State Sen. Jim Tracy

However, Tracy and proponents of the bill say that a large number of nursing home lawsuits and their verdicts have driven the liability cost per bed here in the Volunteer State to second highest in the nation.

Tennessee Citizen Action (TNCA) claims that Tennessee nursing homes "are seeking unprecedented legal protection from residents who are abused or neglected."

TNCA stated that legislation introduced by Tracy and State Rep. Randy Rinks of Savannah would "severely restrict" the rights of patients and their families "no matter how bad the injury they suffer and no matter how bad the conduct of the home," according to a press release from the group.

However, Tracy said in a statement Tuesday that the fundamental issue is availability of service.

"Currently, nursing homes in Tennessee are being forced to pay high insurance premiums and expensive attorney's fees just to combat litigation," Tracy said. "The last thing we want is for nursing homes in Tennessee to close up because of fear of being sued."

Tracy said that while there are problems in some nursing homes, it doesn't extend to all of them.

"Most nursing homes in Tennessee do a great job of caring for their patients," Tracy said, adding that he also supports Gov. Phil Bredesen's efforts to create more home and community based care for the elderly.

"Unfortunately, there are always going to be people who need 24-hour care and nursing homes in Tennessee fill that need," Tracy said.

Tracy said states such as Florida have taken steps to stop rising litigation costs, but Florida waited too late to enact reform and over 100 of its local nursing homes were sold or closed.

"Most of these lawsuits are being driven by those same out-of-state law firms which are now targeting Tennessee," Tracy stated. "This bill opens the dialogue on controlling the outrageous costs of litigation."

The watchdog group asserts that the legislation sponsored by Tracy would ensure that residents would "have little to no recourse" against nursing homes "no matter how bad the conduct" and that "nursing homes can demand that residents sign arbitration agreements in order to live there, making nursing home residents the least protected class in the state."

TNCA states that the type of neglect and abuse which has been recently documented in Tennessee nursing homes ranges "from maggots in wounds to untreated broken bones to rape."

But those supporting the legislation claim that the bill would bring liability costs more in line with comparable cases -- like those for medical malpractice and workers' compensation -- in order to protect the stability of community nursing homes.

"Attorneys' fees in cases involving doctors and hospitals have limits, while such fees involving nursing home litigation do not," said a press release from organizations like National Healthcare Corp. (NHC) and Tennessee Health Management Inc. which support the bill.

According to Karla C. Hewitt, president of TNCA, the legislation "is a slap in the face to some of Tennessee's most vulnerable citizens -- the residents of nursing homes and their families."

"How dare the nursing homes propose such a bill just four years after 16 people perished in a fire that was caused by its negligence, and in a year when nursing home violations are at an all-time high?" she said. Hewitt is referring to a 2003 fire at the NHC Healthcare Center in Nashville.

The watchdog group says that NHC owns a nursing home in Milan which, according to a June 20, 2007, inspection report from the Tennessee Department of Health, put residents "at risk of injury or death from a fire."

According to Steve Flatt, senior vice president of development for NHC, the average annual cost of liability insurance, legal services and other liability-related issues is now $500,000 per Tennessee nursing home, "enough to hire and pay for 10 new nurses."

"The problem is that our laws right now allow the filing of limitless lawsuits claiming tens of millions of dollars in damages," Flatt said. "The result is that the big-money personal injury lawyers from Texas and Florida have been arriving regularly to pelt our courts with lawsuits."

The bill would also allow nursing homes to require an arbitration agreement -- meaning that the patient must agree to have disputes decided by an arbitrator instead of in court -- for newly-admitted patients. Patients already living in nursing homes could not be required to sign such an agreement.

The legislation does not place limits on economic damages that can be claimed in nursing home liability cases, but it does place a limit on non-economic damages. That limit would be in line with laws currently on the books for workers' compensation cases. It also allows punitive damages of double the amount of the non-economic losses, the press release states.

The watchdog group states that while the nursing home industry complains of legal fees, only four medical negligence verdicts were awarded against Tennessee facilities from 2005-2007.

However, during that time period, TNCA stated that nursing home admission suspensions tripled. "In 2007, 22 nursing homes had their admissions suspended for putting their residents in 'immediate jeopardy.'"

Also, according to records at the Tennessee Department of Health, the 152 immediate jeopardy violations in those homes include reports of patients suffering, risk of injury or death by fire, maggots in their wounds, broken bones unattended for days, drastic weight loss due to improper nutrition / oversight, impacted bowels caused by inattention / oversight, extreme pain with no relief, and a fear of staff.

TNCA also added that a worker at a home in Madison was arrested in May 2007 for raping a 70-year-old resident and the state has already suspended two more nursing homes in 2008.

"When you consider the atrocities that occurred in 2007 alone, this proposed legislation is outlandish," said Donna DeStefano, TNCA board member. "There is nothing subtle about what the industry is proposing. This is a blunt-force instrument to the law that protects residents against horrendous care. Our elderly are defenseless and we must protect their rights."

The watchdog group says that Tennessee allocates 99 percent of funding from the Centers for Medicare & Medicaid Services -- more than $1 billion a year -- to nursing homes and only 1 percent to home and community-based care.

"This makes Tennessee dead last in the nation in providing alternatives to nursing homes. Gov. Phil Bredesen pledged in his State of the State address last week to fundamentally restructure this system so there are more alternatives to nursing homes," TNCA says.

"These nursing homes are raking in record profits," said DeStefano. "They say lawsuits divert their attention when the fact of the matter is only four occurred across the state in 2007. Lawsuits do not cause bad care. Bad care causes lawsuits."

However, Flatt said there was almost a billion dollars spent on nursing home care last year, "and about 93 percent of that was borne by taxpayers as services were delivered through TennCare and Medicare.

"This means that all taxpayers have a stake in seeing these soaring liability claims brought under control," he said.

Tracy said, "Again, the last thing we want to do is force Tennessee nursing homes to close or leave the state. If that happens, ultimately, Tennesseans lose because their access to care will be eliminated."