Last week, in the spirit of the season, the Florida Supreme Court delivered a spectacular gift to the nursing-home industry. But to the families of nursing-home residents who suffered abuse or neglect, it sent a lump of coal.
The decision, Knowles vs. Beverly Enterprises, limits a family's right to sue a nursing home for the abuse or neglect of a loved one who in a nursing home suffered sexual abuse, pressure sores, malnutrition or other avoidable conditions that did not produce their deaths.

By ruling that the Legislature never intended to allow lawsuits filed under the Resident's Bill of Rights to continue if the victim dies, the Supreme Court has effectively eviscerated the right of action of many nursing-home residents under a law passed by the Legislature.

Because of old age and ill health, many nursing-home residents don't survive the litigation relating to their abuse or neglect. They often die from causes unrelated to their abuse before obtaining justice. Now, in a ruling that perverts the Legislature's intent, the court has created an incentive for the nursing-home industry to string out such litigation, knowing that a frail resident is likely to die of unrelated causes before a jury ever reaches its verdict. Her cause of action for abuse or neglect will die with her, thus the nursing home escapes accountability for its neglect or abuse.
The Legislature previously addressed the issue of nursing homes avoiding the consequences of their misconduct, and its intent could not have been clearer. A 1984 court ruling necessitated legislative action to clarify whether a cause of action died with a nursing-home resident. Prior to that change in law, if a nursing home's negligence or abuse merely injured a resident, that resident had a cause of action. But if the abuse or neglect killed the resident, the action was extinguished. That result created a perverse incentive on the part of nursing homes to kill rather than merely injure residents.

In 1985, the Legislature recognized the injustice of wrongdoers escaping liability and acted decisively. Rep. Charles Canady, now a judge on the Second District Court of Appeal, sponsored legislation ensuring that a cause of action could be brought under the Resident's Bill of Rights for any resident whose death was caused by abuse and neglect. In his closing argument on the bill, Canady said: ``This bill would simply amend the statute to provide that the personal representative of the estate of a deceased nursing-home resident would also be able to bring an action under Chapter 400 to redress the rights of a deceased nursing-home resident.''

'Survival statute'

The intent of the change in the law was to expand, not eliminate or restrict, the rights of nursing-home residents. But as Justice R. Fred Lewis pointed out in his dissent in the Knowles case, the majority of the court has now ''perverted'' the law and twisted its text from the intended result 'into a statutory roadblock to the compensation of victims' estates for wrongs inflicted upon a [resident] prior to his or her death, but not causing death.''
Moreover, in Knowles, the court ignored Florida's ''survival statute,'' which has been on the books since 1828. It provides that ''no cause of action dies with the person'' and that ``all causes of action survive.''

The Supreme Court's decision in Knowles endorses a repugnant form of age discrimination in a state that has more residents over the age of 65 than any other state. Courts should protect rights, not give them the short shrift -- especially when dealing with frail, elderly people who cannot protect themselves.

Because Florida has so many nursing-home residents living in homes that have shocking track records of poor care, rectifying the Supreme Court's decision is of great public importance. The court should reexamine its decision and correct its error. Otherwise, the message from the court is ''Merry Christmas'' to unscrupulous and careless nursing-home operators, and ''Bah Humbug'' to their frail elderly residents.

Ken Connor, an attorney, represents victims of nursing-home abuse.

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