Community Voices: Hope for those hurt by nursing-home neglect

Editor’s Note: The following article was printed in the May 20, 2022, issue of The Bakersfield Californian. You can read the newspaper version or read it online at The Bakersfield Californian’s website.

Update: Gov. Gavin Newsom signed a bill on May 23, 2022, to raise the amount of money that patients can receive in medical malpractice cases, increasing pain and suffering payments for the first time since lawmakers placed a cap on monetary damages nearly five decades ago.

===

Community Voices: Hope for those hurt by nursing-home neglect

By Matt Clark and Tanya Alsheikh

At Chain Cohn Clark, we have spent decades representing the elderly and their families in cases against nursing homes. For many families, the decision to put an elderly loved one into a skilled nursing facility is one of the most difficult decisions they will make as a family. To later find that their loved one has been subjected to abuse, or that their care needs have been woefully neglected, is devastating.

Unfortunately, for the past 47 years, the damages that can be awarded to an elderly person subjected to neglectful care, or to their family if that neglectful care resulted in the death of their loved one, have been capped in California by the Medical Injury Compensation Reform Act (MICRA).

Since California enacted the MICRA law, individuals who suffered injuries and/or death due to nursing home neglect had the potential of their damages in a lawsuit being capped at $250,000. This meant that where the allegations did not rise to the level of elder or dependent adult abuse and neglect, we have had to be the bear the burden of informing our clients that the maximum recovery for their case was limited to $250,000 — even in instances in which they have lost a loved one. Imagine having to look a widow in the eye and tell her that the law only allows her to recover a maximum of $250,000 after the death of her spouse, which was a result of the nursing home’s failure to provide care. It is a tough pill to swallow.

However, the Legislature recently unanimously agreed to raise the cap on damages in those cases where the conduct does not rise to level of elder or dependent adult abuse and neglect. Once Gov. Gavin Newsom signs this into law (He is expected to do by June 30), the limit will increase from $250,000 to $350,000 for injured parties and $500,000 for relatives of those who have died, effective Jan. 1. These amounts will increase annually for the next 10 years.

While the Legislature has enacted other laws to protect this particularly vulnerable population of individuals who are at the mercy of the nursing homes to care for their daily needs, it is a struggle to reach those protections. Some common examples of cases of abuse and neglect are bed sores that can become infected, falls and fall-related injuries/death, malnutrition and dehydration, withholding of medications and much more. These types of injuries and neglect are almost always the result of insufficient staffing in the nursing home. Too little staff means those staff on the floor are overworked and overburdened. Under such circumstances, they cannot provide quality, appropriate care. In handling these cases, we have seen time and again that nursing homes put profits over patient care, as less staff equals greater profits. After a resident falls victim to this intentional decision to place profits over patients, the nursing homes then attempt to hide behind the financial protections and limits instituted by MICRA.

Although there are no caps on damages in cases of actual elder abuse, proving elder abuse is often a difficult task. The far more common case is one based on negligence, for the nursing home’s failure to provide appropriate care, such as the regular monitoring of patient to ensure they do not develop a bed sore. By raising the cap on damages that has been in place for nearly 50 years, the Legislature enables families to better hold nursing homes accountable.

While no amount of money will bring a loved one back to life and it is impossible to place a value on human life or a person’s pain and suffering, this change in the law is at least a step in the right direction towards justice. It not only recognizes the need to hold these providers accountable in a way that impacts them financially so that the nursing homeowners will feel the burden of their decisions and actions, but also provides our clients with the solace that the Legislature has finally recognized the need for change and accountability.

Matt Clark and Tanya Alsheikh are accident and injury lawyers with the law firm Chain | Cohn | Clark, and also focus on elder and dependent adult abuse and neglect cases.

———

If you or someone you know is injured in an accident at the fault of someone else, or injured on the job no matter whose fault it is, contact the Bakersfield attorneys at Chain | Cohn | Clark by calling (661) 323-4000, or fill out a free consultation form.