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Ruling Raises Liability Limit of Nursing Homes

TIMES LEGAL AFFAIRS WRITER

Nursing homes and other health care providers that recklessly endanger the elderly will face greater financial liability under a decision Thursday by the California Supreme Court.

The unanimous ruling, a victory for patient rights advocates, deals a significant blow to a 1975 medical malpractice law that caps compensation for medical negligence. Nursing homes that recklessly neglect the elderly can now be forced to pay higher amounts in lawsuits than the malpractice law permits.

The court decision will drive nursing homes “out of business or force them to charge a lot more” because their insurance rates will soar, predicted Sacramento lawyer George Murphy, a defense attorney in the case that triggered the ruling.

But a lawyer for the family that brought the suit said nursing homes frequently mistreat their patients and will now have greater incentive to reform.

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“If they give people decent care, there won’t be any damages,” said Richard M. Pearl, a lawyer for Kay Delaney, whose mother died in a nursing home.

Rose Wallien, Delaney’s mother, entered Meadowood in Lake County, north of the Bay Area, after she fell and broke her ankle in 1993. Wallien had lived with her daughter and son-in-law in Lakeport, but because Delaney had a job, she planned to leave her mother in the nursing home until the injury healed.

Delaney visited her mother almost daily and frequently complained about her care and conditions at the facility, Pearl said. The daughter even filed a complaint against the home, he said.

Moving her mother would have been difficult, he added, noting that Lake County is remote, with few nursing facilities, and that Delaney worried that her mother might not survive a relocation.

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Four months after entering the home, Wallien, 88, died. She had bedsores so severe that her skin had been eaten to the bone, evidence showed. Witnesses testified that she had been left lying in her feces and urine for long periods because the home was understaffed.

Delaney sued under the state’s malpractice law and another statute intended to deter elder abuse. The Supreme Court held that in cases of reckless negligence, the more generous remedies provided by the elder abuse law apply.

“This is the first big hole blown” in the malpractice law, said defense attorney Murphy, adding that it is now “moot for nursing homes.”

The Legislature approved the law to limit damages for medical negligence in response to skyrocketing malpractice insurance premiums for physicians. Doctors consider the malpractice law sacrosanct and have fought effectively to preserve it. Without it, health costs would rise and access to medical care would diminish, medical groups argue.

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“They treat [the malpractice law] like it’s the Constitution, and any incursion, no matter how small or well justified, they see as the slippery slope to extreme poverty for doctors,” said Pearl, Delaney’s lawyer. “I don’t see it.”

Regardless of whether the malpractice or the elder abuse law applies, compensation for pain and suffering is limited to $250,000. But the elder abuse law requires the defense to pay attorney fees and court costs in addition to the jury award. Under the malpractice law, a winning plaintiff must pay the attorney a percentage of the award.

The defense in the Delaney case argued that the malpractice law also allowed only Wallien, not her survivors, to collect compensation for pain and suffering.

But a Lake County Superior Court jury awarded Delaney $150,000 for her mother’s suffering and $218,000 for attorney fees and court costs. Thursday’s ruling clears the way for those amounts to be paid.

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“When you have elderly plaintiffs, the defendants really play a waiting game because once they die, the main source of damages dies with them,” Pearl said.

The state high court took pains to limit its ruling to elder abuse cases. Professional negligence by health care providers still will be covered by the malpractice law, the court said. And only when the negligence is reckless will the elder abuse law apply.

“A plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence,” Justice Stanley Mosk wrote for the court. “He or she must show reckless, oppressive, fraudulent or malicious conduct.”

Recklessness, the court said, involves more than inadvertence and incompetence. It “rises to the level of a conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it,” according to the court ruling.

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But defense lawyer Murphy said plaintiffs’ attorneys will now routinely charge that medical negligence was reckless to invoke the senior abuse law.

The emotional nature of such cases will understandably incline juries to sympathize with the victims, Murphy said.

“With that kind of emotional overlay, asking the jury to make this very fine distinction between negligence and recklessness--well, I think you can see what will happen,” he said.

Justice Janice Rogers Brown, who filed a separate opinion, agreed with the court that the elder abuse law applied in the Lake County case but disagreed with the majority’s legal analysis.

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The California Medical Assn., which argued on behalf of the nursing home, said it could not comment on the decision because its attorney was unavailable.


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