August 2006
Suing a home is getting more difficult
For the first four years that LaVerne White lived at Beverly Healthcare in West Memphis, Ark., she could get out of bed, dress
herself, and walk to the dining room. Then her health deteriorated. When her daughters visited, they began to notice unanswered
call lights, empty water pitchers, and soiled linens on their mother's bed. There never seemed to be enough staff around when
the family needed them, and sometimes there was not enough food. For lunch one day, residents ate beets, white bread, and
rice.
In the summer of 2000, the nursing home sent White to the hospital. Her kidneys didn't work well, she had a urinary-tract infection, and she was having trouble breathing. She was falling frequently, but the facility didn't investigate whether her medications were the cause. A severe pressure sore, inadequately treated, had poisoned her blood. She returned to the nursing home but was back in the hospital the next spring, this time with pneumonia. She died a few days later.
Before White died, her daughters and other families had tried to complain about what they considered poor care. Beverly brought in a new administrator, who in turn called in a local long-term-care ombudsman, a state employee whose job is to advocate for residents and their families. But, White's daughters say, he took the side of the nursing home. One daughter, Diane Younger, says, "He was the one who made me understand that if I continued to 'interfere' with my mother's care, I wouldn't be allowed in the facility."
After their mother died, Younger and her sister, Cleta Rodgers, got angry. Their complaints about the care given their mother became the subject of a wrongful-death lawsuit against the nursing home. The suit alleged numerous instances of neglect, resulting in weight loss, malnutrition, and dehydration. Five days into the trial in early 2005, Beverly Enterprises settled for an undisclosed sum.
Increasingly, families like White's are turning to the courts when they believe that government agencies have failed to protect their loved ones. "These cases are not about physicians making the wrong call on the operating table. They are about denial of basic care," says Brian Reddick, a lawyer with Wilkes & McHugh, a nationwide law firm that sues nursing homes.
THE HOMES FIGHT BACK
Perhaps not surprisingly, nursing homes are now campaigning to make it more difficult for people to sue and collect monetary awards for injuries. Some states have passed laws limiting nursing-home lawsuits. Generally, that means legally imposed caps, typically $750,000 on punitive damages and $250,000 on noneconomic damages for pain and suffering. Nursing homes argue that caps are necessary to better predict their costs, especially for liability-insurance premiums, which have been rising in recent years. At the same time, of course, caps make it more difficult for victims to find a lawyer willing to take the financial gamble of representing them.
The big nursing-home chains are not stopping there. Some require families to sign binding-arbitration agreements at the time a family member is admitted. Some have begun to restructure their businesses, which has the effect of insulating them from liability. Here's how it works: A nursing-home chain splits itself into little pieces, called "single-purpose entities." Some of these entities own the individual nursing homes, while others lease and operate the facilities, effectively putting the company's major assets--its real estate--beyond reach of a lawsuit.
In Mississippi last year, Special Assistant Attorney General Scott Johnson told state legislators that if a home's license holder doesn't own the facility or any assets, legal action is pointless. "You can't collect money from someone who doesn't have any," he said. This spring, Beverly Enterprises, one of the country's largest chains, was sold to an affiliate of Fillmore Capital Partners, a San Francisco-based private equity firm. The operating company, called Golden Gate National Senior Care Holdings, will operate 262 nursing homes, and a new company, Geary Property Holdings, will own the land and the buildings for those facilities. Golden Gate will lease 80 other facilities that will continue to operate under the Beverly name. The new owners have already set up 13 Beverly facilities in Arkansas as separate corporations.
In the summer of 2000, the nursing home sent White to the hospital. Her kidneys didn't work well, she had a urinary-tract infection, and she was having trouble breathing. She was falling frequently, but the facility didn't investigate whether her medications were the cause. A severe pressure sore, inadequately treated, had poisoned her blood. She returned to the nursing home but was back in the hospital the next spring, this time with pneumonia. She died a few days later.
Before White died, her daughters and other families had tried to complain about what they considered poor care. Beverly brought in a new administrator, who in turn called in a local long-term-care ombudsman, a state employee whose job is to advocate for residents and their families. But, White's daughters say, he took the side of the nursing home. One daughter, Diane Younger, says, "He was the one who made me understand that if I continued to 'interfere' with my mother's care, I wouldn't be allowed in the facility."
After their mother died, Younger and her sister, Cleta Rodgers, got angry. Their complaints about the care given their mother became the subject of a wrongful-death lawsuit against the nursing home. The suit alleged numerous instances of neglect, resulting in weight loss, malnutrition, and dehydration. Five days into the trial in early 2005, Beverly Enterprises settled for an undisclosed sum.
Increasingly, families like White's are turning to the courts when they believe that government agencies have failed to protect their loved ones. "These cases are not about physicians making the wrong call on the operating table. They are about denial of basic care," says Brian Reddick, a lawyer with Wilkes & McHugh, a nationwide law firm that sues nursing homes.
THE HOMES FIGHT BACK
Perhaps not surprisingly, nursing homes are now campaigning to make it more difficult for people to sue and collect monetary awards for injuries. Some states have passed laws limiting nursing-home lawsuits. Generally, that means legally imposed caps, typically $750,000 on punitive damages and $250,000 on noneconomic damages for pain and suffering. Nursing homes argue that caps are necessary to better predict their costs, especially for liability-insurance premiums, which have been rising in recent years. At the same time, of course, caps make it more difficult for victims to find a lawyer willing to take the financial gamble of representing them.
The big nursing-home chains are not stopping there. Some require families to sign binding-arbitration agreements at the time a family member is admitted. Some have begun to restructure their businesses, which has the effect of insulating them from liability. Here's how it works: A nursing-home chain splits itself into little pieces, called "single-purpose entities." Some of these entities own the individual nursing homes, while others lease and operate the facilities, effectively putting the company's major assets--its real estate--beyond reach of a lawsuit.
In Mississippi last year, Special Assistant Attorney General Scott Johnson told state legislators that if a home's license holder doesn't own the facility or any assets, legal action is pointless. "You can't collect money from someone who doesn't have any," he said. This spring, Beverly Enterprises, one of the country's largest chains, was sold to an affiliate of Fillmore Capital Partners, a San Francisco-based private equity firm. The operating company, called Golden Gate National Senior Care Holdings, will operate 262 nursing homes, and a new company, Geary Property Holdings, will own the land and the buildings for those facilities. Golden Gate will lease 80 other facilities that will continue to operate under the Beverly name. The new owners have already set up 13 Beverly facilities in Arkansas as separate corporations.
