Tort reform, especially for medical malpractice, has reappeared as a topic of interest in the minds of lawmakers. Some believe that tort reform is needed to curb runaway insurance costs and dwindling resources in nursing homes. Besides the number of states that have enacted tort reform, there has occasionally been talk of enacting a cap on damages at the national level as well.
What is Tort Reform?
In civil (as opposed to criminal) litigation, a tort is a violation of an individual’s rights, or a wrong perpetrated against them, for which the injured person can pursue damages, or financial compensation. In more and more states with medical malpractice cases, which often include nursing home cases, dollar amount ceilings are being legislated for what are called noneconomic damages and punitive damages. This is often referred to as tort reform.
Noneconomic damages compensate for what is commonly called “pain and suffering.” Punitive damages are intended to punish the wrongdoer and sometimes require proving intent to harm.
In the case of nursing home residents, tort reform would limit the amount of damages that some of our most vulnerable citizens could collect for having outrageous harm done to them. Many of these patients, who are disadvantaged and disabled, are on Medicaid and have no recourse but our legal system to redress the wrongs they have suffered.
How Could Tort Reform Hurt Residents of Nursing Homes?
We have some specific reasons why tort reform could harm those in nursing homes:
- Limiting noneconomic damages does further injury to the harmed person. How? Damages for “pain and suffering” might be awarded for such things as the loss of a limb from a severe pressure ulcer (bedsore), or for permanent loss of mobility because of a fall that could have been prevented. These are very real injuries that deserve compensation when harm is inflicted.
- Tort reform could make nursing homes less accountable for their actions if they knew their potential damages were limited. Injurious behaviors are not likely to change if damages are limited. Instead, low damage awards might even be perceived as simply a cost of doing business by a corporation.
- Those without financial means to pursue their cases rely on attorneys who will take a case on contingency. But if damages are limited, it could mean fewer attorneys available to help those who need it because of the high costs of bringing a case.
What Are the Laws in South Carolina?
In our state’s collection of statutes known as the South Carolina Noneconomic Damage Awards Act of 2005, which was a tort reform bill, a nursing home is specifically defined as “a licensed facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours.” Such a facility is either freestanding or has some connection to a hospital, and it provides skilled nursing care for those who do not need hospital care. Excluded from this definition is any facility that does not provide skilled care, such as assisted living facilities or community residential care facilities.
Skilled nursing care services, by definition, must:
- Be ordered by a medical doctor
- Require technical or professional skills such as provided by registered nurses, licensed practical nurses, physical and occupational therapists, audiologists, and speech pathologists
- Be furnished by such persons, or under the supervision of such persons.
In a South Carolina medical malpractice claim, economic damages are not limited or capped. If the case is won, there is no limit on reimbursing the medical expenses incurred from fixing any harm caused by medical malpractice. Often in nursing home claims, however, economic damages are small.
In contrast to economic damages, noneconomic or “pain and suffering” damages are usually limited to $350,000. As mentioned above, for nursing home patients, these limits can often feel insufficient, as noneconomic damages are common in nursing home cases. Tort reform, however, has restricted these awards.
When it comes to punitive damages, SC generally caps them at the greater of $500,000 or at three times the compensatory (noneconomic) damages. However, if there was deliberate intent to harm, or the person perpetrating the harm was under the influence, or if the person’s action resulted in a felony plea or conviction, the cap generally does not apply.
Sometimes patients experience genuine, severe harm while staying in a skilled care facility such as a nursing home. While damage amounts that are awarded may seem high to the average person, many times the amounts barely compensate the shattered person suffering from such injuries. It is important to recognize the enormity of harm for which the settlements are supposed to compensate, and that, however well-intentioned, tort reform can inflict more harm on the victim.
Malpractice cases involving nursing homes in South Carolina can be exceedingly complex. Should you be considering bringing a case, be sure you obtain the legal assistance that will be best for your circumstances.
When life goes wrong, we fight for what’s right.
When someone you love has been hurt, it can feel like nothing will ever be right or fair again. When this happens, the South Carolina nursing home injury lawyers at the Louthian Law Firm can review your legal options and work with you to determine the most appropriate next step.
Many South Carolina assisted living facilities are part of a larger chain, complete with its own legal department. The nursing home’s lawyers may try to dispute claims, but we have represented victims in such cases and we understand how to deal with negligent facilities and the nursing home attorneys who represent them. While a lawsuit cannot restore someone’s health or well-being, a South Carolina nursing home claim can help recover the large sums spent on a negligent nursing home, as well as medical bills created by the wrongdoers. You may also be able to hold those accountable for the pain and suffering they caused.
For a free consultation, call our Columbia nursing home injury attorneys today at 1-803-454-1200, or use our online contact form.