In 1987 Congress passed the Nursing Home Reform Act, but the NHRA only said that a “nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident,” without providing specific numbers on the minimum staffing levels for registered nurses and nurse’s aides required per resident. The situation is a perfect storm for elderly abuse and neglect: more residents and fewer nursing assistants translates directly into profits for the owners of the facility, sending the whole industry into a ‘race to the bottom.’ The states have filled in the gap in some ways with regulations establishing the number of care managers that have to be assigned per resident, but standards are still quite low and, worse, they’re routinely violated. Given how widespread nursing home horror stories are — virtually everyone knows a story, or two, or ten, about an elderly resident being left dehydrated for days or developing an infection that’s never treated — you would think all attention would be directed towards improving the quality of elder care.
Right now it seems the Pennsylvania legislature is focused on doing exactly the opposite by shielding nursing home companies from the same laws that apply to the rest of us (except doctors and hospitals, who received this same special protection under the MCARE Act in 2003). As Amaris Elliott-Engel at The Legal Intelligencer is reporting,
Last month, the House voted on the third consideration and final passage of House Bill 1907 103-89 to amend the Medical Care Availability and Reduction of Error (MCARE) Act to cap punitive damages in lawsuits against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, home health care agencies and hospices at 200 percent of the compensatory damages awarded in such lawsuits. The bill is still pending in the state Senate. The cap would not apply to cases involving intentional misconduct.
The primary sponsor of the legislation, Rep. Glen R. Grell, R-Cumberland, said that he advocated for the legislation because nursing homes in his district should not be “subject to the jackpot punitive damages awards that could result.”
Nursing home litigation is a common target for tort reform propaganda these days, and as far as I can tell Rep. Grell hasn’t come up with any examples of what he means by “jackpot punitive damages awards,” he just thinks it sounds nice.
As I’ve mentioned before on this blog, punitive damages award are exceedingly rare. Coincidentally, right alongside the nursing home article in The Legal Intelligencer is an article reporting on a judge denying punitive damages in a car accident case where the defendant driver was talking on their cellphone at the time of the accident. In Pennsylvania, punitive damages may be awarded “when the plaintiff has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others,” Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445 (2005), and so the issue of “recklessness” should be a question for the jury, but, in reality, most judges won’t even let juries hear evidence on the question, and they’ll dismiss the punitive damages claims before trial.
Nursing home lawsuits aren’t much different:
Robert L. Sachs Jr., the plaintiffs’ liaison counsel to the Philadelphia Common Pleas Court’s nursing home mass tort litigation program and the managing partner of Shrager Spivey & Sachs, said that the legislation is “trying to address a problem that doesn’t exist in Pennsylvania.”
Sachs said that as far as he and other lawyers involved in nursing home litigation can determine there have been only two nursing care cases in Pennsylvania involving punitive damages.
In one of those cases, a Philadelphia jury awarded $5 million in punitive damages for a man who died from sepsis that started with a urinary tract infection, The Legal previously reported. The judge remitted the punitive damages award to $1.5 million to bring the award into line with compensatory damages of $1 million. The other case settled before the jury came back with its punitive damages verdict, Sachs said.
I can recall another case from last fall apparently not mentioned with those two, in which a jury entered a $400,000 punitive damages award against the nursing home:
Mackey was a diabetic and double amputee when he had a stroke that left him unable to speak or move. He was a resident at Willow Terrace Nursing Home in Philadelphia from June 4, 2007 until Jan. 28, 2008. Williams’ lawyers argued while there, Mackey needlessly suffered from a gaping pressure wound that ate away at most of his backside, an eroding penis, multiple infections, contracted limbs, dehydration and malnutrition. Mackey’s family lawyers alleged that he died as a result of those problems.
Mackey, a married father of five from North Philadelphia, was 68 years old when he died in May 2008 from a blood infection. According to the lawyers, he amassed $287,000 in medical bills.
That brings the total nursing home cases involving punitive damages up to three, with actual jury verdicts including punitive damages against a nursing home only up to two, for a post-verdict punitive damage total of under $2 million. Do you think the facts in the above case warranted a punitive damages award of at least $400,000? I think they do. Where’s the problem?
But, the tort reformers say, let’s give the nursing home companies the benefit of the doubt, whether they deserve it or not. I know what those companies are worried about: last year there were two enormous nursing home verdicts that included punitive damages components, one for $200 million in Florida and one for $91.5 million in West Virginia. These verdicts are both, obviously, very large, and each more than a hundred times the median settlement values I’ve seen referenced in studies. They are outliers, the type of one-in-a-million instance that happens so rarely that it shouldn’t be the basis for any public policy decision, but let’s take a closer look at each and see what’s really going on.
Consider what happened in the Florida case:
One afternoon in October 2004, Elvira Nunziata slipped away from a group of residents at the Pinellas Park Care and Rehabilitation Center, authorities said. An hour passed before anyone noticed. Then someone checked an emergency exit door stairwell.
Nunziata, still strapped in her wheelchair, was at the bottom of about 10 stairs. She died shortly after paramedics arrived.
At the trial, former caregivers testified the nursing home was understaffed and that, before her death, Nunziata suffered other falls, injuries and illnesses. Nursing staff also knew Nunziata was prone to wandering, her attorneys said. She had the onset of dementia.
On the day she died, attorneys said, alarms on her clothing, wheelchair and the emergency door should have alerted staff to her location.
Of course, the story doesn’t end with the $200 million verdict. It never does. A few years ago I was co-counsel on a medical malpractice case that resulted in a multi-million dollar punitive damages verdict; in the end, even after the verdict was sustained on appeal, we collected not one penny of that thanks to the defendant declaring bankruptcy. The defendant is back in business today.
On Sunday, the Tampa Bay Times followed up on the Nunziata case, pointing out that the company which operated the facility she was at no longer existed, and that, two years after Nunziata’s death, the nursing facility was “sold” to another company with the same address and phone number. The original company went into receivership, a judge declare their parent company immune from legal liability, and so they didn’t even bother to defend the case after that. That’s likely where the $200 million verdict came from: the jury was angry that no one even showed up for the nursing home to explain what happened to Nunziata.
The article explains something we’ve also seen in our work, which is that the owners of skilled nursing facilities have become particularly adroit at creating complicate corporate structures intended to conceal assets and protect the companies if, by chance, they’re ever actually held accountable for the damage they cause:
Nursing home ownership was split into layers of different companies. One might own the building. Another would lease the building, hire staffers and pay the bills. Profits might flow to other corporate parents, holding companies or private equity investors, which have jumped into the field in recent years.
If regulators yanked an operator’s license for poor care, that company could dissolve and an affiliated company could take over. If a resident sued, the operating company might be liable, but not the building owner, any more than a puddle of slippery salsa puts the landlord of a taco shop in legal jeopardy.
Truth is, as impressive as a $200 million verdict may be, the plaintiff and his lawyers have little chance of seeing a penny of it, and the same would be true of most cases involving punitive damages. Here in Pennsylvania, for example, there’s already an effort to eliminate corporate negligence claims against nursing homes entirely, making it even harder to hold the real corporations involved accountable.
That’s the “jackpot justice” the Pennsylvania General Assembly is apparently so worried about: on the rare occasion a nursing home is called to account for recklessly disregarding their residents, they will just fold their own company and stop defending the case, allowing the residents’ family to win a big verdict that shows up in the papers but which is uncollectable and meaningless. It doesn’t sound like a “jackpot” to me, it sounds like a game rigged against the residents and their families. After the family walks away with their paper verdict, the nursing home companies move on to the next “Shady Pines” and keep making money hand over fist.
As for the $91.5 million verdict, the case, too, involved a complete disregard for the safety and well-being of a resident, as described by the Charleston Gazette:
In Sept. 2009, Tom Douglas admitted his mother Dorothy into Heartland of Charleston until a bed opened up at another facility near Huntington. Dorothy Douglas suffered from Alzheimer’s and dementia, but could still walk and recognize her family members.
But after three weeks in Heartland, the woman’s health was alleged to have declined dramatically. Staff at the home failed to make sure Dorothy had enough water and that she was eating properly, lawyers said at the trial. On several occasions, Douglas told his mother’s nurse aides that the woman was not getting enough to drink, and asked them to make sure she had water next to her bed at all times. Dorothy also fell twice while at the home, and staff forced her confinement to a wheelchair, according to trial testimony.
By the time she was transferred to the Huntington home, Douglas was unresponsive, she had lost 15 pounds and severe dehydration had driven her to the brink of death, Douglas’ lawyers said.
(The article doesn’t mention it, but I wonder if antidepressants were a factor, too; some nursing homes push patients with mental illness to take excessive doses of antidepressants, making them more susceptible to fall injuries.) Will that verdict survive all the way through to collection? I doubt it. There’s always something that gets in the way of collecting punitive damages; in that case, there’s already an issue about the revenue and profit figures the jury was given.
Punitive damages caps are nothing more than a “solution” looking for a problem — the question is why legislators are so quick to grant special protections to companies found by a jury and a judge to have engaged in “reckless” conduct with “willful and wanton” disregard for the safety of others?