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The overwhelming majority of personal injury plaintiff's could not possibly afford to pay their attorneys if they had to pay up front, win or lose. The contingency fee contract illuminates much of the financial risk to the client by shifting the risk of loss to the lawyer. As a result, clients are much more willing to prosecute wrongs done to them. On the other hand, shifting the risk of loss to the attorney makes the lawyer much more selective about which cases to prosecute because losing means the lawyer will not get paid. Some nursing homes have figured out a way turn the Florida nursing home abuse lawyers selection process into an Achilles heal.
The personal injury attorney selection process is based on two components. First, the attorney must determine if the case has merit. Second, the attorney must determine if the wrongdoer is judgment proof. In a previous post, I discussed the fact that Some Florida nursing home chains have figured out they can discourage Florida nursing home abuse attorneys from pursuing a case against them by making it very difficult to collect a personal injury judgment. In this post, I discuss how it is done.
Although each Florida nursing home chain is set up somewhat differently, the basic concept is the same. The first step is to separate all the corporate assets into different companies. One company owns the license to operate the facility, one company owns the property, one company provides management services, and one company does the accounting. The next step is to ensure that only the company that owns the license provides patient care. This company will own nothing of value and have the obligation of paying all the employees. Payments for the provision of patient care are paid to this corporation. Any money left over each month after paying the employees is immediately siphoned off by the other corporations as charges for services. The process makes the company that holds the license unable to pay a judgment. If the corporations that do not hold the license are sued, their attorneys claim they are not responsible for nursing home neglect because they are not involved in patient care. Unfortunately, Florida judges often agree. The final step in the process is to purchase very little if any liability insurance.
The lack of liability insurance means any payment for injuries or death caused by abuse or neglect must come out of the corporate assets. The complicated corporate structure makes it difficult to hold any of the companies other than the license holder responsible. The fact that the license holder has no real assets coupled with all of the above discourages most Florida personal injury attorneys from bringing claims.
Florida has become a haven for corrupt nursing home operators that use the corporate form to hide their assets from Florida nursing home abuse lawyers attempting to hold them accountable for injury, neglect, abuse and death that occurs in their nursing home facilities. Charles Elmore, a writer for the Palm Beach Post has done an excellent job at exposing one form of the corporate shell game that goes on involving nonprofit corporations. In his article entitled "Post investigation: Nursing home CEO pulls in hefty pay, patients' families frustrated", he details what appears to be the extravagant siphoning of money by top corporate family executives in one Florida nonprofit nursing home chain that has been cited by regulators for substandard nursing home care.
Charles Elmore's article focuses on the Okeechobee Council on Aging Inc. and the Council on Aging of Florida Inc which apparently own nursing homes in Pahokee, Gainesville, and Bradenton Florida. Unfortunately, the type of corporate wrongdoing that he alleges occurred in this case is very common in Florida nursing homes. In this case, the vehicle used was the nonprofit corporation. In other cases, the vehicle used is the limited liability company or LLC. Regardless of the corporate form, the result is always the same. A complicated structure of interlocking corporations is used to siphon money away from nursing home patient care and into the hands of the individuals that are pulling the strings. The complicated corporate structure insulates the wrongdoers at the top from responsibility for the injury, neglect, abuse, and death that occurs in the nursing homes while simultaneously protecting the corporate assets from judgments and collection efforts by Florida nursing home neglect attorneys. In fact, the insulation is so complete that most of them do not even bother to obtain liability insurance. Often the wrongdoers are never held accountable for diverting money that should be used for nursing home patient care into their pockets.
Accountability is avoided because of the way the law allows nursing home operators to layer interlocking corporations. I will discuss the interlocking structures in the next post.
On September of 2008 The Department of Health and Human Services released "Trends in Nursing Home Deficiencies and Complaints". The memorandum report described trends in deficiencies and complaints from 2005 through 2007. To those of us who routinely represent victims of nursing home abuse and neglect the results were not surprising. However, the general public should be outraged.
According to the report, 91 percent of nursing homes surveyed were cited for deficiencies. Even more disturbing was the fact that 17 percent of nursing homes surveyed were cited for actual harm or immediate jeopardy deficiencies. The most common deficiency categories cited were quality of care, resident assessment, and quality of life. For profit nursing homes had the highest deficiencies in each of the above categories. Within the for profit nursing homes, the biggest offenders were the nursing home chains.
In Florida, the numbers reported were even worse. An alarming 97 percent of nursing homes surveyed were cited for deficiencies. This number remained fairly constant over the 3 years of the survey. You would think these numbers would have the Florida legislature going into special session to deal with the problem. Especially since Florida has one of the largest nursing home populations in the country. Unfortunately, the Florida legislature does not seem to have as a priority protecting nursing home residents. If anything, the Florida legislature's priority seems to be protecting the nursing home industry from any effort to hold nursing homes responsible for abuse and neglect. The last few times the legislature has addressed nursing home regulations, they have actually decreased them in response to pressure from the nursing home industry. In 2003, the Florida legislature made it harder for juries to punish neglectful and abusive homes with punitive damages. In 2001, the legislature eliminated strict liability for nursing home resident rights violations and eliminated the right to an award of attorney's fees for nursing home residents that prove they were abused or neglected.
Each time the legislature sided with the nursing home industry over nursing home residents, it was in response to the industry claiming personal injury lawsuits were driving them out of business. One of the rationales used to persuade legislators to make some of the changes described above was that the money saved would be used to improve the quality of care in Florida nursing homes. Unfortunately, the deficiency report appears to demonstrate the promise of using the savings to improve the quality of care in nursing homes was illusory.
On the other hand, the new laws have had the desired affect. Nursing home lawsuits in Florida have decreased drastically since 2001. The result is that the nursing home industry is paying substantially less in attorney's fees, settlements, jury verdicts, and liability insurance premiums. Only the nursing home operators themselves know where the savings are going.
The nursing home industries standard operating procedure seems to be to vilify those that attempt to hold them accountable. When Florida trial lawyers fought against the changes in the law, the nursing home industry claimed that greedy trial lawyers were the real problem. Now the industry appears to be blaming the surveyors themselves. According to an article by the New York Times, Bruce Yarwood, president of the American Health Care Association, a nursing home trade group, said the inspection system "does not reliably measure quality....Inspectors are subjective and inconsistent. They interpret federal standards in different ways."
Mr. Yarwood's comments would make sense if the citation rates were much lower. Then claiming the problem was the result of inconsistent and overzealous surveyors might make sense. However, with deficiency rates consistently over 90 percent, there is no way to legitimately claim the industry itself does not have a problem. Even Mr. Yarwood had to acknowledge "we have to do a better job."
Trial lawyers will continue to hold the industry accountable for nursing home abuse and neglect until they actually do a better job.
http://www.distasiolawfirm.com/Attorney_Profile.aspx
Tampa Personal Injury Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
http://www.TampaNursingHomeLaw.com
Mandatory arbitration in personal injury cases usually favors corporate wrongdoers. Of course that is why corporations push so hard to include arbitration provisions in contracts when consumers purchase their products and services. For a detailed discussion on why and how arbitration favors corporations in personal injury cases see my previous post.
The Nursing Home industy's attempts to sneak arbitration provisions into their contracts with nursing home residents is a particularly egregious example of corporations taking advantage of people in their time of need. The overwhelming majority of residents and their families entering into a nursing home do not know what arbitration is and are not in the state of mind to fully comprehend its implications.
Furthermore, the idea that most residents and their families can shop around for a facility that does not have an arbitration clause or negotiate the terms of such a clause is simply ludicrous. The resident and their families are focused on the medical crises that has forced the resident into entering a nursing home. It is a very emotionally draining process for everyone involved. They are not focussed on whether quality care will be provided or whether they may have to sue the nursing home if bad care is provided. Preserving their right to sue the nursing home never enters their mind.
Even if it did enter their mind, it is usually not physically possible to take the time neccessary to find the few nursing homes in the geographic area where the resident lives that do not not require signing mandatory arbitration clauses. In most situations the resident is transfered emergently to a nursing home from a hospital or home environment after a sudden medical emergency.
As a Tampa Nursing Home Abuse Attorney, I see it all the time. The nursing home does not present the contract that includes the arbitration clause until after the person is already residing in the facility. It is usually stuffed in the middle of other required paperwork. The resident or family is asked to sign without an offered explanation. Most people simply sign all the paperwork without question.
Some members of congress have recognized the inherant problems with mandatory arbitration clauses in Nursing Home cases and have proposed the "Fairness in Nursing Home Arbitration Act of 2008" to remedy the problem. The bill, HR 6126, would make any arbitration clause entered between a nursing home and a resident unenforceable if entered before a dispute between them occured. It just recently passed the House Judiciary committee and is working its way toward the possiblity of a full vote on the floor of the House of Representives. Anyone that has a loved one in a nursing home or believes a loved one may enter a nursing home at sometime in the future should contact their local members of the U.S. House of Representatives or U.S. Senate and urge them to support HR 6126.
Scott Distasio
Tampa Personal Injury Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tampa Nursing Home Negligence Lawyer
According to a web posting at http://www.news-leader.com/apps/pbcs.dll/article?AID=2008806190360 The Bush administration announced the federal government will put in place a nursing home rating system by the end of the year that will be accessable to consumers from a yet to be announced government website. According to Kerry Weems, acting administrator for the Centers for Medicare and Medicaid Services, The fact a home has a lower rating will likely put them on the path to improvement," because "I don't think we're going to see many people who are very anxious to put a loved one in a one-star home."
The rating system is a good first start. However, it is either very nieve or very deceptive on the part of Mr. Weems to suggest that the rating system will have a very large impact on the average member of the public's decision regarding which nursing home facility to place a loved one. The truth is that the overwelming majority of families trying to place a loved one will never know the rating system or a website ranking nursing homes exists. In fact, Florida has had such a website to rate its nursing homes for many years. It can be found at http://ahcaxnet.fdhc.state.fl.us/nhcguide/. The Florida nursing homes that rank poorly continue to have high occupancy rates despite the low ranking. For example, a nursing home called Rehabilitation And HealthCare Center Of Tampa received an overall rating of one star out of 5 for its latest survey performed on february 7, 2008. However, it had an 80.05% occupancy rate.
While low rankings in performance are not publicized enough to effect consumer opinions, the information should still be gathered and posted. The real power of the ranking system is that it creates a framework to punish poor performers. Punishment can occur as the result of a nursing home neglect lawyer bringing a personal injury lawsuit when the rankings are admitted into evidence to give the jury an idea of the conditions of the facility. Unfortunately, tort reform in the state of Florida has drastically reduced the number of such lawsuits and therefore their deterent effect created by them. The rankings can also be used by the government to sanction the nursing home and or revoke its license. The real question is whether the federal or state government will use the information for that purpose.
Scott Distasio
Tampa nursing home abuse lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tampa personal injury attorney
Florida pharmacy malpractice lawyers have been waiting on guidence from the appelate courts on whether nursing home consulting pharmacists can be held responsible for their negligence. Unfortunately, at least one appelate court recently concluded they could not. On April 4, 2008 Florida's Second District Court of Appeal held in The Estate of Norma J. Johnson v. Badger Acquisition of Tampa LLC, 2008 W.L. 899280 that a consultant pharmacist hired by a nursing home does not owe a legal duty to a nursing home resident when the conduct in question involved giving negligent advice to the nursing home and or treating physicians. Mrs. Johnson was recieving medicine while living in the nursing home that was prescirbed by her physician and administered by the nursing home nurses. The consultant pharmacist had a contract with the nursing home to review nursing home records, review medication and administration records, review drug regimen records of the patient, provide training and oversight, and establish procedures for the pharmacy. The consulting pharmacist gave no advice directly to the nursing home resident and had no authority to alter or discontinue a resident's pharmacy regimen. Instead, the contract and state law limited the consulting pharmacist to providing advice to the nursing home resident's treating physician and the nursing home itself. The court, therefore, concluded that the duty to the resident rested with the treating physician and the nursing home instead of the pharmacist.
The Badger case is a setback for nursing home residents because the consulting pharmacy setup in that case is standard throughout the industry in Florida. Physicians and nursing homes nursing home abuse will point to the consulting pharmacist by testifying that they relied on the advice of the consulting pharmacist and therefore should not be held responsible for the outcome. Since the consulting pharmacist cannot be sued by the nursing home resident for pharmacy malpractice, the physician and nursing homes may have an empty chair to point to at trial. Nursing Home Neglect Lawyers should respond aggressively to this argument with a Motion in Limine citing case law that holds that nursing homes have a non-delegable duty to provide appropriate care to their residents. See NME Props. Inc. v. Rudich, 840 So.2d 309, 312,13 (fla. 4th DCA 2003)(holding that one can contract away the doing of a task but cannot contract away the ultimate legal responsiblity for a task you are required by law to perform). Unfortunately, some judges may allow the argument and use the Rudich case to fashion a jury instruction.
Scott Distasio
Tampa nursing home abuse lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
Tampa Personal Injury Attorney
Holding a Nursing Home responsible for wrongdoing in the State of Florida has become a game of wading through multiple layers of corporate structure. Nursing Home Negligence Lawyers used to be able to focus their efforts on proving the negligent conduct of the nursing home. However, In the late 1990's Nursing Homes figured out that dividing up the various components of owning and operating a facility into seperate corporations could help them escape responsibility for their conduct. Often, one corporation will own the property; one corporation will hold the license and employ the staff; one corproation will employ the management personnel; and one corporation will employ the accounting, billing, and regulatory personnel. Each of these companies will be owned by yet another company which are all owned by one large out of state parent company. All of the profits of the facility are funneled out through the various corporations indirectly to the main parent company. The Nursing Home then takes the position that a neglected and abused Nursing Home resident can only sue the company that holds the license and employs the staff (the licensee). Of course, the licensee company will carry very little or no insurance and own no assets. Many times the law favors the nursing homes. Unfortunately, the system of shell corporations has become so complicated that the cost of litigating the issues has scared away many Nursing Home Abuse Lawyers.
During the recent legislative session, the Florida Legislature had the opportunity to address some of the problems associated with the Nursing Home corporate shell game. The legislature was considering a bill labeled "Nursing Home Transparency & Accountablity". The bill would have required nursing homes to indentify related companies during the licensing process as well as publically disclose all contracts between the related companies. Although the bill would not have eliminated the deceptive shell game, It would have made it easier for Nursing Home Personal Injury Attorneys to connect the dots. Unfortunately the bill died in committee. There does not appear to be a rational explanation as to why the Florida Legislature failed to pass this law.
Scott Distasio
Tampa Nursing Home Negligence Lawyer
Distasio Law Firm
Helping Injured People
Offices: Tampa
1-888-595-0022
Tampa Personal Injury Lawyer
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