Saturday, May 12, 2012

Pennsylvania May Limit Punitive Damages against Long-Term Care Facilities


Legislation that limits the amount of punitive damages that may be awarded in civil liability cases against long-term care facilities was approved in January by the Pennsylvania House of Representatives by a vote of 103 to 89. House Bill 1907 is now under consideration in the state Senate. Although controversial, the bill could become law this summer.
If enacted in its present form, House Bill 1907 would limit the size of a punitive damage award to no more than 200 percent of the compensatory damages awarded in cases involving personal care homes, assisted living communities and long-term care nursing facilities. In addition to nursing homes, the cap would apply to health care professionals working in personal care homes, assisted living facilities, long-term care centers, hospices and other health care agencies.
The cap would not apply to cases in which intentional misconduct is alleged.
Punitive damages are intended to punish and deter the defendant and others from engaging in conduct which is found to be particularly outrageous. Punitive damages may only be awarded under limited conditions for conduct that is “outrageous because of the defendant’s evil motives or his reckless indifference to the rights of others.” Arbor Associates, Inc. v. Aetna U.S.
Healthcare, 2003 WL 1847497 *2 (Pa. Com. Pl. 2003)(quoting Restatement (Second) Torts section 908 (2)). A court may award punitive damages only if the described conduct was “malicious, wanton, reckless, willful, or oppressive.” Id.

Currently, Pennsylvania’s Medical Care Availability and Reduction of Error (MCare) Act contains a provision that limits the amount of punitive damages against physicians to 200 percent of the compensatory damages. House Bill 1907 would extend that similar protection to long-term care facilities.
“By extending the MCare limits on punitive damages to these additional health care providers, we can take another step in controlling health care costs for consumers and providers in Pennsylvania,” said the legislation’s prime sponsor Representative Glen Grell. “The operators of these facilities need some predictability and certainty when they become involved in a civil case. This legislation provides them with some protection from a distorted punitive award while preserving full recovery of actual damages and helps to rebalance the legal system.”
The bill is strongly supported by a coalition led by the Pennsylvania Health Care Association, which represents long-term care providers, including nursing homes, personal care homes and assisted living residences. The coalition argues that “[e]xcessive litigation and damage awards result in higher consumer prices and decreased availability of services. The high legal costs paid by Pennsylvania health care providers, employers, and governments inhibit job growth, increase health care costs, and limit access to medical care.”
Opponents of the bill argue that the ability for the elderly to recover economic and compensatory damages is already very limited and that the law would prevent the legal system from effectively punishing abusive nursing homes and deterring outrageous conduct. In addition, opponents question whether this legislative limit on jury decisions and awards is permitted under the Pennsylvania Constitution.   
In my mind HB 1907 is yet another iteration of our increasing abandonment of our nursing home residents. Currently we are in the process of reducing the financial support we provide nursing homes through the Medicare and Medicaid programs. It is logical to expect that that lower reimbursements will lead to reduced staffing levels and quality of care. Now the legislature may limit our nursing homes potential liability for engaging in malicious, wanton, reckless, willful, or oppressive conduct toward their residents.
The future is looking bleaker and bleaker for our state’s thousands of nursing home residents.     
Further Information
PA Health Care Association Coalition Letter of April 27, 2012

Pennsylvania Alliance for Retired Person’s Press Release on HB 1907

Are we Abandoning our Nursing Home Residents?

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