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Rep. Lundberg crafting new legislation on nursing home lawsuits

Published November 15th, 2009 | 2 Comments

Tennessee state Rep. Jon Lundberg said he’s exploring new legislation that would give 90 percent of a nursing home lawsuit damage award to patients and families winning the suit.

“(The legislation) would not pad legal fees,” Lundberg said of the idea.

Lundberg, R-Bristol, made those statements amid news media outlet visits made by representatives with Tennessee’s trial lawyers and two patient advocate groups.

Those representatives said they can’t live with caps on nursing home lawsuit damage awards.

“What has demonstrably increased the quality of patient care and lowered claims is increased staffing and more training,” Tennessee Association of Justice (TAJ) President Wayne A. Ritchie II said during a meeting held at the Times-News to discuss the legislative future of nursing home litigation. “(Lawsuit) caps have been known not to have any significant long-term impact on quality of care or cost or rates. It’s a protectionist measure that has nothing to do with quality of care.”

Lundberg, however, claimed care and staffing levels haven’t gone up because nursing homes have been paying about $5,000 per bed in liability costs.

Ritchie countered by saying Lundberg’s idea to give families, not lawyers, 90 percent of lawsuit winnings would “unfairly limit” the family’s choice of legal counsel.

“Families of abused nursing home residents are usually unable to hire attorneys who charge by the hour like nursing homes do,” Ritchie, a Knoxville attorney, said in a follow-up e-mail. “Medical cases can take several years and well over $100,000 in expert expenses and law office overhead to prosecute through trial (sometimes well over $300,000, depending on the case). That’s why courts allow families to retain counsel on a contingency basis, where families may pay their attorneys a percentage based on the circumstances of each case, which is typically one-third, but may be adjusted based on when and how a case ultimately resolves.”

Lundberg’s old bill to limit those nursing home lawsuit damage awards failed to advance in a House Judiciary subcommittee earlier this year.

The bill stayed with the subcommittee following a 3-3 party line vote and after much testimony from its main opponents, including AARP Tennessee and TAJ’s trial lawyers.

His failed bill would have capped non-economic damages in nursing home lawsuits at $300,000 and punitive damages up to $1.5 million if the facility’s daily staffing level was two hours per patient.

The unsuccessful bill also called for patients’ families to rate patient care in a survey process and sought to create a nursing home work force development trust fund out of punitive damage awards.

Still, one Democratic lawmaker had dubbed Lundberg’s legislation as the “Kill Old People Cheap Act.”

Tennessee’s long-term care system is under increased scrutiny, as 78 percent of all health care facilities complaints involved nursing homes in 2008, according to a Tennessee Department of Health report.

About 30 nursing homes were cited in 2008 with “immediate jeopardy substandard level of care,” a 20 percent decrease from 2007, the report said. Federal requirements define “immediate jeopardy” as a situation “likely to cause serious injury, harm, impairment or death to a resident.”

The report also noted Tennessee’s nursing homes have been participating in quality initiatives to reduce high-risk ulcers and the use of daily physical restraints, and improve pain management.

But of the state’s more than 300 licensed nursing homes, less than 7 percent got a top rating from the Centers for Medicaid and Medicare Services, AARP said.

“In addition, Tennessee (nursing homes) have performed far below the national average in accurately detecting serious violations of quality standards, which may lead residents to turn to litigation to resolve problems,” said a study cited by AARP. “Tennessee nursing homes also performed poorly in incidence of pressure ulcers and physical restraint use, two of the most common allegations in nursing home lawsuits.”

To improve conditions, TAJ’s Ritchie pointed to a Florida nursing home law that outlines a tiered approach to punitive damages if the plaintiff could show the nursing home’s conduct was motivated by financial gain or intent to harm.

Tom Peters, executive director of watchdog group Tennessee Citizen Action, insisted an accountability measure needs to be in place.

“Any family who is dealing with a loved one and had any type of mistreatment ... any legislation that would make it more difficult to hold people accountable ... the legislation should be sensitive to that,” Peters said.

TAJ also mentioned the lobbying effort made on legislators by National Healthcare Corp. (NHC), one of the state’s biggest nursing home operators. NHC employed or contracted with 10 lobbyists this year, according to the Tennessee Ethics Commission.

Finally, Lundberg said he had no intention of reintroducing his old bill in 2010.

“I don’t think there’s anything that can be changed in that bill to make it palatable,” he said. “Reintroducing it in its present form will result in the same decision, which is a 3-3 vote. ... The definition of insanity is doing the same thing and expecting a different result.

“I was also surprised (Ritchie and the other advocates) didn’t have the courtesy of calling me and saying ‘What are your intentions?’ I would have appreciated that.”

Doing nothing, Lundberg added, is not an option to improve Tennessee’s nursing home system.

“We all have general agreement that nursing homes across the state need to be able to hire more staff, need to be able to raise their pay scales and pay folks,” he said. “If we don’t change anything, the quality of care is not going to improve. When I introduced that (old) bill ... we were one of only 16 states that did not have some kind of a (lawsuit) cap. Today, we are one of only 10. Forty other states have figured out ways to raise care and put money back toward patients, and that is to cap fees going to attorneys.”

For more about Lundberg’s old bill go to www.capitol.tn.gov. The bill’s number is HB 2243.

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Why would he want to cap attorneys' compensation to 90%? Especially since cases taken on contingency are the lawyer's expense until there is an actual award paid? Would it be because Republicans believe that lawyers are one of the big contributors to the Democratic party, and this would effectively lower those contributions? And...who would profit from this legislation? The nursing home companies like NHC? And how does fit in with Tennessee's Medical Liability Reform which was signed into law in 2008, capping non-monetary damages at $250,000?
What about the people who have been left languish, and in worst cases, such as in Bristol molested? Shouldn't they have recourse?

Mary Acito | 11/16/2009 - 7:21 PM - ( Comment

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This is now,old news & will not be read by anyone,so commenting will be useless.But,let me add that Tn has the 3rd worse nursing homes in the nation,& every one,but two of NE Tn's homes are understaffed.Lastly,we're still treating a loved one for pressure sores,6 months after she left a local nursing home.

Otis Vicars | 11/16/2009 - 6:30 PM - ( Comment

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