THE ASSERTION THAT THE ADOPTION OF "TORT REFORM" WILL DECREASE THE BURDEN OF LIABILITY INSURANCE PREMIUMS IS NOT FOUNDED ON GOOD EVIDENCE.  FOR INSTANCE, THE STATE OF TEXAS HAS HAD "TORT REFORM" FOR A NUMBER OF YEARS, AND IT HAS BEEN TIGHTENED SEVERAL TIMES.  NEVERTHELESS, THE INSURANCE PREMIUM HIKE THERE PARALLELS THE FLORIDA EXPERIENCE, INDICATING THAT THE REFORM HAS NOT SOLVED THE PROBLEM.

THE REFORM RECOMMENDED BY THE TASK FORCE STRIPS FLORIDA'S VERY VULNERABLE NURSING HOME RESIDENTS FROM MEANINGFUL PROTECTIONS
AND RIGHTS WHICH PRESENTLY EXIST, WITHOUT REQUIRING ANY IMPROVEMENT IN THE QUALITY OF CARE WHICH IS PRESENTLY PROVIDED IN FLORIDA'S NURSING HOMES.

FLORIDA'S NURSING HOMES ARE NEAR THE BOTTOM OF THE LIST IN TERMS OF CARE, AS DETERMINED BY A STUDY RELEASED FROM THE UNIVERSITY OF CALIFORNIA EARLY THIS YEAR, AND ANOTHER STUDY RECENTLY RELEASED IN WASHINGTON HAS UNDERSCORED THE DEGREE OF POOR CARE RENDERED TO NURSING HOME RESIDENTS THROUGHOUT THE UNITED STATES (INCLUDING FLORIDA). 

THE ONLY MEANINGFUL REDRESS FOR BAD CARE AND LACK OF GOOD CARE FOR A NURSING HOME RESIDENT HAS BEEN THE ABILITY TO HOLD THE NURSING HOME ACCOUNTABLE  VIA LITIGATION FOR VIOLATION OF A RESIDENT'S RIGHT TO CARE.

THE TASK FORCE RECOMMENDATIONS ADVERSELY IMPACTS THAT RIGHT IN THAT:
IT SIGNIFICANTLY RAISED THE COST OF BRING SUIT AGAINST A NURSING HOME;

IT SIGNIFICANTLY RAISES THE LEGAL STANDARD AS WELL AS THE BURDEN OF PROOF TO AN ALMOST UNATTAINABLE MARK;

IT SIGNIFICANTLY CURTAILS AN INJURED NURSING HOME RESIDENT'S ABILITY TO RECOVER BOTH ECONOMIC DAMAGES AND DAMAGES FOR PAIN AND SUFFERING BY SETTING ABSOLUTE AND ARBITRARY LIMITS;

IT PROVIDED THE NURSING HOME WITH A SIMPLE WAY TO AVOID ANY PUNITIVE DAMAGES SIMPLY BY OFFERING TO ARBITRATE THE CLAIM.  THIS "OPTING OUT" APPLIES NO MATTER HOW BAD THE CONDUCT OF THE NURSING HOME MIGHT BE, AND NO MATTER HOW SEVERELY INJURED THE RESIDENT MIGHT BE;  IN ESSENCE PUNITIVE DAMAGES WILL BE VIRTUALY ELIMINATED REGARDLESS OF THE EXTENT OF OUTRAGEOUS CONDUCT ON THE PART OF THE NURSING HOME; AND FINALLY

IT RE-DEFINES "NEGLIGENCE" TO BE A DEVIATION BY A FACILITY FROM A "PREVAILING STANDARD OF CARE" BY SIMILAR PROVIDERS -- IN OTHER WORDS, IF ALL NURSING HOMES ARE PROVIDING POOR CARE, THEN POOR CARE IS THE PREVAILING STANDARD AGAINST WHICH THE CARE IN ALL HOMES IS MEASURED.

THESE RECOMMENDATIONS ARE BAD, BAD, BAD !!!.

THE REAL ANSWER TO THIS PROBLEM IS TO IMPROVE THE QUALITY OF CARE.  PROVIDE MORE AND BETTER TRAINED STAFF TO MEET RESIDENT NEEDS, AND THE LAWSUITS WILL GO AWAY !!!

Attorney’s Fees:

• Eliminates automatic entitlement to recovery of attorney’s fees under Ch. 400.

• When a defendant refuses an offer by a claimant to arbitrate, the claimant shall recover up to 25% of the award, reduced to present value, for attorney’s fees.

• In cases submitted to arbitration, the defendant shall pay the claimant’s attorney’s fees up to 15% of the award, reduced to present value.

• Adopts the limitations on the amount and standard for recovery of punitive damages contained in the Civil Justice Reform Act enacted by the Legislature in 1999. 

• Caps punitive damages to three times compensatory damages or $500,000, whichever is less.

• Where the misconduct was motivated by unreasonable financial gain and the high likelihood of injury was known by the person responsible for making decisions on behalf of the defendant, such as the director or managing agent, punitive damages may not exceed the greater of four times compensatory damages or $2 million.

• Where the defendant had specific intent to cause the injury, there shall be no cap on punitive damages.

• Punitive damages may be imposed against an employer only when the employer actively participated in the misconduct, condoned or ratified the misconduct, or engaged in misconduct that contributed to the injury.

• Punitive damages may not be awarded where the parties agree to arbitrate the claim.

• A claimant who refuses a defendant’s offer to arbitrate may not recover punitive damages.

• Requires the clerk of court to forward to the state attorney’s office for investigation any action for long term care facility negligence in which punitive damages are awarded.

• In cases voluntarily submitted to binding arbitration of damages, caps non-economic damages to $250,000 per incident or $500,000 if the claimant proves intentional misconduct or gross negligence. 

• Provides that where a defendant refuses a claimant’s offer to voluntarily arbitrate, the case shall proceed to trial without limitation on non-economic damages. 

• Provides that where a claimant refuses a defendant’s offer to voluntarily arbitrate, non-economic damages not to exceed $350,000. 

• No cap on non-economic damages where neither the claimant nor defendant request arbitration.

• Allows either party to request voluntary binding arbitration of damages. 

• Permits the court, upon motion by either party, to order that the claim be submitted to non-binding arbitration. 

• In cases voluntarily submitted to binding arbitration of damages, caps non-economic damages to $250,000 per incident or $500,000 if the claimant proves intentional misconduct or gross negligence. 

• Provides that where a defendant refuses a claimant’s offer to voluntarily arbitrate, the case shall proceed to trial without limitation on non-economic damages and the claimant shall be entitled to recover prejudgment interest and reasonable attorney’s fees up to 25% award reduced to present value. 

• Provides that where a claimant refuses a defendant’s offer to voluntarily arbitrate, the damages awardable at trial shall be capped to net economic damages and non-economic damages shall not exceed $350,000. 

• Punitive damages may not be awarded where the parties agree to arbitrate the claim.

• In cases submitted to arbitration, the defendant shall pay the claimant’s attorney’s fees up to 15% of the award, reduced to present value.

• Reduced statute of limitations from 4 years to 2 years.

• For claims that have already accrued, the claim must be filed within 2 years of the effective date of the act.

• Defines "long term health care facility negligence" as a deviation by a long term care facility of the prevailing professional standard of care for a similar long term health care provider which proximately causes injury or death to a resident, or a deprivation of the resident’s statutory rights. 

• Provides that a violation of a resident’s rights shall be evidence of long term care facility negligence.

• Defines a managed risk agreement as an agreement between a resident and a long term health care facility, approved by a medical doctor, which sets forth the resident care plan and service plan and consequences and inherent risks likely to result from changes to the care or service plan. Allows a long term health care facility to introduce evidence that a managed risk agreement was entered into by a resident and the facility and that it was properly implemented and maintained by the facility. 

• Protects a long term health care facility from liability for the consequences of a decision by a resident to refuse or modify care or services, so long as the resident is informed of the consequences, as required under s. 400.022(k). 

• Adopts current law that a long term health care facility shall not be liable for the negligence of a physician rendering medical care. Expressly provides that limitation of liability does not limit the right of a patient bring an action for medical negligence against a physician under the medical malpractice statute. 

• In actions involving the death of a resident, allows a personal representative of a decedent’s estate to recover for the decedent’s pain and suffering before death.

• Allows minor children and a surviving spouse of a deceased resident, and if there is no surviving spouse, all children, regardless of age, to recover for mental pain and suffering.

• Adopts relevant litigation reforms contained in the medical malpractice statute. 

• Requires that a notice of claim be provided to a potential defendant 90 days before suit is filed.

• Requires that before sending a notice of claim, a claimant must conduct a pre-suit investigation to ascertain whether there are reasonable grounds to assert a claim. In claims involving injury or death, the pre-suit investigation includes obtaining a verified medical opinion corroborating the existence of reasonable grounds to bring the claim.

• Requires that during the 90 days after the notice of claim is mailed, the insurer for the defendant must complete a pre-suit investigation. At the end of the 90 day period, the insurer must reject the claim, make a settlement offer, or admit liability and request arbitration. 

• Requires that during the pre-suit investigation period, the claimant and defendant provide relevant medical records upon request by the other party.

• Excludes from discovery and admission into evidence any statements, reports or other documents generated by the pre-suit investigation process. 

• Allows both the claimant and defendant to file a motion in circuit court asking the court to determine whether there exists a reasonable basis for the opposing party’s claim or denial. 

Within 90 days of receiving a notice of claim, allows a defendant who has a good faith basis to believe that it had no legal duty to the claimant to file an action in circuit court to contest the lack of duty.