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By Lisa R. House, Paul-Michael La Fayette, and Kevin Ringel
Assisted living and long-term care facilities doing business or expanding into FMG’s national footprint should be aware of differences in state law that directly impact litigation involving their industry.
This article will provide an overview of states that have codified a nursing home bill of rights, states that contain a fee-shifting provision in their bill of rights, and states that have damage caps.
States that have a codified nursing home bill of rights include AL, CA, CT, FL, GA, IL, IN, KY, MA, MS, NH, NJ, NY, NV, OH, PA, RI, TN, and TX. Of those states, only two contain fee-shifting provisions in their bill of rights – IL and KY. Fee-shifting statutes and rules vary and can require the losing party to pay for the legal fees and costs of the prevailing party. Kentucky is a bilateral fee-shifting state with some differences depending on which party prevails. If a plaintiff prevails, they may be entitled to reasonable attorney fees, costs of the action, and damages. If a defendant prevails, they may be entitled to recover reasonable attorney fees. Illinois, however, is a unilateral fee shifting state and requires only a losing defendant (the license holder of the residential facility) to pay actual damages, reasonable attorney fees, and costs of the action.
Damage caps (caps on the amount recoverable for non-economic damages) can be complex and can vary even within a particular state depending on circumstances such as the severity of the injury. We address three broad categories regarding state damage caps within FMG’s footprint: 1) caps, 2) no caps, 3) caps found unconstitutional or repealed. The states that have damage caps include AL (punitive damages only), CA, IN, MA, MS, NJ (punitive damages only), NV, OH, PA (punitive damages and actions against Commonwealth only), TN, and TX. The states that do not have damage caps include CT, KY, NY, and RI. The following states have either repealed or held damage caps unconstitutional – FL, GA, IL, and NH. New Jersey currently does not have a limit or maximum on compensatory damages; however, Bill S3343 (introduced December 2022) would establish caps.
The above summary is a brushstroke on a complex area of litigation. If you have questions regarding the above or would like more information, please contact Lisa R. House at [email protected], Paul-Michael La Fayette at [email protected], or Kevin Ringel at [email protected], or your local FMG attorney.