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In the climate of issue spinning that is all too common today, nursing home residents are facing a serious, yet stealthy, attack on their safety. Legislators claiming to want “reasonable” limits on jury awards, have introduced a bill which would effectively protect the worst of North Carolina’s nursing home operators by prohibiting the use of state inspection reports as evidence in court cases against negligent nursing facilities. Since state inspection reports can play a key role in showing whether an injury is an isolated incident or reveals a pattern of substandard treatment, keeping this evidence out of our courtrooms plays right into the hands of our state’s worst facilities.

The proposed nursing home rule is buried in H.809, a controversial bill that would set a $250,000 cap on pain and suffering awards in medical malpractice lawsuits. Among the co-sponsors of the legislation are Representatives James Harrell, III (D- Surry, Alleghany), George Holmes (R- Yadkin, Forsyth) and Tracy Walker (R-Wilkes). While supporters claim that lawsuits have driven up the cost of malpractice insurance for doctors, hospitals and nursing homes, they ignore the fact that much of the problem lies in insurance rates, not lawsuits.

Every insurance company claims that its rates are set in part by the amount of risk they assume in covering their clients. Thus, if the number of injuries from nursing home negligence increases, then liability insurance rates should also climb.

In point of fact, a recent special investigation by Gannett News Services found that “Nearly three-fourths of the most severe and repeated nursing home patient care violations found in the past four years were concentrated in a dozen states.” Guess what? North Carolina was tenth worst on the list of the most concentrated violations. Given our record, we shouldn’t be surprised that liability insurance costs have increased.

Our abysmal record indicates that we need more disclosure and discussion of nursing home negligence in North Carolina, not less. If the politicians in Raleigh truly want to address the high cost of liability insurance for nursing homes, then the solution surely begins with cleaning up these widespread violations. To do this, we must implement tougher penalties against bad homes and continue to expose violators to public scrutiny. Moreover, we must continue to allow the truth to enter our courtrooms and inform our judicial decisions. Let the results of state inspections remain public information; hiding them only serves to protect the interests of the habitual offenders who profit most by covering up their past.

There are good nursing homes in the area. These facilities should be commended for their outstanding records. For instance, Hugh Chatham Nursing Center in Elkin and the skilled nursing section of Wilkes Regional Medical Center recently had no deficiencies at all. Unfortunately, quality facilities such as these suffer by being lumped together with repeat offenders when liability insurance rates are calculated.

When the worst violators are forced out of business, those facilities with good records will benefit from a drop in rates and our nursing home residents will benefit from better care. In the meantime, this bill represents yet another attack on some of our most vulnerable citizens, nursing home residents who often have little control over the treatment they receive.

Tell your state representatives that you want this provision pulled out of the medical malpractice reform proposal and examined in the light of day where it will have to pass or fail on its own merit. Our elders deserve a better deal.

About the Author:

Attorney V. Tate Davis practices elder law in Elkin, N.C. While Mr. Davis represents nursing home residents in a variety of issues, he is not involved in medical malpractice or nursing home negligence cases.

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