LAW SUITS: Fighting Back.

In Florida--"ground zero" for nursing home litigation--this defense attorney has found an answer

Nursing homes, adult living facilities and other long-term care institutions have seen a steep increase in negligence lawsuits during the past decade. At the same time, nursing home operators in our area, and perhaps throughout the nation, have made great strides in reducing the already low incidence of actual cases of neglect or abuse.

What accounts for this discrepancy? Clearly, a significant factor has been the passage of state statutes that allow plaintiffs' attorneys to collect legal fees should a nursing home be found to have violated a resident's rights. In states like Florida, these well-intentioned statutes have led to the filing of far more lawsuits, which are having a cumulative detrimental impact on the long-term care industry.

Aggressive plaintiffs' attorneys now advertise their services to residents and families and even solicit clients within facilities. Then, by alleging a violation of a resident's legal rights, a skilled plaintiffs attorney can successfully appeal to the emotions of jury members. In response, damages against nursing homes in the $15- to $20-million range have been awarded.

In contrast, attorneys' fees are usually not a factor in simple negligence cases, and any damage awards tend to be far smaller. For example, an elderly resident who breaks a hip in a fall might already be confined to a wheelchair and suffer no additional loss of mobility. These types of cases have traditionally been less attractive to plaintiffs' attorneys.

The upsurge of rights-related lawsuits in the 1990s is one reason some nursing home operators have faced financial difficulties or have even been forced to file for protection from creditors. The current legal climate has also made it much harder for nursing homes in general to find liability coverage at an affordable price. Unfortunately, the higher costs of litigation and insurance ultimately must be passed along to residents and their families, whether in higher private-pay per diems or in industry pressure for higher Medicaid rates.

The number of these lawsuits in Florida has been rising swiftly since the state legislature in 1987 enacted a statute known as Chapter 400. This statute contains provisions designed to protect nursing home residents and consists of an itemized, comprehensive list of various protections of civil and religious beliefs, as well as financial protections, privacy protections, protection from abuse and other general safeguards.

Chapter 400 originated from an earlier Dade County Grand Jury report that described serious abuses and deficiencies in some Florida nursing homes. A legislative subcommittee report at the time of the law's enactment pointed to extremely serious health hazards, such as vermin in patients' beds and insects in their food. It also cited inadequate or inattentive staffing patterns, patients' loneliness and fear in a hostile environment, an overall lack of respect for the dignity of residents, and the use of physical and chemical restraints.

While it is clearly necessary to protect elderly residents -- who might be too weak and infirm to protect themselves -- from abuses of this nature, this legal protection should be made available in a responsible, constructive and productive manner.

More to the point, although Florida's Chapter 400 contains no provision specifically holding nursing homes liable for slips or falls, plaintiffs' attorneys often attempt to file claims on behalf of residents by pointing to the statute's broad language, which includes the right to receive "adequate and appropriate health care and services."

A recent decision in the Florida courts, however, could help to curb overaggressive litigation that alleges a violation of a resident's rights.

In this case, staff had identified an 85-year-old resident at a Florida facility as someone at risk of falling. She had been admitted to the facility to recover from a broken hip suffered from a fall at home. Approximately one month after her admission, a nurse at the facility saw her trying to get out of her bed and reminded her to stay put. The nurse then left the room. About 15 minutes later, the resident was found on the floor, suffering from slight injuries. Not long afterward, she and her family filed a lawsuit in State Court alleging that the nursing home violated her resident rights as defined by Chapter 400.

We raised the issue of whether this was the type of abusive or neglectful situation that would involve Chapter 400 or whether this was, at most, a case of ordinary negligence. The answer was critical because, if the case were to be governed by Chapter 400, then the resident's attorney would likely be entitled to recover attorneys' fees if a violation were found to exist.

In 1999 and, perhaps, for the first time in Florida, the court ruled that a "fall" case in a nursing home was at most a matter of negligence and not one governed by Chapter 400. This ruling, while not a binding case precedent, is certainly persuasive on other courts considering this issue. In defending this facility, our firm successfully argued that a resident's fall was simply not the type of abuse that Chapter 400 was designed to ward off and protect against. We are aggressively pursuing this defense and working to develop case law in this area.

Florida's Chapter 400 is patterned after New York State's nursing home statute. In interpreting the New York statute, courts have held that falls by nursing home residents do not constitute a violation of the state's nursing home residential rights statute. The Florida ruling provides a consistent interpretation that might be helpful to nursing homes in other states seeking to defend themselves against comparable lawsuits.

A similar analogy involves hospital patients who get out of bed and fall in their room or a corridor. The courts have regularly held that these cases are matters of simple negligence, not medical malpractice.

It is our belief that nursing homes, assisted living facilities and other institutions should be aware of the defenses now available against overaggressive plaintiffs' litigation. Facility operators should also look for opportunities to amend state statutes and reduce the overaggressive filing of rights-oriented lawsuits. Knowledge and action are the keys to creating a more stable financial situation for nursing home operators, and to best serving the long-term interests of residents and their families.

Richard P. Cole is managing partner at Cole White & Billbrough, PA, a Miami and West Palm Beach, Florida, law firm that provides litigation and advisory services to nursing homes and other healthcare clients.