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Tuesday, Sep 23, 2014
Editorials

Obstacle to justice for nursing patients

Published:

A bill moving through the state Senate attempts to shield corporate owners from punitive damages that might be awarded when nursing homes are sued for neglect.

It requires the parties suing to show conclusive evidence of abuse before proceeding with a claim for punitive damages, raising the legal requirement that now exists.

Supporters say the new rules would level the playing field when nursing homes are sued by predatory lawyers. Opponents say the bill would make it more difficult for families to get their full measure of justice when abuse occurs.

Although we acknowledge litigation is sometimes motivated by greed, the changes being proposed in SB 1384 swing too far in favor of nursing home owners who might be undeserving of protection. It should not become law.

Efforts to change the rules involving negligence claims are nothing new in Tallahassee. Nursing home owners say the expense of fending off frivolous litigation makes care more expensive for their patents and their families. It is understandable why they want relief.

But punitive damages are a necessary deterrent for bad behavior, particularly when it involves the care of our most vulnerable population. Unlike compensatory damages, which calculate the loss and expense suffered by victims, punitive damages are meant to punish reprehensible conduct and to deter its reoccurrence.

Under the bill being proposed, only nursing home owners found to have “actively and knowingly participated in intentional misconduct” would be liable for punitive damages. That would reward an owner’s ignorance of their own operations.

Families also would face a higher standard before proceeding with a punitive claim. Under current law, parties seeking punitive damages must make a “reasonable showing” of the evidence supporting their claim before being allowed to proceed. The bill accelerates the process for parties seeking punitive damages by forcing them to provide “clear and convincing” evidence before being allowed to pursue a claim for punitive damages.

There are roughly 680 nursing homes in the state caring for an estimated 72,000 residents. Abuse is not the norm, but when it does occur the patients and families who suffer should not face legal obstacles in their pursuit of justice.

When the elderly are abused, and families seek compensatory damages from those responsible, the judgments can be limited by the victim’s incapacitation. Punitive damages are the clear and imminent threat that gets the attention of the nursing home operators and owners.

Raising the bar for the families who are suing, and giving nursing home owners an incentive to plead ignorance, should not be written into law.

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