Friday, September 16, 2016

Patient defenders attack nursing home amendment as misleading UPDATE

Posted By on Fri, Sep 16, 2016 at 9:42 AM

The Committee to Protect Arkansas Families has filed its legal arguments with the Arkansas Supreme Court for disqualifying the proposed constitutional amendment to make it hard to sue nursing homes and other medical providers for damages.

The brief argues that the ballot title, or summary of the proposal, is misleading. Arguments: It has incorrect statements about how the amendment would restrict the right of a jury trial. The portion about a limitation on attorney fees has "partisan coloration." There's a fundamental shift in power in the amendment from court to legislature. It is misleading about the reach of the fee limit. Generally, the brief argues:
The Amendment seeks to upset this balance and delegation of power by wresting from the judiciary the ability to regulate the practice of law in our courts and the control it has over damage awards. But it does so with a lack of candor, using a ballot title that is replete with inaccuracies and material misrepresentations, and cloaked by partisan coloring. The inadequacies of the ballot title literally span from its beginning to its end, commencing with blatant partisan coloring and ending with an outright misrepresentation. Its inadequacies are so great that voters are not capable of casting an informed vote for or against the Amendment based on the ballot title alone, which is what the law requires.
The amendment would cap "non-economic" damages at as little as $250,000. Practically speaking, if the legislature adopted the minimum, as it is expected to do, damage to children and elderly, with no economic damages to prove from loss of jobs, couldn't cost more than $250,000 now matter how severe. Contingency fees for lawyers couldn't be more than 33 percent of any award. There's an open question of whether the amendment would end punitive damages entirely.

Nursing homes to date have led the campaign for the amendment, but doctors and hospitals are expected to add their support as the election approaches. The plaintiff in this suit is led by a long-time nursing home patient advocate, Martha Deaver, and results from a broad effort of the organized bar, not just lawyers for plaintiffs in damage cases.

The argument over title is being conducted separate from a proceeding on a challenge to sufficiency of petition signatures.

Speaking of nursing homes: The group pushing the amendment to cut off lawsuits against nursing homes reported an additional $62,000 in contributions in the last month. That included $40,000 from Southern Administrative Services which operates a group of nursing homes in Arkansas and $22,000 from individual nursing homes. About $1 million has been raised so far, mostly from nursing homes.

To date: No Supreme Court justice has indicated any willingness to get off the case, despite heavy nursing home contributions to five of the seven justices, including one, Justice Rhonda Wood, who raised a majority of her money from nursing homes.

Separately, a motion has been filed in a class action nursing home case calling for Rhonda Wood's recusal because the case is against Michael Morton, the nursing home owner who heavily financed Wood and who is also tied up in the scandal involving Wood's old Conway friend and colleague Mike Maggio. That motion was noted as formally submitted yesterday by the Supreme Court.

UPDATE: High irony in a filing in this case by backers of the amendment. Read it. Sounds like they have some fear they're going to lose on some of the contests of petition signatures under a law made devilishly difficult thanks to a push by Arkansas casino owners for a law that would discourage future casino petition campaigns. If their signatures are inadequate on these grounds, they argue, the law setting those new procedures should be held unconstitutional.

Check it out.

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