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, 2012Pennsylvania Alliance for Retired Person’s Press Release on HB 1907
Are we Abandoning our Nursing Home Residents?
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