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Last Updated 06/01/2006 MALPRACTICE REFORM MEASURES MAY HAVE UNINTENDED CONSEQUENCES FOR LONG-TERM CARE FACILITIES REGULATED BY THE ILLINOIS NURSING HOME CARE ACT By: Elizabeth A. Connolly, R.N., J.D. Introduction A number of recent developments have combined to make Illinois nursing homes attractive targets for personal injury attorneys. Provisions of the Illinois Nursing Home Care Act (“the Act”)[1] make lawsuits against nursing homes both simpler to file and less expensive to prosecute than the typical medical malpractice suit. In addition, the newly enacted caps on damages in medical malpractice actions do not apply to suits against nursing homes seeking damages for violations of the Act. The statutory provision precluding punitive damages in medical malpractice actions is also inapplicable to suits under the Act. These financial incentives for targeting nursing homes have arisen at a time when they face institutional pressures caused by an increase in the elderly population, a shortage of skilled staff and overall increases in health care costs. In a recent study submitted to Congress, shortages in nursing staff were found in over half of the nursing homes surveyed. The researchers likewise reported a direct link between staffing shortages and problems such as dehydration, malnutrition, and decubitus ulcers. These are the very issues that plaintiffs’ attorneys often seize upon in their lawsuits.[2] These are also issues that can anger juries and result in run-away verdicts. In this environment, it is essential that defense lawyers and risk managers become familiar with the statutes, relevant case law and practical considerations relating to this burgeoning field. Nursing Home Care Act The Act, which was first adopted in 1979, was motivated by reports of “inadequate, improper and degrading treatment of patients in nursing homes.”[3] Legislators intended that the Act completely reform the nursing home industry,[4] and they promoted this goal by defining the residents’ rights and providing for both governmental and private policing of such facilities. The Act contains a bill of rights addressing a wide range of topics, including the residents’ rights to manage their own money, to be free of physical or chemical restraints and, most importantly for purposes of this article, to be free of abuse or neglect at the hands of the facilities’ employees.[5] To ensure compliance with this bill of rights, Article III of the Act authorizes the Department of Public Health to regulate and issue licenses for each facility. The Department is required to inspect long-term care facilities, conduct surveys,[6] and investigate complaints. In addition, the Department may impose civil as well as criminal penalties for any violations of the Act that it finds, up to and including license revocation and monetary fines.[7] The Act also gives individual residents the ability to file their own actions against nursing home owners and licensees to vindicate their rights, allowing them to function, in essence, as “private attorneys general.”[8] The drafters intended that this provision encourage private lawsuits as a means of promoting reform and preventing abuses. Any violation of the Act may be the subject of a private action, and the Act specifically provides that individual residents harmed by a facility’s failure to abide by the Act’s provisions may seek injunctive and declaratory relief to prevent future violations.[9] Another important provision of the Act allows nursing home residents to seek damages from the owners or licensees of long-term care facilities for acts of abuse or neglect committed by the facilities’ employees.[10] “Abuse” is defined as “any physical or mental injury or sexual assault inflicted on a resident other than by accidental means”; neglect refers to “a failure in a facility to provide adequate medical or personal care or maintenance when that failure results in physical or mental injury to a resident or the deterioration of a resident’s physical or mental condition.”[11] Injured residents may seek actual damages, costs, and attorney’s fees.[12] As discussed below, such statutory actions can differ materially from the typical malpractice action against a hospital or physician charged with a similar failure to provide adequate care. 2-622 Reports and Expert Review Some of these distinctions are found in the case law rather than in provisions of the Act itself. For example, the Illinois Supreme Court has held that nursing home residents who bring suit pursuant to the Act are not required to attach a 2-622 report to their complaint, since neither nurses nor other health care professionals are the named defendants.[13] In addition, the Illinois Appellate Court has ruled that the standard of care applicable to nursing homes in suits for violation of the Act is one of ordinary negligence, not professional negligence. Thus, plaintiffs may not even need a medical expert in order to establish a prima facie case.[14] Damages Other distinctions become evident when the terms of the Act are contrasted with statutory provisions applicable to malpractice actions. For example, the Act allows for recovery of “actual damages” in a private suit seeking damages for violations and places no restrictions on the amount of recovery. The newly enacted cap on non-economic damages in medical malpractice actions will not apply to judgments entered against nursing home owners or licensees. By its own terms, the cap provision applies to awards against “a hospital and its personnel or hospital affiliates” or against “a physician and the physician’s business or corporate entity and personnel or health care professional.”[15] Nursing home owners and licensees are not included. Moreover, unlike the typical malpractice case, wherein an award of exemplary damages is prohibited,[16] the Act contains no such restriction with respect to nursing homes. While such punitive awards are no longer automatic under the Act,[17] the Illinois Supreme Court has held that common law punitive damages are available under the Act upon proof of willful and wanton misconduct on the defendant’s part.[18] Attorney’s Fees To further encourage residents to take action, and to encourage lawyers to take on such cases despite the prospects of minimal recovery, the Act also provides that successful plaintiffs may recover their attorney’s fees in addition to their actual damages. Such awards may be based on a percentage of the recovery, but they may also be based on a “lodestar” figure obtained by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. The latter figure can then be adjusted upward or downward based on such factors as the results obtained; the existence of a contingent fee contract; and “the existence of external benefits which advance the public interest and which secure important social benefits not reflected in small damage awards.”[19] Considerations The provisions discussed herein illustrate some of the key differences between medical malpractice actions and nursing home litigation in Illinois. But there are other differences which require attention when developing defense strategies and conducting discovery. It is critical to remember that the strength of a nursing home case often lies not in the medical issues per se, but in issues relating to the dignity and quality of life afforded to the resident. Thus, it is essential that defense lawyers consider not only whether the health care professionals acted within the standard of care, but also whether the resident was treated with dignity and whether measures were taken to achieve a high quality of life. For example, in working up nursing home cases, defense lawyers must consider such issues as whether residents were up and dressed every day, and whether they were provided with assistance for basic needs such as eating, bathing and shaving. In a recent survey of nursing home residents, researchers found that most residents equated quality care with the relationships they had with staff members as well as hands-on comfort measures, rather than medical interventions.[21] Defense lawyers should also review the surveys conducted by the Department of Health to determine what ratings the facility has received during the relevant time periods. Plaintiffs across the country are prevailing at trial by concentrating on issues other than medicine and defense lawyers must be cognizant of this. For example, Wilkes and McHugh, one of the dominant plaintiff’s firms in this field,21 has utilized a tactic of stressing “wealth not health” to great advantage. These lawyers routinely stress to a jury the profits reaped by nursing home owners juxtaposed with the chronic understaffing that plagues such facilities and the problems that result from understaffing.[22] These are the kind of facts that anger juries and result in enormous verdicts like the $78.4 million judgment Wilkes and McHugh recently obtained against an Arkansas nursing home. Juries around the country are awarding huge verdicts in nursing home cases. In Kentucky, a jury awarded a Wilkes and McHugh client $20 million in damages. In Florida, a jury awarded $20 million in damages in a case involving a plaintiff with Alzheimer’s disease. In Arizona, another plaintiff’s firm obtained a verdict of $78.4 million, $63 million of which was punitive damages. Finally, in Texas, a jury awarded $250 million in punitive damages after an eighty year-old man died from pneumonia and malnutrition.[23] Verdicts of this magnitude are sure to attract the attention of other lawyers across the country, including in Illinois, where statutory provisions make such verdicts a real possibility. -------------------------------------------------------------------------------------------------------------------- [1] 210 ILCS 45/1-101 et seq. [2] Dawson, “Long-Term Care Financing and the Long-Term Care Workforce Crisis: Causes and Solutions” (January, 2003), available at: www.directcareclearinghouse.org. [3] Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58 (1986). [4] Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 99 (2003). 5210 ILCS 45/2-101 through 2-216. [6] Summaries of survey results are available to the general public on the Medicare website at: www.medicare.gov. [7] 210 ILCS 45/3-119, 3-301 through 3-318. [8] Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 361 (1986); Springwood Associates v. Lumpkin, 239 Ill. App. 3d 771, 777 (1992). [9] 210 ILCS 45/3-603 [10] 210 ILCS 45/3-601 [11] 210 ILCS 45/1-103, 1-117. [12] 210 ILCS 45/3-602. See also Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 365 (1986). [13] Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 109 (2003). [14] Myers v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241, 246 (2004). [15] 735 ILCS 5/2-1706.5. [16] 735 ILCS 5/2-1115. [17] Prior to a 1995 amendment, the Act permitted awards of treble damages in suits brought thereunder. 210 ILCS 45/2-101 (West 1994). [18] Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999). [19] Berlak v. Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231 (1st Dist. 1996). [20] Bowers, et al., “Care as Service, Care as Relating, Care as Comfort: Understanding Nursing Home Residents’ Definitions of Quality,” The Gerentologist. 2001, at pp. 41, 539-45. [21] Further information about this firm is available at www.wilkesmchugh.com. [22] McAree, “Carving Out A Lucrative Niche,” The National Law Journal, July 26, 2004. [23] Data available at www.aznursinhomelawyer.com.
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