“Tort Reform” and the Nursing Home Industry: Bad Public Policy Puts Profits Over Safety
Recently, there has been news and debate over nursing home legislation. Over the past few years, nursing home neglect made its way into the public domain as The Miami Herald and other news outlets exposed the state of affairs in many of Florida’s nursing homes and assisted living facilities (“ALFs”). Today, as I write this, there is legislation proposed in Tallahassee that seeks to increase government regulation of nursing homes with the hope of making nursing homes safer, cleaner, and more accountable. Despite the legislation’s good intentions, the Florida legislature is likely to let if fail.
In truth, the problem with nursing home safety and accountability has a much easier, less costly, and less bureaucratic solution than granting more power to the state’s Agency for Health Care Administration: our civil justice system. If we really want to improve the conditions at nursing homes and ALFs, the solution is simple: (a) eliminate the pervasive arbitration provisions nursing homes and ALFs require of their residents that extinguish the residents’ rights to jury trials in negligence cases and seek to cap damages against nursing homes; (b) require nursing homes and ALFs to carry a minimum of $5 million of liability insurance; (c) eliminate the shell game of corporate ownership at nursing homes and ALFs so that anyone who owns or operates such a facility is subject to liability for their nursing home’s/ALF’s negligence and for any attempt to put profits over safety; (d) create an enforceable attorney’s fee provision for all cases against nursing homes and ALFs; (e) eliminate any damages caps, including punitive damage caps, that might ever apply to the negligent (or worse) conduct of nursing home or ALF facilities. Our state’s trial bar and civil jury pool can and would fix this problem in a hurry.
Over the past decade or so, the “tort reformers” have successfully diluted the power of residents and their families to address and correct the nursing home/ALF situation. And this year is no exception. Instead of creating more accountability, the current legislature is on the brink of sending Governor Scott (who is sure to sign it) a bill that creates additional hurdles for residents, and more protection for negligent facilities. The nursing home lobbyists’ main talking point focuses on what the nursing home industry calls “predatory trial lawyers.”
The attack on trial lawyers, the politically motivated effort to weaken the trial bar’s financial ability to participate in the political process, and the corporate motivations for enhanced profits have, for the time being, limited the justice system’s ability to hold negligent nursing homes and ALF’s accountable for their misdeeds. The result: Florida is losing its most potent tool for curbing negligent and wayward conduct on the part of Florida’s nursing homes and ALFs.
Those “predatory trial lawyers” would, if given the chance, prey on the negligence and unbridled greed that causes the current culture of neglect and danger at so many nursing homes and ALFs across the state. That is exactly why the industry disdains the trial bar. No one likes being held financially accountable. Putting the state, or any of its bureaucratic agencies, in the position of accomplishing the task is not the best solution. Nor is the continued destruction of residents’ rights to bring civil lawsuits before juries in the name of “tort reform.” Florida is a haven for seniors. They deserve better.