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Miami-In a reversal that has stunned the plaintiffs’ bar, the Florida chapter of AARP, the powerful senior lobbying group, has declared its support for caps on pain and suffering damages in abuse and neglect lawsuits against Florida nursing homes. Last year, the American Association of Retired Persons bused hundreds of senior citizens wearing AARP T-shirts to state legislative hearings on the issue in Tallahassee, Fla. The group was instrumental in defeating efforts by the nursing home and insurance industries to impose pain and suffering damage caps. In 2001, the Florida Legislature granted major tort relief to nursing homes, including caps on punitive damages. But nursing home operators said it wasn’t enough. Lyn Bodiford, lobbyist for AARP’s Florida chapter, said AARP has now decided to work with the nursing home industry on legislation to cap damages for pain and suffering in lawsuits against nursing homes, improve the quality of care, require facilities to maintain assets so patients and their families can recover in case of liability and force chronically poor nursing homes out of business. No dollar figure for the cap has yet been discussed, she said. “[The nursing home industry] has made some proposals to us and we hope to come to an agreement on a complete package,” she said. The Florida plaintiffs’ bar expressed dismay over the shift of AARP, which claims 2.6 million members in Florida. AARP’s surprise support for the Medicare overhaul legislation in Congress was credited with enabling congressional Republican leaders to ram the massive bill through in almost complete secrecy last month. It is thought that AARP’s support could be pivotal in winning passage of nursing home tort relief in the 2004 legislative session. “It’s disappointing that AARP has aligned themselves with nursing homes rather than with the families,” said Frank Petosa, who chairs the Academy of Florida Trial Lawyers’ nursing home task force. “I’m wondering about what kind of message AARP is sending to its members by taking this position of limiting residents’ rights.” The position of the Florida chapter of AARP also has set off waves among AARP chapters across the country. AARP of Arkansas got calls from concerned state legislators after being sent published reports that AARP Florida was siding with the nursing home industry. The head of AARP Florida has had to send memos to all other AARP offices explaining the chapter’s position, said Mark Johnson, a spokesman for AARP Arkansas. AARP Arkansas has fought against caps on nursing home lawsuits, including the $1 million cap on punitive damages imposed by legislators last year. The Arkansas Constitution prohibits caps on compensatory damages. “We are against giving any more tort immunity to nursing homes,” Johnson said. “A lot of people are against trial lawyers, but we think the system of legal redress works.” The president of the New Jersey chapter of AARP also came out strongly against caps on nursing home lawsuits. In a published letter in October, Marilyn Askin said “the potential threat of appropriate economic consequences serves as a deterrent against neglect and abuse of frail elderly patients residing in nursing homes.” Outside of punitive damages, which have been capped, pain and suffering damages are the only real remedy for injured nursing home residents and their families who sue. That’s because there generally are no significant economic damages in such cases. Florida state Representative Dudley Goodlette, R-Naples, chairman of the select committee on nursing homes, said it is too early to tell whether his panel would sponsor nursing home legislation in 2004. The committee, he said, will hear from various parties, including state insurance regulators, at a series of hearings before making that determination. “There may be a need for legislation in the event there is a lack of affordable insurance for nursing homes or there is a quality-of-care issue or they are going bare or there is no recourse to injured persons,” Goodlette said. “That’s what we’re going to find out.” In 2001, the Florida Legislature passed a law that limited punitive damages and eliminated the requirement that the loser pay the winner’s legal fees in lawsuits against nursing homes. In addition to capping punitive damages generally at the higher of $1 million or three times the compensatory damages in most cases, it raised the standard of proof in abuse and neglect cases by requiring that the plaintiff prove a conscious disregard of life, health or safety or intentional misconduct. The bill also mandated a higher level of staffing. Last week, the state Agency for Healthcare Administration issued a report suggesting that the 2001 law has succeeded in reducing lawsuits. According to the agency, an average of seven abuse and neglect lawsuits were filed each month between June and October 2003. During the same period of 2002, an average of 26 complaints were filed each month.

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