Neglecting the Neglected: The Impact of Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits

Abstract

Despite unsupported claims about a nursing home lawsuit crisis, little is known about the actual growth, size, ratio, plaintiff-defendant characteristics, factual foundation, and proportions of awards allocated to noneconomic damages, punitive damages, or special damages in nursing home litigation. Almost no empirical data has been collected on either the incidence of nursing home litigation or the conditions that led to these lawsuits. This article reviews what we know and still do not know about nursing home litigation. Nursing home neglect, abuse, and mistreatment cases embrace all liability-producing conduct including medical liability. This section presents the first large scale empirical study of nursing home neglect and abuse cases in three bellwether jurisdictions: California, Florida, and Texas from 1980 to 2004. The most significant limitation of prior academic research studies is the small sample size and the nursing home industry's undue emphasis on claims. To investigate the larger patterns of noneconomic damages in nursing home cases, data was collected for a fifteen year period from all courts in three nursing home litigation hotspots: California, Florida, and Texas. The sample consisted of all nursing home residents who received at least one dollar in compensation for neglect and abuse claims filed against long-term care facilities and their employees, including treating physicians, the nursing staff, and other medical providers. These three jurisdictions were chosen for further analysis because of their prominence as hot spots in prior research. In each of these jurisdictions, female nursing home claimants far outnumbered male claimants. A content analysis of these cases revealed that nursing home claims arise from diverse causes of action including nursing home neglect, breach of warranty, professional negligence and intentional torts. Another reason for calculating success rates is that verdict reporters do not systematically subdivide compensatory damages into special and general damages. The most dramatic finding is the rarity of nursing home verdicts. The California sample revealed an average of slightly more than one plaintiff's verdict per year over a fifteen-year period. Texas claimants fared slightly better with an average of two. Non-pecuniary damages accounted for one hundred percent of the award for greater than one in four nursing home lawsuits. Noneconomic or general damages accounted for less than a quarter of the compensatory damages in only twenty percent of the cases. Another significant finding in this study was the extraordinarily high rate of punitive damages in the dataset. In the California, Florida, and Texas cases, nursing home claimants received punitive damage awards in fifty-five of the 186 cases (thirty percent of the sample). Punitive damages in nursing home cases averaged $22,625,432 with a median award of $4,000,000. A nationwide cap on non-economic damages and punitive damages would in effect, make nursing home neglect cases, into no damages cases which would make it difficult for elderly claimants to obtain representation.

Keywords: torts, damages, elder law, nursing homes