A Legal Matter

Litigators and legislators play chicken-or-egg with nursing home issues

All told, the state has issued 14 citations to Glendale Care Center since June of last year. No fines or other punishments have been levied.

Legislators last year considered a bill that would have made it tougher to sue nursing homes. They expect to do the same in the upcoming session that begins January 10.

The bill blocked last year would have capped attorneys' fees and raised the standard from "negligence" to "gross negligence" before plaintiffs could prevail. Lawmakers say they're not sure what will be in this year's proposal, but Senator Carolyn Allen, chairwoman of the Senate Health Committee, says she favors limits on nursing home lawsuits. She says she sees too many advertisements from lawyers in search of clients. "They're trolling," she says. "It's kind of disgraceful."

However, Arizona lags well behind other states in lawsuits and litigation costs, according to the industry itself. A survey commissioned by the American Health Care Association, which represents nursing homes, shows that Arizona had seven claims per 1,000 occupied beds in 2003; the nationwide average was 15.3. Litigation costs, including monies paid to plaintiffs and legal fees, for each occupied bed in Arizona, were $710; the national average was $2,290. The cost per claim last year was $100,000 in Arizona, substantially less than the national average of $149,000.

Allen says she sees a linkage between tort reform and the regulatory system: If lawsuits aren't a deterrent to bad care, government regulators should be. She says she'll bring trial lawyers, nursing home representatives and the Department of Health Services to the table before deciding what to do. "I'm still in my learning curve," Allen says. "If we need to have more inspectors, maybe we ought to look at that."

In Florida, legislators three years ago capped attorneys' fees in nursing home litigation, limited punitive damages and reduced the statute of limitations for filing lawsuits. At the same time, lawmakers enacted minimum staffing levels and required nursing homes to adopt risk management programs to prevent poor care. Since then, the number of lawsuits has plummeted and the quality of care has improved, according to federal inspection records.

Other states have bigger hammers and more tools than Arizona, where the maximum fine is $500.

The state of Washington bypasses the federal government, issuing virtually all fines under state law. The maximum penalty is $3,000. When Washington regulators find serious violations, they immediately ban homes from accepting new residents until problems are fixed. It happens between 15 and 20 times a year. "That generally gets their attention right off the bat," says Linda Ronco, chief enforcement officer with the Washington Department of Social and Health Services.

Lisa Wynn, deputy assistant director for the Arizona Department of Health Services' licensing division, says state law doesn't give her staff the power to administratively ban nursing home admissions in Arizona. "We have the authority to do something like a temporary restraining order, but it's not something we regularly do," she says.

Arizona law does allow the state to appoint temporary managers to protect residents, a power that regulators can't recall ever using. "Most of the time, if the [nursing home] owner believes that part of the problem is with the administration, they will replace the administrator, so it's nothing we have to suggest," says Catherine Corbin, who worked as a nursing home administrator until DHS hired her nine months ago as a program manager to supervise inspectors. "I've not seen an instance where an administrator was poor and the problem was due to an administrator and the administrator stayed very long at all."

Washington doesn't wait for nursing home owners to find better management. Unlike Arizona regulators, Washington appoints temporary management to oversee operations in the worst cases. The state rarely takes that step, Ronco says, but has done so once or twice in some years. It can be expensive. Washington has spent as much as $675,000 running a single nursing home. Some of the money comes from fines levied against nursing homes.

Steve Garcia, a California attorney who started suing Arizona nursing homes about two years ago, says deterrents are the key to stopping bad care, and that can happen in two ways. One is through lawsuits, he says. "The other is to really do the right thing and really enforce, and it's not happening," he says.

Wynn agrees lawsuits are one way to convince nursing homes to shape up. She points out that plaintiffs' attorneys can use state reports as ammunition, even if no fines were issued.

But Toby Edelman, a lawyer with the Center for Medicare Advocacy in Washington, D.C., says litigation and regulation are two different things.

"The regulatory system is supposed to prevent bad things from happening," she points out. "Waiting until bad things happen, then suing in court isn't the answer.

"By then, you're dead."

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