- Associated Press - Thursday, April 3, 2014

TALLAHASSEE, Fla. (AP) - Lawsuits targeting nursing homes would yield smaller awards in the future, as the deep pockets of private equity firms and passive investors would be protected under a measure passed by the Senate on Thursday.

The bill (SB 670) would disallow including ownership that has no impact on the day-to-day performance of the facility in damage claims, a move proponents say will encourage broader investment in facilities in the state.

The measure explicitly targets Tampa lawyer James Wilkes, whose reputation for successfully representing litigants in nursing home abuse cases has given him a high national profile as well as a lucrative practice.

The bill is carried by the support of a number of groups. Those groups include the Florida Health Care Association, the AARP and, perhaps most crucially, the Florida Justice Association representing a host of trial lawyers.

“A vote for this bill doesn’t mean you don’t care about nursing home folks,” said Sen. John Thrasher, R-St. Augustine, who carried the bill. “This says you can list (other investors) if there was negligence.”

Excluding any party in the case of an injury to someone in the care of a nursing home is bad idea, insisted Sen. Arthenia Joyner, D-Tampa, who voted against the bill.

“We want to know that if there are injuries, they have open access to the court without delay and that the person who is ultimately responsible are not shielded as a party that can be sued,” Joyner said.

Also among those opposed include Wilkes, of course, and smaller groups who claim the larger corporate parents of nursing homes are concerned mostly with keeping costs low and profit margins high - which they believe are moves linked to injury and death in the homes.

“These corporations are here to make money, and the first thing they do is cut the staff,” Barbara DeVane of the Florida Alliance for Retired Americans told a committee last month.

Her one-sentence argument crystallized the opposition outside the Legislature: Money was being made by large interests at the expense of care.

Reading from a financial newsletter for nursing home investors, Brecht Heuchan, a lobbyist representing Wilkes, told several legislative committees that investments firms have made above average returns on nursing homes under the current system, and losing a case has not hindered their ability to improve facilities.

Heuchan said Thursday that the bill will result in lower awards but more cases, noting an element of the measure that lowers the cost to access medical records, which could benefit plaintiff’s lawyers.

“The supporters wanted something more predictable, and this does it,” Heuchan said. “They really can’t live with these huge awards.”

Supporters of the measure believe that money saved by preventing the passive investors - those who may capitalize the home but have no role in decisions made at the facility - from having their resources sapped by costly litigation.

“We will eventually see the $5,100 per bed cost that nursing homes have to pay to protect themselves against these suits go to resident care,” said Emmett Reed, executive director of the Florida Health Care Association, citing a study that arrived at the figure.

He acknowledged that part of the bill also allows increased access to records by lawyers could lead to more lawsuits.

“It’s the part of a compromise,” Reed said.

Attention now shifts to the House, where a companion measure is carried by Rep. Matt Gaetz, R-Fort Walton Beach.

Wilkes is frustrated to be a victim of his legal success.

“This bill is not about lawsuits, this is because I spent the time to figure out who these people were behind these homes and they are angry,” Wilkes said in an interview last month. “The only connection to me is that I caught them. What we need is more transparency. Some of these homes, the corporations who run them, ask for anonymity but they are actually government contractors.”

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