With Florida's nursing home industry in a financial crisis, Gov. Jeb Bush says he may call lawmakers back in special session if necessary.
By JO BECKER
© St. Petersburg Times, published March 29, 2000
TALLAHASSEE -- Warning that the state's nursing home industry is in crisis, Gov. Jeb Bush indicated Tuesday that he may call a special session if lawmakers can't find a fix before they go home in May.
Some 123 Florida nursing homes, or 20 percent of the state's 82,000 nursing home beds, are operating under Chapter 11 bankruptcy. Over the past year, seven national nursing home chains have filed for Chapter 11.
Bush wants to increase the rates paid to nursing homes to treat poor patients under the state's Medicaid program. One of the problems facing the industry has been deep cuts in federal Medicare reimbursement rates.
Florida's nursing home industry is looking to the Legislature for a different solution.
The industry, which plans a rally today at the Capitol, urged lawmakers Tuesday to make it more difficult for nursing home residents to sue over poor treatment and care. It also launched a television campaign attacking the lawyers who have successfully sued the industry for millions in recent years.
Industry members point out that companies willing to provide legal liability insurance to nursing homes are fleeing the state and premiums are rising. They recently formed "Campaign to Protect Our Parents" and have raised the specter of mass nursing home closings.
"If we destroy nursing homes, where are the elderly going to live?" asked Barbara Alford, a registered nurse who belongs to the industry's lobbying group, the Florida Health Care Association.
Although Bush thinks the high costs of litigation are a problem, he did not take a firm stand Tuesday on the question of limiting lawsuits against the industry. Instead, he said he hoped for consensus among nursing homes, insurance companies and lawyers.
"This is the kind of thing that might come back in a special session," Bush said.
House Speaker John Thrasher has been supportive of limiting nursing homes' legal liability, but Senate President Toni Jennings is not yet ready to sign off on the idea. Jennings said the issue is complex.
"No one's skirts are clean," Jennings said. "If you are going to change people's rights, when you're talking about people who have died or are incapacitated and can't take care of themselves, you need to be very careful how you do it. I'm not sure a quick fix is in the offing."
Advocates for the elderly and lawyers who oppose limits on lawsuits plan to pressure legislators, many of whom are running for election in November.
Industry opponents say the problems of several nursing homes that have filed for bankruptcy have nothing to do with lawsuits.
For instance, earlier this month the Justice Department announced it is seeking more than $1.3-billion from Vencor, alleging the company had defrauded the government. Last year, Forbes magazine listed Integrated Health Services' chief executive officer as one of the most overpaid executives in America, saying he earned $44-million over the previous five years. The company declared bankruptcy in February.
As for the lawsuits: "We find it extremely disingenuous for the nursing home industry to blame an epidemic of litigation for putting residents' quality of life in jeopardy," said Sarah Greene Burger, the executive director of the National Citizens' Coalition for Nursing Home Reform.
"In fact, it is rampant abuses of quality of life and care in nursing homes in Florida . . . that have forced families to turn to the courts for justice," she said.
The Coalition to Protect America's Elders, a group affiliated with Tampa lawyer Jim Wilkes, plans to hold a "wrongful death memorial" today at the Capitol.
No one epitomizes the industry's dislike of lawyers more than Wilkes, who has piled up a string of multimillion-dollar verdicts on behalf of his clients. One year ago, he won a record judgment of $15.2-million for the estate of a man who suffered 30 falls while at a Tampa nursing home, developed pressure ulcers, went into shock because of infection and ultimately died of emaciation and malnutrition.
Ed Towey, who heads the nursing home industry's association, acknowledged that other factors have contributed to the nursing homes' financial woes. But he said that "under-reimbursements and oversuing" have packed a devastating one-two punch.
The industry argues that Wilkes and others have abused a state law that gives special rights to nursing home patients. It allows attorneys to sue when those rights are violated and to collect fees over and above whatever damages are awarded. An industry study found that Florida nursing homes are sued more often than the national average and pay more than twice the national average to defend and settle lawsuits.
Towey wants to force attorneys to file suits dealing with medically related problems under the state's medical malpractice law.
"We think that's a fair compromise," said Towey.
Lawyers who file suits against the industry say the medical community already has carved out special protections in malpractice law that, if applied to nursing homes, would make it nearly impossible to sue.
For instance, a defendant faced with a medical malpractice suit can simply admit mistakes and automatically cap damages at $350,000.
Under the state's medical malpractice law, adult children of a patient who dies from poor medical treatment cannot sue. That provision would be especially helpful to nursing homes, since many elderly nursing home residents do not have a surviving spouse or young children.
From the standpoint of legal liability, it would be better for the nursing home if a patient dies, said Debra Henley, the deputy executive director of the Academy of Florida Trial Lawyers.
"The bottom line is, do you want a resident to have rights, and if so, do you want them to be enforceable?" Henley said. "Because if they do this, the rights aren't going to be enforceable and we're going to have a more dangerous situation than we already have today."