THE ROLE OF THE WILLS AND ESTATES LAWYER IN PROTECTING CLIENTS FROM NURSING HOME ABUSE PRESENTED BY: MARK TAYLOR AND ERNIE TOSH POWERS TAYLOR, LLP

WHY TEXAS PROBATE LAWYERS NEED TO KNOW ABOUT NURSING HOME ABUSE

FREQUENCY OF ABUSE A study conducted by the National Center on Elder Abuse estimates that as many as 1 in 10 elders have experienced some form of elder abuse Another study performed by the National Research Council estimates that only 1 in 14 cases of abuse are reported Texas ranks dead last in nursing home care

NURSING HOME ABUSE IS SO FREQUENT IT IS PART OF ACCEPTABLE COMEDY

THE LANDSCAPE OF TEXAS NURSING HOME LAW

THE LANDSCAPE OF NURSING HOME LITIGATION BEFORE CHAPTER 74 6

THE LANDSCAPE OF NURSING HOME LITIGATION AFTER CHAPTER 74 7

THE MEDICAL MALPRACTICE AND TORT REFORM ACT OF 2003 “The most sweeping and comprehensive lawsuit-reform in the nation.” -- Governor Rick Perry Damage caps Pre-Suit Expert Reports Fee-Shifting Provisions

DAMAGE CAPS All non-economic damages limited to $250,000 No inflation adjustment Victims of nursing home abuse rarely have significant economic damages. No lost wages Medical bills are subject to paid-or-incurred rules Medical bills are subject to Medicare liens and hospital liens The average nursing home case in Texas settles for less than $125,000

Due no later than 120 days after the defendant answers the lawsuit Must establish the applicable standards of care, detail each breach of those standards of care, and establish a definitive link between those breaches and the injuries claimed. No discovery can occur until the report is filed. Defendants can – and in the majority of cases, do – challenge the sufficiency of the report Denial of the defendant’s challenge can result in an interlocutory appeal Only one chance to correct deficiencies, provided the initial report was a “good faith effort” EXPERT REPORT REQUIREMENTS

Plaintiffs must establish the merits of their case without access to all information that may be available after discovery The expert report delays the prosecution of the case, often by more than 6 months Because the expert report often must be changed after discovery is complete, the plaintiff pays for multiple expert reports IMPACT OF THE EXPERT REPORT REQUIREMENTS

If the case is dismissed for deficiencies in the expert report, the court must award “the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider” Section (b)(1) FEE-SHIFTING PROVISIONS

Broadest possible definition of “health care claims” Caps on exemplary damages Plaintiff’s cannot rely upon res ipsa loquitur Shortened statute of limitations for minors Statute of repose limits use of the “discovery rule” Special protections for anyone administering “emergency care” Limitations on lack-of-informed-consent cases OTHER PROVISIONS IN CHAPTER 74

THE FOUR THINGS EVERY PROBATE LAWYER SHOULD KNOW ABOUT NURSING HOME LITIGATION PRESENTED BY: MARK TAYLOR AND ERNIE TOSH POWERS TAYLOR, LLP

HOW PROBATE LAWYERS CAN ASSIST THEIR CLIENTS WHO RELY ON NURSING HOMES FOR THEIR CARE A. Planning to avoid potential nursing home abuse B.Planning to protect legal rights if nursing home abuse occurs in the future. C.Identifying and evaluating potential claims for nursing home abuse D.Facilitating the prosecution of nursing home abuse claims

AVOIDING NURSING HOME ABUSE THROUGH THE SELECTION OF APPROPRIATE CARE

PLANNING TO AVOID POTENTIAL NURSING HOME ABUSE Understanding the types of facilities that may be available to your client “Tort claims facilities” – County hospital districts Understanding why nursing home abuse occurs Inadequate staffing Inadequate funding Resources for evaluating a nursing home’s ability to provide adequate care

AVOIDING FORCED ARBITRATION

EVEN CHAPTER 74 RECOGNIZED THAT ARBITRATION CLAUSES WERE BAD FOR CONSUMERS Section provided that an arbitration agreement was “invalid and of no legal effect unless it is also signed by an attorney of your own choosing.” In Fredericksburg Care Co. v. Perez, the Texas Supreme Court held that this provision was pre-empted by the Federal Arbitration Act. As a result, arbitration clauses are the newest weapon in a nursing home’s arsenal to defeat otherwise valid claims.

Arbitration is substantially more expensive Arbitration rules and arbitration panels are stacked in favor of the nursing homes WHY IS ARBITRATION BAD?

Specialty Select Care v. Flores, 2015 WL (Tex. App. – San Antonio, Sept. 2, 2015) Carrigan v. Live Oak Nursing Center, 2015 WL (Tex. App. – Corpus Christi, Nov. 3, 2015) Both cases involve a nursing home resident whose family members signed the admission documents. The admission documents contained an arbitration clause. After the residents died due to negligent acts of the home, their estate argued that as a non-signatory to the arbitration agreement, they could not be bound. The courts enforced the arbitration agreements under a theory of “direct benefits estoppel.” TEXAS COURTS FAVOR ENFORCEMENT OF ARBITRATION CLAUSES

LIMITING THE POWER OF ATTORNEY The Power of Attorney form should include an express provision that excludes the power to agree to the arbitration of health care claims covered by Chapter 74 of the Texas Civil Practice & Remedies Code. The exclusion should not be a blanket provision against all arbitration clauses. Because virtually every nursing home claims that arbitration is not a mandatory provision, the limitation (if noticed) should not restrict the availability of quality care.

IDENTIFYING POTENTIAL NURSING HOME CLAIMS

Bed Sores / Pressure Ulcers: Totally preventable Severe Injury from Falls: Preventable if the patient was a known “fall risk” Dehydration / Malnutrition: No excuse for failing to provide basic nourishment Sepsis from Infections: Certain types of infections (UTI, in particular) should never progress to the point of sepsis HOW TO RECOGNIZE A VIABLE NURSING HOME CLAIM

FACILITATING THE PROSECUTION OF A NURSING HOME CLAIM

Most nursing home cases cannot proceed without probate work Basic probate planning appoints the representative of the estate and simplifies the filing of a lawsuit Before a lawyer accepts the case, medical records must be obtained The standard Power of Attorney form is not legally sufficient to allow the plaintiff’s lawyer to obtain medical records Execute an “Authorization for Release of Patient Information” Standard HIPPA-compliant form HOW PROBATE LAWYERS CAN FACILITATE THE PROCESS OF A NURSING HOME CLAIM

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