Nursing homes) because institutions act institutionally, and only finantial incentives will motivate them. But doctors and individuals are just being crushed with malpractice insurance, causing everyone to pay more for the benifit of the few who sue, and their trial lawyer, who takes 1/3rd.

I think trial lawyers would be a lot more ethical if contingency work were illegal. Less frivolous action, less incentive to win at all costs.

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Anonymous said...

"This is not a broadside against the legal profession. What people here are saying is that there are at least two possible responses to the need for quality elder care."

Then they're missing the point of an individual lawsuit. The job of the case is not to reform the industry, it is to compensate the particular individual who was harmed for his injuries. Reforming the system of elder care is up to the elder care providers.

"All we're saying is that lawyers here have revealed their preference to make a living off the consequences of claimed poor care rather than providing good care."

Why is providing care more moral than helping those who have been injured by substandard care?

There is no liability "regime" being created by lawyers. Most cases revolve around violations of federal and state law, which nursing home lobbyists have as much to do with as anyone. But which of those care provisions do you object to?

Anonymous said...

"Of course class action trial lawyers make all the money while the "plaintiffs" (the ones ostensibly damaged) get coupons."

If 100,000 people are damaged to the tune of $100 each, and the class action lawyer does the work for all of them, what should the lawyer get and what should the individual plaintiffs get? Your complaint is misguided, since the individuals will always get little because most class actions involve claims that individually are too expensive to hire a lawyer to prosecute as they require lots of time and money out of the lawyer's pocket.

"I don't think contingency work is very pure either. Take ten cases with a 1/10 chance of winning, and win one to pay for the others. Still makes for a lot of frivolous action."

If all cases were the same and all damage awards and settlements were equal, this argument might make sense. As it is, this is a recipe for a lawyer to go bankrupt.

"I think trial lawyers would be a lot more ethical if contingency work were illegal. Less frivolous action, less incentive to win at all costs."

This statement also reflects a lack of knowledge of the economics of a legal practice. If anyone has an incentive to run up the bill, it's the defense who is being paid by the hour. A case has a value that is pretty much set from the beginning based on the damages. The contingency fee attorney spending more time (ie. money) and actual money loses money every additional hour and every additional dollar they spend on the case.

As for outlawing contingency fees, how exactly does the average person pay for a case against a Fortune 500 company. If you're run over by a Wal-Mart truck today, can't work for months on end, and can't care for yourself, and have medical bills piling up, do you have the tens of thousands of dollars to spend on your lawyer against the tens of thousands Wal-Mart is going to spend on theirs? I know they can afford it - how about you?

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The Centers for Medicare & Medicaid Services (CMS) has released a new nursing home rating system on its website to help make choosing a nursing home easier for senior citizens and their families.

The 5-star rating system used for all 15,800 U.S. nursing homes that participate in Medicare or Medicaid, similar to rating systems for hotels and restaurants, has some nursing home operators worried about how their business will fair with this new rating system.

The ratings are based on health inspection surveys, staffing information and quality of care measures, such as the percentage of residents with pressure sores. The nursing homes will receive stars for each of those categories as well as for their overall quality. Only 10% of nursing homes received the highest five-star rating, and 20% received just one star in the first round of ratings. Which nursing home is your parent or grandparent living in and what rating did it receive?

Now the general public can know which nursing homes got a low rating and which received the highest rating of 5, but of course there are those in the nursing home industry desperately trying to poke holes in the rating system from the get-go by saying the system is “is poorly planned, prematurely implemented and ham-handedly rolled out”.

“What you have with the five-star system is a very well-thought-out way of summarizing all of that information that was available on the earlier site with new information. This allows you to do a much more direct comparison in a user-friendly way” said Charles Phillips, a professor of health policy and management at Texas A&M Health Science Center School of Rural Public Health in College Station. “The old site had a lot of information, but the information wasn’t necessarily terribly usable by the average consumer. You knew if the facility was above or below the state average, but you didn’t know what that meant”.

Families caring for elderly parents have a weighty responsibility trying to deal with providing needed care and attention to elderly parents, and the struggle to find quality nursing home care weighs heavily on the hearts and minds of caring families. Many family members incorrectly assume good quality nursing care and they often don’t know what questions to ask when trying to choose a nursing home, and that’s where this rating system can be an important educational tool for families.

Alice H. Hedt, executive director of the National Citizens’ Coalition for Nursing Home Reform, said consumers should consider the star ratings, but not solely rely on them when comparing nursing facilities. “Our initial reaction is that consumers should probably avoid any facility with a one- or two-star rating and even a three-star rating unless people they trust convince them that the rating is inaccurate or unfair,” she said. Her organization also issued a press release warning that nursing homes may appear in the ratings to give better care than they actually do.

“There are other quality-of-life issues they are very concerned about: the atmosphere, cleanliness, ratio of nursing professionals, the ability to go visit. None of that is reflected in what gives this a five-star rating”, said Debra Greenberg, a senior social worker at Montefiore Medical Center and Albert Einstein College of Medicine in New York City.

The decision to put a family member in a nursing home is very stressful and emotionally charged for many families. Anyone considering placing an elderly parent in a nursing home should talk to the local nursing home ombudsman and take the initiative to physically go and visit each nursing home facility being considered several times (unannounced) in order to get a real first-hand look inside the nursing home.

Some families are intent on taking care of elderly parents themselves, with the help of programs that offset some of the financial stress and hardships, rather than placing their mother or father in a nursing home. The decision as to whether to put mom or dad in a nursing home or not is a personal one, and the general public has the right to know as much as possible about how nursing homes are rated and why each nursing home received either low ratings or high ratings in order to make the best possible decision for their parents and family.


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