Today’s New York Times featured an article on a new, and quickly spreading, effort to deinstitutionalize nursing homes by changing their physical structure. Instead of occupying a vast hospital-like building, these new nursing homes are made up of clusters of arts-and-crafts style houses called “Green Houses.”
Each Green House is home to approximately ten residents. The floor plans are open and lead to interaction between staff and residents. For instance, food for the residents is prepared in a warm open kitchen, instead of some industrial-grade cafeteria, and residents will often make small talk with the cooks as they prepare their food.
There are currently 117 Green House nursing homes in the United States, with plans for more.
Residents of Green Houses experience fewer bed sores than those in conventional nursing homes, according to one survey, and each day they get 24 minutes more of direct and personalized care and 1.5 hours more of nursing staff time than those living in traditional nursing homes.
The cost of nursing care in a Green House is approximately the same as the cost of nursing care in a traditional nursing home, but the per-patient construction costs of building a Green House are slightly higher than cost of building a traditional nursing home.
Let’s hope the Green House movement catches on.
(A side note: thanks to a talented client who recently introduced me to the wonders of Greene & Greene‘s arts-and-craft furniture and architecture, I thought the “Green House” movement’s arts-and-crafts houses might have taken their inspiration from Greene & Greene, but, alas, it appears they are so named because the “Green Houses” originated with the Green Hill nursing home corporation).
Last week, the MacArthur foundation announced this year’s winners of their $500,000 grants (commonly known as their “genius grants”). One of the recipients, Marie-Therese Connolly, is a lawyer who has devoted her life to combating elder abuse and neglect.
A graduate of Northeastern University School of Law right here in Boston, Connolly was working in the Department of Justice in the late 1990s when a Government Accountability Office (GAO) investigation uncovered abuses of patients at many nursing homes nationwide. In response, President Clinton directed the DOJ to create what became known as the Elder Justice and Nursing Home Initiative and Connolly was put in charge.
In an interview with NPR’s Morning Edition, Connolly said she hopes the award will bring greater attention to the plight of the abused elderly. Connolly stated that 1 in 10 Americans over the age of 60 is the victim of abuse or neglect. Among elderly with dementia, the rate of abuse is even higher. A staggering forty-seven percent of elderly with dementia suffer abuse. And only about one in twenty-five incidents of elder abuse is reported or investigated.
Congratulations to Connolly on this great honor. Advocates against elder abuse and neglect have made a lot of progress in the past decade but much remains to be done.
Last week, I blogged about how Pointoflaw, a tort reform website run by the Manhattan Institute think tank, misleadingly (to my mind) described a $28 million jury verdict against a nursing home. My post received the attention of Eric Turkewitz and his New York Personal Injury Law Blog, who included it in a link roundup. Eric’s post on his blog led to a response by Pointoflaw, defending the original post and further criticizing the verdict and nursing home litigation in general. Rather than engage in back-and-forth about whether Pointoflaw originally misstated the case, I thought I would take this opportunity to discuss the legal and public policy issues surround this $28 million verdict and nursing home litigation generally.
I. The Law
Ted Frank criticizes me failing to recognize the “utter lawlessness of the verdict.” So was the verdict unlawful? That’s a question that needs to be unpacked a bit before it can be answered.
I agree with Frank that the verdict will almost certainly be “reined in by the trial or appellate courts.” The reason is that in State Farm Mutual Auto Ins. Co. v. Campbell, the Supreme Court announced that a “single-digit ratio between compensatory and punitive damages” is the ratio most likely to comport with the Due Process requirements of the Fourteenth Amendment. While the Court declined to announce a bright-line or per se rule that double-digit multipliers are unconstitutional, the Court essentially encouraged lower courts to review double-digit multipliers skeptically and lower courts have diligently followed these instructions. The 25.5:1 ratio of punitive to compensatory damages in the California nursing home case means that a Court is likely to conclude that the damages are excessive.
It’s worth noting however that the Court’s two stalwart conservatives, Justices Thomas and Scalia, do not believe that the Court’s curtailment of punitives represents good law. Justice Scalia and Thomas believe that, “the Constitution does not constrain the size of punitive damages awards,” and that the Court’s reversal, since 1996, of certain punitive awards, constitutes, “an unjustified incursion into the province of state government.” Scalia and Thomas believe that the Court’s punitive damages jurisprudence is so badly flawed that it is not entitled to stare decisis, i.e., being treated as binding precedent.
Lastly, to the extent that Frank suggests that it was legal error for the jury to hear evidence of the defendant’s balance sheets, he would find himself in a distinct minority camp.
II. The Public Policy
Today, 1.5 million Americans live in nursing homes. As Baby Boomers age, this number will only increase. No one would dispute that some nursing home residents are abused and neglected by staff – the only questions are how pervasive the neglect is, what approaches we can take to reduce it, and the costs of those proposals to reduce abuse and neglect.
Obviously, one method of reducing nursing home abuse is to allow patients to sue their nursing homes for compensatory damages caused by the nursing home’s negligence. Ideally, such lawsuits force nursing homes to absorb the cost of the injuries they cause, insuring they will go bankrupt if, on balance, they are doing more harm than good.
Punitive damages also have an important place in such a framework. Ideally, the award of punitive damages in a nursing home neglect case serves to deter both the defendant nursing home and other nursing homes from engaging in such tortious conduct in the future. One economist, whose work is cited favorably in a recent Pointoflaw post, has proposed an efficient punitive damages regime wherein the amount of punitive damages would approximate the number of times the defendant “got away with it,” although the Supreme Court rejected such a framework in BMW v. Gore, where it noted that economic efficiency is not the criterion by which it decides its cases and that the Constitution, “does not incorporate the views of the Law and Economics School,” nor does it “require the States to subscribe to any particular economic theory.”
So the question becomes what social science data do we have to suggest that lawsuits against nursing homes are having a pernicious effect on society? Frank offers the experience of Florida, where the Florida AARP supported the repeal of a strict liability statutory scheme that held nursing homes liable for certain injuries to nursing home patients, regardless of whether the nursing homes were negligent in the treatment of the patients. But the failure of a strict liability regime is of marginal relevance to the assessment of a fault-based system.
Like the AARP in a 2003 white paper, I favor the imposition of a negligence-based standard of care on nursing homes and oppose caps on noneconomic damages on the grounds that they, “may have harmful consequences on quality of care and access to compensation for injured residents and their families.”
At risk of sounding like someone afflicted by epistemic closure, I also think nursing homes should look to draw upon an underutilized resource in their midst – their patients who are alert enough to be attentive to their roommate’s health. Rodin and Langer’s famous (or rather infamous) 1970s nursing home social psychology experiment (described in the Leonard Mlodinow blog post) shows that giving nursing home patients responsibilities for themselves or others dramatically improves their health and mortality. While having nursing home residents report on the health of those around them would not satisfy the nursing homes’ legal duty of care, it might reduce liability by by reducing the number of critical incidents.
I’ve blogged previously about how misleading some of the blog posts on tort reform websites are – how their synopses of cases get it all wrong. This is doubly true when you see a link roundup of cases on one of these websites – one sentence summaries of cases followed by links.
The latest instance of this sort of dishonesty that I’ve come across was in a Point Of Law roundup post of May 17. The post contains the following precis of a case: “$28 million in punitive damages for bedsore in Sacramento.” Really, Point of Law? You’re better than that. Or at least you should be.
Having read The Pop Tort‘s coverage of the nursing home verdict a few days earlier and followed Point of Law‘s post through to its links, it’s obvious that this $28 million dollar punitive award was not for the bedsore: it was for a wrongful death. So far as the news reports tell it, the case concerned a seventy-nine year old woman who fell and fractured her hip in a nursing home operated by a company that had previously been cited for understaffing and patient neglect. The woman then developed an untreated bedsore that became infected and resulted in her death.
Hmmm….so is it $28 million for a bedsore or $28 million for a corporation’s killing an elderly woman through its “malicious, fraudulent and oppressive” business practices?
The Globe and Herald report today on another alleged incident of nursing home abuse, this one involving the Elizabeth Seton Residence in Wellesley Hills.
The main allegations are that a male certified nursing assistant used his position to commit indecent assault and batteries upon vulnerable female patients.
Today’s Boston Herald features a great set of investigative articles by reporter Jessica Fargen that detail the problem of nursing home abuse and neglect in Massachusetts.
In recent inspections, nearly forty percent of Massachusetts nursing homes were judged substandard under federal regulations. With 45,000 Massachusetts seniors living in nursing homes and that number growing, the seriousness of this problem to our legislators should be obvious.
One of the Herald stories singles out eight of the worst Massachusetts nursing homes. According to the Herald they are:
- Glenwood Care and Rehabilitation Center (Lowell)
- Everett Nursing & Rehabilitation Center (Everett)
- Glen Ridge Nursing Care Center (Medford)
- Hunt Nursing and Rehabilitation Center (Danvers)
- SE Massachusetts Health and Rehabilitation Center (New Bedford)
- Eastpointe Nursing Care Center (Chelsea)
- Eliot Healthcare Center (Natick)
- Peabody Glen Health Care Center (Peabody)
The abuse and neglect detailed by the Herald story is shocking. Nursing home residents not receiving CPR when unresponsive. Nursing home residents who are the victims of physical, sexual and verbal abuse by staff. Nursing home residents slipping and falling in puddles of their own urine. Untreated bed sores, pneumonia and urinary tract infections.
If you have a family member in a nursing home, there are some great resources out there to help you investigate the quality of care at the nursing home where your family member is cared for. The Herald story mentions the mass.gov wesbite, but you can also use the Department of Health and Human Services’ OSCAR database. Or contact the Massachusetts Advocates For Nursing Home Reform.
USA Today ran a great article yesterday on nursing home quality. Their investigation found, somewhat surprisingly, that nonprofit nursing homes provide better care than for-profit homes.
So, nursing home care seems to be one of those few areas in life where you don’t necessarily get what you pay for.
Upon reflection, the results aren’t so surprising. Caring for the elderly is a calling. People who are motivated primarily by money are unlikely to have that calling and therefore are likely to provide lesser care.