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NURSING HOME TORT REFORM DURING THE 2001 SESSION

January 1, 2001

 If any sector of the law cried out for civil justice, or tort reform, it was the nursing home law in Florida.

Several years ago the legislature gave nursing home residents special rights. The rights are important to protect a vulnerable population. They include such rights as the right to adequate and appropriate health care. However, the legislature also granted broad authority to enforce those rights in civil court and to collect damages for the infringement of rights. It is the broad civil remedies that is to blame for the explosion of nursing home litigation and caused the urgent need for reform.

The old law granted add-on fees to attorneys and allowed huge punitive damages awards. It also was a strict liability statute so defendants had little choice but to settle cases. All these problems mounted until finally the system broke and liability insurers refused to cover nursing homes.

Governor Jeb Bush appointed Lt. Governor Frank Brogan to chair a task force charged with examining the broken system. Senate President John McKay personally sat on the task force. These elected officials spent months examining the problems and issues connected with long-term care and decided the need for a fix was urgent.

Senator Virginia Brown-Waite is a hard-working compassionate member of the Senate. She has never given nursing homes a sympathetic ear. She has spent her career in public service defending the rights of the elderly. She agreed to take on the challenge of crafting a fair long-term care civil justice reform law.

AIF became involved in the issue for two principle reasons. One is because of AIF’s historic expertise in civil justice issues. Second was the need for Florida’s employers to have available as a benefit to their employees long term care insurance. The current crisis in long term care has made offering that benefit all but impossible.

The challenge issued to all parties involved was to craft a fair civil justice reform law. One which clearly protected the rights of all nursing home residents while providing just enough reform to bring insurance coverage back to the state. Jodi Chase, lead lobbyist for AIF on this issue met with Mr. Andy McCumber, a nursing home defense lawyer, and several plaintiff’s lawyers. Senator Brown-Waite provided the discipline and catalyst for negotiation and agreement. She made sure that the elderly were represented by the AARP, that residents were represented by the Florida Life Care Resident’s Association, and that all issues were addressed in a fair manner. President McKay never wavered. He insisted on a fair product. Governor Bush and Lt. Governor Brogan allowed the legislature to do its work, but made sure the legislature knew of their keen interest. The House, with the leadership of Speaker Tom Feeney provided the last ingredient. The result is a tort reform law that will work.

The details of the law are included below. The critical features are abolition of add-on attorney fees, a negligence standard for all nursing home litigation, an exclusive remedy, and caps on punitive damages.

 

LEGAL/INSURANCE REFORM FOR NURSING HOMES AND ALFs

The following litigation reform provisions apply to claims that accrue on or after May 15, 2001. (See punitive damage section for implementation of that provision.)

Negligence Standard

This cause of action is the exclusive remedy for a claim for resident’s rights violation or negligence.

Strict liability/negligence per se is specifically replaced with a clearly drafted negligence standard.

Two standards of care will apply. One for a reasonable person (which applies to non-professionals on staff), and a professional standard for nursing staff. This brings us closer to the medical malpractice standard of care.

Rights may only be enforced by injunction (no damages) with a cap on attorney fees; no attorneys fees for personal injury or death cases.

Plaintiff can no longer obtain double damages when the resident dies. Claimant must elect one remedy.

Clarifies that a licensee is only responsible for the administrative services of a medical director.

Noneconomic Damages / Arbitration

Does not include an arbitration process with caps on noneconomic damages.

Does contain the following: medical malpractice like presuit investigation process; mandatory mediation.

Punitive Damages

Contains the similar three tier punitive damage limitations provided to all other businesses under the Tort Reform Act of 1999 with following significant exception: the first tier limit is 3 times compensatory or $1 million instead of 3 times compensatory or $500,000, (whichever is greater); and the second tier is 4 times compensatory or $4 million instead of 4 times compensatory or $2 million, (whichever is greater). Like 1999 tort reform punitive damages are unlimited where there was "specific intent to harm."

When punitive damages are awarded at the second or third tier, the clerk of the court will refer the case to the appropriate law enforcement agency for investigation.

The award of punitive damages will be divided equally between claimant and a Quality Improvement Trust Fund.

The new punitive damage limitations applies to claims that accrue after May 15, 2001. However, it will also apply to claims that accrue before May 15, 2001 if the claim is filed on or after October 5, 2001, to help address insurance "tail."

Statute of Limitations

Statute of limitations is 2 years with a 4-year statute of repose and 6 years for claims that have fraud, fraudulent concealment, or intentional misrepresentation of fact which prevented discovery of the injury (Underline areas different from current medical malpractice statute).

A phase in of the two-year statute of limitations exists to help with the insurance "tail."

Add-on Attorney Fees

Attorney’s fees and costs are repealed for injury/death cases.

Attorney’s fees for claims that only have an injunctive relief for an administrative remedy are capped at $25,000.

Chapter 415

Chapter 415 actions can not be brought against the licensee or person or entity who establishes, controls, conducts, manages or operates a long term care facility.

The facility is not vicariously liable for the actions of workers under Chapter 415.


Jodi L. Chase, Esquire, was the lead for Associated Industries of Florida (AIF) an, indeed, the lead for the nursing home industry and the business community on drafting and lobbying the passage of the tort reform aspects of nursing home reform during the 2001 Session of the Florida Legislature.  Ms. Chase was tireless in her drafting and lobbying efforts, and worked days , nights and weekend in reaching consensus with the key legislators regarding the passage of nursing home tort reform.  Prior to the 2001 Session of the Legislature, the nursing home industry requested that Associated Industries of Florida assume the responsibility for the tort reform aspects of the entire nursing home reform movement.  AIF gladly accepted this responsibility because of the expertise we possess through Ms. Chase and others in the tort reform era, and because we felt good public policy  dictated that there definitely needed to be tort reform in this area of the law.  Ms. Chase is a former Executive Vice President & General Counsel of Associated Industries and is now the owner & Chief Executive Officer of Jodi L. Chase, P.A.  In addition to tort reform, Ms. Chase is an acknowledged expert in health care legislation. 

AIF acknowledges and sincerely appreciated the tremendous efforts of  Governor Jeb Bush, Lt. Governor Frank Brogan, Speaker Tom Feeney, Senate President John McKay, Representatives Carole Green, Allan Bense, Dudley Goodlette, Jerry Maygarden, and Carlos Lacasa, also Senators Ginny Brown-Waite, Burt Saunders, Jim King, Betty Holzendorf, Ron Silver, Jim Horne, Durell Peaden and Jack Latvala in passing nursing home tort reform. AIF also greatly appreciates the efforts of its 21 other lobbyists for their support of Ms. Chase.


Jon L. Shebel
President & Chief Executive Officer
Associated Industries of Florida