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Nursing Home Abuse, Compensation Limits and MICRA

By Andy Hoffman

If you know anything about what goes on in nursing homes these days, like our friends do at NCCNHR: The National Consumer Voice for Quality Long-Term Care, you might find it hard to believe that any politician would want to limit compensation to seniors who are abused or neglected in nursing homes.  House Minority Leader Boehner?s health care bill, for example, would have imposed extreme national liability limits in nursing home cases.

Unfortunately, many states have done this already, like California?s broad MICRA law which imposes one-size-fits all caps on injured patients in that state.  But even MICRA has exceptions, and we?re hoping they apply in this highly unsettling elder abuse story out of Ventura County, CA, involving a 71-year-old woman named Maria Arellano.  

Arellano, who was left unable to speak after suffering a debilitating stroke, was living in the Fillmore Convalescent Center in 2006 when her family began noticing bruises on her body.  After expressing concerns about the bruises to center personnel, the family was essentially rebuffed?so they set up a hidden camera.  The resulting footage revealed that center employee Monica Garcia had been ?slapping Arellano, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair.?

A civil suit was then filed against the center on Arellano?s behalf.  Although Arellano?s attorney, Gregory Johnson, offered to settle the matter for $500,000, the center refused, never even offering to resolve the matter with mediation.  ?There was a lot of arrogance [on the part of the center],? said Johnson.

In the end, a jury awarded Arellano significantly more that her original settlement offer?which brings us back to MICRA?and more specifically, the question of whether it applies to the Arellano case.

Turns out, the California Supreme Court has said that in cases like Maria Arellano, where the abuse was clearly motivated by ?malice,? the answer is no.  (See Covenant Care, Inc. v. Superior Court (2004); Delaney v. Baker (1999).)  We?re especially glad to know this, given that another resident who lived across the hall from Arellano at the center (also a non-verbal stroke victim) may have been subject to the same abuse.  His case is pending.

Unfortunately, for most other California patients, the nightmare of MICRA continues.

Full post as published by ThePopTort on December 14, 2009 (boomark / email).