Under intense lobbying by the nursing home industry in 2001, the Florida legislature enacted legislation requiring a pre-suit investigative and notice period before a lawsuit could be filed seeking compensation for death or injury caused by nursing home neglect. At first glance, the pre-suit requirements may have seemed like a good thing.
Before filing suit, a claimant must have the matter reviewed by a doctor or registered nurse expert. If the expert comes to the conclusion that the nursing home did something wrong that caused harm to the resident, the case can progress. After that, the parties are to engage in a 75 day period during which they are to exchange information. Finally, the parties are required to mediate before suit can be filed.
The problem is that the statute provides no repercussions if a nursing home refuses to provide information and refuses to mediate – and, as a result, that is exactly what the nursing homes do. In litigating nursing home injury and death claims for more than 10 years in Jacksonville, we have had only one nursing home willing to engage in the statutorily “required” pre-suit mediation.
The truth is that the pre-suit process provides no benefit whatsoever to injured residents. Instead, it greatly increases the cost and length of time it takes to seek compensation. Meanwhile, the nursing homes reap huge benefits from this process at no cost.
Florida Statute § 400.0233 requires that the claimant’s attorney conduct a good faith investigation. To do so, the attorney must have the nursing home’s records for the client in question. This is where the delay starts – nursing homes are provided 30 “working days” to produce the records of a former resident. Given weekends, this allows a nursing home approximately 40 days to simply make a copy of the records.
The lawyer must then review the records to determine what happened. The records are not easy to read and typically involve hundreds of pages. In short, the lawyer is working backwards to determine if the injury, illness or death could have been prevented. To do so, we are scouring the record for signs and symptoms of the impending illness or incident along with any responses made by nursing home staff to prevent the injury or illness.
If the lawyer believes that the nursing home operator was neglectful or abusive, and, in so doing, caused serious harm or death, the statute requires the records be reviewed by a physician or registered nurse. This is expensive as a reviewing doctor or R.N. is going to charge expert witness fees on an hourly basis to review all of the pertinent records, typically including those from a receiving hospital.
If the expert comes to the conclusion that the nursing home was negligent or abusive, then a pre-suit notice must be sent by certified mail to every “prospective defendant.” It can be difficult to determine who the prospective defendants are as nursing homes in Florida are typically operated by a maze of related limited liability companies. This is purposefully done by nursing home operators in attempt to shield themselves from liability and to avoid transparency regarding their profits.
The statute allows for the parties to request documents and take statements from witnesses. However, the nursing home operators refuse to comply with these requests. They get away with this because Florida’s statutes on nursing home claims (unlike the medical malpractice statutes) provide no consequences for the nursing home’s refusal to comply with the statute.
After service of the pre-suit notice, nursing home operators have 75 days to review the claim. At the end of this period, the operators, or their insurers, are supposed to provide a response either rejecting the claim or making a settlement offer. The nursing homes almost never do this as a failure to respond is considered the same as a rejection.
After the 75 day period expires, the statute requires that the parties mediate the case. This provision is almost uniformly ignored by the nursing homes, and, again, it is because the statute provides no consequence for failing to do so.
In summary, throughout the entire statutory pre-suit process, the nursing home operators do essentially nothing and the injured victim spends an extraordinary amount of time and money for no reason. The delay alone is a major injustice as victims of nursing home abuse and neglect tend to be elderly or infirm. Further, after months of this needless delay, nursing home staff members are no longer as able to recall all of the facts surrounding the resident’s situation.
All of the benefits supposedly provided by the statute – information sharing and an early mediation – are erased by a statute that contains no teeth. It is time for the statute to be repealed. Continue reading