Dolores J. Rousseau was admitted to Millennium Nursing and Rehabilitation Center (“Millennium”) in January of 2008. Dolores’s daughter Barbara Rousseau signed numerous forms, including an arbitration agreement, on Dolores’s behalf as required by Millennium for Dolores’s admission to the facility. Barbara signed the admission forms in the various capacities of the patient’s representative, the patient or a responsible party, the resident’s representative, the resident/family, the family or legal representative, the legal representative, or the responsible family member. There is no evidence indicating that Dolores ever objected to Barbara’s signing the various admission forms on her behalf or that Dolores was mentally incompetent when she was admitted to Millennium.

Dolores was a resident at Millennium for only six days. Later that year, Dolores and Barbara sued the facility, alleging that while Dolores was a resident of Millennium, she suffered dehydration, a urinary-tract infection, an abdominal blockage, and other bodily injuries, as well as mental anguish and emotional distress. Dolores stated claims alleging negligence, wantonness, and breach of contract.

Millennium tried to compel arbitration in the case, but an Alabama trial court denied the motion. The Supreme Court’s April decision overturned two lower court rulings. The Alabama Supreme Court ultimately ruled that Dolores was checked in “under circumstances in which no reasonable person could consider the admission possible without the intervention of an agent to act on Dolores’s behalf,” according to the court’s decision. That is, Dolores permitted Barbara to appear to the nursing home to act on Dolores’s behalf, and Barbara’s apparent authority to sign such agreements was, therefore, implied.

Texas courts have been somewhat inconsistent in the enforcement of arbitration agreements in nursing home cases. Generally, Texas courts have focused on the signatory issue when examining whether an arbitration agreement should be enforced. A Texas court enforced an arbitration agreement in In re Ledet, 2004 Tex. App. LEXIS 11474 (Tex. App. 2004); in that case, the court rejected the argument that the arbitration agreement was procedurally unconscionable because the resident’s son, who signed the admittance papers as the responsible party, did not understand, speak, or read English. However, in Texas Cityview Care Ctr., L.P. v. Fryer, et al. 227 SW3d 345, 352 (Tex. App. 2007), the court held that nothing in a medical power of attorney indicated that it was intended to confer authority to make legal, as opposed to health care, decisions.

On occasion, I’ve blogged about nursing homes and the “burden” of Medicare Part D. In July, I told you that pharmaceutical representatives testified on Capitol Hill that nursing homes are losing money under the program.

Nursing homes are also concerned about Medicaid under-reimbursements. Sixty nursing homes in New Hampshire are suing the Department of Health and Human Services for $4.4 million for care given to Medicaid beneficiaries since 2002. From the Kaiser Network:

The nursing homes filed the complaint last month after health department Commissioner John Stephen told state lawmakers that there was a surplus in the department’s $192 million nursing home budget. The complaint alleges that Medicaid reimbursements are lower than the cost of providing care and that payments over the past several years have been lower than expected.

(Pictured: New Hampshire Governor John Lynch)

Long term care providers have had to reduce patients’ access to certain services because of the high costs of medical liability insurance caused by expensive litigation. The Medical Care Access Protection Act (PDF) was designed to reform the system by reducing punitive damages, attorneys’ fees, etc., while still protecting patients.

From the statement:

“We will continue to work with the Bush Administration and members of the U.S. Senate and House to pass a bill to help stop the problem of resources being directed away from patient care to pay for higher lawsuit costs. This is negatively impacting our ability to sustain nursing home care quality gains, and we regret Senate supporters were unable to muster sufficient backing to pass the Ensign bill.”

Also see Business groups to keep pushing malpractice reform.

The case was unusual. The state attorney general in Kansas, Phill Kline, sued the governor and several other individuals in an effort to establish that life begins at conception so the unborn would be protected as individuals under the state constitution.

The judge made no determination of when life begins but said that under federal law, states participating in the Medicaid program must allow abortions in cases of rape, incest, or danger to the mother’s life. Federal law trumps state law.

This case is an example of the far-reaching effects of Roe v. Wade. If the case were overturned, states could make their own determination about abortions.

The state’s Medicaid budget is $2.2 billion; 60 percent is funded by the feds. In an interesting twist, the Kaiser Network reports that the attorney general might have inadvertently sued himself:

Badgerow, who on Monday appeared before Shawnee County District Court Judge David Bruns seeking to dismiss the suit, said Kline oversees the state Crime Victims Reparations Board — which also could provide funding for rape and sexual assault survivors to cover the cost of an abortion — and therefore could be a defendant in his lawsuit.

Kline said he won’t file an appeal unless the legislature requires it.

Bulls Eye

Sid Rich with the Texas Association of Residential Care Communities is reporting in his newsletter that HB 850 has been introduced. The bill would mandate that nusing homes post signs indicating whether or not the facility carries liability insurance. The bill is pending in Committee.

Sid Rich is concerned because he was the only long-term care lobbyist who showed up to oppose the bill. This is ridiculous. I agree with Sid when he argues that this is putting a “bulls-eye” on your back.

What are your associations thinking?

Dr. Charles alerts us to an archived editorial on tort reform published in the New York Times. Common Good excerpts the article here. The title of the article is It’s Time to Try Special Health Courts. Here’s the excerpt:

We hold no brief for the current medical liability system, which does a poor job of compensating most victims of medical malpractice. An authoritative study of thousands of patients in New York State found that the vast majority who were harmed by medical errors or negligence never filed suit, whereas the vast majority of those who did file suit were not actually harmed by negligent doctors. Some studies suggest that, once a suit is filed, the courts do a reasonably good job of sorting out who deserves compensation, while other research has found that juries are swayed more by the severity of a plaintiff’s injuries than by evidence of negligence. But in a medical system that is coming under increased fire for failing to deliver consistent quality in hospital care, it is clear that only a small number of people are being compensated for malpractice.

Common Good makes the following observation:

Not only does the current system fail to reliably compensate injured patients, it also fails to weed out bad doctors. The Times recognized the need for a system that effectively “weed[s] out the small number of negligent doctors responsible for generating most malpractice awards.”
The Times also recognized the need for consistent damage awards: “Congress ought to consider requiring guidelines for judges and juries to help determine what compensation is reasonable in a given circumstance.”

As proposed by Common Good, special health courts would award damages–in addition to a patient’s medical costs and lost income–according to a pre-determined schedule established by experts.

Lou Dobbs weighed in on this issue earlier this month, making the observation that limits on damages for pain and suffering may not be enough. He goes on to discuss European systems where the loser pays all legal costs. We have a mechanism for that in Texas via HB4–but it has to be elected.

And, the Bush Administration is gearing up for some national form of tort reform saying that he rejects the idea of state by state tort reform ” because he said trial lawyers simply go to the states with the weakest guidelines.”

The continuing need for tort reform in the field of health care is exemplified by this article picked up by Dr. Kevin. Dr. Kevin summarizes the case:

Doctor prevails in malpractice case, but was it frivolous to begin with?It was a case of a bronchoscopy for hemoptysis. The patient apparently consented to the procedure, but not the subsequent biopsy that occurred (which is normally routine in these procedures). A damned if you do or don’t situation. What if a suspicious lesion was found, but wasn’t biopsed? Surely the doctor would have been sued anyways for missing a potential cancer.

What kind of lawyer took this case?