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New Law for Florida Nursing Homes?

The industry for Florida nursing homes is going through rough times that might lead to what is to come in the future for long term care nursing homes throughout the United States.

This is how things began with Florida nursing homes: It all started with too much litigation, this led to fee provisions for Florida nursing home attorneys which in turn carried huge fees to attorneys no matter how small the settlement. This caused the next reaction: insanely high insurance rates for nursing homes in Florida. It all ended with lots of Florida assisted living facilities having to go bankrupt and the possibly close their doors. Due to all of this:

  • Nursing homes in Florida have been sued more than nursing homes in any other states.
  • On average the number of claims against nursing homes in Florida came to 2 1/2 times more than the average number of claims in all of the other states.
  • On average the cost of liability for each Florida nursing home was approximately 8 times more than the national average.

Florida's Governor signed into law, a legislation that brought new nursing home and long-term healthcare reforms, to help curb some of these issues. These reforms were a great beginning but the nursing home care industry has much more to accomplish before certain problems just go away.

The first reforms in nursing homes that were brought to the Florida Senate resembled the state's statute for medical malpractice, including placing a ceiling on non-economic issues, using medical malpractice exemptions for cases of wrongful death so that the children of residents in a nursing home would not have the ability to recover and to get rid of punitive damages for good. Although the final reform proposed ended up being a saturated version of the reforms that came before it, excluding many of the major changes that it had initially planned on implementing. But new long-term healthcare reforms are helping to steer the process in the right direction and will hopefully help to raise the quality of care and reduce the amount of litigations there are against Florida state nursing homes.

Within all types of reforms the most important litigation changes were limited to:

  • Punitive damages
  • Elimination of access to attorneys' fees
  • Reduction to the statute of limitations and required pre-suit mediation

On top of the changes to litigation, Florida healthcare home reform has also been helping to better the level of care by drastically raising staffing levels and the requirements they have while training, raising regulations for oversights and making it mandatory that nursing homes implement programs for risk management. Although the importance of raising the quality of care by improving standards should not be taken lightly, the point of this article will be on the big legal differences that have been implemented to long-term care nursing homes. For example:

No longer will there be attorneys' fee provisions that were awarded to hordes of attorneys in the past. This amount was normally way above the actual recovery record. It did not matter how small the violation or how small the award for damages, an attorney could collect fees that were found by calculating tons of hours of legal work. It was not at all odd to see small damages awarded and then accompanied by a huge award to the attorneys.

New reforms to Florida nursing homes get rid of the attorneys' fee provision for instances where death or injury occur. Prior to this coming into effect, a lawyer would just easily need to prove a violation had occurred compared to the state's Patients's Bill of Rights that allowed the person to take an award of attorneys' fees that were much more then the initial award that was recovered.

Due to these new reforms, a plaintiff's attorneys' fees will now be paid as a % of the initial recovery, like many other cases of personal injury. The consequence of this being that they will be paid from the initial damages awarded rather than a fee that was added to the those initial damages. Since doing away with the attorneys' fee provision, many attorneys will now question whether or not to pursue any legal action that will not pay out well in the end like they may have in the past.

Now, the new reform for punitive damages follows a three-tiered approach as opposed to the past when there was no limit if the defendant's conduct met certain requirements.

The first tier will limit damages to $1 million or 3 times the compensatory damages amount, it just depends on which one is larger, in instances where an employer was involved in any way.

The second tier will limit damages to $4 million or 4 times the compensatory damages amount, again it depends on which one is larger, if the motivation of the defendant was motivated only by unreasonable financial gain and this was known by the managing officer or agent.

The third and last tier is for punitive damages with no limit and applies when the defendant has specific intent to hurt the claimant.

Although, the industry has placed a "concession" where any punitive damages awarded is to be divided between the plaintiff and a state's Long-Term Care Facility Improvement Trust Fund.

This new reform has also put into place a 2 year statute of limitations and places standards for negligence in Florida nursing home lawsuits. It also has set a standard for any in Florida nursing home negligence. Before that reform the statue was four years and under no circumstance may an action be followed by more than 4 years from when the incident occurred. Currently there is also a 6 year statute of limitations on any case where it is alleged that any wrongful conduct has gone unnoticed due to fraud.

Put into place with this new reform was a negligence cause of action for any injuries, death or a violation of rights and then also puts forth criteria as to why the cause to action was established. Therefore to establish this a resident must prove:

  • A duty was owed to the resident by the defendant.
  • The duty was breached by the defendant.
  • The duty that was breached was the legal cause of damages to the resident.
  • A loss was sustained by the resident due to the breach.

This new bill clarifies that any injuries must be a direct result of the Florida nursing homes' negligence.

A required part of the new reform is notification. It is required that a 75 day pre-suit notice be issued and procedures to investigate any alleged violations of resident right or negligence resulting in death or personal injury. These statues somewhat go together with Florida nursing homes medical malpractice laws.

To help promote alternatives to dispute resolution and to alleviate pressure on Florida's court system, pre-suit mediation is now required and is to be finished within 105 days after the notice is sent out.

This required provisions above should help "weed" out the cases of less merit and help provide earlier settlements in the cases with more merit. This should help to ensure that attorneys know their case before filing a suit.

The game might be over be we still have not seen or not reforms will help to result in a drop in litigation and insurance premiums in Florida nursing homes. The implementing of these reforms will help us to know whether or not Florida nursing home regulations can stop this vicious cycle before it goes nation wide.

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