Thank you for convening today's hearing about medical liability in Pennsylvania and for the opportunity to present testimony.

My name is Diane Menio and I represent CARIE, the Center for Advocacy for the Rights and Interests of the Elderly.Founded in 1977, CARIE is a non-profit organization dedicated to improving the quality of life for frail older adults.CARIE's focus of concern spans the long-term care continuum of needs from those who are homebound to those who are institutionalized.Older adults who experience physical or psychological impairment frequently have difficulty advocating for themselves and are often a silent group.CARIE works to protect their rights and promote awareness of their special needs and concerns.CARIE serves as the long-term care ombudsman providing complaint handling and general advocacy services for about 7,500 residents of approximately 140 nursing homes and personal care facilities located in various Philadelphia neighborhoods.CARIE also provides a model training program that has worked to reduce the incidence of resident abuse and neglect.We are also pleased to be initiating a Long Term Care Ethics Network for providers in Pennsylvania that is helping them address challenging situations at their facilities.It is through this experience that we offer the following comments.

Introduction

Medical liability presents a dynamic issue for advocates concerned about older adults.The issue embraces two major areas of interest: access and quality.As "medical malpractice" is splashed throughout the headlines, the problems of rising premiums and the impact on physicians, hospitals, nursing facilities, personal care homes and other providers, presents a compelling problem that needs a legislative solution.No one wants to see a caring physician forced out of his or her practice or a quality nursing facility close its doors.It is also troubling when quality nursing home or personal care home providers must pay higher insurance premiums when those financial resources could be expended on caring for residents.While residents receive quality care at many long term care facilities, there are serious problems with quality care at numerous nursing facilities and personal care homes.Since there are about 55,200 residents in approximately 785 nursing facilities and about 1,800 licensed personal care homes caring for approximately 79,800 residents throughout Pennsylvania, there is much at stake.Advocates have been fighting for years at the state and federal level for reforms needed to improve the "crisis in care" provided.

Crisis in Care

Pennsylvania, like the rest of the nation, has a real crisis regarding the quality of care provided at long term care facilities.There are numerous studies and research documenting the extensive problems that exist.In Pennsylvania, the Pennsylvania Health Law Project recently released a white paper that examined data from the Pennsylvania Department of Welfare (DPW).(The white paper can be found at www.phlp.org.)A Report on Pennsylvania's Personal Care Homes and Assisted Living Residences: A Call for Reform That has Gone Unheard for Over 20

Years provides evidence using DPW's own records to show that DPW permits personal care homes to operate, sometimes for years, even when they are jeopardizing the health and safety of residents. 

Pennsylvania Auditor General Bob Casey also highlighted serious problems with the oversight of nursing facilities and personal care homes.(These audits can be found online at www.auditorgen.state.pa.us/senior/.)An audit found DPW "seriously deficient" in its oversight of personal care homes.A follow-up audit of the Department of Health oversight of nursing facilities found that while there were improvements in the Department's response time to investigating complaints, there were still serious problems with sanctioning poor performing providers."Health permitted five nursing homes with a total of 549 federal and state deficiencies to continue operating with no sanctions." 

Insurance carriers should consider the enforcement actions, licensing history, and claims history when determining premiums.Providers that have a good record in terms of the care being provided should not have to subsidize the costs of providers that are found to repeatedly provide substandard care.Poor performing providers should be forced to pay more and improve the care they provide or get of the business.These actions would not only work to help consumers but also decrease the costs associated with malpractice. 

Public Citizen recently released a report, "Medical Misdiagnosis in Pennsylvania: Challenging the Medical Malpractice Claims of the Doctors' Lobby."(The report can be found at www.publicitizen.org.)According to the report, "repeat offender physicians are responsible

for the bulk of medical malpractice costs.""Only 4.7% of Pennsylvania's doctors (1,838), each of whom has paid three or more malpractice claims, are responsible for 51.4% of all payments."Public Citizen documents that only a very small percentage of doctors in Pennsylvania with multiple malpractice payments are disciplined.Good doctors should not be forced to pay for their colleagues' errors.Targeting policies that minimize "repeat offenders" and improve oversight would not only help consumers from becoming victims of poor practices but would also help contain malpractice costs.

Case Examples  

CARIE has visited many facilities that are understaffed, dirty, bug infested, and where residents are being neglected.The indignities that many residents endure reflect the fears and anxieties that prospective residents and families have about turning to a nursing home for care.The U.S. Attorney's Office for the Eastern District of Pennsylvania lists some very compelling case examples and these lawsuits have had a dramatic impact on care provided.The cases can be found at www.usao-edpa.com/Invest/nursing.htm.One case example describes a 60-year-old man with dementia who could walk with a walker when he was admitted to the facility and participated in activities.He had no bedsores.Two years later, he could no longer walk.He lost a substantial amount of weight and continued to lose weight even after a feeding tube was inserted.Three years after his admission, he had 15 bedsores.The pain associated with the bedsores and his contracting limbs went unattended. His autopsy showed that several of his bedsores could have easily been prevented with "simple nursing intervention."

$250,000 Cap on Non-Economic Damages

The debate as to how to solve the problem with rising malpractice premiums has led some legislators to propose caps of $250,000 for non-economic damages.While conflicting information exists as to whether this cap will help reduce malpractice premiums, we want to testify that this proposal will ultimately prevent residents of long tem care facilities from obtaining justice from egregious acts against them.Limits on non-economic damages discriminate against older adults.Since residents do not have damages for lost wages, the non-economic damages are the only damages nursing home residents can be awarded.Since California instituted its $250,000 cap, virtually no malpractice lawsuits have been litigated on behalf of a nursing home resident.While it's clear that residents lost rights in California, data shows that the cap has done little to decrease malpractice premiums.

Federal estate recovery policies are another factor to consider.The federal government requires states to have estate recovery regulations in place for older adults who receive Medicaid services as a condition for participation.If they have resources, older Medicaid beneficiaries are required to pay the state back for any Medicaid expenditures paid on their behalf.As you know, there are many nursing home residents who rely upon Medicaid to help pay for their care.Obviously, nursing home residents cannot even begin to repay this debt, unless there is a property that is sold.However, should a resident receive a settlement, they may ultimately receive little or any compensation for their pain and loss to their quality of life as the money would go to pay their debt.

Ageism is pervasive in our society and rears its ugly head in many ways.For example, as we described the substandard level of care that many nursing facility residents receive becomes at times "acceptable" or "unavoidable" because they are old.Very little value is placed upon nursing facility residents.The last time nursing home residents in Pennsylvania saw a meager increase in their income was when the federal government increased their personal needs allowance from $25 to $30 per month in 1988.

Civil lawsuits can help to improve care.We have witnessed that when a lawsuit is filed, regulators who may have been unresponsive, heighten their attention to that facility and often take action to bring the facility into compliance.Lawsuits and even the threat of a lawsuit can serve as a deterrent and improve care. Particularly since most cases in nursing homes relate to a systemic problem that negatively impacted the individual filing the suit, any improvement tends to impact other residents in the facility.Oftentimes as part of the settlement of civil lawsuits, facilities are required to establish policies or implement a follow-up plan to be sure problems are corrected.Residents and their families demand that something be done to prevent another human being from suffering as they have.          

Solutions

As we described, more needs to be done to distinguish between good and poor performing providers.There is no better way to decrease liability than to quickly bring poor performing providers into compliance, or as a last resort after other remedies have been exhausted, force them out of business.Those providers that have established risk reduction programs, addressing such resident care concerns, as nutrition and preventing bedsores, should be rewarded with lower premiums.Ensuring residents receive good care would eliminate the need for malpractice suits.