The Truth about Nursing Home Lawsuits | The American Association For Justice Archive

The Truth about Nursing Home Lawsuits

Michael A. Brusca
Wednesday, October 22, 2014

The nursing home industry is now big business. As baby boomers begin to need nursing home facilities, profit-focused corporate chains have dominated the market. This increase in residents and emphasis on profits has led to a distressing rise in neglected and abused seniors.

To be clear, nursing homes are primarily paid by Medicaid, and also Medicare to a small extent. That is, our tax dollars fund these institutions. They are paid to deliver care.  While no one obviously faults a company for making a profit, it is many times done at the expense of the residents.

Unfortunately, government agencies – dedicated and hard-working – are not always in a position to remedy the abuse and neglect problems occurring in our nation’s nursing homes. They lack resources. Complaints my team makes to the New Jersey Department of Health are substantially delayed due to a backlog.

Often, the only avenue for families to seek accountability and prevent further wrongdoing is through the civil justice system.

A recent article in the Wall Street Journal, “Lawsuits Rattle Nursing-Home Chains,” mischaracterized the nursing home industry and the very basic principles of the civil justice system. I wanted to set the record straight.

Firstly, when a case is proven at trial, it is no longer an allegation.  A jury of citizens has heard what happened and responded accordingly. A lawyer does not simply walk into court and demand an amount of money. Evidence is presented and a jury determines what compensation, if any, a plaintiff should receive.

Pain and suffering and punitive damages are only awarded when the suffering these residents experience is protracted and extraordinary. To understand this pain one should spend some time with a family of a neglected and abused resident. For example, you could go and see first-hand what a Stage IV pressure ulcer with visible bone looks like. Perhaps experience what an infected wound that is literally rotting on a person’s back smells like. Injuries suffered because elderly people are left in their own feces and urine and not turned because a management decision is made to staff facilities at the lowest possible levels.

In regards to punitive damages, research has shown how rarely they are awarded in tort cases nationally. A 2011 report by the Department of Justice analyzing 2005 data found that punitive damages were awarded in just 3% of all tort cases where plaintiff prevailed – a smaller percentage than breach of contract actions, which was 8%.

Punitive damages are about punishing and deterring future misconduct. They typically require a higher evidentiary standard and evidence of willful and wanton misconduct – not negligence or even gross negligence. The fact that they are awarded in nursing home cases speaks volumes to the truth of what causes these terrible injuries – the diversion of money for care into coffers.

I can personally attest to numerous strategies I’ve seen to funnel money away from resident care and into corporate coffers. For example, forming fictitious companies to own the building and paying inflated rent from one company to another; placing family members on the payroll when they don’t work in the facility; billing for therapy people can’t do to increase funding; listing corporate people on the payroll in non-existent positions in order to further boost funding; and having no-bid contracts with rehabilitation companies owned by the same individuals.

I would never wish upon anyone the position of the families I represent. That it is never your mom or dad left in soiled diapers, suffering a brain bleed, amputation, or getting an open reduction after a fall, where the bone is sawed off and a prosthetic is hammered in the remaining bone. That it’s not your family member whose spinal column is now exposed in the middle of an open and raw wound. But if it is, won’t you be fortunate that someone will not look as your claim as “frivolous” and will give your family a voice.

Michael A. Brusca is a Shareholder with Stark & Stark’s Nursing Home Litigation Group. Mr. Brusca dedicates his entire practice to representing vulnerable individuals and their families in wrongful death, catastrophic injury, negligence and abuse claims arising in nursing homes, assisted living facilities, psychiatric facilities, hospitals, boarding and group homes. You can find his full bio here.