By Guest Blogger - Gregg Johnson
As the average age of our population increases, long term nursing home care has become an important consideration for many Florida families. Unfortunately, for many Florida nursing home residents, substandard nursing home care has also become the rule rather than the exception.
In 2007, Florida had 657 certified nursing homes. Of those 657 facilities, 97% were found by the State of Florida to have “some deficiencies”, with 8.2% of all Florida nursing homes containing “serious” deficiencies. [1]
As a needed supplement to sometimes inadequate government regulation, Florida plaintiffs attorneys have been able to pursue the worst offending nursing homes on behalf of injured residents. However, pursuing a nursing home for negligence or medical malpractice by nursing home physicians has always been an expensive proposition. Recently, nursing home facilities have thrown up yet another impediment to residents seeking to hold them accountable for inadequate care: insufficient or, in some cases, a complete lack of liability insurance.
Many facilities are going completely bare of insurance. Others maintain ridiculously low insurance limits with those limits sometimes inclusive of payment for costs of defense. This type in insurance is known as a “wasteing” policy. For the average plaintiff and his attorney, this means that by the time the case is even investigated by the defense attorney, there is no money left to satisfy any judgment against the nursing home, regardless of how egregious the negligence by the facility may have been. As an alternative, Plaintiffs can look to corporate assets of the nursing home to cover a judgment. However, the corporate assets are usually shielded by corporate structures designed to both minimize the assets available to the facilities creditors and also to make it appear as if the facility is barely generating a profit.
These decisions appear to be a deliberate attempt by nursing homes to discourage people, usually their own residents, from bringing claims against the facility for injury or death caused by negligence. Such a lack of financial responsibility on the part of nursing homes makes it very difficult for lawyers who typically operate under contingency arrangements with their clients to invest their time and money into a complex litigation against an uninsured entity.
Defense attorneys argue that plaintiffs’ lawyers and frivolous lawsuits against nursing homes have caused insurance premiums to rise so much that the facilities can no longer afford coverage. However, studies have shown that rising insurance premiums are more a function of business cycles that affect the insurance industry generally, a lack of regulation of the price of nursing home liability policies, poor- quality care at the facilities, and a lack of appropriate risk-management programs that are standard at other health care facilities. See full report: Center for Medicare Advocacy, Tort Reform and Nursing Homes (2005).
Physicians that practice within Florida are required by law to maintain minimum amounts of malpractice insurance. However, there is currently no minimum amount of insurance required of the nursing homes that primarily care for some of Florida’s most vulnerable and precious citizens. Nevertheless, despite the mounting evidence that the lack of insurance is dissuading accountability, the Florida legislature has not acted to rectify the situation. In fact, while hospitals and other health care facilities have suffered drastic government subsidy cuts, nursing homes have been spared the budget ax. See story: Budget Deal a Winner for Nursing Homes. It is time for the Florida legislature to fix this problem and require that all Florida certified nursing homes maintain a reasonable minimum of financial responsibility. A reasonable requirement for a nursing home would be maintenance of a $1,000,000, non-wasteing policy. Please contact your legislators and ask them to fix the problem.
Regards,
Gregg Johnson
Attorney
Gunn Law Group
Tampa, Florida
[1]http://www.statehealthfacts.org/comparemaptable.jsp?ind=419&cat=8
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