We’ve all heard the late-night television commercials of the 1990s and 2000s: “Have you or a loved one been diagnosed with mesothelioma or other asbestos-related diseases? If so you may be entitled to compensation.” While those commercials may air less frequently today, they’ve been replaced by plaintiff firms nationwide encouraging the pursuit of elder abuse and neglect claims, promising substantial compensation in return.
Moreover, the increased awareness of elder abuse correlates with a steady rise in litigation against long-term care (LTC) providers. In a study of 1,465 homes in 48 states, there were 4,716 claims filed between 1998 and 2006.1 This is an average of one claim every two years per home, with 61 percent resulting in payment.1 One hundred percent of these claims (as all claims do) would have created some level of cost in the reporting, handling or defense of the claim—not to mention the distraction from daily operations and care of residents.
But the reasons for the rise in litigation go much deeper than late-night television ploys. Rather, this plaintiff-friendly environment is an amalgam of several factors. For starters, the Baby Boomer generation, which is 78 million strong and reflective of those born between 1946 and 1964, is already making unsustainable demands on federal entitlement programs Medicare and Medicaid. The former has led to a rise in potential plaintiffs seeking creative measures to improve their financial standing through baseless lawsuits. And as the commercials illustrate, it’s not just exploitative plaintiffs that are fueling the rise, but also a hungry plaintiffs’ bar that is now aggressively encouraging such lawsuits. Take those factors and consider the thousands of nonprofit LTC providers that cannot afford the media scrutiny of a high-profile trial and are thus apt to move to a quick settlement that lacks any strategic decision, and there’s a perfect storm for exploitation in the industry.
FAVORABLE CLIMATE CREATES PERFECT STORM
But the aforementioned factors still beg the question, “Why now?” Historically, there has not been a great deal of interest in representing elders in abuse-related claims due to plaintiffs’ attorneys’ focus on other types of personal injury cases such as asbestos exposure and medical device claims.
Lawyers prosecuting health professional liability actions traditionally sued doctors and hospitals, but tort reform and improved risk management measures lowered suits against hospitals/doctors, leading to an increased focus on LTC facilities such as nursing homes and continuing care retirement communities (CCRCs). At the same time that tort reform diminishes typical breadwinner cases, the following factors add to the allure of LTC litigation:
- From 1998 to 2001, traditional medical malpractice payments (against doctors, hospitals, etc.) increased by 46 percent; however, there has been a steady decline since 2003 and in 2012, total payments were 3.4 percent lower than 2011.2
- The population of those aged 65 and older is 40.3 million—up 13 percent from 2000.3
- In 2005, the LTC market’s value stood at $186 billion and grew to $258 billion in 2010, and growth will continue at annual rates of over 6 percent, resulting in a market with revenues of $353.5 billion in 2015.4
- LTC facilities are often viewed by plaintiff firms as “easy wins” due to the lack of supervision amongst those filing the lawsuits (home care cases, sexual abuse cases, lack of staffing).
- Punitive damages remain uncapped in many states, including Pennsylvania, where the elder population is more than 15 percent.
Furthermore, recent Pennsylvania cases have only added to the plaintiff-friendly environment challenging the LTC industry, for example, Scampone v. Highland Park Care Center, in which the Pennsylvania Supreme Court held that a nursing home may be held directly liable under a theory of corporate negligence.
PREVENTION STILL THE BEST MEDICINE
With a pervasive plaintiff-friendly legal environment, it’s more important than ever for today’s LTC facilities to adopt preventative practices. Properly trained caregivers and administrative staff will always be the most effective way to ensure healthy patients, but it’s not enough to assume staff is sufficiently trained. Rather, it is mission critical that facilities host frequent mandatory education sessions that address the common oversights driving the majority of lawsuit claims:
- Safe patient handling
- Proper supervision of immobile patients (proper feeding, cleaning, pressure ulcer prevention)
- Warning signs related to patient abuse/sexual abuse
- Correctly identifying which level of care a patient requires
- Exactly following the Individual Care Plan and directions of the Medical Director
- Coordination between the Medical Director, a resident’s personal physician and nursing staff
PROTECT CAREGIVER HOURS
In addition to a well-informed staff, honestly evaluate the ratio of caregiver hours to patients. Does the facility have adequate staffing to handle the patient workload and the level of care the patient population requires? While the Assisted Living Federation of America (ALFA) leaves the issue of staffing flexible so each individual facility may decide what is best for their residents, this only puts greater accountability back on the facility operator.