A state bill that would have all but eliminated most Florida nursing home wrongful death claims has (thankfully) died in committee. However, our West Palm Beach nursing home injury lawyers wouldn’t put it past the insurance and nursing home industries to push lawmakers to pick up the torch again in another future session.
State lawmakers recently prevailed in a series of heavy-handed tort reform efforts – passing laws for shorter personal injury case statutes of limitations, reduced damages and attorney fee coverage for injured claimants, higher than ever proof burdens, and less accountability for insurers acting in bad faith. All of this, of course, makes it harder for those seriously injured as a result of another’s negligence to obtain fair compensation, and is unlikely to do much in the way of lowering insurance premiums (the justification given for many of these measures).
The Florida nursing home wrongful death bill would have been one of the most extreme changes. For the sake of the well-being of all nursing home residents in this state, we’re very glad that it did not pass. But given the momentum of this latest session, we’re not so sure we won’t see this issue resurrected.
House Bill 1029 and its companion Senate Bill 1304 would have significantly raised the bar for nursing home wrongful death cases – to those required of medical malpractice wrongful death cases. Specifically, it would limit claimants in nursing home wrongful death lawsuits in Florida solely to surviving spouses and/or surviving children under the age of 25.
Now, this standard is problematic for medical malpractice cases too, and our civil trial lawyers have voiced our dismay with this too. Existing medical malpractice law that significantly restricts claimants essentially means there is no consequence for medical negligence resulting in a patient’s death if the person who died isn’t married or doesn’t have kids younger than 25.
This same standard applied to nursing home cases would have been disastrous, all but wiping out most claims.
Think about it:
Very few people in nursing homes have children under the age of 25. And if they do still have surviving spouses, those individuals may themselves be quite elderly and/or not of sound mind to pursue litigation for wrongful death. In effect, nursing homes would face virtually no civil liability at all for treating patients so poorly it results in their death. In fact, there would be incentive not to ensure those patients’ survival because alive, they could still bring injury claims; dead, there might be no one who fits the new plaintiff bill.
What’s more, as noted by numerous experts quoted in the Tampa Bay Times, there is no data to indicate there is a problem with frivolous lawsuits against long-term care facilities. It’s true that such claims have gotten more expensive, but there have also been a sharp rise in serious care and safety violations in nursing homes – particularly in Florida. Most of those claims involved staff shortages and insufficient training, with three-fifths of those complaints prompted by inspector visits. In the last four years, the average number of severe violations at Florida nursing homes doubled to 81/annually.
So when nursing home and insurance lobbyists complain about the rising costs of nursing home litigation, perhaps the question should not be, “How can we reduce the number of lawsuits?” but rather, “How can we improve the quality of our patients’ care?”
The Florida Health Care Association released a statement when those figures came out saying the vast majority of the most serious violations involved a small percentage of all facilities. Analysis has shown nursing homes and long-term care centers with the most lawsuits also tend to have:
A longer list of prior quality of care deficiency citations.
- For-profit ownership. (About 90 percent of nursing homes in Florida are now for-profit – a significant shift from 3 decades ago, when they were mostly non-profit.)
- Fewer staffers.
- More residents.
- Affiliation with a large chain ownership.
If the FHCA’s statement is true, why should we be making it easier for those “bad apple” centers to be held accountable when someone dies in their care?
A spokeswoman for that same agency said that lawsuits against nursing homes “demoralize hard-working staff.” But what of the demoralization of patients who die when they don’t receive care that aligns with basic standards?
As it stands, surviving spouses and children of any age can file a lawsuit for nursing home deaths stemming from neglect, abuse, or negligence. Already, siblings, unmarried partners, nieces, nephews, grandchildren, and close friends are barred from pursuing legal claims on behalf of a loved one they believe has died due to poor nursing home care.
Another provision of the failed bill would have been to require a written affidavit from an expert witness with specific types of relevant experience to attest reasonable grounds for a case. Such experts could not testify on a contingency fee basis, meaning they’d have to be paid upfront for their time.
It’s worth noting that elder advocacy organizations like the AARP, ones that have no financial incentive one way or the other, came out swinging against this bill.
“Our interest is about protecting the personal rights of residents and their loved ones,” an AARP spokeswoman said.
Ideally, that would be everyone’s goal.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Suing Florida nursing homes for wrongful death will get harder if this bill passes, March 7, 2023, By Hannah Critchfield, Tampa Bay Times
More Blog Entries:
Report: Excess Nursing Home Deaths Increased by 1/3 Last Year, Aug. 14, 2021, South Florida Personal Injury Lawyer Blog