Suing Florida nursing homes for wrongful death will get harder if this bill passes

Only spouses and children under 25 would be able to sue after a resident’s death if the legislation passes.
The remaining 39 residents are evacuated from Freedom Square of Seminole, Friday, April 17, 2020 in Seminole. The sprawling retirement community faced at least seven wrongful death lawsuits after a coronavirus outbreak afflicted the facility.
The remaining 39 residents are evacuated from Freedom Square of Seminole, Friday, April 17, 2020 in Seminole. The sprawling retirement community faced at least seven wrongful death lawsuits after a coronavirus outbreak afflicted the facility. [ DIRK SHADD | Times ]
Published March 7|Updated March 7

A new bill would make it harder to sue Florida nursing homes and other long-term care facilities after the death of a resident.

House Bill 1029, along with its companion Senate Bill 1304, would raise the bar for these cases to the current requirements for medical negligence suits in Florida.

If passed, only spouses and surviving children under 25 would be able to file wrongful death suits against long-term care facilities in the Sunshine State.

“There are not a lot of people in nursing homes with children under 25,” said Zayne Smith, director advocacy at AARP Florida. “This would absolutely relieve nursing homes of any accountability for a wrongful death.”

The proposed legislation comes as Republican lawmakers renew their annual push to shield businesses from costly lawsuits, aimed at curbing what Gov. Ron DeSantis has called a “cottage industry of litigation.”

There is little data on the prevalence of frivolous lawsuits against long-term care homes in Florida, experts say.

Proponents say excessive lawsuits are rampant, and the cost of defending them diverts resources from resident care. Opponents say the legislation — particularly its wrongful death provision — takes away a tool for families to hold facilities accountable.

Rep. Randy Maggard, R-Dade City, and Sen. Colleen Burton, R-Lakeland, the bills’ respective sponsors, did not respond to requests for comment.

Rising costs, rising violations

Lawsuits against long-term care facilities nationally have grown more expensive to settle in recent years, several studies of the industry’s liability claim costs suggest. At the same time, Florida has seen a spike in serious violations in its nursing homes, according to state citation data.

(The state Agency for Health Care Administration, which levies these citations, did not provide the same data for assisted living facilities, which data suggests have seen the sharpest increase in costs of settling these lawsuits.)

Currently in Florida, spouses and surviving children — of any age — can file a lawsuit alleging that a long-term care home is responsible for a resident’s death.

Siblings, friends or unmarried partners cannot pursue these types of cases on behalf of a loved one they believe died due to neglect or abuse.

A spokesperson for the Florida Health Care Association, an industry group that represents 80% of nursing homes statewide and has made reducing lawsuits against facilities a top priority this legislative session, said the law would curb the “sue to settle” climate in the long-term care sector.

“I can tell you that too often, lawsuits demoralize hard working staff and divert resources that otherwise could be used to invest in quality care for our vulnerable residents,” said association spokesperson Kristen Knapp in an email.

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If passed, the legislation would allow the estate of the deceased person to sue for “survival damages,” a much narrower type of recovery that includes funeral and medical expenses, as well as pain and suffering that the resident experienced from the time of their injury or illness until their death.

“The estate is the proper party to recover appropriate damages and be made whole — not children who are living halfway across the continent, who are grandparents themselves,” said Jason Hand, a vice president at the Florida Senior Living Association, which represents companies that operate assisted living facilities in the state.

Raising the bar

Critics said the legislation would eliminate nearly all wrongful death lawsuits against long-term care facilities.

“Ninety percent of our cases would be blocked by this provision,” said Michael Brevda, a lawyer at Senior Justice Law Firm, which represents families in these suits. “Rarely is there a surviving spouse — and oftentimes, they don’t have the physical or cognitive wherewithal to litigate a case. This would give immunity to Florida nursing homes and assisted living facilities when they kill patients.”

A spokesperson for AARP Florida said the organization’s national team is unaware of any other states that have laws barring children over 24 from suing long-term care facilities after a parent’s death.

The bills also require residents or their relatives to get a written statement from an expert — such as a doctor or nurse with certain types of relevant experience — who is willing to corroborate that they have “reasonable grounds” for the case before the family can file a lawsuit alleging negligence or a violation of a resident’s rights.

The expert could not testify on a contingency fee basis.

“A plaintiff law firm can go out and file a lawsuit right now against a nursing home and not even have an expert supporting their case,” said Donna Fudge, an attorney at Fudge Broadwater who defends long-term care facilities when sued.

“And if the expert gets paid on a contingency basis, that’s beyond bias,” added Fudge, who also serves as tort counsel for the Florida Health Care Association. “What do you think they’re going to say? Let’s not be naive, right?”

The legislation would also allow defendants to submit evidence of similar violations found during inspections at a given facility, as long as those deficiencies involved “substantially similar conduct” and occurred in the yearlong period before an alleged incident. It would additionally require long-term care facilities to provide a resident’s care records within 14 days after they’re requested in a suit.

A swinging pendulum?

At the turn of the century, there was a prevailing idea that Florida needed to curb lawsuits against its nursing homes, said Christopher Johnson, a professor at the University of Louisville who spent almost a decade researching quality care and the impact of litigation on Florida nursing homes.

Facilities’ insurance premiums were going up in the face of a wave of litigation, while at the same time, research showed nursing homes were often understaffed and their workers not always properly trained to prevent serious harm.

“There was this grave concern that Florida nursing homes were going to have to shut down because of excessive litigation,” Johnson said.

In response, in 2001, Florida lawmakers passed a series of tort reforms, at the recommendation of Johnson and other researchers, to help simultaneously limit lawsuits and improve quality of care inside nursing homes.

“The current legislation sort of swings the pendulum way back towards the nursing homes in a way that I’m not sure is fair to everybody,” he said. “To make wrongful death calculations based on the medical malpractice laws ... I don’t know if that’s fair in cases where there’s actually negligence and harm brought to bear within the care of the residents.”

Part of the problem, Johnson said, is that there’s little funding allocated to study these issues.

It’s hard to say whether the number of lawsuits against long-term care facilities have increased in recent years, he said, and if so, whether that rise is due to excessive claims or a decline in quality of care.

Past research has shown that facilities with more lawsuits tend to have more prior quality-of-care deficiencies, for-profit ownership, less staff, a higher number of residents and affiliation with a larger chain company.

About 90% of Florida’s long-term care homes are for-profit entities, according to state data.

But Johnson said there’s a chicken-and-egg issue: Are trial attorneys targeting facilities with a history of problems and the money of a corporate backer, or are these factors predictive of legitimate claims of negligence?

Smith of AARP Florida noted that unlike trial or defense attorneys, their organization does not stand to financially benefit should the bills pass or fail.

“Our interest is about protecting the personal rights of residents and their loved ones,” she said. “There is an area of tort reform that should be reviewed. This area is not that.

“Because we’re not talking about people that stubbed their toe and want to sue the facility because they left a chair in the wrong spot,” Smith added. “These are people that are dying because of negligent acts and should not be thrown away by a piece of legislation.”

It’s unclear how the bills will fare during the legislative session, which runs for the next two months.