Industry Group Predicts Nursing Home Tort Reform Could Get The Green Light This Year

Feb 25, 2014

A years-long effort to revamp the rules for nursing home lawsuits could get a green light this year. Organizations that have historically opposed nursing home tort reform are signaling they won’t oppose the proposals and supporters say they’re confident this is the year for change.

The Florida Health Care Association represents more than 500 nursing homes, long-term care and assisted living facilities in the state.  For years, it’s fought to change the rules concerning how nursing homes are sued. Executive Director Emmett Reed says this year, those changes may finally come through.

“You’ve got the Florida Healthcare Association, the Florida Justice Association and the AARP all in agreement and supportive of this bill."

This year’s legislation still allows home operators and those whose decisions caused harm to patients to be sued, but disallows suits against those tangential to the homes, such as mortgage holders or passive investors. But Lobbyist David Ramba says many such lawsuits are frivolous and are brought by the law firm Wilkes and McHugh, a firm that has built its business on nursing home litigation.

“There was a trend emerging from one law firm in the state...to sue our capital investors in our homes—people like Wells Fargo and GE Capital," Ramba says. "Similar to if someone slips and falls at your house, they’d sue your bank: even though the bank had no operation or inherit knowledge of danger at your home".

But the changes are too much for longtime eldercare advocate-turned-lobbyist Brian Lee, who says, "this insulates the corporate owners from civil accountability unless you can get a whistleblower to rat out the owner for egregious care that’s happening within a company."

Lee is a former state elder care ombudsman who now heads the advocacy group Families for Better Care, which has received financial support from the Wilkes law firm. Lee’s opposition to the bill stems from what he sees as limitations on who can be sued—the same specifics Ramba and the Florida Healthcare Association praise:

“It specifies that you can go after the caregivers. Instead of the people who are the decision makers—the one’s above the management companies, the owners and the people who own the license for the nursing homes," Lee says. "But you can go after the caregivers who are put in situations because of staff cuts enacted by or directed by the owners.”

Not everyone agrees with Lee's assessment of the proposals.

“Our main interest is to protect the consumer and the resident. And anyone who suggests otherwise is absolutely wrong," says Florida AARP spokesman Jack McRay, whose organization has historically opposed nursing home tort reform bills.

Support for the legislation is the highest it’s been in years, and the elder care industry is predicting the bills will pass with more than 90 percent support in the legislature. The Florida AARP reversed its long-held opposition to the proposals this year after they were amended to let residents sue a nursing home corporation or other entity that makes a decision that results in injury. 

“We’ve been assured by the trial lawyers who represent the trial lawyers in these cases,  that the agreed upon compromise...between the trail lawyers and nursing homes, provides that pathway and that’s why we’re supporting that bill," says McRay.

The AARP says while the bill does raise the threshold for bringing lawsuits, the bar hasn’t been raised high enough  so that legal action is impossible.

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