This is the second installment of our two-part series looking at medical malpractice cases in long-term care, from the perspectives of both the defense and the plaintiff.  Click here to read Medical Malpractice and Long Term Care: Defense.

 


Each season brings a new chapter in the legal battle over caps on medical malpractice claims. Recently, the Florida Supreme Court ruled that capping damages on pain and suffering in these cases is unconstitutional. The new ruling overturns a controversial law that the state legislature and governor affected back in 2003.  Even more recently, a Wisconsin appellate court declared its own state’s malpractice claim cap unconstitutional. This means that the State of Wisconsin will no longer limit noneconomic damages in medical malpractice cases to $750,000.

But where some limits on plaintiff damages are struck down, other roadblocks materialize. The State of Kentucky now requires a panel of medical providers to evaluate claims filed against healthcare providers, including long-term care facilities. Patients and their families who want to seek legal damages from a care facility must now go before a panel before they can go to court. The evaluator’s opinions are eligible to be used as evidence in subsequent litigation. This and other legislation could not only reduce monetary compensation but also delay plaintiffs’ access to the circuit court for months.

On the federal level, a bill passed in the U.S. House of Representatives, the Protecting Access to Care Act of 2017 (H.R. 1215), would limit both damages and attorney fees as well as modify statutes of limitations in medical malpractice claims. Non-economic damages in medical malpractice lawsuits would be limited to $250,000. Moreover, juries would not be made aware of this cap on damages. If enacted, H.R. 1215 would apply to litigation where healthcare coverage was provided or subsidized by the federal government, including through subsidies or tax benefits.

Arbitration Agreements

New legislation could have a tremendous impact on anyone whose loved one has received improper care or suffered an adverse medical event in a nursing home, assisted living center, or in other long-term care. Last fall, the Final Rule put forth by the Center for Medicare and Medicaid Services (CMS) stated that LTC facilities could not require clients to sign pre-dispute arbitration agreements, which aim to prevent residents and their families from suing over care issues. At this time, CMS is reconsidering this rule after the American Health Care Association challenged the rule in federal court and was granted a preliminary injunction in district court. CMS has published a new rule, the revisions of which include the removal of the prohibition on LTC facilities requiring residents sign an arbitration agreement as a condition of admission to a facility.

An Uncertain Future

Recent caps on medical malpractice damages suggests that claimants seeking relief from a long-term care provider may find the odds against them. It is unclear how long legislative battles may drag on, or what other U.S. states may follow suit with medical malpractice bills. This makes it all the more challenging – and all the more important – for plaintiff attorneys to fight vigorously for their clients’ interests.

To prevail against a long-term healthcare provider, the plaintiff must first establish that the LTC facility has breached the industry standard of care. The defense will counter with any evidence that the facility was in compliance with the standards of care or, in the case of any breach in the care standard, that they were not responsible for the adverse outcome that prompted the lawsuit.

An Expert to Challenge Their Experts

The plaintiff will counter by challenging the defense team’s expert testimony.  As with other litigation, medical malpractice and long-term care cases often pit one expert against the other.  This means calling the most relevant expert witnesses available to support the case. Nursing expertise is ideal in cases of LTC-related medical malpractice.

The next challenge is to justify the amount of damages the claimant is seeking. This means meticulously documenting not only the physical changes now, but problems he or she will likely have in the future. The less obvious the effects on a patient’s health, mobility and life, the greater the burden on the plaintiff’s legal team to prove that the damages sought are reasonable. Quantifying the pain and suffering of a living facility resident is not easy, to say nothing of a deceased patient who cannot testify on his or her behalf.

The Best Investment for Your Time

Attorneys lack the time – and paralegals and jurors lack the acumen – to painstakingly review and evaluate lengthy medical records. This calls for a skilled medical-legal professional to bridge the gap. Legal nurse consultants distill the facts to their essence while providing constructed evaluations, analyses, and case histories. They provide precise, comprehensive information that attorneys can use and jurors can understand.

While medical malpractice caps and other changes affecting long-term care patients are evolving, a legal nurse consultant can be the best weapon in your arsenal. Contact us to learn more how you can put the ALN Consulting team to work for you.

 

Sources

“Wisconsin’s cap on medical malpractice awards unconstitutional, courts rules,” Milwaukee Journal-Sentinel, July 5, 2017
http://www.jsonline.com/story/news/investigations/2017/07/05/wisconsins-cap-medical-malpractice-awards-unconstitutional-courts-rules/451418001/

“Malpractice damage caps struck down by Florida Supreme Court,” Orlando Sentinel, June 8, 2017.
http://www.orlandosentinel.com/news/politics/political-pulse/os-malpractice-damages-20170608-story.html

“Lawsuit challenges new law aimed at limiting medical malpractice lawsuits,” Lexington Herald-Leader, July 6, 2017
http://www.kentucky.com/news/politics-government/article159985419.html

“Florida justices eye constitutionality of malpractice caps,” Palm Beach Post, June 9, 2016
http://www.palmbeachpost.com/news/state–regional-govt–politics/florida-justices-eye-constitutionality-malpractice-caps/TomuNdKwsg6wTE2mjPK5gN/

“House passes medical malpractice bill,” Washington Examiner, June 28, 2017
http://www.washingtonexaminer.com/house-passes-medical-malpractice-bill/article/2627374

“CMS lifts ban on nursing home arbitration agreement,” Modern Healthcare, June 5, 2017
http://www.modernhealthcare.com/article/20170605/NEWS/170609949/cms-lifts-ban-on-nursing-home-arbitration-agreement