As citizens of this state, we have a fundamental question to ask: "How far are we willing to go to protect neglectful and abusive nursing home operators?"

As recently reported in this paper, three years ago the Florida Legislature passed a comprehensive bill (SB 1202) designed to address the "skyrocketing lawsuit" problem faced by our state's nursing homes. At the time, resident advocates such as myself contended that the escalation in litigation was due primarily to poor care. Industry representatives contended that the problem was due to a plaintiff-friendly law and an aggressive trial bar.

In the end, lawmakers crafted a bill that attempted to address both of these concerns by improving care as well as restricting lawsuits. As reported in this paper earlier this month, that new law appears - by all accounts - to be working very well.

First, care is finally moving in the right direction. Despite the fact that the only reliable figures reflect the first phase (of three) of the new staffing standards, 11 of the top 12 quality measures have shown improvement. And despite the fact that Florida was (at the time this data was collected) still among the most deficient in the country for staffing, it is clear that the first installment had a positive effect.

Second, lawsuits are dropping. It appears that SB1202 did not just slow the growth in suits, but actually reversed the trend. Every major independent look at this data reconfirms this; from the Orlando Sentinel's independent report, to a state agency report, to (yes!) an industry-sponsored study that shows actual costs for suits to be on a steady decline since the passage of the new law. One nursing home representative even testified last month that his lawsuit costs had dropped 75 percent!

So why the need for even more tort reform?

An alliance of for-profit nursing home chains now claims that the bill didn't go far enough and that suits aren't dropping fast enough. As "proof positive" a lack of available insurance as the key indicator is cited.

We should recall that the insurance expert hired by the nursing home industry, Theresa Bourdon of AON, said it would take three to five years for insurers to return. "That's just the nature of the business," she said (Miami Herald, Dec. 22, 2002). This was reiterated by the Florida Department of Insurance in testimony given to the Select Committee just last year. Three to five years - that's how long they said it would take.

Yet, we have not yet fully implemented the most critical care provision of SB1202 - meeting minimum staffing - and the tort provisions only fully went into effect in May of 2003. In short, we haven't given the new law time that they said it would take to stimulate the insurance market.

How far are we willing to go to protect bad homes? Nursing home operators want the very kind of stringent caps that even AARP's lobbyist testified would be unfair because "it will essentially eliminate the suits." Yes, the onerous caps they propose would eliminate lawsuits for the most outrageous conduct and basically neuter the last remaining legal protections currently afforded residents. We should, as a society, oppose any more lawsuit restrictions against nursing homes and instead continue focusing on improving care.

Lawmakers made a promise to nursing home residents. They asked them to give up some of their rights in exchange for adequate care. It's now time to keep that promise. Doing so will continue to improve care, decrease lawsuits and will hasten insurers' return.

Barbara Hengstebeck is the president-elect of the National Citizens Coalition for Nursing Home Reform (NCCNHR) and the executive director of the Coalition to Protect America's Elders.

© 2004 All Rights Reserved