No! To Senate Bill #607
By Bee Becker

The so-called "Health Act of 2003", now S. 607, threatens to strip victims of what is usually their only recourse, putting restraints not only on the dollar amounts but on 'acceptable' evidence, even evidence which is already public information, etc. It has the support of the Bush Administration and is touted as the grand solution to the rising costs of medical liability insurance and improved 'care'.

Elderly victims of abuse and homicide in nursing homes are particularly vulnerable to this new victimization by the system in that they would rarely have expected income or dependents under age 18, thereby reducing their 'financial value' to society to zero, regardless of the egregious circumstances of their harm or death.

In the case of harm/wrongful death occurring in nursing homes, there is a far greater prejudice against these victims, even in the case of proven homicide.  Over decades, few cases of proven harm/homicide ever saw criminal accountability, even when the motive was purely for financial gain.  A victim's 'justice' MAY be limited to a fine by a regulatory agency; maybe not even that.

Yet, those who are complaining about lawsuits aren't protesting in front of the insurance companies or protesting about those offenders who are the cause of any lawsuits.  Where are these doctors' voices when their patients are being abused and neglected in nursing homes?  Yet, nursing homes don't hesitate to call upon their own staff of attorneys to fight the usually meaningless regulatory fines.  Will there be caps on how much of taxpayers' dollars can be freely used for defense attorneys at the whim of the nursing homes?  I don't hear defense attorneys complaining about how many billable hours they log fighting the regulatory system or defending their clients' harm and abuse.

In a recent article in the Atlanta Journal-Constitution regarding AARP's opposition to tort reform efforts, the president of the Georgia Nursing Home Association was quoted as saying "All these claims and lawsuits draw money from Medicaid funds, which raises the cost to the taxpayers." (SWTIMES.COM.) That's a curious issue for the industry to be concerned about when their campaign contributions draw from Medicaid funds, as do the multi-millions of dollars defrauded from the government which are allowed to be repaid at pennies on the dollar.  In this same article is a quote from the daughter of a nursing home abuse victim, "If you want to put a cap on anything, why not put a cap on the abuse and neglect going on in the nursing homes".  That truly IS the point... decades later, those with the power to do so have NOT stopped the atrocities.

California became the poster child for the 'success' of such reform enacted in 1976.  Foundation for Taxpayer and Consumer Rights and the Center for Justice & Democracy (CJ&D) teamed up with nationally-recognized actuary J. Robert Hunter, to compare national malpractice premium trends to those in California.  Hunter found that from 1991 to 2000, malpractice premiums in California have stayed close to national premium trends.  According to the CJ&D News Release dated May 29, 2002, "....over the last decade, the average premium in California has grown more quickly than it has in the nation overall. This analysis has, for the first time, exposed as an insidious public relations scam the notion that California's cruel law has controlled the growth of malpractice insurance premiums." According to the data, "The 2000 average premium/doctor in California was only 8.2 percent below that of the nation... while the average malpractice premium in California between 1991 and 2000 actually grew more quickly (3.5 percent), than it did nationally (1.9 percent)."

The Florida nursing home industry and some legislators pushed for tort reform and won.  However, still apparently unsatisfied, Florida is blowing the tort reform horn yet again.

Arkansas' healthcare industry is also on the tort reform bandwagon.  Arkansas County Coroner Mark Malcolm, who also testified with me at the 2002 hearings, was recently quoted as saying, "I find it wrong, and personally, I find it somewhat arrogant," Malcolm said, adding that he investigates more than 900 deaths a year at about 30 nursing homes in Pulaski County. "This bill silences the dead man's voice." (Visit ACCESSATLANTA.COM.)

A significant issue in this same Arkansas article was this:  [the Senate panel] "demanded that officials from the state Department of Human Services be present at the next meeting to answer questions.; "It seems to be that they should be here to answer some of the questions that we have about the quality of care in this state."

Indiana allows NO punitive damages for wrongful death.  It is, therefore, far better for the offender if death occurs.  Do you think Indiana's medical liability premiums are lower than the rest of the country?  Does this lack of remedy result in Indiana's healthcare industry providing far better care than the rest of the nation?  My 83-year-old mother-in-law was the victim of a homicide in an Indiana nursing home.  No criminal prosecution; no punishment available through punitive damages; no deterrents.  What now?  A SECOND homicide in the same facility and another case filed alleging sadistic mental abuse of another elderly helpless resident.

The healthcare industry and some sympathetic members of Congress across the country want to decide, based upon the wishes of the healthcare industry, what is a comfortable level of punishment for the offenders by limiting award decisions of jurors, ordinary citizens.  Are you giving them that right?  "Punitive damages" means "damages awarded in excess of normal compensation to the plaintiff to punish a defendant for a serious wrong". If all other avenues to meaningful justice (deterrents) such as criminal accountability fail or are blocked, where is the motivation to stop such practices?  Will Medicaid and Medicare liens which are often immediately placed on recoveries from lawsuits also be reduced so as not to 'offend' the victim?  I think not.

How much worse will conditions be for nursing home residents if this avenue to justice, the threat of lawsuits, is stripped down to meet the wishes of offenders, along with their never-ending whining to ease regulations?  If conditions hadn't been so horrific in the first place, these regulations would have never been necessary.

It sounds ridiculous to imagine that murderers, rapists, drug lords, child molesters, thieves and embezzlers, etc., had a lobby and the financial resources to make campaign contributions;  would Congress allow THEM to decide what is a comfortable level of punishment for THEIR crimes?  Would you allow these criminals to decide that DNA evidence, fingerprints, etc., could NOT be used as evidence of their crimes?  I don't think so.

Perhaps if Congress passes this bill, they will avoid "offending" some of their biggest contributors.  As of 9/9/02, according to the Center for Responsive Politics, since 1990, contributions from Health Professionals total $207,837,907; contributions from Hospitals/Nursing Homes total $50,940,960. That's a lot of comfort.  Where does that leave the victims?

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