EMBARGOED for release
INCREASE IN LITIGATION AGAINST NURSING HOMES
RAISES CONCERNS ABOUT QUALITY OF CARE FOR RESIDENTS
Report Surge in Number of Nursing Home Claims and
Average Size of Recoveries
(Washington, D.C.) With lawsuits against nursing homes now widely seen as one of the fastest-growing areas of health care litigation, researchers are raising concerns about the potential effect of these lawsuits on the quality of care delivered to residents. A survey examining nursing home litigation trends shows attorneys reporting a significant increase in the number of nursing home claims they handled and the average size of recoveries in the past five years.
Harvard researchers David Stevenson and David Studdert estimated that in the high litigation states of Florida and Texas, attorneys handled claims worth more than 15% of statewide nursing home expenditures. The analysis of the survey findings appears in the March/April 2003 issue of the policy journal Health Affairs.
The analysis by Stevenson of Harvard University and Studdert of the Harvard School of Public Health (HSPH) is based on responses of a national sample of 268 plaintiff and defense attorneys who specialize in nursing home litigation from 37 states. The survey was conducted via the Web in 2001. Most of the responses were from attorneys in Florida, Texas, and California, states with a large volume of nursing home residents. Although Florida and Texas have been home to the majority of litigation activity, states that reported increases in both claims volume and average recovery amounts included Arkansas, Georgia, Louisiana, and Oklahoma.
Attorneys surveyed were involved in litigating nearly 4,700 claims in the preceding 12 months and their firms handled 8,300 claims. The average recovery amount among paid claims, whether resolved in or out of court, was about $406,000 per claim.
"But the most striking finding about the dynamics of this litigation," says Studdert, assistant professor of health policy and law at the HSPH. "was that nearly 9 out of 10 plaintiffs received compensation. This kind of payment rate is off the scale in the world of personal injury litigation, and probably reflects a tremendous reluctance to bring this kind of claim before a jury."
More than half the claims reported nationally were in Florida and Texas, and recovery amounts in these states were higher than the national average. Based on their analysis, the authors estimate compensation payments of $2.3 billion to plaintiffs nationally, with claims in Florida and Texas accounting for $1.1 billion and $654 million, respectively. In Texas, punitive damages were significantly more common than elsewhere.
"Nursing home claims were largely focused in Florida, Texas, and a handful of other southeastern states," says Stevenson, a doctoral candidate in health policy at Harvard. "It's unclear whether this phenomenon will become more widespread, or whether it will remain relatively concentrated."
The survey also looked at other trends. It found that residents' children are the chief catalyst behind more than 60 percent of claims and nearly half of all nursing home claims involved wrongful death or pressure ulcers/bedsores or both. In Texas, the proportion of claims that alleged death and pressure ulcers/bedsores were significantly higher than the national average; in Florida, the proportion of claims that alleged falls was significantly higher than the national average. A large proportion of the litigation involved chronic, long-stay residents.
Determining the extent to which litigation trends are related to poor quality care as opposed to other factors is difficult. "The litigation doesn't seem to track an overall decline in nursing home quality," Stevenson says, "but this doesn't mean that individual claims brought by attorneys are inappropriate."
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