Capped damages and COVID-19 immunity hinder nursing home litigation

A surge of nursing home litigation, a lack of options available to attorneys and families and no signs of change on the horizon are leading to legal battles that result in little systemic change to the industry.

The COVID-19 pandemic led to a nation-wide litigation boom for nursing home abuse cases. As of 2024, the number of these claims increased by 30 percent from 2020, according to Douglas Burda, writing for the Las Vegas based firm Ultra Law.

Missouri ranks dead last in terms of nursing home quality, faring worse than every other state in the country, according to an analysis by US News and World Report.

Missouri attorneys and national advocacy groups say that this has been a problem since before COVID-19, going back more than two decades.

The causes? Most argue that the corporatization of these homes and chronic understaffing, coupled with punitive damage caps and little oversight, are keeping the status quo negligent and dangerous for nursing home residents.

‘Substandard care, abuse and neglect’

Nursing home care, or the lack thereof, has been an issue for decades, according to Executive Director of the Long-Term Care Community Coalition Richard J. Mollot, a non-practicing attorney. LTCCC is a nonprofit organization based in New York that advocates for nursing home and long-term care facility residents.

Attempts to address these issues have been in the works for years as well, beginning with the 1987 federal nursing home law, the regulations that implemented that law in the early ‘90s and efforts to tweak those regulations over the years, Mollot added.

“Because we don’t have very strong implementation of those regulations, such as enforcement, which is something that we focus a lot on, (those) problems persist,” he said. “Therefore, the bar becomes an important mechanism for quality assurance and for, of course, addressing when residents have been subjected to insufficient care, substandard care, abuse and neglect.”

In the five years since COVID-19, when many states saw an uptick in litigation, things haven’t improved, Mollot said.

“What we’re seeing (…) now in the post-COVID era, is that it hasn’t really recovered at all in terms of quality,” he said.

Chad Lucas of the Lucas Law Firm in Kansas City said his firm has seen a definite increase in nursing home lawsuits since the end of the pandemic.

“Maybe that’s specific to my practice, maybe it’s an industry-wide phenomenon. I think that as the baby boomer generation continues to age, you have more and more people living longer and longer and at some point, (…) a good percentage of them end up in some sort of nursing facility,” Lucas said. “My guess is based on the demographics of the country right now and how you have a larger aging baby boomer population, you’re going to see more of these cases for the foreseeable future.”

David L. Grebel, founding partner of Niemeyer Grebel Kruse in St. Louis, also said he has seen an increase in nursing home complaints but said he has seen fewer actual cases.

“I think the landscape has shifted a little bit,” Grebel said. “And I don’t know that that’s because nursing homes are doing a better job or anything, but I think they’re just difficult cases a lot of times.”

The damages in nursing home cases have to be severe for a lawsuit to be brought, Grebel said. He said common cases with severe implications include bed sore injuries or deaths or outright abuse. Complaints involving falls are often much more difficult to pursue.

Almost always, Grebel said, his cases are connected to a lack of staffing.

‘It doesn’t seem to have improved much’

Attorneys say tort reforms and caps on punitive damages, a lack of staffing, the nursing home industry’s powerful lobbying influence and shield laws enacted during COVID-19 to protect nursing homes are just a few of the barriers to accountability they face.

One of the more concrete and easier to prove commonalities in these lawsuits is a lack of staff.

“Understaffing is usually a big issue and that can take the form of not having enough people to make the rounds on staff, not having enough people to cover nights, not having enough people to cover weekends,” Lucas said.

He said he frequently sees situations where staff turnover leads to a lack of institutional knowledge in the facilities.

“Then there’s a transition of care, the old care plan and knowledge that (developed) basically has to start over with a new person,” Lucas said.

David Terry, of the Terry Law Firm in Chesterfield, said what stands out to him the most about this practice area is that you see the same issues over and over again.

“My first case was a bed sore case where the guy had like seven stage four bed sores,” Terry said. “That was in 2001 and here we are, 24years later, and I’m still handling cases with stage four bed sores.”

Stage four bed sores are the most advanced stage of these injuries where muscles, tendons and bone can often be visible through the holes created by leaving a patient in the same position for too long, according to the Nursing Home Abuse Center.

Bedsores, falls, medication errors and infections left untreated are just a few of the recurring issues Terry sees in his practice.

“it’s disheartening that, you know, it doesn’t seem to have improved much,” Terry said.

‘They’re going to die anyway’

One of the biggest barriers to nursing home reform in Missouri is the 2005 tort reform legislation, Terry said.

“That’s where the legislature determined that there wasn’t a single set of facts that could happen at a nursing home that deserved any kind of compensation over the cap that they implemented,” Terry said. “Now that cap has been modified since then, and it’s better than it was, but there’s still an artificial cap that makes it difficult to fully obtain justice for some of these people.”

While some of the injuries that occur in nursing homes don’t ever reach the cap, others are so gruesome that they are not, in Terry’s opinion, adequately compensated.

“The other thing is the legislature over the past few years has seemed intent on protecting nursing homes more than nursing home residents. A recent law (…) put additional protections in to where it’s almost impossible to get punitive damages against the nursing home,” he said. “So, the end result is you’re in a situation where sometimes the injury payouts are just the cost of doing business and that does not force the nursing home to get better.”

The tort reform law was supposed to improve Missouri nursing homes by allowing them not to worry about litigation, but that has not been successful and the state’s nursing facilities remain among the worst in the nation, Terry said.

“Nursing homes really don’t have to worry about getting hammered by a jury for some egregious care that’s been provided because they’re protected by artificial caps and virtually no way to get punitive damages, so there’s no super incentive for them to get better,” Terry said.

He added that these facilities are also not required to carry liability insurance.

“Missouri nursing homes are not required to carry any insurance at all and most of them do, but they’re often these small insurance policies that are called wasting policies, which means that the defense lawyers get paid out of the insurance policy,” Terry said. “So, everything that the defense lawyer does reduces the amount of insurance that the nursing home actually has to compensate the people that they injure and kill.”

Terry said Illinois doesn’t have the same compensatory caps for pain and suffering, but in line with Missouri, Illinois doesn’t allow for punitive damages and also doesn’t require nursing homes to carry insurance.

“Nursing homes (are) a huge industry and it’s increasingly owned by for profit operators,” Mollot said. “We’re seeing very sophisticated types of companies and organizations coming into this field, real estate investment trusts (…), private equity and private enterprise, some very large nonprofits — or supposedly nonprofits — so there’s money there. And so, why aren’t we asking the question of, ‘If there’s money there, why are we accepting too often the excuse that these facilities don’t get enough money to provide an RN 24 hours a day, or don’t get enough money to provide better staffing, better food, better services for their residents?’”

These nursing home operators and companies are increasingly becoming for profit industries, Mollot said.

“They’re living high on the hog and so there’s that disconnect that is really hard for so many legislators,” Mollot said. Legislators and Congress are concerned nursing homes are not making enough profits and because of this, they continually increase the Medicare rates for these homes.

MedPAC, a nonpartisan organization that advises Congress on its Medicare programs, has repeatedly said for the past 20 years that Medicare profits are too high and should be lowered for these facilities, Mollot said. Still, Congress continues to raise them, especially after the pandemic.

Mollot said the industry has enormous lobbying power that typically gains the ear of the legislature over the voices of the residents. Still, he said the biggest gaps in accountability lie with the states.

“The biggest gaps are in the state agencies and the failure of the state agencies overall to do a good job of identifying (…) when there’s substandard care or neglect or abuse,” Mollot said. “Even when they do identify substandard care, they’re very disinclined to identify the extent to which residents have been harmed or put into immediate jeopardy.”

One reason why this might be the case are general attitudes towards those living in these facilities, such as ableism and ageism, Mollot said. This attitude can seep into the judicial system and in many states, judges view these facilities as businesses, frequently siding with the industry over the rights of residents.

“Judges see nursing homes as another line of business rather than the responsibility they have for providing care and quality of life and dignity for a very vulnerable population,” Mollot said. “I think that rings true here because too often (there is) the sense of ‘they’re old, they’re going to die anyway.’ We have a legal system (that is) prejudiced towards people at this stage in their lives and the value of those lives and providers take advantage of that.”