It has been approximately two (2) decades since the McDonald’s Hot Coffee case became a part of our consciousness. This case provided the impetus for many people to cry for tort reform. It is the “poster child” of what is wrong with American Jurisprudence.
The documentary movie, Hot Coffee “is Justice being served” discusses the case in detail as well as efforts by big business and the insurance industry to turn the public against our civil justice system. The myths of the case are often repeated and rarely do the facts of the case get reported.
The case involved Stella Liebeck, an elderly (79) woman who in the early 1990’s was a passenger in a car being driven by her grandson. She ordered coffee at the drive thru and they pulled over so she could tend to her coffee. While they were pulled over she spilled the coffee on her legs resulting in severe third degree burns on her thighs, legs and genital area. She was in the hospital for eight days and required skin grafts.
What was not reported was that she sued McDonald’s and asked them to simply pay her medical bills of approximately $11,000.00. McDonalds generously offered $800.00 and the case proceeded through the discovery phase during which Mrs. Liebeck learned that hundreds of people had complained to McDonalds that its coffee was being served too hot and had paid over $500,000.00 for other burn cases. The plaintiff also discovered that McDonalds was serving its coffee approximately ten (10) degrees hotter than other brands because it would improve the taste of the less expensive beans that McDonalds purchased. Clearly McDonalds chose to put profits over people’s safety.
The jury awarded Mrs. Liebeck $200,000.00 in compensatory damages which was reduced by the judge to $160,000.00. She was also awarded $2,700,000.00 in punitive damages which was also reduced by the judge to $480,000.00. The Juries’ rationale for amount of punitive damages award was to penalize McDonalds for two (2) days of coffee sales which amount to approximately $1,350,000.00 per day. Both sides appealed the judge’s decision and the case settled for an undisclosed amount that was less than $600,000.00. I have been told that some portion of a punitive damage award in New Mexico goes to the state, but I have been unable to verify this. The bottom-line is that we now know that she did not collect anything close to what the jury awarded.
As a result of this litigation McDonalds now serves it coffee ten (10) degrees cooler. I have included a picture below of Mrs. Liebeck’s injuries.
The Saratogian has reported that “a landmark vote by the Saratoga County Board of Supervisors Tuesday approved the creation of a Local Development Corporation to manage the sale of the county owned nursing home, Maplewood Manor”. Declining Medicare reimbursements and rising operational costs were cited as the reason for the potential sale. The goal is to sell the nursing home to a private company.
Unfortunately, the privatization of nursing homes appears to be a growing trend. I recently blogged about a report by Bloomberg News about this trend, and more importantly how the quality of care declines with privatization. Unfortunately, when health care decisions are driven by profit we sometimes see the bottom-line as being more important than the quality of care.
While I understand that some counties cannot afford to continue to operate these facilities, I would like to see more effort by the counties to cut costs and try to make it work. When you close a nursing home, there is a loss of jobs and sometimes a disruption of services to the residents. It seems that closing the facility should be the last option. See the Saratogian’s article at the following link: http://www.saratogian.com/articles/2012/11/21/news/doc50ac2533a0751789595345.txt?viewmode=3
A Buffalo New York Jury has awarded $11.1 million, including $3.5 million in punitive damages for the abuse and neglect of disabled resident of a group home. Be bringer v United Cerebral Palsy of Niagara County, 2009-6559 involves a 59 year old disabled man who suffered a seizure because staff failed to give him his medications, sustained another seizure when an aide dropped him, fell on the floor when he was left unrestrained and was left sitting in his own feces. There was also evidence presented that he was verbally abused by staff members. The breakdown of the award was $600,000 in past damages, $7 million in future damages, and $3.5 million in punitive damages.
I have litigated several cases against long term facilities where their employees and/or residents have sexually abused my clients. So how does this happen? First, not all facilities perform the background checks they are required to do. Under New York State Law Section 845b of the Executive Code and 2899 of the New York Public Health Law requires that background checks be performed for prospective employees for any residential health care facilities licensed under New York State Public Health Law, any certified home health care agencies, any licensed care service agencies, or long term home health care programs. Temporary employment is permitted while this background check is taking place as long as the employee works with consumers under direct and “appropriate” supervision. Only certain convictions are disqualifying offenses, such as: any felony sex offense, any class A felony, or conviction of a violent felony or any other class B, C , D, or E felony within ten (10) years. In other words someone can have a felony conviction that is more than ten (10) years old and still be eligible to work with the most vulnerable in our society.
I did find that as a result of this case, legislation has been proposed that requires elder care facilities to check sexual offender registries. New York State Assemblyman James Tedisco and New York State Senator Kathy Marchione proposed legislation that would require elder care facilities including nursing homes to check the sex offender registry when hiring someone. As a former prosecutor, I can attest to the fact that sometimes very old convictions such as the one Ragone conviction from 1983, will not appear on a basic criminal background check; hence, the need to check the registry. Let’s hope this legislation passes.
The Bloomberg study found that the profit motive is having an adverse affect on the quality of care. The study which was based on U.S. government data based on freedom of information requests indicates that there is a rise in waste, fraud and abuse charges brought by federal authorities as a result of the rise in for profit nursing homes. These findings are consistent with other studies by government agencies, and academic studies. According to Bloomberg news federal prosecutors brought twice the number of criminal cases against nursing homes compared to five years ago. The article cites a report from federal health care inspectors that indicates that the nursing home industry overbills medcare 1.5 billion dollars a year for treatments that patients don’t need or never received.
In March 2010 the New York Attorney General Charged fourteen employees with neglect, abuse, and falsifiying business records at the Northwoods Rehabiliation Center in Troy New York. According to the attorney general a hidden camera was used over a six week period which revealed that the staff “routinely failed to turn and position an immobile patient, failed to administer medications and failed to treat bedsores” Quoting from The Record dated March 31 2010. Nine of the employees were immediately suspended and ten pleaded guilty to charges and four were acquitted at trial. http://www.troyrecord.com/articles/2012/03/03/news/doc4f513edb22737514386191.txt