Discretion to follow the law: the collision of Ohio's Nursing Home Bill of Rights with Ohio's Political Subdivision Tort Liability Act.

AuthorTraska, Peter
  1. INTRODUCTION II. CRAMER V. AUGLAIZE ACRES: HOW THE OHIO SUPREME COURT APPLIED THE POLITICAL SUBDIVISION TORT LIABILITY ACT TO THE NURSING HOME BILL OF RIGHTS A. The Doctrine of Sovereign Immunity in Ohio B. Ohio Political Subdivision Tort Liability Act C. Nursing Home Bill of Rights D. County Nursing Homes 1. What is a County Home? 2. County Homes Acting as Market Participants 3. The Nursing Home Bill of Rights Expressly Imposes Liability E. Cramer's Application of the Ohio Political Subdivision Tort Liability Act to Claims Arising Under Ohio's Nursing Home Bill of Rights 1. Running a Nursing Home is a Proprietary Function a. Operating a Nursing Home is Not Imposed Upon the State as an Obligation of Sovereignty b. Running a Nursing Home is Not Done For the Common Good of All Citizens c. Operation of a Nursing Home is Customarily Engaged in by Private Persons 2. The Bill of Rights Expressly Imposes Liability on County Homes, Within the Meaning of R.C. 2744.05(B)(5) 3. A County Owned Nursing Home Employee's Decision on How to Provide Medical Care in a Nursing Home as a Discretionary Function 4. The Nursing Home Bill of Rights Expressly Imposes Liability On Persons, But Not Employees 5. Employees of a Political Subdivision Are Liable Under 2744.03(A)(6)(b) for Reckless Actions 6. Adams v. Gables: the Cramer Court Retreats From the Broad Application of the Discretionary Defense III. CAN THE GOVERNMENT OPERATE A NURSING HOME WITHOUT CREATING A CONFLICT OF POLICY? A. The Nursing Home Bill of Rights Allows Punitive Damages, the Ohio Political Subdivision Tort Liability Act Does Not B. Punitive Damages Make the County Tax Payers Ultimately Responsible IV. POSSIBLE SOLUTIONS TO PROTECT RESIDENTS OF COUNTY OWNED NURSING HOMES A. Amend the Nursing Home Bill of Rights to Clearly Impose Liability on Employees B. Ohio Can Waive its Immunity from Liability of All County Owned Nursing Homes C. County Homes Should Disclose the Limited Applicability of the Nursing Home Bill of Rights V. CONCLUSION Frank Cramer was a handicapped resident at Auglaize Acres Nursing Home. Auglaize Acres is a county operated nursing home. Mr. Cramer was completely dependent upon Auglaize Acres for his care. In January 2002, Mr. Cramer fell while being assisted to bed by a Hoyer lift operated by two nurses employed by the home. Despite the fall policy not to move Mr. Cramer, the two employees moved him to his bed. Mr. Cramer's condition was not assessed until five hours after he fell despite obvious swelling and bruising and his complaints of pain. During surgery to repair his leg, Mr. Cramer died. Mr. Cramer's estate sued Auglaize Acres for the nurses' alleged negligent acts. Under the Nursing Home Bill of Rights every resident of a nursing home may recover damages upon a showing that the home or any person has violated the patient's rights. Mr. Cramer's codified right to adequate medical care was violated.

    The Ohio Supreme Court held that the Nursing Home Bill of Rights allowed a cause of action against the home itself, but not against the home's employees. Further, the Court found that the Ohio Political Subdivision Act might re-immunize the home for those acts of its employees that were discretionary. Residents of a county home thus do not have the same protections as residents of other nursing homes when the home happens to be owned by the county--a political subdivision. (l)

  2. INTRODUCTION

    Cramer v. Auglaize Acres curtails the protections of Ohio's Nursing Home Bill of Rights for nursing home (2) residents residing in county owned nursing homes. (3) Generally, all nursing home residents are protected by codified rights. (4) However, the Ohio Supreme Court has interpreted the Ohio Political Subdivision Tort Liability Act to redefine these rights for approximately ten percent of Ohio's nursing home residents. Currently, those residents living in government owned nursing homes are substantially less protected from the tortious acts or omissions of the nursing home's employees.

    Since the enactment of Medicare and Medicaid in 1965, there has been dramatic growth in the need for nursing homes. The American population aged sixty five and older is projected to double within the next thirty years. (5) In view of this projected population growth, it is imperative that immediate action be taken to protect residents of county owned nursing homes.

    The first baby boomer will turn sixty five in 2011. According to U.S. Census Bureau projections, the population of Americans aged sixty five and older will grow from 35 million to 72 million by 2030. (6) This escalation will result in the dramatic need for and growth of nursing homes. Nationally there are approximately 1,750,000 nursing home residents residing in 16,000 nursing homes. (7) In Ohio, there are approximately 1,400,000 citizens aged sixty five years or older. (8) Eighty thousand of these citizens currently reside in Ohio nursing homes. Of the 989 nursing homes within Ohio, two-thirds are privately owned, with the remainder owned by the government and nonprofit organizations. (9) This dramatic growth in population and need of quality care requires uniformity in the law so all nursing home residents are equally protected.

    Nursing home residents "are almost entirely dependent upon nursing homes to ensure the[ir] safety" (10) Despite the growing need for nursing homes, studies show that many nursing homes are understaffed and unable to provide even basic care to their residents. (11) One in every twenty elderly residents in a nursing home suffers from neglect or abuse. (12) Annually there are more than 500,000 incidents. (13) The most common negligence violation is the failure to prevent accidents to residents, "such as falls that cause broken or fractured bones or skin lacerations." (14) For example, one resident with dementia and poor vision fell four times within a ten month period. (15) The fourth fall was reported as causing no injury. (16) However, the resident had fractured her femur which contributed to her death nine days later. (17)

    However, neglect is only one concern. In a recent study over a two year period, it was found that one out of every three nursing homes was cited for an abuse violation. (18) These nursing homes were cited for approximately 9,000 violations. Of these violations, over 2,500 caused harm or serious injury, even placing the resident in "immediate jeopardy of death." (19) These citations included instances of employees ignoring signs of or being a participant in "appalling physical, sexual, and verbal abuse." (20)

    In an attempt to protect our aging population, the Ohio General Assembly enacted the Nursing Home Bill of Rights. (21) The Act states that "any resident whose rights under this [act] are violated has a cause of action against any person or home committing the violation." (22) However, complete enforcement of the Nursing Home Bill of Rights is prevented by political subdivision immunity. (23)

    The Ohio Political Subdivision Tort Liability Act confers general immunity on political subdivisions. Therefore, government owned homes seek to avoid liability by raising the defenses provided by the Ohio Political Subdivision Tort Liability Act, despite the resident's rights under the Nursing Home Bill of Rights. The result is that residents of government owned nursing homes have inferior remedies for the tortious acts of a county home's employees.

  3. CRAMER V. AUGLAIZE ACRES: HOW THE OHIO SUPREME COURT APPLIED THE POLITICAL SUBDIVISION TORT LIABILTY ACT TO THE NURSING HOME BILL OF RIGHTS

    In Cramer v. Auglaize, (24) the Third District's holding removed all of the protections of Ohio's Nursing Home Bill of Rights from every nursing home resident who lives in a county owned nursing home. The Appellate court held that operating a nursing home was a proprietary function. (25) Therefore, the county was statutorily immune from any liability under the Ohio Political Subdivision Tort Liability Act because (I) the way in which an employee of a nursing home provides medical care is a discretionary function, and (2) the Nursing Home Bill of Rights does not expressly impose liability on the employees of the nursing home. (26)

    On appeal, (27) the Supreme Court held that the Political Subdivision Act contains exceptions to immunity that would make the home liable for the negligent or intentionally tortious acts of its employees, but the way in which an employee of a nursing home provides medical care is a discretionary function. (28) The end result is that regardless of Ohio's Nursing Home Bill of Rights, causes of action brought against a county owned nursing home cannot proceed on a theory of ordinary negligence, so long as some discretionary action on the part of the employees involved is found. (29)

    1. The Doctrine of Sovereign Immunity in Ohio

      Sovereign immunity for political subdivisions was judicially created. Accordingly, the Supreme Court has noted in the past that it can be judicially abolished. (30) Sovereign immunity is based on the English concept that the "King can do no wrong." (31) "Sovereign immunity is a legal anachronism which denies recovery to injured individuals without regard to the municipality's culpability or the individual's need for compensation." (32) The framers of our Constitution guaranteed that America would have no King. It is therefore anomalous that political subdivisions are given the same benefit of immunity:

      It is something of an anomaly that the common-law doctrine of sovereign immunity which is based on the concept that 'the king can do no wrong' was ever adopted by the American courts." (Footnote omitted.) Further, the United States Supreme Court has also indicated that there is no rational justification in American jurisprudence for the English legal maxim "the King can do no wrong." Specifically, in Langford v. United States, the court stated, "We do not understand that either in reference to the government of the United States...

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