Daily Independent (Ashland, KY)

February 13, 2013

Bill to prevent ‘frivolous’ lawsuits against nursing homes moves to House

By RONNIE ELLIS
CNHI News Service

FRANKFORT — Sometimes, the more things change, the more they stay the same.

The Kentucky state Senate Wednesday passed a controversial bill to require claims of abuse or neglect to go first to a medical review panel before filing suit – but only after a contentious debate and a straight party-line vote.

The bill will prevent “frivolous” lawsuits, according to its sponsor, Sen. Julie Denton, R-Louisville, and is supported by the nursing home industry.

Earlier this week, the Senate Health and Welfare Committee, chaired by Denton, passed the bill to the Senate floor without hearing from those who had requested to testify against it.

That prompted Senate leadership to send the bill back to committee for another hearing, and prompted Sen. Ray Jones, D-Pikeville, a trial attorney, to criticize in a floor speech the way the bill was handled by Denton.

On Wednesday Denton called the bill again to allow those opposing the bill to testify. But Denton then immediately left the committee hearing.

Denton said she had to leave because another bill she is sponsoring was before another committee. She said it had nothing to do with the schedule of those testifying against the bill.

Wanda Delaplain, an attorney who formerly worked in the office of the Kentucky Attorney General, told of her father’s death in a Frankfort nursing home, a death she said could easily have been prevented had he received prompt attention. But his calls for help, she said, were ignored for several hours.

Trying to determine what happened to her father, Delaplain went to court, but “it took four years of discovery” to get the correct records and learn what happened. Eventually, after a four-week trial, she won her case.

“It was clear there was every attempt to cover-up what happened,” Delaplain said. “His death was completely preventable.”

Lois Pemble also spoke against the bill, which she termed “an industry bill to protect the profits” of the nursing home industry.

The committee adjourned without taking action but later reconvened Wednesday afternoon during a Senate recess.

Sen. Kathy Stein, D-Lexington, asked to offer amendments to the bill, but Denton ruled them out of order and the committee approved the bill and sent it to the Senate floor. When the Senate reconvened moments later, the bill was placed on the orders of the day.

Denton said the bill is a response to “an increasingly litigious atmosphere” which costs nursing homes money better spent on patient or client care.

It would use a review panel made up of three physicians – one selected by each party and the third selected by the first two attorneys – to mediate claims. An attorney, selected by the physicians, would chair the panel but could not vote on the decision.

The winning party would pay for the expense of the review, Denton said, and the losing party could still seek redress in court and either side could present the panel’s findings as evidence.

Jones again took the floor, this time armed with enlarged, poster-sized gruesome photographs of patients in Kentucky nursing homes who had suffered abuse or neglect.

“This is about nothing more than an industry trying to shield its bad conduct,” Jones said, citing statistics compiled by the federal Medicaid Centers that Kentucky nursing homes are among the most cited for deficiencies.

He asked the Senate’s permission to suspend the rules and allow several floor amendments, a request voted down by the Republican-controlled majority.

Jones then asked if the sponsor, Denton, would “yield to a series of questions,” the usual protocol used by one lawmaker to question another about a bill.

Before Senate President Robert Stivers, R-Manchester, could ask Denton if she would yield, Denton called out her answer: “No.”

Jones proceeded to indict the industry and to defend his own profession of trial attorneys, displaying the gruesome photographs of patients who suffered severe bed sores or had been left unattended and suffered traumatic, debilitating injuries.

He complained his amendments could not be debated – amendments to establish background and drug checks on nursing home staff and to set minimum standards for nursing home employees.

“We’ve not had any debate,” Jones said, “because nobody wants to vote against (the amendments), so they’re just declared out of order.”

Denton later said she declined to answer Jones’ questions because he just wanted to “beat a dead horse” and nothing could be gained from the exchange.

Stivers, for the second time in two days, left the podium to make a floor speech from his desk, something his predecessor David Williams often did when Democrats openly criticized Republican legislation.

Stivers, also an attorney, said “access to justice” is still available under the provisions of the bill because it allows those who lose at the medical review panel to pursue the case in court.

In the end the bill passed 23 to 12 with 22 Republicans and Bob Leeper, an independent who usually votes with Republicans, supporting the bill and all 12 Democrats present voting against it.

Senate Bill 9 now goes to the House where Jones said it “will be deader than a hammer.”

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.