NURSING HOME TORT REFORM
DURING
THE 2001 SESSION
By Jodi L. Chase, Esq.
Special Counsel – Associated Industries of
Florida
and Owner & CEO – Jodi L. Chase, P.A.
If any sector of the law cried out for civil justice, or tort reform,
it was the nursing home law in Florida.
Several years ago the legislature gave nursing home residents special
rights. The rights are important to protect a vulnerable population. They
include such rights as the right to adequate and appropriate health care.
However, the legislature also granted broad authority to enforce those
rights in civil court and to collect damages for the infringement of
rights. It is the broad civil remedies that is to blame for the explosion
of nursing home litigation and caused the urgent need for reform.
The old law granted add-on fees to attorneys and allowed huge punitive
damages awards. It also was a strict liability statute so defendants had
little choice but to settle cases. All these problems mounted until
finally the system broke and liability insurers refused to cover nursing
homes.
Governor Jeb Bush appointed Lt. Governor Frank Brogan to chair a task
force charged with examining the broken system. Senate President John
McKay personally sat on the task force. These elected officials spent
months examining the problems and issues connected with long-term care and
decided the need for a fix was urgent.
Senator Virginia Brown-Waite is a hard-working compassionate member of
the Senate. She has never given nursing homes a sympathetic ear. She has
spent her career in public service defending the rights of the elderly.
She agreed to take on the challenge of crafting a fair long-term care
civil justice reform law.
AIF became involved in the issue for two principle reasons. One is
because of AIF’s historic expertise in civil justice issues. Second was
the need for Florida’s employers to have available as a benefit to their
employees long term care insurance. The current crisis in long term care
has made offering that benefit all but impossible.
The challenge issued to all parties involved was to craft a fair civil
justice reform law. One which clearly protected the rights of all nursing
home residents while providing just enough reform to bring insurance
coverage back to the state. Jodi Chase, lead lobbyist for AIF on this
issue met with Mr. Andy McCumber, a nursing home defense lawyer, and
several plaintiff’s lawyers. Senator Brown-Waite provided the discipline
and catalyst for negotiation and agreement. She made sure that the elderly
were represented by the AARP, that residents were represented by the
Florida Life Care Resident’s Association, and that all issues were
addressed in a fair manner. President McKay never wavered. He insisted on
a fair product. Governor Bush and Lt. Governor Brogan allowed the
legislature to do its work, but made sure the legislature knew of their
keen interest. The House, with the leadership of Speaker Tom Feeney
provided the last ingredient. The result is a tort reform law that will
work.
The details of the law are included below. The critical features are
abolition of add-on attorney fees, a negligence standard for all nursing
home litigation, an exclusive remedy, and caps on punitive damages.
LEGAL/INSURANCE REFORM FOR NURSING
HOMES AND ALFs
The following litigation reform provisions apply to claims that accrue
on or after May 15, 2001. (See punitive damage section for implementation
of that provision.)
Negligence Standard
This cause of action is the exclusive remedy
for a claim for resident’s rights violation or negligence.
Strict liability/negligence per se is
specifically replaced with a clearly drafted negligence standard.
Two standards of care will apply. One for a
reasonable person (which applies to non-professionals on staff), and a
professional standard for nursing staff. This brings us closer to the
medical malpractice standard of care.
Rights may only be enforced by injunction (no
damages) with a cap on attorney fees; no attorneys fees for personal
injury or death cases.
Plaintiff can no longer obtain double damages
when the resident dies. Claimant must elect one remedy.
Clarifies that a licensee is only responsible
for the administrative services of a medical director.
Noneconomic Damages / Arbitration
Does not include an arbitration process with
caps on noneconomic damages.
Does contain the following: medical malpractice
like presuit investigation process; mandatory mediation.
Punitive Damages
Contains the similar three tier punitive damage
limitations provided to all other businesses under the Tort Reform Act of
1999 with following significant exception: the first tier limit is 3 times
compensatory or $1 million instead of 3 times compensatory or $500,000,
(whichever is greater); and the second tier is 4 times compensatory or $4
million instead of 4 times compensatory or $2 million, (whichever is
greater). Like 1999 tort reform punitive damages are unlimited where there
was "specific intent to harm."
When punitive damages are awarded at the second
or third tier, the clerk of the court will refer the case to the
appropriate law enforcement agency for investigation.
The award of punitive damages will be divided
equally between claimant and a Quality Improvement Trust Fund.
The new punitive damage limitations applies to
claims that accrue after May 15, 2001. However, it will also apply to
claims that accrue before May 15, 2001 if the claim is filed on or after
October 5, 2001, to help address insurance "tail."
Statute of Limitations
Statute of limitations is 2 years with a 4-year
statute of repose and 6 years for claims that have fraud, fraudulent concealment, or intentional misrepresentation of fact which prevented discovery
of the injury (Underline areas different from current medical
malpractice statute).
A phase in of the two-year statute of
limitations exists to help with the insurance "tail."
Add-on Attorney Fees
Attorney’s fees and costs are repealed for
injury/death cases.
Attorney’s fees for claims that only have an
injunctive relief for an administrative remedy are capped at $25,000.
Chapter 415
Chapter 415 actions can not be brought against
the licensee or person or entity who establishes, controls, conducts,
manages or operates a long term care facility.
The facility is not vicariously liable for the
actions of workers under Chapter 415.
Jodi L. Chase,
Esquire, was the lead for Associated Industries of Florida (AIF) an,
indeed, the lead for the nursing home industry and the business community
on drafting and lobbying the passage of the tort reform aspects of nursing
home reform during the 2001 Session of the Florida Legislature. Ms.
Chase was tireless in her drafting and lobbying efforts, and worked days ,
nights and weekend in reaching consensus with the key legislators
regarding the passage of nursing home tort reform. Prior to the 2001
Session of the Legislature, the nursing home industry requested that
Associated Industries of Florida assume the responsibility for the tort
reform aspects of the entire nursing home reform movement. AIF
gladly accepted this responsibility because of the expertise we possess
through Ms. Chase and others in the tort reform era, and because we felt
good public policy dictated that there definitely needed to be tort
reform in this area of the law. Ms. Chase is a former Executive Vice
President & General Counsel of Associated Industries and is now the
owner & Chief Executive Officer of Jodi L. Chase, P.A. In
addition to tort reform, Ms. Chase is an acknowledged expert in health
care legislation.
AIF acknowledges and sincerely appreciated the tremendous efforts of
Governor Jeb Bush, Lt. Governor Frank Brogan, Speaker Tom Feeney, Senate
President John McKay, Representatives Carole Green, Allan Bense, Dudley
Goodlette, Jerry Maygarden, and Carlos Lacasa, also Senators Ginny
Brown-Waite, Burt Saunders, Jim King, Betty Holzendorf, Ron Silver, Jim
Horne, Durell Peaden and Jack Latvala in passing nursing home tort reform.
AIF also greatly appreciates the efforts of its 21 other lobbyists for
their support of Ms. Chase.
Jon L. Shebel
President & Chief Executive Officer
Associated Industries of Florida
