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Proposed bill limits who may sue Florida nursing homes for wrongful death of a loved one

South Florida Sun Sentinel - 2/28/2023

Adult offspring and other family members could be prohibited from suing a nursing home or assisted living facility for the wrongful death of a loved one under a proposed bill by a Pasco County legislator.

Rep. Randy Maggard (R-Dade City) filed HB 1029 last week, a far-reaching bill that would, among other changes, limit claims against long-term care facilities in Florida to only a living spouse or offspring younger than 25 — mirroring a Florida statute that applies to the medical profession.

The proposed law comes as Florida nursing homes are seeing a spike in violations and complaints. The Tampa Bay Times reported in early February that incidents have nearly doubled in Florida nursing homes since 2019. Last year, Florida nursing homes were cited 83 times for putting their residents at risk of immediate danger, according to the media outlet. Citations by Florida’s Agency for Health Care Administration stemmed from issues including neglect, abuse and poor care. During the pandemic, Florida lawmakers gave the industry immunity from liability for COVID-19 deaths and infections, a provision that remains in effect.

Senior advocates say the bill, if passed, would benefit long-term care owners at the expense of vulnerable seniors.

“We are absolutely concerned about any legislation that would restrict access to the courts when a nursing home or any health care facility causes the death of one of its residents through neglect, abuse or failure to provide proper care,” said Zayne Smith, director of advocacy for AARP Florida. “We have to be able to hold nursing homes accountable.”

Lawyers who sue long-term care facilities say their clients want to get justice for parents or relatives who died due to negligence. In Florida, an estimated 200,000 seniors live in long-term care facilities.

“Just about every elder abuse case in Florida is brought by the surviving adult children of the deceased elderly victim,” said Michael Brevda, managing partner of Senior Justice Law Firm, a Florida-based firm focused on nursing home abuse and neglect litigation. “Rarely is there a surviving spouse or a child under the age of 25. Under the proposed law, a nursing home could literally kill a patient and get away with it scot-free in about 90% of cases.”

Blair Mendes, an attorney with Mendes, Reins & Wilander in Tampa, said he has many “serious cases” and that most of his clients are adult children of residents.

“What lawmakers should be doing is protecting the vulnerable population in Florida and not out-of-state nursing home owners,” Mendes said.

On Tuesday, Maggard did not return requests for comment on his legislation. However, the industry has been dealing with financial pressures and seeking government relief. Staffing struggles in the low-paying industry had been a concern before the pandemic and has become even more of a problem in the past few years.

In response, Florida signed a new law in 2022 that cut the time certified nursing assistants must spend with residents, allowing non-nursing direct care staff to supplement the required care mandates.

Brevda said with staffing shortages, “this is the worst time to insulate the for-profit nursing home corporations from accountability.”

Wrongful death claims are a deterrent to bad behavior, he said. The only other deterrent is a fine from the Agency for Health Care Administration (AHCA). “When they find a deficiency, AHCA will occasionally issue a fine of $1,000, $1,500 maybe $2,000 ... that’s a drop in the bucket for these owners.”

In addition, Maggard’s proposed legislation includes new requirements for what can be admitted in evidence in lawsuits against long-term care facilities and restricts who can testify as expert witnesses.

The Florida Health Care Association, an advocacy group for long-term care providers, supports Maggard’s proposed law.

“Too often, lawsuits demoralize hard-working staff and divert resources that otherwise could be used to invest in quality care for our vulnerable residents,” said Kristen Knapp, communications director. “This bill will help bring equity to the long-term care sector, and we thank Rep. Maggard for recognizing that this ‘sue-to-settle’ climate hampers efforts to provide the best care that our residents need and deserve.”

Sun Sentinel health reporter Cindy Goodman can be reached at cgoodman@sunsentinel.com.

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