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Fight Brews About Nursing Home Lawsuits

Jan 9, 2018
Originally published on January 9, 2018 8:49 am

The deaths of 12 residents at The Rehabilitation Center at Hollywood Hills in September has reignited a legislative battle between the state's trial attorneys and the nursing-home industry over residents' rights to sue long-term care providers.

The Florida Health Care Association held a news conference Monday to outline priorities for the 2018 legislative session, which starts Tuesday. Head lobbyist Bob Asztalos included the nursing-home group’s opposition to legal changes supported by the Florida Justice Association trial-lawyers organization.

Also in the list is a push for upward of $50 million in increased state funding for nursing homes. When matched with federal money, that request would result in a more than a $130 million increase in payments for nursing homes.

Asztalos said trial attorneys have backed off agreements to limit nursing home litigation that were made in 2001 and again in 2014. Proposals include eliminating a cap on the amount of punitive damages that can be awarded in nursing home lawsuits.

“Unfortunately, the trial bar is trying to take advantage of what happened in Hollywood Hills, and they are going back on their word from these negotiated pieces of legislation,” Asztalos said, referring to the deaths of patients at the South Florida nursing home in September following Hurricane Irma.

Punitive damages in nursing home cases are capped at $1 million. However, the cap can increase to $3 million if it is determined that a wrongful act was driven by unreasonable gain and up to $4 million if the defendant specifically meant to cause harm.

Asztalos called it a “very fair cap.”

Sen. David Simmons, R-Altamonte Springs, has filed a bill (SB 1408) that would eliminate the cap and a requirement that half of any punitive damages awarded be deposited into a state trust fund designed to improve the quality of care at nursing homes.

“The trial bar wants to undo that and just put all the money in their own pockets, and we think that’s wrong,” Asztalos said.

The Florida Justice Association includes “nursing home safety” as one of its priorities for the 2018 session.

“The Sunshine State has the largest population of seniors in the nation. Yet, laws protecting nursing home residents have stripped away rights and remedies over the years, leaving those injured or mistreated with little recourse,” the Florida Justice Association said in its 2018 legislative issues guide.

While the Florida Health Care Association criticized the trial bar for proposing changes to the legal system, it downplayed its own proposed legal changes. FHCA wants to extend the requirement for half of punitive damages to be deposited into a trust fund to also cover punitive damages secured in settlement agreements. Moreover, the FHCA wants to amend current law to make clear that money in the trust fund can be used for a grant program to help provide funding for nursing homes to acquire generators.

The proposed changes are contained in two bills (SB 1260 and HB 933) that would require nursing homes by July 1 to have generators and enough fuel to provide 96 hours of backup energy to keep facilities cool. Residents of The Rehabilitation Center at Hollywood Hills died after Hurricane Irma knocked out the facility’s air-conditioning system.

When asked about the legal changes his group is proposing, Asztalos said, “This is certainly in response to the trial bar’s actions.”

Asztalos denied that the Florida Health Care Association was taking advantage of the tragedy at the Broward County facility.

“We are not taking advantage … because that money would go into the trust fund to improve quality of care,” Asztalos said.

The Florida Legislature in 2001 tackled nursing home litigation and made efforts to curb the numbers of lawsuits filed against the industry. The resulting legislation, which was signed into law by then-Gov. Jeb Bush, included increasing the hours of direct care residents were required to have to 2.9 hours per day. That requirement was later pared back, a move Asztalos said the Legislature made due to the economic downturn.

Though the nursing-home group is asking the Legislature for $22.7 million to help retain qualified caregivers, Asztalos stopped short of saying that the Legislature should revisit the staffing requirements.

He noted that it’s not always the numbers of nurses and caregivers who are employed at nursing facilities but also the quality of the workers. He said the association wants the additional funding to be targeted toward recruiting and retaining qualified caregivers.