By now, the entire country knows how Governor Scott Walker and his Republican legislature have paid back their wealthy right wing donors by stripping government employees of virtually all collective bargaining rights. And most of the country knows about the potential payback to the Koch brothers and other energy moguls by permitting no-bid sales of (or operating contracts for) Wisconsin state-owned power plants.
What seems to have flown under the radar is another bit of payback, along with some score-settling with Walker's opponents, that was signed into law back on January 27, 2011.
After only 10 hours of hearings, the Republican Wisconsin legislature passed the "Kill Granny and Get Away With It" act, otherwise known as the Wisconsin Omnibus Tort Reform Act. Walker signed it into law on January 27.
The new law makes it far more difficult to sue nursing home operators, manufacturers of defective products, and other corporate malefactors.
All of this is summarized in the April 1, 2011, issue of The Washington Spectator (pay wall) (blockquotes below are from this article unless otherwise noted).
Limiting Liability
"What other states limit the liability of nursing homes who injure and kill residents and destroy lives? There is no other state that has created a law that hides these incident reports."
—Attorney Jeffrey Pitman,
January 11, 2011, Legislative Hearing
IT REQUIRED ONLY THREE MONTHS for a newly elected Republican governor and Legislature to strip public-sector workers in Wisconsin of their collective bargaining rights. Stripping individuals of their right to take corporate malefactors to court played out with such speed that most Wisconsinites still aren't aware of what happened.
"It was greased. It was wired. It was going to happen," Madison trial lawyer John Walsh said in a phone interview. "This was set up so the public wouldn't get the message. So anybody who wanted to respond would have to scramble."
Sound familiar?
On January 3, Governor Scott Walker took the oath of office, called a special legislative session, and issued an executive order calling for lawsuit reform. On January 11, a joint committee held a 10-hour hearing to take testimony. On January 18, the Wisconsin Omnibus Tort Reform Act was on Walker's desk. He signed it into law on January 27.
What did this new law do? It erected a huge roadblock in the way of anyone attempting to sue a nursing home for abuse of patients.
"Nursing homes," which might be more accurately characterized as warehouses for the elderly, are not pleasant places -- even the good ones. Fortunately, most people die before they have to suffer for very long:
- the median length of stay in a nursing home before death was 5 months
- the average length of stay was longer at 14 months due to a small number of study participants who had very long lengths of stay
- 65% died within 1 year of nursing home admission
- 53% died within 6 months of nursing home admission
-- Length of Stay in Nursing Homes at the End of Life
Not everyone is so "lucky" to die quickly. My Mom was in a nursing home for the last ten years of her life. Fortunately, her facility was a reasonably good one, and not part of one of the giant national for-profit chain operations. But however long a patient stays, she may be subject to abuse -- most likely by neglect -- by poorly-paid attendants. Don't get me wrong: many nursing home employees are good people, and my Mom certainly had a few great helpers -- but taking care of sick and dying old people is just not a pleasant job. Couple that with low pay and you can imagine the result.
For those patients not fortunate enough to have caring family members who frequently visit, the first indication of a problem may in fact come from a conscientious employee:
[S]tate investigations of abuse in nursing homes often begin with reports filed by aides who take care of residents:
An aide who takes care of grandma returns from vacation and finds that grandma hasn't been rolled over for two days, or hasn't been changed for days, or has bruises on her.
The aide files a report, which by law is submitted to a state agency that follows up with an investigation.
So far, so good. But the new Wisconsin law now makes these reports inadmissible as evidence in an action against the nursing home:
SECTION 9. 146.38 (2m) of the statutes is created to
read:
146.38 (2m) An incident or occurrence report may
not be used in any civil or criminal action against a health
care provider. 2011 Wisconsin Act 2 (pdf)
If the patient's lawyer manages to get past this evidentiary roadblock and actually wins a civil suit against the nursing home, the new law strikes again. It caps non-economic damages for nursing homes at $750,000. [Note 1] Although this has a patina of "fairness" because it is the same cap as the one that applies to Wisconsin doctors and hospitals, there is a big difference which -- surprise -- benefits the big nursing home operators. Wisconsin hospitals and doctors are subject to mandatory liability coverage and mandatory participation in the Wisconsin Injured Patients and Families Compensation Fund (which covers the excess over a doctor's own malpractice insurance limit). A nursing home (unless its "operations are combined as a single entity with a hospital whether or not the nursing home operations are physically separate from the hospital operations") is not required to participate in the fund.
Note 1: The Wisconsin legislature repeatedly has imposed caps on non-economic damages in medical malpractice actions and these laws have been declared unconstitutional. It is not clear (to me, at least) what the current state of the law is regarding the $750,000 cap, but at least one Wisconsin Law Review author thinks that it, too, is not constitutional. NON-ECONOMIC-DAMAGE AWARD CAPS IN WISCONSIN: WHY FERDON WAS (ALMOST) RIGHT AND THE LAW IS WRONG (long pdf of a law review article).
According to one Wisconsin lawyer quoted in the Washington Spectator article,
This is payback time. The governor is settling the score with trial lawyers who didn't support him. And he's taking care of his donors, the for-profit nursing home operators, especially the big ones like Kindred.[note 2]
Note 2: Kindred's Nursing Center Division had $2.2 billion in revenues in 2010, making them the third largest nursing center operator in the United States.
In addition, the new law also
- shifts liability for defective products from the distributor to the manufacturer (the Walmart Rule). Although this rule may sound reasonable, with the rise in products imported from China and other Far East countries, it may leave an injured consumer with no recourse.
- caps punitive damages at $200,000 or twice actual damages awarded
- creates a 15-year statute of limitations for issues arising from exposure to asbestos and other carcinogens -- symptoms of which may not appear until 20 years after exposure.
- defined new standards for expert witnesses. [Although the Wisconsin State Bar association opposed this provision, it actually makes Wisconsin follow the practice that has existed in Federal courts for quite a while (the so-called Daubert Standard). The main objection by the Wisconsin bar seems to have focused on the need for a separate hearing to determine whether an expert witness's testimony should be admitted.]
Busting unions is nothing more than an effort to destroy supporters of the Democratic Party while rewarding the Republican's wealthy donors. This new Wisconsin law does the same thing to trial lawyers, who like unions, generally support Democrats.
Support the recall effort in Wisonsin (Act Blue) and do what you can everywhere else that the Republicans are working to take the country back to the 19th Century.