Kentucky nursing homes threatened by litigation

Michael P. Tremoglie Jul. 2, 2012, 7:00am


FRANKFORT, Ky. (Legal Newsline) - A major nursing home company announced recently that it would cease operations in Kentucky, citing frivolous lawsuits as the reason it was leaving the state.

Trial lawyers responded by saying a quality facility would not be sued. A 2011 study published in the New England Journal of Medicine disputes this.

Extendicare announced that it was leasing its facilities, according to a May 29 report in the Lexington Herald-Leader. The new operator, pending state approval, would be a long-term facility company located in Texas.

A company official cited "the combination of a worsening litigation environment and the lack of any likelihood of tort reform in the state of Kentucky" as motivating the departure.

Legislation creating a medical panel to review lawsuits against nursing homes was rejected. A May 14 letter by the company's vice president was posted to the blog of Kentucky personal injury firm Hughes and Coleman. The letter said, "in recent years, the state of Kentucky has been a battleground for plaintiff attorneys who focus their litigation toward centers owned by the largest for-profit companies."

The article quoted Kentucky Association of Health Care Facilities president Ruby Jo Lubarski as saying, "It's always a concern when you have a fertile ground for lawsuits. And we certainly have a fertile ground for lawsuits here in Kentucky. So I think any business would be very prudent to research that, to look at that, to weigh their options."

The same article also quoted Maresa Fawns of the Kentucky Justice Association, the professional organization of trial lawyers, as claiming that if nursing homes improved their quality then lawsuits would be reduced.

"(Nursing home facilities) can solve their own problems by improving the quality of care," Fawns said.

But is this true? Do lawsuits lead to improvement in nursing home quality?

A recent study published in the March 31, 2011, New England Journal of Medicine indicates that it does not. The study's authors - David M. Studdert, Matthew J. Spittal, Michelle M. Mello, James O'Malley and David G. Stevenson - studied, as the title indicated, the "Relationship between Quality of Care and Negligence Litigation in Nursing Homes."

They wrote, "Although previous studies have probed this relationship, an important question for clinicians and health care institutions remains unanswered: does the delivery of high-quality care reduce the risk of being sued...
Methodologic and data problems have frustrated attempts to answer this question empirically. These methodologic constraints are less problematic in the long-term care setting."

The researchers remarked that while litigation rates against nursing homes were historically low this during the middle-to-late 1990s, several regions of the country have experienced sharp spikes in nursing home litigation. They linked indicators of the quality of care to data on the incidence of negligence claims against them to compare the litigation experiences of high-performing and of low-performing facilities.

What they noted was the "social value of personal-injury litigation rests in large part on its capacity to discourage risky behavior. Tort theory suggests that litigation induces defendants to be more careful and warns others to take precautions. But to be effective, this deterrent function logically requires a degree of precision. If, as we found in the context of nursing homes, providers who deliver low-quality care face only marginally higher exposure to litigation than do providers who deliver high-quality care, deterrence may be disrupted at the outset."

The study showed "an inverse relationship between nursing home performance and litigation risk for half the 10 quality measures examined... (T)he levels of litigation were only fractionally lower for the best-performing nursing homes than for their worst-performing counterparts. The capacity of litigation to discriminate between nursing homes with excellent performance and those with poor performance did not improve when the analysis was restricted to environments with relatively low claim levels."

The authors observed, "To the best of our knowledge, the only previous attempts to measure the relationship between quality and litigation risk from this care-delivery perspective have been in the nursing home sector."

Johnson and his colleagues found significant associations between claims and both deficiencies and staffing levels in analyses of state and national samples, but an exploratory study of 49 jury verdicts in Florida detected no clear relationship.

The researchers went on to say that although the social value of personal-injury litigation is to discourage risky behavior, there needs to be a degree of precision. Since nursing home research indicates that those which deliver low-quality care are only marginally higher at risk to litigation than those which deliver high-quality care, "deterrence may be disrupted at the outset," the report says.

The researchers acknowledged that their study, like most others, has limitations. But, they assert that the results of "this study raise questions about the capacity of tort litigation to provide incentives for improving the quality and safety of nursing home care. It is far from clear that superior performance will be rewarded with substantially lower risks of being sued."

Another article in the March 2003 Health Affairs examined nursing home lawsuits. It described nursing home litigation as a "relatively recent phenomenon."

The author stated the "costs of nursing home litigation are substantial, both in the aggregate and per claim, especially in states where the litigation is most prevalent.

"These findings elevate concerns about quality of nursing home care and indicate that litigation diverts resources from resident care, which may fuel quality problems."

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