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Lawyers, Long-Term Care Don't Mix

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By SCOTT ALLEN Special to the Tribune

The Tampa Tribune

Published: June 7, 2008

The nation may soon be forced to learn the hard lesson Florida learned at the end of the 20th century - that lawsuits and litigation can destroy quality health care, just as it nearly did the nursing homes and assisted living facilities that communities must have to care for their elderly.

Back in 2001, a fourth of Florida's 82,000 nursing home beds were owned or operated by companies in Chapter 11, put there in part by the torrent of litigation that had been filed under a trial lawyer-friendly law. Liability insurers had already fled the state. Two-dozen nursing homes closed their doors for good. People were uprooted and placed elsewhere. It finally took an act of the Florida Legislature to stop further destruction.

Legislators found in part that lawsuits and litigation did not improve anything except the wealth of the lawyer bringing the lawsuit. Indeed, litigation was draining precious taxpayer resources, demoralizing staff, pitting families against staff, increasing costs to all (including taxpayers) and thus had become a problem in and of itself. The law was modified, and nursing home care has since steadily improved.

Now comes proposed federal legislation that would welcome the tasseled-loafer crowd back by outlawing arbitration agreements in nursing home and ALF admission contracts. Forget that federal law favors arbitration as a cost-savings means of resolving disputes. Never mind that arbitration resolves disputes faster, which is a major benefit when one side is elderly. And please ignore all those who politely point out that elderly people are not children. They have a right to make decisions for themselves.

Agreeing to arbitration is not mandatory, nor is it a condition of admission. The courts have long upheld nursing home and ALF admission agreements with arbitration clauses provided they are fully disclosed. Many facilities even print this part of their agreements in large and/or bold type and require the parties' initials next to it so there is no mistake. If a dispute arises, a professionally-accredited arbitrator (often a retired judge) is chosen by both parties. The proceedings ensure fairness to both sides as well as a timely decision. It works.

Arbitration also helps hold down the rapidly rising cost of facility-based elder care. This is particularly important to those who need or soon will need ALF care, which is mostly paid for out of pocket. The high cost of "lawyering up" will ultimately be paid by Florida's elderly and their families who love them.

Congress should heed the Florida experience and reject this latest version of no-trial-lawyer-left-behind legislation.

Scott Allen is administrator of Palm Garden of Tampa.

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