Florida's nursing home reform and its anticipated effect on litigation.

• Author: Manos, Tom J.

The Florida Legislature recently amended Florida's nursing home statute (1) to address many of the controversial issues pertaining to nursing home care that the state has been grappling with for almost 20 years. Patients' advocates and plaintiffs' attorneys have often taken the position that the state's administrative policing of nursing homes has been ineffectual. Their argument is fueled by horror stories of abuse and neglect that have occurred at some facilities. These advocates believe that the courts are the only effective means of forcing nursing homes to provide quality care, and assert that large punitive verdicts are the only message corporate officers will understand. (2)

In response to these large verdicts and numerous frivolous suits, the nursing home industry began to pull out of Florida, and many insurance companies stopped writing liability policies for Florida nursing homes altogether. (3) This was happening at a time when the need for nursing homes in Florida was greater than ever and continuing to increase. (4) Often, even nonmeritorious suits against nursing homes would be difficult to defend because of the sensitive and inflammatory subject matter, and many of these suits resulted in disproportionate jury awards. (5) Plaintiffs' attorneys tended to paint the picture of "the evil nursing home that abused poor grandma or grandpa, putting profits over patient well-being." Consequently, nursing homes became an easy target as the scapegoat for juries who wanted to find someone to punish for the regrettable fact that we all grow old. (6) The reality is that a large number of nursing homes in Florida have themselves been victimized and are losing money. (7)

The statutory reform attempts to solve the problem on two fronts: first, by trying to improve the care itself; and second, by trying to level the litigation playing field by discouraging frivolous suits and restricting unbridled punitive verdicts. (8) Toward the first goal, the statute contains many new administrative requirements, standards, and enforcement provisions that must be implemented by nursing homes immediately. This article, however, will focus only on the second goal, which concerns litigation reform and how these statutory changes are likely to affect claims and damage awards.

Background

In 1980, a Dade County grand jury conducted an investigation and issued a report regarding nightmarish deficiencies in many South Florida nursing homes. (9) In response to this report and accompanying public outcry, the Florida Legislature enacted Ch. 400.022 which contained a list of "residents' rights" intended to protect nursing home residents from abuses. The enactment of these residents' rights, however, did not have much effect because the statute contained no enforcement provision.

In 1993, the legislature amended the statute to include Ch. 400.023, which provides a civil remedy enabling residents or their representatives to sue for violations of their residents' rights. Although well-intended, this civil remedy provision opened the floodgates and countless lawsuits followed. (10) Nursing homes became an easy target because of the broad wording of the statute in conjunction with the lure of unlimited compensatory and punitive damages, and attorneys' fees. (11) Often the afflictions experienced by residents were not due to any negligence or misconduct, but were due to the frail medical condition of patients who were at the end of life. (12) Nevertheless, these cases tended to have large exposure due to the sensitive subject matter. The exponential increases in lawsuits and verdicts led to what many commentators referred to as the "nursing home crisis." (13)

In the 2000 session, the legislature created a task force to assess this "crisis" and look into the current long-term care system in terms of the availability of alternatives to nursing homes, the quality of care in nursing homes, and the impact of lawsuits against nursing homes and other long-term care facilities on the costs of care and the financial stability of the long-term care industry. (14) The task force submitted an extensive report to the legislature detailing the problems. This report, in conjunction with a report prepared by the staff of the Committee on Health, Aging, and Long-term Care, resulted in the current statutory reforms. (15)

The resulting statute contains significant administrative changes and tackles several legal issues that have been in a state of flux in various Florida courts. The statute also answers many questions that have been the subject of debate between plaintiffs' attorneys and defense attorneys for years. (16)

New Statutory Provisions

* Claims Maintained Regardless of Whether Death Resulted from Deprivation of Residents' Rights, but Plaintiff Must Elect Survival Damages or Wrongful Death Damages

Previously, the statute only allowed the personal representative of a deceased nursing home resident to bring a claim alleging a deprivation of the resident's rights if the deprivation caused the resident's death. (17) In other words, if a resident's rights were violated but he later died of unrelated causes, a Ch. 400 claim could not be maintained. The Survival Statute (18) did not apply to Ch. 400 claims. The new statute allows for the personal representative of a nursing home resident to bring a cause of action regardless of whether the resident's death resulted from a deprivation of his resident's rights.

In effect, this new statutory provision reverses Beverly Enterprises v. Knowles, 766 So. 2d 335 (Fla. 4th DCA 2000), (19) in which the Fourth DCA reinforced the previous statutory language that a Ch. 400 claim may only be brought if the resident's death resulted from a deprivation of his or her rights. The new statute, however, allows the resident's rights claim to survive but imposes certain limitations on the type of damages that can be claimed. (20)

The new statute also addresses the hotly debated issue of whether damages in a Ch. 400 claim are limited to those enumerated under the Wrongful Death Act. (21) Previously, there was a conflict in the courts on whether the personal representative of a nursing home resident could recover damages for the decedent's pain and suffering. The Fifth DCA held in Beverly Enterprises-Florida, Inc. v. Spilman, 661 So. 2d 867 (Fla. 5th DCA 1995), that damages are not limited to those enumerated under the Wrongful Death Act, and a personal representative may recover for the deceased resident's pre-death pain and suffering.

Conversely, in First Healthcare Corp. v. Hamilton, 740 So. 2d 1189 (Fla. 4th DCA 1999), the court held, in direct conflict with Spilman, that the personal representative of a deceased resident may not recover damages for the decedent's pre-death pain and suffering, and that damages are limited to those enumerated under the Wrongful Death Act. The Third DCA followed Spilman in deciding Somberg v. Florida Convalescent, Ctr., 2001 Fla. App. Lexis 3500 (Fla. 3d DCA March 21, 2001). The new statute resolves this issue on causes of action that accrue on or after May 15, 2001, by providing that either wrongful death damages or survival damages may be sought, but not both.

If the action is for a violation of a resident's rights or for negligence that caused the death of the resident, the claimant must now elect either survival damages pursuant to [section] 46.021 or wrongful death damages pursuant to [section] 768.21. (22) In other words, the personal representative may either recover: 1) on behalf of the estate, economic damages and noneconomic damages for the resident's pain and suffering from the time of injury until the resident's death (survival damages); or 2) economic damages for the estate and noneconomic damages for the pain and suffering of the deceased resident's survivors (wrongful death damages). (23)

On the other hand, if a plaintiff alleges a violation of resident's rights or negligence that did not cause the resident's death, and the resident subsequently died of some other cause, the personal representative may recover survival damages for the negligence that caused the resident's injury. (24)

In enacting this new provision, it appears that the legislature was trying to remedy an anomaly inherent in the previous statutory language. The wording in the old statute denied redress under Ch. 400 to an entire class of residents whose rights were violated, but who happened to die of other causes. In essence, the statute would allow nursing homes to escape liability if they were "lucky enough" for the resident to die of some other cause before he or she could sue them. Because most nursing home residents are significantly advanced in age, the previous provision would significantly limit the claims that could be maintained under Ch. 400. (25) The reformed statute does away with this defensive loophole by allowing the claim to be brought even after the resident dies, regardless of the cause of death.

The requirement that a plaintiff must choose between survival damages and wrongful death damages is apparently intended to limit the amount of compensatory damages. In most instances, a plaintiffs attorney might elect survival damages if the resident experienced pain and suffering from the time of the injury until death, simply because his or her personal suffering would be worth more than the vicarious suffering of the family for that injury. It might be different, however, if a resident's rights were violated but he or she could not personally experience the suffering because he or she was in a coma or was cognitively impaired. In such a case, the family would probably suffer more than the resident, and it would make more sense to elect wrongful death damages to recover for the family's pain and suffering. Another scenario might be where the resident died instantaneously from a deprivation of his or her rights and did not suffer any pain. Here again, it would make more sense for a...