Florida is where people go to live in comfort when they retire. The state therefore has a growing population of elderly citizens. Corporate nursing home chains have identified the state as a place where large profits could be made. Nursing home care became a growth industry. The families of these retirees often did not live locally and could not check up on their relatives.
Because of the dominance of competing corporate chains quality of care has been particularly poor. State regulators were particularly ineffective and often did nothing about complaints. Offenders were seldom penalised. Citizens took the matter into their own hands.
Florida's laws allowed large punitive damages. Citizens who had met a brick wall took the matter to lawyers who were disturbed by what they heard. together they targeted the worst homes and persuaded relatives of neglected patients to sue. The evidence they produced was so disturbing that the courts imposed massive punitive damages. insurers have become alarmed and refuse to provide cover for substandard homes.
Citizens claim that these actions have been effective in improving standards. Nothing else has worked. Corporations and particularly Beverly claim that the costs are so high that they can no longer afford to provide services to the state. They have had to cut services because of the drain on funds and care is suffering.
Instead of improving care and employing more nurses corporations have gone to their political allies pressing for laws to curb the rights of citizens to secure punitive damages. Beverly leads the charge. Citizens and their lawyers are resisting this strongly. Vast sums are being spent by both sides on marketing their views, lobbying and political donations. There is an impasse. Citizens claim that these actions are the only way to control the corporations and if the changes are introduced they will be powerless.
In some ways the action mirrors the nation
wide pressure for patient's bills of rights which will allow patients
to sue HMO's, a right denied under the ERISA laws. Corporate HMO's
have lobbied state and federal politicians frantically to curb the
legislation. With president Bush's election it is likely that they
will succeed. Bush owes them a debt for support during the election
and he has already indicated his views.
TAMPA - This year's most bitter legislative fight may change how people sue nursing homes.
Nursing home giant Beverly Enterprises Inc. barely shrugged in telling its investors that a California jury had ordered $ 95 million paid to a resident who suffered a broken hip.
The monstrous verdict would be overturned on appeal, the company predicted in March 1998. And despite scores of other lawsuits pending against Beverly, it assured investors litigation wouldn't hurt its bottom line.
"The company does not believe that the ultimate resolution of those matters will have a material adverse effect on the company's consolidated financial position or results of operations," it declared.
But a year later, such nonchalance is gone. Beverly and its competitors are pleading with Florida lawmakers to make it harder for people to sue nursing homes, saying such cases are killing business.
"It strips us. We are naked," industry lobbyist Ed Fortune said of current state law during a recent hearing on legislation to curtail the lawsuits.
"Where is the truth?" countered Alexander Clem, a lawyer with Morgan, Colling & Gilbert of Tampa who has made a career of suing nursing homes. "Either they are misrepresenting the truth about the economics of nursing homes to the Legislature in Tallahassee or they are misrepresenting the burden these lawsuits will place to their shareholders."
The legislation has become a bitter battle, pitting for-profit nursing home chains against lawyers who have found a booming business in bedsores and bad care. It's the no-holds-barred fight of the 1999 Legislature.
And although it is just one part of an effort to tighten Florida's civil litigation system, it's so contentious that some lawmakers say it could derail the broader effort, known as tort reform.
Drowned out in the din, despite their clear stake in it, are nursing home residents and their families. They have come to depend on the civil court system for recourse when reporting abuse and neglect to government agencies gets them nowhere.
"No one sues a nursing home just for the fun of it. The only way you can reach them is through their pocketbook," said Audrey Hillenberg, whose lawsuit against The Arbors of Altamonte Springs alleges an aide inflicted a fatal injury to her mother, Frances Kelly.
Hillenberg said she couldn't get action when she complained of abuse while her mother was alive. She remembers finding the 94-year-old woman black and blue on their final Mother's Day together as nursing home supervisors said there was nothing they could do.
Kelly died in August, 17 days after certified nursing assistant Candace Vogel allegedly bashed her head with a can of liquid nutrient. Vogel faces a murder charge in Orange County.
THE LEGISLATIVE debate is fiercest in the House, where a bill sponsored by state Rep. Johnnie Byrd, R-Plant City, puts people suing nursing homes, child care centers and facilities for the developmentally disabled under the same laws governing other civil cases.
The Legislature had given those people an exemption allowing unlimited punitive damages on grounds that seniors, children and the disabled are so vulnerable they need extra protection from abuse and neglect.
Judges and juries are the gatekeepers. Judges decide which lawsuits may seek punitive damages; juries decide whether penalties should apply and how much.
There also is no forced mediation as required in other civil cases. And with nursing homes, a losing defendant pays a plaintiff's legal fees on top of the damages. The House bill caps punitive damages at three times compensatory damages such as lost wages or medical bills. Compensatory damages often are low in nursing home cases, with punishments for damages such as "pain and suffering" typically the bulk of awards.
The only way to exceed the cap in the House bill is if a plaintiff can prove intent to cause harm. That's the standard applied in criminal cases and the reason state attorneys say they can't successfully prosecute operators of dangerous nursing homes.
Ed Towey of the Florida Health Care Association, which represents the for-profit industry, said the threat of unlimited damages has sent nursing home insurance premiums skyrocketing in the last three years. Florida homes on average pay much higher premiums than similar homes elsewhere, he said.
"You can say, "Fine. That's because you have worse nursing homes.' But if you look at the federal data, they are in the ballpark (of other homes)," Towey said.
The premiums generally are for insurance that doesn't pay punitive damages, however. Still, Towey reasoned, the money comes out of the pockets of the nursing homes.
"If you cap everybody else and not these facilities, then they become a target," he said. "They become one of the last few places; they become a really big score."
The House bill goes on to allow just one punitive damage award per cause. So a nursing home with chronic neglect might face dozens of lawsuits but pay out only once.
Advocates for the elderly say if changing the law curtails the financial incentive for lawyers, victims would have a hard time finding willing representation, effectively ending access to justice.
A Senate bill continues to keep nursing homes and other facilities for the vulnerable exempt from civil litigation limits. But it also requires that cases go to court-supervised mediation in 90 days, and if plaintiffs reject a settlement offer and don't win a court judgment greater than the offer, they don't get their legal fees paid.
That measure was part of a tort reform package adopted by last year's Legislature and vetoed for various reasons by the late Gov. Lawton Chiles.
SETTING THIS debate apart from others is how personal the battle has become between the companies and millionaire lawyer Jim Wilkes of Tampa, whose aggressive pursuit of nursing home cases is credited with exposing industry wrongdoing.
Wilkes, who goads industry leaders by calling them "lying dogs" and vowing to match them dollar for dollar in a public relations campaign, is leading the bid to keep the current law.
"They figure (the legislative fight) keeps me busy for three months, and the value of the case I don't take justifies the expense even if they don't get it," he said.
Wilkes estimates he accepts just one of 10 cases brought to him and wins more than half, with an average settlement of $ 500,000.
There is no reliable tally of all nursing home lawsuit awards in Florida; the largest case may be a $ 6 million strike against Vencor Inc. in Palm Beach last year. And several verdicts or settlements have reached the $ 3 million range.
Nonetheless, there is no dispute that Wilkes and others have found a lucrative line of work. Law firm billboards soliciting such cases are regular sights along roadways, and eager attorneys buy plenty of broadcast advertising time. The ability to collect legal fees apart from awards to plaintiffs has led scores of attorneys to focus solely on nursing homes.
The Florida Health Care Association, citing an informal survey, estimates the annual cost of settling claims and defending lawsuits in Florida has reached $ 30 million.
Vencor, operator of 20 Florida nursing homes that house about 2,700 people, recently told lawmakers it paid $ 8.3 million in claims statewide last year. That was nearly half what the Kentucky-based chain paid nationwide, even though only 7 percent of its beds are in Florida.
Karen Goldsmith, a Winter Park attorney who defends nursing homes, said there's a question of fairness. The industry should be judged under the same legal system as any other business in Florida, she said.
The threat of huge damages - like the award in California, which this year a judge reduced to $ 3 million - leads nursing homes to settle before trials to avoid the unknown, she said.
The industry portrays neglect lawsuits, particularly, as fraught with imbalances. Juries may be swayed by pictures of helpless elders near death, and few things are more gruesome than a bedsore burrowed down to the bone.
Industry representatives say the reality of aging is that skin breaks down, people lose weight, and they generally get sicker rather than healthier because their bodies are shutting down even in the best nursing homes.
IF A FRAIL resident's family is unhappy with care, Goldsmith added, it's easier to sue the nursing home than the patient's doctor.
"Juries have unrealistic expectations. Families have unrealistic expectations," she said. "You take a person who is 80 years old, they haven't taken care of themselves all of their lives, they have multiple health problems, and people put them in a nursing home and expect them to get better. It's not realistic."
But families suing homes often bristle at such statements.
A current trial in Tampa has Emma Louise Butler pursuing damages in the 1994 death of John Butler, her 65-year-old son. He was emaciated after years at north Tampa's Brian Center, a nursing home now renamed and under new management.
Attorneys allege a coverup of neglect was so extensive that aides accustomed to falsifying care records noted the man was alert and responsive the day after he died.
Yet his mother didn't sue immediately. She said she agonized over the decision, seeking a pastor's advice before a lawyer's. Ultimately, she said, she was haunted by thoughts of other patients she had come to know in five years of visiting her son nearly daily.
"I sat on my sofa," she recalled, "and said, "Somebody needs to do something.' " Vickie Chachere covers medicine and can be reached at vchachere@tampatrib.comor (813) 259-7624.
GRAPHIC: PHOTO (C), (C) Emma Louise Butler,
left, confers with attorney Camille Godwin in court. She is suing a
local nursing home over her son's death. ROBERT BURKE, Tribune photo
COMMENT:- Is there any evidence that the lawsuits are taking so much money that patient care is suffering. Well no the evidence seems to suggest that the citizens and their lawyers are right when they claim that the only way to improve corporate care is to exact a financial penalty - the language they understand. This comes from the insurers and it seems Florida is now better than other states.
Prices Skyrocketing On LTC Liability
Exposures; long-term care liability
National Underwriter Property & Casualty-Risk & Benefits
Management January 15, 2001
"We're paying in the 21st century for problems that existed in the 1950s and 1960s," he said. New data, however, shows Florida to be "better than the national average in quality of care," he said.
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