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Preserving Access to Civil Justice for Long-Term Care

In the legal system, a tort is defined as a civil wrong against an individual or a violation of an individual’s rights for which some kind of compensation – or damages - may be obtained. In nursing home cases, the most common damages are noneconomic damages and punitive damages. Noneconomic damages are to compensate for pain and suffering, while punitive damages are designed to punish the person or entity that committed the wrong and stop further harm from occurring. 

News and Updates


(Mar. 1, 2017) The House of Representatives is considering legislation, H.R. 1215, which will significantly strip away an individual’s rights to justice through the courts in the event they are harmed or killed by a health care provider, including nursing homes, assisted living facilities, rehabilitation facilities, doctors, hospitals, pharmaceutical companies, and more.

Click here for an issue brief on how H.R. 1215 harms consumers.

H.R. 1215:

  • Caps non-economic damages (such as paralysis or trauma) to $250,000, which would be mandated in states even where such caps are unconstitutional.
  • Mandates a Statute of Limitations – the amount of time a person has to file a lawsuit – that is more restrictive than most state laws.
  • Prohibits patients from receiving the full award from a jury in a lump sum, instead allowing damages over $50,000 to be paid periodically, leaving patients vulnerable and without the necessary resources to access care.
  • Repeals state joint liability for economic and non-economic damages – taking away an individual’s ability to bring one lawsuit again each of the entities responsible for their injuries and having the fault apportioned among them. The result is that taxpayer-funded programs will end up paying for the patient’s ongoing care needs, rather than the entity that caused the injuries.
  • Interferes with an individual’s right to contract with their own attorneys, yet no similar limits are placed on the entity that committed the harm.
  • Provides immunity to any health care provider licensed to prescribe or dispense a prescription drug, even if it were negligently prescribed or administered.

This bill eliminates rights and protections from individuals who have been seriously injured or killed, while protecting nursing homes, assisted living facilities, hospitals, doctors, insurance companies, pharmaceutical companies, and other health care providers.   

Take Action!


(Mar. 1, 2017) Urge your Member(s) of Congress to oppose H.R. 1215 and any other legislation that would strip away consumers’ access to civil justice when they need it the most!

  • Click here to find your Member(s) of Congress or contact the U.S. Capitol Switchboard at (202)224-3121 and ask for your senators’ and/or representatives’ office.
  • Urge your family, friends, and fellow advocates to do the same!

   

What is Tort Reform?


Tort reform refers to efforts by state and federal legislatures to place limitations on the amount of damages that can be recovered by individuals in certain cases involving personal injury or the improper care or treatment of a patient by a health care provider. Several states have passed tort reform laws, and there are efforts to pass a national law to cap damages.  

Neglect and abuse occur far too often in the nursing home industry. According to a government study, nineteen states and the District of Columbia reported that over a quarter of their nursing home facilities received deficiency notices for harming their residents or placing their health in jeopardy in 2014. Civil suits are an important factor in helping to improve nursing home care by holding facilities accountable for the poor care, treatment and abuse of residents. Tort reform would limit the amount of damages nursing home residents - who are among the most frequent and vulnerable victims of abuse and neglect in health care institutions – could receive.

Why is Tort Reform Harmful to Long-Term Care Consumers?


Tort reform would harm long-term care consumers by:

Making long-term care facilities less accountable for harmful actions: Government studies have repeatedly shown that state inspection agencies fail to cite or penalize facilities for harming residents, even when they find serious injuries; moreover, many serious problems are never cited at all. According to a 2008 Government Accountability Office (GAO) report, more than nine states failed to cite instances of actual resident harm or instances that placed residents in immediate jeopardy in greater than 25% of long-term care facilities. Often the courts are the only branch of government that holds nursing homes accountable. By reducing damages, tort reform would lessen the degree of nursing home accountability. Less accountability could lead to more, not fewer, injuries.

Limiting consumer access to the civil justice system: Many residents who have been abused or neglected or their families do not file suit because they are unable to find attorneys willing to take their cases. Lawyers are increasingly unable to accept cases because the amount awarded for damages under tort reform will not offset the high cost of handling the lawsuit. As a result, individuals are left with no legal representation and are shut out of the civil justice system.  

Limiting compensation for long-term care consumers: Noneconomic damages are often the only compensation most nursing home and other long-term care facility residents receive. A recent study found that eighty percent of nursing home awards are for noneconomic damages for residents’ pain and suffering because most residents do not have earned income to replace. Noneconomic damages compensate residents for very real injuries–such as the loss of a limb due to a pressure ulcer, the loss of mobility due to a preventable fall, and severe pain and permanent impairment. They also compensate for the loss of a spouse or parent. These are very real damages and should not be subject to arbitrary limitations.

Protecting corporations, not consumers: Damages, particularly punitive damages, must be large enough to deter future poor care. Tort reform proposals protect the pocketbooks of health care providers, including multi-million dollar corporations operating nursing homes, by decreasing the amount of damages they are required to pay. According to a 2013 report, the U.S. nursing homes and long-term care facility industry have a combined annual revenue of about $225 billion. If corporate behavior is to change, the size of the damages must get the attention of the corporate boardroom; otherwise, corporations simply see the amount as the “cost of doing business.”

 

Real People, Real Harm


The cases below are examples of nursing home residents whose families  pursued legal action to hold facilities accountable for abuse and neglect. These cases illustrate the importance of preserving residents' rights and access to the civil justice system when they are harmed: 

Katherine J.

Albert S.

Herbert  H.

Margaret D.

Germaine M.

Consumer Voice Resources


"Dangers to Long-Term Care Consumers," a policy briefing from Consumer Voice, reviewed how nursing home residents, other long-term care consumers and their families are facing very serious threats.  The briefing provided information on proposed changes to Medicaid that would impact both access to and quality of long-term care and a bill that would severely limit the ability of injured consumers and their families to hold nursing homes, assisted living facilities and other health care providers accountable.  Hear from experts on these issues and what YOU can do.  

Download the PowerPoint slides here.

Other Useful Resources & Links


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