Georgia’s Gov. Nathan Deal recently signed into law House Bill 342, which protects Georgia nursing homes from predatory advertising and also eliminates negligence per se claims based on alleged violations of certain federal and state regulations. In an unprecedented (and unusual) collaboration, the law was supported by both the Georgia Health Care Association and the Georgia Trial Lawyers Association.
The first component of the law restricts the use of federal conditions of payment for nursing homes (often referred to as the “OBRA” regulations) as well as state licensing regulations from being used as the basis for a claim of negligence per se. Negligence per se is a legal doctrine deeming a defendant automatically “negligent” if it acts inconsistently with a statute or regulation. It is strict liability doctrine and an end-run around the traditional requirement that a plaintiff must prove a healthcare provider breached a professional standard of care.
Nursing homes are frequent victims of litigation abuse, and the current practice of using hundreds of vague federal and state regulations as a courtroom measuring stick places nursing homes at a distinct disadvantage. The new limitations under House Bill 342 are important because negligence per se has a much lower burden of proof and has been used (and abused) aggressively in litigation against nursing homes.
On the advertising front, the new law requires anyone using a nursing home survey finding in an advertisement to include more comprehensive information about the survey results and process. More specifically, the law requires that the advertisement include:
- the date the survey was conducted;
- a statement that nursing homes are surveyed at least once every 15 months;
- a disclosure of whether the deficiency has been corrected;
- the number of findings in the survey and the severity level for each finding;
- the average number of findings for other facilities in the state;
- a disclosure of whether the deficiency allegedly caused harm to any residents; and
- a statement that the advertisement is neither authorized nor endorsed by any government agency.
Nursing homes have become the targets of a number of negative advertising campaigns, especially by predatory plaintiff attorneys seeking to alarm family members and thereby drum-up business. In fact, the advertisements have become so aggressive that several courts have recently restrained advertisements that distort survey results and mislead consumers. Georgia’s new law helps to protect nursing homes from falling victim to misleading advertising campaigns, whether by predatory law firms or others. The law has teeth, in that anyone violating the advertising provisions is liable for attorney fees and expenses of litigation incurred in any litigation to stop the unlawful ads.
While there is no magic bullet to ending predatory advertising and abusive litigation, Georgia’s new law represents a significant step forward in helping to stem the rising tide of litigation in the state.
Glenn Hendrix is managing partner at Arnall Golden Gregory LLP in Atlanta and Washington. Jason Bring is a partner in the Healthcare and Litigation practices at Arnall Golden Gregory LLP