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Opinion
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Guest Column
Reasonable liability protection makes sense for providers | Column
Front-line workers in long-term care facilities deserve our gratitude and respect, not threats of opportunistic lawsuits that will only drain resources and distract from their ongoing, lifesaving work.
The heroes who care for Florida’s frailest elders have knowingly, and courageously, walked into the middle of a pandemic.
The heroes who care for Florida’s frailest elders have knowingly, and courageously, walked into the middle of a pandemic.
Published Feb. 20

Every day for nearly a year – while most of us were safely locked down or working remotely to avoid the coronavirus – the heroes who care for Florida’s frailest elders have knowingly, and courageously walked into the middle of a pandemic.

They did so, and continue to do so, for one reason: to protect the health and safety of the seniors who are entrusted to their care.

Steve Bahmer
Steve Bahmer [ Provided ]

And they did so not only in the midst of a raging and deadly virus, but in the midst of confusing, conflicting, and ever-changing state and federal guidance as well. More than 1,500 pages of orders, directives and FAQs, which, in some cases, changed as many as six times in three weeks.

Bennett Napier
Bennett Napier [ Provided ]

It is hard to remember now how little was known about the virus a year ago. How many caregivers worked with inadequate PPE because it was simply unavailable. How many hours were spent tracking down PPE only to discover that it was counterfeit and unusable. How many had to re-use masks that weren’t meant for re-use, or even sewed their own masks and gowns out of desperation.

How many lifesaving decisions had to be made with incomplete information and with little time.

It has been the most difficult year in their careers. And while the terribly sad toll of the virus is clear, especially among those in long-term care communities, these heroes deserve to be lauded, not derided. They deserve our gratitude and respect, not threats of opportunistic lawsuits that will only drain resources and distract from their ongoing, lifesaving work.

Despite the increasingly overheated and baseless claims that are generating headlines, long-term care providers are not attempting to strip anyone – least of all residents and their families – of their right to sue.

On the contrary, SB 74 and PCB HHS 21-01 preserve the rights of residents and their families to sue, while extending limited liability protections to health care providers who can demonstrate they acted in good faith and did everything in their power to comply with federal, state or local laws, regulations or ordinances.

The bills strike an appropriate balance that ensures COVID-19 claims can be filed where legitimate actions of gross negligence or intentional misconduct may have occurred. In other words, they preserve avenues for holding bad actors accountable, while preventing frivolous, sue-and-settle claims from entrepreneurial trial lawyers that do nothing to enhance long-term care quality or accountability.

And be assured, the opportunistic lawsuits are coming. Recent testimony in the Senate Judiciary Committee indicated that some 60 letters of intent to sue have already been sent to providers – all of which will require scarce resources to defend, whether the claims are legitimate or not.

At the same time, according to the American Tort Reform Association, Florida trial lawyers spent an estimated $6.6 million on 35,000 TV ads for COVID-related legal services in 2020 to generate additional lawsuits.

Florida ranks first in the nation in terms of the amount spent on such ads and the number of ads aired. No doubt, the trial lawyers expect a return on their investments.

We don’t oppose anyone’s right to sue. But the public deserves to know the truth.

The virus did not, and does not, discriminate. And despite caregivers’ best efforts to prevent its spread and mitigate its impact, it nevertheless found its way into long-term care, as it did every other type of business and health care setting.

In fact, according to a University of Chicago study, the best predictor of COVID-19 getting into a long-term care facility is community spread. Not star ratings or infection control histories.

Neither scurrilous jabs about caregivers’ commitment to quality nor an avalanche of lawsuits will improve care. They simply malign the unceasing work of those who care for Florida’s most vulnerable, and they drain already scarce resources in the process.

Bennett Napier is a Certified Association Executive and has served as executive director of the 14,000 member Florida Life Care Residents Association (FLiCRA) since 1992. FLiCRA is the oldest and largest association of CCRC residents in the United States.

Steve Bahmer is President & CEO for LeadingAge Florida, the state’s only association representing the entire continuum of care for older adults. The association represents more than 500 facilities that are home to more than 80,000 seniors.