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Bill seeks fairness on nursing home litigation, but critics cry foul

TALLAHASSEE — 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.

It's a sad, familiar fight for Sandra Banning and her brother, Ken Thurston, whose mother was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assault.

The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down. They 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."

Paying the judgment could have forced the owner to close or make changes, she said. "How many more people were injured or had to go through the horror my mother went through?"

The bill sponsored by Sen. Bill Galvano, R-Bradenton, which passed in the Senate Health Policy Committee on Tuesday by a 6-3 vote, would raise the threshold for anyone suing a nursing home for severe misconduct.

The bill has one more committee stop in the Senate while a more controversial version of the bill has stalled in the House. But critics are concerned that if the Senate bill moves to the floor, the House could pass it.

"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 patient cases.

Current law requires plaintiffs to make a "reasonable showing" of the evidence to support their claims, called a "proffer." The bill would raise the bar, forcing a plaintiff 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.

The nursing home industry "is just asking for fairness," said Kristen Knapp, communications director for the Florida Health Care Association, the trade association representing 500 of the state's nearly 700 nursing homes.

"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."

When seeking punitive damages, the plaintiff "is allowed to look at personal worth, another tool for ultimately negotiating or pursuing the claim," 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."

Sen. Arthenia Joyner, D-Tampa, calls the measure "the worst nursing home litigation bill that one could ever see."

"There would be no way to punish a nursing home — people can languish and die, and there's no recourse," Joyner said.

The bill would require that the defendant be personally guilty of intentional misconduct or gross negligence, a threshold critics say is unreasonable. It also would prohibit the use of a state or federal survey report of nursing facilities when determining punitive damages.

"It's already exceedingly difficult to get punitive damages in a case," said Jack McRay, AARP Florida advocacy manager. "It's not a helpful bill for nursing home residents.

"What you're really doing here is eliminating the deterrent factor for future behavior."

Bill seeks fairness on nursing home litigation, but critics cry foul 04/16/13 [Last modified: Tuesday, April 16, 2013 10:56pm]
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