Study Exposes Myth of Frequent, Frivolous Elder Abuse Claims
SAN FRANCISCO, CA -- January 30, 2004 -- The number of lawsuits filed against California nursing homes on behalf of residents is extremely low, according to a report by the consumer group, California Advocates for Nursing Home Reform (CANHR), and most cases involve a small group of facilities with poor records of care. These statistics refute the nursing home industry's claim that frequent, frivolous nursing home lawsuits are causing increased insurance premiums and a health care crisis.
The CANHR study reviewed lawsuits filed during a three-year period from 2000 through 2002 in Northern California, the San Francisco Bay Area, Sacramento county, and Los Angeles county. The researchers found a total of 501 nursing home abuse lawsuits, an amount that averages out to 167 lawsuits per year for 577 nursing homes with 58,134 beds. The lawsuits included all claims against nursing homes by residents, not just those where the legal theory was elder abuse.
Ten percent of the nursing homes, most with dismal histories of elder abuse and neglect violations, were responsible for 47 percent of the lawsuits. Half of the lawsuits filed against these nursing homes were wrongful death claims. The rest concerned serious injuries such as severe bedsores, amputations, dehydration, falls, and physical abuse. These nursing homes averaged almost 100 percent more deficiencies and nearly 200 percent more complaints than did nursing homes that were not sued.
California Nursing Home Abuse Law
The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) allows elder abuse victims to seek damages in court, including those for pain and suffering. The law applies to physical abuse, neglect, or financial abuse when the abuser is guilty of "recklessness, oppression, fraud, or malice."
The nursing home industry has lobbied to weaken the EADACPA, claiming that the law has caused nursing home insurance premiums to skyrocket. CANHR believes that insurance companies are hiking rates because the economic downturn has caused them to lose money on investments, not because of numerous large awards. Also, poor treatment of residents and the high-risk behavior practiced by some nursing homes results in increased premiums.
The Need for Improved Nursing Home Care
A recent project of the California Attorney General's office confirms the need for improved nursing home care. From April 2001 through March 2003, "Operation Guardian" conducted surprise inspections of 150 California nursing homes. The results were disturbing. Over two-thirds of the nursing homes did not meet minimum staffing requirements, a problem that can lead to serious neglect of residents. Substandard and dangerous conditions were too common, including fire safety violations, loose handrails, cockroaches, mildew, improper food handling, and foul odors from urine and feces. One hundred thirty-two out of the 150 nursing homes had patient care violations, including failure to document residents' medical treatment or follow the orders of the medical staff, overmedication, unreported incidents of alleged elder abuse, preventable injuries, and failure to attend to residents' personal hygiene.
- Nursing homes and insurance companies should work together to identify high-risk facilities, intervene and provide them with technical assistance.
- Insurance companies should be required to demonstrate the need for any nursing home insurance rate increase. "Clearly, what is needed is a cap on insurance industry profits, not a cap on damages for elder abuse."
- California should prohibit pre-dispute arbitration clauses in nursing home admission agreements.
- The "burden of proof" required for plaintiffs to bring elder abuse cases under the EADACPA should be lowered. The standard should be "preponderance of the evidence" rather than "clear and convincing evidence."
The full text of the CANHR report is on the organization's web site. You can find copies of Operation Guardians reports on the web site of the California Attorney General. (Scroll to the heading "Prosecuting Elder Abuse," then to the subheading "Operation Guardians," then to the second paragraph under that subheading for links to the reports.) For further information about elder and nursing home abuse issues, see our web site, Elder Abuse Information.
At Brayton Purcell, we believe in dignified, helpful, and respectful care for our senior citizens and advocate against abuses in nursing homes and other long-term care facilities. If you have questions about the legal rights of an elderly loved one, please contact us. We are experienced in all areas of elder abuse law, including elder neglect and pain management issues.