Patient advocates object to nursing home liability limits

Tia Cheney, a 26-year-old diabetic, died in November 2009 purportedly because she was not given enough insulin while at a Port Washington nursing home.

Christine Larson, her mother, is among those opposing a bill that would limit punitive damages as well as extend the current cap of $750,000 on damages for pain and suffering in medical malpractice cases to nursing homes, hospices and assisted living facilities.

"The idea that our lawmakers now want to shield nursing homes from full responsibility for their neglect is the worst kind of public policy at the worst of times," Larson, who lives in West Bend, said before a legislative committee last week.

The caps are among the provisions in sweeping legislation proposed by Gov. Scott Walker to provide businesses with additional protections against lawsuits.

The Senate passed its version of the bill on Tuesday. The Assembly could vote as soon as Thursday.

Larson has not filed a lawsuit against the nursing home but does have an attorney. Citing respect for Cheney's privacy, the nursing home declined to comment.

Plaintiff attorneys have focused many of their arguments against the bill on nursing homes.

AARP, the Coalition of Wisconsin Aging Groups, Disability Rights Wisconsin, Alzheimer's Association of SE Wisconsin, Mental Health of America of Wisconsin, the Wisconsin Alliance for Retired Americans, an affiliate of the AFL-CIO, and other advocacy groups also oppose the bill.

They opposed not only the caps on damages but also provisions that would shield the information in an incident report required by federal and state law whenever a resident is injured, preventing certain state reports from being used in court.

Nursing homes provide care to permanent residents as well as temporary residents who require long-term care but can't be cared for in their homes, such as people who have suffered a stroke or are recovering from hip-replacement surgery.

When a resident has been injured, he or she can sue for economic, noneconomic and punitive damages.

If the injury results in death, adult children can sue for wrongful death. Those awards by state law are capped at $350,000 for adults. They also can sue for economic, noneconomic and punitive damages because the potential claim becomes part of the estate.

The cap on punitive damages, designed to punish a defendant, could be the most significant change, said Pat Sullivan, an attorney with Siesennop & Sullivan.

"Most cases settle, and most get settled because of the risk of punitive damages," said Sullivan, who defends nursing homes and assisted living centers.

Punitive awards are relatively rare. "But they are a very big stick to wield," said Matthew Boller, a Madison plaintiffs' attorney.

The same holds to a lesser extent for awards for pain and suffering, or noneconomic damages.

The proposed cap of $750,000 for pain and suffering would be similar to those for doctors and hospitals. Those caps extend to some - though not all - nursing homes affiliated with nonprofit health systems.

Effects disputed
Economic damages, which are tied to lost earnings and medical expenses, can be relatively limited for residents in nursing home and assisted living centers.

Families can be compensated for funeral and out-of-pocket medical expenses. But awards for medical expenses stemming from the injury, such as hospital costs, typically reimburse Medicare, Medicaid and insurance companies - though plaintiff attorneys get to keep money for expenses and fees. Those typically amount to 30% to 40% of a settlement or award.

The caps on noneconomic and punitive damages would limit plaintiff attorneys' leverage in negotiating settlements because nursing homes and assisted living centers wouldn't have to fear multimillion-dollar awards if the lawsuit went to trial.

Brian Purtell, director of legal services for the Wisconsin Health Care Association, which represents nursing homes, said the cap would help stabilize rates for malpractice insurance.

Malpractice lawsuits against nursing homes are less common in Wisconsin than in other states, Purtell said. But he said the number of lawsuits has increased in the past five years, and national law firms that specialize in suing nursing homes have begun advertising in the state.

"People need to remember this bill is part of a much larger effort on the part of the governor to change the (business) environment," said Purtell, who also is executive director of the Wisconsin Center for Assisted Living, an affiliated trade group.

But John Hendrick, director of governmental affairs for the Coalition of Wisconsin Aging Groups, said the changes would limit people's ability to be compensated for injuries, neglect and abuse.

The advocacy groups opposing the proposed changes contend that if fewer people are harmed, fewer lawsuits will be filed and the cost of insurance will go down.

They also contend that the bill would increase the cost of the Medicaid program, which pays for nursing home care for people who are impoverished.

Medicaid is reimbursed when a resident or his or her estate is awarded damages for negligent care. And the Coalition for Wisconsin Aging Groups estimates that Medicaid pays for 62% of all nursing home residents in Wisconsin.

The advocacy groups also oppose sections of the bill that could make it harder to win lawsuits against nursing homes.

Those sections get technical but could be as important as the proposed caps.

They would protect incident reports - which must be filed by law when a patient has been injured - from being subpoenaed. The reports include interviews with and written statements from employees.

The bill also would prohibit certain state records - such as so-called statements of deficiency and misconduct incident reports - from being used in a deposition or in court.

Lawyers contend the reports can show a pattern, such as chronic understaffing, by a nursing home.

The reports would still be available to the public, but couldn't be used in court.

"I have a hard time understanding the rationale," said Jeff Pitman, an attorney with Pitman, Kyle, Sicula & Dentice S.C.

Nursing homes - as well as hospitals and other health care providers - contend that health care workers are more likely to be candid if their statements will not end up being used in a lawsuit. That is important in quality reviews and other work to improve patient safety.

"You want the opportunity to have that warts-and-all discussion," said Purtell of the Wisconsin Health Care Association.

Patient advocacy groups are unconvinced. But Sullivan, who defends nursing homes, contends the bill's potential effect is overstated.

"There still will be lawsuits against nursing homes," he said. "There will be fewer of them. But as I read the bill, there still will be opportunity for fair compensation for people injured by negligence."



Patient advocates object to nursing home liability limits - JSOnline