TN lawmakers give negligent nursing homes a break
Walter F. Roche Jr. | The Tennessean
When Dennis Matthews hears lobbyists and nursing home operators in Tennessee talk about the high cost of lawsuits and the need for tort reform, he can only shudder.
Matthews sued Tennessee-based Life Care Centers of America after his mother, Verdie, died from dehydration and malnutrition at one of the chain’s nursing homes in Cleveland, Tenn.
After an 11-day trial, the jury found that the nursing home was negligent and awarded the family $11.5 million, but Bradley County Judge Ginger Buchanan threw out the verdict. She granted the nursing home’s motion for a new trial, saying that the evidence did not support the amount of the jury award. Matthews eventually reached a settlement with the nursing chain for a fraction of the jury award.
“It was horrible. I hate to even think about it,” Matthews said.
A Tennessean review of laws, inspection reports and lawsuits has shown that for people such as Matthews who have lost a loved one in a Tennessee nursing home, things may be about to get worse.
Even as a large segment of the population moves into its later years of life and might require nursing home care, Tennessee is moving toward lighter regulation of nursing homes, fewer state investigations and laws that make it more difficult to bring potentially costly lawsuits against operators.
Many nursing homes in Tennessee also now require patients or their families to sign agreements waiving their rights to a trial before admission.
A measure passed earlier this year by the legislature places strict new limits on the rights of nursing home patients and their families to sue nursing homes for poor care. That law, which caps the amount a jury can award, goes into effect this week.
This comes just a couple of years after the legislature in 2009 vastly reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents. Officials said the change was needed so they could spend their time investigating more serious complaints.
Tennessee has not fared well compared with other states in some key quality measures of nursing homes. And federal officials have said the state has failed in its regulation of such homes. A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.
The new limits on lawsuits could shut down yet another avenue of complaints — the courtroom. Plaintiffs’ lawyers candidly admit that the new caps will keep many nursing home malpractice claims from ever getting to court, in part because lawyers will be less inclined to take the cases.
“By limiting the only damages a nursing home resident has, the new law has made it virtually impossible, in some cases, for attorneys to recover a reasonable amount of money for the victims and their families,” said Nashville attorney Randy Kinnard.
The tort reform bill sets a $750,000 cap on pain and suffering claims against a nursing home. A higher $1 million cap applies to limited types of cases. Caps do not apply if intentional misconduct is found. Nor is there any cap on economic damages, such as doctor and hospital bills or lost wages.
H. Lee Barfield II, an attorney who represents nursing homes and lobbied for the tort reform bill on behalf of Tennesseans for Economic Growth, said that he did not believe the new law would limit access to the court system. But he acknowledged the law would significantly reduce the amount juries can award. In one case he cited, a jury verdict of$34 million would have been limited to $2.55 million if the new law had been in place.
He stressed that support for the new tort law came from a coalition of businesses across the state, not just nursing homes.
Ranked near bottom
Tennessee nursing homes already rank near the bottom nationally in two key areas of care, according to federal data. Without the threat of lawsuits, some attorneys and advocates think, it will sink even lower.
Data compiled by the federal Centers for Medicare & Medicaid Services show Tennessee ranks fourth out of 50 from the bottom in the number of hours per patient per day provided by certified nurse assistants. It ranks seventh from the bottom in registered nurse hours per patient per day, according to the CMS data.
The latest data show Tennessee nursing homes provide an average of 0.62 hours of registered nursing care per patient per day. Assistant Health Commissioner Christy Allen said that was comparable to other states in the region. Neighboring Kentucky provides 0.8 hours, while Florida provides 0.64. The states that provide the most hours are generally lower-population states: Hawaii nursing homes average 1.36 hours, Delaware provides 1.22 hours and Alaska 1.86 hours.
According to state health officials, current law and regulations require licensed nursing personnel to provide only 0.4 hours of direct care per patient each day.
Professor John F. Schnelle of the Vanderbilt Center for Quality Aging said studies have shown that increasing the hours of nursing care provided to patients can improve quality.
But he cautioned, “There has to be a substantial increase in staff levels before you see a significant improvement in quality.”
Several published studies, including a report from the Institute of Medicine and one co-authored by Schnelle, have found links between staffing levels and the quality of care provided in licensed nursing homes.
Tennessee’s regulation of the nursing home industry has come under scrutiny in audits conducted by the U.S. Government Accountability Office.
In the report issued in April, Tennessee failed to achieve passing marks in three areas: prioritizing complaints; performing timely investigations of complaints in cases in which patients were in immediate jeopardy; and performing timely investigations of complaints when a patient had endured actual harm.
In a 2008 report, the GAO cited Tennessee as one of nine states in which serious deficiencies were missed more than a quarter of the time. The auditors found that Tennessee inspectors missed 26.3 percent of the serious deficiencies — those that could cause actual harm or place patients in immediate jeopardy.
A year later, in August 2009, another GAO audit report cited Tennessee as the No. 1 state in which the number of poorly performing homes was understated. While only three Tennessee facilities had been designated as poorly performing and placed in a “special focus” category, GAO estimated the actual number should have been 14.
Currently the federal government categorizes one nursing home in the region, Imperial Gardens Health and Rehabilitation Center in Madison, as a special focus facility. Special focus facilities are subject to closer oversight and more frequent inspections. Homes participating in the Medicare and Medicaid programs are generally inspected at least once every 15 months.
Imperial Gardens Administrator Rene Sharp said the facility has corrected all the deficiencies cited in a state Health Department report issued this year.
Allen, the assistant health commissioner, in an email response to questions about the GAO reports, noted that the federal government, not the state, determines which homes are placed on the special focus list. She also noted that two of the studies were issued two or three years ago and that the department has taken steps to respond.
“The department does pay close attention to GAO reports,” she wrote.
She acknowledged, however, that the department’s nursing inspection team currently has a 31 percent vacancy rate, just as it did at the time of the audits. Twenty-four of the authorized 77 positions are vacant.
Department officials said they have been unable to fill the positions because registered nurses are in high demand and private-sector jobs pay higher.
Allen said the department has worked through the 2,850 backlogged cases noted in the GAO review and has only 12 left. In the meantime, however, the agency has built an additional backlog of 292 open complaints.
“We made a huge push to reduce the backlog of investigations with the staff we have, but it is unrealistic to expect employees to continue to perform at that level indefinitely. We need more staff to share the workload on an ongoing basis,” Allen wrote.
Early this year, the Tennessee Supreme Court in a 12-page decision delivered a virtually complete victory to the family of a 57-year-old woman who died after a four-month stay at a Chattanooga nursing home.
The suit charged that Martha French, who had suffered a debilitating stroke, developed pressure sores or ulcers that, because of poor care, became infected, leading to her death from sepsis.
The decision reversed most of an unfavorable appeals court decision and concluded that French’s family could pursue medical malpractice and negligence claims against Stratford House, a 127-bed nursing home. That meant that all of the family’s claims would not be placed under the strict requirements of the state medical malpractice law.
In addition, the court ruled that the family could pursue negligence claims based on violations of state and federal regulations and under the state Adult Protection Act.
But even as lawyers assessed the victory, a move was afoot to undo it.
Despite protests from some legislators and advocates for the eldery, the nursing home provisions in the tort reform bill included a key provision that brings all claims against nursing homes under the strict limits of the medical malpractice law, eliminating separate claims for negligence and requiring plaintiffs to provide certification that the care provided did not meet local standards. Punitive damages also are limited to $500,000 or two times the pain and suffering claims. Claims under a protection from abuse also will be blocked.
Lawyers who regularly take nursing home negligence and malpractice cases say the new law completely reverses the French decision.
“I think it is going to effectively weaken protection for vulnerable adults. There will be much less accountability,” said James B. McHugh, a Mississippi attorney who has tried nursing home cases in Tennessee.
Mark Geller, a Memphis lawyer, said the law, by putting a cap on possible claims, will allow nursing home operators to calculate in advance how little care they can provide.
“A person’s life is worth $750,000. That’s it.”
Barfield said the nursing home industry in Tennessee was facing a financial crisis under the old system and changes were necessary.
“What this does is provide predictability so the companies can plan,” he said.
He said it remains to be seen whether the new law will negate the court ruling.
“We’ll see. The jury is still out,” Barfield said.
PACs gave to governor, sponsors of 2009 bill
D. Gerald Coggin, vice president of Murfreesboro-based National Healthcare Corp., one of the largest nursing home chains in the country, said it’s too early to predict what savings may result from the new law. He noted that nursing homes are already facing cutbacks in payments under the Medicare program.
One of NHC’s homes, AdamsPlace in Murfreesboro, achieved the top five-star ranking from CMS. The home gained the top score in three of four categories, including inspections and overall quality of care.
State campaign finance records show that Gov. Bill Haslam and key legislators got substantial contributions for their election campaigns from nursing home owners and affiliated political action committees.
Haslam’s committee collected more than $28,000 from the state nursing home association PAC, formed by National Healthcare Corp. and owners and officials of nursing homes. Sen. Bill Ketron’s campaign committee collected nearly $10,000, while Speaker Beth Harwell’s committee took in $11,000.
In 2009, Tennessee nursing home owners benefited from another act of the General Assembly. A measure backed by then-Gov. Phil Bredesen’s administration stripped from the law books pages of reporting requirements on adverse events and other problems in the state’s more than 300 licensed nursing homes.
The sponsors of the bill were all the recipients of campaign contributions from nursing home political action committees.
An aide to state Sen. James F. Kyle Jr., a Memphis Democrat and the Senate sponsor, said the law had to be changed because the state Health Department could not keep up with the law’s requirements.
“They had a big backlog, and this was a way to streamline things,” he said.
Allen confirmed that the department requested the change.
Kyle’s campaign committee collected $4,500 from nursing home PACs over the past three years. House sponsor Rep. Mike Turner collected $4,500 from nursing home PACs, while co-sponsor David Shepard brought in $3,000 from the nursing home interest for his campaign.
The Health Department spokeswoman said the change in reporting requirements enacted in 2009 enabled the agency to focus on more serious complaints and respond more quickly.
For Dennis Matthews, who saw an $11.5 million jury award literally disappear, the experience has left him with a bitter taste.
“I will never ever have faith in the judicial system again,” he said. He said his mother was supposed to be in the home for only 30 days’ rehabilitation. “She got no food or water. That was proven.”
Lawyers for the nursing home denied the charges.