Nursing Home Law Update: This year the Florida Legislature passed SB 670, (Staff Analysis here) which, if signed into law by Governor Scott, would change the way nursing home residents and their families can sue bad nursing homes for abuse. Here’s this is important:
1. Florida has a higher percentage of people over 65 (and thus likely nursing home patients) than the US average; and
2. Florida is no stranger to enormous, and even ginormous verdicts against nursing homes.
This legislation does the following important things:
1. Exempts “passive investors” from liability for suits against the nursing home;
2. Requires a plaintiff to show he judge “admissible evidence” prior to being able to seek punitive damages; and
3. Loosens the requirements on who may request medical records from the nursing home, to include children, spouse, and parent of the resident.
Here’s why this matters:
”Passive investors” and insurance:
Nursing homes companies have, over the years, found increasingly complicated ways of disconnecting their pots of money (i.e. profit) from their operations of the actual homes in an effort to limit their liability should they get sued. One of the most important cases in nursing home litigation is Estate of Canavan v. National Healthcare, where the court held that the resident could go after Roger Friedbauer, the home’s owner, who had put several corporations between himself and the nursing home. Obviously nursing home owners don’t want to be exposed to liability every time someone is injured inside their facilities.
But don’t these nursing homes have insurance? Well, some homes do and some don’t. The larger chains are sometimes “self insured”, while the smaller chains buy insurance policies with very low limits, such as $50,000 per incident. While that may seem like a lot of money, remember that $50,000 doesn’t go very far in paying for surgery to repair a broken hip, or any type of extended hospital stay after a nursing home injury.
What’s more, many nursing homes get insurance policies that have what’s called “wasting limits”. What that means is the $50,000 can either go to pay the resident for an injury or to pay the attorneys defending the nursing home. As you can imagine, lawyers for the nursing home can burn through that money pretty fast. Here’s an example – let’s say the nursing home has two lawyers working on its case, at a rate of $175 / hour. In 200 hours of working together they’d burn through all the available insurance money, leaving none to pay a settlement or a judgment. If you want more info on wasting policies (or need a sleep aide), read more here.
Nursing homes are frequently the subject of punitive damages claims by injured residents or their families. As the law stands now, no one can just say they’re entitled to claim punitive damages out of the gate – they have to ask the judge for permission to add a punitive damages claim to their complaint. The way they do this is by proffering evidence, such as documents, testimony, photographs, expert opinions, etc., to the court.
By requiring a proffer of “admissible evidence” the new law imposes a greater burden on nursing home residents than plaintiffs in other negligence actions. Other plaintiffs wouldn’t have to meet the “admissibility” test – one typically reserved for introducing evidence at trial – in submitting their evidence to the court. In reality, this law puts another procedural hurdle in front of judges, and makes them rule on what is, and is not, admissible evidence far in advance of trial.
Who can request medical records:
The one benefit of this legislation is that is allows the children or spouse to request the medical records of a deceased resident without forcing them to set up an estate and get appointed as its personal representative.