As the managing attorney for the law firm of Wilkes & McHugh in Tennessee, I read with great interest the July 23rd edition of the Nashville Business Journal. Two reports and an editorial addressed the difficulty some nursing homes have obtaining insurance. They offered that we should give nursing home operators more legal protections from injured residents and their families.

While I was troubled by the inaccuracies and negative light in which my firm was portrayed, I was surprised at the failure of the writers to understand the fundamentals of the insurance market and for their complete lack of balance in all of the stories. (For the record, my firm never left the state. We have been operating consistently since 1999.)

Roy Moore's article "Breaking Point" starts off with a recap of the well-known fire at the NHC nursing home in Nashville last year. He cites the lawsuits filed against this facility as an example of why insurance rates have gone up for nursing homes.

This citation almost makes it sound like the injured families and their lawyers were to blame for the needless deaths. Mr. Moore failed to acknowledge that, at the time of the fire, there was no state requirement that nursing homes have a sprinkler system and that the home in question did not have an automatic fire suppression system. Had sprinklers been installed, undoubtedly many lives would have been saved.

But that is just one home and one anecdote. What about the rest of the homes in the state and the "statewide problem" of insurance affordability?

According to the federal government, nearly 99 percent of Tennessee nursing homes failed to meet minimum federal health and safety standards and one in every five were found to have "actually harmed" or to have put residents at "risk of immediate jeopardy."

In short, the nursing home industry in Tennessee is doing a horrible job of meeting even the most basic of minimum standards put in place to protect and safeguard residents from harm. Imagine the outcry if 99 percent of schools failed to meet minimum educational criteria or if one in three child day care centers were caught harming children. Would the outcry be about their rising insurance rates?

Yet these facts and government reports are not even mentioned in any of the stories. Are rising premiums the fault of injured families and their lawyers, or are they the fault of an industry that is chronically harming the very residents it is supposed to be protecting?

Insurers are scared away by bad behavior and bad risks. Not having basic safety measures like sprinkler systems in place would certainly qualify as risky behavior. Being systematically short of staff and ranking third worst in the country for quality of care also appears to fit the bill.

The best defense Mr. Moore and the industry can cite is a study that was commissioned and paid for by the nursing home industry itself. A study by the way, that admits to being based on data provided by nursing home operators, incomplete and "not verified for accuracy." Perhaps one should look at more reliable sources of data.

The inference from a piece in the Memphis Business Journal that "tort reform" will somehow bring down insurance rates is misguided.

Insurers raise rates for bad behavior. When drivers drink and drive, their insurance rates go up. Smokers pay higher premiums for life insurance. Is it any wonder that nursing homes, after years of chronic and increasing incidents of abuse and neglect, are having a hard time paying rising premiums?

The answer to the industry's dilemma of increasing insurance rates begins and ends with the quality of care. Fix care and lawsuits will decline and then rates will go down. Now that's "reform."

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