"Tort Reform” Laws Further Harm Long-Term Care Residents

A Wisconsin tort reform law passed two years ago made state inspection reports of nursing homes and other health care facilities inadmissible as evidence in civil and criminal cases. Proponents of the law say it lets providers discuss problems more openly, but critics argue it puts the elderly and vulnerable at risk. This woman, whose family asked that she not be identified, was a resident at a Sauk City nursing home. / Lukas Keapproth/WCIJ

This is a story that is all too common for long-term care facilities and those individuals who have entrusted their care to such facilities.  As described in the article, Joshua Wahl has spina bifida, is brain-injured and is paralyzed.  He was living at a group residential home in Wisconsin, where he was found to have a half-dollar size bedsore sore.  It developed into a huge crater—to the point that his skin, fat and muscle had rotten away.  And the wound was contaminated with feces.  Due to the severity of the injury, Joshua may be permanently bed-ridden now.  

As part of a formal investigation, the Wisconsin health department determined that Joshua had the bedsore for four (4) months before being hospitalized.  But because of new laws signed by Governor Scott Walker, Joshua Wahl and his attorneys are completely barred from using any part of the State’s investigation in a civil or criminal prosecution against the facility.  The laws were passed as part of “tort reform”—admittedly designed to protect the businesses, at the expense of severely injured long-term care residents like Joshua.

The Long-Term Care Industry has supported these and related tort reform laws all across the country, including Illinois.  In an attempt to justify these laws, proponents contend the laws are required to eliminate frivolous lawsuits against responsible and conscientious businesses.  But there is absolutely no truth to this contention.  These tort reform law are nothing more than a governmental shield and “cover” for the negligence and improper care provided by these facilities. 

Consider Joshua’s circumstances.  Because of the facilities improper care—and worst, the intentional concealment of that improper care—Joshua suffered significant harm and disability.  Can  anyone honestly argue that Joshua’s claim is frivolous?  Or can it be argued that the facility here was acting responsible in concealing his injuries?  This is not a frivolous claim.  In Joshua’s case, as in most cases, these tort reform measures further harm the innocent, while affirmatively protecting the perpetrators.

Indeed, the contention that this particular law will prevent frivolous lawsuits is likewise ludicrous in light of the very nature of such state health investigations.  If a claim is frivolous, then there will be no state health investigation finding that a facility provided neglectful, improper, or sanctionable care.  Accordingly, it is difficult to even imagine how there could be an isolated, damaging investigative report in relation to a frivolous claim.  Simply put, that just does not happen.

Moreover, such investigations routinely provide crucial pieces of evidence for victims of such facilities who cannot, or are unable, to testify to the circumstances of their injuries.  To withhold such evidence from innocent vicitims is plainly unjust.

Bottom line:  Be wary of the tort reform argument.  Such laws are specifically designed to limit your right to fully and fairly prosecute your case.  Nothing more, nothing less.

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