Nursing Home Tort Reform Heads To Governor's Desk

Apr 23, 2014

A years-long effort to revamp the rules for nursing home lawsuits is now before the Governor to sign, veto or let become law without his signature.  The proposal marks a compromise among varying groups that don’t normally agree on litigation issues.

On one side are the nursing homes—which have claimed frivolous lawsuits have cost their industry millions. On the other: the lawyers who sue them, and senior advocacy groups like the AARP, which have claimed tort reform bills hurt consumers.  Both sides are supporting a bill that outlines a truce of sorts on how nursing homes can be sued.

“It will bring more capital into Florida to enhance the quality of care nursing home residents receive, and it will ensure passive investors have the incentive to make those investments in Florida," said Rep. Matt Gaetz (R-Fort Walton Beach) as he gave a very broad overview of the bill on the House floor.

The proposal still allows nursing home operators and those whose decisions caused harm to patients to be sued, but it would disallow claims against those with only loose financial ties to the facility—such mortgage holders. The Florida Healthcare Association, which represents more than 500 nursing homes, long-term care and assisted living facilities, listed the bill as one of its priorities. Executive Director Emmit Reed says the group is satisfied with the outcome, and doesn’t plan to take things any further.

“You won’t see us advocating for another bill here in the state of Florida for a long time to come. For years.”

The bill does not stop lawsuits, but as lobbyist David Ramba noted  early on, it is a jab in the eye of at least one large firm which specializes in suing nursing homes—the law firm Wilkes and McHugh:

“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. 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," Ramba said as he outlined the bill during a roundtable with reports right before the start of the session.

Not everyone has supported the legislation. Longtime eldercare advocate and former state long-term care ombudsman Brian Lee has criticized the bill throughout the process. Lee says the proposal favors large corporations over smaller mom-and-pop shops, and places more responsibility on the day-to-day workers, and exempts the people who make the big decisions for those workers.

“They can only staff at the levels they’ve been given money to hire people at. The caregivers can only care for so many residents in a building," Lee says. "But you know what’s interesting about this bill? It’s holding those people on the front lines doubling accountable, when they really have no say so about the decision making for what goes on in that building.”

On the opposite side of Lee is the Florida AARP which reversed its long-held opposition to the bill this year.

"The bill last year in both chambers...would not have provided a pathway for a nursing home resident to sue a parent corporation or an investor," says Florida AARP spokesman Jack McRay.

The group decided to support the bill this year because it continues to allow nursing homes to be sued—specifically those that had direct involvement or made decisions that contributed to the death or injury of residents.

“It provides a pathway for nursing home residents to reach apparent corporation or person in that company or investor who makes the decision that makes the decision that results in industry to the resident. And that’s been our major beef. We think if that pathway is not available, it’s discriminatory," McRay says.

McRay admits the bill raises the threshold for bringing lawsuits—it’s not so high that suing a nursing home is impossible. But Lee worries as more people enter retirement, and the industry begins to expand, consumers could come out on the losing side.