Struggle's success lies in striking a balance

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By HOWARD TROXLER

© St. Petersburg Times, published February 3, 2001

Not accustomed to nursing homes, I stood in the chapel for an extra second, trying to figure out what was amiss. Janet Keller recognized the look on my face.

"No pews," she offered gently. "See, they bring their own chairs."

Keller and her colleague, Luanne Reese, were showing me around Bon Secours Maria Manor. Maybe you've seen it -- it's that brick building on the northwest corner of Gandy Boulevard and Fourth Street N in St. Petersburg.

We saw the dining rooms, the beauty parlor and the ice cream store. In the main room, residents had wheeled in to hear a live trio of keyboard, sax and bass guitar. Jimmy Buffett night is another popular draw. (Real happy hours, too.)

Some residents were in their beds, by choice or necessity, as we passed by the semiprivate rooms. In the secure Alzheimer's wing, residents strolled the halls -- they like to walk -- past a watchful staff. Their expressions ranged from smiles to frustration.

Keller and Reese could not have been better hosts. But their expressions, too, turned unhappy when we returned to the subject at hand, namely, nursing home lawsuits.

This is shaping up as one of the big issues in the 2001 Legislature, which convenes next month. Gov. Jeb Bush and many lawmakers want to make it tougher to sue and win big.

"I'm getting really used to being deposed," sighed Keller, the assistant administrator. She said Bon Secours often is "tagged on" to lawsuits when residents arrive from other homes.

Reese, the marketing director, rattled off statistics. Compared to the nation, Florida nursing homes are three times more likely to be sued and pay insurance premiums eight times as much. Many insurers have pulled out.

Bon Secours Maria Manor is owned by a not-for-profit, which answers to the order of nuns by the same name (Bon Secours means "good help"). It has not lost any big judgments and prides itself on staffing and care. Still, Bon Secours strongly supports the industry's fight.

"In some cases, the lawyers are right," Reese admitted. "The care in question (at a few homes) was horrific. The nursing home industry has never said, "We don't want patients to have the right to sue.' "

But lawyers who specialize in nursing home cases say this "reform" is exactly about taking away the right to sue.

Steve Vancore is a lawyer for the firm of Wilkes & McHugh, a champion of nursing home law. He told me if the Legislature limits punitive damages, and caps pain and suffering awards, few if any lawsuits would be worth it.

That's because of a harsh fact: If a young person dies, a spouse and family may be deprived of a lifetime of earnings. That justifies an award of economic damages. But in nursing home cases, the focus is on punitive and non-economic damages.

It is easy to frame this debate with horror stories. Untreated bedsores. Patients lying in their own waste. Rapes. Vancore told me about for-profit companies that blew millions on parties and fat paychecks for officers, then filed for Chapter 11 and complained about being unable to afford $8-an-hour nursing assistants. I heard the anger in his voice, and I felt it, too.

"Labor is the key in nursing homes," Vancore said. "Turning. Feeding. Grooming. Giving water. Sitting up." A nursing home is not a hospital and should not be able to use a hospital's level of legal protections, he said.

We should not have a law that lets people harass an order of nuns for running a good nursing home. But neither can we tolerate a law that makes it impossible to sue when somebody's mother is bitten to death by ants in her bed.

So far, the Legislature has operated on the belief that the public buys the "greedy lawyer" spin. But if lawmakers go even a little too far, they will be reminded of a basic fact -- all voters either have relatives in nursing homes, or figure on growing old themselves one day.

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