Damage Caps on Medical Negligence Is Not the Answer

The health care reform has now been turned by the Republican party away from real reform in the health care arena to an effort to keep consumers from being treated fairly in the courtroom. They have presented a bill that will limit damages to persons injured or killed as the result of medical malpractice.

The proposal includes nursing home resident who are abused or neglected. Most people do not think of nursing home cases as being medical malpractice.

In Alabama, the Medical Liability Act includes nursing homes in its definition of medical providers whose negligence is covered under the Act. That act has for about 20 years directed how we on behalf of nursing home residents present our cases. Most states do not have the same restrictions. For example, we cannot even tell the jury about the other acts of similar abuse or neglect that the nursing home has done to other residents even if they have been cited by the State for that same kind of abuse.

Most of my practice over the past 23 years of my 35 year career has been representing nursing home residents. I began thinking of how I would tell clients and/or their families that nursing home neglect and abuse was included in the medical negligence bill proposed. How do I explain that injuries to the elderly, vulnerable members of our society are limited? Here are people who cannot protect themselves, who rely on nursing homes for their safety and well being, and to provide a quality of life that Congress knows what the limit of those injuries are? I thought of all the cases that I have handled involving injuries in nursing homes. The following are actual examples of victims of nursing home neglect and abuse that under the standard proposed by the Republicans would be limited in any award against the nursing home that caused the injuries or death the award.

Mr. A. who went in a nursing home for a 21 days rehabilitation after hip surgery and developed a pressure sore so big on his leg that the leg had to be amputated- personal injury case.

Mr. A. who had a grapefruit sized vaginal malignant tumor that the nursing home never knew about- death case.

Mrs. B who was overdosed with psychotropic medications to keep her quiet and while trying to escape the torture fell in a bush and lost an eye. After this incident she was moved to a nursing home that properly cared for and weaned her off the psychotropic medications. She was discharged and the last I heard was playing the slot machines in Biloxi. Personal injury case.

Mr. C., a smoker, who was strapped in a wheelchair and unwatched burned to death when a lighter caught his clothing on fire.

Mr. D., an Alzheimer patient in a ‘special unit’ who despite no other physical diseases developed multiple state 4 pressure sores, contractures and severe weight loss – death case.

Mr. E. who was beaten to death by another nursing home resident who had previously beaten other resident. No precaution was taken to protect any of these residents.

Mr. F. who was demented and known to have a desire to leave the facility and fell from an open window. Death case.

These are the type of injuries and damages the Republican proposal will cap or limit. The various studies of the true effect that medical negligence lawsuits have on the cost of medical care do not support limiting damages to our elderly, vulnerable nursing home residents. They should be fairly compensated.