GAINING MOMENTUM FOR TORT REFORM A MESSAGE FROM OUR Parlimentarian

robin khanal , Partner, Quintairos, Prieto, Wood, & Boyer, P.A.

As you know, tort reform is an issue very near and dear to my heart, as well as the hearts of most Florida providers. The stars have aligned this year to bring about some tort reform opportunities; after 20 years, we may have an opportunity to get relief for businesses who pay thousands if not millions of dollars each year for insurance protection from frivolous lawsuits.

This session, we made enormous progress when we worked with Rep. Randy Maggard (R-54) and Sen. Colleen Burton (R-12) to file bills that contain language seeking to provide assistance to Florida’s ALF providers. FSLA, Argentum, FHCA and Leading Age banded together and asked legislators to pass legislation that would provide protections for senior living communities.

Our bills focus on reasonable, measured statutory changes based on existing statutory protections for nursing homes. For example, an important procedural safeguard would ensure initial claims are focused on those directly at fault. Rather than allowing trial attorneys to manufacture settlement leverage by including land and building owners and passive investors as named respondents, our bills propose relying on the existing statutory structure used by nursing homes, where the initial pleading is focused on a specified class of persons (e.g., the licensee, management company, managing employees, and direct caregivers). Additional people may subsequently be added upon a reasonable showing of a negligent breach of duty of care. Passive investors would have no liability.

Our proposed legislation also seeks to specify how claims for damages are heard and selected. Currently, trial attorneys often file a bare-bones affidavit asking for punitive damages, which can again manufacture settlement leverage. However, our bills would again look to the existing statutory structure for nursing homes. In those cases, a court would hold a hearing to determine whether there is sufficient admissible evidence, thus ensuring there is a reasonable basis to believe punitive damages would be warranted. We are also exploring the protections offered to hospitals, physicians and other health care providers to see what additional procedural safeguards would be appropriate for ALFs. For example, some of the addition items we are exploring include the medical negligence protections of limiting non-economic damages awardable to independent adult children; strengthening the expertise and experience requirements necessary to qualify as an expert witness; and prohibiting the use of previous, unrelated AHCA surveys to establish general wrongdoings unrelated to cases involving nursing homes and ALFs.

When we started this effort, we knew bills like these might take time. These measures will be fought tooth and nail by the trial bar because we are effectively challenging their ability to make a living off our situation. But when something is this important, you have to stand up and make a valiant effort. And that’s what we’re doing this legislative session because our providers have been telling us enough is enough.

Over the past few years, lawsuits and/or settlements have increased, and some have negatively impacted our residents. Our seniors should be able to age in place without being forced into a higher level of care because of a lawsuit. For example, a community may be obliged to discharge a resident who suffers from frequent falls, even if they offer to sign a waiver.

Trial attorneys have deep pockets and will spend countless dollars to thwart our efforts. Aside from lining their own pockets, trial attorneys’ tactics punish ALFs by driving insurance costs up with each forced settlement. This has the cyclical effect of leading to even more lawsuits and litigation costs, which can divert financial resources from resident care, staff salaries, quality programs and much more. It may even have the abhorrent effect of raising resident rates - meaning current residents may no longer be able to afford to stay in their current ALF homes.

In March, the legislature passed a general tort reform bill that would make substantive changes to how lawsuits are filed and litigated and allowing good claims to move forward. These reforms make our economy more competitive and Florida more affordable for our citizens and businesses. This bill doesn’t specifically help ALFs and may even drive unscrupulous attorneys to focus on ALFs for even more litigation since other avenues may no longer be available. Nevertheless, it is a step in the right direction and may ultimately help us to get legislation to benefit ALF providers.

Our commitment to our providers and members is that if we are not successful in passing our ALF tort reform legislation this session, we will keep coming back. It may take some time, but it will be time well spent.

Gail Matillo, MPA President & CEO

Jason Hand, Esq.

VP Public Policy and Legal Affairs

Sheri LeaJean

Director of Education & Sponsorships

Meredith Van Valkenburgh, MSAFA, CGB, CPM Project Director

Kristin Quirk Membership Director

Jimmie Fay Griffin, LPN Accounting & Membership Manager

John Henry Pitts, Jr. Business Development Director

Katherine Upton Operations Coordinator

Fsla Executive Board Of Directors

Chair: Shelley Esden

President and CEO

Sonata Senior Living

Past Chair: Melinda Skirvin

Vice President

Five Star Senior Living

Past Chair Emeritus:

Mary Sue Patchett

Vice Chair: Jay Thomas

Asst. General Counsel – Ops

Atria Senior Living

Secretary: Joe Jedlowski

President

Distinctive Senior Living

Treasurer: Chris Callahan

Regional Director of Operations

Brookdale Senior Living

Parliamentarian: Robin Khanal, Esq. Quintarios, Prieto, Wood & Boyer, P.A. Industry Partner Committee Chair: Matt Depenbrock

Director of Business Development

Guardian Pharmacy

Education Committee Chair: Marisa Strain

Director of Quality Assurance

SRI Management

Membership Committee Chair: Krone Weidler

Principal Cadre Healthcare Realty Advisors

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ENGAGE, Volume 1, Issue 4 is published quarterly by Florida Senior Living Association, 2292 Wednesday Street, Suite 1, Tallahassee, Florida, 32308. Florida Senior Living member companies receive subscriptions for communities as part of their membership. Free controlled subscriptions are also available to qualified individuals in the senior living business.

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Featured on the cover: Leadership FSLA’s Inaugural Class decends upon the Capitol to meet with legislators and talk about topics important to assisted living in Florida.

Photo Credit: Katie Truelove | ktcreative, LLC