Florida Liability Law's Mixed Message - Brief Article

Nursing Homes, August, 2001 by Douglas J. Edwards

A new Florida law, the result of compromise negotiations among long-term care industry and consumer groups, could ease The Sunshine State's notorious nursing home liability insurance crisis but possibly raise new challenges.

The bill was supported by a range of industry and consumer groups, including the Florida Association of Homes for the Aging (FAHA), the Florida Life Care Residents Association (FLiCRA) and the American Association of Retired Persons (AARP). Among new regulatory and staffing measures, the law includes tort reform, summarized in the June 2001 issue of Currents, published by the American Association of Homes and Services for the Aging (AAHSA):

* a limit of $25,000 on add-on attorney fees for lawsuits that can be handled through an injunction or administrative solution

* a presuit notification process

* a reduction from four to two years in the statute of limitations (with exceptions)

* punitive damages limited to three times the compensatory damages for each claimant or $1 million (whichever is greater), dividing the awards equally between the claimant and the Long-Term Care Facility Improvement Trust Fund

* a requirement that the resident or his/her representative give a copy of a complaint of a violation of a resident's rights to Florida's Agency for Health Care Administration

* negligence standards that must be met when a resident's rights suit is filed

* a burden of proof for suits against facilities

Erwin Bodo, senior vice-president of FAHA, says that before the law's passage, "Essentially, if something happened in a nursing home, then the nursing home was responsible. In that sense, it was significantly more liberal than common law negligence, and significantly more liberal than any of the malpractice statutes that exist in Florida. So the burden of proof was minimal on the plaintiff." However, with Gov. Jeb Bush's signature on May 15, Bodo says that "The nursing home is now given some tools to have an adequate defense." As a result, he expects that insurance companies offering liability insurance coverage will return to Florida.

While the industry welcomed tort reform, it was more hesitant about other aspects of the bill. For example, regarding the law's new staffing requirements, Bodo says that FAHA realizes the value of additional staff members, but "the flip side of that is to reach 2.9 hours of CNA time per resident per day by two years from now is totally unrealistic."