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Jax Daily Record Monday, Sep. 2, 200212:00 PM EST

Lawyers defend nursing home lawsuits

by: Sean McManus

by Sean McManus

Staff Writer

A few months ago, when it was discovered that the elderly people who live in downtown’s Cathedral Residences were going to have a rent hike of about 30 percent to compensate for astronomical insurance increases, everybody started yelling the word “crisis.”

Many in the eldercare business believe that the primary force driving insurance abuse is attorneys who focus their practices on suing the institutions that take care of elderly people.

It’s not an easy theory to dispute. It’s almost impossible to drive down the highway without seeing a billboard advertising nursing home lawsuits. And elderly people do fall down, many times without the assistance of a negligent nurse.

But in a state like Florida, where many come to die, there are patterns of abuse, some local attorneys say. And it is the bad eggs, not the insurance companies, who are spoiling it for everyone.

“This is like a bunch of drunk drivers showing up in Tallahassee and demanding car insurance,” said Tom Edwards, who has been suing nursing homes for 15 years. “Of course it’s tragic when good nursing homes get penalized for what bad ones do, but believe me, there are some really bad ones out there.”

To Edwards and the other attorneys who make a living by chasing down abuse of the elderly, the insurance “crisis” in the eldercare industry is not unlike situations that arise in other industries or with any disaster. When a hurricane strikes land, for example, property insurance goes up, even though it’s not the property owners fault.

“The insurance premium crisis, generally, is related to the stock market collapse and poor investments by insurance companies,” said Steve Pajcic, an attorney at Pajcic & Pajcic, a plaintiff’s firm that sues nursing homes. “And there has been a failure on the part of insurance companies to distinguish between good nursing homes and bad ones.”

Attorney Jefferson Morrow can show you pictures of what happens in bad ones. One common cause of death or amputation in cases of nursing home neglect, he explains, is bed sores. That’s when there’s a lack of pressure release on old skin, which leads to massive wounds.

“My job is to prosecute felonies, really,” said Morrow, from his office in the Riverplace Tower. “The State Attorney’s Office can’t do it, so we do it.”

Although uncommon, Morrow is currently involved a case in which an elderly woman was raped by a male nurse in a Jacksonville nursing home.

“I’m not saying this is normally what happens,” Morrow said. “But it’s important for people to realize that we’re not out there just filing frivolous suits. Really bad stuff is happening.”

Morrow blames the guys at the top. Distinguishing between for-profit nursing homes and non-profit nursing homes, Morrow said the the pursuit of profits leads to decisions that cost people their lives.

“It’s pretty simple,” Morrow said. “When things get tight and you’ve got to answer to investors, the easiest way to save money is to cut staff. So what you have is one nurse taking care of 40 elderly people who all need their medication and all need to have their bandages changed.”

So Morrow goes after the management, who he blames for not staffing nursing homes in a way that make it easy to keep good records and spend the time required to take care of old people.

“Most of the nurses I meet are the nicest people in the world,” said Morrow. “Most of the time, it’s a staffing issue or an issue of not paying attention. But we can’t tolerate that.”

There are four primary categories of nursing home neglect: falls, pressure ulcers or bed sores, assault or sexual assault and malnutrition or dehydration. The last, which amounts to starving to death, Morrow called “very painful.”

“You’re not going to find any more bitter or angry plaintiff than one whose parent has been killed because a nursing home abused them,” said Pajcic.

Edwards, who stays active on the legislative side of the nursing home debate, cites statistics about how a majority of nursing homes continue not to meet state staffing levels. And Florida, he said, continues to rank as the worst state in the nation for the number of abuse cases.

Edwards and other trial lawyers have met over the years with representatives of the American Association of Retired Persons (AARP) and the leaders of the state’s nursing homes, both for profit and non-profit, to try to improve the system.

“What we find is that everybody agrees, except for the for profit homes,” said Edwards. “They don’t want to adhere to state standards on staffing.”

Edwards, and others, do have suggested solutions. One would be risk retention pools, where good nursing homes would pool their resources to buy insurance in bulk or self-insure. That way, Edwards said, it sends a clear signal to the bad ones that they are not invited to the table.

Morrow has suggested that some homes just not buy insurance, except to cover minimum claims only, and instead hire private risk management experts to come in and clean house.

“If a nursing home sent in a qualified risk manager to monitor their record keeping, staffing and quality assurance methods, then there’s no way they could get sued,” he said.

When asked about caps on the amount of money a jury can award a plaintiff, Morrow said that he didn’t object, in theory.

“But what’s appropriate?” he asked. “I mean a couple hundred thousand is not enough. You want it to hurt so they’ll stop hurting people.”

Edwards said he was decidedly against caps, calling them contrary to the Constitution.

“Every five or 10 years, there’s big talk about the latest insurance crisis,” Morrow said. “It’s just cyclical. We’ll get out of it.”

But Edwards said it was part of a general problem in the health care industry that switched from churches and non-profit organizations running the show to for profit HMOs.

“I’ve got parents in their 70s,” said Edwards. “I want a thriving nursing home industry. It’s just that the best way to achieve that is to weed out the ones who put profits over people’s lives.”

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