Russ McDaid 2017-04-05 01:00:15
Since 2011, nursing homes across Pennsylvania have been attacked in more than 150 full-page newspaper advertisements, all purchased by predatory, out-of-state law firms. With each frivolous case being settled, rather than going to court, the ad buys increase. In 2016 alone, 37 full-page advertisements appeared, attacking 62 nursing homes throughout the Commonwealth. These ads target families of loved ones in nursing facilities with misleading statements, and prey on caregivers who go above and beyond their job descriptions daily. Liability costs have sky-rocketed for Pennsylvania’s nursing homes due to these advertisements, but these increases do not correspond to the quality of care being provided to Pennsylvania’s seniors. The increase in liability costs are a direct result of Pennsylvania’s current tort climate, which leaves nursing homes exposed and vulnerable to frivolous lawsuits and predatory, out-of-state law firms. But it doesn’t have to be this way. Since 2002, Pennsylvania’s physicians have been protected from frivolous lawsuits by the MCARE Act, which (among other things) limited punitive damage awards in a trial to twice the amount of compensatory damages. Because nursing homes and other long-term care facilities do not enjoy the same protections, they are left vulnerable to frivolous lawsuits and baseless claims. In a state where the Medicaid program currently pays nursing homes approximately $25 per day per resident less than the actual cost of Care, the costs to defend and settle frivolous cases compounds the problem of inadequate resources to provide care. According to a recent actuarial analysis on liability costs, the liability cost per Medicaid day in Pennsylvania is $5.39. Given that Medicaid paid for about 19.35 million days of care in 2015, Pennsylvania’s Medicaid program spent more than $104 million on liability-related costs, much of this in contingency fees to out-of-state lawyers. Every nursing home administrator I speak with expresses the same frustration; the time, resources and money being spent on these cases could be going to resident care instead. They tell me that better wages and benefits for staff, or improvements to their buildings, or even equipment and activities for residents have been shelved due to the price tag for defending frivolous lawsuits. And it’s not just the administrators who are affected. Pennsylvania’s nursing homes employ roughly 193,000 people. These jobs are emotionally and physically demanding, and the staff strives to provide the same compassion, patience and care their residents would have received at home. Ads in local newspapers attacking these facilities is a personal attack on the quality of work and care these individuals provide daily. While punitive damage awards are infrequent in Pennsylvania, they are routinely asked for today in civil lawsuits. The difficulty of predicting Whether punitive damages will be awarded by a jury have seriously distorted settlement and litigation processes. Nursing homes are settling cases simply to eliminate any long-term financial risk. But there is hope in the state legislature. State Representative Warren Kampf, R-Chester, has introduced legislation that would amend the MCARE Act to extend caps on punitive damages to long-term care facilities, including skilled nursing facilities, assisted living residences and personal care homes. These facilities would be protected from out-of-state predatory lawyers in the identical way that physicians have been for 15 years in Pennsylvania. “Enacting these limits for long-term care providers will help reduce frivolous litigation and shift some resources back where they belong: to patient care,” Rep. Kampf says. This bill would not alter the definition of punitive damages for doctors in the MCARE law, nor would it limit a person’s right to sue. And it has no effect on the compensatory damages individuals would be entitled to if a court finds a long-term care provider to be at fault. The Pennsylvania Health Care Association applauds Rep. Kampf for identifying and working to close this loophole being exploited by predatory lawyers at the expense of those who serve and care for our most vulnerable population. On behalf of long-term care facilities, their employees and the residents they serve, we strongly support caps on punitive damages. As members of the Pennsylvania Coalition for Civil Justice Reform (www.paforciviljusticereform.org), PHCA is proud to stand beside the PA Chamber of Business and Industry and other health care and business leaders across Pennsylvania in the fight to reform the tort climate in Pennsylvania. Reforms to Pennsylvania’s tort climate, including caps on punitive damages, are essential to protect Pennsylvania’s businesses and taxpayers, including long-term care facilities and their residents. ■ Russ McDaid is the president & CEO of the Pennsylvania Health Care Association.
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