U. Abuse and Neglect Litigation: Recent Developments, Trends and Prevention Techniques

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1 U. Abuse and Neglect Litigation: Recent Developments, Trends and Prevention Techniques Heller Horowitz & Feit PC New York, NY Stevens & Lee PC Lancaster, PA Maurice W. Heller, Esq. PART ONE: SURVEY OF RECENT DEVELOPMENTS AND TRENDS I. Is it Professional Malpractice or something more plaintiff-friendly? This issue is prevalent in the body of recent cases involving abuse and neglect claims against long term care facilities. Many states legislatures have created procedural hurdles designed to make medical malpractice suits more difficult to initiate and prosecute, or less profitable. These include shorter statutes of limitations, pre-suit administrative review, and limitations on damages, particularly punitive damages. For courts it has become a matter of definition can we simply define away the malpractice claim as something else, and thereby open the door to a lawsuit that might be time-barred or otherwise precluded? A. California California Supreme Court unanimously affirmed the Second District Court of Appeals and rules that California procedural restrictions on punitive damage claims do not apply in elder abuse cases, resolving conflict between the Second and Fourth Districts. Covenant Care, Inc. v. Superior Court, 86 P.3d 290 (Cal. March 25, 2004). 1. Children of a resident sued a nursing home for damages arising from the allegedly negligent care, treatment and death of their father. More than two years after the action was commenced, plaintiffs sought to amend their complaint to add claims of elder abuse, willful misconduct and other intentional torts, and punitive damages. a. Cal. Code Civ. Proc in an action for damages arisingout of the professional negligence of a health care provider, thecourt shall not allow an amendment that includes a claim forpunitive damages if the motion for such an order is not filed withintwo years after the complaint is filed. Accordingly, thedefendants opposed the motion to amend. b. Under the California Elder Abuse Act, Cal. Welf. & Inst. Code, Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section , neglect as defined in Section , or fiduciary abuse as defined in Section , and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law:... The court shall award to the plaintiff reasonable attorney's fees and

2 costs. c. Elder Abuse Act, , provides: Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in section of the Code of Civil Procedure [the statute of limitations governing actions against health care providers], based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action. 2. The trial court permitted the amendment, on grounds that the limitations provided in does not apply to actions under the Elder Abuse Act. The court reasoned that the type of negligence referenced in Elder Abuse Act is something more than negligence, since the plaintiff must demonstrate by clear and convincing evidence, in order to prevail, reckless, oppressive, fraudulent or malicious conduct. Professional negligence, on the other hand, is defined as a negligent act or omission to act by a health care provider in the rendering of professional services, something less than the willful misconduct set forth in the Elder Abuse Act. 3. The Second District Court of Appeal agreed with the trial court, and declined to follows Community Care and Rehabilitation Center v. Superior Court, 79 Cal.App.4th 787, 94 Cal.Rptr.2d 343 (Cal. App. 2000), which expressly held that applies in elder abuse cases. 4. The California Supreme Court granted review, affirming the Second District in Covenant Care and disapproving the Fourth District in Community Care. a. Found Delaney v. Baker, 971 P.2d 986 (Cal. 1999), which held unanimously that a cause of action seeking the Elder Abuse Act's heightened remedies for reckless, oppressive, fraudulent, or malicious elder abuse is not based on professional negligence within the meaning of [Elder Abuse Act ] that excludes from its purview causes of action based on such negligence to be controlling precedent. b. [W]e agree with the Court of Appeal that section 's limitations on actions for damages arising out of professional negligence ( (a)) were not meant to burden those who pursue the cause of abused elderly persons... under the Elder Abuse Act. i. Plain meaning of the statues Elder Abuse Act deals with recklessness, oppression, fraud, or malice, higher culpability than negligence in ; neglect in Elder Abuse Act means failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations, area distinct from professional negligence. Also, Elder Abuse Act requires proof by clear and convincing evidence, higher standard that for professional malpractice. ii. Legislative history Legislature intended to protect health care providers (or practitioners) only in their professional capacity as providers, not as custodians ; thought that professional negligence,

3 is mutually exclusive of abuse and neglect, as set forth in the Elder Abuse Act; legislature imposed a high standard of proof in Elder Abuse cases; fact that Elder Abuse is not specifically exempted from is not dispositive. iii. Statutory purpose Elder Abuse Act intended to protect the elderly and infirm from gross mistreatment in the form of abuse and custodial neglect.... To burden such causes with section 's procedural requirements when claims are made for punitive damages would undermine the Legislature's intent to foster such actions by providing litigants and attorneys with incentives to bring them. iv. Judicial precedent Court chose to follow Delaney, supra. B. California appellate court rules that California's medical malpractice statute of limitations does not apply to elder abuse cases. Benun v. Superior Court, 123 Cal. App. 4th 113, 20 Cal. Rptr. 3d 26 (Cal. App. 2d Dist. October 5, 2004). 1. Suit by children of deceased former nursing home patient against nursing home, its administrator, members of its staff, its management company and a physician, alleging numerous acts of elder abuse committed against the patient while under the nursing home's care. 2. Trial court granted defendant's motion for partial judgment on the pleadings in connection with the plaintiff's elder abuse claims on statute of limitations grounds. a. Cal. Code Civ. P In an action for injury or deathagainst a health care provider based upon such person's allegedprofessional negligence, the time for the commencement of actionshall be three years after the date of injury or one year after theplaintiff discovers, or through the use of reasonable diligenceshould have discovered, the injury, whichever occurs first. b. California Elder Abuse Act, in addition the pertinent language quoted above, provides in that [n]otwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section of the Code of Civil Procedure, based on the health care providers alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action. c. Plaintiff if Cal. Code Civ. P applies, then Cal. Code Civ. P. 352 should apply toll the statute, since the decedent was insane during the period of her residence at the nursing home: If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action. d. Court considered, and rejected, extending the rationale set forth in Covenant Care, supra., which construed Cal. Code Civ. P , which restricts a plaintiff's ability to assert punitive damages, to Cal. Code Civ. P Appellate Court reversed trial court's dismissal of Elder Abuse claims.

4 a. Analysis almost identical to Covenant Care, supra, citing Delaney v. Baker, supra, and legislative history. b. The Elder Abuse Act proscribes distinct conduct, which brings the claim outside the professional malpractice statute of limitations: [Elder Abuse Act ] can therefore be read as making clear that the acts proscribed by section do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. c. Legislative history The present record does not contain any suggestion that the Legislature had an implicit intent that section was to protect health care providers in any other capacity (particularly the elder custodian capacity) than as health care providers. d. Moreover, the Court applies the rationale in Delaney to the issue at hand: No reason is apparent why this analysis does not apply equally to the statute of limitations issue. If the legislative intent was that reckless or willful misconduct by health care providers elevates their exposure from mere negligence liability to the heightened remedies of the act, similarly the more egregious nature of the misconduct would logically move them from the protection of the shorter statute of limitations to the functionally longer limitations statutes applicable to all others who commit custodial elder abuse. e. Accordingly, in Elder Abuse cases, the applicable statute of limitations is Cal. Code Civ. P , which is two years in the case of [a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another. The Court assumes this to be two year from the date of discovery, or imputed discovery, of the cause of action, which is longer than the one year discovery provision of Cal. Code Civ. P f. Moreover, is modified by 352, which tolls the statute in the event the plaintiff is insane. C. Louisiana an appellate court allows a second suit brought by the plaintiffs on almost the same facts as a previously dismissed medical malpractice suit to stand, reversing trial court's ruling that this was res judicata. Martin v. Comm-Care Corporation, 880 So.2d 1020 (La. App. 2 Cir. August 20, 2004). 1. Suit by spouse and children of deceased nursing home patient seeking damages for breach of contract, breach of fiduciary duty and violation of Louisiana's nursing home patient's bill of rights. 2. Lower Court dismissed action, on grounds of res judicata a. La. R.S. 40:2010 et seq., Louisiana nursing home patients' bill of rights. b. Plaintiffs previously brought suit against the same defendants alleging negligence and abuse by the defendants resulting in the death of their husband and father. i. The wrongful death action filed within one year of the patient's death

5 was dismissed as premature. ii. Louisiana Medical Malpractice Act requires all medical malpractice actions against a qualified healthcare provider to be submitted to a Medical Review Panel within one year of discovery of the act or omission, and prior to filing the suit. iii. Plaintiffs' request for a medical review panel was filed more than one year after the date of death and was, accordingly, found to be untimely, and the suit was dismissed with prejudice. iv. Second suit alleged mostly the same facts but, instead, alleged that the patient would not have suffered from the listed conditions but for the nursing home's violation of the statutory duty owed to a nursing home resident and Defendant's breach of contract and breach of fiduciary duty owed to the patient and the plaintiffs. v. Court it is clear that the elements of [plaintiff's] petition should be classified as medical malpractice. 3. Appellate Court reversed. a. The judgment in the prior suit was not technically a final judgment as a basis for res judicata under Louisiana law and, accordingly, dismissal of the action was premature. b. In addition, two additional factual allegations were not included in the original suit: (a) teasing and taunting by nurses' aides and (b) patient's death being the result of pneumonia with contributing factors of malnutrition and decubitus ulcers. Court noted that even if res judicata applied, the former could be pursued, since intentional acts are not subject to Louisiana's Malpractice Act. D. Michigan Supreme Court reverses appellate court which redefined malpractice claims as ordinary negligence, thereby removing them from the statute of limitations, but nevertheless allows the claims to proceed. Bryant v. Oakpointe Villa Nursing Centre, 684 N.W.2d 864 (Mich. June 30, 2004) 1. Suit by personal representative of deceased patient against nursing home, alleging that nursing home was liable for patient's death, which occurred as result of positional asphyxiation while in nursing home's care. 2. Trial Court denied nursing home's motion to dismiss on statute of limitations grounds. a. Patient suffered from dementia and lack of control over locomotive skills; she slipped between the rails of her bed, asphyxiated and died. b. Original complaint ordinary negligence. Defendant moved for summary judgment, arguing that claims sounded in medical malpractice rather than ordinary negligence. Court denied motion. c. First amended complaint alleged three counts: (i) ordinary negligence by and through the nursing home employees (failing to assure an accident-free environment, failing to train CNA's to assess the risk of positional asphyxia, failing to protect patient when she was entangled between the bed rails and the mattress, and failing to inspect

6 the beds, bed frames and mattresses); (ii) negligent infliction of emotional distress; and (iii) gross negligence by the nursing home employees generally. i. Court granted defendant's motion for summary judgment held that ordinary negligence count sounded in medical malpractice, and dismissed the complaint in its entirety without prejudice. ii. Plaintiff appealed and, at the same time, filed a notice of intent to sue in medical malpractice. (i) M.C.L b a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. d. Second amended complaint alleged medical malpractice. i. Court denied defendant's motion to dismiss on grounds that the twoyear medical malpractice period of limitations had expired. Court's original ruling denying summary judgment tolled statute. ii. Defendant appealed consolidated with prior appeal. 3. Court of Appeals found for plaintiff, held that the case sounded in ordinary negligence. Thus, the issue regarding the tolling of the period of limitations was moot. In dictum, court stated that if claim had sounded in medical malpractice, it would have been dismissed with prejudice. 4. Supreme Court reversed court of appeals, but still found in favor of plaintiff on three our of four of her claims. a. Defendant's argument plaintiff's claims are time-barred. Michigan statute includes under medical malpractice the acts of an employee of a nursing home who is assisting in medical care and treatment, and this is a medical malpractice case, and two year statute of limitations applies. i. M.C.L a For purposes of this act, a claim based on the medical malpractice of a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, whether or not the licensed health care professional, licensed health facility or agency, or their employee or agent is engaged in the practice of the health profession in a sole proprietorship, partnership, professional corporation, or other business entity, accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. ii. Court this is simply an accrual statute and does not define what constitutes a medical malpractice action. The fact that an employee of a licensed health care facility was engaging in medical care at the time the alleged negligence occurred means that the plaintiff's claim may possibly sound in medical malpractice; it does not mean that the plaintiff's claim certainly sounds in medical malpractice.

7 b. Rather, court must apply a test for medical malpractice (i) whether the activity occurred within the course of a professional relationship and (ii) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. i. First test satisfied here Because defendant... was under a contractual duty requiring both it and its employees to render professional health care services to plaintiff's decedent, a professional relationship existed to support a claim for medical malpractice. ii. Second test when applied to allegations in first amended complaint (i) First claim accident free environment sounds in strict liability not recognized in Michigan dismissed. (ii) Second claim failure to train in order to determine and assess risk of asphyxiation, expert testimony is needed on what specialists in the use of these systems currently know about their risks and on how much of this knowledge defendant ought to have conveyed to its staff. Accordingly, this claim sounds in medical malpractice. (iii) Third claim failure to inspect configuring the restraining mechanisms to minimize the risk of asphyxiation requires knowledge of the patient's medical history, and part of an individualized treatment plan again, the fact-finder must rely on expert testimony to see if this was done negligently. Thus, this claim sounds in medical malpractice. (iv) Fourth claim failure to take steps since [n]o expert testimony is necessary to determine whether defendant's employees should have taken some sort of corrective action to prevent future harm after learning of the hazard, this claim sounds in ordinary negligence. c. Statute of limitations court allowed medical malpractice claims to proceed relying on equitable factors plaintiff's failure to comply with the statute resulted from understandable confusion as to whether her claims sounded in medical malpractice or negligence. i. Court added in future cases of this nature, in which the line between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter of prudence to file their claims alternatively in medical malpractice and ordinary negligence within the applicable period of limitations. E. Oklahoma In suit including claims under Oklahoma's Patients' Bill of Rights, Oklahoma Supreme Court allows breach of contract claim to proceed but affirms dismissal of claim under Oklahoma Consumer Protection Act. The Estate of Hicks v. Urban East, Inc., 92 P.3d 88 (Okla., May 25, 2004) 1. Suit for wrongful death against a nursing home. Plaintiff's claims included violations of the Oklahoma's Nursing Home Care Act, 63 Okl.St , et seq., Oklahoma's Consumer Protection Act Consumer Protection Act, 15 Okl. St. 751, common law negligence and breach of contract.

8 a. Defendant moved to dismiss the claims for breach of contract and under the Consumer Protection Act. b. Trial court granted the motion: i. Nursing Home Care Act created a statutory tort, and was intended to redress torts, not breaches of contract. ii. Oklahoma State Department of Health regulates nursing homes through the Nursing Home Care Act and, accordingly, the Nursing Home Care Act supersedes the Oklahoma Consumer Protection Act. 2. Oklahoma Supreme Court affirmed dismissal of Consumer Protection Act claim, reversed dismissal of contract claim. a. Contract claim: i. 63 Okl.St A resident may maintain an action under the Nursing Home Care Act for any other type of relief, including injunctive and declaratory relief, permitted by law.... The remedies provided in this section, are in addition to and cumulative with any other legal remedies available to a resident. Exhaustion of any available administrative remedies shall not be required prior to commencement of suit hereunder. ii. Statutory tort claim is thus not the exclusive remedy, and the other remedies are specifically preserved by the statue. iii. Moreover, while plaintiff did not produce a written contract, there were issues of fact as to whether or not plaintiff was a third-party beneficiary to the contract between the nursing home and Medicare/Medicaid. b. Oklahoma Consumer Protection Act claim: i. Under Consumer Protection Act, 15 Okl.St. 754, Nothing in this act shall apply to:... Actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or officer acting under statutory authority of this state or the United States. ii. The Nursing Home Care Act contains a comprehensive scheme for regulating the nursing home industry in Oklahoma, and falls within this exception to the Consumer Protection Act. II. Officers' and Director's Liability In most states, officers and directors of an enterprise can be held personally liable for torts committed by the company's employees against third parties only if it can be shown that the officer or director actually participated in the alleged wrongful conduct; the officer's or director's official relationship with the company is not enough, in and of itself, to hold him or her liable. In cases involving abuse and neglect at long term care facilities, this doctrine will generally shield corporate officers and board members from liability for abuse and neglect committed by physicians, nurses, nurses aides and health care workers at facilities. Some cracks, however, have emerged in this façade, particularly where the question is whether corporate decisions to reduce staffing contributed to the injuries in question.

9 A. Texas appellate court found that administrator and nursing director could be held liable for staffing decisions that proximately caused the injury and death of the plaintiff's decedent. Peñalver v. Living Centers Of Texas, Inc., 2004 WL (Tex.App.-San Antonio, June 23, 2004) 1. Wrongful death and survival suit against nursing home, its administrator and its director of nursing, alleging negligence, gross negligence, fraud, and intentional injury in connection with the injury and death of a patient. 2. Trial Court directed verdict against plaintiffs on their fraud and intentional injury claims, but entered judgment on jury verdict in favor of plaintiffs on their negligence claim and awarded actual and punitive damages. 3. Appellate Court reversed, finding that the trial court erred in admitting evidence of 800 previous falls at the nursing home not related to the patient at issue. a. In addition, found that administrator and nursing director could be held liable for the patient's injuries and death on account of staffing decisions which were in part responsible for the accident. i. Nurse testified that she did have time to review the patient's chart, and [t]he jury was... entitled to conclude that [the nurse] did not have time because [the nursing home] was understaffed. ii. Patient had a RUGs classification of SE3, meaning during twenty-four hour period, patient should have received 191 minutes of certified nurse assistant care. (i) Administrator and Nursing Director staffed Silver Creek to allow only 105 minutes. (ii) On the day of the accident, the actual certified nurse assistant time available for each resident was substantially less than 105 minutes. (iii) On the day of the accident, two of the certified nurse assistants scheduled to work the shift during which the accident occurred were absent and no steps were taken to obtain replacements. B. Texas appellate court reverses the grant of summary judgment in favor administrator and nursing director in an abuse and neglect case on technical procedural grounds. This case, however, does not appear to have expanded nursing home officer's and manager's liability in civil damage suits to intentional torts which they did not individually commit. Also, both trial and appellate courts appear to have rejected plaintiff's theory that the Tex. Admin. Code imposes independent duties upon nursing home officers and managers which are remediable in civil lawsuits. Hintz v. Lowe, 2004 WL (Tex. App. Hous. (14 Dist.), October 21, 2004). 1. Suit by administratrix of deceased resident for wrongful death and survival damages against the administrator and nursing director of nursing home, among others, on account of an assault upon decedent by a janitor at the facility who was employed by an independent

10 contractor. Decedent died a year later at a different facility. a. Defendants moved for summary judgment on grounds, inter alia, that the plaintiff presented no evidence that Defendants, acting individually outside the course and scope of their employment at Brookshire Nursing Center, proximately caused Plaintiff's alleged injury. b. Plaintiff opposed summary judgment on grounds, inter alia, that (a) the motion did not state the elements of the claims being challenged, (b) that Texas Administrative Code created duties owed by the defendants individually to plaintiff, and (c) the nursing home's own policies created a duty for the defendant nursing director. i. 40 Tex. Admin. Code sets forth a resident's bill ofrights under the rubric of Violations of Standards ofconduct for Nursing Facilities, the violation of which aresubject to sanction pursuant to 40 Tex. Admin. Code These include, among others, duties upon the licensee to provide adequate staffing and resources and tosupervise employees and contractors. ii. 22 Tex. Admin. Code sets forth Standards ofnursing Practice, the violation of which may result in[administrative] action against the nurse's license even if noactual patient injury resulted. 2. Trial Court granted defendants' motion for summary judgment on all claims, including plaintiff's claims against the defendants for common law and statutory assault, even though defendants' motion did not attack those claims. 3. Appellate Court affirmed granting of summary judgment on the negligence and gross negligence claims, but reversed on the assault claim, since, under Texas law, a trial court may not grant judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. C. California while not directly on point, it is instructive how an appeals court in California affirmed a criminal conviction of the owner of a nursing temp agency; the analysis could provide a rationale for civil liability. People v. Ezebunwa, 2004 WL (Cal. App. 3 Dist., October 19, 2004). 1. Defendant was shown to have sent uncertified persons to work in nursing homes that had requested CNA's. A jury convicted defendant, among other things, of conspiracy to commit elder abuse. a. Cal. Penal Code 368 (b)(1) Any person who knows orreasonably should know that a person is an elder or dependentadult and who, under circumstances or conditions likely to producegreat bodily harm or death, willfully causes or permits any elder ordependent adult to suffer, or inflicts thereon unjustifiable physicalpain or mental suffering, or having the care or custody of any elderor dependent adult, willfully causes or permits the person or healthof the elder or dependent adult to be injured, or willfully causes orpermits the elder or dependent adult to be placed in a situation inwhich his or her person or health is endangered, is punishable byimprisonment in a county jail not

11 exceeding one year, or by a finenot to exceed six thousand dollars ($6,000), or by both that fineand imprisonment, or by imprisonment in the state prison for two,three, or four years. b. Trial testimony an individual without CNA training could miss things that are going on with a patient, such as symptoms that a patient is having a heart attack. c. Defendant denied that she knew that the employees she sent to the nursing homes were not certified, and claimed that the employees had provided her with false information. d. Instruction to jury conspiracy to commit elder abuse is established by proof that a member of the conspiracy willfully caused, or as a result of criminal negligence permitted, the elder or dependent adult to be placed in a situation in which his or her person or health might be endangered. 2. Appellate Court reversed conviction for conspiracy to commit elder abuse, but affirmed convictions on other counts, including conspiracy to commit false representation as a CNA, and two counts of grand theft. a. Trial court erred in giving instruction that included criminal negligence as an element of intent. 3. [C]onspiracy requires a specific intent to commit the designated crime and the jury may well have concluded that defendant did not intend to cause patients to be placed at risk of abuse, but that, through criminal negligence or as a member of a conspiracy in which this was a natural and probable consequence, she was liable for conspiracy to commit this offense. III. Effect of Arbitration Clauses in Admissions Agreements. A brave new world in abuse and neglect litigation involving long term care facilities is the question of whether arbitration language in admissions agreements will be read to require such litigation to proceed to arbitration. Whether and to what extent such clauses are enforced is difficult to gauge or predict. A. California appellate court declines to enforce arbitration clause, and allows wrongful death and personal injury claim against long term care facility to proceed. Golinger v. AMS Properties Inc., 19 Cal. Rptr. 3d 819 (Cal. Ct. App., 2d Dist. October 21, 2004). 1. Suit by daughter of deceased nursing home resident against facility for wrongful death and personal injury. 2. Facility moved to compel arbitration, citing two arbitration forms in the admissions packet, one covering medical malpractice and the second covering other torts, breach of contract, and claims brought by others on the resident's behalf. The forms each had three signature lines, one for the responsible party and two for agent. Both forms were signed by another daughter of the resident as responsible party but not as agent. Trial Court denied motion to compel. 3. Appellate Court affirmed.

12 a. Daughter did not sign as agent, and only agreed to be the person financially responsible for her mother's care. b. While the patient's children were empowered under California Law by their next-of-kin status to make medical decisions for the patient, such as admitting her into the nursing home, that status did not confer upon them the power to waive her right to a trial by jury. i. Cal. Health & Safety Code a person with legalauthority to make medical treatment decisions on behalf ofa [nursing home] patient is a person designated under avalid Durable Power of Attorney for Health Care, aguardian, a conservator, or next of kin. (Emphasis added). ii. Nursing home did not present evidence which would demonstrate that the daughter's authority to make medical treatment decisions for the patient extended to authority to sign an arbitration agreement on the patient's behalf. c. Wrongful death claim also not subject to arbitration. i. This claim was personal to the patient's daughter, and since she signed the arbitration forms in her capacity as her mother's responsible party, she did not sign the form in her personal capacity. ii. By precluding the daughter who signed the arbitration agreement from bringing a wrongful death claim, her siblings (including plaintiff) who did not promise to pay their mother's nursing home bills would still be entitled to sue, and would thus have greater rights, namely the continued right to jury trial. This would be an anomalous result. B. Alabama Supreme Court of Alabama declines to send case to arbitration, since the suit was not one for breach of contract. Springhill Nursing Homes, Inc. v. McCurdy, 2004 WL (Ala., September 24, 2004). 1. Suit by former nursing home patient against the nursing home, its administrator and certain nursing home employees alleging negligent failure to provide care, failure to supervise and breach of contract. 2. Trial court denied defendants' motion to compel arbitration. a. Defendants relied upon nursing home's standard Admission & Financial Contract, which contained an arbitration clause. While plaintiff never signed the admissions agreement, defendants claimed that since she asserted a breach of contract claim, she was apparently relying on the contract she would have been required to sign had she remained a patient at Springhill. i. Language of arbitration clause: The parties hereby agree to arbitrate any claims or disputes arising out of or in connection with the care rendered to Patient by [the nursing home] and/or its employees in accordance with the provisions of the Uniform Arbitration Act, except that claims arising over nonpayment of charges for services rendered or products provided to Patient shall not be subject to arbitration. The parties understand that arbitration of claims shall constitute a waiver of the right to trial by judge and/or jury with the parties might otherwise have. The parties hereby agree to arbitration due to the potential for a

13 more timely final resolution of the claim or dispute. The parties freely choose arbitration and understand that the arbitrator's decision is final and binding upon all the parties. b. Plaintiff opposed motion, claiming that not only did she not sign the arbitration agreement, but her allegation was not based upon an express written agreement but, instead, on an implied contract. c. Plaintiff later moved to dismiss her breach of contract claim, which motion was granted by the Court. 3. Supreme Court of Alabama affirmed trial court. a. Since plaintiff eliminated the breach-of-contract claim, she was not seeking to avail herself of any benefit of the nursing home's admissions contract at the time the trial court ruled on the motion to compel arbitration. b. Did not reach the issue of whether the result would have been different had the breach of contract claim not been withdrawn leaves open the possibility that arbitration could have been compelled even though the resident did not sign the contract. C. Indiana appellate court enforces arbitration clause, even though neither decedent nor her representative actually signed the admissions agreement, since the agreement was not unconscionable. Sanford v. Castleton Health Care Center, LLC, 813 N.E.2d 411 (Ind. App., August 13, 2004). 1. Suit by daughter of deceased resident for wrongful death and other survival claims against nursing home. 2. Trial Court granted defendants' motion to compel arbitration. a. During decedent's lifetime, plaintiff held limited durable power of attorney, with power to admit or release [decedent] from any hospital or health care facility. b. Admissions Agreement, signed by plaintiff pursuant to the power of attorney, provided: i. 1. Initial Grievance Procedure: The parties agree to follow the Grievance procedure described in the patient Rights Booklet for any claims or disputes arising out of or in connection with the care rendered to patient by Center and/or its employees. Patient should know that Center is prepared to mediate any concerns at any time upon patient request.... ii. 2. MEDIATION : In the event there is a dispute and/or disputes arising out of or relating to (i) this contract or the breach thereof or any tort claim; or (ii) whether or not there has been a violation of any right or rights granted under state law, and the parties are unable to resolve such dispute through negotiation, then the parties agree in good faith to attempt to settle the dispute by mediation administered by Alternate Dispute Resolution Service of the American Health Lawyers Association before resorting to arbitration.... iii. 3. ARBITRATION : Any disputes not settled by mediation within 60 days after a mediator is appointed shall be resolved by binding arbitration administered by the Alternate Dispute Resolution Service of

14 the American Health Lawyers Association and judgment may be entered in any court having jurisdiction thereof Appeals Court affirmed. a. Plaintiff has not demonstrated an unconscionable contract or a contract of adhesion no evidence that plaintiff signed unwillingly or unaware of the terms. i. Indiana law a person is presumed to understand and assent to the terms of the contracts he or she signs. ii. Arbitration clause not buried in the contract right next to signature line. iii. Arbitration process need not have been set forth in detail. iv. No one forced plaintiff to sign admissions agreement in a hurry, or told her not to read it. b. Clause does not diminish rights of patients the arbitration clause at issue does not limit the Estate, in any way, from seeking to recover for the alleged negligent acts of [the nursing home].... Rather, the only limitation imposed on an admittee by virtue of the arbitration clause is the forums wherein the issues may be raised, i.e., mediation followed by arbitration, if necessary. c. Arbitration clause does not conflict with admissions provisions of OBRA i. 42 U.S.C. 1396r(c)(5)(A)(iii)provides that in the case of an individual who is entitled to medical assistance fornursing facility services, not charge, solicit, accept, orreceive, in addition to any amount otherwise required to bepaid under the State plan under this subchapter, any gift,money, donation, or other consideration as a precondition of admitting (or expediting the admission of) the individual to the facility or as a requirement for the individual's continued stay in the facility. ii. Arbitration provision does not qualify as other consideration requiring a nursing-home admittee to sign an arbitration agreement is not akin to charging an additional fee or other consideration as a prerequisite of admittance. Rather, an arbitration agreement merely establishes a forum for future disputes; both parties are bound to it and both parties receive whatever benefits and detriments accompany the arbitral forum. d. Arbitration clause does not violate the trial by jury provision of the Indiana Constitution arbitration agreements are recognized, and entitled to a presumption of enforceability, under Indiana law. e. Estate is bound by arbitration clause privity of contract irrelevant under both Indiana survival and wrongful death statutes, the only claims that survive a decedent's death are those that the decedent would have been entitled to bring, or liable to defend against, during his or her lifetime, and claims that are not justiciable during the decedent's lifetime in court, as opposed to arbitration, would not be justiciable after her death either. D. Alabama In a yet unpublished decision, the Supreme Court of

15 Alabama held that the personal representatives of a deceased nursing home patient were bound by the terms of the arbitration clause in the patient's admissions agreement. Briarcliff Nursing Home, Inc. v. Turcotte, 2004 WL (Ala. June 25, 2004). 1. Two suits by personal representatives of deceased patients seeking damages for wrongful death against the same nursing home, consolidated for purposes of appeal. 2. Trail Court denied defendant's motions to compel arbitration. a. Arbitration clause Pursuant to the Federal Arbitration Act, any action, dispute, claim or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise) now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with the provision of health care services, any agreement between the parties, the provision of any other goods or services by the Health Care Center or other transactions, contracts or agreements of any kind whatsoever, any past, present or future incidents, omissions, acts, errors, practices, or occurrence causing injury to either party whereby the other party or its agents, employees or representatives may be liable, in whole or in part, or any other aspect of the past, present or future relationships between the parties shall be resolved by binding arbitration administered by the National Health Lawyers Association (the NHLA ). THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ AND UNDERSTOOD THIS CONTRACT, AND THAT EACH OF THEM VOLUNTARILY CONSENTS TO ALL OF ITS TERMS. (Emphasis in original). 3. Supreme Court reversed and remanded. a. Plaintiffs are bound by arbitration agreement the are executor and administratrix of the respective estates of the deceased patients and stand in their shoes where an executor or administrator asserts a claim on behalf of the estate, he or she must also abide by the terms of any valid agreement, including an arbitration agreement, entered into by the decedent. b. Plaintiffs did not show that arbitration agreement was unconscionable two part test. i. Do terms grossly favor the nursing home? (i) Plaintiffs pointed to selection of NHLA to administer arbitration argued that NHLA is part of the American Health Lawyers Association ( AHLA ), [which] is a puppet for the health care and long term care industries. (ii) Court plaintiffs' only support is the history of AHLA set forth on its web site not sufficient proof that the deck was stacked against plaintiffs. ii. Did the nursing home have overwhelming bargaining power? (i) Plaintiffs did not show that they were unable to acquire nursing home care for their decedents without considerable expenditure of time and

16 resources. (ii) Did not show that nursing home care was unavailable without agreeing to arbitration. ( Query if all nursing homes incorporate arbitration clauses into admissions agreements could the result here be different?) (iii) Not a contract of adhesion plaintiffs did not demonstrate that they did not have a meaningful choice. c. Nursing home demonstrated that its activities have a nexus with interstate commerce, and therefore the provisions Federal Arbitration Act govern. d. Dissent i. This is a wrongful death action, and wrongful death is a statutory action that does not derive from the rights of a decedent, but is a new right of action. Accordingly, the decedent who signed the arbitration agreement is without authority to bind his or her future personal representative to arbitrate that personal representative's claim for wrongful death. ii. In addition, the nursing home did not show that the plaintiffs signed the arbitration clauses in their capacities as administratrix or executor of their decedents' estates. E. Florida Appellate court determines that a suit under Florida's patient bill of rights should go to arbitration. Five Points Health Care, Ltd. v. Alberts, 867 So.2d 520 (Fla.App. 1 Dist.) 1. Suit against a nursing home alleging violations of patient's rights under Florida's patients' bill of rights, Fla. Stat and , for injuries sustained when plaintiff was put into a tub of hot water, alleged causing him severe burns. a. Admissions agreement, pursuant to which plaintiff was admitted to the nursing home, contained an arbitration clause: Any controversy or claim arising out of or relating to the Agreement or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code Trial court denied motion to compel arbitration. 3. Appeals court reversed. a. Court referenced Florida's patients' bill of rights. i. Under Fla. Stat (1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. ii. In addition, Fla. Stat (2) provides that [t]he licensee for each nursing home shall orally inform the resident of the resident's rights and provide a copy of the statement required by subsection (1) to each resident or the resident's legal representative at or before the resident's admission to a facility. b. The court found the claim under the patients' bill of rights to be

17 arbitrable. i. [T]he obligations imposed by section do not arise until a person is admitted to a Florida nursing home, presumably under an admission agreement. ii. The arbitrability of statutory claims under Florida law has been upheld by the Florida courts. iii. Moreover, the Florida courts have found that an arbitration clause is not substantively unconscionable merely because it requires arbitration of a statutory claim. IV. Damage Awards A. Case Law The size of damage awards in tort litigation has been a hot political topic, and no less so in the long term care arena. More states have passed tort reform legislation limiting both compensatory and punitive damages. The U.S. Supreme Court has continued to challenge punitive damage awards on due process grounds. State courts, however, have continued to sustain large damage awards in abuse and neglect litigation. 1. Utah the Utah Supreme Court seemingly ignored a direct mandate from the U.S. Supreme Court and awarded punitive damages against an insurer nine times the amount of compensatory damages. Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409 (Utah, April 23, 2004), case remanded by U.S. Supreme Court. a. U.S. Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) held that the imposition of a $145 million punitive damages award against defendant was excessive and violated the due process clause of the Fourteenth Amendment, and remanded to the Utah Supreme Court. i. Utah trial court remitted jury verdict awarding $2.6 million compensatory and $145 million punitive damages to $1 million compensatory and $20 million punitive damages. ii. Utah Supreme Court, citing BMW v. Gore, 517 U.S. 559 (1996), reinstated the $145 million punitive damages award. (i) Found insurer's conduct to be reprehensible. (ii) Insurer's massive wealth relevant. (iii) Insurer's actions, because of their clandestine nature, will be punished at most in one out of every 50,000 cases as a matter of statistical probability, and the ratio between punitive and compensatory damages was not unwarranted. (iv) Award was not excessive when compared to various civil and criminal penalties insurer could have faced, including $10,000 for each act of fraud, the suspension of its license to conduct business in Utah, the disgorgement of profits, and imprisonment. iii. U.S. Supremes chided Utah Supremes (i) Applying Gore guideposts

18 (1) Reprehensibility the punitive damages award was based upon defendant's nationwide policies rather than for the conduct directed toward the plaintiff, and Utah Supreme Court should not have relied upon defendant's conduct outside Utah in measuring the reprehensibility of its conduct. (2) Ratio [w]e decline again to impose a bright-line ratio which a punitive damages award cannot exceed... in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. (3) Disparity between punitive damages and other penalties under Utah law, a $10,000 fine would have been the most assessed against the insurer. (ii) Majority opinion concluded that this case would justify a punitive damages award at or near the amount of compensatory damages. b. Utah Supreme Court, on remand, awarded $9,018, in punitive damages well in excess of the U.S Supreme Court's apparent conclusion. i. U.S. Supreme Court intended to vest some discretion in the Utah courts did not intend to mandate that punitive damages be capped at the amount of compensatory damages U.S. Supreme Court's conclusion contained words of prediction, not direction, and are wholly compatible with a remand order which... recognizes that Utah courts are best able to address our state's legitimate interests. ii. Applied Gore guideposts, rather Utah state test found in Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991). (i) Reprehensibility (1) Insurance not only provides economic benefits, but peace of mind, and [w]hen an insurer callously betrays the insured's expectation of peace of mind... its conduct is substantially more reprehensible than, for example, the undisclosed repainting of an automobile which spawned the punitive damages award in Gore ; (2) Insurer showed indifference or reckless disregard for the health and safety of plaintiffs; (3) Plaintiffs were financially vulnerable; (4) Not merely an isolated incident; (5) Insurer engaged in deliberate and deceitful conduct. (ii) Ratio (1) U.S. Supreme Court ratios exceeding single-digits... may be appropriate only where a particularly egregious act has resulted in only a small amount of economic damages, or where the monetary value of noneconomic harm may have been difficult to determine. (2) One-to-one ratio applies where a sizeable compensatory damages award for economic injury is coupled with conduct of unremarkable reprehensibility. (3) Here the trial court's determination that State Farm caused the [plaintiffs] $1 million of emotional distress warrants condemnation in

19 the upper single-digit ratio range (iii) Disparity between punitive damages and other penalties [t]he [U.S.] Supreme Court endorsed a punitive damages award of $1 million, which is one hundred times greater than the $10,000 fine. Presumably, then, this 100-to-1 ratio does not offend due process. Thus, somewhere between $1 million and $145 million, the difference between the $10,000 civil penalty and the punitive damages award becomes so great that the latter dwarfs the former. 2. Eighth Circuit Court of Appeals reduces punitive damage award, finding it to be conscience shocking and grossly excessive. Stogsdill v. Healthmark Partners, L.L.C., 377 F.3d 827 (8th Cir., July 23, 2004), a. Medical malpractice suit by administrators of patient's estate against the owner of a nursing home, applying Arkansas law. b. Patient had complained of constipation for a week, but nursing home staff never notified treating physician of her complaints or apparent symptoms. Finally, the patient's husband found her lying slumped over in her wheelchair with foul smelling white foam at her mouth while two nurses' aides were in the room making her bed. She was taken to the hospital, where the surgeon said that hers was [p]robably the wors[t] contamination I'd seen inside a person's belly. Patient died in the hospital two weeks later from multi-organ failure resulting from sepsis caused by the perforated bowel. c. District Court jury awarded the plaintiffs $500,000 in compensatory and $5,000,000 in punitive damages. Court denied defendants' postverdict motion for relief from the punitive damages award, which challenged award under both Arkansas law and the Due Process Clause of the U.S. Constitution. d. Court of Appeals conditionally affirmed subject to the plaintiffs' acceptance of a reduced award of $2,000,000 in punitive damages. i. Found that, give the facts, a reasonable jury could find more than negligence or even gross negligence. ii. However, with regard to the amount of the award, the court found that [the nursing home] staff's tragic neglect of [patient's] change in condition was sufficiently reprehensible to justify a substantial award of punitive damages but that the award of more than eight times [the nursing home's] net worth was conscience-shocking as a matter of Arkansas law and grossly excessive from the due process perspective. (i) De novo review both under Arkansas law, See Advocat, Inc. v. Sauer, 111 S.W.3d 346 (Ark.), cert. denied, 540 U.S and 540 U.S (2003), and federal due process standards under Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001). (ii) Test whether the award is so large as to shock the conscience of the court, or if it is clear that the jury was influenced by passion or prejudice. Test is the same under federal and Arkansas law three parts:

20 (1) Reprehensibility Here, while the degree of reprehensibility is substantial, the court found no evidence of intentional malice, trickery, or deceit. Also, jury may have considered evidence of general unsavory business practices by defendant, not directly relevant to the claim, and plaintiff's counsel admitted during closing argument that plaintiff was going after the people at the top not the perpetrators of the alleged harm. (2) Ratio ten to one ratio awarded by jury was excessive; Court approved a ratio of four to one, based upon Sauer, supra, and allegedly the US Supreme Court decision in Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (court there approved award of more than 4 to 1). (3) Disparity between punitive damages and other penalties Court found it unlikely that nursing home's staff's acts reflected 500 violations of Arkansas's Adult Abuse Law (at $10,000 per violation) needed to warrant a civil penalty of $5,000,000. B. Tort Reform Legislation. 1. Mississippi Comprehensive Civil Justice Reform - H.B. 13 (Special Session), signed by Governor on June 16, a. Joint and several liability in tort cases abolished. b. Non-economic damages i. Hard cap of $500,000 in medical liability cases; ii. All other civil case $1 million. c. Punitive damages modifies and lowers some caps on punitive damages, based upon the net worth of a defendant. i. $20 million for a defendant with a net worth of more than $1 billion; ii. $15 million for a defendant with a net worth of more than $750 million but not more than $1 billion; iii. $5 million for a defendant with a net worth of more than $500 million but not more than $750 million; iv. $3.75 million for a defendant with a net worth of more than $100 million but not more than $500 million; v. $2.5 million for defendants with a net worth of more than $50 million but not more than $100 million; vi. Two percent of the defendant's net worth for a defendant with a net worth of $50 million or less. 2. Ohio Comprehensive Civil Justice Reform Am. Sub. S.B. 80, signed by Governor on January 6, a. Non-economic damages i. In cases involving noncatastrophic injuries, limited to the greater of $250,000 or three times economic damages up to $350,000, per plaintiff, with a maximum limit of $500,000 per occurrence. ii. Limits apply to all cases except medical liability cases. iii. Juries may not consider the following when determining non-economic damages: (1) evidence of a defendant's alleged wrongdoing,

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