In late June 2017, the U.S. House of Representatives passed H.R. 1215, the Protecting Access to Care Act of 2017 (or PACA), a federal tort-reform bill that would override contrary state laws. President Trump has expressed a willingness to sign it if he has the chance.
If PACA is enacted, it won’t be the first time Trump has been in favor of changing the law for the worse for nursing home residents. Trump also supports reversing major parts of a rule signed in 2016 by President Barack Obama to ban arbitration agreements as part of a nursing home’s admission process, which would make it easier for nursing homes to get out of lawsuits. If a nursing home resident is abused, that resident would most likely face binding arbitration rather than being able to go to court to seek damages.
For the purposes of this post, we’ll discuss what’s going on with PACA. Most news coverage of the proposed law focuses on PACA’s effect on medical malpractice cases, but we’ll dive into how it would affect Ohio nursing home abuse lawsuits.
If you or a loved one has a medical malpractice or nursing home abuse claim, don’t hesitate to contact the experienced attorneys of Plevin & Gallucci.
1. PACA would shorten the statute of limitations for nursing home lawsuits.
A statute of limitations is a time limit for filing a lawsuit. In Ohio, nursing home lawsuits can be subject to one of three statutes of limitations, depending on the type of conduct involved and the legal claim asserted:
- Medical claims are subject to the medical malpractice statute of limitations, which is generally one year after the injury occurs, but can be as long as four years (or even more in some special circumstances). A medical claim is one that “arises out of the medical diagnosis, care, or treatment of any person.”
- Wrongful death claims must be brought within two years of death. A wrongful death claim arises when a person is killed by the “wrongful act, neglect, or default” of another.
- Common law negligence claims are also subject to a two-year statute of limitations. These are personal injury claims that don’t fit in either of the above categories.
PACA defines its own limitations period and it doesn’t appear to distinguish between the three types of claims just described. Courts might interpret PACA as distinguishing between medical claims and common law negligence claims, as Ohio courts interpret our state’s statute of limitations, but that’s impossible to know yet. For now, we’ll assume PACA’s limitations period applies to all three types of claims.
Under PACA, the deadline for filing a lawsuit would generally be the earliest of:
- Three years after the date of the occurrence of the breach or tort;
- Three years after the date the medical or health care treatment that is the subject of the claim is completed; or
- One year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.
PACA does allow states to impose stricter statutes of limitations than PACA itself, but does not permit them to use a more lenient statute of limitations (except for minors). For wrongful death and common law negligence, PACA would generally cut the amount of time plaintiffs have to file a lawsuit by half. For medical claims, it would have no effect unless an exception applies under Ohio law to extend the filing deadline.
In short, to the extent PACA has an effect on the statute of limitations for nursing home lawsuits, it would be to make them shorter.
2. PACA would decrease injured patients’ recoveries.
Ohio law limits the amount of “noneconomic damages” a plaintiff can recover in a nursing home lawsuit on the basis of medical or common law negligence claims. Noneconomic damages are amounts awarded by a court for “nonpecuniary harm,” including pain and suffering, loss of consortium, disfigurement, mental anguish, and “any other intangible loss.”
For each of the types of claims described above, Ohio law imposes the following limits on noneconomic damages:
- Medical claims: O.R.C. § 2323.43 generally limits noneconomic damages to the greater of $250,000 or three times the amount of economic damages (to a limit of $350,000) for each plaintiff. This limit is increased to $500,000 per plaintiff if the noneconomic damages relate to certain permanent physical injuries.
- Wrongful death claims: Noneconomic damages are not limited in wrongful death claims.
- Common law negligence claims: O.R.C. § 2315.18 includes a general limit on noneconomic damages that is the same as that for medical claims. However, if the noneconomic damages relate to certain permanent physical injuries, there is no limit on those damages.
PACA would limit noneconomic damages to $250,000, but does permit states to define a particular limit that is either higher or lower than that amount. Here’s how PACA would affect limits on noneconomic damages in each type of claim in a nursing home lawsuit:
- Medical claims: Totally unaffected. The limits in O.R.C. § 2323.43 would continue to apply.
- Wrongful death claims: Because Ohio law doesn’t specify a particular limit on noneconomic damages for wrongful death claims, PACA would limit recovery for such damages to $250,000.
- Common law negligence claims: The general limit in O.R.C. § 2315.18 would be unaffected. However, because no specific limit is applied to noneconomic damages related to certain permanent physical injuries, PACA would limit damages in such cases to $250,000.
Once more, we see that PACA, to the extent it has any effect on Ohio nursing home lawsuits, serves only to limit injured plaintiffs’ rights.
3. PACA’s other effects on Ohio nursing home lawsuits
In addition to the above changes and some procedural modifications, PACA would also:
- Eliminate joint and several liability. “Joint and several liability” is a system in which each of multiple defendants found partially liable for a plaintiff’s injury can be required to pay the full amount of the judgment if the others can’t pay their share of it. Ohio permits joint and several liability in some circumstances. PACA would eliminate it altogether.
- Require periodic payments of future damages. Future damages are damages that compensate for the ongoing effects of an injury after judgment. For future damages greater than $50,000 (for medical claims) or $200,000 (otherwise), Ohio law permits the court to order that they be paid in periodic installments instead of as a lump sum. PACA would require such an order if a party requests it.
- Limit attorney’s contingent fees. Contingent fees are fees that an attorney charges only if his or her client prevails on a claim. This kind of arrangement enables individuals who couldn’t otherwise afford an attorney to hire one. The lawyer usually advances all the expenses in the case, which often exceed $100,000. Limiting contingent fees would make it more difficult for attorneys to justify risking such high amounts, making it harder for Ohioans seriously injured by a nursing home to find an attorney.
Bottom Line: PACA Would Harm Injured Ohioans
As the above discussion makes clear, PACA would limit injured Ohioans’ rights in nursing home lawsuits. PACA would reduce the amount of time in which a lawsuit could be filed, limit the damages to which successful plaintiffs are entitled, and impose other changes that would make it harder for those injured by a nursing home to recover.
PACA is not yet law. However, it has passed the U.S. House of Representatives and is pending in the Senate. You can contact Senators Sherrod Brown and Rob Portman and the president to let them know what you think of the effects PACA would have on nursing home abuse lawsuits in Ohio.