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While the nursing home industry presses Florida lawmakers for new restrictions on patient lawsuits, the Florida Supreme Court has rejected the industry’s latest legal attempt to block patients and their families from suing facilities for abuse and neglect. Earlier this month, the high court ruled unanimously that plaintiffs in abuse and neglect cases are not required to file medical malpractice claims, but can sue the facilities for wrongful death and negligence by citing the Nursing Home Residents’ Bill of Rights statute. The ruling potentially affects thousands of cases that were filed before the Florida Legislature changed the nursing home liability law in May 2001. In a controversial set of revisions, the Legislature gave nursing homes greater protection against patient lawsuits, while stiffening requirements for nursing home staffing and quality of care. The new law explicitly stated that nursing homes are governed by a standard of care separate from that governing medical care, and that lawsuits against nursing homes do not qualify as medical malpractice claims. The industry is seeking additional liability protections in the coming legislative session. Had the court sided with the nursing homes, plaintiffs would have been required to fulfill the pre-suit requirements under the state’s medical malpractice statute, including allowing the defendants to opt for arbitration. A ruling in favor of the industry’s position also would have barred adult children of nursing home residents from collecting damages for their own pain and suffering in wrongful-death cases, said Susan Morrison, a senior attorney at Wilkes & McHugh in Tampa, Fla., who argued the appeal on behalf of the widow of a deceased nursing home resident. That would have greatly reduced the financial appeal of such cases for plaintiff attorneys, given that the adult children then would only be able to recover damages for funeral expenses and outstanding medical bills. “The supreme court has clearly mandated that nursing home cases are nursing home cases — not medical malpractice cases,” Morrison said. But nursing home defense attorney Andrew McCumber, who handled the Florida Supreme Court case with Scott Mager on behalf of one of the defendant nursing homes, argued that the medical malpractice statute should apply to nursing home lawsuits because the claims leveled against the facilities are essentially malpractice allegations directed at the registered nurses employed there. McCumber said the ruling would exacerbate the problems nursing homes throughout the state are facing in obtaining affordable liability coverage. “This decision ensures that we’re going to continue to see losses paid out on old claims that are excessive,” said McCumber, a partner at Quintairos, McCumber, Prieto, Wood, Boyer & Mager in Tampa. The Florida Supreme Court’s ruling stems from a case involving 92-year-old Albert Redway, who was suffering from diabetes, pneumonia and heart problems when he died at a St. Petersburg, Fla., nursing home in April 1998. In the seven months before his death, Redway had been living at two different nursing homes operated by Integrated Health Care Services and Bon Secours Maria Manor Nursing Center. During his stays there, he developed gangrenous bedsores and had to have his left leg and right toe amputated. In 2000, Redway’s widow, Pauline Lang-Redway, filed suit against the two facilities in Pinellas Circuit Court. The lawsuit claimed they violated her husband’s right to adequate care under the Florida Nursing Home Residents’ Bill of Rights. The suit also sought damages for negligence and wrongful death. Lang-Redway alleged that her husband died because the nursing staff failed to prevent her husband’s pressure sores or properly treat them. She also claimed the facilities failed to maintain accurate medical records, to monitor his nutritional intake and to protect him from slip-and-falls. The suit did not name individual nurses or doctors. Integrated Health, a national nursing home chain that subsequently filed for bankruptcy, and Bon Secours, a nonprofit facility, sought to dismiss the complaint on the basis that Lang-Redway’s allegations actually constituted a medical malpractice claim. Part of the complaint alleged that registered nurses employed by the facilities failed to properly diagnose and treat Redway’s wounds. Because treating wounds is essentially a nursing function, and nurses are listed as “health care providers” liable under the medical malpractice statute, the defendants argued that Redway’s case should be dismissed because his wife did not fulfill the pre-suit requirements of a medical malpractice claim. Plaintiffs filing a medical malpractice claim must prove that a health care provider deviated from the standard of medical practice. Under Florida Statute 766, they are required to produce a letter from a medical expert attesting that the claim has merit and serve defendants with a notice of intent 90 days before filing suit. During the 90-day period, the parties in a malpractice case exchange discovery, and defendants can choose to waive liability and enter into arbitration, giving them the benefit of a $250,000 cap on pain and suffering damages. If the plaintiff does not accept arbitration, the noneconomic damages are capped at $350,000. At the time Lang-Redway filed her complaint, there were no such arbitration provisions under the nursing home statute. This process for filing malpractice claims was enacted in 1988 to encourage early settlements and weed out frivolous complaints. The arbitration provision, however, is rarely used because doctors and hospitals generally refuse to concede liability. SKIRTING STIFFER REQUIREMENTS In contrast, Chapter 400 of the Florida Statute sets out 22 basic standards that nursing homes are required to provide their residents, including “the right to receive adequate and appropriate health care and protective and support services.” Since 1980, plaintiffs and their families have been able to seek damages for violation of these standards and collect attorney fees if they win. In the Redway case, the nursing homes argued that by alleging a violation of residents’ rights rather than malpractice, Redway’s wife was trying to skirt the more stringent pre-suit requirements of filing a medical malpractice claim and the options it provided the defendants. The Florida Supreme Court held, however, that Lang-Redway could pursue her action without fulfilling the pre-suit requirements or proving deviation from standard practice under the medical malpractice statute. In a decision written by retiring Justice Leander Shaw Jr., the high court ruled that because the Legislature had established different guidelines for filing suit under the Chapter 400 nursing home statute and under the Chapter 766 medical malpractice statute, the two types of lawsuits were entirely separate. “As section 400.022 provides its own standard of care, the medical negligence standard of care and corresponding pre-suit requirements of chapter 766 are inapplicable,” the court wrote. The case was remanded to the trial court. The court’s ruling upheld a 2001 decision by the 2nd District Court of Appeal, which had certified the question as one of great public importance. The 2nd District Court of Appeal had affirmed a decision from the trial judge, Pinellas Circuit Judge David Walker, who denied the nursing homes’ motion to dismiss the case in June 2000. NURSING HOME FILINGS DOWN Under the new nursing home law enacted last year, the Legislature required plaintiffs in abuse and neglect cases to serve notice on defendants with a description of the allegations and to wait 75 days before filing suit. Unlike in medical malpractice cases, however, the defendant cannot choose arbitration, but can agree to mediation or a quick settlement based on the discovery. The Legislature also capped punitive damages in abuse and neglect suits at $1 million or three times the compensatory damage award, whichever was higher. In addition, it eliminated the requirement that losing defendants had to pay the winning party’s legal fees in addition to the judgment. Moreover, the law raised the standard of proof by requiring the plaintiff to prove a conscious disregard of life, health or safety. Before, plaintiffs only had to show the nursing home had violated the resident’s right to adequate care. Since passage of the new law, filings of abuse and neglect lawsuits have declined sharply. Monthly reports from the Florida Agency for Health Care Administration show that from September 2001 to September 2002, lawsuit filings dropped by 80 percent. Steve Vancore, a lobbyist for Wilkes & McHugh, attributes the decline to the new law’s quality of care provisions, which sharply increased minimum staffing levels at nursing homes. BIG DIFFERENCE IN CARE While nursing home industry advocates continue to argue that Chapter 400 singles out nursing homes for no legitimate reason, plaintiffs’ attorneys maintain there are big differences between nursing home abuse and neglect actions and malpractice claims that warrant two separate forms of litigation. In nursing homes, they note, residents receive a mixture of care that is more custodial than medical and curative. And much of the care is provided not by physicians and registered nurses but rather by nursing home aides, who are not professionals that can be sued for malpractice. Most nursing home abuse and neglect lawsuits involve claims of dehydration and malnutrition, bedsores and fractures — all problems that fall under the purview of the nursing home aides, not the registered nurses who oversee the aides’ care. “It’s difficult to extricate an isolated incident of medical malpractice from a team effort to provide support in daily living,” Morrison said. “It’s not really medical malpractice, it’s chronic neglect. Just because there are medical consequences doesn’t mean it’s medical malpractice.”

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