There’s a song in the rock musical Hair called "Easy to Be Hard," and it goes like this:
How can people be so heartless
How can people be so cruel
Easy to be hard
Easy to be cold
These lyrics have been running around my head since reading the two-part series from the nonprofit Wisconsin Center for Investigative Journalism about the impact of Wisconsin’s new nursing home “tort reform” law. And when I say “impact,” I’m specifically talking about current and future nursing home residents who are abused and neglected. (Pay close attention, Baby Boomers.)
Here is the series’ summary:
Families’ abilities to hold potentially negligent nursing facilities accountable have been diminished by a recent change in state law that bars records of abuse and neglect from use in the courts, the Wisconsin Center for Investigative Journalism has found. The Center’s investigation also shows that some long-term care facilities are failing to report deaths and injuries, as required by law.
Not that we’re surprised. Under the leadership Governor Scott Walker and with the express assistance of that nasty gang-‘o-corporations, the American Legislative Exchange Council, the nursing home industry authored a bunch of provisions to make it difficult or impossible for families to sue on behalf of their abused or neglected (i.e., dead or injured) relative. For one, these laws make it virtually impossible for grossly negligent facilities to ever be liable for punitive damages. For another - and the focus of the series- these laws prohibit families in these tragic situations from using any state investigation records as evidence in their lawsuit. In the words of Milwaukee personal injury attorney Ann Jacobs, “When you’ve got these records that are part of the regulatory process, the idea that you wouldn’t be able to introduce them to the jury is just insane. Why would we hold that information back?” Indeed.
In one case profiled by the series, records of a four-month period of neglect that led to a bone-deep, E-coli infected bed sore on the backside of a 32-year-old brain-damaged and physically-disabled resident (he required horribly painful surgery and months on his stomach), could not be used in the family’s lawsuit.
The impact of this law extends beyond the families who do sue:
Several attorneys said they have turned down meritorious cases because the new law makes it harder and more costly to sue nursing homes and other health care facilities.
“Even before this legislation, these were very difficult, expensive, time-consuming cases,” said Jason Studinski, a Stevens Point attorney who specializes in elder abuse lawsuits. “Frankly, once a victim knows what hurdles are in their path, some choose to go away, even if they have a legitimate claim.” …
And don’t think patient safety won’t suffer. As Dane County Circuit Judge William Hanrahan, who prosecuted crimes against the elderly for 19 years as a district attorney and assistant attorney general, put it:
“It’s very important that attorneys are able to take these cases and hold those who neglect and abuse the elderly accountable. Some of the biggest changes come as a result of legal action.”
Heartless, cruel, hard, cold. Mustn't forget dumb.