With limited public notice and less debate, the Pennsylvania House is expected to vote on Wednesday on a plan that would limit the rights of victims of nursing home and assisted living facility abuse and neglect. The bill – H.R. 1907 – would restrict what’s known as "exemplary" damages against a person who has injured a resident of a nursing or assisted living facility and the facility in which it occurred. Not only is the legislation unnecessary, it’s unconstitutional; but most importantly, it’s wrong because it would lessen an important protection for the vulnerable. The sole reason for passing it is to bolster a nursing home’s profits at the expense of safety.
H.R. 1907 aims to fix a problem that simply doesn't exist. I regularly represent nursing home residents and their families across Pennsylvania, and I'm aware of only two cases in which punitive damages have been awarded for abuse or neglect. Sponsors of the cap would have us believe that exemplary damages in such cases are a burgeoning problem, when in fact, the cap is a “solution” to a nonexistent problem.
So why, if there are just a few cases, is there a push to change the law? Because the possibility of significant damages is helps to ensure proper safety measures are taken to protect our most vulnerable. In our courts, judges instruct juries that punitive damages are "exemplary" damages, used to set an example to dissuade others from similar reckless conduct. It is undeniable that more protections have a cost. It is equally undeniable that some number of nursing homes and assisted living facilities will be emboldened to ignore safety regulations to increase their bottom-lines. That’s what the “threat” of exemplary damages protects against.
Long ago, Pennsylvania realized that some would try to place profits above public safety – and specifically prohibited it. In the mid 1800s, Pennsylvania's constitutional convention limited the legislature's ability to deprive citizens of the right to seek damages. At the time, the limitation was needed to reign in big railroads whose unsafe work environments were injuring workers. Those corporate giants - much like today's corporate-run elder care facilities - had used their influence to lobby the legislature to limit the rights of their injured workers. The need to protect Pennsylvania's injury victims is just as pressing in the 21st century as it was then.
Our legislators would be wise to consider a similar challenge to Arkansas' constitution. Last month, the Arkansas Supreme Court struck down a nearly identical limitation on punitive damages against nursing homes. Arkansas' constitution contains language nearly identical to that of Pennsylvania's: any law that caps punitive damages is unconstitutional.
I've met with hundreds of families whose loved ones have been injured by extraordinary negligence. Their injuries are often the direct result of understaffing done to reduce costs and increase corporate profits at the expense of resident safety and dignity, the very definition of a reckless disregard for safety. Our legislature shouldn't pursue legislation that encourages such disregard and puts our most vulnerable citizens in danger.