Bill would bar bad reviews of nursing homes from court
When a Kansas nursing home is sued for providing poor care, there’s nothing to stop the attorney for the aggrieved resident or family from using state inspection reports to show the home has a bad history.
The reports, after all, are public record.
But the state’s nursing home industry says that’s not fair. Many times, its lobbyists argue, good homes get hit with bad reports. And that can eventually lead to higher costs for nursing home residents.
That’s why nursing homes are asking the Kansas Legislature to keep the reports off-limits in lawsuits.
“If a piece of ice happens to fall out of the ice machine when the surveyors walk in the door, you’re going to have a very serious deficiency on your hands,” said Linda Berndt, executive director at Kansas Health Care Assn., representing more than 200 for-profit nursing homes. “But what does that have to do with the quality of care that Mrs. Jones is getting down the hall?”
The state’s trial lawyers and Kansas Advocates for Better Care, a Lawrence-based group that monitors nursing-home conditions, say Berndt is trying to scare legislators.
“This is all part of the industry’s call for a level playing field — that it’s being abused by its regulators and being held at the mercy of its residents,” said Margaret Farley, a Lawrence attorney who serves on the Kansas Advocates for Better Care governing board. “But the idea that an injured resident somehow has the upper hand going up against a corporate-owned nursing home’s lawyers is absolutely ludicrous.”
The Kansas House disagrees. Last month, representatives overwhelmingly passed House Bill 2306, aimed at keeping the reports out of the courtroom.
“Obviously, this is an attempt on nursing homes’ part to limit both their liability and the public’s ability to hold them accountable,” said Barb Conant, director of public affairs at the Kansas Trial Lawyers Assn.
‘It’s that simple’
Both sides say that nursing home lawsuits are rare, and that actual trials even more so.
“I’d say 95 percent are settled out of court,” Berndt said.
Instead, she said the legislation should help lower nursing homes’ insurance premiums by lessening their exposure to lawsuits.
“Right now, 25 percent of the nursing homes in Kansas don’t have medical liability. They can’t afford it,” she said. “Some have seen their premiums go from $100 to $1,000 a bed in just the last three years.”
House Bill 2306 would put the state’s nursing home inspections records mostly off-limits in civil lawsuits. Here’s how Lawrence-area representatives voted:In favor: Reps. Barbara Ballard, D-Lawrence, Rob Boyer, R-Olathe, Tom Holland, D-Baldwin, Tom Sloan, R-Lawrence, and Lee Tafanelli, R-Ozawkie.Opposed: Rep. Paul Davis, D-Lawrence.HB 2306 is now before the Senate Judiciary Committee. No hearing has been scheduled. |
W.J. Lienemann, who owns Golden Age Insurance Agency in Olathe, agrees. His agency insures more than 100 nursing homes across the state.
High premiums, he said, are driven by national insurance companies using state reports as “a major tool” in gauging liability.
“If a facility gets a poor survey, its premiums can double or triple in a year,” Lienemann said. “The fact that the deficiencies cited in the survey may not have anything to do with quality of care doesn’t matter.”
Farley countered that the reports make clear which homes have a history of poor care. Much of her law practice involves settling residents’ or their families’ claims against nursing homes.
“We pay the government to conduct these surveys and to assure quality of care,” she said. “It doesn’t make sense to turn around and not let a judge rule whether they’re admissible. This is nuts.”
Farley added: “I just wish someone would tell the (nursing home) industry that the best way to rid yourself of the hazards of a bad survey is to have a good survey. It’s that simple.”
The politics
HB 2306 includes a sentence that says reports could be used in court only if they “directly refer and relate to the named plaintiff.” But reports could not be used to prove a home has a long history of substandard care.
“I don’t think the Legislature should be in the business of creating evidentiary exceptions,” said Rep. Paul Davis, a Lawrence Democrat who voted against the bill. “It’s the judge’s role to decide what evidence is relevant and what is not.”
Davis was the lone Lawrence-area representative to vote against the bill.
Rep. Tom Sloan, R-Lawrence said he voted for the bill at the urging of Reps. Nancy Kirk, D-Topeka, and Bob Bethell, R-Alden. Bethell is a former nursing home administrator. Kirk runs a nursing home-type facility for adults who are mentally ill.
“It doesn’t change a person’s ability to sue for malfeasance or poor conditions,” Sloan said. “It’s a good thing.”
The governor’s office is less enthusiastic.
“As insurance commissioner, Kathleen Sebelius worked long and hard for consumer protection, so I don’t envision her supporting this bill,” said Nicole Corcoran, a spokeswoman for the governor’s office. “It wouldn’t make sense.”