ThePopTort

Senior Citizen Dangers and Other Tribulations

There’s a line in the indie movie, The Savages, where siblings John and Wendy Savage (that would be Philip Seymour Hoffman and Laura Linney) are discussing the nursing home where they just had to put their dad.  John says about the place, “The landscaping, the neighborhoods of care; they're not for the residents, they're for the relatives. People like you and me who don't want to admit to what's really going on here.… it's a f*%#ing horror show!” 

If any of your close relatives have had the pleasure of living in a long term care facility of late, you know what he means.  Not gonna get into my own personal story, but I do at least want to tell you about an important Pro Publica/PBS "Frontline" investigative article entitled “Gone Without a Case: Suspicious Elder Deaths Rarely Investigated," to be followed by a PBS "Frontline" show that will air this Spring.

If you ever had any doubt why nursing homes should be on the hook for abuse and neglect and why lawsuits are so critical in the situations - sometimes the only way a family can learn about why someone is hurt or dies - this should remove all doubt. 

Writes Pro Publica,

ProPublica and PBS "Frontline" have identified more than three-dozen cases in which the alleged neglect, abuse or even murder of seniors eluded authorities. But for the intervention of whistleblowers, concerned relatives and others, the truth about these deaths might never have come to light. …

When investigators in one jurisdiction comprehensively reviewed deaths of older people, they discovered scores of cases in which elders suffered mistreatment. An array of systemic flaws has led to case after case being overlooked.

For example,

When treating physicians report that a death is natural, coroners and medical examiners almost never investigate. But doctors often get it wrong. In one 2008 study, nearly half the doctors surveyed failed to identify the correct cause of death for an elderly patient with a brain injury caused by a fall.…

"I've had instances where the physician just doesn't understand the importance of what they're writing down," said Anderson, who trains doctors in how to certify deaths. "I'm appalled when I hear that."

And just to make sure this story hits home, they note, “With the graying of the baby boom generation, such concerns will only grow in urgency. Within a few years, nearly one-third of all Americans will be over 60. …'We're where child abuse was 30 years ago,' said Dr. Kathryn Locatell, a geriatrician who specializes in diagnosing elder abuse. 'I think it's ageism -- I think it boils down to that one word. We don't value old people. We don't want to think about ourselves getting old.'”  Yikes, that can't be good since last I heard getting old wasn't an option.

On top of that, we learned today about hospice companies trying to milk Medicare by "enroll[ing] people into hospice who weren’t dying and resist[ing] discharging them despite evidence they weren’t deteriorating.”  This is according to a whistleblower lawsuit covered by Kaiser Health News, which writes,

The suits against AseraCare, a Fort Smith, Ark.-based hospice company operating in 19 states, follow several other suits against big hospice companies but go further in their allegations that the company coordinated its use of nursing care and hospice care to maximize Medicare reimbursements.

The company is owned by Golden Living, a national company that provides skilled nursing services and other services as well as hospice. The whistleblowers contend that AseraCare first recruited patients eligible for skilled nursing care –also provided by Golden Living— for 20 days, for which Medicare pays the entire bill. After 20 days, when Medicare requires patients pick up a part of the tab, AseraCare had the nursing homes send the patients to hospice, according to the lawsuit. In hospice, AseraCare would collect a flat payment from Medicare for each day they are enrolled.

Growing old with dignity – it shouldn’t be optional.  Learn more from The National Consumer Voice for Quality Long Term Care, a great organization looking out for all of us.

The Constitution of Arkansas, 1; Corporate Wrongdoers, 0

Article 5, Section 32 of the Arkansas Constitution prohibits the legislature from “limiting the amount that can be recovered for injuries resulting in death or for injuries to persons or property.”  Now, if I were a “founding father” of the State of Arkansas and you asked me if that provision meant that the legislature could go ahead and cap “the amount that can be recovered for injuries resulting in death or for injuries to persons or property,” I’m pretty sure I would have said “no.”  I mean, it could hardly be more clear. 

But of course, the founding fathers of Arkansas are long gone and instead we have corporate special interests with which to contend, whose answer to this question would most likely be “Constitution?  What, that old thing?”  So in 2003, these special interests got the State of Arkansas to cap punitive damages, specifically to whichever is more: $250,000 or three times compensatory damages not to exceed $1,000,000.  So basically, it’s a slap on the wrist to any billion dollar company that comes in and recklessly does enormous damage to the people of Arkansas.

I bet the German conglomerate Bayer thought they were all set when they came into Arkansas, contaminated the state food supply and hurt crop prices by introducing a strain of genetically altered rice seeds.  Or more specifically,

Bayer developed an experimental strain of rice called LibertyLink to withstand its Liberty herbicide. Federal regulators had not yet approved it for human consumption when trace amounts were found mixed with conventional rice seed in storage bins in Arkansas and Missouri. No human health problems have been associated with the contamination, but that wasn't known at the time. The fear that the rice was unsafe, along with the notion that genetically altered rice was somehow impure, quashed sales in major markets. Rice futures plummeted by $150 million immediately after the contamination announcement. European nations quit accepting shipments of rice from the U.S. that hadn't been extensively tested to show they weren't contaminated. Japan banned all American rice.

So an Arkansas jury hit Bayer with a $42 million punitive damages award, along with $5.9 in actual damages, which was the least it could do yet higher than the cap.  And in a unanimous decision today, the Arkansas Supreme Court struck down the cap as unconstitutional, just as many other states have done.

You can learn more about punitive damages - extremely rare yet vitally important - here.

Arkansas Supremes Strike Down “Tort Reform”

We could go on and on about how destructive, oppressive, and cruel it is to take away the legal rights of injured people, and goodness knows, we have.  But such measures are also unconstitutional – at least according to many many state courts.

It’s against that backdrop that yesterday the Arkansas Supreme Court struck down two provisions in the state’s 2003 “tort reform” law.

Without venturing too far into the legal weeds, the court struck down one provision, which allowed wrongdoers who are sued to point the finger at others who aren’t named in the suit (i.e., the “don’t look at me, it was some other guy who isn’t here,” defense).  The court also disallowed a provision, which limited the kinds of evidence a court could hear, as constitutionally, those decisions are for a judge to decide—not a legislature.

Anyway, hooray for Arkansas Supreme Court’s ruling(!).

In the News...

A great editorial in the NY Times about excessive amounts of money being spent by special interests on judicial elections and its impact on the justice system. (NY Times)

Just do it! Virginia ponders raising the draconian limit on the amount of compensation injured victims and their families can receive (the limit has not been changed for 15 years). While you are at it VA, you could just eliminate the unfair cap all-together. (Washington Post)

Preemption in Arkansas.  An ongoing case involving a man who claimed he suffered ear damage after he used a hearing device was dismissed on the grounds that the federal law preempted state law in regards to medical devices. (The Morning News)

Sneaking it in there.  In an 11th hour magician-like swap a bad piece of tort "reform" legislation passed Oklahoma's State Judiciary Committee.  Less than 24 hours before the vote, the bill's original language disappeared and in its place appeared 130 pages of tort deform, rights-limiting jargon. (The Journal Record)