Ky. Voices: Bill makes it harder to sue over poor nursing-home care

by Nancy Trentham, Kentucky Initiative for Quality Nursing Home Standards

Abused or neglected nursing home residents are at risk. Now the threat is not from abusive or negligent caregivers, but rather state lawmakers who are elected to pass laws that are supposed to protect our parents and grandparents. 

The culprit, House Bill 361 proposed by Rep. Melvin Henley, D-Murray.

This legislation would create so-called "medical review panels" explicitly designed to thwart resident justice and provide specific benefit to well-heeled corporate interests. Here is a closer look at how HB 361 would drastically deplete residents' rights.

Imagine your father lives in a nursing home and you get a call from the nursing home administrator. Your dad has been whisked to the hospital suffering from a stage IV pressure sore no one seemed to notice. Confused by the events, you report the incident to government agencies.

Regulators investigate. They find that negligence, short staffing and substandard care caused the sore. When the dust settles, you seek civil damages against the provider for inadequate care. In step with your dad's constitutional rights, you hire an attorney, go to court and eventually a jury finds a favorable verdict in your father's case. Justice prevails.

Now overlap HB 361 and this is how your father's case would play out:

It would have to funnel through a "star chamber" chock-full of attorneys and physicians (mind you, there are no consumer representatives on the panel) to obtain the official seal of approval before his case can make its way to court.

Unlike every other citizen, unlike every other injured person, you cannot go to court unless and until you go to the special panel. This will take you and your family more time and will cost you more money.

And, it is important to remember, these panels are tipped in the providers' favor. Not only do operators have a cadre of shrewd lawyers defending them, but the panel members hearing the case would be professionally biased toward their nursing home pals. Even if you decide to engage in this bureaucratic nightmare, you might as well kiss speedy justice goodbye.

These panels could take up to six drawn-out months to render a decision, if all parties are able to participate. Some rural communities may have difficulty locating physicians or attorneys willing to close their practices for a day to take part in these panels. They know if they do participate that would be lost income for them and a hardship on their own patients and clients — not to mention a detriment to their local economies.

Connecting the dots, it's obvious these panels are meant to intimidate victimized residents from pursuing litigation. HB 361 treats nursing home residents as second-class citizens by denying them the same legal protections afforded to every other Kentuckian.

So why are lawmakers picking on nursing home residents who have done nothing wrong? Money. Nursing homes rake in millions of dollars. The corporate fat cats have decided profiteering outweighs resident safety and care, and defending against lawsuits is a nuisance to their revenue stream.

If the industry can erect enough barriers to slow or stop lawsuits, then CEOs can fill the corporate coffers and ensure happy shareholders. Meanwhile, care worsens for residents by giving more protection to providers and less to residents.

But there is a better solution for residents and providers. The answer: Employ more qualified caregivers.

According to the nursing home industry's own data, both the cost and the frequency of lawsuits in Kentucky declined when staffing ticked higher. By investing in their own work force, nursing home companies will yield a higher rate of return Not only will residents enjoy a higher quality of life and care, but lawsuits will also decline.

Seems like a no-brainer.

So the nursing home industry should stop wasting lawmakers' precious time with frivolous legislation to dilute residents' rights. Instead, it should propose a bill that helps residents while simultaneously helping the industry.

And legislators should do the right thing and vote against HB 361.