Nursing Home Industry Needs Better Care, Not Less Accountability
By Philip Freidin and Manuel L. Dobrinsky
As the present legislative session continues, the nursing home industry and its insurance companies are waging war against trial attorneys. Rather than focusing on issues of care and respect for residents in nursing homes and solving problems form within, the nursing home lobby, the insurance industry, and its army of lobbyists are attacking the tort system.
The insurance industry has threatened to stop insuring nursing homes, which have reacted by threatening to leave the State of Florida. Both blame trial attorneys; neither will take any responsibility. The insurance industry has taken its usual spin on the old adage: "When the going gets tough, the insurance industry gets gone."
The industry has never made a thoughtful examination of the source of the high insurance rates and availability. If lawsuits are the problem, then why can't the hundreds of nursing homes with near-perfect, suit-free records get reasonable coverage? And why aren't they angry with the insurance companies for leaving them bare? It is plain that the insurance industry is deliberately making the situation so intolerable that the nursing home industry as a whole - good operators and bad - reacts in the expected Pavlovian way: blame the lawyers.
If the intent is to protect nursing homes without concern for the residents' well-being, limiting damages injured residents or survivors collect is an answer. If the goal, however, is to provide quality care for nursing home residents, curbing damages will only make matters worse.
It is clear from our experience litigating these cases that poor care is a direct result of understaffing, caused by decreased government reimbursement and nursing homes' attempt to protect their profit margins. Two major Florida newspapers - the Orlando Sentinel and the Sun-Sentinel - recently showed that "for profit" nursing homes in South Florida averaged twice as many citations for falling below acceptable standards as their nonprofit counterparts. One nursing home was fined $170 million for Medicare fraud - billing Medicare for care it did not provide. Big fines divert nursing homes' resources from providing good care. So: Blame the lawyers.
The industry's problems result not from lawsuits but from its quest for profits at the expense of quality care for our oldest and frailest citizens. We have seen ulcers to the bone, death from malnutrition and dehydration, even the occasional cockroach in the bed sore. Should this happen in America? Should it happen in institutions paid handsomely to provide this care? In some cases, patients fell 20 times and nothing was done to correct the problem, and then the 21st fall crippled or killed.
In rare cases, juries awarded punitive damages against the nursing homes. Did such awards - which the insurance industry would like you to think of as "frivolous" - result from a faulty legal system, or from a group of jurors who were rightfully repelled? Will limiting lawsuits solve the issue, or merely embolden the worst of the nursing home corporations to simply cut staffing further and place residents in harm's way?
Instead of cursing attorneys - the messengers of this mess - should ask why so many nursing homes permit such horrors. While representing nursing home residents, we constantly ask ourselves: If infants under care died of bedsores and lack of food and water, the public would demand prosecution. Is it our prejudice against the elderly that makes the problem so easy to overlook?
The real problem is a severe lack of quality care. Take care of the residents, and lawsuits will drop. Jurors, confronted with outrages, react as most of us would: with outrage.
Quality of care is a matter of caring and money. We assume and believe that most employees in nursing homes care deeply about their patients as fellow human beings. They are, however, under-trained, understaffed, underpaid, overworked, and just plain worn out. In 1996, Congress slashed the budget for Medicaid nursing home residents. It was no coincidence that the number of suits then shot up to their highest level. At the same time, some big nursing home chains were spending money on things other than health care. One CEO who drove his chain into bankruptcy got an $80 million severance package.
There is an illness here. The nursing home industry is sick and needs financial help. Unfortunately, we have a legislature and a governor determined to cut taxes for those most able to pay them, thus creating a shortfall for our elderly sick population. So rather than diagnose and cure the illness, the industry reacts by silencing its critics. And who are bigger critics than the lawyers who seek to hold them accountable?
Philip Freidin and Manuel L. Dobrinsky are partners in the Miami law firm of FREIDIN · DOBRINSKY. They represent nursing home patients and their families. Mr. Freidin served on the Legislative Task Force on the Availability and Affordability of Long-Term Care of the Elderly, and on the Governor's Task Force for Elderly Abuse Prevention.
