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Assisted Living Regulations Available for all 50 States

Billy Cunningham — Sat, 11 Apr 2009 09:05:18 GMT

The National Center for Assisted Living (NCAL) recently compiled a summary of the assisted living regulations in all 50 states. The Assisted Living State Regulatory Review can be found at this web page: http://www.ncal.org/about/2009_reg_review.pdf

The Review noted that about one million Americans are now resident in assisted living facilities. Of those about 115,000 received assistance from Medicaid programs in the various states. Until recently, there was little or no oversight for these homes. While there are some federal laws that impact assisted living facilities the primary responsibility is in the hands of state governments. Regulations throughout the US vary. The Assisted Living State Regulatory Review is a source consumers can go to and learn about the regulations in your state.

The Review provides us not only with a summary of the regulations but also with the contact information for the state agencies which provide the oversight. You can find for every state the agency/phone number, the website for the agency, and the direct contact person with that agency who can answer questions and give you information on how to obtain a complete copy of that state’s regulations.

Eighteen states made changes in 2008 and ten states on working on changes this year. Last year some of the changes observed by the NCAL included updates of emergency/disaster preparedness and fire safety standards. Five state’s regulations increased staff training requirements. Four states reported changes to their medication requirements- like Maryland’s new regulation that requires a licensed pharmacist to review physician prescriptions, orders, and resident records every six months for residents who have nine or more medications. Other trends seen in regulation changes include additional disclosure requirements and changes to background check requirements.

The summary of these regulations can assist consumers trying to decide if a facility is proper for a loved one, in determining whether a facility is complying with the state’s requirement, will give the facility operators with contact information so they can be compliant with the regulations, and provide a resource of information for lawyers who represent victims of abuse in these facilities .

Originally posted at InjuryBoard by Billy Cunningham

Caps on Damages Make No Sense

Billy Cunningham — Sat, 07 Nov 2009 11:14:08 GMT

The Republican proposal on health care reform has provisions to limit compensation for non-economic injuries to persons injured or killed as the result of medical malpractice including residents of nursing home who are neglected or abused. Most of my practice over the past 23 years of my 35 year career has been representing nursing home residents. I began thinking of how I would tell clients and/or their families that nursing home neglect and abuse was included in the medical negligence bill proposed. How do I explain that injuries to the elderly, vulnerable members of our society are limited? Here are people who cannot protect themselves, who rely on nursing homes for their safety and well being, and to provide a quality of life that Congress knows what the limit of those injuries are? I thought of all the cases that I have handled involving injuries in nursing homes. The following are actual examples of victims of nursing home neglect and abuse that under the standard proposed by the Republicans would be limited in any award against the nursing home that caused the injuries or death the award.

Mr. A. who had a grapefruit sized vaginal malignant tumor that the nursing home never knew about- death case.

Mr. B. , an Alzheimer patient in a ‘special unit’ who despite no other physical diseases developed multiple state 4 pressure sores, contractures and severe weight loss – death case.

Mr. C., a smoker, who was strapped in a wheelchair and unwatched burned to death when a lighter caught his clothing on fire.

Mrs. D who was overdosed with psychotropic medications to keep her quiet and while trying to escape the torture fell in a bush and lost an eye. After this incident she was moved to a nursing home that properly cared for and weaned her off the psychotropic medications. She was discharged and the last I heard was playing the slot machines in Biloxi. Personal injury case.

Mr. E. who was beaten to death by another nursing home resident who had previously beaten other resident. No precaution was taken to protect any of these residents.

Mr. F. who was demented and known to have a desire to leave the facility and fell from an open window. death case

Mr. G. who went in a nursing home for a 21 days rehabilitation after hip surgery and developed a pressure sore so big on his leg that the leg had to be amputated- personal injury case.

When you look at the data which shows that medical malpractice is a very miniscule part of the cost of health care, you have to ask yourself whether proposed limits are fnecessary for health care reform or fair to the victims.

Originally posted at InjuryBoard by Billy Cunningham

AHA Advocates substituting good ole boys for juries

Pete Burns — Wed, 21 Oct 2009 09:14:53 GMT

The American Hospital Association is advancing a bizarre version of malpractice “reform”. It advocates substituting a local panel of experts appointed by state authorities for juries. So the state medical association would appoint doctors in each community to sit in judgment of doctors in their communities. That would be an effective way to curb malpractice suits! Suppose we gave the same opportunity to contractors, business executives, and drug companies? Industry insiders could be counted upon to reduce the cost of litigation to their comrades by shifting the burden of malfeasance to the victim. Heaven help us if we replace our venerable jury system with the good ole boy network.

Originally posted at InjuryBoard by Pete Burns

Policy Limits Demand

Pete Burns — Tue, 07 Apr 2009 14:28:50 GMT

The policy limits demand is a powerful tool for the plaintiff and should be taken seriously by the insured defendant. The plaintiff is saying that she will settle her case for a specific sum or the amount of insurance the coverage available to the defendant. If the insurance company refuses to settle the case and the plaintiff wins more than the policy limits sometimes the insurance company can be required to pay the entire judgment. That may require that the defendant sue his insurer for a "bad faith" refusal to settle. If the plaintiff will settle for policy limits and the defendant's insurance company will not agree the smart defendant will hire a lawyer to evaluate the situation immediatley.

Originally posted at InjuryBoard by Pete Burns

Study Does Not Support Changing Med-Mal Tort System

Billy Cunningham — Fri, 18 Sep 2009 13:34:43 GMT

In December, 2008, the Congressional Budget Office (“CBO”) prepared a study paper entitled Key Issues in Analyzing Major Health Insurance Proposals. One of the issues addressed were proposals which seek to change medical practices by focusing on the ways in which patients and medical providers settle disputes about treatment. That is a fancy way of saying proposals to modify the laws about medical malpractice.

The study found that in 2003 approximately 181,000 severe medical injuries occurred in U.S. hospitals that were attributable to negligence. Only 17% of those patients chose to file a malpractice claim. Interestingly, the study reported that patients who did not file a claim may have been unaware that the negligence had occurred, or they may have been discouraged from filing a lawsuit because of the time, effort and expense involved.

In 2008, CBO estimated that healthcare providers are likely to spend more than $30 billion to defend against and pay medical malpractice claims. However, that money represents about 1.5% of national health expenditures and less than 3% of total payments to doctors and hospitals. The report goes on to discuss caps on award damages in medical malpractice cases and determined that savings resulting from such caps would reduce total healthcare spending by less than 0.2%. The bottom line of the study by CBO was that it had not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on healthcare spending. With such a small percentage of the overall health care costs involved, you wonder why there is such a clamor for change? Could it be that insurance companies see another way to make even more money while denying the injured their day in court?

In summary, this study produced during Bush’s administration does not support a change in our medical malpractice system. The changes proposed all involve a federal type system. A federal system is contrary to what most tort reformers advocate out of the other side of their mouths-state’s rights. For example, in the two states where I practice, Mississippi has very restrictive punitive damages laws and Alabama has very restrictive standards of proof in medical malpractice cases. Why can’t the states control their own destiny over such a minute matter in the healthcare debate?

Originally posted at InjuryBoard by Billy Cunningham

Replace "Deny & Defend" with "Honesty & Apology"

Pete Burns — Sun, 13 Sep 2009 12:41:06 GMT

Tying “Tort Reform” to health insurance reform could benefit both the doctors and the patients. The typical victim of a medical error wants fair compensation not a lawsuit. Most doctors who negligently injure a patient would rather that their insurance company quickly settle the matter than go through a lawsuit.

The University of Michigan Health System started a policy of “honesty and apology” in 2002. CBS reports that the policy change has reduced claims from 262 in 2001 to 83 in 2007. Fewer claims have allowed the system to drop its malpractice insurance cash reserves from 73 million to 13 million. http://www.cbsnews.com/stories/2009/09/12/eveningnews/main5306072.shtml

Wouldn't it be appropriate to reduce medical malpractice litigation by encouraging insurance companies to pay legitimate claims? After all, that is why doctors buy insurance.

Originally posted at InjuryBoard by Pete Burns

Tort Reform - As Seen In The Movies

Pete Mackey — Wed, 23 Sep 2009 08:36:09 GMT

Remember the opening scene in the movie "10"? The elderly woman sitting in a chair against the wall lets one loose, whereupon the sleeping dog next to her bolts out of the room. As Dudley Moore watches in wonderment, the butler explains, "whenever Mrs. Kissel breaks wind, we beat the dog."

And so it goes with tort reform. Malpractice carriers raising their rates? Beat the dog. Too many OB/GYNs aren't able to practice their love with women all across this country (note to W - the awesome quote does not make up for the lie)? Beat the dog. Need to throw a bone to the naysayers in order to get a healthcare bill passed? Beat the dog. What do they do when beating the dog doesn't lower malpractice premiums or lower healthcare costs? At that point, it doesn't matter, because it was never about the dog, anyway.

Originally posted at InjuryBoard by Pete Mackey

Health Care Crisis- Common Sense Approach or Political Football

Billy Cunningham — Fri, 11 Sep 2009 16:43:32 GMT

In last Wednesday night’s address, President Obama directed the Secretary of Health and Human Services to move forward on Bush administration initiative of demonstration projects in individual state to test whether doctors are truly practicing defensive medicine contributing to unnecessary costs, how to put patient safety first and to let doctors focus on practicing medicine. This statement was one of the few times the Republican side of Congress stood up to clap. But what is really happening? What will these projects discover?

The priority should be safety of the patient. I trust no one can disagree about that. Critics on the right have and are continuing to cite the lack of tort reform as a major deficiency of the current proposals on the medical crisis debate. Big business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system. Never have I seen them cite the 2007, Congressional Budget Office study that estimates that costs associated with medical malpractice claims only amounted to 2% of overall health care spending. Nor have they cited a number of other studies that suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and—in some cases—intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high.

Mike Ferrara in his blog of September 7 referred everyone to Texas with all its caps passed in 2001, but which has "three of the top ten most expensive cities in the country to receive health care: McAllen, Harlingen and Corpus Christi. In each of these cities, every Medicare patient is costing the country more than $10,000 a year (a couple thousand more than the national average)."

Shouldn’t Congress and the medical community be focusing on real solutions to our health care crisis? Let’s face it medical malpractice is real and profoundly affects the victims when physician, hospital, nursing home and other health care providers violate the standards of care each promise to provide. Why shouldn’t they be held responsible like you or I are when they run medical stop signs and injure somebody? According to studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of PREVENTABLE medical errors. These statistics place death by malpractice as the 6th leading cause of death in the United States.

Lest we forget, the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers. This right is a foundational principle of our civil liberty. To take that away when the facts do not support the rhetoric about medical malpractice is to do exactly the opposite of what conservatives and liberals all should hold dear - each of us should be responsible and accountable before the law. The importance of a civil justice system that protects everyone and treats all litigants—rich and poor alike—as equals before the law should not be swept under the rug in guise of health reform.

Perhaps, I am worrying unnecessarily. If the projects the President is proposing are performed in a non-political atmosphere, the true facts will come to light. What I fear is that politics will control the day not common sense.

Originally posted at InjuryBoard by Billy Cunningham

Medical Malpractice: Universal health care & shifting the cost of negligence

Pete Burns — Wed, 15 Jul 2009 10:32:28 GMT

We have approximately 50 million Americans without health insurance. Health care cost following an accident or illness is the most common cause of bankruptcy in the United States. Cleary this is a system in need of change. Congress and the President are proposing universal health care legislation. Carefully crafted this legislation could be as beneficial to society as Social Security and Medicare.

Rutgers reports that Representative Dave Camp, the senior Republican on Ways and Means, said in connection with universal health care legislation that Republicans would focus on limiting liability lawsuits. http://www.reuters.com/article/GCA-HealthcareReform/idUSTRE56D6L120090714 That approach violates a fundamental belief of our society: people are responsible for their conduct. Relieving any negligent party of some or all responsibility for the harm they caused shifts the financial burden from the wrongdoer to the injured party. If I accidentally killed two of your cows what would you think of a justice system that only required me to pay you for one? A half a cup of justice is a half a cup of injustice.

Furthermore, shifting the consequence of negligence to the victim does nothing to solve the problems stemming from lack of health insurance. Malpractice awards are a minor component of health care costs amounting to less than 1% of the health care dollar The Medical Malpractice Myth by Tom Baker. The impact to the system of shifting the burden of malpractice to the patient would be minor but devastating to the injured individual.

Our leaders must resist political pressure to surrender the right of injured parties in order to obtain universal health care.

Originally posted at InjuryBoard by Pete Burns

Dissecting Aorta: Timely treatment or death and malpractice

Pete Burns — Sun, 11 Jan 2009 17:52:24 GMT

There are about 2,000 cases of aortic dissection in the United States each year. With timely treatment the survival rate is approximately 85%. Without treatment 25% of patients die in the first 24 hours, 50% die within the first week, 75% the first month and a whopping 90% the first year.

Along with Daniel Evans we represent the family of a patient who died in a community hospital after waiting almost 11 hours to be seen by a doctor capable of treating a dissecting aorta. In this medical malpractice wrongful death case no doctor laid eyes on our client the last seven hours of his life. Even after an unequivocal diagnosis by CAT scan six hours before his death he was neither seen by a physician nor transferred to a better staffed facility. This tragedy could have been prevented by timely transporting the patient to a trauma center. If the family had known his condition they would have insisted upon transport.

Here is why timely treatment is important. The aorta has 3 tissue layers. The most frequent type of dissecting aorta is one in which the inner layer which is in direct contact with the blood develops a defect which allows blood to pass between the inner lining of the aorta and other layers. Blood in the aorta is under pressure and a breach in the inner layer creates a second channel within the aorta. That channel expands because of the force of the blood being pumped by the heart. As the channel expands the possibility of various lethal conditions developing increases. As mentioned above, the risk of death in an untreated aortic dissection is very high especially in the first 24 hours.

When someone experiences sudden severe chest pain emergency transport to the nearest trauma center provides the best chance of survival. Wherever you go it is critical that you be seen by a competent doctor who can promptly distinguish between heart attack and dissecting aorta. The difference is important because blood thinners, like heparin, are appropriate for a heart attack but can make a dissecting aorta worse. If a love one is in this situation be an advocate for that person. Determine what the diagnosis is, what experience the hospital and doctor have in treating that condition and what transport options are available. Your love one’s life may depend upon these answers.

Originally posted at InjuryBoard by Pete Burns