A Brief History of Nursing Home Litigation

Civil tort litigation tends to follow larger social trends. The post-World War II through 1970s construction boom involved more than a fair amount of asbestos and was followed a generation later by the mesothelioma lawsuit industry. The rapid growth in available health care treatments (and union-negotiated health insurance plans to pay for) in the 1960s and 1970s was followed by an explosion in medical malpractice litigation in the 1980s and 1990s. The Golden age of tobacco advertising in that same time was followed by the historic class actions filed by states against the industry.

In short, as part of the normal boom-and-bust cycle, during a “boom” the economy expands but governmental regulation and other social policy fails to protect workers, consumers and patients. In the aftermath, there is a boom in tort litigation to hold the profiteers accountable for the damage they caused.

One of the great social trends right now is the graying of the population. In addition to the baby boomers now aging beyond even retirement into geriatric care, all of those medical advancements above mean that many of the baby boomers’ parents are still alive, but, now in their eighth, ninth and tenth decades, frequently unable to care for themselves. That in turn has led to an explosion in the nursing home industry, today a $100 billion industry, three-quarters of it paid by taxpayers through Medicare, one-quarter through the nursing home residents and their families.

Let the number sink it: $100 billion in revenue to care for 1.4 million nursing home residents. Where there’s money to be made, and a vulnerable population, you can bet your bottom dollar that problems will arise: ninety percent of nursing homes are staffing levels too low to provide adequate care, and every year over 20,000 complaints of abuse or neglect are made, estimated to be less than 10% of the actual frequency of elder abuse in long-term care facilities. To put it bluntly, elder abuse is a serious social problem.

There has thus been an explosion in nursing home abuse lawsuits. You can’t watch daytime television without seeing an ad for an elder abuse attorney. Google AdWords for “nursing home abuse lawyer” and “nursing home neglect lawyer” run about $15 per click. Nursing home abuse litigation is a serious business these days because elder abuse is a serious problem affecting hundreds of thousands of residents and their families. Preventable falls, pressure ulcers, bed sores and dehydration happen hundreds of times every day. Someone needs to be held accountable.

Insurance Companies Don’t Play Fair (As If You Didn’t Know That)

But where there’s a social problem, there’s insurance-funded research to downplay it, thus time published in the New England Journal of Medicine, “Relationship between Quality of Care and Negligence Litigation in Nursing Homes:“

Untangling the relationship between the quality of health care and the risk of negligence litigation is a crucial challenge in medicolegal research. Although previous studies have probed this relationship, an important question for clinicians and health care institutions remains unanswered: does the delivery of high-quality care reduce the risk of being sued?

That’s a meaningless question. Nursing homes don’t get sued for their overall care, they get sued for negligence in the care of a particular patient.

Sure, a “bad” nursing home is more likely to be sued than a “not-so-bad” nursing home (assuming you measure “badness” by regulatory violations), because the former is probably more likely to be negligent than the latter, but that’s not the issue in a lawsuit. The issue in each lawsuit is if particular care provided to a particular resident or patient was beneath the standard of care — something that can happen at the best facility and the worst facility.

The “researchers” here asked, in essence, if baskets of apples left out in the sun for two days tend to have more rotten apples than baskets left out just one day. Of course they do, but that tells you nothing about each particular apple. The study is thus questionable from the onset; all good research starts with a good question, and they’ve started with a pointless question.

In the end, the researchers found that, indeed, “bad” nursing homes get sued more frequently than “good” nursing homes, just as everyone would suspect, trial lawyers included. No surprise.

Somehow, though, they concluded that was evidence of a legal system gone amok. They figured there would be even more bad apples in the two-day-old basket. Why did they figure that? You’d have to ask them. Why would that matter for the merits of particular cases? They didn’t say. Did they even consider the severe underreporting of nursing home neglect, estimated at below 10% of incidents? Nope.

Predictably, a few commentators jumped on that as evidence that elder abuse lawyers are a bad way to regulate nursing homes, and they’re right: lawsuits are primarily a way to provide compensation for the victims of negligence and malpractice, not a means of social regulation. If fear of litigation is the only reason someone does the right thing, then we’ve had a serious failure of morals and governmental regulation.

Follow The Money

So why would researchers ask such a meaningless question and then ignore their own data? Let’s look at the disclosure forms attached to the study. Here’s what one “researcher” of the study reported:

Interesting. Here’s another “researcher:”

Also interesting. A “Medical Risk Insurance Company” and “Common Good,” which is Philip Howard’s anti-patient lobbying group. Something tells me they’re not the most objective researchers out there.

 

The whole study was a calculated waste aimed at producing one conclusion: nursing homes never make mistakes and all lawsuits are frivolous.

So I have a proposal in return: how about the New England Journal of Medicine stops playing politics and gets back to the medicine? It’s a shame that, while the doctors’ journals talk law and politics, the lawyers are the only ones looking into ensuring seniors get appropriate care.