The dignity of life

Seeing Patsy's health decline reminded me of my maternal grandmother, who spent 30+ years in nursing homes after a stroke paralyzed her in 1985. The common denominator between the two was witnessing the most vulnerable among us pass away with dignity.

A quick Google search provided the following definitions of "dignity," as follows:

“1. The state or quality of being worthy of honor or respect. That is, ‘a man of dignity and unbending principle.’

2. A composed or serious manner or style. That is, ‘he bowed with great dignity.’

3. A sense of pride in oneself; self-respect. That is, ‘it was beneath his dignity to shout.’”

We all deserve the right to go out on our own terms ... with dignity. While witnessing Patsy's declining health, I could not help but think ... what happens when our dignity is taken away from us against our will by those responsible for our care? The only legal recourse we have is to file a lawsuit against the responsible parties, which are most commonly nursing homes where elderly residents are provided with long-term care.

It shouldn't come as a surprise to learn the nursing home industry, whose trade association is called the Arkansas Health Care Association, is a significant contributor in favor of Issue 1 that will be on the November 2018 ballot in Arkansas. Issue 1 is a proposed constitutional amendment to the Arkansas Constitution, which if passed, will have the following effects:

1. A cap of $500,000 for non-economic damages in any lawsuit resulting in injury or death. "Non-economic" damages are defined as "damages that cannot be measured in money, including without limitation any loss or damage, however characterized, for pain and suffering, mental and emotional distress, loss of life or companionship, or the visible result of injury;

2. A cap of $500,000 for punitive damages unless the facts show a wrongdoer intentionally pursued a course of conduct causing injury or damage, and the intentional conduct caused damage to an injury victim;

3. Give the General Assembly the authority to enact laws amending, repealing, or adopting on its own initiative rules of pleading, practice, or procedure, which supersede such rules adopted by the Arkansas Supreme Court. This section explicitly states these rules include the presentation and admission of evidence; and

4. A cap of 33 1/3% for contingency fees of an injury victim's attorney of the net amount recovered, regardless of how the recovery is obtained.

How do you measure the loss of someone's dignity? Wouldn't you have to know how someone's dignity was lost? The facts of the individual case matter. A case in point is what is commonly referred to as "the Mena Nursing Home case," or Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003) ("Sauer"). The court opinion provided the following facts:

• The nursing home resident, Margaretha Sauer, died in the care of Rich Mountain Nursing and Rehabilitation Center from severe malnutrition and dehydration;

• At the time of her death, Ms. Sauer had signs of bedsores on her body, stemming from lying in urine and excrement; she also suffered from contractures from Alzheimer's Disease, which involved contraction of her limbs into her sockets; she also had a urinary infection and had been experiencing foul vaginal discharge;

• Before her death, Ms. Sauer was found at times with dried feces under her fingernails from scratching herself while lying in her own excrement;

• Ms. Sauer's food tray was often times found in her room untouched because there was no staff member available to feed her;

• Ms. Sauer's son complained on one occasion he found his mother in the middle of the afternoon, still in her gown, wet with urine, disturbed, and upset;

• Ms. Sauer was often times found wet without being changed in four hours;

• Ms. Sauer had pressure sores on her back, lower buttock, and arms on days she was found sitting in urine and excrement;

• A former staff member at the nursing remember seeing Ms. Sauer with a pressure sore the size of a softball, which was open;

• Ms. Sauer's sores and blisters became infected;

• Ms. Sauer was frequently double or even triple padded, rather than single-padded for her incontinence problems;

• At times, Ms. Sauer had no water pitcher in her room, and did not receive a bath for a week or longer, due to the facility being understaffed; the owners of the facility knew this from surveys conducted by the Office of Long Term Care, but the understaffing was never fixed;

• Ms. Sauer was not "let loose" from a geriatric chair every two hours as required by law; and

• Ms. Sauer was found to suffer from poor oral hygiene with caked food and debris in her mouth. [1]

Ultimately, a Polk County jury allowed a combined compensatory and punitive damage amount of $78,420,000 for Ms. Sauer's estate. In the appeal, the Arkansas Supreme Court found as follows:

“There was ample testimony and evidence presented to demonstrate that Ms. Sauer suffered considerably and was not properly cared for, that [the nursing home] was short-staffed, and ... tried to cover this up by ‘false-charting’ and by bringing in additional ‘employees’ on state-inspection days. [A former regional vice-president of one of the corporate owners of the facility] testified that these deficiencies were due to a shift in corporate philosophy that placed profits over proper patient care.”

The Court also found the jury's verdict to be excessive, and granted a remittitur in the amount of $52,420,000. [2] A remittitur is "the process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced." Bryan A. Garner, Blacks Law Dictionary 1073 (8th ed. 2005). Thus, the Court reduced the total verdict to $26,000,000. 

The facts of Ms. Sauer's death demonstrate she was robbed of the right to pass away with dignity as a result of under staffing, which was a symptom of the corporate culture of putting profits over patient care. Under Issue 1, Ms. Sauer's dignity would be capped at $500,000. Consequently, the facts of each individual case will not matter because the facility knows it can under staff and get away with it because of the limited amount of damages available to the family of the deceased resident.

In turn, the owners of the facility are likely to see the cap as "the cost of doing business" because Issue 1 eliminates the deceased's families' meaningful recourse to hold the owners accountable, i.e., by filing a lawsuit and allowing a local jury to determine the appropriate amount of damages owed to the family for the wrongful death of their loved one. Under Issue 1, even if a jury allowed more than the cap, the family of the deceased would only be able to recover $500,000. Without Issue 1, Ms. Sauer's case serves an example of the proper remedy the civil justice system provides when a jury verdict is excessive.

The whole purpose of tort law is to make an injury victim whole, and to deter wrongdoers from similar conduct. [3] [4] Issue 1 will significantly weaken both of these purposes. [5] What will happen to the family of the next Ms. Sauer if Issue 1 passes? What about the family after that one? And the next one? And the next one? Will a nursing home ever be held accountable again for purposefully under staffing its facilities?

Issue 1 disregards the dignity of life. It assumes the only value people have is by the amount of money an individual earns, or is capable of earning. All of us are entitled to our own dignity, and there should be consequences when it is taken away because corporations are more interested in profits than caring for those they are supposed to protect.

[1] Sauer, 353 Ark. at 39-51, 111 S.W.3d at 353-58.

[2] The Court stated "[t]he remedy for an excessive-damages award is for the court to grant a remittitur. This remedy dates back to 1841 in our case law. Remittitur can be applied to compensatory damages as well as to punitive damages." Id. at 47, 111 S.W.3d at 356.

[3] A "tort" is a civil wrong.

[4] See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 727, 119 S. Ct. 1624, 1647, 143 L. Ed. 2d 882, 917 (1999) (Scalia, J., concurring); Minneci v. Pollard, 565 U.S. 118, 127, 132 S. Ct. 617, 624, 181 L. Ed. 2d 606, 614 (2012).

[5] See W. Page Keeton, Prosser & Keeton on the Law of Torts § 4 p.25 (5th ed. 1984) ("The 'prophylactic' factor of preventing future harm has been quite important in the in the field of torts. The courts are concerned not only with [making the injury victim whole], but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of future harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.").