Nursing Home Lawsuits: Are Patients Safer?

nursinghome6Max Kennerly touches on a topic this week that I think is interesting and important. To what extent are plaintiffs’ nursing home lawyers making nursing homes safer?

People hunker down in one of two camps: (1) nursing home lawyers are saving our elderly from being unmercifully abused; or (2) nursing home lawsuits drain so much money from nursing homes that they can’t provide quality service at a meaningful price. As the poets say, the answer probably lies somewhere in the middle and these binary choices don’t do justice to the complexities of the issue.

Anyway, the blog post was precipitated by an article in The New England Journal of Medicine on the impact of nursing home lawsuits on nursing homes. The NEJM recently took a lot of heat from doctors for arguing that medical malpractice tort reform is not helping to reduce costs or improve patient care. On nursing home lawsuits, however, the journal goes in a somewhat different direction, concluding that lawsuits are not making nursing homes safer and that being a “good” nursing home does not provide much insulation from litigation. I’m oversimplifying a complex study but that is the gist of it.

Max writes a good post that lays out some of the issues. He draws an interesting conclusion that if he (and I) were correct that nursing home lawsuits do make nursing homes safer, then it is a pretty sad commentary on how we as a society treat our elderly.

But I think it is an accurate commentary.  The reality is that everyone agrees with the basic premise: nursing homes have to provide reasonable efforts to protect their patients.  But the question is what constitutes reasonable care.  The key to all of this — and the big problem with profit driven nursing home care — is that doing it on the cheap side is a better economic path for these nursing homes, particularly the ones accepting Medicare.  So what is required?   If you are a nursing home, you have every incentive to look at it from a “this is good enough” perspective.  Jury verdicts draw the line as to what is good enough and they do it by hitting their wallets, which is a language nursing homes keenly understand.

The only part I disagree with in the post is the punctuation. Max puts the NEJM article researchers in quotation marks (as in “researchers”). These guys got their article published in the New England Journal of Medicine. I don’t agree with their conclusions because I think it is impossible to measure all of the crosswinds that make up the impact of nursing home lawsuits on the quality of nursing home care. And, certainly, the funding for the study is absolutely fair game. But the lead author of the study, David Studdert, is a credible researcher at Harvard. Studdert has also established his “reasonable on this general topic” bona fides with me by concluding in a study five years ago that our legal system is not riddled with frivolous malpractice claims and that malpractice caps are not meaningfully lowering doctor’s malpractice insurance premiums. So I will give them “researchers” without the quotes, even if I disagree with the findings.

Should You File a Maryland Nursing Home Negligence Lawsuit?

It is easy for me to say that you should.  I’m a trial lawyer.  The decision is more complicated for victims then it is in my head.   There is a fear of litigation, a fear of being the kind of person who brings lawsuits when you have the lawsuit-first culture in this country (I hate the lawsuit-first mentality myself, actually) that makes you pause and question what the best path is for you.  But what I would say, is talk to a lawyer.  Find out what bringing a claim actually entails.  Learn more about what might be in it for you.

I don’t have all of the answers.  But if you want to talk to someone about your decision, call me 410-779-4600 or get a free on-line consultation and ask whatever questions you have.

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