Critics say Lundberg's bill will prevent legitimate abuse lawsuits

BY MICHAEL L. OWENS
and DANA WACHTER
BRISTOL HERALD COURIER/11 CONNECTS

BRISTOL, Va. – In February, Tennessee Rep. Jon Lundberg, R-Bristol, co-sponsored a bill that would have capped how much money nursing home patients could win in neglect and abuse cases.

The bill, House bill 2243, failed. So did the accompanying Senate bill 2160 by Sen. Jim Tracy, R-Shelbyville.

Lundberg isn’t finished, though. He is now brainstorming a bill that would cap the amount paid to trial lawyers who file neglect and abuse cases against nursing homes.

The new bill would give 90 percent of court winnings to the patient or family, and the rest to the lawyer, Lundberg said. Such a move would deter lawyers from jamming the courts with frivolous lawsuits, he theorized. In turn, the cost of insurance liability would go down and nursing homes would have more money to train their staffs.

“We are talking about ... the money that could be spent on patient care,” Lundberg said Thursday. “The bottom line is it’s about taking care of patients.”

Tennessee ranks as the third-worst state for nursing home care, according to U.S. News & World Report.

But consumer advocacy groups fear that Lundberg’s new idea, if passed, also would prevent legitimate lawsuits from reaching the courtroom.

The 10 percent left for lawyers might not even cover the cost of an investigator or a doctor’s expert testimony, Tennessee Association for Justice President Wayne Ritchie said in a Thursday meeting with the Bristol Herald Courier editorial board. Ritchie and other consumer advocates requested the meeting to discuss Lundberg’s spring bill in the wake of criminal charges being filed against former nursing home aide James W. Wright. On Jan. 27, the former aide will face four charges of aggravated sexual battery, which police allege happened at National Healthcare Bristol nursing home.

Though the local NHC home is on the Virginia side of town, the facility’s corporate office is based in Murfreesboro, Tenn.

NHC began pushing for tort reform following a 2003 fire at its Nashville facility, Tennessee Association for Justice spokeswoman Jill Hudson said at the meeting. That fire, and the 16 deaths that resulted, led to multimillion-dollar lawsuits.

Ritchie argued that caps would do little to end abuse in nursing homes.

“Any time there’s a limit on [lawsuits] ... it encourages the conduct, or encourages the wrongdoers to sweep it under the rug or not really pay attention to it,” he said.

Local attorney Parke Morris, licensed in both Virginia and Tennessee, agreed that an attorney fee cap would only keep legitimate cases out of the courtroom. Morris represents several NHC patients who have accused former aide Wright of sexual assault.

“They could make all these lawsuits go away,” Morris said Thursday. “They did it in Florida ... and they didn’t cap damages, and they didn’t cap attorney’s fees. All they did was increase the minimum number of hours of nursing care for every resident every day.”

As a result of the law, Ritchie said, lawsuits dropped by 71 percent and health and safety violations dropped by 60 percent.

Lundberg said he is not familiar with Florida’s nursing home staffing laws.

The lawmaker’s first bill, from February, did not call for mandatory staffing levels, but did base caps for punitive damages on a sliding scale linked to the hours of nursing care given to each resident.

For example, there were no caps on facilities with enough employees to provide each patient with two hours of direct care a day. But a facility providing three hours and 30 minutes of direct care a day would pay at most $300,000 in punitive damages.

The national average is two hours of direct care a day, Hudson said. Florida law mandates that its nursing homes give three hours of daily direct care.

Ritchie noted concerns among consumer rights groups that Lundberg’s first bill might resurface.

But Lundberg said there is no chance of that happening.

“I can reinstate the bill if I wanted to, and the same thing is going to happen,” he said. “I’d be wasting everybody’s time.”

mowens@bristolnews.com | (276) 645-2549
dwachter@wjhl.com | (423) 232-4571