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In a reversal that has stunned the plaintiff bar, the Florida chapter of AARP, the powerful senior lobbying group, has declared its support of caps on pain and suffering damages in abuse and neglect lawsuits against Florida nursing homes. Last year, AARP bused hundreds of senior citizens wearing AARP T-shirts to state legislative hearings on the issue in Tallahassee. 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 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 plaintiff 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’s 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. 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 in 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. State Rep. Dudley Goodlette, R-Naples, chair 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 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 AHCA, 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. But Florida nursing homes have argued that there still are too many lawsuits and big judgments against them, and that liability insurance remains hard to obtain and too expensive. Last year, House Speaker Johnnie Byrd, R-Plant City, and Senate President Jim King, R-Jacksonville, appointed a Joint Select Committee on Nursing Homes to examine whether the 2001 law was effective and whether more legislation was needed. When some Republican lawmakers last year proposed caps on compensatory damages of $250,000 if a case goes to arbitration and $350,000 if a case goes to trial, the Florida AARP chapter joined forces with the plaintiff bar and the Coalition to Protect Florida Elders to oppose such legislation. But in July, Bodiford met with representatives of the trial lawyers group and Wilkes & McHugh, a Tampa-based plaintiff firm that focuses on nursing home suits. “She said, ‘We want you to know we are reconsidering our position,’ ” said Wilkes & McHugh lobbyist Steve Vancore. “ I was a little taken aback.” Bodiford said AARP changed its view after learning that many nursing homes were hiding their assets to avoid liability claims. In addition, many nursing homes have been carrying little or no liability coverage, despite the 2001 law’s requirement that all facilities carry coverage. Also, AARP was concerned that while overall care is improving at nursing homes, some facilities are still out of compliance on staffing levels and other state requirements. “We were finding that things are getting worse, not better,” she said. Some plaintiff lawyers are questioning why AARP would support additional tort relief for nursing homes when the 2001 law has not yet been fully implemented and when the insurance industry said it would take several years for the beneficial effects of the changes on insurance availability and affordability to be felt. Implementation of one crucial part of that law, to increase staffing levels, was postponed until 2004 due to concerns that it would increase state Medicaid outlays. When that provision is implemented, it will reduce litigation by improving quality of care, said Barbara Hengstebeck of the Coalition to Protect Florida Elders, a nonprofit organization that is funded by trial lawyer Jim Wilkes. “We’re only two years into this,” she said. “We need to see it through to the end. Why would we go back and consider more protection for the nursing homes and take away more legal rights of residents when they haven’t even gotten what they wanted yet — more staffing increases? It’s premature to start negotiations again.” Frank Petosa, chair of the Academy of Florida Trial Lawyers nursing home task force, said the AHCA report showed that the law has succeeded in reducing suits. But AARP’s Bodiford said she found it “virtually impossible” to draw any conclusions from that report. The drop in lawsuits, she said, could be attributed to the fact that more nursing homes are buying token amounts of insurance and hiding their assets. How much impact will the AARP’s new position on caps have on the legislative debate in Tallahassee next year? “Clearly, AARP is an essential participant and I’m anxious to hear what their position is,” Rep. Goodlette said. “But I’m not suggesting we’re going to defer to AARP. Just because they get together with the nursing homes and present something would not translate into a done deal.”

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