Earlier this week The Boston Globe reported on the very sad case of 77-year-old Jean Dwyer. Mrs. Dwyer seemed distressed as she lay in her bed at a Norwell, MA nursing home last fall, but she could not explain to her grown daughter what was wrong due to her dementia. Her daughter attended her bedside daily for a couple of weeks, and was ultimately told that her mother’s organs were shutting down and that she was near death.
It wasn’t until the nursing home sent Dwyer to a wound clinic at a local hospital on Oct. 19 that her daughter discovered the true source of her mother’s agony. The poor woman had a gaping wound on her ankle that left her bone and ligaments exposed. Dwyer’s organs were not shutting down, but a raging infection from the sore had spread into her bloodstream and her right leg had to be amputated to save her life. She is now living comfortably in a new nursing home and has progressed to the use of a wheelchair.
As a result of poor care and weak enforcement of public laws regulating long-term care facilities, Mrs. Dwyer and others like her — residents and their families — turn to the civil justice system as a last resort. Most lawsuits against long-term care facilities are brought for multiple, serious omissions of care that cause life-threatening pressure sores, permanently contracted muscles, infections, broken bones, malnutrition, or dehydration.
The reasons are complex, but the overwhelming reason for negligent care is a chronic lack of well-trained and well-supervised nursing staff to provide necessary care. A 2001 federal study, based on research by leading experts in long-term care, documented that more than half of all nursing homes do not employ enough nursing staff to avoid harm to residents, and more than nine out of ten do not employ enough nurses and nursing assistants to provide good care. Ninety percent of care in nursing homes is given by nurse aides who struggle to do their jobs with little training, low pay, few benefits, minimal professional supervision, and limited resources. In 2002, annual turnover rates among nursing assistants exceeded 80 percent in 19 states, and exceeded 100 percent in 10 states. A 2005 analysis of nursing home staffing data shows that the proportion of care provided by registered nurses is declining in spite of increases in Medicare funding earmarked for nursing. Furthermore, the U.S. Department of Health and Human Services’ Office of Inspector General found that only 38 percent of medical directors visit their nursing homes more than once a week.
In 2004, long-term care ombudsmen investigated nearly 20,000 complaints against nursing homes related to abuse, gross neglect, and exploitation, and over 87,000 complaints about resident care. Also in 2004, regulatory agencies cited 26.2 percent of nursing homes nationwide for violations related to quality of care. Many of the facilities where neglect and abuse occur are repeat poor performers with long histories of serious, identified problems that state regulators have allowed to continue year after year. In fact, the U.S. Government Accountability Office’s chief healthcare investigator told the Senate Finance Committee in 2003 that more than 300,000 elderly and disabled residents lived in chronically deficient nursing homes where they were “at risk of harm due to woefully deficient care.” He said residents suffered serious harm or died “when physicians’ orders were ignored, when residents were allowed to deteriorate due to malnutrition or dehydration without any intervention, or because bedsores went undiagnosed or . . . were not treated properly.”
Despite the widespread evidence of neglect and abuse in nursing homes, residents and their loved ones often have little recourse when serious harm, injury, or even death results. Government studies show that state regulatory agencies also suffer from understaffing and have high turnover rates among their surveyors, creating a shortage of experienced investigators. According to the Government Accountability Office (GAO) and the Office of Inspector General, state survey agencies frequently fail to cite facilities for harming residents, even when they find serious injuries; and when facilities are cited for deficiencies, fines often fail to reflect the seriousness of the violations.
More than 2.5 million American elders and disabled adults live in nursing homes, assisted living facilities, and other board and care settings because they require around-the-clock nursing care and/or assistance. Some of these vulnerable adults suffer from neglect and abuse that can only be described as horrific. For them, and for their families, courts are the last resort and civil lawsuits are pleas for those responsible and our society to recognize their plight and keep others from suffering needlessly.
In civil suits, the only way the court can compensate victims for injuries is by providing financial compensation for damages. Most civil cases involving persons who are in the workforce seek economic damages—reimbursement for out-of-pocket expenses like medical bills and lost wages or future earning potential. Non-economic damages are sometimes referred to as awards for “pain and suffering.” Unlike reimbursement for economic damages, non-economic damages are the only compensation a jury can award for the injury or wrongful death itself. Since economic damages are rarely an option for long-term care residents because they do not have an earned income or earnings potential, non-economic damages are the only remedy available to compensate for painful injuries, permanent loss of limbs, loss of ability to function, and death.
A Harvard University researcher estimated in testimony before the Senate Special Committee on Aging in 2004 that 80 percent of all compensation in nursing home lawsuits is for non-economic damages. He testified that caps on non-economic damages would block the ability of injured residents and their families to hold nursing homes
accountable for their negligence. Unfortunately, medical malpractice bills that have been introduced by federal lawmakers and enacted into law by some state legislatures include such caps. The caps would limit non-economic damages to $250,000 in health care lawsuits, including those against nursing homes and assisted living facilities, while allowing unlimited economic damages for the able-bodied. The effective result of this is that it would become financially impossible for attorneys to bring cases for victims who do not have economic damages. The costs of bringing a case to trial — the costs incurred in discovery, obtaining the testimony of expert witnesses, depositions, and research — can easily reach into the tens or even hundreds of thousands of dollars. When the cost of bringing a case approaches the maximum compensation a jury can provide under an artificial and arbitrary cap, legitimate cases will be locked out of the courtroom. In contrast, a jury would have no limit on the amount it could award a corporate executive who brought a tort case for loss of income. Limiting non-economic damages devalues the lives of older Americans and increases vulnerability to abuse and neglect of every citizen in his or her final years.
In addition to making it almost impossible for residents to bring lawsuits against nursing homes or assisted living facilities, the limit on damages would remove the deterrent effect that monetary penalties have had on facility behavior, especially on facilities that are owned by multi-million dollar corporations. Indeed, the president of a health care insurer in Colorado says lawsuits are having a positive effect. He told an insurance trade journal that the nursing home industry is “correcting itself,” conducting more background checks on workers and improving nurse staffing because more insurance carriers “will not take on the risk unless staffing ratios meet certain targets.”