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Medical Malpractice in Nursing Home Cases – Politicians Attempt to Limit Damages

February 15, 2012

Amaris Elliott-Engel wrote an article in The Legal Intelligencer (which will be excerpted here, although premium access is required to view the full text) about the Pennsylvania State House of Representatives’ recent push to enact a piece of tort reform legislation that would cap punitive damages in cases involving professional malpractice in nursing and assisted living homes.

What this means, in simple terms, is that if a resident of one of these facilities is injured or made ill by a staff member’s medical negligence, the amount of money he/she could collect in punitive damages in a lawsuit (a monetary amount designed as a deterrent for reckless behavior) would be limited. And not limited by a board of attorneys, doctors, and insurance companies, but by politicians in the state government, regardless of the severity of the resulting injury or ailment.

Feldman Shepherd managing partner and seasoned medical malpractice attorney Mark Tanner responds with frustration to the proposed bill, saying, “This legislation only protects one class of individuals: those that a jury of 12 people have determined to have intentionally, outrageously, and/or by reckless indifference injured the most vulnerable of our society — the elderly and incapacitated. One would think the legislature has better things to do.”

Elliott-Engel spoke with Mark E. Phenicie of the Pennsylvania Association for Justice, who argues that the bill is cruel to senior citizens because “they are much less likely to have compensatory damages in the form of economic damages, such as wage loss, which means that having punitive damages available as an option for fact-finders is more important to compensate this class of plaintiffs adequately.” The sponsor of the legislation, state Rep. Glen Grell counters that the proposed bill would still allow patients to collect compensation for pain and suffering and loss of life’s pleasures (known as compensatory damages).

As far as researchers in Philadelphia could tell, cases of this nature that go to verdict have been exceedingly rare. How rare? There have only been two instances of verdicts involving punitive damages in nursing home cases in Pennsylvania’s entire legal history. This is another reason for the outrage among lawyers: lawmakers are trying to frame this cap as a solution to many businesses’ financial problems, which it simply is not. A Philadelphia medical malpractice lawyer agrees, and in the article is quoted as saying that this measure is an attempt to “address a problem that does not exist in Pennsylvania.”

Many other members of the Pennsylvania legal community think the same thing, but legislators do not, arguing that the current laws enable “jackpot justice” and “frivolous lawsuits,” popular catch-phrases with tort reform advocates that trivialize the seriousness of medical malpractice mistakes and the devastating effects they can have on individuals and their families. Elliott-Engel adds that one of the attorneys she interviewed sees this as a foot in the door, a first step that will make it easier to enact caps on punitive damages not just in nursing homes, but in hospitals across the state.

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