For years, various bills have been introduced in the Kentucky State legislature to create a means of limiting lawsuits by individuals and groups against nursing homes, assisted living facilities, and other service providers for seniors. Many other states have implemented such “tort reform” laws, but none of any significance has been passed in Kentucky. Many advocacy groups applaud this fact. They say that tort reform would reduce the freedom individuals have to sue healthcare providers on behalf of their resident/family members, and that tort reform would reduce the quality of care in those facilities. They argue operators of facilities would not be as accountable because of the reduced number of lawsuits and the limits to settlements.
However, many operators of long-term care organizations, and insurance companies, have a different view. Often, there is a negative outcome in care in a facility, resulting in sickness, injury, or death of a resident. The thought of the family is to sue the facility, regardless of the circumstances surrounding the care of the individual. Many facilities, especially the non-profit variety, have very limited margins and resources, and don’t have the ability to adequately defend some lawsuits. It’s true that most, if not all, healthcare organizations carry professional liability insurance, but their limits may not be adequate or the deductibles may be very large. Frivolous lawsuits drain the resources of organizations whose primary reason for existence is to care for people.
Not So Stellar
Kentucky hosts major senior care providers. It is also the home to national chains and corporations that provide long-term care services. Kentucky should be proud of the leadership we provide in this industry. Yet, Kentucky does not have a stellar reputation for quality of care in this area. For instance, Kentucky has the highest level of Civil Money Penalties (imposed by the Center for Medicare and Medicaid Services) in the entire country. It also has a very large number of attorneys who specialize in suing nursing homes and other healthcare providers. This is evidenced by the frequency of law firms who advertise on local television stations. Our state is a popular one for professional liability lawsuits.
Does this mean that the quality of long-term care in Kentucky is poor? Is it worse than other states? I would not doubt there are instances in providing care to seniors that violate the standards of care, and that some bad outcomes happen because of poor care or even abuse and neglect. There are also many of these outcomes that occur even though the overall quality of care is good, and all acceptable protocols have been followed. There are many good organizations that have only the best quality of care in mind for their residents.
A New Approach
What we need in Kentucky is a good, balanced approach which guarantees the public’s rights to pursue legal remedies when needed, but also to protect healthcare providers from frivolous lawsuits. One approach I would suggest is the creation of Medical Review Panels in Kentucky. A medical review process allowing an independent panel of healthcare experts to evaluate whether the standard of care was violated in lawsuits against Kentucky healthcare providers would be most beneficial. The panel could include nurses, physicians, hospitals, long term care facilities and others whom Kentuckians depend upon for their care.
One proposal would be to have representatives from each side of a dispute assigned to review the merits of the case, and decide which facts to present to the judge or jury. These representatives would be professionals from the medical field who would, together, decide what facts should be used in legal arguments. It would eliminate much of the emotional aspects of the case and help establish the facts, hopefully for a fairer settlement or outcome.
This is not a new idea, having been discussed for over 40 years. It is one that needs to have a serious discussion again!! We need to improve the legal climate in Kentucky, so that we can concentrate on providing high quality care. We need to find a balance that is fair to all. Perhaps a renewed conversation with our state legislature is in order.
–Jerry Hoganson is president of Wesley Manor in Louisville, Ky.
