A Pike County Circuit Court jury returned a plaintiff's verdict for $25,000 on Thursday in a nursing home case. The defendant was a Tara Cares owned nursing home.
Eric Stacener and Andrew Neely of Jackson represented the plaintiff. Davis Frye, Brad Smith and Barry Ford with Baker Donelson in Jackson represented the defendant. Judge Mike Taylor presided over the trial.
On Thursday the Mississippi Supreme Court affirmed the Adams County Circuit Court’s Order refusing to enforce an arbitration clause in a nursing home admissions agreement. Here is the Court’s opinion in Adams Community Care Center, LLC v. Reed. The trial judge was Judge Lillie Blackmon Sanders.
There were two admissions agreements in the case that were signed by the resident’s adult sons. Neither son had power of attorney. In addition, the resident’s primary physician had not made a determination that the resident lacked capacity pursuant to the Mississippi Uniform Health-Care Decisions Act. Therefore, neither son had authority to act as a health-care surrogate. The Court also found that an arbitration clause was not a health-care decision under the Act.
The Court rejected the nursing home’s apparent authority argument because there was no evidence that the resident indicated that her sons were her agents for making health-care decisions. Finally, the Court rejected the nursing home’s third-party beneficiary argument because there was not a valid contract.
Justice Lamar wrote the Court’s unanimous opinion. Justice Graves concurred in result only without a separate opinion. Skipper Samson of Gulfport represented the nursing home. Robert Cooper and Trae Sims represented the plaintiff.
Incidentally, I believe that nursing homes get family members of residents to sign admission agreements because they want to be able to go after the family members for the nursing home’s bills. It’s a business decision. I have defended a case that a nursing home filed against a resident’s family member who signed the admission agreement.
As discussed in this post, in March State Senate Insurance Committee Chairman Buck Clarke and the insurance committee killed a bill that would have required Mississippi nursing homes to carry $500,000 in liability insurance coverage. In doing so, Clarke showed that he represents a few rich owners of nursing homes rather than every day Mississippians.
Uninsured nursing homes are a menace to their residents. I have compiled a list of uninsured Mississippi nursing homes. My list includes known nursing homes with no insurance and nursing homes with inadequate insurance. I am lumping these groups together because the danger posed by these homes to their residents is the same.
Here is the list, which will be updated as more uninsured nursing homes are identified. The list includes thirty-seven nursing homes operating a total of 3,752 beds. This means that there are thousands of elderly Mississippians currently in harm's way.
One interesting aspect of my research is that I have yet to identify a non-profit or government owned nursing home that is uninsured. Of the thirty-seven nursing homes identified so far, they are all operate for a profit. T
These nursing homes have a profit over people mentality. The number one priority of these nursing homes is maximizing profits for the owners. Staffing levels are at state minimum requirements and expenditures for resident meals is limited to a few dollars per day. If one of these nursing homes harms a resident, the first thing they do is write a letter saying that they have little or no liability insurance. A lawsuit does not have to be threatened for them to write these letters. You just have to request the medical records from the nursing home. The tone of the letter is that these nursing homes do not have to take care of their residents because they have developed a system in which they can avoid accountability for hurting people.
It is a travesty of justice that we live in a state that requires motorists to carry liability insurance, but does not make the same requirement for nursing homes that are supposed to care for vulnerable adults who cannot take care of themselves.
As discussed in this March 1 post, State Senate Insurance Committee Chairman Buck Clarke killed a bill that would have required Mississippi nursing homes to carry $500,000 in liability insurance coverage. Sid Salter has the story in today’s Clarion-Ledger.
Why would Buck Clarke kill a bill that passed in the House with bipartisan support? Salter explains:
Because the nursing home operators, their lobbyists and the insurance industry have vast influence in the Legislature.
The vast influence was bought:
How influential is the nursing home industry at the Capitol? Campaign finance records show that in 2007 Gov. Haley Barbour got $50,000 from the Mississippi Health Care Association (MHCA), the association that represents many of the nursing homes, and $62,000 total from nursing home industry donors.
Campaign finance records show that in 2007, Lt. Gov. Phil Bryant received $50,000 from nursing home operator Ted Cain of Health Services, Inc., in Wiggins, $11,000 from MHCA and $63,250 total from nursing home industry donors.
Campaign finance records show that in 2007, House Speaker Billy McCoy, D-Rienzi, got $5,000 from Cain, and $3,000 from MHCA for a total of $8,000 from the nursing home industry. Clarke, R-Hollandale, in whose committee the nursing home liability insurance bill died, got $1,500 in 2007 campaign contributions from the nursing home industry.
In total, 2007 campaign finance records show that the Mississippi Health Care Association gave a total of $132,000 in contributions to legislators and statewide elected officials.
Lobbying records show in 2009, MHCA paid lobbyist Beth Clay $80,000 to represent the organization's interests.
Elderly people living in nursing homes with Medicaid and Social Security picking up the tab cannot compete with that kind of money. Salter hit on the fact that taxpayer dollars fund these nursing homes:
Is that fair to vulnerable patients in those private facilities? Is it fair for them to have paid taxes or have families paying taxes that subsidize the public nursing homes' tort claim coverage while the laws allow private nursing homes to be uninsured or underinsured for the very same offenses against the elderly? No.
Many nursing homes owned by political subdivisions or private entities already carry at least $500,000 in liability insurance. Ironically, it is the uninsured and underinsured nursing homes that commit the most neglect and abuse of their elderly residents. Insured nursing homes tend to take better care of their residents than uninsured or underinsured nursing homes.
The reason for this is that the uninsured nursing home owners' profit over patients mentality permeates the entire operation and endangers the lives of their elderly residents. When something bad happens, the nursing home faces little or no legal accountability. If the resident or their family sues and obtains a judgment, the nursing home declares bankruptcy to prevent collection of the judgment. The nursing home then reopens under the same ownership, but as a different corporate entity. It’s a scam designed to aviod liability.
Think about it. All Mississippians have to have liability insurance to drive vehicles on the road. But nursing homes that are entrusted with caring for our most vulnerable elderly adults can have no liability insurance. That's crazy.
What can people do who have to put a loved one in a nursing home? Here are a few tips:
There are many more Mississippi nursing homes that are not insured or carry a claims and defense cost eroding policy that basically just covers the fees of the nursing homes’ defense lawyers. If any readers know of any other Mississippi nursing homes that this applies to, please let me know and I will add them to the list.
Sid Salter with the Clarion-Ledger penned this story yesterday about the efforts of Mississippi nursing home owners to defeat a bill pending in the legislature that would require nursing homes to carry $500,000 in liability insurance coverage. My understanding is that the bill passed in the House of Representatives. There is a rumor circulating that Senate Insurance Chair Buck Clarke has been instructed to let the bill die in his committee by the powers that be. That would be horrible for all Mississippians.
Putting a Loved One in a Nursing Home is a Decision Many Mississippians are Faced with Every Day
Like many Mississippians, Salter had to put his parents in nursing homes when their failing health left them unable to care for themselves and in need of more care than family members could provide. This is very common and it could happen to anyone. If you have elderly parents who are not wealthy and you have a job so that you can not provide 24–hour care, then it can happen to you. Salter recognizes that his parents were lucky because they received good care, but that is not always the case:
My folks were fortunate. The people we paid to care for them when we could no longer care for them treated them with respect and compassion.
That's the way it is in most of Mississippi's nursing homes, but not in all of them.
Nursing home abuse happens in Mississippi like it happens in the rest of the country - physical abuse, sexual abuse and financial abuse. There are over 15,500 Mississippians in 184 Mississippi skilled nursing facilities.
Like Salter, I know what it is like to have a parent who needs constant care. You may say that you would never put your loved one in a nursing home. But until you see what it means for someone to need 24–hour care, you really don’t know what you are talking about.
You can read my thoughts on choosing a nursing home for a loved one here.
Many Mississippi Nursing Homes Carry Little or No Liability Insurance
Most Mississippi nursing homes provide consistently good care to their residents. Many carry adequate liability coverage that is available to compensate victims when the care is not good and causes injury. But there are many Mississippi nursing homes with little or no insurance. Even worse, it is the nursing homes without insurance that provide the worst care.
I represent victims of nursing home abuse and neglect and their families. Most calls that I receive about a potential case involve a small group of nursing homes. Even worse, it is these repeat offenders who carry no liability coverage or only enough to pay their defense attorneys in defending a case.
Exposing the Litigation Strategy of the Nursing Homes with Little or No Insurance
Not carrying liability insurance is not a financial necessity. Nursing homes are very profitable. It is a defense strategy to avoid being held accountable. When threatened with a suit, the first thing these nursing homes do is write a letter to the victim’s lawyer stating that there is either no insurance, or only enough to pay the defense lawyers. If liability is clear, the nursing homes then make an unfair low-ball settlement offer and insinuate that the nursing home will file bankruptcy if you obtain a big verdict in court.
This creates a no win situation for the victims—and the nursing home owners know it.
Nursing Homes are Very Profitable
Don’t believe nursing home operators when they say that they cannot afford liability insurance. I have seen financial statements from nursing homes. A 100 bed facility that has a Medicare and Medicaid pay source for most of its patients (this applies to most Mississippi nursing homes) can make a $1 million profit in one year. That profit is drained from the nursing home's books by the owners, leaving the facility with no assets on paper that could be recovered in a lawsuit.
There is a Hidden Incentive for Nursing Homes to Provide Bad Care After the First 100 Days
Mississippi is the poorest state in the nation. That means that for many people, Medicare and Medicaid are the only pay sources for nursing home care. That is a good news– bad news situation. The good news is that Medicare eligible patients typically get a lot of therapy during the first 100 days of their stay in a nursing home because the home can bill individual care items to Medicare.
The bad news is that after 100 days in a nursing home Medicare eligibility expires. Medicaid pays the same rate no matter how much therapy and other care the nursing home provides. This often results in everyone getting therapy for 100 days and no one getting therapy after 100 days.
Many residents’ health declines after improving during the first 100 day period because they start receiving less care. If a resident’s health declines and they die, it allows the nursing home to replace the low-rate Medicaid resident with a high-rate Medicare resident. Nursing homes with a lot of new Medicare residents will make a lot more money that homes with fewer Medicare residents. This creates a profit incentive for nursing homes if their long-time residents die.
Again, most nursing homes and their employees provide the best care that they can for as long as they can. But for the cold-hearted greedy owners, there are financial reasons to not provide quality care for all their residents.
Liability insurance balances the playing field.
Liability Insurance Increases Accountability
Mississippi requires us to carry liability insurance if we drive on the roads. That way, if our negligence causes a wreck, then we can be held accountable to the victim. The same should apply to nursing home owners and operators. If it’s fair that we all have to carry car insurance, then it’s fair that they all have to carry liability insurance. Sid Salter said it well:
But it seems that some Mississippi nursing homes don't carry enough liability insurance to cover those damage caps if a vulnerable elderly person is injured, mistreated or abused while in their care.
House Bill 536 requires non-government nursing homes to carry the same $500,000 in liability coverage that government nursing homes carry under the Tort Claims Act. But insurance company and nursing home lobbyists are working overtime to kill the bill. Why?
The nursing homes and the insurance companies got the "tort reform" caps they sought. Now, the elderly deserve some accountability from those same entities with the passage of HB 536.
Mississippi's elderly need less tort reform, not more.
The Mississippi Supreme Court issued two unanimous opinions today in nursing home cases, both ruling for the plaintiffs. In Estate of Guillotte v. Delta Health Group the Court rejected the nursing home's argument that summary judgment was appropriate because the plaintiff failed to identify the names of the individual care givers who breached the standard of care. The Court's summary of the testimony against the nursing home filled sixteen pages of the slip opinion. Obviously, there was a lot of evidence of breaches in the standard of care.
The Court was particularly critical of the defense:
Moreover, it does not make sense that a plaintiff's claim can be defeated on summary judgment just because individual names are not given when there is a significant amount of expert testimony...
The Court affirmed summary judgment on the claims of failure to adequately staff, train and supervise, because of the lack of evidence to support the claim.
The most surprising thing about this case was that the nursing home was able to get the trial court to buy into the argument. This case looks like another example of defendants pushing arguments too far based on the apparent belief that the Court is biased towards corporate interests and will seize any excuse to throw out a case. It will be interesting to see if more similarly weak defense arguments are disposed of by the Court in the coming months.
The second opinion was Byrd v. Beverly Enterprises. In this case a unanimous Court affirmed the trial court's finding that an arbitration agreement was unenforceable where a representative of the nursing home did not sign the agreement. The Court found that this meant that there was no mutual assent and there was no agreement to arbitrate.
These decisions continue the trend of the Court taking a moderate position, as I pointed out here. It's still too early to conclude that the Court has swung back to the middle from the far right, as examined by the Mississippi College Law Review, but the signs are encouraging that we may finally have a moderate Court.
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