LEGISLATURE 2013 | NURSING HOMES

Move to limit lawsuits against nursing homes draws criticism

Herald/Times Tallahassee BureauApril 22, 2013 Updated 20 hours ago

— Families of nursing home patients and advocates for the elderly are once again fighting legislation that would make it tougher to sue the homes for neglect.

Despite the emotional testimony from the families of nursing home patients who suffered abuses, the bill cleared its last stop on Monday — with a 12-3 vote by the Senate Rules Committee — and is headed to the Senate floor.

Ken Thurston and his sister, Sandra Banning, who have been speaking out against this legislation, told committee members their mother, Virginia, was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assaults. The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down. The siblings fear it will be even harder to have any recourse against a troubled nursing home if SB 1384 becomes a law.

“When we decided to sue the nursing home, money had nothing to do with it,” Banning said. “I wanted a judgment to be able to force a change.”

Thurston asked the panel: “Who benefits from this legislation? To put it another way, whose rights are being subordinated and whose are being protected by this bill?”

The nursing home industry “is just asking for fairness,” said Kristen Knapp, communications director for the Florida Health Care Association, the trade group representing 500 of the state’s nearly 700 nursing home facilities.

“There are predatory trial lawyers who are using punitive damages to inflate the cost of settlements,” Knapp said. “Essentially, the majority of cases don’t go to trial. They’re settled.”

Current law requires plaintiffs present evidence for a pre-trial hearing, but they don’t have to prove it’s admissable before the case. The bill, sponsored by Sen. Bill Galvano, R-Bradenton, would raise the bar, forcing those suing for punitive damages to present “clear and convincing” evidence to a judge. The judge would then decide in a pretrial hearing if there’s enough admissible evidence to proceed with the case.

Seeking punitive damages gives a lawyer a chance to “look at personal worth” as leverage in a case, Galvano said. “Given the impact of allowing a claim for punitive damages, let’s raise the standard so that the judge is looking at admissible evidence and the judge still has the discretion to make the award.”

AARP Florida advocacy manager Jack McRay calls the bill “unnecessary and unconscionable.”

“It’s already exceedingly difficult to get punitive damages in a case,” he said.. Making it even harder to sue for punitive damages “eliminates the deterrent factor for future behavior.”

Since 2001, the state has required that half the funds from punitive damage cases against nursing homes be placed in a trust fund — and that has yet to happen, according to the Agency for Health Care Administration.

The bill has been stalled in the House, but representatives could pass the Senate version.

“It’s still a threat to nursing home patients,” said Debra Henley, executive director of the Florida Justice Association, which represents attorneys who specialize in consumer and patient cases.

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