February 4, 2002 - Nursing homes seek cap on some damages

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Iowa lawmakers are being asked to cap the pain-and-suffering damages collected by nursing-home residents who successfully sue for abuse or neglect. A bill introduced last month in the Iowa House of Representatives would impose a $250,000 cap on all noneconomic damages that seniors or their family members could collect in cases arising out of personal injury or death in a nursing home.Economic damages generally include medical expenses and loss of future earnings. Noneconomic damages are defined as including pain-and-suffering damages and punitive damages.

Scott Brown of the Iowa Trial Lawyers Association said that if the bill became law, the nursing-home industry would be the only Iowa industry protected by a specific cap on damages that could be awarded by a jury.Steve Ackerson of the Iowa Health Care Association, an industry trade group that is behind the proposed legislation, said lawmakers were receptive to the idea because they knew that nursing-home care was paid for in part by Medicaid and that the state needed to control those costs."We believe there's support right now - and on both sides of the aisle," he said.

John McCalley, associate state director of the Iowa chapter of AARP, said his organization opposed the bill on the basis that it would erode the quality of care for seniors."Lawsuits by patients and their families are infrequent, but when they do occur, they go a long way toward ensuring that negligence and abusive care practices do not become endemic in the industry," McCalley said. "If nursing homes can't be held fully accountable for poor quality care, the incidence of such care will increase."Ackerson said caps on damages were needed to address the skyrocketing cost of liability insurance. Those rate increases, he said, are the result of huge jury awards that stem from litigation against nursing homes in other states.

Brown says that if Iowa homes are paying higher premiums because of litigation in other states, it stands to reason that a statewide cap on damages won't drive down insurance rates in Iowa.Also, he said, a $250,000 cap on damages would limit the amount of money to be recovered only in the most serious cases of abuse or neglect. By its very nature, he said, a cap penalizes those who have suffered the most."In effect, caps only benefit those nursing homes that have done the very worst things to residents," he said.

Punitive damages are rare in Iowa because state law requires proof of malice and a willful, wanton disregard for a person's rights or safety. In many cases, the person who wins punitive damages in court receives 25 percent of that money, with the remainder placed in a state-run civil-reparations fund that pays for such services as legal assistance for the poor.

Kathleen Beebout, a Des Moines attorney who has handled cases against nursing homes, said few Iowa homes, if any, have had to pay $250,000 or more in noneconomic damages.

In 1995, a .phper County jury awarded $400,000 to a woman for loss of consortium after the woman's 76-year-old mother committed suicide in a nursing home. The trial judge said the award was excessive and reduced it to $100,000. Steve Vancore of Wilkes & McHugh, a Florida law firm that specializes in litigation against nursing homes, said Iowa's proposed cap on damages was "much more restrictive" than proposals considered in other states.