Nursing home liability
© St. Petersburg Times, published February 12, 2001
The politically charged issue of nursing-home liability promises to ignite a fierce battle when the Florida Legislature convenes in Tallahassee next month and lawmakers start choosing sides between trial lawyers and the nursing home industry. That's not surprising, given how deeply the issue touches both lives and livelihoods. But lawmakers have a duty to put aside emotion and dispassionately sort out the problems.
Where should they start? With the findings of the task force they created last session.
That task force, chaired by Lt. Gov. Frank Brogan, has taken some well-deserved heat for not making final recommendations, but its staff has produced hundreds of pages of facts that can help sort out why even Florida's best nursing homes are having trouble finding insurance. While nursing homes and residents' lawyers continue to point fingers only at each other, the taxpayer-funded report makes a contribution by documenting that many complex factors have played a role. After reading it, lawmakers should be fired up about one thing: Fixing what ails Florida's nursing homes will take balance and moderation, not a mob mentality.
The staff report confirms what industry representatives have been warning: that the long-term care liability market is in bad shape -- and getting worse. Nearly two dozen insurers have left the state, and premiums have increased, in some cases dramatically, as has the number of homes deciding to "go bare."
Yet, even that dire situation has to be viewed in context. These insurance stresses may be more severe here, but they are not unique to Florida. Every insurer leaving the state has done so as part of a broader, national strategy. The unpredictability of claims -- combined with insurer inexperience and the failure of many homes to heed insurers' preference for strong risk-management -- may all account for the exodus, according to staff. Insurers told the task force that Florida should not expect companies to return to the state or premiums to fall for years, no matter what solutions lawmakers may implement.
That caveat alone should make lawmakers hesitant to institute radical changes, but there's even more to give lawmakers pause. The report places a good share of blame on the original harbinger of bad news: the nursing-home industry itself. Over the last decade, staffing and training in Florida's nursing homes have not increased sufficiently to meet the needs of residents, most of whom now enter homes older and sicker than those 10 years ago. The percent of homes cited for nursing staff deficiencies has more than doubled since 1993, sending Florida to the bottom among all states in that category in 1998. While state comparisons are admittedly hampered by enforcement variations, the evidence is clear that inadequate staffing has proved a major problem in Florida.
The industry would like to blame all of its hiring failures and financial troubles -- including the recent wave of bankruptcies -- on low public reimbursement and high lawsuit payouts. But that position is as simplistic as it is self-serving. According to staff, homes helped precipitate the bankruptcies with overly aggressive business decisions made when Medicare was an open spigot. Current Medicaid rates, while low, are not so inadequate as to be the primary source of the demise.
Still, runaway claims and verdicts are among the culprits, according to staff. While some evidence suggests that the number of lawsuits may be declining, most experts agree that Florida homes have been sued more often than those in other states, with average claims two-and-a-half times larger. Yet, even that conclusion comes with a critical staff caveat: Those lawsuits are not frivolous but, rather, allege serious harm or death caused by nursing-home negligence.
There is much clarification, and caution, to be drawn from the staff's facts, and they deserve to gather steam, not dust, as the nursing-home debate moves forward. Using them, lawmakers would be wise to give homes more money and obligation for additional staff -- and to make lawsuits fairer and more predictable, perhaps by capping attorneys fees paid by homes that meet the new staffing levels or by using punitive-damage awards to pay for Medicaid adjustments. But the solutions lawmakers craft should be as moderate as the facts are nuanced -- and as broad as the facts suggest the culpability has been.
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