Monday, March 9, 2009
Legislature / Politics / Woods Nursing Home Industry Pushing 'Kill Old People Cheap' Law Again
Posted by Jeff Woods on Mon, Mar 9, 2009 at 9:44 AM
"This bill is one of the most outrageous and extreme examples of corporate greed and political over-reaching that we have ever seen. It provides near-complete immunity when homes abuse or neglect residents and does nothing to improve care. "The quality of care in many Tennessee nursing homes is shameful; there is no other way to characterize it. This bill would ensure that care only gets worse as it completely protects homes when they cause direct harm to the elderly. Several of the legislators who have signed their name to this bill are strong right-to-life advocates, but nothing in this bill will protect the sanctity of life for our nursing home residents. Tennessee Citizen Action stands strongly opposed to this deceptive and purposefully misleading legislation."Here are the bill's sponsors (as you will note, even a couple of Democrats are whoring down for the nursing home industry): Sen. Jim Tracy (R-Shelbyville), Rep. John Lundberg (R-Bristol), Rep. Steve McDaniel (R-Parkers Crossroads), Rep. Vance Dennis (R-Savannah), Rep. Bill Harmon (D-Dunlap), Rep. Lois DeBerry (D-Memphis), Rep. Jason Mumpower (R-Bristol), Rep. Judd Matheny (R-Tullahoma), Rep. Glen Casada (R-Franklin), Rep. Joe Carr (R-Lascassas).
Comments (8)
Showing 1-8 of 8
Jeff,
If think these legislators are "whoring " why would you think any more of this group "Fighting the bill is Tennessee Citizen Action--a coalition of trial lawyers, advocates for the disabled and labor unions."
Advocates for trial lawyers is more like it.
Where's the middle ground?
Joe
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trial lawyers and labor unions are outraged by this bill? boy, that's the pot calling the kettle black! greedy trial lawyers and labor unions are what has caused the health care industry to have to resort to such actions. nothing is fair to trial lawyers and labor unions unless they are getting a big piece of the pie. more power to the nursing homes! shame on the paper for such bias reporting!
oakley
Oh yeah, Oakley. That poor, persecuted, under-represented health care industry is yet again FORCED to "resort to such actions" by those pesky lawyers and unions. And old people stuck in nursing homes.
What a laugh!
You people really can't win an argument unless you have to lie about how "the system" is stacked against poor old big business, can you?
You ass.
yeah, pretty typical of those who are unable to have a civil discourse. call people names to try and make your point. let this legislation pass and see how fast the "concerned" trial lawyers beat it out of the state. their only concern is lining their pockets with what they consider easy money. many of the trial lawyers came to this state only after other states passed tort reform. it will happen here and they will be gone.
ass
I am angry at the Nashville Scene, and specifically Jeff Woods, for lying to and misleading people.
First, Mr. Woods doesn't the bill number so that the reader can look it up for themselves (SB2160). Second, he does not clarify that there is a difference between economic, non-economic, and punitive damage awards. There are no caps on economic damage awards in the bill. And third, the 50% of punitive damages does not go right back to the nursing homes, but to a fund, managed by the Department of Health and an advisory board, dedicated to improving care.
People can agree or disagree with the legislation... my point is that you should know what the bill really says, instead of a biased spin like this.
It seems that having a discourse based on facts (vs. ideological "buzz words," platitudes and obfuscation) in the public arena has all but disappeared in this country. This article, albeit opinion, is irresponsible, at best. Like most issues that ultimately reach the public eye today, a great deal of important facts, information, and circumstances lie quietly underneath. That said, however, here a few salient facts, four to be precise, of which anyone reading this article should be aware in order to arrive at a more educated opinion on the matter:
1. Perhaps not surprisingly to many, the above-referenced legislator, who coined the term "kill old people cheap" law, is himself a plaintiffs' attorney. Moreover, he has practiced (and may, in fact, still practice) with one of the most prominent firms in the Southeast engaged primarily in the business of suing nursing homes (see #4 below). Put simply, based on his patent conflict of interest, his opinion on the matter lacks any shred of objectivity or credibility, and arguably, for ethical reasons, should not be offered at all. Beyond this, for the past two legislative sessions, he and two of his plaintiffs' attorney/legislator colleagues have used their 3-vote majority to prevent this bill from even moving out of the meager 5-member house judicial subcommittee so that a warranted broader legislative consideration of the bill's strengths and weaknesses could occur. Does anyone see a conflict of interest problem here somewhere?
2. Even without accounting for lawsuit costs and other non-operational expenses, nursing homes are a notoriously low-profit-margin enterprise. So much so, that, like the farming industry for instance, the smaller locally and/or family-owned facilities are becoming extinct. These facilities are, one-by-one, quietly closing their doors or they are being purchased by larger companies which, due to their size, are able to keep nursing homes financially viable through the effective use of economies of scale.
The existence of low profit margins is not just borne out anecdotally or by the increasing prevalence of the above trend. Hard data tell the story best. Recent government data show that the profit margin for nursing home Medicaid beds is .9% (yah, that’s less than 1%), with an average overall loss of $25 a day, per bed. Factoring in slightly higher Medicare reimbursement for shorter-term stays, the average total margin makes a huge leap to a staggering 2.4%. Finally, the most recent statistics show that 36% of all nursing facilities have posted negative operating margins in the last federal reporting period for which data are available.
If the average citizen honestly believes, with financials like these, that nursing homes represent an example of reckless corporate greed and "profits before people," our country may as well start bidding farewell to any semblance of a free market system. Unfortunately the average citizen, and particularly the average jury member (see # 4 below), is not aware of these remarkable statistics.
3. Anyone motivated enough to look at the existing laws and regulations presently in place regarding nursing home patient safety, protection, and remedies will quickly see two very important and interrelated facts that run entirely contrary to Mr. Woods' premise, i.e., the bill is aimed at or will result in avoiding responsibility for "neglecting and abusing residents[.]" First, the bill deals with acts of negligence, a legal term of art, and in no way, shape, or form protects facilities from liability arising out of abuse and/or neglect of patients ("neglecting," though similar sounding, is entirely different and legally distinct from "negligence" in this context). If proved, abuse and/or neglect of a patient falls outside the rubric of "medical malpractice," and is an area in which the law provides a host of legal liability theories and remedies, and protections. In addition to a number of civil and criminal laws, the most direct and notable resides in a portion of the Tennessee Adult Protection Act (TAPA). The law explicitly provides for actions for abuse or neglect of the elderly or disabled and even includes authority to obtain attorneys' fees. More importantly here, the proposed bill does not and cannot obviate a single syllable of TAPA. Second, the civil context aside, both state and federal law prohibit patient abuse and neglect and have an active and elaborate survey and complaint system to address any such claims which include not only huge fines, but also potential loss of licensure and/or Medicaid/Medicare certification. These protections are real, and the stakes are high for facilities that violate them.
4. Today, a large proportion of lawsuits brought against nursing homes in Tennessee are filed by a handful of large, out-of-state plaintiffs' firms that specialize in this area. It turns out these firms have migrated to TN (and KY) because the states in which these firms are based and actively practiced in previously, namely TX, MS, and FL, have now instituted meaningful tort reform. Although tort reform came about for many reasons in these states, a shared and growing realization by citizens and legislators alike: If something was not done to reign in lawsuits of nature described below, their state would soon find itself with a few, very wealthy lawyers and unreasonably compensated families in exchange for a collapsed nursing home and crippled healthcare industry. Understandably, they got together and said "no" to this option, however tempting it may seem.
As it turns out, these out-of-state, specialist firms' suits are brought using a pat and proven "formula" -- a fixed strategy used in each and every case that takes little or no account of their actual legal merits. The formula's fuel and focus is tied directly to the scope and severity of patient's injuries and/or outcome, the degree to which it is likely to engender jury sympathy, regardless of actual fault. Indeed, whether or not there is, in fact, negligence or wrongdoing on the part of the nursing home is merely incidental.
And, make no mistake; many of the lawyers engaged in this practice are experienced and talented speakers and motivators. If a case survives summary dismissal (a legal standard not difficult to meet), these lawyers will eventually get before a jury and artfully paint a vivid, heart-rending picture of the patient's painful and “wrongful” medical condition(s) and/or outcome. The formula is blind to whether the patient arrived at the facility with these, and often a host of other, life-debilitating conditions. Similarly, it is blind to the recognition that many unfavorable patient conditions and outcomes are not medically preventable or avoidable even under the most ideal conditions. Indeed, the high acuity level, advanced age, and/or overlapping multiplicity of medical conditions of the average, modern-day nursing home patient make them prone to such conditions and outcomes despite the best of care.
Thus, the formula is directly reliant upon facilitating a jury's inability or unwillingness to rationally decipher the law. To get the desired result, the decision must be based on feelings and passion. It is then, at this critical time, with an impassioned jury now marching to their once natural, but now unnaturally drummed-up human sympathies, that attorneys, with perfectly calculated indignation, wax eloquent about the evils of the cold, impersonalized, corporate profit-making machine responsible for this tragedy. Despite how silly it may sound on paper, the formula works and works well. Is this a system out for the wrongfully injured patients and families as a whole? I think not. After the lawyers (the primary winners) have taken their liberal share of the spoils, precious few of families are left with rest and fewer still families that were legitimately entitled to that money based on a valid claim that wasn’t based on exploiting the system and jurors. All the rest are left with increased health care costs and an increasingly more sterile and defensive nursing home living environment arising out of fear of the next lawsuit.
This elaborate and carefully constructed system is designed to achieve one result and one result only – a “jackpot” verdict in the millions. Massive verdicts unheard of in other litigation contexts and only possible due to impassioned decisions described above. Some verdicts, including punitive damages, have exceeded $40 million.
It is critical to note that the above criticism of these tactics is limited to these tactics and in no way suggests or implies that there are not many legitimate, meritorious claims brought against nursing homes in TN and elsewhere. Of course there are. From this standpoint, nursing homes are no different than any other business enterprise in this country, and they can and do make mistakes which can result in wrongful harm to a patient. But the proposed bill does not preclude these valid claims. Rather, it serves to limit the amount of recovery in some cases, including the roughly 40% - 50%, after they recover "costs," taken off the top by plaintiff attorneys. Oh, and did I mention that for some firms, as documented in suits against firms of this type, "costs" include multiple trips on private jets, lavish entertainment and fine dining? It’s all for the best interests of the patients and their families, of course.
