Pennsylvania House votes down bill to limit punitive damages in nursing home litigation

By Nicholas Malfitano | Jul 2, 2018


HARRISBURG – Legislation sponsors viewed as a reform measure that sought to limit punitive damages in verdicts against nursing homes was defeated in the Pennsylvania House of Representatives last week.

The bill, sponsored by Rep. Warren Kampf, a Republican and introduced last year, would have applied the Medical Care Availability and Reduction of Error (MCARE) Act to nursing homes and assisted living facilities, capping punitive damages at 250 percent of the total compensatory damages award.

In September, the bill passed the House Judiciary Committee in a 14-13 vote, but the bill was defeated by a final vote of the House 103-91.

Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform, criticized the move on the legislature’s part.

“The majority of the PA House chose to collaborate with the trial lawyers over protecting access to nursing home care in Pennsylvania. As a result, out-of-state law firms will continue their assault on our long-term care facilities,” Schroder said.

In Schroder’s view, long-term care facilities choose to settle almost all of the cases brought against them due to the threat of unlimited punitive damage awards, since insurance providers do not cover punitive damages and such expenses would then be paid out-of-pocket.

“This has the potential to bankrupt those caring for our oldest and most vulnerable family members. Plaintiffs’ attorneys know that long-term care facilities will settle to avoid the risk of going out of business and they use this to their maximum advantage. That is why out-of-state lawyers advertise heavily to promote lawsuits against nursing homes in Pennsylvania,” Schroder explained.

“The PCCJR urges the Pennsylvania House to revisit this issue in the near future. There were many factual and legal inaccuracies maliciously spread by the trial bar to distract legislators from the damage being done by lawyers to the availability of long-term care. If punitive damage abuse is not curtailed, long-term care providers will leave Pennsylvania. It will be hard to find long-term care close to home for our loved ones and that will be a tragedy for Pennsylvania’s families.”

Robert L. Sachs Jr. of Shrager & Sachs in Philadelphia, a board member of the Pennsylvania Association for Justice, offered contrasting comments on the House’s decision.

“This bill demonstrates that the Pennsylvania legislature, which remains majority-controlled by Republicans, works very hard to balance the interests of its individual constituents and the business interests here in Pennsylvania,” Sachs said.

“And I think that this outcome is a very good example of them striving to strike a balance. From our perspective, we think they have found an appropriate balance at this time.”

Sachs added the timing of the bill was perhaps inopportune for nursing homes, given the widespread press attention which resulted from the recent, neglect-related death of H.R. McMaster Sr., the father of former U.S. National Security Advisor H.R. McMaster, in the Cathedral Village nursing facility in Philadelphia.

Pennsylvania Attorney General Josh Shapiro announced at a press conference last month that 30 year-old Christann Gainey, a nurse at Cathedral Village, stands accused of falsifying medical records, not providing adequate care and additional charges, including neglect of a care-dependent person in connection with McMaster Sr.’s death.

“That received a great deal of press, and the care that our most vulnerable citizens, [those] being senior citizens, receive is the focus of a great deal of inquiry right now and appropriately so. Because of some very high-profile events that have sadly taken the lives of seniors across Pennsylvania, I don’t think those advancing this legislation picked the best time to pursue it,” Sachs said.

Sachs continued that the very same limitations on punitive damages sought by supporters of this legislation were already contained in the MCARE Act, which has been the law in Pennsylvania for nearly 16 years.

“As I’m fond of saying, they were offering a cure without a diagnosis. There is no problem,” Sachs said.

Currently, verdicts against doctors have a punitive damages cap of 200 percent of the compensatory award.

“What they already get the benefit of is a higher standard to prove punitive damages than we hold a drunk driver to, when you take somebody’s life. They’re asking for protections that already exist, and they’re asking for protections…as a cure for a problem that hasn’t even been diagnosed,” Sachs stated.

Sachs defied the supporters of the bill to point to more than five punitive damages award verdicts involving nursing homes in Pennsylvania in the last few years.

“They just don’t exist,” Sachs said.

Sachs continued that due to being in touch with many of the lawyers who handle nursing home cases across Pennsylvania, and in consulting with them, they did not see a large number of punitive damage verdicts that would set off concern and the need for it to be addressed.

Moreover, Sachs stated the last time concerns of this nature were expressed in the media, both the Pennsylvania State Legislature and State Supreme Court acted “very promptly” in passing the MCARE Act and Certificate of Merit rules.

“Both the courts, in their own rulemaking power, have policed what’s going on at the trial level, and the legislature as well. Those changes from 16 years ago remain effective today,” Sachs stated.

Schroder disagrees.

“Of course they have not seen a high number of cases with punitive damages because the nursing homes are petrified of having to pay a huge punitive damage verdict out-of-pocket, so they settle virtually every case. And those litigating these cases know that,” Schroder stated.

Schroder added the higher standard for securing punitive damages as included in the MCARE Act versus the need limit for a limit was “mixing apples and oranges” as a comparison.

“This higher standard does NOT prevent lawyers from alleging punitive damages in the complaint. That is all it takes to force a settlement, so that the provider does not run the risk of being put out of business by the litigation industry due to the fact there is no cap,” Schroder said.

Priority Healthcare Group and Saber Healthcare Group, two major nursing care groups operating in the Pennsylvania region, did not respond to requests for comment on the legislation not passing.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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