Tag: Medical Professional Liability Act

Medical Professional Liability Bill Passes in the House

Senate Bill 6, relating to medical liability caps for nursing home administrators, was up for passage in the House Tuesday.

Last week, this bill stirred up a lot of controversy during a public hearing. Children and wives of nursing home residents feared the bill would give immunity to corporations in charge of nursing homes who might be involved in malpractice or fraudulent cases. Many shared their own stories of their loved ones dying in the care of nursing homes due to neglect and other acts.

Speakers who were for the bill, however, said it would aid nursing homes that, they claim, are attacked by out of state trial lawyers who might be looking for a quick buck.

Those arguments mirrored the ones on the house floor yesterday. Delegate Tim Manchin spoke out against it.

“What this bill is about is protecting corporations, large business entities that are not rendering healthcare,” said Manchin, “They are making economic decisions. That’s all they’re doing. They are not listening to their local facilities, they’re not listening to regional directors; they’re making these decisions in a vacuum.”

Delegate Denise Campbell, also a Democrat, said she has worked in a nursing home for fourteen years.  She explained that many nursing homes are wrongly sued because people don’t understand the rules the facilities have to follow. She held up the book of federal rules for nursing home care.

“That’s one of the biggest reasons nursing homes are sued is because of falls,” Campbell said, “Well if you look in this book right here; this book will tell you that you cannot put any type of a restraint on anybody, whether they understand that’s it’s dangerous for them to get up and walk, and you know what, if you even put an alarm on them that sounds that aggravates them, you can get a citation, because you are psychologically restraining them. Okay? I’ve had family members that come in and say, Denise, I do not want my mom to fall. I want you to put something on her that prevents her from getting up out of the chair or prevents her from getting up out of the bed. You know what, I can’t do that, because that is a violation. I cannot restrict their movement. Whether their movement is safe or unsafe, I have to allow them to be able to move.”

Delegate Stephen Skinner expressed his stance by telling a story of a woman who died while in the care of a nursing home in 2009.

“Let’s take a look at what happened to Dorothy Douglas. September 2009, Dorothy Douglas was admitted to Heartland Nursing Home here in Charleston. She was 87, and she suffered from Alzheimer’s, but at the time that she was admitted, she could still walk with the aid of a walker, she was able to recognized her family, and she was able to talk to them,” Skinner explained, “After being in Heartland Nursing Home for 19 days, just 19 days, she become dehydrated, malnourished, bedridden, and barely responsive. She had fallen numerous times, she sustained head trauma and bruises, and suffered from sores in her mouth and throat that required scraping away of the dead tissue. She ended up at Cabell Huntington Hospital, and 18 days later, she died as a result of severe dehydration.”

At the last, Delegate John Shott, spoke for the bill and addressed Skinner’s story.

“It certainly is a bill that’s easy to generate emotion over, I don’t think there’s anyone here who hasn’t had an experience with a loved one, a parent or a grandparent or a close friend that has had to go to a nursing home, and I say had to go, because that’s normally not a choice that people readily make,” Shott said, “But what I’d like to ask you to do is to more or less disengage the emotional part of yourself, your heart, and engage your brain and let’s try to look at this in a logical and thoughtful manner, and balance all the interests, not just Dorothy Douglas, but all the interests that are involved in setting policy here in the state. And by saying that, I’m not trying to diminish the terrible situation that Ms. Douglas went through. I don’t think anybody here would condone that, but it’s so easy to let one horror story generate so much emotion that it overpowers your ability to analyze and understand what’s at stake.”

Senate Bill 6 passed 76 to 21, with Delegate Tom Fast the only Republican against the bill.

Senate Bill 6 Stirs Emotions at Public Hearing in House Judiciary

An emotional public hearing was held this morning to discuss Senate Bill 6 dealing with medical professional liability for nursing home administrators.

Over 30 people spoke to the committee; some for the bill and some against.

Many wives and children of family members who had died while in the care of nursing homes stood to recount their stories and express the pain and anger they had felt toward the quality of care their loved ones had faced. They pleaded with lawmakers on the House Judiciary Committee, asking them to not pass the bill or at least to think before they pass it.

Three words remained constant among many of those family members who shared their stories. The words used were neglected, ignored, and abused.

Amy Kayson, is an attorney who has represented families of residents and the residents themselves for almost 20 years. She stood to oppose the bill.

“I want to tell you about a guy that we represented here in West Virginia who had been a World War II vet,” Kayson said, “and because there wasn’t sufficient staff to turn and reposition him in bed and to change him when he had an accident, he developed pressure sores so severe that they went to his very bone. Left in urine and feces on multiple occasions. You know what he complained about to the state investigators when they came to talk to him? He said I know they don’t have time to give me the care that I need, but the worst part is smelling my own flesh rot, and I know what that smells like because I’m a World War II vet. You want to cap his non-economic damages, but you’re going to leave his actual damages alone. He doesn’t have any economic damages. He’s not going to lose future earnings; he’s in a nursing home. What he’s lost is dignity. What he’s lost is the ability to live out the last few days of his life without pain. You cannot put a price on that. I ask that you not cap that.”

One of the speakers who supported the bill, Dr. Hoyt Burdick, a physician in Huntington, said it would broaden and clarify the definition of medical activities and providers.

“Twenty years ago, I was an aim in a medical mal-practice suit by a notorious trial lawyer from southern West Virginia, who is also one of only a couple of senators with a perfect voting record opposing medical professional liability reform,” Burdick said, “Incidentally, I was released with prejudice on the day before the trial with no real explanation. An important part of my job at Cabell and Marshall is recruiting and retaining physicians. When the malpractice lawsuit crisis was in the headlines, it seemed almost impossible to successfully recruit and retain physicians even those who grew up and were trained here. Speaking from experience, there was a time not long ago when West Virginia had serious problems with our professional liability system. Dr. Cater and others have outlined some of the progress we have made with tort reform, professional liability reform. We’ve had sustained reductions in the number of professional liability lawsuits, tax payers have benefited through reductions and suits and settlements by the board of risk management for state employed positions. The dollars that are not spent on insurance premiums and excessive tort settlements sustain medical practices, support employment in the healthcare sector.”

Andrew Paternostro, another attorney who has represented residents in nursing homes, spoke to oppose the bill.

“If you don’t want lawsuits, increase the standard of care or simply meet the standard of care,” Paternostro said, “Don’t come into a legislature and ask for a bill to be passed, so you’re damages can be limited, so a person who’s backside has rotted out and had to have surgery where the skin was taken out with a scalpel and scissors that you have to say to their loved ones, the most I can get you for the four surgeries is 250,000 dollars. The most I can get you for an amputated leg, because they allowed it to rot off, maybe 500,000 dollars, but they’ll argue profusely it’s 250,000 dollars. These cases are not defensible in a judicial system, in a fair judicial system with the judges we have and the jurors we have. I like the jurors, they listen to West Virginians, they know what to do, and to pass this act would simply take that power from jurors, from West Virginians, and it would be an imperious act to do so.”

Larry Pack, a leader at Sunrise Healthcare Management said he supports the bill because of insurance issues.

“Currently we’re experiencing major insurance problems,” Pack noted, “the type of problems we haven’t experienced, we haven’t seen since the early 2000s, before the legislature enacted the major reforms to the MPLA. Insurers simply, quite simply don’t want to write our company, they don’t even want to talk to us. We’ve only been able to find one company that’s willing to write us and were willing to quote our company. Insurance companies are leery of West Virginia; they’re leery of the litigation environment. Recent court decisions has eroded the MPLA protections, and the insurers have taken notice.” 

Senate Bill 6 has already passed the Senate 31 to 1.

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