Nursing Home Industry Should Heal Itself, Says Elderly Care Task Force Member From Freidin and Brown, P.A.

Business Editors/Government, Legal & Medical Writers

MIAMI--(BUSINESS WIRE)--May 2, 2001

As the legislative session nears its climax, the nursing home industry has found it easier to blame trial lawyers rather than face the real sources of the industry's problems, says Philip Freidin, who recently served on the Legislative Task Force on the Availability and Affordability of Long-Term Care of the Elderly. In the opinion piece that follows, Freidin and Manuel L. Dobrinsky, partners in the Miami law firm Freidin & Brown, P.A., said lower Medicaid reimbursements and tax breaks at the expense of needed services are putting patients at risk. Trial lawyers, they say, are simply the messengers.

Mr. Freidin also served on the Governor's Task Force for Elderly Abuse Prevention. Mr. Dobrinsky speaks frequently on elder care issues. Both represent nursing home patients and their families.

Mr. Freidin is also vice chair of the Florida Supreme Court Judicial Nominating Commission, was chair of the Florida Bar Judicial Nominating Commission Institute, and chaired the 11th Circuit Judicial Nominating Commission. He is also the former president of the Academy of Florida Trial Lawyers.

The text of the opinion piece follows:

By Phil Freidin and Manuel Dobrinsky (Contact info below):

As the Florida Legislature moves this week to curb nursing home patients' rights for redress, the insurance lobby has succeeded in creating two easy villains - the tort system and lawyers who represent patients' families. The insurance industry has threatened to stop insuring nursing homes, which have reacted by threatening to leave the State of Florida. Both blame trial lawyers; neither will take any responsibility.

If lawsuits are the problem, then why can't the hundreds of nursing homes with near-perfect, suit-free records get reasonable coverage? Why aren't they angry with insurance companies for leaving them bare? It is plain that the insurance industry deliberately has made the situation so intolerable that the nursing home industry as a whole - good operators and bad - reacts in the expected Pavlovian way: blame the lawyers.

If the intent is to protect nursing homes without concern for the residents' well-being, limiting damages is an answer. If the goal, however, is to provide quality care for nursing home residents, curbing damages will only make matters worse.

In litigating these cases, we have found that poor care is a direct result of understaffing, caused by decreased government reimbursement and nursing homes' attempt to protect their profit margins. A study by the South Florida Sun-Sentinel and the Orlando Sentinel recently showed that "for profit" nursing homes in South Florida averaged twice as many citations for falling below acceptable standards as their nonprofit counterparts. One nursing home was fined $170 million for fraudulently billing Medicare for care it did not provide. Big fines divert nursing homes' resources from providing good care. So: Blame the lawyers.

The industry's problems result not from lawsuits but from its quest for profits at the expense of quality care for our frailest citizens. We have seen ulcers to the bone, death from malnutrition and dehydration, even the occasional cockroach in the bed sore. Should this happen in America? Should it happen in institutions paid handsomely to provide this care?

To our knowledge, in the last decade punitive damages against the nursing homes have been awarded in only 10 cases. Did such awards - which the insurance industry would like you to think "frivolous" - result from a faulty legal system, or from a group of jurors who were rightfully repelled? (Even last week, none of the insurance industry's 150 lobbyists or their legislative spear carriers could give an example of a "frivolous" nursing home suit.) Rather than solve the issue, limiting lawsuits will more likely merely embolden the worst of the nursing home corporations to simply cut staffing further and thereby place residents in harm's way.

Instead of cursing lawyers - the messengers of this mess - ask why so many nursing homes permit such horrors. If infants died of bedsores and lack of food and water, the public would demand prosecution. Is it our prejudice against the elderly that makes the problem so easy to overlook until it gets to jury?

The real problem is a severe lack of quality care. Take care of the residents, and lawsuits will drop. Confronted with outrages, jurors react as most of us would - with outrage.

Quality of care is a matter of caring and money. We believe that most employees in nursing homes care about their patients. They are, however, under-trained, understaffed, underpaid, overworked, and just plain worn out. In 1997, Congress changed the method of Medicaid reimbursements for nursing home residents to combat rampant fraud. This reduced the amount of money available to the nursing homes for resident care. It is no coincidence that the number of suits then shot up to their highest level. At the same time, some big nursing home chains were spending money on things other than health care. One CEO who drove his chain into bankruptcy got an $55 million severance package. He was listed in Forbes Magazine as one of the most overpaid executives in America.

There is an illness here. The nursing home industry is sick and needs financial help. Unfortunately, we have a legislature and a governor determined to cut taxes for those most able to pay them, thus creating a shortfall for our elderly sick population. So rather than diagnose and cure the illness, the industry reacts by silencing its critics. And who are bigger critics than the lawyers who seek to hold them accountable?

Freidin & Brown, P.A., One Biscayne Tower, Suite 3100, 2 S. Biscayne Blvd., Miami, Fla. 33131, phone [phone]. [e-mail]

EDITORS NOTE: Contact Mark Sell at [e-mail] before May

3rd for 300 dpi JPEG photos of Authors.