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Policies are being considered to extend medical malpractice tort reforms to the nursing home sector

With encouragement from the nursing home industry, policymakers are considering extending conventional medical malpractice tort reforms to the nursing home sector. However, Harvard University researchers David M. Studdert, L.L.B., Sc.D., M.P.H., and David G. Stevenson, Ph.D., caution in a recent article that nursing home litigation has distinctive features that make medical malpractice approaches unfeasible. Their work was supported in part by the Agency for Healthcare Research and Quality (K02 HS11285).

In a typical medical malpractice claim, the plaintiff is the patient who alleges harm due to negligence on the part of the primary defendant, who is usually the physician. In contrast, personal injury claims against nursing homes are rarely initiated by the injured residents themselves (85 percent are initiated by their children or spouses), and the primary defendant is the nursing home itself. The allegations tend to center on abuse and neglect (resulting in problems ranging from bedsores, dehydration, and falls to death), rather than procedural mistakes and errors.

The formulation of equitable and fair approaches hinges, to some extent, on recognition of the unique aspects of nursing home litigation, note the authors. For instance, caps on noneconomic damages (rather than economic damages, such as loss of income) are the favored policy strategy for "containing" the malpractice crisis. Yet, noneconomic damages comprise 80 percent of nursing home residents' awards nationwide, roughly double that of medical malpractice awards. Also, older nursing home residents do not incur significant economic losses such as loss of income due to medical harm.

Although punitive damages play a negligible role in medical malpractice suits (less than 1 percent of awards), they are quite common (one in five payments) in nursing home litigation, in which abuse and neglect play a prominent role. Finally, the potential of tort reforms to curb nursing home litigation may be undercut if the reforms trigger a "compensating" increase in suits based on State residents' rights statutes.

See "Nursing home litigation and tort reform: A case for exceptionalism," by Drs. Studdert and Stevenson, in the Gerontologist 44(5), pp. 588-595, 2004.

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