Colorado Nursing Homes: Litigation and Public Policy Issues Concerning Abuse and Neglect
| Publication year | 2000 |
| Pages | 93 |
| Citation | Vol. 29 No. 9 Pg. 93 |
2000, September, Pg. 93. Colorado Nursing Homes: Litigation And Public Policy Issues Concerning Abuse and Neglect
Vol. 29, No. 9, Pg. 93
The Colorado Lawyer
September 2000
Vol. 29, No. 9 [Page 93]
September 2000
Vol. 29, No. 9 [Page 93]
Specialty Law Columns
Tort and Insurance Law Reporter
Colorado Nursing Homes: Litigation And Public Policy Issues Concerning Abuse and Neglect
by Heidi Boerstler, Scot W. Nolte
Tort and Insurance Law Reporter
Colorado Nursing Homes: Litigation And Public Policy Issues Concerning Abuse and Neglect
by Heidi Boerstler, Scot W. Nolte
The nursing home industry is projected to grow by 400 percent
in the next thirty years. Lawsuits against nursing homes are
proliferating, particularly against publicly owned nursing
home chains (which make up approximately 70 percent of the
industry). The number of persons needing nursing home care
will continue to increase as America?s population ages. For
example, in 1950, only 8.1 percent of the population (12.4
million) was over 65 years of age. By 1990, that number had
grown to 12.5 percent (31.2 million)
By the year 2030, 20 percent of the population (69 million)
is estimated to be 65 years old or older.1 By the time
Americans reach age 65, at least 44 percent will spend some
time in a nursing home. In 1996, nursing home care costs had
reached $78.5 billion. Medicare and Medicaid are the primary
payors for nursing home care, representing almost 70 percent
of nursing home costs.2
Because of the growth in nursing home care and expense, the
legal system increasingly will be called on to address
problems of substandard care for a segment of the population
that is, by definition, more vulnerable and dependent than
the rest of the population. Plaintiffs? lawyers say the suits
reflect shoddy care, a judgment the industry rejects. Aging
baby boomers who feel guilty about their parents living in
nursing homes and worry that they will be next may be quicker
to sue.3
Trial lawyers contend that not only can nursing home cases be
won, but that they also desperately need to be won. Outraged
by evidence that nursing home administrators and owners have
ignored patients? basic needs, juries are awarding
significant compensatory and punitive damages to force the
industry to change its ways
In the past, few plaintiffs? lawyers have filed nursing home
suits. Elderly residents were past their economically
productive years, their dependents had long been emancipated
and juries were not inclined to deliver large punitive
damages awards. However, today a new "quality of
life" strategy has emerged. This strategy argues that a
resident?s remaining years, regardless of how few, have
compensable value.
This article discusses this potential theory of recovery and
its defenses and application in Colorado. The article also
describes Salas v. GranCare, Inc., a recent Colorado case
that illustrates this more aggressive approach to nursing
home litigation.
Regulation of Nursing Homes
Federal law outlines nursing home regulations for quality of
care. The Omnibus Budget Reconciliation Act of 1987
("OBRA") describes how nursing homes that receive
public funding "must provide services and activities to
attain or maintain the highest practical physical, mental,
and psychosocial well-being of each resident in accordance
with a written plan of care."4 OBRA requires each state
to enforce standards through regular inspections.5
In Colorado, the Department of Health and the Environment
("Health Department") must inspect each nursing
home in the state at least once every fifteen months.6
Federal guidelines require that if state Health Department
inspectors find that a nursing home has violated care
standards, a deficiency is reported that can vary in
severity. Nursing homes are given a thirty-day grace period
to remedy deficiencies. The Health Department also is charged
with levying substantial fines for uncorrected deficiencies.7
The record shows that in Colorado, state regulators rarely
assess fines. For example, in 1997, Health Department nursing
home surveyors cited Colorado homes for 687 deficiencies.
However, only one home was fined. Between July 1995 and
December 1997, only four Colorado nursing homes received
fines.8
Colorado?s record of enforcement is particularly troubling
compared to other states. Between 1991 and...
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