Nursing Home's Continue to Receive Deficiencies
On September of 2008 The Department of Health and Human Services released "Trends in Nursing Home Deficiencies and Complaints". The memorandum report described trends in deficiencies and complaints from 2005 through 2007. To those of us who routinely represent victims of nursing home abuse and neglect the results were not surprising. However, the general public should be outraged.
According to the report, 91 percent of nursing homes surveyed were cited for deficiencies. Even more disturbing was the fact that 17 percent of nursing homes surveyed were cited for actual harm or immediate jeopardy deficiencies. The most common deficiency categories cited were quality of care, resident assessment, and quality of life. For profit nursing homes had the highest deficiencies in each of the above categories. Within the for profit nursing homes, the biggest offenders were the nursing home chains.
In Florida, the numbers reported were even worse. An alarming 97 percent of nursing homes surveyed were cited for deficiencies. This number remained fairly constant over the 3 years of the survey. You would think these numbers would have the Florida legislature going into special session to deal with the problem. Especially since Florida has one of the largest nursing home populations in the country. Unfortunately, the Florida legislature does not seem to have as a priority protecting nursing home residents. If anything, the Florida legislature's priority seems to be protecting the nursing home industry from any effort to hold nursing homes responsible for abuse and neglect. The last few times the legislature has addressed nursing home regulations, they have actually decreased them in response to pressure from the nursing home industry. In 2003, the Florida legislature made it harder for juries to punish neglectful and abusive homes with punitive damages. In 2001, the legislature eliminated strict liability for nursing home resident rights violations and eliminated the right to an award of attorney's fees for nursing home residents that prove they were abused or neglected.
Each time the legislature sided with the nursing home industry over nursing home residents, it was in response to the industry claiming personal injury lawsuits were driving them out of business. One of the rationales used to persuade legislators to make some of the changes described above was that the money saved would be used to improve the quality of care in Florida nursing homes. Unfortunately, the deficiency report appears to demonstrate the promise of using the savings to improve the quality of care in nursing homes was illusory.
On the other hand, the new laws have had the desired affect. Nursing home lawsuits in Florida have decreased drastically since 2001. The result is that the nursing home industry is paying substantially less in attorney's fees, settlements, jury verdicts, and liability insurance premiums. Only the nursing home operators themselves know where the savings are going.
The nursing home industries standard operating procedure seems to be to vilify those that attempt to hold them accountable. When Florida trial lawyers fought against the changes in the law, the nursing home industry claimed that greedy trial lawyers were the real problem. Now the industry appears to be blaming the surveyors themselves. According to an article by the New York Times, Bruce Yarwood, president of the American Health Care Association, a nursing home trade group, said the inspection system "does not reliably measure quality....Inspectors are subjective and inconsistent. They interpret federal standards in different ways."
Mr. Yarwood's comments would make sense if the citation rates were much lower. Then claiming the problem was the result of inconsistent and overzealous surveyors might make sense. However, with deficiency rates consistently over 90 percent, there is no way to legitimately claim the industry itself does not have a problem. Even Mr. Yarwood had to acknowledge "we have to do a better job."
Trial lawyers will continue to hold the industry accountable for nursing home abuse and neglect until they actually do a better job.
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