TALLAHASSEE - Sweeping nursing home reforms passed in 2001 appear to have reduced the number of lawsuits being filed against Florida elder-care facilities.

That's the conclusion drawn by Wilkes & McHugh, a Tampa-based law firm prominent in the nursing home field, after looking at lawsuit data in 32 Florida counties.

The firm's research shows the number of lawsuits against nursing homes last year was down 17 percent compared with 2000, the year before the reform legislation, known as SB 1202, won approval from the Florida Legislature.

The research follows an investigation by The Orlando Sentinel that found lawsuits against nursing homes down sharply in five Central Florida counties since the law passed.

With the Legislature scheduled to meet in less than two months, trial lawyers and advocates for the elderly are gearing up to stop the push by the nursing-home industry to win greater protections against lawsuits.

Trial lawyers are sure to use the new numbers from Wilkes & McHugh to argue that SB 1202 is working.

The law made it harder to sue nursing homes and capped the amount of punitive damages that juries could award.

Industry lobbyists, on the other hand, say dozens of Florida nursing homes are underinsured because they can't afford adequate liability coverage.

Many insurers who left the state several years ago because of escalating lawsuits against nursing homes haven't returned, the lobbyists say.

"Nursing homes are looking to buy insurance on the market so they can cover the risk so patients will be safe,'' said Ed Towey, a spokesman for the Florida Health Care Association, which represents the state's for-profit nursing homes. "There's no relief at all in the insurance market.''

Towey did not dispute the Wilkes & McHugh research. Instead, he countered that the results are "meaningless'' because the firm only counted filed lawsuits.

Notices Of Intent Fewer

The truest measure of whether the 2001 law is preventing legal action, Towey said, is the number of notices of intent to file a lawsuit. Nursing homes often end up settling most lawsuits before they are even filed, he said.

"Liability claims have not abated at all,'' he said. "The statistics up to November 2003 show that you're still seeing two to three liability claims per day.''

The state Agency for Health Care Administration recently compiled figures on notices of intent to sue for the Legislature's Joint Select Committee on Nursing Homes. The agency said the number of notices of intent trended down slightly in 2002 after the nursing home law was passed. But the numbers edged up again in 2003.

However, the agency's research only goes back to June 2001. So there is no way to compare last year's figures with those from 2000, the year before the law went into effect.

Barbara Hengstebeck, who leads a Wilkes & McHugh- funded group called the Coalition to Protect America's Elders, said that Towey and others in the industry are splitting hairs.

"When the nursing home industry was down at the Capitol two years ago, they weren't screaming about notices of intent. They were screaming about lawsuits,'' said Hengstebeck, recently elected president of the National Citizen's Coalition for Nursing Home Reform.

Hengstebeck cites testimony by nursing-home industry experts in 2001 during the debate over the bill.

They testified it would take three to five years after the law went into effect for liability insurance companies to start writing policies again.

"If we improve staffing and we improve care, the lawsuits are going to go away on their own,'' Hengstebeck said.

Anna Spinella, founder of the Tampa group Advocates Committed to Improving our Nursing Homes, said she was not surprised by results of the Wilkes & McHugh study.

Spinella takes complaints from families with relatives in nursing homes.

The number of complaints in 2002 were three times higher than what she received last year.

Focus On Funding, Advocates Say

Spinella and other advocates for the elderly say lawmakers should stop worrying about lawsuits and concentrate on funding the third phase of staffing increases called for in the 2001 law.

The measure immediately raised the state requirement to a minimum of 2.3 hours of care per resident per day. That rose to 2.6 hours on Jan. 1, 2003. The third phase of increased staffing, to 2.9 hours per day, was supposed to start this month.

But the Legislature delayed it until June 1 to balance the state's Medicaid budget.

"What we need to do is complete the promise that 1202 enacted by having the staffing upgraded,'' said Austin Curry, senate president of the Silver-Haired Legislature, an elder advocacy group.

"It takes people to take care of people. If you don't have the staff, you can't care for the frail elderly,'' Curry said.

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Taxpayers gave an additional $77 million in Medicaid funding in 2001 to approximately 650 nursing homes for improvements in care.

REQUIREMENTS

• Homes had to:
• Increase aides' time with residents from 1.7 hours per day to 2.9 hours by 2004.
• Report staff ratios and turnover twice a year to the state.
• Establish risk management programs.
• Report deaths and other ""adverse incidents.''

MORATORIUM

• In an effort to encourage the growth of home-care alternatives, a five-year moratorium was imposed on construction of nursing homes.

REGULATION

• Increased fines for poorly performing homes.
• Required the state to do full inspections every six months at homes cited for severe deficiencies.
• Boosted state power to deny a license to any company/individual with a financial interest in a home.

LAWSUIT LIMITS

• No cap on compensatory damages for pain and suffering.
• Punitive damages limited to cases of intentional misconduct or gross negligence and capped at $1 million, or three times compensatory damages, whichever is greater.

LEGAL FEES

• Eliminated ""add on'' fees defendants were previously required to pay plaintiffs' attorneys.
• Did not limit contingency fees collected by plaintiffs' attorneys.

 

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