Fairness does not seem like that difficult of a concept to grasp. After all, that is essentially what the justice system is all aboard–creating an environment where two sides with a disagreement to have the matter resolved in as fair a way as possible. Rules are intended to apply equally to both sides, and decisions decided by a neutral third party (if not settled by the parties themselves first).
That is certainly how is is supposed to work when it comes to nursing home neglect cases. A resident or family claims that negligent care was provided, and they are able to provide evidence to back up their claims in court while the facility is able to offer counter-evidence. A neutral third party–often a jury–is able to weigh the evidence and make a decision. Seems fair, right?
Sadly, the nursing home industry does not seem to care that much about fairness. At both the state and federal level lobbyists for the industry are working to change the legal rules–tilting them in their favor and away from individual residents and their families. Of course, individual community members cannot afford to pay high-profile lobbyists to protect their rights. That makes it incumbent upon all of us who care about proper nursing home care and the legal rights of elder neglect victims to stand up and make noise whenever policymakers are seeking to change rules yet again in violation of basic rules of fairness.
Punitive Damage and Liability Standards
That is exactly what seems to be happening down in Florida, as state lawmakers are considering passage of a law that changes the legal rules to make it harder for nursing homes to be punished when they provide inadequate care that harms residents.
In particular, as discussed in Tampa Tribune article from late April, the state may raise the standard regarding what a party must show before a jury may award punitive damages against the facility. Punitive damages are those awarded irrespective of economic or noneconomic damages to the specific plaintiff. Instead they are based on actually punishing the facility for their egregious conduct.
Per the proposed law, plaintiffs would now be required to show “conclusive evidence of abuse” or “severe misconduct.” Lawyers working on these cases know what these small changes actually mean–nursing homes will be virtually completely shielded from punitive liability. That is not because they do not cause severe harm, but because meeting the evidentiary standard is virtually impossible in most cases.
The Tribune editorial on the matter–in which they call for the bill to be defeated–summarized one key problem: “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.”
The bottom line cannot be repeated enough: Nursing homes should not be allowed to hide from legal responsibility for their poor care by changing the rules. No one who values fairness should stand idly by while these powerful interest force through dangerous legislation that does nothing more than allow negligent senior care to perpetuate without accountability.
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