by Mark Bauman | Jun 16, 2023 | Legal News, Nursing Home Litigation
The Pennsylvania House of Representatives recently approved an amendment to the Medical Care Availability and Reduction of Error (MCARE) Act, which would limit the amount of punitive damages that could be awarded in lawsuits involving medical malpractice in nursing homes. The proposed legislation caps punitive damages at 200 percent of the compensatory damages awarded in actions against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, and hospices; however, this limit would not apply if there are allegations of intentional misconduct. The purpose of the legislation is to ensure the financial strength of Pennsylvania nursing home facilities by not subjecting them to “jackpot punitive damages awards.” The next step in enacting the proposed legislation into law is approval from the Pennsylvania Senate.
See PA H.B. 1907.
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
The New Jersey Supreme Court recently held that the discovery rule – which can delay the accrual date of a medical malpractice action until a party discovers or should have discovered an actionable claim – is not a license for plaintiff’s attorneys to endlessly search through their client’s medical records prior to filing suit.
A 78 year old gentleman was recuperating at a rehabilitation facility in New Jersey. On April 15, 1999, fearing nurses were not suctioning his lungs as they should have, this gentleman passed a note to a friend asking that he be transferred out of this rehab facility. The next day the transfer to another rehab facility was arranged, but this gentleman died the next day.
The administrator of this gentleman’s estate did not file a medical malpractice suit until April 26, 2001, nine days after the two year statute of limitations expired. The administrator followed his attorney’s advice that he should obtain the medical records prior to filing suit. Lawyers for the rehab centers argued that the Complaint should be dismissed because the administrator should have known about a possible claim based on the note two days prior to death. The administrator’s attorney argued that his client needed time to consult the medical records and as such the discovery rule should apply. The administrator’s claims against the initial rehab center where his friend was residing were dismissed. Subsequent argument is necessary to determine the status of claims against the rehab center where the gentleman was transferred.
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
In the case of Menno Haven, Inc. v. The Franklin County Board of Assessment and Revision of Taxes, No. 1051 C.D. 2006 (Pa. Cmwlth. 2007) two skilled nursing care centers lost their tax exempt status because they did not function as purely public charities. Menno Haven, Inc. and Menno Haven Penn Hall, Inc. (collectively “Menno Haven”) operate continuing care retirement communities offering independent living, assisted living, and skilled nursing care levels. Menno Haven’s skilled nursing care facilities were considered tax exempt since their construction in 1967. It was determined by the Franklin County Board of Assessment and Revision of Taxes (the “Board”) that Menno Haven’s skilled nursing facilities were, in fact, taxable entities. The Board’s October 18, 2004 decision was affirmed by the trial court. Thereafter, Menno Haven appealed to the Commonwealth Court of Pennsylvania (the “Court”) which also affirmed.
The Court agreed that Menno Haven did not qualify for exemption because it was not a “purely public charity” as required by the Pennsylvania Constitution. Specifically, an entity must be a purely public charity in order to qualify for statutory tax exemption. Accordingly, there are two criteria for tax exempt eligibility. First, an entity must show that it is a “purely public charity.” Second, an entity must meet the statutory requirements for exemption set forth in § 5 of Act 55 (10 P.S. § 375). The second criteria will not be considered without satisfaction of the first criteria.
Whether an entity operates as a purely public charity is determined by satisfaction of a five-part test as set forth by the Pennsylvania Supreme Court in Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985). According to the five-part “HUP test”, a purely public charity is an entity that:
- advances a charitable purpose;
- donates or renders gratuitously a substantial portion of its services;
- benefits a substantial and indefinite class of persons who are legitimate objects of charity;
- relieves government of some of its burden; and
- operates entirely free from private profit motive.
Id, at 1317. The Court ruled that the trial court correctly determined that the second and third elements of the HUP test were not satisfied by Menno Haven.
The Court reasoned that Menno Haven did not donate or render gratuitously a substantial portion of its services for three reasons. Menno Haven charged a sizable entrance fee to its independent living residents which the Court felt was an effort to collect in advance for future services that might be rendered without compensation to residents at the skilled nursing level. Although Menno Haven was not contractually bound to transfer community residents to its skilled nursing facilities and they did so regardless of ability to pay, the Court felt that such transfers were made out of a sense of obligation rather than one of charity or community service. Finally, the Court determined that a very small portion of Day One Medicaid eligible individuals were admitted from the community at large (between 2000 and 2004 only 15 of 179 skilled nursing residents). These factors were considered within the totality of the circumstances and the fact that Menno Haven lost money caring for residents on Medicaid was outweighed.
According to the Court, Menno Haven did not benefit a substantial and indefinite class of persons who were legitimate objects of charity. The Court found that people generally gained access to the community by meeting certain financial requirements, because the person was Medicare eligible, or by chance the person applied for occupancy at a time when Menno Haven was accepting Day One Medicaid eligible individuals from outside the existing residential community. The Court found that it was not typical for Menno Haven to extend its services gratuitously to the community at large but rather preferred elderly residents who possessed the ability to pay. For these reasons the Court upheld the prior rulings that Menno Haven was not a purely public charity and therefore did not consider statutory compliance with Act 55. Litigation concerning the tax exempt status of Menno Haven’s independent living and assisted living facilities is ongoing.
by Mark Bauman | Jun 14, 2023 | Legal News, Nursing Home Litigation
Below is a brief discussion of one of the primary legal issues being addressed in nursing home litigation in Pennsylvania: negligence per se.
Negligence Per Se
In an effort to improve the quality of care provided to residents of nursing homes, Congress enacted the Nursing Home Reform Act as part of the Omnibus Budget Reconciliation Act of 1987. OBRA and the NHRA redefined the regulations set forth by the federal government for state participation in the Medicare and Medicaid program. In order for a state to receive federal reimbursement under Medicare/Medicaid, the federal regulations require the state to establish an approved plan for medical assistance in accordance with the federal guidelines. To accomplish this, each state must promulgate its own statute and regulations for its long-term care facilities.
As a participant in the Medicare/Medicaid programs, Pennsylvania has complied with these federal statutes and regulations by enacting the Pennsylvania Health Care Facilities Act. The Act provided the Pennsylvania Department of Health with the power and duty to promulgate rules and regulations of long-term care facilities (i.e., nursing homes, personal care homes, assisted living facilities). The Department of Health utilized this power and promulgated licensing regulations for long-term care facilities. Thus, long-term care facilities must be in accordance with both the Health Care Facilities Act and the regulations regarding licensure.
Plaintiffs are alleging claims under the legal doctrine of negligence per se based on violations of the federal and Pennsylvania statutes and regulations. Essentially the doctrine of negligence per se adopts the statute or regulation as the standard of care, so that a violation of such statute or regulation establishes a breach of the standard of care. Thus, if a long-term care facility is found to be in violation of any of the aforementioned statutes or regulations, plaintiffs are claiming that the long-term care facility breached the standard of care as a matter of law.
The determination by courts of whether or not violations of the federal and Pennsylvania statutes constitute negligence per se is very unsettled in Pennsylvania. With the drastic increase in nursing home litigation, it will not be long before this issue is ultimately submitted to the Supreme Court of Pennsylvania for a final decision.
by Mark Bauman | Jun 13, 2023 | Legal News, Nursing Home Litigation
Nursing home litigation in New Jersey is a relatively novel area of the law. The New Jersey Nursing Home Resident’s Rights Statute (N.J.S.A. 30:13-1, et seq.) was enacted in 1976, however there are only a handful of cases interpreting this Statute. This Statue allows the recovery of punitive damages and also allows a prevailing plaintiff in a Nursing Home negligence action to recover reasonable attorney’s fees and costs of suit. We are seeing most, if not all plaintiff’s attorneys including allegations of violations of this Statute in their Complaints because of the potential recovery of punitive damages and reasonable attorney’s fees and costs. We expect that in the coming months and years more Nursing Home negligence cases will go to trial and will provide a better understanding of the impact of The New Jersey Nursing Home Resident’s Rights Statute (N.J.S.A. 30:13-1, et seq.).
by Mark Bauman | Jun 12, 2023 | Legal News, Nursing Home Litigation
At first glance, lawsuits against nursing homes and other long-term care facilities are virtually indistinguishable from traditional medical malpractice cases. Expert testimony is used to support an allegation that the care and treatment of healthcare professionals fell below the applicable standard of care, causing harm to the resident. However, beneath the surface are myriad issues which distinguish this emerging area of practice.
Unlike medical malpractice actions, where the issues usually focus on individual events, such as a surgery, doctor’s visit, or the failure to order a test, nursing home litigation often focuses on systemic care provided over an extended period of time. Nursing homes are interdisciplinary healthcare centers where numerous individuals come together to provide care and treatment to residents in accordance with physicians’ orders. For example, a nursing home suit involving the development and progression of a pressure ulcer might focus on the actions of the registered nurses who developed the resident’s care plan, the licensed practical nurses who provided wound treatments, the certified nurse’s assistants who turned and repositioned the resident, and the dieticians who oversaw the hydration and nutrition of the resident. Individual or collective lapses by these individuals could give rise to liability for the overall facility.
Another unique aspect of nursing homes are the state and federal regulations which prescribe – both broadly and specifically – the care to be given to residents. These regulations provide a host of challenges to nursing homes facing civil litigation. State agencies have the authority to inspect nursing homes in an effort to identify violations of these regulations. Plaintiffs’ counsel, in turn, frequently use a resident care violation found by the state as a starting point for litigation. It remains an open question whether the results of these inspections are admissible at trial. In some states, including New Jersey, residents have been given the statutory right to privately enforce nursing home regulations through a distinct cause of action. In other states, plaintiffs’ counsel attempt to use the regulations to either establish the applicable standard of care or as evidence of negligence or even negligence per se.
Given some notable successes by plaintiffs’ counsel across the country, along with an aging population, it seems likely that the number of nursing home actions will continue to rise. While experience with medical malpractice litigation is instructive, courts and litigants need to be aware that nursing homes are unique organizations, which present novel issues of procedure and evidence.
