Florida Care Advocates Celebrate New Tort Law
Bill Myers
2/25/2014
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Long term and post-acute care advocates in Florida are celebrating a new bill that they say will ease their “litigation tax” burden while still ensuring that residents and their families can resort to law when they think providers aren’t being held accountable.
A bill currently working its way through the Florida legislature would protect nursing homes’ capital investors from malpractice and other plaintiffs’ lawsuits, while suspending or revoking the operating licenses of any provider who hasn’t paid off his or her judgments or settlements.
“We were willing to accept a level of financial responsibility,” Florida Health Care Association (FHCA) lobbyist David Ramba said Tuesday in a conference call with reporters. “This is really something that most of the lawyers can agree to.”
Indeed, the bill, which passed a Florida Senate committee last week, was endorsed by FHCA, the trial lawyers’ main association, and AARP—a rare, possibly unique, triumvirate on such a traditionally prickly matter as tort reform.
“You can judge a true compromise by the amount of conversation it generates,” FHCA Executive Director J. Emmett Reed, CAE, said on Tuesday’s call. “We’ve gotten a lot of lively feedback, let’s put it that way. So we know it’s a true compromise bill.”
Similar legislation, in past years, had been deal breakers. Trial lawyers claimed that any effort to shield investors from lawsuits would allow providers to duck responsibility by setting up shell companies, or jostling paperwork around to rechristen a “new” company under the same, old ownership.
When long term care advocates agreed to have licenses suspended or yanked following a judgment or settlement, both sides were able to accept the compromise legislation.
“What we found was, when we sat down in the room with the plaintiffs’ attorneys, there was a real willingness to do the right thing,” said Bob Asztalos, FHCA’s top lobbyist, in Tuesday’s call. “There were some outliers on both sides that were really trying to abuse the process.”
In addition to the investor safeguards, the legislation sets higher evidentiary standards for those who seek punitive damages. It also adds new parameters to Florida’s open records laws, defining more narrowly those who have a right to seek out residents’ medical records. That, too, is a welcome relief, providers say.
“I could have a medical record that’s 400 pages,” KR Management operator Terry Russell said on the call. “And to have an employee take time to copy takes time and money.”
“In my years,” Russell added, “I’ve been pretty fortunate in not having a lot of lawsuits. But I’ve gotten numerous medical record requests that didn’t go anywhere. [But I still] have to pay attention to them and assume that they’re going to go the full distance.”
The endorsements of the bill aren’t unanimous. The Tampa-based firm of Wilkes & McHugh, which focuses its practice on nursing home litigation, lobbied furiously against it in committee and promises to do so again as it works its way through Tallahassee.
Nonetheless, some advocates say Tuesday they were encouraged by the work they’ve done with the trial lawyers. In fact, the two associations are already talking about getting behind a new bill reforming Florida’s moribund nursing home ombudsman system and—perhaps—some kind of new quality requirements.
However those efforts work out, lobbyist Ramba says he’s glad he was able to take a different course this time.
“In the past, everybody goes into a fight—we want caps, they want mandatory insurance—and you just end up rolling up people in wheelchairs and yelling. Everybody yells at everyone else,” he said Tuesday.