Penalties, Punitives, and Granny Cams

The escalating lure of elder abuse litigation

December 04, 2018 Photo

In the United States, 15 percent of our population is comprised of individuals over 65 years of age. That translates to approximately, 47.8 million people and as longevity continues to rise, so will that number. As an example, our aging population increased by 1.6 million between 2014 to 2015 alone. Over five percent of those age 65 or older reside in skilled nursing facilities or residential care facilities for the elderly.

The unfortunate reality is that with age comes accidents and illnesses. Approximately, one-third of all adults over the age of 65 will suffer a fall and, once they suffer a fall, two-thirds will suffer a second fall within six months. It follows that falls are the leading cause of death from injury among people 65 and older. The incidence of hospitalized individuals over the age of 65 with a principal diagnosis of pressure ulcer is 56.5 percent, while 72 percent are hospitalized with a secondary pressure ulcer diagnosis. Immobility, such as lying in bed or sitting in a chair for long periods of time, can lead to undue pressure and skin breakdown at bony protuberances such as the coccyx, sacrum, and heels. Co-morbidities such as low body mass index, poor perfusion, renal failure, and diabetes all increase the risk of pressure sore development.

Not surprisingly, the most frequent subjects of litigation sounding in elder and dependent adult abuse and neglect are falls and pressure ulcers. Elders are typically defined as individuals who are 65 or older, while dependent adults are defined as individuals between 18 and 64 who have physical or mental limitations that restrict their ability to carry out normal activities or to protect their rights. This can include a person who is admitted as an inpatient to a 24-hour health facility.

The intrigue of elder and dependent adult abuse and neglect claims primarily stems from the enhanced damages available to plaintiffs and their attorneys including penalties, punitive damages, and attorneys' fees. As an added incentive, there typically is no cap on non-economic damages, even in those states that have such caps in actions against health care providers, leaving an unlimited amount of non-economic damages to add to the verdict or settlement. Plaintiffs' lawyers are motivated by the collection of attorneys' fees and can readily rack up an average of $800,000 to $1 million in fees prior to trial, with little evidence required to establish fee rate. Beside the economic advantage of collecting inflated fees and funding of the suit in this regard, opposing counsel are also, naturally, eager to establish necessary elements to warrant penalties and punitive damages.

A key cause of action—and one that is very popular due to the attached enhanced remedies—is based upon The Centers for Medicare's Patient's Bill of Rights. There are 57 "rights" to which a resident of a skilled nursing facility is entitled to, and if a single right is violated, then plaintiffs may seek punitive damages and attorneys' fees along with statutory penalties. They include the right to be treated with respect, participate in activities, express complaints, make private phone calls, and access to nutritious meals and health care.

With 57 rights to choose from, a plaintiff will be able to support such cause of action in nearly every case. In one Superior Court case, the plaintiff brought an elder abuse action that included a cause of action for violating a patient's rights stemming from the placement of the paper towel dispenser near the toilet in his private bathroom. The plaintiff alleged that this violated his right to a safe environment and sought enhanced damages.

The California Supreme Court is reviewing Jarman v. HCR ManorCare Inc., an appellate court's decision that contradicts earlier precedent and, if upheld, will afford residents a new avenue for seeking punitive damages against skilled nursing facilities. In Jarman, plaintiff's decedent brought suit alleging that her father sustained injuries while convalescing from a broken leg. California Health and Safety Code 1430(b) provides recourse for violating a resident's rights, while limiting remedies to a penalty of up to $500, attorneys' fees and costs, and injunctive relief. The statute has previously been interpreted as providing up to $500 "per action," with no punitive damages allowed.

In Jarman, the 4th District Court of Appeal upheld recovery for $500 "per violation" and found that punitive damages were warranted, despite the trial court's determination of insufficient evidence of malice, oppression, or fraud. In Jarman, the jury found there to be 382 violations of the resident's rights at issue during a three-month stay. The appellate court held that that the number of violations constituted conscious disregard for patient safety.

Notwithstanding the potential penalties, the attorneys' fees can be the gravamen of these suits from the perspective of the plaintiffs' counsel. Their tactic is to bulldoze the defense with numerous motions and hundreds of discovery requests and deposition notices. Hence, the potential exposure even without punitive damages can be exorbitant.

Arizona's "elder abuse" laws include an even greater avenue of damages. In 2013, an Arizona Court of Appeal ruled that elder abuse litigation was not only limited to skilled nursing facilities and assisted living, but also included acute care hospitals. Further, the state's elder abuse laws allow the prevailing party to claim recovery of all out-of-pocket costs, including expert witnesses and cost of investigation. The potential exposure creates a barrier to defending these actions and most will forcibly end in settlement.

Additionally, with the advent of the "granny" cam, video evidence of either blatant abuse or neglect and lack of attention is being caught on tape. More and more states are enacting legislation to allow either hidden or known cameras in patient rooms. These videos are being used more frequently in litigation and whether they are disclosed at the outset of litigation to encourage early resolution or used as impeachment, the case is most arguably, indefensible with such graphic surveillance.

It follows that granny cams are garnishing much debate between the nursing home industry and patient advocates. The nursing home industry opposes such surveillance as at creates privacy and HIPAA concerns, deflates employee morale, and results in increased overhead costs. Advocates in favor of the cameras argue that such cameras are a means of discouraging abuse and neglect and in essence, will improve quality of care.

Certain states, such as Texas, Washington, and Illinois, require granny cams to be installed by the facility if requested by the resident's family. It is a resident's choice, not a choice of the facility, and the resident is responsible for the cost and signage of the surveillance. Other states, such as Pennsylvania, allow a resident to install a hidden camera without the facility's knowledge. New Jersey adopted a recent program known as the "Safe Care Cam," which enables family members who suspect abuse or neglect of their resident family member to have access to micro-surveillance cameras that can be readily installed to detect abuse. The camera and its memory card are loaned to the resident for a period of 30 days and extended upon request.

A picture is worth a thousand words and, in elder abuse litigation, it can translate to thousands, if not millions, of dollars. With the ever-changing laws and the increasing damages potential for plaintiffs and their attorneys, we can expect the number of elder abuse claims to continue to escalate.

About The Authors
Constance Endelicato

Constance Endelicato is partner at Wood Smith Henning & Berman LLP.

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