long term care litigation 9/10/2013

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Long-Term Care Litigation Sees SurgePlaintiffs and defense lawyers told The Legal that litigation against nursing homes and other facilities that provide care to older Pennsylvanians has ticked upward in the last decade, along with increased advertising by plaintiffs firms.

Amaris Elliott-Engel

2013-09-10 12:00:02 PM

Editor's note: This is the first in a two-part series.

When Rhonda Hill Wilson started representing clients in the field of long-term care litigation, there was not a lot of interest in representing elder Pennsylvanians for the torts they might have been wronged by.

Damages were only thought of in an "economic sense," said Wilson, of the Law Offices of Rhonda Hill Wilson in Philadelphia, and the trial-lawyer bar was more interested in representing clients who were breadwinners.

But in recent years, the understanding has developed that "even a person who is elderly or aged has value in his or her life," Wilson said.

Plaintiffs and defense lawyers told The Legal that litigation against nursing homes and other facilities that provide care to older Pennsylvanians has ticked upward in the last decade, along with increased advertising by plaintiffs firms.

In 2010, 15.4 percent of Pennsylvanians were aged 65 or older, while 13 percent of all Americans were aged 65 or older, according to the last U.S. Census.

'FAVORABLE CLIMATE'

Lawyers prosecuting health professional liability actions traditionally sued doctors and hospitals, but those sort of lawsuits died down with tort reform, said William J. Mundy, a Harrisburg attorney who is co-chair of Burns White's health care and professional liability group and has a longtime practice focusing on long-term health care litigation.

"While that has been on the decline, the nursing home litigation has been on the rise," Mundy said. "You could just say the fact of litigation rising when all else is dropping suggests it's certainly an issue unto itself."

There is concern in the long-term care industry that the litigation may be unsustainable, Mundy said.

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Marc T. Thirkell, a partner with Gordon & Rees in Pittsburgh who represents defendants in the long-term care industry, said that clients have seen an "increase every year for the last 10 years" in litigation.

Thirkell also said that advertisements in local newspapers correlate to an influx of cases.

Pennsylvania is "just a really favorable legal climate for trial attorneys," Thirkell said. "We don't have much tort reform."

Nursing care changed from thousands of independent operators to 20 or so large chains that dominate the majority of the industry, said Martin Kardon, a plaintiffs attorney with Kanter, Bernstein and Kardon in Philadelphia.

It has become an industry with lawyers putting together corporate structures to maximize efficiency and profitability and minimize financial exposure, Kardon added.

The typical types of injuries in nursing home cases are people who aren't supervised and get fractures; immobile people who are not fed and cleaned and get pressure ulcers from being in the same position; mobile people with mental impairments who wander away; and physical abuse and sexual assault, Kardon said.

Not having enough staff to meet the needs of residents "really is the underlying reason that people are neglected," Wilson said.

TO ARBITRATE or not TO ARBITRATE

Recent Pennsylvania cases that have concerned Pennsylvania defense lawyers representing the long-term care industry have included Scampone v. Highland Park Care Center, in which the Pennsylvania Supreme Court held that a nursing home may be held directly liable under a theory of corporate negligence, and Pisano v. Extendicare Homes, a case of first impression in which the Superior Court ruled that a nursing home arbitration agreement does not bind a resident's heirs because a wrongful death lawsuit is an independent cause of action.

With more favorable case law, more long-term care litigation is being pursued, said Stephen Trzcinski, a plaintiffs attorney with Wilkes & McHugh's Philadelphia office. Wilkes & McHugh is considered one of the initiators of nursing home litigation.

With the growth of litigation over long-term care, one of the hot legal issues has been the validity of arbitration agreements, including for claims involving punitive damages.

For example, in one Polk County, Fla., verdict this summer, a jury awarded $1.2 billion, including $1 billion in punitive damages, in a nursing home negligence case.

Defense lawyers argue that punitive damages are sought far more than necessary and plaintiffs lawyers argue that the threat of punitive damages is necessary to keep the industry responsible.

Paula G. Sanders, a Harrisburg attorney who is chair of Post & Schell's health care practice group, including long-term care legal issues, said that arbitration agreements are valid as long as clients' access to facilities is not conditioned on them signing those preinjury contracts.

"These are knowing waivers," Sanders said. "It's not even waiving a right. It's choosing a different forum."

"My clients just see it as an expeditious way for the parties to resolve their disputes," Thirkell said.

Nursing-home plaintiffs lawyer Robert L. Sachs Jr., the managing partner of Shrager, Spivey & Sachs in Philadelphia, said even as an attorney, when confronted with an inch-high pile of documents as his father was being transported in an ambulance from a hospital to a nursing home, that "the pressure to just sign and just not read was extraordinary. I'm embarrassed to say this, even as a lawyer, I felt pressure to sign everything in front of me."

Being admitted to a nursing home facility is the "last place where anybody can or should make a reasoned decision about whether to give up a constitutional right to a civil jury trial," Sachs said.

Plaintiffs lawyers Kardon, Sachs and Wilson also argued that arbitration actually is more expensive than jury trials



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because of the hourly rate that arbitrators charge.

Kardon said the best way to attack arbitration agreements for nursing home residents is on their validity and on procedural unconscionability, but he said he wouldn't give up on confronting the substantive unconscionability of such contracts.

Almost all agreements regarding arbitration are entered preinjury, Mundy said, and the U.S. Supreme Court has issued several opinions, including one involving a West Virginia skilled nursing home, favoring arbitration agreements. In the case of Marmet Health Care Center v. Brown, the court invalidated West Virginia's public policy ban on nursing home predispute agreements.

Some arbitration groups, like the American Arbitration Association, do not accept arbitrations involving preinjury nursing-home disputes, Sachs and Kardon said.

Another arbitration group, the National Arbitration Forum (NAF), agreed to stop administering consumer arbitrations, after the Minnesota attorney general sued the NAF on the allegations that a disproportionate number of arbitration cases were decided in favor of institutions, Trzcinski said.

Both Mundy and Sanders said that the Pisano decision may not be as favorable as the plaintiffs bar views it because federal pre-emption may apply.

There is "a central question about pre-emption under the Federal Arbitration Act," Sanders said. "It may be this case may get overturned on that basis."

The number-one dispute over arbitration agreements in Pennsylvania is the capacity of residents to sign one and be bound by one, Mundy said.

Agreements in which a resident's loved one had power of attorney and assented to an arbitration clause have been upheld less, Wilson said, because of the question of whether the agent had the authority to sign away the right to a jury trial.

There also has been a suggestion that punitive damages in nursing home cases should be capped to some extent.

As an attorney who has done both defense and plaintiffs work in the world of long-term care litigation, Trzcinski said that he saw a better public policy behind medical malpractice reform because those cases involve honest mistakes. But nursing home professional liability cases are not matters of errors in judgment but criminal neglect and abuse, he said. •



long term care litigation 9/10/2013

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