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A limit on elders' rights 

Petition framed as way to cap attorneys' fees is bid by nursing homes to limit their liability.

click to enlarge SIGN HERE, PLEASE: A canvasser for the amendment to limit medical malpractice damages works the sidewalk in downtown Little Rock.
  • SIGN HERE, PLEASE: A canvasser for the amendment to limit medical malpractice damages works the sidewalk in downtown Little Rock.

You've probably been approached these past few weeks by canvassers bearing clipboards and petitions asking for your signature on a number of ballot initiatives. Most are fairly self-explanatory: There's the one about term limits, the one about casinos and a range of options on marijuana. Then there's the petition asking Arkansans to endorse a measure to cap attorneys' fees, ostensibly to protect defendants from predatory lawyers. What's that about?

The ballot initiative would do two things: place a $250,000 cap on the "non-economic" damages a jury may award in a medical malpractice or negligence lawsuit and limit attorneys' fees to one-third of the net recovery in such a suit. Non-economic damages are awarded for harms that are difficult to quantify, such as pain and suffering, whereas "economic damages" include medical bills or lost future income resulting from an injury. Non-economic damages are especially essential in cases involving nursing homes, since residents typically have no potential to earn future income.

"It will be deadly," said Martha Deaver, the president of Arkansas Advocates for Nursing Home Residents. "Justice will be thrown in the trash for nursing home residents and their families if this passes. ... It will be open season on these residents if there is no legal recourse for them and if the nursing home industry knows it is not going to be held accountable."

As of May 31, the committee formed to gather signatures for the ballot measure had raised $313,110, according to filings with the state Ethics Commission — more than twice the amount raised that month by any other committee promoting a ballot initiative — and $250,000 of that sum came from the Arkansas Health Care Association. AHCA is the trade group for the state's nursing homes and other long-term care facilities.

Another $50,000 was provided by RHC Operations, a Conway-based nursing home chain, and $12,000 came from six Crestpark nursing homes in East Arkansas. The trade group for the state's doctors, the Arkansas Medical Society, has also endorsed the proposed amendment, but nursing homes have thus far provided almost all of the financial support: Of the hundreds of thousands of dollars raised in May, doctors and pharmacists chipped in a mere $1,100.

The ballot committee, which calls itself Health Care Access for Arkansans, spent just under $250,000 in May alone — coincidentally, the same amount at which the ballot initiative seeks to cap non-economic damages. About $237,000 of that sum was paid to a Colorado-based company to provide paid canvassers, the Ethics Commission filing indicates. Like the other proposed constitutional amendments circulating this election cycle, the measure requires the signatures of at least 84,859 registered voters in the state to qualify for the November ballot.

The Arkansas Health Care Association did not respond to requests for comment for this story. But when this reporter was approached by a canvasser in the Little Rock River Market on a recent afternoon, the canvasser said the purpose of the petition was to stop attorneys from taking advantage of clients by charging exorbitant fees. Since the cap on non-economic damages went unmentioned, the canvasser was asked if the proposed measure would have any other effect on the law.

"No, that's it," he replied.

Typically, attorneys' fees in nursing home medical malpractice cases in Arkansas run around 40 percent, Deaver said. That's not an unreasonable percentage, she argued, considering "the experts that have to be hired, the investigations that have to be done by outsiders. It can be astronomical, the cost of putting on a lawsuit."

But there's little question the far more important piece of the proposed amendment is the one unmentioned by the River Market canvasser: the cap on non-economic damages. That limit could make it nearly impossible for family members of a neglected or abused nursing home resident to find a lawyer to take their case, according to Bob Edwards, a personal injury attorney and former president of the Arkansas Trial Lawyers Association.

"When you consider the huge cost of these cases ... lawyers will have no incentive to pursue them," Edwards said. "You'll see more personal injury lawyers going back to fender benders."

Which is exactly the point, according to Deaver. Although nursing homes are frequently cited by state authorities for violations, "the only recourse is a minimal fine, at most."

"The one thing the nursing homes want to take away is the right to sue them, because that is the only way that they are held accountable in any way by residents and their families. ... The nursing home industry violates the law and gets away with it on a daily basis. It's not the nursing home industry that needs protection; it's the residents that need protection."

Deaver said nursing home owners have developed a variety of ways to shield themselves from litigation, including arbitration clauses that families are asked to sign before admitting a loved one into a home, therefore waiving the right to a lawsuit. If non-economic damages are capped at $250,000, she warned, residents will be even more defenseless.

"Limitations are being placed on what has historically been considered one of our country's basic civil rights — the right to have disputes heard by a jury of one's peers," Deaver said. "Juries make decisions of life or death in murder cases. If that is a basic right, why can't a jury be considered competent enough to hear the facts when our most frail and vulnerable citizens are abused and neglected?"

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