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The preliminary impact of 2001 Florida tort reform on nursing facility litigation in one county

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Title:
The preliminary impact of 2001 Florida tort reform on nursing facility litigation in one county
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English
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Hedgecock, Deborah K
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University of South Florida
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Tampa, Fla.
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Somatic and staff-related allegations
Nursing home residency
Lawsuits
Attorneys
Settlements
Dissertations, Academic -- Aging Studies -- Doctoral -- USF   ( lcsh )
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bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )

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Abstract:
ABSTRACT: Since a substantial increase in lawsuits, settlements, jury trial awards, and insurance premiums involving nursing facilities began in the mid 1990s, addressing litigation has been a growing concern for the industry, consumers and their families, insurance carriers, and state and national elected officials. Curbing lawsuit growth has mirrored medical malpractice containment efforts, focusing on the addition of laws to inhibit litigation. The state of Florida initiated such tort reforms along with mandatory increased nursing facility staffing in 2001. Through secondary data analyses, this study examined the initial effects of Florida's tort reform measures. Lawsuits filed (N = 546) against any Hillsborough County nursing facility (N = 33) from 1999 through 2003 were reviewed. One-way analyses of variance and two-way contingency tables were used to identify variations in the elements, extent, and outcome of lawsuits between pre and post tort reform periods.^ Based on nursing facility admission dates, post tort reform lawsuits exhibited multiple significant changes. Lawsuits filed per month dropped to 14% of pre reform monthly filings. On average, lawsuits were associated with shorter residencies, were filed earlier, and settled six months sooner. They were less apt to include combined wrongful death and negligence survival damage claims, charges intentionally addressed by reform measures in order to eliminate double damage claims. Other lawsuit charges increased, e.g., lethal negligence and breach of fiduciary duty. Mediation was less likely and arbitration attempts more likely to be documented in lawsuits. Mean somatic allegations did not change significantly. Staff-related allegations decreased 21.5% to 8.51 per lawsuit, with 12 out of 22 staff-related allegations decreasing significantly. On average, settlement proposals, total settlements, and attorney fees decreased to 40% and net plaintiff awards to 25% of pre reform amounts.^ Overall, it appears that 2001 tort reform impacted post reform litigation substantially. However, further research examining a larger post reform lawsuit sample and longer post reform period is required to verify that research findings are stable and reflect sustained changes. Other factors, e.g., decreased nursing facility professional liability insurance coverage, may have affected the numbers and characteristics of lawsuits filed and require further investigation as well.
Thesis:
Dissertation (Ph.D.)--University of South Florida, 2007.
Bibliography:
Includes bibliographical references.
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Mode of access: World Wide Web.
Statement of Responsibility:
by Deborah K. Hedgecock.
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Title from PDF of title page.
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Document formatted into pages; contains 162 pages.
General Note:
Includes vita.

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aleph - 001967333
oclc - 263426771
usfldc doi - E14-SFE0001946
usfldc handle - e14.1946
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PAGE 1

The Preliminary Impact of 2001 Florida Tort Reform on Nursing Facility Litigation in One County by Deborah K. Hedgecock A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy School of Aging Studies College of Arts and Sciences University of South Florida Co-Major Professor: Larry Polivka, Ph.D. Co-Major Professor: Lawrence Schonfeld, Ph.D. Marion A. Becker, Ph.D., R.N. Jennifer R. Salmon, Ph.D. Paul Stiles, Ph.D., J.D. Date of Approval: March 30, 2007 Keywords: somatic and staff-related allegations, nursing home residency, la wsuits, attorneys, settlements Copyright 2007, Deborah K. Hedgecock

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Dedication This dissertation is dedicated to my God and Savior who continuously show me unconditional love and acceptance, have given me glorious life, relationships and event s that became the foundation of this work, a loving and supportive family, and all the opportunities in the world; to my sister, Susie, who spent hour upon hour tenderly, compassionately sharing my woes and my joys, believing in me even when I did not believe in myself, always offering loving acceptance and concern, and motivati ng me to keep plugging on; to my brother, Tommy, who listened patiently and attentively to me hours without end as I read and reread my work to him, who provided much welcome humor and political discussion, and lovingly offered his opinions and comments, always encouraging me to reach for the stars; to my brother, Doyle, who supported and che ered me on to keep moving ahead and stick to the deadline no matter what (or I’d better look out!) and who always let me know that I had a shoulder to lean on; to my daughters, Andrea Faith and Amanda Kay, who, even with their own young lives full of life-changing events and circumstances – both good and bad, have stood by me constantly, showed copious amounts of love, pride and belief in me, and provided inspiration to complete my studies. Without their support and devotion, this work would have been overwhelming. I thank each one of them for their loving words, kind thoughts, sweet prayers, and continuous presence that have contributed to the successful completion of my research and this stage of my life. I love you all dearly, more than words ca n express. I hope you each realize how much you mean to me and how very grateful I am. Thank you.

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Acknowledgements This work was supported in part by a grant from the Administration on Aging under the direction of Dr. Kathy Hyer. I want to acknowledge gratefully the support consideration and infinite patience of my committee co-Chairs, Dr. Larry Poli vka and Dr. Lawrence Schonfeld, and my other committee members, Dr. Marion Becker, Dr. Jennifer R. Salmon, and, Dr. Paul Stiles. My thanks are also graciously exte nded to Dr. Christopher Johnson and Mary Oakley for their beneficial input in data collection and describing the tort reform story. I would also like to thank each staff member of t he School of Aging Studies who supplied his or her skills, teaching experience, and encouragement along my way. My heartfelt appreciation goes out to Dr. Debbi Gavin-Dreschnack, Dr. Carla VanderWeerd, Dr. Katie Petrossi, Dr. Celinda Evitt, Helen Zayac, and other Aging Studies students who have been my dea r friends, colleagues, and comrades in arms while at USF. I would be greatly remiss if I did not take this opportunity to thank Ginny Chaplin, Pam Staubaugh, Rosa Diaz, Gail Smith, Nancy Hallford, Lydia Hentschel, and Amy Woodbury who so willingly supplied their administrative expertise, advice, and friendship throughout my journey.

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i TABLE OF CONTENTS LIST OF ACRONYMS .................................................................................................... vii GLOSSARY OF TERMS ................................................................................................ viii ABSTRACT ....................................................................................................................... xi CHAPTER ONE – IMPACT OF LAWSUITS AGAINST NURSING FACILITI ES ....... 1 Statement of the Problem ........................................................................................ 1 Extent of Litigation ................................................................................................. 6 Medical Malpractice History ...................................................................... 6 Nursing Facility Litigation History ............................................................. 8 Litigation and Insurance Claims Connection .......................................................... 9 Lawsuit Elements .................................................................................................. 12 Quality of Care Issues ............................................................................... 12 Common Claims ....................................................................................... 14 Nursing Facility Characteristics ................................................................ 15 Nursing Facility Regulation .................................................................................. 16 Federal....................................................................................................... 16 Context .......................................................................................... 16 Executing Federal Regulations ..................................................... 18 Florida ....................................................................................................... 19 Unintended Consequences of Regulation ................................................. 20 Tort Reform .......................................................................................................... 23 Example: California .................................................................................. 23 Litigation Restraint Mechanisms .............................................................. 25 Federal Legislative Efforts ........................................................................ 27 State Legislative Activity .......................................................................... 28 Florida’s Tort Reform Journey ............................................................................. 32 Background ............................................................................................... 32 Tort Reform 2001 ................................................................................... 33 Statute of Limitations .................................................................... 34 Filing Prerequisites ....................................................................... 34 Negligence Survival or Wrongful Death – Not Both.................... 35 Negligence Standard ..................................................................... 36 Punitive Damages – Burden of Proof and Award Limits ............. 37 Attorney Fees ................................................................................ 38 Quality of Long-Term Care Facility Improvement Trust Fund .... 38 Increased Minimum Staffing Levels ............................................. 39 Tort Reform Impact .............................................................................................. 39 Research Questions and Hypotheses .................................................................... 41

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ii CHAPTER TWO – METHODS ....................................................................................... 44 Research Sample ................................................................................................... 44 Measures ............................................................................................................... 46 Extent ........................................................................................................ 51 Elements .................................................................................................... 51 Outcomes .................................................................................................. 52 Data Collection ..................................................................................................... 52 Data Cleaning........................................................................................................ 55 Analysis Procedures .............................................................................................. 55 Question One ............................................................................................ 55 Question Two ............................................................................................ 56 Question Three .......................................................................................... 57 Question Four............................................................................................ 57 Question Five ............................................................................................ 58 CHAPTER THREE – RESULTS ..................................................................................... 62 Findings................................................................................................................. 62 Sample Characteristics .............................................................................. 62 Facilities ........................................................................................ 62 Lawsuits ........................................................................................ 63 Residents/Plaintiffs ........................................................... 64 Nursing Facility Residencies ............................................ 64 Filing Relationships .......................................................... 65 Lawsuit Charges................................................................ 66 Allegations ........................................................................ 66 Individual Defendants ....................................................... 67 Proceedings That Affected Lawsuits ................................ 68 Disposition ........................................................................ 69 Major Findings ...................................................................................................... 71 Question One ............................................................................................ 71 Question Two ............................................................................................ 72 Lawsuit Charges............................................................................ 72 Allegations .................................................................................... 74 Negotiation Strategies ................................................................... 79 Lawsuit Duration .......................................................................... 80 Question Three .......................................................................................... 82 Question Four............................................................................................ 85 Question Five ............................................................................................ 86 CHAPTER FOUR –DISCUSSION AND CONCLUSIONS ........................................... 93 Summary of Findings ............................................................................................ 93 Discussion ............................................................................................................. 94 Limitations .......................................................................................................... 102 Future Research Implications ............................................................................. 103 REFERENCES ............................................................................................................... 106

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iii APPENDICES ................................................................................................................ 122 Appendix A: Court Case Summary Form ........................................................... 123 Appendix B: Study Variables ............................................................................. 126 Appendix C: Facility Lawsuit, Allegation, and Residency Data ........................ 137 Appendix D: IRB Approval ................................................................................ 140 Appendix E: Descriptive Statistics for Filing Year Data .................................... 142 Extent of Lawsuits .................................................................................. 142 Lawsuit Elements .................................................................................... 143 Charges ....................................................................................... 145 Allegations .................................................................................. 149 Somatic ........................................................................... 149 Staff-Related ................................................................... 150 Negotiation Strategies ................................................................. 155 Duration ...................................................................................... 156 Lawsuit Outcomes .................................................................................. 161 ABOUT THE AUTHOR ....................................................................................... End Page

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iv LIST OF TABLES Table 1 Studies Identifying Nursing Facility Litigation .......................................... 4 Table 2 Selected Enacted Tort Reform Measures 2002 -2005 .............................. 30 Table 3 Comparison of Population and Income Five-Year Averages 1999 – 2003 .............................................................................. 44 Table 4 Study Variables ......................................................................................... 47 Table 5 Lawsuits as Unit of Analysis – Variable Types and Sample Sizes........... 48 Table 6 Nursing Facilities as Unit of Analysis – Variable Types and Sample Sizes ............................................................................................. 49 Table 7 Correlations between Structural Variables, Lawsuits, and Allegations (N = 28) ................................................................................. 61 Table 8 Ownership, Affiliation, and Lawsuits (N = 33) ........................................ 63 Table 9 Legal Representatives Relationship with Residents/Plaintiff by Gender .................................................................................................. 66 Table 10 Significant Somatic Allegations by Resident/Plaintiff Gender ................ 67 Table 11 Bankruptcy, Insolvency, and Foreclosure Proceedings by Tort Reform Period ........................................................................................... 69 Table 12 Multiple Lawsuit Filings per Resident/Plaintiff by Tort R eform Period (N = 534) ....................................................................................... 72 Table 13 Lawsuit Charges by Tort Reform Period (N =534) .................................. 74 Table 14 Leading Allegations for Combined Wrongful Death and Negligence Survival Damage Claims Per Tort Reform Period (N = 234) ................... 76 Table 15 Staff-Related Allegations for All Lawsuits by Tort Reform Period (N = 532) ....................................................................................... 78 Table 16 Negotiation Strategies Pre vs. Post Tort Reform ...................................... 79

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v Table 17 Mediation Usage and Settlement Proposals per Lawsuit by Tort Reform Period .............................................................................. 80 Table 18 Closing Dates and Impact of Motions on Lawsuit Duration Pre and Post Reform (N = 534) ....................................................................... 82 Table 19 Settlement Proposal, Total Settlement, and Payout Amounts by Tort Reform Period (N = 546) .................................................................. 84 Table 20 Impact of Ownership, Affiliation, and Available Beds on Lawsuits per Facility Occupied Bed (N =28) ........................................... 85 Table 21 Impact of Ownership, Affiliation, and Available Beds on Total Lawsuits per Facility (N =28)) ................................................................................. 86 Table 22 Impact of Ownership, Affiliation, and Available Beds on Somatic Allegations per Facility Occupied Bed (N = 28) ...................................... 87 Table 23 Impact of Ownership, Affiliation, and Available Beds on Staff-Related Allegations Per Facility Occupied Bed (N = 28) ................ 87 Table 24 Impact of Ownership, Affiliation, Available Beds, and Occupancy Rate on Total Somatic Allegations per Lawsuit Per Facility(N = 28) ................... 88 Table 25 Impact of Ownership, Affiliation, Available Beds, and Occupancy Rate on Total Staff-Related Allegations per Lawsuit Per Facility (N = 28) ..................................................................................................... 88 Table 26 Impact of Ownership, Affiliation, Available Beds, and Occupancy Rate on Total Somatic Allegations Per Facility (N = 28) ......................... 89 Table 27 Impact of Ownership, Affiliation, Available Beds, and Occupancy Rate on Total Staff-Related Allegations Per Facility (N = 28) ................. 90 Table 28 Mean Lawsuits and Total Allegations per Facility by Ownership and Affiliation (N = 28) ............................................................................ 91 Table E-1 Lawsuit Associated Nursing Facility Residency Duration Ha ving Start Dates 1999 – 2003 ...........................................................................143 Table E-2 Individuals Added As Defendants – Comparison of Filing Years 1999 – 2003 ...................................................................................144 Table E-3 Punitive Damages and Settlement Enforcement Activity by Filing Year ...............................................................................................145

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vi Table E-4 Lawsuit Charges by Filing Year (N = 534) .............................................147 Table E-5 Leading Five Lawsuit Charges, Excluding Chapter 400 Residents’ Rights Claims, per Filing Year ................................................................149 Table E-6 Allegations by Filing Year (N = 534) ......................................................152 Table E-7 Negotiation Methods by Filing Year (N = 534) ......................................157 Table E-8 Mediation Usage and Settlement Proposals per Lawsuit by Filing Year ...............................................................................................158 Table E-9 Impact of Motions on Lawsuit Duration by Filing Year (N = 534) ........ 160 Table E-10 Settlement Proposal, Total Settlement, and Payout Amounts by Filing Year (Thousands of Dollars) ....................................................162

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vii LIST OF ACRONYMS AHCA Agency for Health Care Administration CMS Centers for Medicare & Medicaid Services CNA Certified nursing assistant MICRA California Medical Injury Compensation Reform Act MDS Minimum Data Set NOI Notice of Intent OBRA Omnibus Reconciliation Act RAI Resident Assessment Instrument

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viii GLOSSARY OF TERMS Administrative remedy Taking every available legal step, including a ppeals, with an agency and its associated organization, to resolve a legal problem. Allegation A claim, accusation or assertion yet to be proved. Chapter 400 claims Charges base on Fla. Stat. ch. 400.023, Residents’ Rights, Collateral offset rule Reduces damage awards by any amounts a plaintiff will receive from other sources Compensatory damages Monies awarded as compensation for objectively verifiable monetary losses, e.g., past and future medical expenses or earnings, that would not have occurred but for the injury, damages, or death that brought about the lawsuit. Charges/Counts Separate statements in a lawsuit stating the basis for initiating that lawsuit. Counts are reinforced by allegations. Defensive medicine Medical responses or behaviors carried out in order to avoid liability rather than strictly for the patient benefit. Dismissed with prejudice A lawsuit is permanently closed and the plaintiff cannot file another lawsuit against the defendant based on the charges in the complaint being dismissed. Dismissed without prejudice Lawsuit is closed but can be re-filed later should t he plaintiff desire to do so. Economic damages Equivalent to compensatory damages. Involuntary dismissal Lawsuit dismissal by the court for its own reasons

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ix Joint and several liability Under the concept of joint and several liability, should a plaintiff claim harm or loss by two or more defendants, damages can be recovered from any of the defendants regardless of their degree of responsibility. For example, if two defendants are sued and one of them is bankrupt but 80% responsible for the plaintiff’s injuries or damages, the plaintiff is able to recover 100% of the damages from the solvent defendant that is only 20% responsible for the injuries or damages. Loss cost Overall cost per insurance claim exposure. Loss ratio The number of insurance premium dollars collected compared to the number of claim settlement dollars paid. Minimum Data Set Mandated, categorically coded and defined process for comprehensive assessment of clinical status and functional capabilities of Medicare or Medicaid certified nursing facility residents. Non-economic damages Damages for pain and suffering, emotional distress, physical impairment, mental anguish, disfigurement, inconvenience, loss of consortium or companionship, loss of capacity to enjoy life, and other intangible injuries. These damages do not include any direct economic loss and have no precise value. Resident Assessment Instrument a federally-mandated structured, sta ndardized problem identification process used in long-term care facilities. It consists of three components: the Minimum Data Set (MDS), Resident Assessment Protocols (RAPs), which provide a framework for MDS problem identification and resolution; and Utilization Guidelines which provide directions for proper usage of the RAI. Somatic allegations Charges that specific debilitating physical conditions were induced or aggravated somehow by the nursing facility. Staff-related allegations Staff-related allegations were cha rges of poor or unprofessional interaction, communication, care, conduct, or management associated with residents.

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x Voluntary dismissal All parties were in agreement to end a lawsuit and it was dismissed accordingly.

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xi The Preliminary Impact of 2001 Florida Tort Reform on Nursing Facility Litigation in One County Deborah K. Hedgecock ABSTRACT Since a substantial increase in lawsuits, settlements, jury trial awards and insurance premiums involving nursing facilities began in the mid 1990s, addressing litigation has been a growing concern for the industry, consumers and their fam ilies, insurance carriers, and state and national elected officials. Curbing lawsui t growth has mirrored medical malpractice containment efforts, focusing on the addition of la ws to inhibit litigation. The state of Florida initiated such tort reforms along wit h mandatory increased nursing facility staffing in 2001. Through secondary data analyses, this study examined the initial effects of Florida’s tort reform measures. Lawsuits filed ( N = 546) against any Hillsborough County nursing facility ( N =33) from 1999 through 2003 were reviewed. One-way analyses of variance and two-way contingency tables were used to identify variations in the elements, extent, and outcome of lawsuits between pre and post tort reform periods. Based on nursing facility admission dates, post tort reform lawsuits exhibite d multiple significant changes. Lawsuits filed per month dropped to 14% of pre reform monthly filings. On average, lawsuits were associated with shorter reside ncies, were filed earlier, and settled six months sooner. They were less apt to include combined wrong ful death and negligence survival damage claims, charges intentionally addresse d by reform

PAGE 15

xii measures in order to eliminate double damage claims. Other lawsuit charges incr eased, e.g., lethal negligence and breach of fiduciary duty. Mediation was less likely and arbitration attempts more likely to be documented in lawsuits. Mean somatic all egations did not change significantly. Staff-related allegations decreased 21.5% to 8.51 per lawsuit, with 12 out of 22 staff-related allegations decreasing significantly On average, settlement proposals, total settlements, and attorney fees decreased to 40% a nd net plaintiff awards to 25% of pre reform amounts. Overall, it appears that 2001 tort reform impacted post reform litigation substantially. However, further research examining a larger post reform l awsuit sample and longer post reform period is required to verify that research findings are sta ble and reflect sustained changes. Other factors, e.g., decreased nursing facilit y professional liability insurance coverage, may have affected the numbers and character istics of lawsuits filed and require further investigation as well.

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1 CHAPTER ONE – IMPACT OF LAWSUITS AGAINST NURSING FACILITI ES Statement of the Problem According to reports from the long-term care industry, liability insurance carriers, attorneys and secondary media sources, lawsuits and settlement amounts involving nursing facilities have increased dramatically since the mid 1990s. Nationwide 1.6 million persons, approximately 4.5% of the 65+ population (Administration on Aging, 2006), now use long-term care services provided by roughly 16,000 government-certifi ed nursing facilities (Centers for Medicare & Medicaid Services, 2005). Added to t his, the rapid escalation in numbers of aging baby boomers and the certainty of increased f uture need for nursing facilities are intensifying individual and public concerns as to c auses and deterrence of complaints and litigation against these businesses. The containm ent of litigation and any subsequent effects on the improvement, continuation, or decline in numbers or quality of nursing facilities are of great interest and importance t o providers, consumers, insurers, and elected officials. Although many long-term care and insurance industry representatives claim the most obvious gauge of litigation effects can be measured by increased insurance premiums (Carter, 2002; McDonald, 2001; Tyrpin, 2002), the exact role of insurance in the litigation process is unclear. Individual insurance claims are not publicly a vailable for review, and insurance company reports are not documented in a manner that enables direct comparison of insurance industry rates, coverage limits, and settleme nt practices with changes in the elements (i.e., components and characteristics) and extent (i.e., total

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2 count) of lawsuits. Lawsuits filed within court systems are more readily available, publicly accessible, and contain specific lawsuit details. These valuable det ails can be used in secondary data analysis to explore litigation trends and correlations of num erous variables, e.g., plaintiff statistics, lawsuit duration, or settlement amounts across multiple settings and locations including individual facilities, cities, counties, regions or states. Commercial publications (e.g., various Jury Verdict Reporters) or on-line lega l databases (e.g., Westlaw, Lexis-Nexis™) that collect litigation and j ury verdict data in many states are the customary sources for obtaining general infor mation about lawsuits, including nursing facility cases. These services typically list attorne y-reported cases that have proceeded to trial resolution but not the majority of cases that are reso lved without trial. Reliance on self-reports via attorneys limits the numbers and types of lawsuit data collected by commercial vendors; and, some, if not many such lawsuits, will be mi ssed by researchers (Galanter & Luban, 1993; Johnson, Dobalian, Burkhard, Hedgecock, & Harman, 2004a; Stewart, 2002). Jury Verdict Reporters normally exclude lawsuits that do not go to trial (90 – 99% of all lawsuits).These cases are commonly filed and settled prior to tri al assignment or resolution, or settled before any official complaint filing (Bennett, O'Sull ivan, DeVito, & Remsburg, 2000; Hedgecock et al., 2003; Kirkton, 1995). The latter cases (settled before filing) are impossible to analyze without the cooperation and records of insurance carriers and attorneys since there is no public paper trail of cases that do not proceed through public court systems. Furthermore, legal data collection and research services do not cover every county in every state, which also contributes to underreporting of c ases. Large gaps in data due to inconsistencies in coverage areas and reporting procedur es

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3 produce findings that are not generalizable to the nation or perhaps even to individual states or regions. As a result of such data-related issues, the overall picture of lawsuit activity is incomplete. Empirical studies examining the elements and extent of lawsuits filed aga inst nursing facilities are limited, but are emerging as an important area of i nvestigation with an accentuation on the role of nursing facility quality of care in such lawsuits (K app, 2000b; Stevenson & Studdert, 2003). The nine studies to date that address nursing facility litigation are described in Table 1. These studies illustrate the complexit y of determining details from nursing facility legal actions and the correlation of acts wit h evidence of improper care.

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Table 1 Studies Identifying Nursing Facility Litigation Publication Year Study focus Study Period Region Nursing facility cases (Total N) Data sources Authors 1995 Medical malpractice punitive damage awards 1963-1993 National 29 (270) Lexis, Westlaw DB 1 ; JVRs 2 ; AL Judicial Reporting System Rustad & Koenig 2000 Pressure ulcers 1937-1997 National 66 (173) Lexis-Nexis, Westlaw DB Bennett, et al. 2001 All litigation activity 1996-2000 Florida coun ties (8) 924 Court records Groller; Lamendola 2002 All litigation activity 1997-1999 Florida faci lities (3) 25 Facility records Johnson & Bunderson 2003 All litigation activity 1990-2000 Florida coun ty (1) 456 Court records Hedgecock, et al. 2003 All litigation activity 2000-2001 National 4, 677 Web-based attorney selfreport survey Stevenson & Studdert 2004 All litigation activity 1993-1997 Florida 48 A HCA 3 FJVR 4 CMS 5 Troyer & Thompson 4

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Table 1 (Continued) Publication Year Study focus Study Period Region Nursing facility cases (Total N) Data sources Authors 2004 All litigation activity 1997-2001 Florida coun ties (30) 2,315 Westlaw DB, OSCAR 6 Johnson, et al. 2005 Pressure ulcers 1984-2002 National 156 Lexis, Westlaw DB Voss, Bender, Ferguson, Sauer, Bennett & Hahn 1 DB = Database 2 JVRs = Jury Verdict Reporters 3 AHCA = Agency for Healthcare Administration 4 FJVR = Florida Jury Verdict Reporter 5 CMS = Centers for Medicare & Medicaid Services 6 OSCAR = Online Survey and Certification Reporting s ystem 5

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6 Analyses examining the effects of legislative tort reform measures on lawsuit frequency, complaints, and allegations commonly associated with nursing facilit y litigation are even more uncommon than general lawsuit research that simply c ollects numbers of lawsuits and the lawsuit classification, e.g., medical negligenc e, slip and fall, breach of contract. Without in-depth data collection and analysis, simply reporting numbers of lawsuits does not fully explain the impact of reform measures institut ed by state or national legislative actions. With the passage of Fla. Laws ch. 45 (2001a), legislation designed to decrease nursing facility litigation, Florida has been placed in a unique position to provide an arena for such data collection and analysis. Florida’s 2001 legislative efforts had two major aims: 1) reduce the extensive financial impact of litigation, including the cost of general and professional liability insurance premiums, on the state’s nursing facilities; and 2) improve quality of care through periodic increases in nursing facility staf fing. This comprehensive set of tort reforms provides a distinct opportunity to observe outcomes of policy modifications. Previous research on the elements, extent, and impac t of lawsuits on nursing facility quality and costs is described next. Extent of Litigation Medical Malpractice History Medical malpractice lawsuits involving doctors and hospitals have provided the major data sources for healthcare-related litigation research (Baldw in, Hart, Lloyd, Fordyce, & Rosenblatt, 1995; Doorey, 1995; Ely et al., 1999; Kahan, Goldman, Marengo, & Resnick, 2001; Tussing & Wojtowycz, 1997). This may be due in part to the longer

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7 regulatory and documented litigation history of the medical profession; lawsui ts became a major concern for physicians as early as 1850 (Mohr, 2000). Even so, there has been minimal research as to the effectiveness of medical malpractice lit igation as a deterrent to preventing future lawsuits (Studdert, Mello, & Brennan, 2004). In the 1970s, rapidly escalating malpractice insurance premiums began attract ing increased research attention. Medical malpractice research has benefi ted from the availability of national data on licensed health care practitioners and malpr actice actions since 1990 (Health Resources and Services Administration, 2000). These data provide a reasonable measure of national, state, and regional prevalence of malpractice lawsuits and reveal limited differences in claims, case type, and duration trends. No such na tional or state centralized nursing facility litigation and insurance claim data ba nk currently exists (Kapp, 2000a). Florida’s Agency for Health Care Administration (AH CA) currently tracks notices of intent to file lawsuits that are self-reporte d by nursing facilities and plaintiff attorneys (Agency for Health Care Administration, 2006). This is t he foundation of such a data bank, but currently it does not require details regarding complaint outcomes, e.g., settlement amounts, fees, or costs. Medical malpractice literature has found: 1) no correlation between the number of times physicians experience malpractice claims and the quality of their patient care (Entman et al., 1994; Hickson et al., 1994); 2) lawsuits are not always filed when actual malpractice has occurred; and 3) doctors are often sued when they are not at faul t (Brennan, Sox, & Burstin, 1996; Edbril & Lagasse, 1999). These contradictions in lawsuit filing rationale also concern members of the long-term-care industr y as skilled nursing facilities face increasing numbers of lawsuits. The varying deg rees of regulated

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8 medical care that nursing facilities provide, i.e., the presence and services of medical professionals including registered and licensed practical nurses and doctors, appea r to be the rudimental association with medical malpractice. Furthermore, some doc tors who hold positions as nursing facility physicians are affected directly by both fa cility litigation and increased professional medical malpractice liability insurance prem iums (Kutner, 1999). Nursing Facility Litigation History The shortage of research on nursing facility litigation may be based in part on t he lack of uniform national or state standards for reporting nursing facility la wsuit data to central collection agencies as well as other inconsistent recording or re porting methods as noted above (Hedgecock et al., 2003). Nursing facility litigation has been documented as early as 1937 (Bennett et al., 2000), but lawsuits did not increase notably in the 1950s during the early years of nursing facility expansion in the U.S. One study ana lyzed 270 nationwide medical malpractice lawsuits with punitive damage awards that w ere filed between 1963 and 1993 and found nursing facilities were defendants in 29 of these cases (Rustad & Koenig, 1995). Litigation became more active in the mid to late 1980s around the time of the Institute of Medicine’s (IOM) report on the inferior quality of nursing faci lities (Institute of Medicine, 1986). The subsequent passage of the Omnibus Reconciliation Act of 1987 (OBRA-87) (1987a) regulations requiring use of the Resident Assessment Invent ory (RAI) and the Minimum Data Set (MDS) may also be a factor in the increase of nur sing facility lawsuits at that time. These regulations provided a national standard of resident care that could be used as a reference in legal actions (Bedell, 2003; Brady, 2001).

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9 Bennett et al. (2000) reported that of the 173 pressure ulcer medical malpractice l awsuits identified from 1937 through 1997, significant increases in the median number of filed cases per year occurred both after the passage of OBRA-87 and following the official publication of the regulations by the Health Care Financing Administration se veral years later. The 66 nursing facility defendants identified in the Bennett et al. (2000) study represent only a very small percentage of the total number of lawsuits brought aga inst nursing facilities nationally. Hillsborough County, Florida was found to have 456 nursing facility lawsuits filed from 1991 2000, with 81% of all cases filed after 1995 (Hedgecock et al., 2003). In eight other Florida counties, 924 nursing facility l awsuits were filed during 1996 – 2000 (Groeller, 2001a; Lamendola, 2001). This study found nursing facility litigation activity continued to increase each year in these counties reflecting the same pattern established in Hillsborough County. A single, large T ampa, Florida law firm with offices in several states reported having approxima tely 1,000 pending lawsuits as of January 2001 (Fisk, 2001b; Miller, 2001). Litigation and Insurance Claims Connection The most used sources for gauging the extent of nursing facility litigation are insurance company paid claims reports. In the mid 1990s, nursing facilities began to experience extreme increases in general and professional liability insura nce premiums (Edwards, 2000; Hedgecock & Salmon, 2001; McDonald, 2001; Oakley & Johnson, 2001; Thomason, 2001) which were thought to be caused by the increasing number of reported insurance claims being paid out in lawsuit settlements. Monetary se ttlements and jury awards have increased (Bradford, 2000; Hawryluk, 1999; Schapp, 2001). Using the

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10 Lexis-Nexis™ Academic database and combining the terms “nursing facili ties,” “litigation,” “million,” and “Nursing Home Litigation Reporter,” a search o f January 2003 through January 2005 revealed articles mentioning 17 separate nursing facility lawsuits with jury awards ranging between $1 million and $313 million, an average of $36 million (ALM Properties Inc., 2003; Andrews Publications Inc., 2000; Fisk, 2001a; NLP IP Company American Lawyer Media, 2002a, 2002b, 2002c, 2002d, 2002e, 2002f, 2002g, 2002h, 2002i; The New York Law Publishing Company, 1999, 2001a, 2001b, 2001c, 2002a, 2002b). These figures are not representative of final amounts all plaintiffs receive. Some plaintiffs are willing to settle for much smaller sums in or der to prevent further delay in receiving funds (e.g., the plaintiff in the $313 million case settled f or $20 million). Additionally, a state’s limits on non-economic or punitive damages may re sult in judges reducing some jury awards (Elliott, 1999; Fisk, 1998). One hypothesis suggests that alleged nursing facility misconduct in resident car e results in a circular chain of events. These events include large lawsuit sett lements or awards, large insurance claims paid, large premium increases linked to those claims, mounting public awareness through media attention on increasing numbers of lawsuits involving nursing facility misconduct and large settlements (Fisk, 2001b; Groeller 2001b; Lamendola, 2001; Schapp, 2001; Thompson, 1997), leading to the filing of even more nursing facility-related lawsuits (Flood, 1998; Scott, 2002). Although lawsuits have been associated with climbing liability insurance premiums as a consequence of claim payments, this relationship is not necessaril y accepted by some who feel premium increases are connected to bad economic investments and decisions on the part of insurance companies (Hunter, 2002; Sloane,

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11 2002; The Foundation for Taxpayer & Consumer Rights, 2002). Concurrent trends in increased lawsuits and premiums can be seen in any case. For example, Insurance Services Office, Inc. found nursing facility general liability and medic al professional liability insurance premiums increased an average of almost 18% per year fr om 1992 through 2000 throughout the nation. Florida nursing facilities had a $1,352 insurance claim per occupied bed – 6.5 times greater than the rest of the country (Yezzi, 2002). Losses greater than $50,000 made up 17% of claims nationwide; however, in Florida, 56% of all claims exceeded this amount. Hedgecock et al. (2003) found that Hillsborough County, Florida lawsuit settlements in the latter half of the decade (1996 2000) wer e $485,000 on average, a 70% increase over the mean reported $286,000 settlement during the first half of the decade (1991-1995). A 2005 Aon Risk Consultants, Inc. analysis of the general and professional liability insurance status of nursing facilities found the national number of c laims filed per 1,000 occupied beds in 2004 doubled claims filed in 1996, i.e., 13.1 compared to 6.0. Average claim severity more than doubled from $72,000 to $176,000 as well (Bourdon & Dubin, 2005). Florida reported 34 claims per 1,000 beds in 2004 compared with 38 per 1,000 beds in 2001. The state also experienced a decrease in loss cost (the overall cost per insurance claim) per bed for the same period from $8,870 in 2001 to $7,500 in 2004. However, where some states showed decreases in loss costs and claim numbers, other states increased. For example, Bourdon & Dubin (2005) found Arkansas increased from 23 to 26 claims per 1,000 beds and from $11,480 to $16,980 loss cost per bed from 2001 until 2004. Nursing facility insurers are providing findings that increased lawsui t filing

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12 trends in certain states or regions of the country are occurring with an undeniable financial impact on nursing facilities located in these areas. In actuality, litigation costs extend well beyond specific states or indivi dual nursing facilities (Office of the Assistant Secretary for Planning and Evaluation, 2002). On a collective level, all taxpayers are affected by loss costs in that most nursing facility beds are funded either by Medicare, Medicaid or both of these publicly funded progra ms. Medicaid disbursements to nursing facilities were $17 billion in 2003 (Centers for Medicare & Medicaid Services, 2005). In 2003, the average per diem loss cost portion of Medicaid reimbursements rose to 5% from 2% in 1995 (Bourdon & Dubin, 2004). Based on the available 2003 Medicaid nursing facility disbursement figure, that represe nts approximately $85 million meant for resident care that may have been diverted to the payment of litigation claims in 2003. Lawsuit Elements Quality of Care Issues Lawsuit allegations usually involve the quality of care a resident has recei ved from a nursing facility. Attempting to regulate quality of care may adve rsely affect the provision of higher quality of care overall. The nursing facility focus may be del iberately placed on more publicly scrutinized matters (Institute of Medicine, 2001) rather t han on areas which are not analyzed as closely but that are just as important for res idents (Casalino, 1999). For example, facilities may emphasize documentation and the avoidance of any MDS survey infractions rather than unmeasured areas of care su ch as one-on-one staff interaction with residents, or residents’ and their families’ s atisfaction with care (Mor, 2005; Troyer & Thompson, 2004). The MDS is a mandatory,

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13 standardized screening tool for measuring clinical and functional status of res idents used by facilities certified by the Centers for Medicare & Medicaid Servi ces (CMS). As a component of the Resident Assessment Instrument (RAI) process that identifie s resident problems and plans resolutions, the MDS has 17 major sections containing more than 400 choices for describing various aspects and levels of a resident’s health and func tional status. Resident assessment occurs at admission, quarterly thereafter, and u pon any significant change in a resident’s clinical health status. Nursing facility survey deficiencies in quality indicators identified i n the MDS have been found to have a significant effect on the number of lawsuits filed against facilities (Centers for Medicare & Medicaid Services, 2002a; Johnson, Hedgec ock et al., 2004). For example, development and complications from pressure ulcers, an MDS quality marker, have been frequently noted in individually-filed resident-care r elated lawsuits and are considered one of the most serious quality areas requiring pre ventative measures in order to avoid deficiencies and possibly lawsuit complaints (Bennett et al., 2000; Hedgecock et al., 2003; National Pressure Ulcer Advisory Panel Board of Directors, 2001; Voss et al., 2005). Concentrating on what appear to be obvious complaint areas may bring about some quality improvements, but is not necessarily the total answer to avoiding consume r dissatisfaction or lawsuits directed against nursing facilities (Stevenson, 20 05; Troyer & Thompson, 2004; United States Government Accountability Office, 2005). The interpretation of quality is important but its subjective nature creates confusi on across states, among nursing facilities and even in individual lawsuits. Part of the iss ue of fewer

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14 available studies may involve how quality of care is defined (Feinstein, 2002) and wha t role litigation plays in that definition. Common Claims The 29 nursing facility lawsuits identified from 1963 – 1993 by Rustad & Koenig (1995) included complaints of death or harm to a resident resulting from insufficient staffing, neglect, development of pressure sores, falls, inappropriate use of restraints, or other less frequent claims. These allegations (claims, accusations or ass ertions yet to be proved, but listed as support for individual counts or charges in lawsuit documentation), along with violation of residents’ rights, abuse, procedural errors, emotional distr ess, malnutrition, falls, dehydration, and excessive weight loss are familiar ch arges identified in current nursing facility litigation research (Bennett et al., 2000; Cobb & W arner, 2004; Groeller, 2001b; Hedgecock et al., 2003; Hedgecock & Salmon, 2001; Lamendola, 2001; Moss, 1998; Office of the Assistant Secretary for Planning and Evaluation, 2002; Studdert & Stevenson, 2004; Thompson, 1997; Voss et al., 2005). Previous nursing facility research involving somatic problems, e.g., pressure ulcers (Benn ett et al., 2000; Berlowitz, Bezerra, Brandeis, Kader, & Anderson, 2000; Hedgecock et al., 2003), wei ght loss, malnutrition (Burger, Kayser-Jones, & Bell, 2000), dehydration, urinary incontinence (Brandeis, Ooi, Hossain, Morris, & Lipsitz, 1994; United States Genera l Accounting Office, 1998), infections of multiple origins (Richards, 2002), found these quality of care issues as highly problematic (i.e., related to deficiency ci tations, quality of care, or litigation) for the nursing facility industry not only by plaintiff a ttorneys, but also by the federal government, the medical community, the insurance industry, the gener al public, and the media.

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15 Nursing Facility Characteristics Research has found that certain nursing facility characteristics, e. g., staffing levels, ownership (profit status), affiliation (chain membership), locale, r esident case mix, available beds, and occupancy rate have been associated with either survey def iciencies or litigation. Insufficient staffing has been related to higher levels of de hydration in residents (Kayser-Jones, Schell, & Porter, 1999). Fewer available certif ied nursing assistant and registered nurse hours have been associated with greater tot al survey deficiencies including quality of care and quality of life deficiencies (Ha rrington, Zimmerman, Karon, Robinson, & Beutel, 2000). For-profit and chain affiliated nursing facilities have been associated w ith greater survey deficiencies of all types (Harrington, Woolhandler, & Mullan, 2001; Harring ton, Zimmerman et al., 2000; Hawes & Phillips, 1986). Northeastern facilities wer e found to be associated with fewer deficiencies of all types than facilities loc ated in the southern, midwestern or western sections of the country (Harrington, Zimmerman et al., 2000) Sicker resident populations create a greater level of negative conditions tha t can result in higher and more MDS deficiencies (Harris & Clauser, 2002). Larger nursing f acilities have been associated with greater total survey deficiencies than facilitie s having fewer beds (Harrington, Zimmerman et al., 2000). Higher nursing facility occupancy rates have been associated with greater numbers of survey deficiencies involving pressur e ulcers, restraints, and psychoactive drug usage (Castle, 2001). Nursing facilities having greater numbers of available beds were more l ikely to be sued (Johnson, Dobalian et al., 2004a, 2004b; Johnson, Hedgecock et al., 2004; Oakley & Johnson, 2001; Polivka, Salmon, Hyer, Johnson, & Hedgecock, 2003). Affiliation and

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16 ownership were not found to be consistent predictors of greater lawsuit activity. F or example, in a national study and a Florida statewide study (30 counties), for-pr ofit ownership was found to be a predictor of litigation while chain affiliation was not (Johnson, Dobalian et al., 2004a, 2004b). Conversely, research examining litigation in one Florida county found that chain affiliation was predictive of lawsuits being fi led against nursing facilities while for profit ownership was not (Johnson, Hedgecock et al., 2004). Nursing Facility Regulation Federal Context Regulatory focus and general public opinion of the relationship between nursing facilities and levels of resident care are an integral part of the backgr ound of increased nursing facility litigation activity. Nursing facilities did not become a dis tinct matter of federal attention until 1935 with the inception of the Social Security Administration t hat required authorized residence locations for recipients of Social Security be nefits. Payment of Old Age Assistance benefits were disallowed to residents of publi c institutions such as poorhouses, so individuals looked for care and assistance in privat elyrun settings (IOM, 1986). Federal involvement with nursing facilities began to expand in 1950 after legislation was enacted permitting Social Security benefits to be distr ibuted directly to beneficiaries residing in public institutions including nursing facilities Amendments to the Hill-Burton Act in 1954 provided funds for nonprofit organizations to construct skilled nursing facilities to be built in conjunction with hospitals, using similar st andards

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17 and floor plan designs (IOM, 1986). At that time, troublesome and deficient areas of car e quality became increasingly vital to address as federal financial inve stments in nursing facilities grew along with the numbers of residents rapidly filling avai lable beds. Beginning in the early 1950s, nursing facilities drew negative public attention and made unpopular headlines with the deaths of at least 229 residents over a 12-year period due to fires from defective-wiring or other facility safety failures ( ElderWeb, 2005). Numerous governmental efforts, including the 1956 Commission on Chronic Illness, the 1959 Senate Subcommittee on Problems of the Aged and Aging, and the 1969 – 1973 Moss Committee hearings (IOM, 1986), addressed inconsistent nursing facility s tandards and procedures throughout the United States. Some of these problems included issues of poor facility environmental quality and resident abuse, and were attributed to the wi de variation of licensure and enforcement regulations across states. The 1965 inception of Medicare and Medicaid amplified federal involvement. The lack of state-wide uniformly structured and enforced nursing facility guidelines resulted in the majority of America’s facilities not meeting required f ederal safety and health criteria (IOM, 1986). Under Medicaid program amendments made in 1967, provision for regulatory oversight was allocated to individual states (IOM, 1986; La timer, 1998). However, these measures still did not diminish the struggle with problems of nursing facilities that could not satisfy Medicare and Medicaid standards a nd between 1969 and 1971, over 1,400 facilities closed (National Center for Health Statistics, 1974). Introduction and enforcement of applicable and practical regulations continued to be a roller coaster ride for nursing facilities, with more lows than highs in public opinion and confidence in the industry. The Health Care Financing Administration contrac ted

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18 with the IOM to study nursing facilities and recommend regulatory changes that would eliminate or improve substandard facilities, resident abuse, or deficient care identified by various sources and studies from the previous 15 years. In 1986, the IOM produced a report that included compelling recommendations to the federal government on the necessity of keeping residents safe while ensuring the provision of quality car e and protection of rights, and assuming accountability for publicly-funded resident-c are expenditures (IOM, 1986). Congress passed OBRA-87 (1987a) based upon IOM’s recommendations and incorporated the most all-inclusive nursing facility reg ulations since the 1965 enactment of Medicare and Medicaid (Latimer, 1998). OBRA-87 led to improvements in some nursing facility care areas (Berlowitz et al., 2000; Sirin, Castle, & Smyer, 2002). However, several federal studies have found tha t major problems continue to be encountered. During a two-year period, 1999 2001, nearly one-third of the country’s nursing facilities were cited for abus e of or harm to residents. Texas led the nation with 39% of its 1,148 facilities cited for serious viol ations (Health Education and Human Services Division, 1998; Minority Staff Special Investigations Division Committee on Government Reform, 2001, 2002). The need for regulations cannot be ignored, but oversight is highly problematic. Executing Federal Regulations The Centers for Medicaid & Medicare Services (CMS) contract with individual state surveying agencies to conduct nursing facility assessments eve ry 9 to 15 months to ensure facility adherence to standards outlined in the 1987 Nursing Home Reform Act implemented as part of OBRA-87 (1987b). Before surveyors make an onsite inspection of a nursing facility, specific indicators triggered by MDS nursing faci lity records

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19 submitted to CMS are used to select resident samples to observe and interview. Beca use it includes definitions and coding categories, the MDS provides a standardized mea ns for conveying resident problems and conditions within facilities, between facilitie s, and between facilities and outside organizations (Centers for Medicare & Medic aid Services, 2002a). Survey deficiencies result in citations that are entered in the CMS Online S urvey, Certification, and Reporting (OSCAR) database and are used to rank nursing faci lities according to their performance on these measurements. This information is als o made publicly available on the Nursing Home Compare website maintained by CMS (2002). Survey citations have been used by plaintiffs’ attorneys in case preparati on and to discredit facilities by referring to frequency and type of deficiencies cited in state surveys (Fox & Volberding, 1998; Juliano & Fell, 2000; Lubin, 1999; Sullivan, 1996). However, the survey process has been called into question, particularly inconsistencies ac ross states and individual surveyor differences in interpretation of deficiency definitio ns, and casts some doubt on the soundness of data being reported (Robbins, 1994; Spector & Drugovich, 1989; United States Government Accountability Office, 2005). The survey and what it implies may be an important link between these measures of quality of c are and lawsuits in any case. Florida Florida addressed nursing facility resident rights well before OBRA87. In 1976, residents’ rights regulations were established in Fla. Stat. § 400.022, and resemble many of the rights adopted in OBRA-87. The Florida law’s purpose was to delineate clea rly

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20 nursing facility requirements for providing residents with proper, fair, and dec ent treatment and environmental conditions. Even with these important changes in place, in 1979 a Miami grand jury convened to investigate complaints of detestable housing conditions and deplorable resident treatment brought against area nursing facilities. Over half of all loca l facilities were found to have major deficiencies related to unacceptable conditions and inadequate resident care. Acting upon these findings, in June 1980, the Florida legislature create d a civil cause of action (Fla. Stat.§ 400.023) which included the right to recover actual and punitive damages along with attorney’s fees (Crotts & Martinez, 1996). Actual da mages included economic (verifiable monetary losses, e.g., past and future medical expens es or loss of past and future earnings caused by the injury, damages, or death being clai med) and non-economic losses (e.g., damages for pain and suffering, emotional distress, l oss of consortium or companionship, loss of capacity to enjoy life, and other intangible injuri es that do not include any direct economic loss and have no precise value) incurred due to negligent behaviors on the part of the facility. Punitive damages could be awarde d to impose substantial financial redress and penalty for conspicuously offensive and deliberately harmful actions on the part of the nursing facility (Florida Convale scent Centers, Inc. vs. Ellis, 2001). The intent was to make it easier for residents to ac quire legal representation by assuring attorneys that fees and costs would be covered e ven if residents might be elderly and without guaranteed income. Unintended Consequences of Regulation Nursing facilities are one of the most regulated health care industries (D eacon, 2000; Schneider, 2000). The process of refining laws and regulations can result in higher

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21 levels of nursing facility compliance and, therefore, improved quality of care for residents (Fries et al., 1997; Kapp, 2000b; Phillips et al., 1997). OBRA-87 regulations have acted as a catalyst in changing certain nursing facility procedures that were detrimental to residents, with resultant positive outcomes demonstrated (Centers for Medica re & Medicaid Services, 2002b; Guttman, Altman, & Karlan, 1999; Harrington, Carrillo, Thollaug, Summers, & Wellin, 2000; Mahoney, 1995; Sirin et al., 2002). Some see OBRA-87 as a solid foundation for ensuring quality of care, but acknowledge that it must be consistently enforced if the intended goals are to be accomplished (Hemp, 1994; IO M, 2001; Schneider, 2000). However, the establishment of standards also generates a measure of complia nce failure, allowing a basis for lawsuits. As noted above, research identified t hat OBRA-87 resulted in significant increases in the number of lawsuits filed in federal and s tate appellate courts during the 5-year period immediately following its passage and again for the 5-year period after publication of OBRA-87 regulations in 1992 (Bennett et al., 2000). Using a “command and control” (Kapp, 2000b) approach to compel adherence to meeting resident quality of care standards has been considered by some as anta gonistic and adversarial in nature (Andrzejewski & Lagua, 1997; Studdert et al., 2004) and can lead to “defensive medicine” behaviors (Studdert et al., 2004). “Defensive medicine” refers to often costly medical responses or behaviors carried out strictly to avoid liability rather than to benefit the patient (Anderson, 1999; Wiener & Kayser-Jones, 1989) and is more commonly associated with physicians, clinical problems, and legal act ions (Litvin, 2005; Office of the Assistant Secretary for Planning and Evaluation, 2002, 2003). The

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22 general concept is easily transferable to the nursing facility sett ing when some nursing facilities may not admit high-risk residents or may send residents who suddenly develop a serious pressure ulcer or suffer a rapid general health decline to hospitals i n order to avoid possible MDS deficiency citations. A less serious situation (but one encountered frequently in nursing facilities) i s when staff must document care thoroughly for regulation compliance and have very lit tle personal discretion in sharing one-on-one unstructured time with residents even if thi s is what residents might prefer and could be emotionally constructive for both resident s and staff members. The redirection of time, efforts, and finances to meet what a re considered measurable standards of care inadvertently can result in failure to care f or residents in areas that are equally or more important to the resident and her or his family (Casalino, 1999; Diamond, 1992). Plaintiff attorneys frequently focus on “standards noncompliance” in nursing facility lawsuits and are often successful because some failing healt h conditions may not be averted in every resident (Brandeis, Berlowitz, & Katz, 2001). A major problem t hat facilities face in case defense is getting courts and juries to understand the heterogeneousness of aging and disease processes in the overall elder population a nd particularly nursing facility residents. For example, regulations that refer to noncompliance due to the presence of weight loss in a resident, do not necessarily take into account the loss of ability to process nutrients and appetite and weight loss as a part of a more prolonged functional decline or disease process that often is a part of dyin g (Lunney, Lynn, Foley, Lipson, & Guralnik, 2003; Morley, 2001).

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23 Until May 2001, Florida nursing facility lawsuits fell under old provisions of the Residents’ rights statutes which asserted “adequate and appropriate healt h care” as a specific right in meeting a standard of care for nursing facility resi dents (Fla. Stat. § 400.022, 1976). However, the statutes did not specifically define this wording and it was frequently and broadly interpreted by attorneys as an expression of “strict liability” on the nursing facility’s part (Priest, 1991). In other words, nursing facilities m ight be viewed as having absolute liability for any resident outcomes regardless of any subst antiating defense for legitimacy of certain outcomes, e.g., the development of pressure s ores as a possible outcome of various combinations of co-morbidities, life-long individual choices, and advanced age. This interpretation contributed to the litigation upsurge nursing facilities and insurance companies were earnestly concerned with in report s to the Florida legislature and the public (Oakley & Johnson, 2001). Tort Reform Example: California Some tort reform policy advocates relate the litigious situation in many st ates, including Florida, to inefficient and ineffective legislative approaches to l itigation (Manos, 2001). They suggest that the right formula has not been generated yet to defle ct growing numbers of lawsuits adequately. One state that is considered a positive legislative model is California. California has the largest number of nursing facilities in the nation with approximately 1,350 facilities (Centers for Medicare & Medicaid Services 2002). The state enacted legislation in 1975, the California Medical Injury Compensation Ref orm

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24 Act (MICRA), in an effort to alleviate a "crisis of availability" in l iability insurance brought on by increased claims and premiums (Werner, 1995). MICRA is a tort reform model that is aimed at medical malpractice which tangentially affects nursing facility litigation and has been upheld in federal a nd California state courts (Coffin, 2002; Hudson, 1990; Yoon, 2001). It incorporates the major components most tort reform advocates promote: a $250,000 cap on non-economic damages; a sliding scale limiting attorney contingency fees to a maxi mum of 15% of awards over $600,000 (Werner, 1995); a collateral source offset rule wherein juries a re notified of any payments plaintiffs may be receiving from any sources for inj uries (e.g., health or disability insurance) making lower damage awards possible; and perm itting periodic damage award payments instead of one-lump-sum awards. It is believed MICRA’s enactment allows the treatment and care of high-risk cases wi thout hesitancy by medical entities. Conversely, it is thought MICRA contributes to a lack of representation for plaintiffs with legitimate complaints because attorne ys become reluctant to take cases unlikely to result in damage awards (Hudson, 1990; Zuckerm an, Bovbjerg, & Sloan, 1990). A recent study found MICRA has been successful in reducing medical malpractice insurance costs compared to other states. California ranked thir d nationally in having the lowest average claim payment, $132,696, in 2004. Furthermore, after adjusting for inflation, as of 1998 MICRA had contained California’s average large l oss payouts over $1 million to $900,000, well below the state’s $1.2 million 1975 average (Hamm, Wazzan, & Frech III, 2005). Interestingly, MICRA has not decreased the

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25 estimated per capita medical malpractice lawsuits filed in the stat e nor the number of claims filed against California physicians (Hamm et al., 2005). Furthermore, the quality of care in the state’s nursing facilities has bee n seriously questioned and MICRA appears not to have had any impact on reducing nursing facility deficiency citations (Werner, 1995). A 1998 report by the Health, Education and Human Services Division (1998) prepared for the U.S. Senate Special Committee on Aging found that 30% ( N = 407) of California’s nursing facilities surveyed between 1995 and 1998 had deficiencies that caused death or serious harm to residents and an additional 33% were cited with less serious harm violations. From 2003 to 2005, facilities having deficiencies at the most serious severity level dropped to 11%, but nursing facili ties warranting deficiencies for less serious harm rose to 77% (California He althcare Foundation, 2005; Harrington & O'Meara, 2003). Although there are measurable insurance claim improvements connected to tort reforms in California, MICRA does not appear to have had the impact on the caliber of nursing facility care that can lead to more lawsuits. This scenario typifi es the position that legislation cannot and is not meant to account for every level of care quality (Kapp, 2000b; Office of the Assistant Secretary for Planning and Evaluation, 2003). Litigation Restraint Mechanisms A variety of laws have been put in place by state legislatures in efforts to i mpact litigation. Major legal approaches are described below. The capping of punitive or non-economic damages as a litigation control is a major point focused on by tort reform advocates in states experiencing excess ive malpractice claims (American College of Physicians, 1995; Hudson, 1990; Tyrpin, 2002)

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26 Without guidelines or directives, the jury processes of awarding compensation for intangible injuries or damages, e.g., pain and suffering, or for malicious, willful misconduct are considered by some as too subjective and arbitrary. Providing explic it award limits is meant to prevent the award of damages based on emotionally-charge d jury reactions rather than on a more equitable fact-driven basis (Office of the Assistant Secretary for Planning and Evaluation, 2002). Under the concept of joint and several liability, should a plaintiff claim harm or loss by two or more defendants, damages can be recovered from any of the defendants regardless of their degree of responsibility. For example, if two defendants ar e sued and one of them is bankrupt but 80% responsible for the plaintiff’s injuries or damages, the plaintiff is able to recover 100% of the damages from the solvent defendant that is only 20% responsible for the injuries or damages. Tort reform limits recovery amount s from individual defendants to the proportion of actual fault. The collateral source rule precludes furnishing juries with evidence of any compensation received from other sources, i.e., independent parties not connected to the case at hand, for losses claimed in the case before them. Tort reform effo rts for some states have included enacting laws that allow the jury to be informed of other compensation made to the plaintiff. Collateral sources can be in the form of worker ’s compensation, social security medical benefits, medical services, or insurance policy claim payments. Limiting an attorney’s percentage of the monetary recovery from settlem ents or jury awards is meant to reduce litigation by impacting the number of unmeritorious lawsuits that may be filed with the courts. Attorneys may consider more care fully taking

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27 questionable cases when financial gain is restricted yet expenditures m ay reach the levels of other cases that would be more certain to favor a plaintiff than the case being considered (Litvin, 2005). Tort reforms requiring the use of alternative resolution methods, e.g., mediation or arbitration, are intended to settle issues before a case officially enter s the judicial process. Time and cost savings are the desired outcomes. Time is an important consideration when the older plaintiff is still living. Periodic rather than lump sum payments enable defendants to distribute the financial impact of damage awards over an extended period. This can prevent possi ble bankruptcy for the nursing facility or the facility’s liability insurer Additionally, should the circumstances of the plaintiff change, the court has the opportunity to modify t he payment schedule accordingly (Congressional Budget Office, 2004). Reducing the length of time in which a plaintiff can file a complaint after an injury or damage has occurred or has been discovered, i.e., the statute of limitations is intended to limit liability exposure. The overall purpose is to decrease the cost of insurance (Congressional Budget Office, 2004). Federal Legislative Efforts Federal efforts to contain medical malpractice litigation have gained at tention over the last several years but no measures have been enacted by Congress. The re is concern that passage of federal legislation would displace existing stat e laws meant to address litigation issues more fully. Major areas currently being addres sed by proposed legislation include limiting non-economic damages to $250,000; a three-year statute of limitations or one-year from discovery of injury or damages; limitations of att orneys fees

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28 in settlements of judgments; introduction of collateral source benefits as evi dence; periodic payments of future damages exceeding $50,000; and punitive damages awards and limitations guidelines. (National Conference of State Legislatures, 200 6b). State Legislative Activity From 1984 to 1987, medical malpractice damage tort reforms were enacted by 11 states, and general liability tort reform was adopted by 26 states. With insur ance losses and premium increases surging, states responded by enacting various tort li ability reforms, attempting to restrain costs and alleviate what was considered to b e an insurance premium “crisis,” a scenario almost identical to the one voiced over the last se veral years across the country (American Law Institute, 1993; Flood, 1998; Hillman, 2002; Warfel, 2001). In the early years of the 21 st century, state legislatures became exceptionally active, and during the 2005 legislative session, 48 states presented over 430 bills involving various aspects of medical malpractice reform (National Conference of State Legislatures, 2006b). Of these bills, 60 were ratified by 32 states. Caps on punitive a nd non-economic damages were components of five of these enactments (National Conference of State Legislatures, 2006c). Thirteen states limited non-econom ic damages in one form or another. Limits ranged from $250,000 to $1 million per individual or facility. Georgia, South Carolina, Missouri, Texas, and West Virginia incorpor ated aggregate limits ranging from $250,000 to $1.05 million regardless of the number of defendants, i.e., individuals or facilities. Mississippi enacted automatic incr eases, taking the $500,000 current limit to $750,000 in 2011 and $1 million in 2017. Other non-

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29 economic damages containment efforts found states aggregating total amounts payabl e to plaintiffs according to set limits of combined totals. Table 2 provides an overview of 2002 through 2005 enacted tort reform measures specifically affecting medical liability matters or nursing facil ities.

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Table 2 Selected Enacted Tort Reform Measures 2002 -2005 Enactment Year and State Reform a 2002 2003 2004 2005 Non-economic damages NV Medical liability Personnel (e.g., doctors) MS AK, FL, OH, OK, CO, TX WV MS, OK AK, IL, GA, MO, SC Facilities (hospitals, clinics) TX, WV IL, GA, MO Nursing facilities TX GA, MO Punitive damages AK, AR, MT, TX MS MO Joint & several liability MS, NV, PA AR, MN, TX, WV MS, OK GA, MO, NH, SC, WV Statute of limitations MS, PA OH MO Collateral source PA OK OH MO Arbitration, mediation, pre-trial panels PA UT NH, SC Periodic payment of future damages PA AR GA, IL, M O Early settlement offers CO, TX GA 30

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Table 2 (Continued) Enactment Year and State Reform* 2002 2003 2004 2005 Other Frivolous lawsuits SC Attorney fees OH FL Vicarious liability CO Language/wording b OH, SD, UT AR, NY GA, SC a Only changes impacting medical liability areas or n ursing facilities (where specifically noted in refo rms) have been listed. Measures affecting other typ es of civil actions have been excluded. b Specifically changes existing laws to clarify meani ngs or extend applicability to other entities; e.g. in 2002 Utah added “health care facility” to the definition of “health care provider” in the Health Care Malpractice Act s o that the state’s medical liability reforms would apply to nursing care facilities and residential as sisted living facilities. (American Tort Reform Association, 2005; National C onference of State Legislatures, 2006a)31

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32 Florida’s Tort Reform Journey Background Florida began focusing on tort reforms, specifically addressing limiting monetary damages, in response to a perceived overly reactive litigious environment in the 1980s. I n 1988 Florida’s medical malpractice laws were amended to limit monetary dam ages (Medical Malpractice and Related Matters, 2003). Florida’s legislatur e proposed further tort reforms in 1997 to address the concerns of businesses and individuals, including those involved with nursing facilities and healthcare, but these reforms were not pass ed. In 1998, Florida Senate Bill 874, “Negligence/Liability Law Application,” pas sed but was vetoed by Governor Lawton Chiles on the grounds that it gave unfair advantage to big businesses and was inadequate in compensating innocent victims in its provisions. I n 1999, Florida House Bill 775, “Civil Actions,” passed and was signed by Governor Jeb Bush. This legislation focused mainly on joint and several liability, punitive damage s, vicarious liability of motor vehicle owners, and statutes of repose involving product liability. HB 775 also included caps on damages for the majority of lawsuits. However, the bill provided exceptions for cap limits and legal action requirements for cases that involved: defendants who had been drinking; the abuse of older persons, children, or the developmentally disadvantaged; or Chapter 400 (long-term care facilities) ca ses (Peck, Marshall, & Kranz, 2000). In effect, HB 775 did not apply to nursing facility litiga tion. Florida nursing facilities began notably filing for bankruptcy in 1997. The implementation of the Federal 1997 Balanced Budget Act decreased Medicare reimbursements from cost-based to a prospective payment system and result ed in considerable financial shortfalls for some larger multi-facility nursi ng facility companies,

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33 contributing to some of these bankruptcies (Brady, 2001; Duncan & Eikman, 2001), but large lawsuit settlements were also considered to be a substantial factor in facility closings. By 2000, insurance carriers had discontinued coverage or increased premiums for Florida nursing facilities, often in excess of 100%, causing some facili ties to operate without insurance and exposing them to the risk of closing due to financial losses sustained from costly lawsuits. The Task Force on the Availability and Affordabi lity of Long-Term Care was created in May 2000 (House Bill No. 1993, 2000) to research and address possible solutions in four major areas of public concern: nursing facility alternatives, financing long-term care, improving nursing facility qual ity, and the impact of litigation and liability insurance on the state’s nursing facility industr y. Tort Reform 2001 As a result of Task Force findings, in 2001 a sweeping nursing facility reform bill was passed, (Committee Substitute for Committee Substitute for Committee Substitute for Senate Bill No. 1202, 2001), which included both tort reforms and quality improvement requirements in nursing facilities (Polivka et al., 2003). Major legi slative changes were put in place to protect plaintiffs and reduce costs to nursing faci lities with a plan of affecting nursing facility litigation by reducing the statute o f limitations, requiring filing prerequisites, eliminating multiple negligence claims alleging death, incorporating specific negligence standards, limiting punitive damages, removing automati c payment of attorney fees, instituting an improvement trust fund, and increasing nursing facili ty staffing levels.

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34 Statute of Limitations With the enactment of Fla. Laws, ch. 45 § 43 (2001g), the length of time for filing lawsuits against nursing facilities was lowered from four to two years f or an actionable incident or two years from the discovery of a cause for legal action with a max imum filing period of four years. However, if it is shown that intentional concealment or misrepresentation by the nursing facility has prevented discovery of wrong ful actions or events, limitations for filing are extended to a maximum of six years from t he date of the incident. Filing Prerequisites A key objective of the 2001 tort reform legislation was to eliminate as many as possible resident’s rights and negligence claims from advancing to the court syst em for resolution. With Fla. Laws ch. 45 § 5 (2001b), prerequisites were established for filing claims with the intent to produce early pre-court settlements. Plaintiffs a re required to participate in pre-suit notice, investigation, discovery, and mediation before a complai nt is formally filed. In the process of pre-suit notice, the claimant or the appropriate representati ve must inform all parties who may become defendants that there is an assertion of violation of the claimant’s resident’s rights or failure to meet the expected standar d of care. The notice must provide a short summary of the injuries the claimant has sustained and a certificate of counsel indicating sufficient research supports that there is a basis for a prospective lawsuit to be filed. After all parties concerned with the clai m have been notified, a lawsuit cannot be filed for 75 days.

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35 During this 75-day investigation period the statute of limitations is suspended, but facility management, insurers, risk managers, or attorneys are to eva luate the claim for liability and damages promptly. Before the end of the 75-day period, the potential defendants are to reject the claim or make a settlement offer in writing. Failure to provide a written response is interpreted by the law as claim rejection. The partie s can file a stipulation for an extension time frame, during which the statute of limitations continues to be deferred. Informal discovery is also performed during this time. Statements may be ta ken from pertinent individuals and relevant documents are to be produced as requested by either party. After the defendant’s response has been received, representatives of both sides are to attend mediation for discussion of the claim and related damages. Mediation can al so be extended upon joint stipulation, during which time the statute of limitations is again suspended. After concluding mediation, the plaintiff has 60 days or the remainder of the applicable statute of limitations to file a lawsuit. Negligence Survival or Wrongful Death – Not Both This reform measure allows for the recovery of economic and/or non-economic damages on behalf of a resident’s estate under the law of negligence survival as outlined in Civil Practice and Procedure, Fla. Stat. § 46.021 (1951), or the recovery of non-economic damages for pain and suffering of the resident’s survivors under Negligence, Fla. Stat. § 768.21 (2003). In the past, damages could be sought on behalf of both the resident’s estate and the resident’s surviving relatives, which could effect ively double the amount of awarded damages. Reducing the filing of dual charges claiming dama ges

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36 resulting from a resident’s death is a mechanism for substantially decrea sing risk exposure and larger settlement amounts. Negligence Standard With the enactment of Fla. Laws ch. 45 § 39 (2001f), a standard for proving negligence was put into place for use with lawsuits alleging negligence b y nursing facilities. The new standard emulates an ordinary negligence claim in t hat: a duty is owed to the resident, the duty is breached in some manner, the breach constitutes a legal cause of harm, and the resident sustains loss, injury, or death as a result of that breac h. This is the same negligence standard applied to physicians in malpractice claims and is comparable with the traditional legal interpretation of “negligence,” i.e ., measuring the extent to which an injury-causing behavior has deviated from a normally expected behavior (Priest, 1991). There is one major difference, however; the level of care a nd treatment a physician provides is considered to be the prevailing standard of c are if “in light of all relevant surrounding circumstances, (it) is recognized as acc eptable and appropriate by reasonably prudent similar health care providers” Medical Malpractice and Related Matters (2002). This concept allows consideration of an event’s speci ficity. For the physician, the existence of a medical injury in a patient does not autom atically infer negligence has occurred. This is not always true for nursing facilit ies. There is no peer review stage of the CMS survey process, and on the MDS, the presence of partic ular conditions in residents is indicative of failure on the nursing facility’s part to pr ovide appropriate care. Incorporating a negligence standard requires plaintif fs to provide evidence that the allegations are highly probable to have occurred and are a legiti mate basis for the counts claimed in the lawsuit.

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37 Punitive Damages – Burden of Proof and Award Limits Constraints for collecting punitive damages from a defendant nursing facility were enhanced in Fla. Laws ch. 45 § 9 (2001c) by placing a strong burden of proof on the plaintiff to show that the actions of any nursing facility defendant(s) were c learly those of “intentional misconduct” or “gross negligence.” Under § 9 (2)(a), intentional mis conduct “means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result, and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Gross negligence signifies “that the defendant’s conduct was so reckless or wa nting in care that it constituted a conscious disregard or indifference to the life, sa fety, or rights of persons exposed to such conduct (§ 9 (2)(b)).” If punitive damages are sought in a lawsuit, the case must go to trial before a j ury who will be presented with the case circumstances upon which to base any award to the plaintiff. Award limits are based upon varying degrees of unprincipled behavior according to Fla. Laws ch. 45 § 10 (2001d) as listed below. a. For most lawsuits, punitive damages are limited to the greater of three ti mes any awarded compensatory damages or $1,000,000 maximum. b. In cases where the actions of management or policy makers were financi ally motivated and the defendant(s) knew their improper, unduly dangerous behaviors could cause injury or harm to a resident, a jury can award damages valued at the grea ter of four times any awarded compensatory damages or $4,000,000 maximum. c. If it is proven that a defendant(s) had specific intent to harm a resident and that in fact harm did result, there are no punitive damages award limits.

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38 Attorney Fees Fla. Laws Ch. 45 § 39 (2001f) also did away with guaranteed recovery of attorney’s fees if a plaintiff prevails. Currently, only minimal ($25,000) fee recovery for injunctive or administrative relief involving non-monetary court interventions is permitted. Section 45 states that if punitive damages are awarded attorney fee s will be calculated based on the final judgment (2001h). In court files where this informat ion was available in Hillsborough County, attorney fees averaged $189,031 with additional administrative costs of $19,865 per case (Hedgecock et al., 2003). Many tort reform advocates throughout Florida and the nation believe controlling attorney fees wil l greatly reduce the number of lawsuits filed because of decreased incentive to file thi s type of lawsuit (Hillman, 2002; Kaufman, 2001; Miller, 2001; Ransom, Dombrowski, Shephard, & Leonardi, 1996). Quality of Long-Term Care Facility Improvement Trust Fund Under Fla. Laws Ch. 45 § 45 (2001h), any awarded punitive damages must be equally divided between the plaintiff and a newly created Quality of Long-T erm Care Facility Improvement Trust Fund. Monies deposited in the fund can be used for mentoring programs for direct care staff, development and implementation of tra ining programs, economic or other incentives to encourage long-term care careers, establishment of resident and family councils in connection with nursing facility care improvement, addressing inadequate care areas identified through regulatory monitoring, and evaluating special residents’ needs (Quality of Long-Term Care Fa cility Improvement Trust Fund, Fla. Stat. § 400.0239, 2005).

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39 Increased Minimum Staffing Levels The 2001 tort reform measures addressed concerns regarding inadequate staf fing contributing to litigation by increasing certified nursing assistant st affing to 2.3 hours of direct care per resident per day beginning January 1, 2002, to 2.6 hours of direct care beginning January 1, 2003, and to 2.9 hours on January 1, 2004. The January 1, 2004 increase was delayed until January 1, 2007. Minimum licensed nursing staffing was increased to one hour of direct care per resident per day as well. Further change s included new requirements in staff training and provision of care by nursing facility owners and operators. Additionally, nonnursing staff were approved to provide feeding assistanc e to residents at mealtime. The need for regulation of the private and public health care sector is without question. People with medical or health needs want assurance they are being care d for in environments and treated by practitioners that meet licensing standards of prof essional and regulatory agencies. Litigation is considered by some as one way to ens ure that meeting professional standards remains the focus of those entities involved in pr oviding medical care and service to consumers. Tort Reform Impact As previously noted, the majority of tort reform research has involved the relationship between enacted legislation and insurance claims. In light of th is, much of the research relates to insurance company losses and premium rates. Those s tudies noting effects on medical malpractice claims possibly come closer to reflec ting how nursing facility litigation might be impacted through tort reform. Findings from tort reform

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40 research have found various effects in those areas addressed by legislation in multiple states. For example, non-economic damage caps have been significantly associated wit h reductions in medical malpractice and general liability insurance cla im payments, insurance premiums, and insurance loss ratios (Born & Viscusi, 1998; Thorpe, 2004; Zuckerman et al., 1990) although not necessarily all of these at the same time. Loss ratios in states capping awards were 11.7% lower than in states without caps. Additiona lly, loss ratios were 13.3% lower in states with discretionary collateral offset s. Loss ratios were 25% lower in states that adopted both reforms. (Thorpe, 2004). Yoon (2001) found that after passage of ceiling limits for punitive, non-economic, and wrongful death damage awards in Alabama, the average insurance claim aw ard significantly decreased when all reforms were in place. Subsequent nullifica tion of all reform laws resulted in the average award increasing $20,000 more than the averag e award before passage of ceiling limits. Capping awards and providing for periodi c payment of awards were found to decrease significantly amounts awarded to plai ntiffs as well as the probability of settling cases out of court (Danzon & Lillard, 1983). Lim iting non-economic damage awards has also been associated with reducing the chances that some lawsuits will be filed at all (Browne & Puelz, 1999). Shortening the statute of limitations has been associated with a significant decrease in the number of lawsuits filed (Zuckerman et al., 1990). Other tort reform s (i.e., joint and several liability, controlling frivolous lawsuit filings, structured/ periodic payments, attorneys' fees, collateral source rules, and liability limits ) were significantly associated with reduction only in general liability losses (Born & Viscusi 1998).

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41 Reforms limiting attorney contingent fees were found to increase the proba bility of cases being dropped, reduce plaintiff award amounts, and decrease the probability of case s going to trial (Danzon & Lillard, 1983). The current research examined the initial short-term effects of 2001 Fla. Law s ch. 45 tort reform measures on litigation experiences of all nursing faciliti es in Hillsborough County, Florida, through the secondary data analysis of individual lawsuit files. Differences in the extent, elements, and outcomes of the lawsuits filed, the fa cilities sued, and the residents/plaintiffs filing lawsuits were analyzed by pre and post tor t reform periods as factors to explore a five-year period that included approximately 2.5 ye ars before and 2.5 years after implementation of 2001 legislative changes. Research Questions and Hypotheses In 2001, tort reform measures were enacted by the Florida legislature wit h the goal of reducing litigation and its financial impact on the nursing facility i ndustry, while ensuring better quality of care through increased staffing requirements. A mong other modifications, 2001 Fla. Laws ch. 45; placed new limitations on awards and imposed new criteria for proving negligence. These changes were expected to incr ease the use of arbitration, mediation, and settlement proposals which could lead to earlier laws uit closure; and reduce the number of lawsuits filed, overall litigation costs, requi red attorney services, lawsuit duration, and jury awards. Aimed at investigating the impact of 2001 Fla. Laws ch. 45, the purpose of this study was to answer the following research questions. 1. Did the extent of lawsuits change in the anticipated direction with the passage of nursing facility tort reform laws, i.e., was there a decline in the averag e number of

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42 lawsuits filed per month post reform, and did the total number of lawsuits filed per nursing facility and per resident/plaintiff decrease post reform? 2. Did lawsuit elements (i.e., charges, allegations, pre court negotiation strategies) change to reflect the intent of the tort reforms, i.e., did the comb ined use of wrongful death and negligence survival damage claims decline post reform ? Or did higher standards for proving negligence result in lawsuits asserting more severe charges and allegations in order to proceed to trial and be awarded damages? Or was there increased use of pre–court settlement strategies that resulted in shorte r lawsuits? 3. Did the outcome of lawsuits evidence a decline in total payouts per lawsuit and jury amounts awarded as was expected with tort reform? 4. For either the pre reform or post reform period, will the structural (faci lity) variables of ownership and affiliation, available beds, and occupancy rate predic t changes in the extent (number) of lawsuits filed per nursing facility occupied bed and per f acility? 5. For either the pre reform or post reform period, will the structural (faci lity) variables of ownership and affiliation, available beds, and occupancy rate predic t changes in the elements of lawsuits as measured by total somatic and staff-relate d allegations per occupied bed, per facility, and per lawsuit? To investigate these questions, the following hypotheses were tested in the st udy: 1. Post tort reform, the extent of litigation against nursing facilities wil l decrease as measured by fewer lawsuits filed per month, per facility, and per resident /plaintiff. 2. Post reform, certain lawsuit elements, including use of combined wrongful death and negligence survival damage claim charges and lawsuit duration, wil l show

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43 reduction. Conversely, other severe lawsuit charges and the use of negotiation methods (i.e., mediation use, arbitration attempts, and settlement proposals) will show incr eases. 3. Post reform, lawsuit outcomes, including total settlements and related payouts jury awards, and punitive damage amounts, will manifest decreases from pre refo rm amounts. 4. Based on previous research, it is predicted that one or more of certain nursing facility structural characteristics will be associated with a g reater number of lawsuits filed against facilities. These include ownership (profit status), affiliation ( membership in a nursing facility chain), greater number of available beds, and higher occupancy rates. It is also predicted that facilities having these characteristics will have hig her average total somatic and staff-related allegations per lawsuit than not for profit, indepen dent nursing facilities operating with fewer beds and lower occupancy rates. Methodology for this study is outlined in Chapter Two.

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44 CHAPTER TWO – METHODS Research Sample All lawsuits against any nursing home in Hillsborough County, Florida and filed during 1999 – 2003 were considered for the study sample. Resident-centered lawsuits are most likely to be filed in the county where a defendant nursing facility is loc ated. The 13 th District Circuit Court is located in Hillsborough County and was identified in previous research as one of two Florida court districts having a publicly acces sible database and easily available court records (Florida Policy Exchange C enter on Aging, 2001). The largest city in the county is Tampa. Hillsborough County is comparable to the nation relative to the 65+ population and median household income (Table 3). However, the state of Florida overall has a larger 65+ population and lower median household and per capita incomes than Tampa and Hillsborough County. Hillsborough County has the fourth largest population in Florida and an estimated average annual population of 1,030,656 during the study period. Table 3 Comparison of Population and Income Five-Year Avera ges 1999 – 2003 Hillsborough County Florida U.S. 65+ Population % 12 17.6 12.4 Median household income $ 40,663 38,819 41,994 Per capita income $ 21,812 21,557 21,587 (U.S. Census Bureau, 2006)

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45 The contact information for 30 active nursing facilities was provided through AHCA (2003) for 1999 – 2003. Five facilities that were active before 1999 were identified from previous research and included because lawsuits were filed aga inst them during the study period (Florida Policy Exchange Center on Aging, 2001). These five facilities included three that were closed during the entire research pe riod, one that was operational during 1999 but subsequently closed, and one that was operational from 1999 through 2001 but subsequently closed. One additional nursing facility was operational during the study period but had no lawsuits filed against it or AHCA occupancy information available and was excluded from the study. The final nursing facil ity sample size was 28. Facility ownership (for profit or not for profit) and affiliation (chain or independent), with the exception of six facilities that changed either their o wnership or affiliation during the five-year study period, were based on the 1999 – 2003 AHCA information contained in the Commonwealth Fund Nursing Home Staffing dataset housed at the University of South Florida (Hyer, 2006). Ownership and affiliation for the six facilities were determined on the status each facility held for the l ongest portion of the research period. Multiple linear regression analyses using change in ownership or affiliation as independent variables found no significant differences in total law suits. Available beds for each facility were determined from AHCA’s online nursing facility locater. Occupied beds per year for each facility were retr ieved from the Commonwealth Fund Nursing Home Staffing dataset (Hyer, 2006). If these data for a specific facility were missing for a particular year, based on availa bility, the previous or

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46 following year’s data for occupied beds was used. This procedure was necessa ry in 16 out of 144 occupied bed entries (11.1%). Measures The court case summary form (see Appendix A) was based on a form developed by Oakley & Johnson (2001) for use in data collection for the Task Force on Availability and Affordability of Long-Term Care and was modified specifically for thi s study. The modified form consisted of a computerized Microsoft Word document that included drop-down menus containing applicable multiple choices for data coding. Residents or plaintiffs are the persons bringing lawsuits. Nursing facilities or def endants are the parties lawsuits are filed against. Variables were based upon previous nursing facility research (Bennett et a l., 2000; Berlowitz et al., 2000; Hedgecock et al., 2003) to test the possible effects of tort reform on litigation, i.e., lawsuit factors could possibly exhibit changes after t he implementation of the 2001 reform laws. Along with background information, three major types of variables were most likely to be impacted: extent (i.e., total count) of lawsuits, the elements (i.e., components and characteristics), and outcomes (i.e ., amounts of settlements, jury awards, and damage claims) of lawsuits (Table 4, Appe ndix B). These variables will be described more fully later.

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47 Table 4 Study Variables Category Variable Extent of lawsuits Multiple lawsuit filings Lawsuits filed per occupied bed Lawsuits filed per nursing facility Elements of lawsuits Resident characteristics Case characteristics Charges Allegations Negotiation measures Duration Time intervals Outcomes of lawsuits Disposition Total settlement amount Costs and payouts Jury awards Punitive damages There were two units of analysis used in the study: lawsuits and nursing facilit ies. Units of analysis, associated variable types, and sample sizes are describ ed in Tables 5 and 6. Lawsuit analyses included extent, elements, and outcome variables (Table 5). Lawsuit analyses using extent and elements variables were based on nursing fa cility residency admission dates occurring before or after May 15, 2001. All lawsuits wit h residency admission dates before this date guaranteed the cause of action and a ssociated lawsuit would fall entirely under old statutes (pre reform) ( N = 466) and all lawsuits with

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48 residency admission dates on or after this date would fall entirely under new r eform measures (post reform) ( N = 68). If nursing facility residency dates were not available, cases with filing dates from January 1, 1999, through May 14, 2001, were categorized as pre reform. Cases filed after this date that did not contain residency admissi on dates were excluded from analyses because it could not be determined if residencies connec ted with the lawsuits were based on pre or post tort reform periods ( N = 12). The pre reform period was 29.5 months in length and post reform was 30.5 months. For analyses related to outcomes, lawsuits were categorized as pre and pos t October 6, 2001, the date of full implementation of the 2001 tort reform laws (Table 5). Lawsuits filed prior to this date had uncapped limits for punitive damages as well a s guaranteed recovery of attorney fees, while those filed after this date wer e bound by 2001 Fla. Laws ch. 45 fiscal limits. One case filed after May 15, 2001, but prior to Oct ober 6, 2001, was based on full implementation tort reform changes. This lawsuit was clas sified as post tort reform. Table 5 Lawsuits as Unit of Analysis – Variable Types and S ample Sizes Extent or elements Outcomes Based on residency admission date 1 Based on lawsuit filing date Pre Post Total Pre Post Total Period <5/15/01 5/15/01 <10/6/01 10/6/01 Nursing facilities 32 27 33 32 29 33 Lawsuits 466 68 534 380 166 546 1 12 lawsuits excluded because residency admission da tes unknown.

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49 When using nursing facilities as the unit of analysis, facilities closed at a ny time during the five-year study period ( N = 5) or that had no AHCA occupancy rate information for the entire study period ( N = 1) were excluded from analyses. Nursing facility occupancy rate data prior to 1999 were not available so cases were selected from the lawsuit database based upon the admission date of a resident’s nursing facilit y stay occurring between January 1, 1999, and December 31, 2003 ( N = 263) (Table 6). The nursing facility analytical file included a pre reform subset of 196 lawsuits a nd a post reform subset of 67 lawsuits. All analyses involving facilities as the unit of anal ysis were performed based on these categories. Table 6 Nursing Facilities as Unit of Analysis – Variable T ypes and Sample Sizes Extent or elements Based on residency admission dates between 1/1/99 a nd 12/31/03 Pre Post Total Period <5/15/01 5/15/01 Nursing facility defendants 26 26 28 Lawsuits 196 67 263 Lawsuits per occupied bed per tort reform period were computed by dividing the number of lawsuits filed against a facility during the particular period by th e number of months in the period, and then dividing the result by average number of AHCAreported occupied beds for the tort reform period. The average number of occupied beds was computed by taking the number of occupied beds for each year, multiplying that by the number of months each figure was applicable for the tort reform period (2001 was spl it between pre (five months) and post (seven months)), adding the totals, and then dividing

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50 the sum by the number of months in the tort reform period. For example, AHCA reports that during 1999 through 2003, facility A had 114, 100, 106, 113, and 110 occupied beds each year respectively. Average beds for the pre reform period would be co mputed as follows: ( (114*12) + (100*12) + (106*5) ) / 29.5 months = 105.02. The post reform computation would appear as ( (106*7) + (113*12) + (110*12) ) / 30.5 months = 112.07. The average lawsuits per occupied bed was computed by dividing total lawsuits b y the average occupancy. Somatic and staff-related allegations per occupied bed per tort reform period w ere computed by dividing the total documented somatic or staff-related allegati ons per facility by the number of months in the period, and then dividing that number by the average number of AHCAreported occupied beds for the tort reform period (describe d above). Somatic and staff-related allegations per lawsuit per tort reform period were computed by dividing the total somatic or staff-related allegations per fa cility documented in a particular period by the number of lawsuits filed against that fac ility in that same period. Occupancy rates for tort reform periods were computed by dividing the average number of AHCAreported occupied beds for the tort reform period (computation previously explained) by the number of available beds for each facility. Bas ed on residency start dates, the average nursing facility occupancy rate for the five-year study period was 87.9%. This compares with a national average of 82.6% for 2003 (National Center for Health Statistics, 2005). The average occupancy rate increase d 9.4% to 92.5% post reform.

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51 Extent The extent of lawsuits was based on the numbers of lawsuits filed. It was examined in relationship to time periods, numbers of lawsuits filed by individual plaintiffs, and number of lawsuits filed per nursing facility. Elements The elements of lawsuits were made up of charges, somatic and staff-relate d allegations, negotiation methods, proceedings, duration, and time intervals between certain motions. Charges listed in the complaint were coded wrongful death, negligence survival, combined wrongful death and negligence survival, breach of fiduciary duty, misleading advertising claims, vicarious liability, Chapter 400 claims, Other, SB 1202 negl igence charges, and lethal negligence. After all data had been collected, the “Other ” category was examined for common charges and the following categories were added: los s of consortium, negligence – common law per se, and negligence – medical. Somatic allegations were charges that specific debilitating physic al conditions were induced or aggravated somehow by the nursing facility. Staff-related a llegations were charges of poor or unprofessional interaction, communication, care, conduct, or management associated with residents. Appendix B contains a list of all alle gations that could be coded. Negotiation methods used in lawsuits included use of mediation or arbitration, and outcomes of mediation attempts. The number and amount of settlement proposals were also included as a negotiation measure. Two dates could be associated wi th closure. The closure dates noted on the courthouse public computer database were associated wit h

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52 orders for dismissal signed by judges. However, 47.1% ( N = 257) of lawsuits contained documentation of suit settlement before the dismissal order date. This date was f requently associated with a scheduled mediation date. Time intervals between lawsuit pr oceedings and lawsuit closure identified possible effects of the filing of particular mot ions, e.g., would the filing of a motion for punitive damages result in the faster settling of a lawsuit? Outcomes Outcomes data included settlements, costs and payouts, jury awards and punitive damage awards. Data were collected from settlement documents, jury verdict doc uments and any source within case files that referenced attorney fees or costs, tot al settlement amounts, net to plaintiff amounts, other payouts of any kind, and jury awards. Jury awards and any fees, costs or net amounts to defendants were recorded also. This information was not readily available and the sample was limited. Data Collection Institutional Review Board (IRB) approval for exemption was obtained based on secondary data analyses of materials previously collected by a public organi zation. Formal lawsuit activity and available details from lawsuits filed betwee n January 1, 1999, and December 31, 2003, i.e., approximately two years before and two years after 2001 Fla. Laws ch. 45 tort reform legislation passage, were include d. The following data sources were used: AHCA’s online facility locater (Age ncy for Health Care Administration, 2003); the Commonwealth Fund Nursing Home Staffing dataset (Hyer, 2006), and public computer database and court case files located at Distr ict 13, Hillsborough County Courthouse, Circuit Civil Department of the Clerk’s Office at the George E. Edgecomb Courthouse in Tampa, Florida.

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53 Using AHCA’s online nursing facility locater, all active Hillsborough Count y facilities were identified and coded. Numbers of occupied beds for individual nursing facilities and ownership types were obtained from Commonwealth Fund Nursing Home Staffing dataset (Hyer, 2006) housed at the University of South Florida, School of Agin g Studies. These facilities, as well as those previously identified in earli er research (Oakley & Johnson, 2001) but not currently listed on AHCA’s online nursing facility locater due to name changes, closings, or other reasons, were systematically searched for us ing the Hillsborough County Courthouse Public Records computer database at the Clerk of the Circuit Court Public Records office for the time period from January 1, 1999, through December 31, 2003. Through the process of threading, i.e., researching nursing facility names us ing all references found in case files, including misspellings, 261 possible defendant names were identified. Using these names, research found 581 lawsuits filed between January 1, 1999, and December 31, 2003, appearing to involve Hillsborough County nursing facilities. After examination of individual court files, 35 cases were eli minated. Ten cases were complaints against assisted living facilities, five were slip-a nd-fall lawsuits brought by non-residents, four involved nursing facilities located in other counties, two we re whistleblower related, one was a worker’s compensation case, one involved employ er discrimination, and 12 lawsuits were based upon complaints not involving nursing facility residents as plaintiffs. For example, one lawsuit involved a reside nt’s spouse filing a suit against the nursing facility for supposedly accusing the spouse of stealing money from the resident.

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54 After removal of unrelated cases, 546 pertinent lawsuits remained. Of these remaining lawsuits, some or all of the information in the files for 14 cases (2.6%) w ere unavailable for review. Six cases were checked out to judges and eight cases w ere unable to be located by courthouse staff during multiple visits to the courthouse. General information about these lawsuits, e.g., opening and closing dates, defendant and plaint iff names, and case dismissal status, could be garnered from the online database. When available this information was used in analyses. All available files were examined and applicable data compiled and coded. In 18 lawsuits (3.3%), two distinct nursing facili ties were named as defendants and one lawsuit involved three separate facilitie s as defendants. Multiple-nursing-facility lawsuits were counted as one lawsuit against each named facility. Two lawsuits sued current and previous facility owners and res ulted in separate dismissal dates or separate trials by ownership. In these cas es, each separate outcome was counted as an individual lawsuit against the facility. Approximately 38% ( N = 208) of lawsuits were filed against previous nursing facility owners or managem ent. The remaining 338 lawsuits were filed against the proprietors listed in the 2003 AH CA data set and management and associated entities identified from lawsuits. All identified lawsuits were recorded in a master list according to Cler k of the Circuit Court-assigned case numbers. Each lawsuit case file was request ed from the Clerk of the Court, reviewed and relevant, available information coded using the case sum mary form. Summary form entries were imported into Microsoft Excel documents for subsequent transfer into an SPSS database for analysis.

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55 Data Cleaning Once data had been transferred into SPSS from summary forms, they were examined for anomalies such as outliers, e.g., variable values outside the appropria te range, and miscoded or illogical entries. Associated case numbers were ident ified and the original summary forms were then retrieved and compared with questionable findings. Necessary corrections were then entered in the SPSS database based on the inform ation retrieved. Analysis Procedures Descriptive statistics were used for preliminary review of facility resident, and lawsuit characteristics. Data entry and statistical analyses wer e conducted using SPSS 14.0 for Windows, Release 14.0.0 SPSS Inc. 1989 2005. For this study, a was set a priori at 0.05. Statistical procedures for each study research question are des cribed next. Question One Did the extent of lawsuits change in the anticipated direction with the passage of nursing facility tort reform laws, i.e., was there a decline in the average number of lawsuits filed per month post reform, and did the total number of lawsuits filed per nursing facility and per resident/plaintiff decrease post reform? The 29.5-month pre-reform period (January 1, 1999 – May 14, 2001) was compared to the 30.5-month post reform period (May, 2001 – December 31, 2003). Average numbers of lawsuits filed monthly during each tort reform period were computed and compared. Total lawsuits filed pre and post reform against each nursing facility were compared also. Some residents filed multiple lawsuits agai nst multiple facilities. By matching resident names, 461 individuals and two couples were identif ied

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56 as responsible for the 546 lawsuits filed during the study period. Analysis of var iance was used to compare mean numbers of lawsuits filed per resident/plaintiff pre and post tort reform. Question Two Did lawsuit elements (i.e., charges, allegations, pre court negotiation strategies) change to reflect the intent of the tort reforms, i.e., did the combined use of wrongful death and negligence survival damage claims decline post reform? Or did higher standards for proving negligence result in lawsuits asserting more severe charges and allegations in order to proceed to trial and be awarded damages? Or was there increased use of pre–court settlement strategies that resulted in shorter lawsui ts? Lawsuits that charged both wrongful death and negligence survival damage charges are considered the most severe. Using the lawsuit database, cas es were selected based on having combined wrongful death and negligence survival damage claims. Two-way contingency table analyses, i.e., cross tabulations, were used to evaluate pos sible relationships between the two tort reform periods and combined wrongful death and negligence survival damage claims, allegations used to support wrongful death and negligence survival charges, and negotiation methods (i.e., arbitration attempt s, mediation, settlement proposals). Pearson chi square was used to determine proportiona l significances. These same measures were then used to analyze all laws uits to evaluate possible relationships between the two tort reform periods and all lawsuit charg es, allegations, and negotiation methods. One-way analysis of variance was used to eva luate the effects of tort reform by testing the relationships between the dependen t variable lawsuit duration and tort reform period (pre and post).

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57 Question Three Did the outcome of lawsuits evidence a decline in total payouts per lawsuit and jury amounts awarded as was expected with tort reform? Question 3 was addressed through one-way analysis of variance to evaluate effects of tort reform by testing the relationships between pre and post reform a nd total settlement dollars, attorney fees, attorney costs, Medicare liens, Medic aid liens, other settlement payouts, net to plaintiff, and jury awards and the independent variable of reform period (pre and post). Question Four For either the pre reform or post reform period, will the structural (facility) variables of ownership and affiliation, available beds, and occupancy rate predict changes in the extent (number) of lawsuits filed per nursing facility occupied bed and per facility? Question 4 was partially addressed by using the occupied beds in the nursing facility as the unit of analysis in ordinary least squares multiple linear r egression analyses. Variance in numbers of lawsuits per occupied bed were regressed on the structural independent variables of ownership (for profit status), affiliati on (chain member), and available beds. Separate multiple linear regressions were conducted for the pre and post tort reform periods. Non-significant models would indicate that lawsuit s were not based on structural variables. In model 2, occupancy rate was added to contr ol for facility bed size and per occupied bed was removed as a dependent variable. The regression equations used were:

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58 Model 1 Lawsuits per occupied bed per tort reform period = B For profit + B Chain + B Beds + B Constant Model 2 Lawsuits per tort reform period = B For profit + B Chain + B Beds + B Occupancy rate + B Constant Question Five For either the pre reform or post reform period, will the structural (facility) variables of ownership and affiliation, available beds, and occupancy rate predict changes in the elements of lawsuits as measured by total somatic and staff-related allegations per occupied bed, per facility, and per lawsuit ? Using the same structural variables for Question 5, ordinary least squares mul tiple linear regressions were also used to predict total numbers of somatic and staff-r elated allegations per lawsuit filed. In model 4 occupancy rate was again added to cont rol for facility bed size and per occupied bed was removed from the dependent variables. The regression models used were: Model 3 Somatic/staff-related allegations per occupied bed per tort reform period = B For profit + B Chain + B Beds + B Constant Model 4 Somatic/staff-related allegations per lawsuit per tort reform peri od = B For profit + B Chain + B Beds + B Occupancy rate + B Constant

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59 In models 2 and 4 the average occupancy rate was added to control for the expected influence of available beds and provide an equalizing factor between fac ilities. Prior to conducting the logistic regression analyses, zero order bivariate correlations were performed on the 21 variables used in the four models to test for potential multicollinearity or shared variance between the predictor var iables that might impact effect size. Variables were continuous or dichotomous, so Pearson’s r was used. The correlation matrix is displayed in Table 7. Among structural variables, significant correlations were found between chain affiliation and for profit ownership ( r = .38, p .05) and between pre and post reform occupancy rates ( r = .66, p .01). The majority of correlations found between lawsuit or allegation variables refle ct expected relationships. Pre reform total staff-related allegations were corre lated with pre reform somatic allegations per occupied bed ( r = .85) as were post reform total staff-related allegations with post reform somatic allegations per occupied bed ( r = .61). Post reform, total somatic allegations per lawsuit showed a negative correlation with all s tructural variables except chain membership as well as a negative relationship with e very other post reform variable. None of the correlations were significant, however. This c ompares to pre reform total somatic allegations per lawsuit having a positive correl ation with all structural variables except for available beds and a positive relationship wit h all other pre reform variables. This seems to indicate that something consequential occurre d post tort reform to impact the relationships between somatic allegations and other varia bles. Adjusted R-squared, degrees of freedom, F -values, p -values, and ordinary least squares multiple linear regressions are reported, as well as standardized be ta to show the

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60 relative contribution of the independent variables to each dependent variable for questions 4 and 5. The results of all analyses are described in Chapter Three.

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Table 7 Correlations between Structural Variables, Lawsuits and Allegations (N = 28) Correlations 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 For profit .38 -.31 -.05 .16 .28 .17 .19 .27 .27 .15 -.25 .08 .25 .29 .05 .28 .14 .32 -.10 .10 2 Chain membership -.22 -.05 .17 .36 .16 .19 .32 .33 .07 .27 .33 .07 .01 -.07 .11 -.08 .06 .09 .09 3 Available beds .12 .36 -.08 .33 .26 -.06 -.11 -.04 .24 -.03 -.02 -.28 -.05 -.03 -.29 -.26 -.13 .12 4 Pre reform occupancy rate .41 .17 .36 .45 .13 .23 .13 .27 .66 .23 .16 .07 .23 .01 .18 .50 .29 5 Pre reform lawsuits filed per facility .85 .97 .97 .83 .84 .12 .26 .12 .43 .26 .30 .44 .17 .30 -.39 .33 6 Pre reform lawsuits POBPM .86 .88 .98 .98 .14 .16 .20 .44 .39 .44 .44 .39 .41 -.21 .32 7 Pre reform total somatic per facility .96 .88 .84 .10 .26 .14 .42 .24 .28 .44 .16 .30 -.39 .39 8 Pre reform total staff-related per facility .85 .90 .10 .23 .24 .50 .34 .34 .52 .22 .39 -.41 .43 9 Pre reform somatic POBPM .96 .11 .19 .20 .41 .36 .41 .42 .37 .38 -.21 .37 10 Pre reform staff-related POBPM .12 .16 .28 .50 .45 .46 .50 .42 .47 -.24 .39 11 Pre reform somatic per lawsuit .02 .13 .31 .31 .10 .21 .11 .22 .27 .22 12 Pre reform staff-related per lawsuit .15 .16 .07 .09 .19 .02 .13 .09 .17 13 Post reform occupancy rate .19 .20 09 .28 .11 .28 -.34 .46 14 Post reform lawsuits filed per facility .94 .70 .94 .69 .91 -.31 .51 15 Post reform lawsuits POBPM .77 .85 .84 .94 -.19 .44 16 Post reform total somatic per facility .63 .95 .73 -.09 .40 17 Post reform total staff-related per facility .61 .94 -.35 .56 18 Post reform somatic POBPM .78 -.07 .33 19 Post reform staff-related POBPM -.26 .52 20 Post reform somatic per lawsuit -.22 21 Post reform staff-related per lawsuit Note Pearson’s r < 37 (non-significant); r = 37 – 48 ( p 05 in italics); r = 49 – 98 ( p .01 in boldface type). POBPM = per occupied bed per month.61

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62 CHAPTER THREE – RESULTS Findings Sample Characteristics Facilities There were 33 nursing facilities sued during the five-year period of the study (1999 – 2003). Five were closed during part ( N = 2) or all ( N = 3) of the study period. Lawsuits filed against these facilities are included where lawsuits a re the unit of analysis. These facilities and their associated lawsuits are not included where fa cilities are the unit of analysis. The 30 nursing facilities that were open for any portion of the five-y ear study period had an average of 140 available beds (range 45 -266) and 120 occupied beds (range 28 – 229). Proprietor types included corporations, a religious partnership, three individuals, a continuing care retirement community, and one closed facility tha t was classified as “other” because exact proprietor type could not be determined. A total of 29 facilities (88%) were for profit and four (12%) were not for profit (Table 6). Two-thirds (64%) were chain-affiliated and 36% were independent. Most nursing facilities were for profit chains (61%) followed by for profit independe nts (27%), not for profit independents (9%), and not for profit chains (3%) (Table 8). The majority of lawsuits (65%) were filed against for profit chain faci lities, followed by for profit independents (25%), not for profit independents (7%) and not for profit chain facilities (3%). Two-way contingency table analyses of la wsuits filed during

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63 tort reform periods by nursing facility ownership, affiliation, and proprietor t ype found no significant differences between periods in these structural variables. Table 8 Ownership, Affiliation by Nursing Facilities and La wsuits (N = 33) For profit Not-for profit Chain Independent Chain Independent N % N % N % N % Nursing facilities ( N = 33) 20 61 9 27 1 3 3 9 Lawsuits ( N = 546) 356 65 139 25 15 3 36 7 Average lawsuit durations based on individual nursing facilities ranged from 13.4 to 39.4 months and average lawsuit-associated residencies based on individual faciliti es ranged from 2.2 to 50.1 months. Based on lawsuits filed against individual facilities, mean somatic allegations ranged from 3.0 to 6.0 per lawsuit, and mean documented staff-related allegations ranged from 4.0 to 12.3 per lawsuit. In Appendix C, lawsuit filings are listed per facility by year. On avera ge over the five-year study period, facilities experienced 16.6 lawsuits each or 3.3 per fac ility per year. Total lawsuits filed against individual nursing facilities ranged fr om one to 42, with a mode of seven lawsuits. As noted, five facilities were closed for the comple te study period or a portion of it. Closure did not prevent litigation, however, and 40 lawsuits (7.3%) involved these facilities. Lawsuits There were 546 lawsuits filed during the five-year study period. At the time of review, 51 lawsuits remained open and 495 (91%) had closed. Of lawsuits remaining open, 53% ( N = 27) were filed in 2001 and 33% ( N = 17) in 2003. Two lawsuits filed in

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64 1999 remained open at the time of review. On average, during the pre reform period plaintiffs filed lawsuits 16 months after the end of the associated nursing faci lity residency while post reform lawsuits were filed 12.7 months after a residenc y ended. This 3.3 month difference was significant, F (1, 478) = 7.02, p = .008, and may reflect sensitivity to the reduction in the statute of limitations implemented in 2001 Fla. L aws ch. 45. Thirty-nine residents filed lawsuits while continuing to reside at the defe ndant nursing facility. Residents/Plaintiffs In lawsuits filed during the study period, women residents were named as plaintiffs in 67.7% of lawsuits ( N = 370), men were listed as plaintiffs in 174 cases, and two lawsuits were filed jointly by married couples residing at the same f acility. Male plaintiffs were significantly younger (66.1 years) at the time of la wsuit filing compared with female plaintiffs (78.0 years), F (1, 104) = 14.22, p < .000. On average, male plaintiffs also died at a significantly younger age (77.1 years) compared wit h female plaintiffs (80.1 years), F (1, 338) = 5.21, p = .023. The average lawsuit for male plaintiffs had 26.8 month duration compared with 24.7 month duration for female plaintiffs. Nursing Facility Residencies Over the five-year research period, lawsuits involved nursing facility resi dencies ranging from one day to 10.3 years. The five-year mean for all lawsuit assoc iated residencies was 18.4 months, which was shorter than a national average nursing facil ity stay of 27.6 months in 2003 (Centers for Medicare & Medicaid Services, 2003). Men and women plaintiffs differed in residency duration during both tort reform periods but only the post reform difference was significant, F (1, 66) = 5.07, p = .028).

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65 Pre reform, the average female plaintiff residency duration was 22.1 months com pared to 17.7 months for men. Post reform, men (2.4 months, F (1, 156) = 6.00, p = .015) and women (4.3 months, F (1, 351) = 26.26, p = .000) had significantly shorter residencies than pre reform. The average plaintiff residency decreased 17.6 months to 3.1 months in lawsuits filed post tort reform compared to pre reform nursing facility residency dur ation, which was a significant difference, F (1, 508) = 31.01, p < .001. An explanation for this reduction is unknown. It is possible that shorter residencies could be related to the admission of residents with greater levels of declining health and advanced or ter minal co-morbidities although statistical analysis showed no significant differe nces between tort reform periods in the number of residents/plaintiffs who were dead at the tim e of lawsuit filing, c 2 (1, N = 530) = 1.43, p = .232. Filing Relationships Two-way contingency tables and chi square tests of independence found children were significantly more likely to act as legal representatives in laws uits involving women plaintiffs, and wives were significantly more likely than husbands to represent their spouses in lawsuits (Table 9). Residents’ children were legal representati ves in 50% of lawsuits filed in 2003, more than any other filing year and significantly greate r than the 32% seen in lawsuits filed in 1999, c 2 (1, N = 195) = 6.78, p = .009 (not shown). Overall, relatives were legal representatives of residents in 74.4% of all lawsuits.

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66 Table 9 Legal Representatives Relationship with Residents/P laintiff by Gender Women N = 370 Men N = 174 Relationship N % suits N % suits c 2 p Child 179 48.4 57 32.8 11.76 .001 Legal guardian, nonprofessional, e.g., best friend 51 13.8 17 9.8 1.74 NS Undetermined – same surname 35 9.5 25 14.4 2.91 NS Spouse 33 8.9 44 25.3 26.10 .000 Other relative 24 6.5 9 5.2 0.36 NS Could not be determined 20 5.4 11 6.3 0.19 NS Self 15 4.1 9 5.2 0.35 NS Legal guardian, professional 13 3.5 2 1.1 2.47 NS Note NS = non-significant. Lawsuit Charges Lawsuit charges did not differ significantly between men and women overall. Lawsuits including loss of consortium charges were significantly more likely to have male plaintiffs, c 2 (1, N =532) = 9.85, p = .002, and common law negligence charges were more likely to be filed by women, c 2 (1, N = 532) = 5.00, p = .025. Allegations As displayed in Table 10, male plaintiffs were significantly more likely to be associated with amputations, dehydration, pressure ulcers, and malnutrition, while women plaintiffs had more lawsuits alleging urinary tract infections and fr acture or other injuries that occurred while residing at a nursing facility. Based upon mean somatic allegations, overall, male plaintiffs appeared to be more seriously ill than fem ale

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67 plaintiffs. No significant differences were found between women and men in staf f-related allegations documented in lawsuits. Table 10 Significant Somatic Allegations by Resident/Plainti ff Gender Women N = 361 Men N = 174 Allegation N % suits N % suits c 2 p Pressure ulcer 208 57.6 120 70.2 7.74 .005 Fracture, other injury while residing 189 52.4 72 4 2.1 4.88 .027 Malnutrition, excessive weight loss 172 47.6 100 58 .5 5.45 .020 Dehydration 157 43.5 99 57.9 9.64 .002 Urinary tract infection 96 26.6 32 18.7 3.94 .047 Amputation 11 3.0 16 9.4 9.59 .002 Individual Defendants Individuals were listed as additional defendants in 81 lawsuits (15.2%). Pre reform, 13.5% of lawsuits added individuals, while post reform, 26.5% did, a significant increase, c 2 (1, N = 534) = 7.74, p = .005. As many as eight individuals were added as defendants in one lawsuit. Individual defendants included owners, directors of nursing, nursing facility administrators, corporate managers, board members, truste es, general partners, and physicians. Lawsuits contained as many as 18 defendants, although thes e were not necessarily individuals. The addition of individuals may represent plaintiff attorneys’ efforts to explore all possible financial recovery avenues.

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68 Proceedings That Affected Lawsuits Pre tort reform, defendant attorneys filed court documents containing refe rences to facility bankruptcy proceedings in 89 cases (19.1%) (Table 11) involving 18 nursing facilities (54.6%), five of which were those facilities that had closed their d oors either prior to or during the research period. Post reform there was a significant de crease, with only one lawsuit documenting bankruptcy proceedings. Bankruptcies were most often associated with management corporations named as defendants along with the individua l nursing facility. Insurance company insolvency proceedings affected eight facilities in 6.2% of lawsuits filed pre reform, with no lawsuits documenting these proceedings post t ort reform, a significant difference. Pre reform, seven lawsuits involving four nurs ing facilities were associated with a combination of nursing facility bankruptc y and insurance company insolvency. The court removed 47 lawsuits (10.1%) from pending status, i.e., actively pursuing litigation, due to bankruptcy or insurance company insolvency issues during the pre reform period. Post reform, no lawsuits were removed from pending status due to these issues, a significant decrease. Court orders reinstating lawsuits t o pending status were found in 23 lawsuits (4.9%) pre reform and no lawsuits post reform. One facility was involved in foreclosure actions that involved three lawsuits. Both nursing facilities and insurers have conveyed their concerns regarding the impact of litigation resulting in the financial failure of their associat ed businesses. Lawsuit documents involving several nursing facilities in the study and their li ability

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69 insurers indicate that this was an issue in Hillsborough County particularly from 1999 through 2001. Table 11 Bankruptcy, Insolvency, and Foreclosure Proceedings by Tort Reform Period Pre N = 465 Post N = 68 Lawsuit proceedings N % N % c 2 p Defendant bankruptcy documents filed 89 19.1 1 1.5 13.20 .000 Case removed from pending due to bankruptcy 47 10.1 0 0.0 7.54 .006 Case reinstated to pending 23 4.9 0 0.0 3.52 NS Insurance company insolvency documents filed 29 6.2 0 0.0 4.49 .034 Bankruptcy and insurance insolvency documents filed 7 1.5 0 0.0 1.04 NS Foreclosure documents filed 2 0.4 1 1.5 1.15 NS Disposition Closed lawsuits ( N = 496) concluded in a variety of manners. There were 441 cases containing orders for dismissal with prejudice. Dismissal with prejud ice means the case is permanently closed and the plaintiff cannot file another lawsuit against t he defendant based on the charges in the complaint being dismissed. Dismissed without prejudice means the case is closed but can be re-filed at a later date should the pla intiff desire to do so. Sixteen lawsuits were dismissed without prejudice. Dismissal s included voluntarily, i.e., all parties were in agreement to end the lawsuit, and involuntarily, i.e ., the court dismissed the lawsuit for its own reasons. Although it could be assumed that the documents found in the 441 cases dismissed with prejudice were indicators of settlement between plaintiffs and defendants, document wording did not necessarily make this evident. Only 39 lawsuits specifical ly

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70 defined settlement details. Confidentiality agreements were present in 42 la wsuits. Of filed complaints, 22 noted “That this is an action for damages that exceed ONE HUNDRED FIFTY THOUSAND DOLLARS AND NO/CENTS ($150,000.00).” Settlement results were not available for these files, but this stateme nt clearly describes financial intent on the part of plaintiffs’ attorneys was to resolve the lawsuit for no less than $150,000. A discussion of settlement outcomes can be found under Major Findings, Question Three Of closed lawsuits, the court dismissed 18 cases (3.6%), most frequently for lack or want of prosecution, i.e., failure by one or both parties for at least one year prio r to the court order to file documents of any kind indicting lawsuit activity. Failure to ser ve appropriate papers and failure to respond to a defendant’s request to the plaintiff to produce required documents were other dismissal reasons. In 72% of these cases the court did not specify dismissal with or without prejudice, leaving it unclear as to whe ther plaintiffs in these lawsuits would be able to re-file in the future. Four lawsuit s were moved to Federal courts. Twelve lawsuits concluded in jury trials (2.2% of all lawsuits filed in the res earch period). This small percentage of cases aligns with professional opinions that less than 10% of lawsuits result in jury trials ( Medical liability in long term care: Is escalating litigation a threat to quality and access? 2004; Stevenson & Studdert, 2003). Of these, two ended in mistrials, three resulted in verdicts in favor of plaintiffs and seven i n favor of defendants.

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71 Major Findings Key results for the four research questions are described next. Question One Did the extent of lawsuits change in the anticipated direction with the passage of nursing facility tort reform laws, i.e., was there a decline in the average number of lawsuits filed per month post reform, and did the total number of lawsuits filed per nursing facility and per resident/plaintiff decrease post reform? Based upon residency start dates and tort reform periods, all findings for Quest ion One support Hypothesis One. There was a decrease of 13.5 (85.8%) lawsuits filed per month during the post reform period. The pre reform monthly average for lawsuits file d was 15.73 and the post reform average was 2.23 (not displayed). The numbers of individual residents involved in lawsuits and the number of lawsuits they were plaintiffs in pre and post reform are listed in Table 12. There were no significant differences between tort reform periods in single or multiple la wsuits filed per resident/plaintiff and the overall mean lawsuits filed per resident was 1.34. Pos t reform, the percentage of residents filing three lawsuits did decrease while the portion of residents filing one lawsuit increased. The overall result was a slight dec rease in the number of cases filed per resident (1.28) post reform. Pre tort reform, nursing facilities averaged 14.6 lawsuits each. Post reform, lawsuits per facility decreased to 2.4. The aim to reduce the extent of lawsuit s was achieved 2.5 years post tort reform.

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72 Table 12 Multiple Lawsuit Filings per Resident/Plaintiff by Tort Reform Period (N = 534) Residents Pre Post Total Lawsuits Lawsuits N % of period cases N % of period cases N % One 329 70.6 50 73.5 379 70.9 Two 57 24.5 9 25.0 131 24.5 Three 7 4.9 1 1.5 24 4.5 Total lawsuits 466 68 534 Single residents involved in lawsuits 393 60 Mean cases filed 1.34 1.28 1.34 Question Two Did lawsuit elements (i.e., charges, allegations, pre court negotiation strategies) change to reflect the intent of the tort reforms, i.e., did the combined use of wrongful death and negligence survival damage claims decline post reform? Or did higher standards for proving negligence result in lawsuits asserting more severe charges and allegations in order to proceed to trial and be awarded damages? Or was there increased use of pre–court settlement strategies that resulted in shorter lawsui ts Lawsuit Charges Passage of 2001 Fla. Laws ch. 45, significantly lowered combined wrongful death and negligence survival damage claims post tort reform, c 2 (1, 527) = 9.37, p = .002 (Table 13), supporting Hypothesis Two. Negligence survival and medical negligen ce charges decreased significantly as well. However, lethal negligence common law negligence, negligence as defined by SB 1202, and breach of fiduciary duty char ges increased significantly post reform. In the pre reform period, the six charges most

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73 frequently documented were Chapter 400 residents’ rights violations (98%), negligen ce survival (59%), wrongful death (57%), combined wrongful death and negligence surviva l damage claims (47%), common law negligence (40%), and vicarious liability (34% ). Post tort reform found Chapter 400 residents’ rights violations (96%) were still the most common charge, but these were followed by common law negligence (54%) and wrongful death (49%). Negligence survival charges decreased 24% post tort refor m and combined wrongful death and negligence survival damage claims decreased from 47% to 27%. Lethal negligence and breach of fiduciary duty were charged at signific antly higher rates in the post reform period thus supporting Hypothesis Two.

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74 Table 13 Lawsuit Charges by Tort Reform Period (N =534) Pre N = 466 Post N = 68 Charge N % N % c 2 p Chapter 400 residents’ rights violations 450 97.8 6 4 95.5 1.29 NS Negligence survival 270 58.7 23 34.3 14.07 .000 Wrongful death 261 56.7 33 49.3 1.33 NS Combined wrongful death & negligence survival damag e claims 215 46.7 18 26.9 9.37 .002 Common law negligence 184 40.0 36 53.7 4.53 .033 Vicarious liability 157 34.1 17 25.4 2.03 NS Breach of fiduciary duty 67 14.8 21 31.3 11.84 .000 Negligence – medical 36 7.8 0 0.0 5.63 .018 Lethal negligence 24 5.2 22 32.8 55.99 .000 Loss of consortium 19 4.1 2 3.0 0.20 NS Other 18 3.9 1 1.5 0.99 NS Misleading advertising claims 9 2.0 0 0.0 1.33 NS SB 1202 defined negligence 8 1.7 5 7.5 7.96 .005 Note NS = non-significant. Allegations Results for this question were mixed in supporting Hypothesis Two. Some of the six leading somatic and staff-related allegations associated with com bined wrongful death and negligence survival damage claims decreased post tort reform while others increased. None of the somatic allegation changes was significant while four decrea ses and two increases in staff-related allegations were significant (Table 14). Worsening or aggravation of a pre-existing condition was the most frequent somatic allegation for wrongful death and negligence survival charges for the pre reform

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75 (91.2%) and post reform (89.5%) periods followed by pressure ulcers (65.6% and 63.2% respectively).Allegations of infection of a pressure ulcer or wound increase d 22.4% post reform, although the increase was not significant. Malnutrition or excessive w eight loss and dehydration declined post reform while multiple falls and “other” uncategoriz ed somatic allegations increased during that tort reform period. Fla. Laws ch. 45 § 30 (2001e) incorporated the allowance of nonnursing staff to provide feeding assista nce to residents which may have improved nutrition and hydration. Four staff-related allegations declined post reform including failure to imple ment, develop, update care plan; privacy or dignity violations; and inadequate staff numbers; and inadequate staff training or communication. Post reform, there were signific ant increases in allegations of unsafe environment and delays in the provision of care In the 19 post reform lawsuits charging combined wrongful death and negligence survival damage claims, all cited inadequate, improper resident assessment and 17 cited inadequate preventative, custodial care. However, neither allegation was signi ficantly different from pre reform.

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76 Table 14 Leading Allegations for Combined Wrongful Death and Negligence Survival Damage Claims Per Tort Reform Period (N = 234) Pre N = 215 Post N = 19 Allegation N % N % c 2 p Somatic Worsening, aggravation of existing condition 196 91 .2 17 89.5 0.07 NS Pressure ulcer 141 65.6 12 63.2 0.05 NS Malnutrition or excessive weight loss 115 53.5 7 36 .8 1.94 NS Dehydration 108 50.2 7 36.8 1.25 NS Fracture or other injury during residency 100 46.5 10 52.6 0.26 NS Infection of pressure ulcer or wound 99 46.0 13 68. 4 3.50 NS Multiple falls 90 41.9 10 52.6 0.83 NS Other 75 34.9 9 47.4 1.18 NS Staff-related Inadequate, improper resident assessment 204 95.3 1 9 100.0 0.93 NS Failure to implement, develop, update care plan 203 94.9 6 31.6 75.63 .000 Inaccurate, inconsistent records 202 94.4 16 84.2 3 .00 NS Inadequate staff training, communication 201 93.5 1 5 78.9 5.20 .023 Privacy, dignity violations 200 93.0 6 31.6 62.57 .000 Inadequate staff numbers 197 91.6 14 73.7 6.34 .012 Inadequate preventative, custodial care 191 89.3 17 89.5 0.00 NS Unsafe environment 119 55.6 18 94.7 11.03 .001 Delays in care provision 52 24.2 17 89.5 35.79 .000 Note NS = non-significant. The same allegation patterns held true for all lawsuits. There were no signifi cant differences in rates for particular somatic allegations, but there were s ignificant differences in 13 out of 22 staff-related allegations (Table 15).

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77 The six leading pre reform staff-related allegations (failure to imple ment, develop, update care plan; inadequate, improper resident assessment; inaccurate, inconsi stent records; privacy or dignity violations; inadequate staff training or communic ation; and inadequate staff numbers) all decreased post tort reform. All decreases were significant except for the drop in inadequate, improper resident assessment, which was the most cited allegation post tort reform. Allegations of failure to notify family of s ignificant changes, resident abuse, medication errors or mismanagement, failure to prot ect from abuse as defined by Fla. Stat. § 415, resident neglect, and combined resident abuse with resident neglect decreased significantly post reform also. Post reform, all egations of delays in the provision of care doubled compared to pre reform, and represented the only significant increase in a staff-related allegation in the post reform per iod. Allegations of an unsafe environment increased post reform as well, but not significantly. In general the changes noted in all allegations did not support Hypothesis Two that both somatic and staff-related allegations would increase in severity due to the expectation that greater numbers of severe lawsuits alleging more sever e allegations would be filed. Somatic allegations remained stable between periods and staff-r elated allegations showed significant improvement post reform.

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78 Table 15 Staff-Related Allegations for All Lawsuits by Tort Reform Period (N = 532) Pre N = 464 Post N = 68 Allegation N % N % c 2 p Failure to implement, develop, update care plan 1 433 93.7 48 70.6 37.81 .000 Inadequate, improper resident assessment 1 430 93.1 61 89.7 0.99 NS Inaccurate, inconsistent records 1 423 91.6 55 80.9 7.64 .006 Privacy, dignity violations 415 89.4 44 64.7 30.65 .000 Inadequate staff training, communication 413 89.0 5 2 76.5 8.47 .004 Inadequate staff numbers 408 87.9 47 69.1 16.96 .000 Inadequate preventative, custodial care 1 392 84.8 53 77.9 2.10 NS Failure to notify family of significant changes 1 387 83.8 31 45.6 51.84 .000 Abuse 278 59.9 26 38.2 11.38 .001 Unsafe environment 1 224 48.5 35 51.5 0.21 NS Failure to protect from foreseeable harm 1 204 44.2 24 35.3 1.90 NS Medication errors, mismanagement 196 42.2 13 19.1 1 3.30 .000 Failure to notify physician 185 39.9 26 38.2 0.07 NS Failure to protect from abuse (§415) 1 163 35.3 4 5.9 23.74 .000 Failure to provide materials, devices 1 153 33.1 11 16.2 7.96 .005 Neglect 136 29.3 7 10.3 10.91 .001 Abuse with neglect 2 105 22.7 2 2.9 14.36 .000 Delays in care provision 91 19.6 27 39.7 13.87 .000 Failure to carry out physician’s orders 71 15.3 11 16.2 0.04 NS Illegal transfer, discharge 14 3.0 1 1.5 0.52 NS Failure to question physician’s orders (seemingly i ll-advised) 3 0.6 0 0.0 0.44 NS Failure of physician to act 2 0.4 0 0.0 0.29 NS Note NS = non-significant. 1 Pre reform N = 462 2 Pre reform N = 463

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79 Negotiation Strategies Results were mixed in supporting Hypothesis Two in that the use of mediation did not increase post tort reform. However, arbitration attempts and settlement propos als did. Post reform, the percentage of lawsuits using arbitration increased signif icantly (11% to 29%) while the use of mediation decreased significantly (64% to 31%) (Table 16). Pr e reform mediations were significantly more likely to settle fully or to be e xtended or waived compared with post reform mediations. Plaintiffs were significantly more likely to offer settlement proposals post reform than pre reform (15% vs. 5%). Table 16 Negotiation Strategies Pre vs. Post Tort Reform Pre N = 464 Post N = 68 Action N % N % c 2 p Arbitration attempt 50 10.8 20 29.4 18.03 .000 Mediation use 298 64.2 21 30.9 27.46 .000 Mediation extended or waived 86 18.5 3 4.4 8.49 .00 4 Mediation outcome – fully settled 88 19.0 4 5.9 7.1 0 .008 Mediation outcome – impasse 102 22.0 9 13.2 2.75 NS Settlement proposal either party 99 21.4 17 25.0 0.46 NS Defendant proposed settlement 63 13.6 5 7.4 2.08 NS Plaintiff proposed settlement 25 5.4 10 14.7 8.34 004 NS = non-significant. N = number of lawsuits. Although mediation was less likely to be used in the post reform period, there were no differences in numbers of mediation attempts per lawsuit (Table 17). That i s, in both periods the parties attempted mediation about one time. There were also no

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80 significant differences in terms of settlement proposals per lawsuit in t he pre and post reform periods which averaged 1.68 and 1.88 respectively. Table 17 Mediation Usage and Settlement Proposals per Lawsui t by Tort Reform Period Pre N = 466 Post N = 68 Action N M SD N M SD F p Mediation used 298 1.11 0.38 21 1.05 0.22 0.56 NS Settlement proposals made 99 1.68 1.24 17 1.88 1.62 0.37 NS Note NS = non-significant. Lawsuit Duration For the entire study period, mean lawsuit duration based on settlement dates was 22.4 months compared to 25.4 months for lawsuits based on dismissal dates ( N = 491). The interim between these two dates ranged from no difference to 25.7 months, with the mean lawsuit duration being 3.7 months shorter based on settlement dates ( N = 254) (Table 18). Based on dismissal dates, lawsuits filed post reform were 6.5 months shorter than lawsuits filed in pre reform, a significant difference, strongly supporting Hy pothesis Two. Lawsuit duration using settlement dates was also over six months shorter post tort reform than pre reform but was not significant, F (1, 256) = 3.43, p = .065. Motions for punitive damages may be an incentive for defendants to settle before jury trials in order to avoid the possibility of having such damages awarded at trial. There were no significant differences between pre and post tort reform in terms of dur ation of lawsuits and punitive damages motions, but they were significantly less likely t o be filed

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81 in the post reform period, c 2 (1, 534) = 7.78, p = .005. There were no significant differences between pre and post reform in the numbers of punitive motions granted. Jury trial order dates did not significantly affect lawsuits settling sooner in either tort reform period. The average length of lawsuits proceeding to trial was 31.5 mont hs (range 18.2 – 51.2, SD = 10.3), with a minimum of 18.2 and a maximum of 51.2 months (not displayed). According to Rule 2.250 of Florida Rules of Judicial Administration, in civil cases, jury cases should take 18 months total from the time of filing to final disposition, and non-jury cases, 12 months from initial filing until final disposition. At eight months, a case is considered old enough to file a motion requesting a trial date (The Florida Bar, 2007). During the study period, the average time before a jury trial m otion was filed was 21.1 months.

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82 Table 18 Closing Dates and Impact of Motions on Lawsuit Dura tion Pre and Post Reform (N = 534) Range Pre N = 466 Post N = 68 Time period Months N M SD N M SD F p Duration Based on dismissal date .97 – 75.4 433 26.1 13.8 59 19.9 11.2 10.70 .001 Based on settlement date 1.53 – 61.1 245 22.7 12.3 12 16.1 9.0 3.43 NS Time interval Lawsuit filing and punitive damages motion 0 – 58.0 123 15.8 11.0 10 16.5 6.1 0.04 NS Punitive damages motion and settlement date .30 – 43.6 76 11.8 9.2 3 14.5 7.6 0.24 NS Granted punitive damages motion and settlement 2.03 56.7 73 12.1 9.2 4 12.3 6.7 0.003 NS Settlement date and court dismissal date 0 – 25.7 243 3.7 4.7 11 3.3 2.6 0.07 NS Lawsuit filing date and jury trial order date 2.67 – 57.1 131 21.0 13.2 12 21.9 8.4 0.05 NS Jury trial order date and settlement date 0 – 13.5 86 4.4 2.7 4 3.2 2.6 0.82 NS Jury trial order date and dismissal date 1.90 – 32. 5 129 7.8 5.0 8 8.0 2.9 0.004 NS Note NS = non-significant. Question Three Did the outcome of lawsuits evidence a decline in total payouts per lawsuit and jury amounts awarded as was expected with tort reform? Regarding this question, results supported Hypothesis Three. One-way analyse s of variance were used to determine means between tort reform periods for sett lement proposals, total settlements, attorney fees and costs, Medicare and Medicai d liens, other payouts, and net to plaintiff amounts. Significant decreases were noted between pre and post reform periods in settlement proposal amounts, total settlements, and attorney fees (Table 19). The average post tort reform proposal was 36.9% of the pre reform amount; total settlement was 39.7% of the typical pre reform amount, and attorney fees were

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83 42.2% of pre reform figures. The analyses revealed findings that approached si gnificance, F (1, 19) = 4.07, p = .059. The suggested finding is that the mean post tort reform award to the plaintiff was reduced to only 25.1% of pre reform levels. It should be noted, however, that the post reform sample size ( N = 3) was very small. There were only three plaintiff jury awards. Two awards ($251,333.00 and $929,910) were based on pre reform limits and averaged $590,622. The single post reform jury award was $75,000, an 87% decrease. Only one plaintiff verdict reported punitive damages, an award of $675,000. Two verdicts for defendants included the award of attorney fees, i.e., $31,061 and $555,991. With such a small sample, it was not possible to determine possible tort reform effects, so, Hypothesis Four is not support ed with these early findings.

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Table 19 Settlement Proposal, Total Settlement, and Payout A mounts by Tort Reform Period (N = 546) Pre reform N = 381 Post reform N = 165 Period differences Variable N M SD N M SD Minimum Maximum F p Proposal 23 318,200 251,060 8 117,500 87,380 25, 000 1,000,000 4.814 .036 Total settlement 31 429,490 393,320 11 170,780 174 .070 25,000 2,200,000 4.397 .042 Attorney fees 30 171,760 136,140 10 72,480 72,410 10,000 732,600 4.804 .035 Attorney costs 16 14,430 5,140 3 18,240 14,530 4, 050 33,090 0.764 NS Medicare liens 8 7,910 6,320 2 13,810 1,680 750 2 0,000 1.581 NS Medicaid liens 7 5,650 8,770 2 170 70 120 24,530 0.707 NS Other settlement payouts 6 60,120 81,620 1 2,420 0 0 2,420 216,910 0.428 NS Net plaintiff award 17 199,940 124,510 3 50,160 49 ,720 13,200 525,990 4.070 NS Note NS = non-significant. 84

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85 Question Four For either the pre reform or post reform period, will the structural (facility) variables of ownership and affiliation, available beds, and occupancy rate predict changes in the extent (number) of lawsuits filed per nursing facility occupied bed and per facility? Findings for question 4 were mixed in supporting Hypothesis Four. Overall, structural variables were completely unsuccessful at predicting depende nt variables based on occupied beds but were more successful in predicting variance in dependent variables based on facilities or lawsuits. Using model 1, analyses did not find that the independent structural variables of profit status, chain membership, or available beds were pre dictive of the dependent variable of lawsuits per occupied facility bed for either tort r eform period (Table 20). Table 20 Impact of Ownership, Affiliation, and Available Bed s on Lawsuits per Facility Occupied Bed (N =28) Pre reform Post reform Model 1 B SE B b p B SE B b p Constant .001 .001 NS .001 .000 NS For profit .001 .001 .18 NS .000 .000 .27 NS Chain .001 .001 .30 NS .000 .000 -.15 NS Available beds 1.16E-006 .000 .05 NS -2.04E-006 .000 -.23 NS Adjusted R 2 .049 .035 F 1.47 1.33 Note NS = non-significant.

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86 Model 2 accounted for 28.2% the variance in total lawsuits filed per facility pre reform (Table 21). The model was significant, with available beds the greate st contributor followed by occupancy rate. The model was not a good fit for the post reform period. Table 21 Impact of Ownership, Affiliation, Available Beds, a nd Occupancy Rate on Total Lawsuits per Facility (N = 28) Pre reform Post reform Model 2 B SE B b p B SE B b p Constant -11.33 5.12 .037 -3.45 4.41 NS For profit 2.73 2.01 .25 NS 1.24 0.90 .31 NS Chain 1.56 1.47 .19 NS -0.30 0.68 -.10 NS Available beds 0.04 0.01 .44 .020 0.00 0.01 .13 NS Occupancy rate 12.14 5.17 .39 .028 4.77 4.29 .24 NS Adjusted R 2 .282* -.042 F 3.65 0.73 Note NS = non-significant. p < .05. Question Five For either the pre reform or post reform period, will the structural (facility) variables of ownership and affiliation, available beds, and occupancy rate predict changes in the elements of lawsuits as measured by total somatic and staff-related allegations per occupied bed, per facility, and per lawsuit? Tables 22 and 23 establish that model 3 was not a good fit for predicting somatic or staff-related allegations per occupied facility bed. Profit status and c hain membership were the greatest model contributors, but these factors were not consistent acros s periods.

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87 Table 22 Impact of Ownership, Affiliation, and Available Bed s on Somatic Allegations per Facility Occupied Bed (N = 28) Pre reform Post reform Model 3 B SE B b p B SE B b p Constant .004 .005 NS .005 .002 .026 For profit .003 .004 .19 NS .001 .001 .12 NS Chain .003 .003 .27 NS -.001 .001 -.19 NS Available beds 7.37E-006 .000 .06 NS -1.28E-005 .000 -.29 NS Adjusted R 2 .024 .006 F 1.22 1.05 Note NS = non-significant. Table 23 Impact of Ownership, Affiliation, and Available Bed s on Staff-Related Allegations per Facility Occupie d Bed (N = 28) Pre reform Post reform Model 3 B SE B b p B SE B b p Constant .011 .012 NS .005 .003 NS For profit .007 .008 .17 NS .003 .002 .30 NS Chain .008 .006 .27 NS -.001 .002 -.10 NS Available beds 1.14E-006 .000 .00 NS -1.44E-005 .000 -.18 NS Adjusted R 2 .026 .031 F 1.25 1.29 Note NS = non-significant. Model 4 was unsuccessful in predicting the variance in total somatic allegations per lawsuit per facility (Table 24) filed during either tort reform period. T he model approached significance ( p = .052) for predicting variations in total staff-related allegations for the post reform period (Table 25) and suggested that occupancy rate was

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88 the leading model contributor followed by available beds based on the standardized beta values. Table 24 Impact of Ownership, Affiliation, Available Beds, a nd Occupancy Rate on Total Somatic Allegations per Lawsuit Per Facility (N = 28) Pre reform Post reform Model 4 B SE B b p B SE B b p Constant 2.13 3.70 NS 37.42 12.13 .006 For profit 0.88 1.45 .14 NS -3.05 2.46 -.26 NS Chain 0.11 1.06 .02 NS 2.48 1.87 .28 NS Available beds 0.00 0.01 -.01 NS -.03 .018 -.32 NS Occupancy rate 2.50 3.73 .14 NS -29.16 11.78 -.52 .010 Adjusted R 2 -.139 .124 F 0.24 1.89 Note NS = non-significant. Table 25 Impact of Ownership, Affiliation, Available Beds, a nd Occupancy Rate on Total Staff-Related Allegation s per Lawsuit Per Facility (N = 28) Pre reform Post reform Model 4 B SE B b p B SE B b p Constant 1.06 5.20 NS -20.88 8.60 .023 For profit -3.64 2.04 -.34 NS 1.80 1.75 .20 NS Chain 3.61 1.49 .45 .024 -0.65 1.33 -.10 NS Available beds 0.02 0.01 .20 NS 0.02 0.01 .36 NS Occupancy rate 7.64 5.24 .25 NS 25.95 8.35 .60 .005 Adjusted R 2 .203 .208 F 2.72 2.77 Note NS = non-significant.

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89 Model 4 was used to predict total somatic or staff-related allegations per f acility for each tort reform period (Tables 26 and 27). The model significantly predicted t he variance in total somatic and total staff-related allegations per facili ty for the pre reform period. In predicting the variance in total somatic allegations per facility, t he leading and only significant model contributor was available beds (41%). Occupancy rate contr ibuted 34% to the model but was not significant. For staff-related allegations, the leadi ng contributor positions were reversed with occupancy rate (43%) the leading model contributor and only significant structural variable. The independent variable avai lable beds contributed 32% to the model but was not significant. Post reform, the model was a poor fit for predicting variation in total somatic or staff-related allegati ons per facility. Table 26 Impact of Ownership, Affiliation, Available Beds, a nd Occupancy Rate on Total Somatic Allegations per Facility (N = 28) Pre reform Post reform Model 4 B SE B b p B SE B b p Constant -50.30 26.51 NS -0.434 21.77 NS For profit 13.85 10.41 .25 NS 1.613 4.42 .08 NS Chain 7.00 7.60 .17 NS -2.041 3.36 -.14 NS Available beds 0.16 0.07 .41 .034 -0.002 0.03 -.01 NS Occupancy rate 52.69 26.76 .34 NS 11.834 21.14 .13 NS Adjusted R 2 .213* -.143 F 2.83 0.15 Note NS = non-significant. p < .05.

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90 Table 27 Impact of Ownership, Affiliation, Available Beds, a nd Occupancy Rate on Total Staff-Related Allegation s per Facility (N = 28) Pre reform Post reform Model 4 B SE B b p B SE B b p Constant -128.05 59.08 .041 -53.00 39.94 NS For profit 29.25 23.21 .24 NS 12.87 8.11 .34 NS Chain 18.03 16.95 .19 NS -2.41 6.16 -.09 NS Available beds 0.29 0.16 .32 NS 0.05 0.06 .17 NS Occupancy rate 151.71 59.64 .43 .018 61.19 38.79 .3 3 NS Adjusted R 2 .242* .028 F 3.16 1.20 Note NS = non-significant. p < .05. A breakdown of the mean number of lawsuits and allegations per facility distributed according to combined ownership and profit status is provided in Table 28. For profit chain facilities had the greatest number of lawsuits and allega tions than all other facility ownership types. However, differences between combined owner ship and affiliation types were not significant for any variable. Nursing facilities averaging occupancy rates under 91.8% for the entire study period averaged 7.9 lawsuits per facility. Facilities averaging occupanc y rates 91.8% or more averaged 10.7 lawsuits per facility. The mean difference was not signif icant (not displayed). Analysis of variance found that pre reform, nursing facilities having fewer than 120 available beds had significantly fewer lawsuits than facilities having 120 beds, F (1, 17) = 11.76, p = .003, or more than 120 beds, F (1, 13) = 8.00, p = .014 (not

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91 displayed). However, post reform there were no significant differences betwe en these available bed size groups and numbers of lawsuits. Table 28 Mean Lawsuits and Total Allegations per Facility by Ownership and Affiliation (N = 28) For profit Not for profit Independent N = 6 Chain N = 18 Independent N = 3 Chain N = 1 Variable M SD M SD M SD M SD F p Lawsuits Pre reform 6.7 5.5 7.5 3.7 5.0 2.7 7.0 0.34 NS Post reform 2.5 1.4 2.5 1.6 1.7 0.6 1.0 0.57 NS Total 9.17 5.9 10.0 4.8 6.7 3.1 8.0 0.43 NS Total allegations Somatic Pre reform 30.3 24.8 35.4 19.3 24.7 14.4 25.0 0.34 NS Post reform 10.8 6.3 10.2 7.7 11.0 1.7 5.0 0.21 NS Total 41.2 25.5 46.8 24.4 35.7 16.1 30.0 0.34 NS Staff-related Pre reform 71.0 57.7 82.3 43.9 51.0 19.5 73.0 0.44 NS Post reform 20.5 12.1 21.4 14.9 11.3 5.7 8.0 0.71 NS Total 91.5 61.3 103.7 54.2 62.3 24.4 81.0 0.55 NS Note : NS = not significant. Pre reform, findings support Hypothesis Four that the structural variables of pr ofit status, chain membership, occupancy rate, and available beds would be related to highe r numbers of lawsuits and somatic and staff-related allegations. Although post re form these structural variables were related to greater numbers of lawsuits and tot al staff-related

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92 allegations per facility, independent not-for profit facilities had higher numb ers of somatic allegations per facility.

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93 CHAPTER FOUR –DISCUSSION AND CONCLUSIONS Summary of Findings Through secondary data analyses, this study examined the initial effects of Florida’s 2001 tort reform measures on lawsuits filed against any nursing facil ity in Hillsborough County, Florida from 1999 through 2003. The extent, elements, and outcomes of lawsuits were compared between pre and post tort reform periods, controlling for structural characteristics of facilities. Overall, it appears that 2001 tort reform impacted post reform litigation as intended. Post tort reform, lawsuits filed per month dropped to 14% of pre reform monthly filings, they were associated with shorter residencies, were fi led sooner, and on average settled six months sooner. There was no reform effect in terms of who sued whom. Women residents were the plaintiffs in most lawsuits and for profit chain faci lities were sued most often in both periods. Contrary to earlier research, nursing faci lity structural variables (ownership, affiliation, and size) showed little influenc e on the predictability of lawsuits or allegations filed per facility bed. Instea d, the structural variables of available beds and occupancy rate were better predictors of total numbers of somatic and staff-related allegations per facility. Mediation was les s likely and arbitration more likely to be used. Mean somatic allegations per lawsuit decreased albeit not significantly. Tot al staff-related allegations per lawsuit did decrease significantly. In fa ct, 17 out of 22 staffrelated allegations decreased, 12 significantly. Lawsuits were less apt t o include

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94 combined wrongful death and negligence survival damage claims. However, other lawsuit charges such as lethal negligence and breach of fiduciary duty were a dded or increased significantly. At the same time, settlement proposals, total se ttlements, and attorney fees decreased on average to less than half of pre reform amounts and net t o plaintiff totals decreased to slightly more than one-fourth of pre reform amounts Discussion The findings of the present study lend support to the assumption that the initial impact of 2001 Fla. Laws ch. 45 would be a reduction in litigation against nursing facilities. Based upon residency admission dates rather than filing years, a nalyses found that lawsuits were decreasing post tort reform. This is supported by reports f rom AHCA that notices of intent (NOIs) to file lawsuits against nursing facilities have consistently decreased on average 20% per fiscal year beginning in study filing year 2002 – 2003, approximately one year after the passage of 2001 Fla. Laws ch. 45 and at which ti me AHCA was required to begin keeping more detailed records of NOIs (Agency Re porting Requirements, 2002). NOIs filed in fiscal year 2005 2006 ( N = 448) decreased to 38.9% of the 1,153 NOIs filed in fiscal year 2001 – 2002. This could reflect a permanent downward trend in numbers of actual lawsuits filed against nursing facilities. The reduction in lawsuits observed in this study may be influenced by two nursing facility practices found to occur more frequently post-tort reform, i. e., the incorporation of clauses in residency contracts requiring use of arbitration, a nd the filing of motions to enforce such clauses should residents assert claims against a fac ility. Also, increasing liability insurance costs since the late 1990s resulted in some nurs ing facilities failing to purchase sufficient liability insurance or in some cases not purcha sing any

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95 insurance, a practice known as “going bare” (Gottlieb, 2002; Hedgecock & Salmon, 2001; Oakley & Johnson, 2001). As a result, plaintiffs were significantly more likely to offer settlement proposals in 2003 than any other study year. In both tort reform periods, residents filed lawsuits against multiple facilit ies. There were 75 residents/plaintiffs involved in the filing of 158 lawsuits (29% of all lawsuits filed by 17% of all plaintiffs). Eight of these residents/plaint iffs filed three lawsuits each. It is not impossible that an individual could reside at two or three se parate facilities and receive from each a level of care so deficient that it tr iggered litigation. However, it seems questionable that particular residents/plaintiffs would rec eive such deficient care at each facility they chose for residency, yet the maj ority of the 3,000 to 17,500 possible residents (based on AHCA total occupied beds per year) who resided at the nursing facilities in this study during the five-year research peri od never brought a lawsuit against any facility. This multiple lawsuit trend may be completel y justifiable, but it causes serious consideration of the growing litigious mind-set frequently see n today and the serious financial consequences for court systems, businesses, insurers, policyholders, and taxpayers. As previously noted, structural characteristics such as facility ownership and affiliation, available beds, or occupancy rate were not strong predictors of law suit activity as others have found (Johnson, Dobalian et al., 2004a, 2004b; Johnson, Hedgecock et al., 2004; Oakley & Johnson, 2001). Structural variables were completely ineffective in predicting variance in lawsuits or allegations per occupied nursing facilit y bed as well as allegations per lawsuit. Only three multivariate models were significant and all were true just for the pre reform period. Within these models only available beds or occupancy ra te

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96 were significant contributors. Both structural variables contributed in explai ning 28% of the variance in total lawsuits filed per facility. The only significant contri butor of variance in total somatic allegations per facility was available beds. Occ upancy rate contributed to total staff-related allegations per facility. Post reform, st ructural variables did not explain the relationship of lawsuits and allegations to nursing facilities. Eve n though these structural variables did not explain the elements or outcomes of lawsui ts, for-profit chain member facilities had higher average lawsuits, somatic allegations, and staff-related allegations than for profit independent, not-for-profit independent and notfor-profit chain facilities. But it was not their ownership or affiliation; i t was their available beds or occupancy rate. On average, nursing facilities with 92% or higher occupancy rates had three mor e lawsuits filed against them than facilities having lower occupancy rates. D uring the pre reform period, nursing facilities with fewer than 120 available beds had six fewe r lawsuits than 120-bed facilities and five fewer lawsuits than facilities wi th more than 120 beds. Post reform, facilities with less than 120 beds had one less lawsuit than 120-bed facilities and .2 less lawsuits than facilities with more than 120 beds. The refor ms reduced the effect of available beds (facility size) that was found pre refor m and in previous research (Johnson, Dobalian, et al., 2004a, 2004b; Johnson, Hedgecock et al., 2004; Oakley & Johnson, 2001), but it appears that high occupancy rates may not be desirable even with higher staffing rates. Future research could include Mi nimum Data Set data for staffing deficiencies to see how this structural variable impa cts or moderates occupancy rates when explaining lawsuit activity.

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97 The dynamics of nursing facility litigation are more complex than just numbe rs of lawsuits filed or facilities sued, types of charges and allegations, and fina ncial outcomes of proposals and settlements. Lawsuits filed post reform added more defendants, both corporate and individual, with individuals added significantly more often (26.5%), almost doubling pre reform levels (13.5%). Adding more defendants increases the likelihood t hat based on the combined insurance coverage of many defendants settlements will m eet the maximum allowable damage amounts under the law. This practice most likely repr esents attorney efforts to seek damages from every possible source and may be rising due to extremely low professional liability insurance coverage by at least some facilities. Some nursing facilities base decreased liability coverage on reducing risk exposur e. They are also looking for alternatives by using limited liability corporations or res tructuring ownership of real estate and facility operations into single purpose entities, t hereby minimizing available assets (Casson, 2003; Wager & Creelman, 2004). Just as trial attorneys found ways to work around 2001 Fla. Laws ch. 45 intentions to decrease claims and reimbursement of legal costs, nursing facilities have used strategie s to limit their exposure. Additionally, lawsuits were significantly more likely to contain charges of br each of fiduciary duty. Under Florida Statutes § 737.627, in actions for breach of fiduciary duty, the court is obliged to award taxable costs which include attorney fees (Tr ust Administration, 2006). Since attorney fees were no longer guaranteed with the passa ge of 2001 Fla. Laws ch. 45, the increase in breach of fiduciary duty charges appears to be another approach by attorneys to guarantee payment of their fees. It would be of great

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98 interest to see if the percentage of lawsuits containing breach of fiduciary duty charges continues to rise in subsequent years and if other charges become more commonly us ed. As previously noted, the mean average post reform residency associated with lawsuits was 3.1 months, only 15% of the pre-reform residency. Post tort reform 9% of lawsuits were associated with residencies lasting one week or less compared with 3.8% pre reform and 70.1% post reform were associated with residencies of 100 days or less compared with 28.8% pre reform. It may be that more residents discharged from hospi tal stays for conditions requiring a limited recuperative nursing facility st ay filed more lawsuits post tort reform. Medicare benefits for skilled nursing facility c are end after 100 days and Medicaid has requirements of substantially reduced resident income a nd assets in order to receive benefits. These factors could contribute to shorter residencie s as well. A smaller proportion of residents were deceased at the time of lawsuit fili ng than there were pre reform (75.0% and 81.2% respectively) indicating that fewer plaintif fs ended their residencies due to death. A logical conclusion would be that residents experi encing greater numbers of somatic allegations attributed to a nursing facility or i ts staff would depart more quickly from that facility. However, average somatic allegati ons per resident/plaintiff were slightly fewer, so it appears that overall reside nts filing lawsuits were not as sick post tort reform as they were pre tort reform. Furthermore, 86.4% of staff-related allegations decreased, 55% significantly, indicating few er staff-related reasons for residents to end nursing facility residencies post tort reform tha n pre reform. The staffing increase measures may have changed the relationship with som atic complaints. Whereas somatic allegations were positively correlated wi th staff-related allegations pre-reform they were negatively correlated post-reform.

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99 Decreased settlement amounts were a desired outcome of 2001 Fla. Laws ch. 45, however, post tort reform there was a definite inequity in the distribution of reduced settlement awards. Overall awards were 40% of pre reform amounts, yet at torneys received 42% of pre reform amounts and residents/plaintiffs received only 25% of pr e reform sums. One concern regarding the changes in litigation found in this study is if the fra il, vulnerable resident in a nursing home is served well by 2001 Fla. Laws ch. 45. Although lawsuits are decreasing, it appears that those that are filed are about seri ous allegations beyond resident rights, which were the most common allegations for both reform periods. So residents with serious complaints are getting their “day in court” even i f it ends with arbitration. Yet, in the average settlement, residents have taken a larger los s in the net amount they receive compared with the portion going to their attorneys. A common societal attitude today is that anything “bad” that happens is preventable or the fault of another. With an increasing population with which much can go wrong related to health, perhaps the intention of tort reform must be judged on measures beyond simply numbers. Our legal system allows redress for actiona ble causes, so individuals will and should pursue this course when appropriate. The issue becomes entangled when such actions concern complex settings such as nursing facilit ies where events can be impacted by a number of factors. When things do go wrong or poorly and there is no doubt this will occur, how they went wrong becomes the crux of the matter. For justice to be disseminated f airly, all contributing factors should be taken into account. This includes calling to task facilit ies having insufficient or inadequately trained staff, those that redirect monies to c ompany

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100 stockholders rather than their residents’ well-being and quality of life, or faci lity managers and administrators who fail to honor the human dynamics of aging and dying that make taking care of individuals on a long-term basis far more than an ordinary “business.” Family members and residents themselves bear some responsibility in this complex business. Family members or concerned citizens need to understand the limitations of nursing facility care. Even with the highest staffing rat ios in the country, Florida, or any other state, cannot provide one-on-one nursing 24 hours a day to each resident. For those residents who are designated as long-term care (as opposed to s hortterm rehab), they are facing end-of-life and that process is variable and not a lways a “good death.” Although it may appear hard hearted, the resident may also bear responsibility. Lifestyle and genetics affect health and well being. T he latter is not preventable, however, the former is. Lastly, many in our society fear aging and death, yet professions that care for our elderly are not adequately valued or rewarded. If society valued a good old age and a good death, it would ensure that people and places that care for our elders had sufficient resources and oversight. Public education and familiarization with long-term care and local nursing facilities would be a valuable addition to tort reform. Involving children and teena gers, local civic groups, and churches in hands-on experiences that include resident and st aff interaction would benefit participants, residents, and staff. First-hand knowledge coul d dissipate many fears about long-term care and aging, inspire volunteerism and community involvement, and instill respect and compassion for both individuals providing and receiving care.

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101 Understanding as many aspects as possible of nursing home care and its outcomes is imperative as policies are reviewed, written, and rewritten to improve fa cilities and the experiences of residents. Policy research such as this study that exami nes the basis of consumers’ legal dissatisfaction with nursing home residency experiences not only sheds light on financial implications for the industry, but also brings attention to the role of other possible factors, e.g., the addition of more defendants and other types of charges that may be counterproductive to legislative litigation control mechanisms. Thi s type of research takes the next step and expands beyond industry-produced reports based on insurance claims data that are normally only internally accessible for r eview and lack sufficient details to associate possible causes with outcomes or provide other ex planatory details. Policy reforms based on motivation by negative consequences (sticks) for fai ling to abide by laws and regulations have not been very successful at halting or even slowin g down litigation. Perhaps more policy development and implementation should focus on goal setting and the benefit of achieving those goals (carrots) by foster ing in nursing facility management and staff intrinsic values to perform consistentl y at top quality levels, specifically asking about problems nursing facilities encounter and the ki nds of help needed to resolve them. Public policy that is based upon a win-win-win situation for all involved parties offers a greater chance for acceptance and adherence a nd the most positive outlook for success. 2001 Fla. Laws ch. 45 may be one such example. Frequently, the foundations of public policies and laws are based on standards the public expects in a variety of areas of life. However, principles and compass ion cannot be legislated. It is the height of hubris to expect laws to regulate and long-ter m care

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102 providers to exhibit more care and concern for the elder members of our society tha n we individually exhibit ourselves. Limitations This study required use of public documents filed and maintained at the Clerk of the Circuit Court’s Records Office. Data collection was impeded by inconsist ency and inaccuracy on the part of attorneys, judges, administrative employees, and privat e citizens in the handling and oversight of court documents. The data collected and noted on the court case summary form, although general in nature, were not always availabl e in reviewed files, thus possibly influencing the findings of this study. Lawsuit files lacked documentation consistency particularly relating to s ettlement details including dates. There was failure to submit necessary documentation t o inform the court that parties had come to resolution which sometimes resulted in court di smissal of cases due to lack of prosecution, yet substantial documentation existed in some fi les to indicate the likelihood of settlement through scheduled mediation had occurred. Lack of filing or late submission of settlement documentation also contributed to some lawsui ts appearing to remain open or artificially increasing the length of other la wsuits. Another limitation of this study included having only a two-year sample of lawsuits filed post tort reform. The limited time frame resulted in a small sample of “pure” lawsuits, i.e., lawsuits filed post tort reform and based on allegations occurri ng during resident stays that fell completely within all tort reform measure s, particularly the quality-focused CNA per resident per day staffing hour increases. Since t he last staffing increase did not occur until January 1, 2004, any effects from this increase are not seen in lawsuits analyzed in this research.

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103 The changes in litigation found here may be due to other reasons beyond policy changes. Trial attorneys who are losing business in Florida may be moving to more prolific and lucrative lawsuit landscapes in other states. Or, decreased media c overage of sizeable nursing facility lawsuit awards may have decreased interest i n these lawsuits. Facility ownership changes or decreased professional liability insurance c overage may have reduced the potential for large claims, and there may be other unrealized fac tors that were responsible for the differences found between reform periods. Future Research Implications Florida’s law now requires that prior to filing a nursing facility lawsuit i nvolving resident’s rights’ violations or negligence allegations of resident injury or death, nursing facility defendants must be notified that investigation of the plaintiff’s ci rcumstances and surrounding events has resulted in the belief that grounds for a lawsuit exist. Def endants are given 75 days to evaluate the presented claims and respond, either by rejecting the claims or making a settlement offer (Chapter 2001-45, §400.0233, Laws of Fla.). Although in this study every lawsuit filed after May 15, 2001, documented this required procedure, public records do not indicate how frequently possible lawsuits are avoided by use of the 75-day evaluation process. Having such data would shed light on the processes and criteria used by attorneys in deciding whether to go forward with a case and insurance companies’ decisions to settle a claim or proceed with litigation. This research revealed that a complete and fully accurate representati on of tort reform effects must include matching the time allegations are said to have occurred with the statutes that were in place at the time of occurrence. The typical law suit filed in Hillsborough County from 1999 through 2003 was based on a nursing facility stay that

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104 ended 15.5 months before the case was officially recorded as opened. Lawsuit charges e.g., combined wrongful death and negligence survival damages claims, filed in a spec ific year are bound by the statutes that are in force at the time of filing. However, a llegations, specifically those that are staff-related, typically do not reflect c onditions of the filed year because of the interim from the end of residency until the associated lawsuit i s filed. Therefore, future research should be undertaken to examine tort reform effects on lawsuits in which all aspects embody pre reform or post reform events. A thre e-month time frame should be sufficient to return to the 13 th District Court of Hillsborough County to compile and analyze data from lawsuits filed from January 1, 2004, through December 31, 2006. Although not all lawsuits would have matured to resolution, particularly those filed during 2006, the three-year period to be reviewed should provide sufficient information to adequately increase the post tort reform sample an d see if current findings are sustained. The final staffing increase originally sc heduled for January 1, 2004, was delayed until January 1, 2007, so findings would not reflect any influence from the increase to 2.9 CNA hours per resident per day. There is cause for concern in attributing strictly to tort reform measures the decreased lawsuit filings (based on residency start dates) and reduced settl ement and payout amounts found in this research. The issue of minimal or no nursing facility professional liability insurance coverage may be influencing not only the wi llingness of attorneys to file nursing facility related lawsuits, but also may explai n overall reduced settlements. Such influence would nullify many of 2001 Fla. Laws ch. 45’s tort reform measures perceived effects. Further research, including interviews with nur sing facility administrators or management personnel and attorneys should be conducted to

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105 understand the degree of impact lower liability limits are having on the extent and outcomes of litigation involving nursing facilities.

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114 Kapp, M. B. (2000a). Increasing liability risks among nursing homes: Therapeutic consequences, costs, and alternatives. Journal of the American Geriatrics Society, 48 (1), 97-99. Kapp, M. B. (2000b). Quality of care and quality of life in nursing facilities: What 's regulation got to do with it? McGeorge Law Review, 31 (Spring), 707-731. Kaufman, A. S. (2001, June 6, 2001). Reviewing nursing home liability. New York Law Journal Retrieved November 13, 2002, from the Lexis-Nexis (TM) Academic database. Kayser-Jones, J., Schell, E. S., & Porter, C. (1999). Factors contributing to dehydrat ion in nursing homes: inadequate staffing and lack of professional supervision. Journal of the American Geriatrics Society, 47 (10), 1187-1194. Kirkton, J. L. (1995). Study wrongly claims plaintiffs win more med-mal verdict s in Illinois. Chicago Daily Law Bulletin Retrieved November 9, 2002, from the Lexis-Nexis (TM) Academic database. Kutner, M. (1999). Litigation and risk management for long-term care physicians [Electronic Version]. Annals of Long-Term Care 7 Retrieved August 2, 2005 from http://www.annalsoflongtermcare.com/article/1116 Lamendola, B. (2001, March 3). Skyrocketing suits spur crisis in care Sun-Sentinel Latimer, J. (1998). The essential role of regulation to assure quality in long-term care. Generations, 21 10-14. Litvin, S. G. (2005). An overview of medical malpractice litigation and the perceived crisis [Electronic Version]. Clinical Orthopaedics and Related Research 433 814. Retrieved 6/15/2006 from http://gateway.ut.ovid.com.ezproxy.lib.usf.edu/gw1/ovidweb.cgi Lubin, M. L. (1999). Inside the nursing home: The structure. In P. W. Iyer (Ed.), Nursing home litigation: Investigation and case preparation (pp. 13-36). Tucson, AZ: Lawyers & Judges Publishing Co., Inc. Lunney, J. R., Lynn, J., Foley, D. J., Lipson, S., & Guralnik, J. M. (2003). Patterns of functional decline at the end of life (Electronic version). JAMA, 289 (18), 2387 2392. Mahoney, D. F. (1995). Analysis of restraint-free nursing homes. Image the Journal of Nursing Scholarship, 27 (2), 155-160. Manos, T. J. (2001). Florida's nursing home reform and its anticipated effect on litig ation. Florida Bar Journal, 75 (11), 1-13.

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115 McDonald, C. (2001). Prices skyrocketing on LTC liability exposures. National Underwriter, 105 (3), 8-9. Medical liability in long term care: Is escalating litigation a threat to quality and access? U.S. Senate, 108th Congress Sess. (2004). Medical Malpractice and Related Matters, Fla. Stat. §766.102 (2002). Medical Malpractice and Related Matters, Fla. Stat. §766.201 (2003). Miller, A. (2001, January). Angels of death. Florida Lawyer, 1, 12-15, 19. Minority Staff Special Investigations Division Committee on Government Re form. (2001). Abuse of residents is a major problem in U.S. nursing homes Washington, DC: U.S. House of Representatives. Minority Staff Special Investigations Division Committee on Government Re form. (2002). Nursing home conditions in Texas: Many nursing homes fail to meet federal standards for adequate care Washington, DC: U.S. House of Representatives. Mohr, J. C. (2000). American medical malpractice litigation in historical perspec tive. The Journal of the American Medical Association, 283 (13), 1731-1737. Mor, V. (2005). Improving the quality of long-term care with better information [Electronic Version]. The Milbank Quarterly Retrieved March 16, 2006, from http://www.milbank.org/quarterly/8303feat.html Morley, J. E. (2001). Decreased food intake with aging. The Journals of Gerontology Series A: Biological Sciences and Medical Sciences, 56 81-88. Moss, M. (1998, Mar 6). Nursing homes get punished by irate jurors Wall Street Journal, p. B1. National Center for Health Statistics. (1974). Inpatient health facilities as reported from the 1971 MFI survey (No. HRA 74-1807). Rockville, MD: Department of Health Education and Welfare. National Center for Health Statistics. (2005). Health, United States, 2005 with chartbook on trends in the health of Americans (No. 2005-1232). Hyattsville, Maryland. National Conference of State Legislatures. (2006a, May 1). Medical mal practice tort reform. State & Federal Issues: NCSL Standing Committees. Retrieved June 2, 2006, from http://www.ncsl.org/standcomm/sclaw/medmalreform05.htm

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116 National Conference of State Legislatures. (2006b, May 1). Medical malpra ctice tort reform. State & Federal Issues: NCSL Standing Committees. Retrieved June 13, 2006, from http://www.ncsl.org/standcomm/sclaw/medmaloverview.htm National Conference of State Legislatures. (2006c, October 21). Medical ma lpractice tort reform 2005 enacted legislation in the states. Retrieved March 10, 2006, from http://www.ncsl.org/standcomm/sclaw/medmalenacted2005.htm National Pressure Ulcer Advisory Panel Board of Directors. (2001). Press ure ulcers in America: Prevalence, incidence, and implications for the future: An executive summary of the national pressure ulcer advisory panel, part 1 of 2. Advances in Skin & Wound Care, 14 (4), 208-215. Negligence, Fla. Stat. § 768.21 (2003). Negligence/liability law application, Bill 874, Florida Senate (1998). NLP IP Company American Lawyer Media. (2002a, February 4). $78 million for 'forgotten' Alzheimer's patient The National Law Journal, p. C4. NLP IP Company American Lawyer Media. (2002b, April 22). Award of $6.78 million for fractures and ulcer The National Law Journal, p. B2. NLP IP Company American Lawyer Media. (2002c, February 4). Bone-deep bed s ores lead to $82 million award The National Law Journal, p. C4. NLP IP Company American Lawyer Media. (2002d, April 8). Case of burned resident settles for $1.5 million The National Law Journal, p. B3. NLP IP Company American Lawyer Media. (2002e, August 19). Estate recovers for negligent treatment The National Law Journal, p. B2. NLP IP Company American Lawyer Media. (2002f, February 4). Facility f ailed to detect fatal bleeding ulcer The National Law Journal, p. C4. NLP IP Company American Lawyer Media. (2002g, April 1). Facility, aide hi t with $9.25 million verdict The National Law Journal, p. B2. NLP IP Company American Lawyer Media. (2002h, July 15). Jury awards $2 milli on in punitives for malice The National Law Journal, p. B2. NLP IP Company American Lawyer Media. (2002i, January 28). Jury awards puniti ves of $2.25M in falldown case The National Law Journal, p. B2.

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117 Oakley, M. L., & Johnson, C. (2001). "Litigation and long-term care facility viability" (Chapter IV), informational report of the task force on availability and affordability of long-term care for the Florida legislature in response to House Bill 1993 Tampa: University of South Florida. Office of the Assistant Secretary for Planning and Evaluation. (2002). Confronting the new health care crisis: Improving health care quality and lowering costs by fixing our medical liability system Washington, DC: U.S. Department of Health and Human Services. Office of the Assistant Secretary for Planning and Evaluation. (2003). Addressing the new health care crisis: Reforming the medical litigation system to improve the quality of health care Retrieved March 6, 2006. from http://www.hcla.org/studies.html Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330 (1987a). Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 4211, 101 Stat.1330 (1987b). Peck, R. S., Marshall, R., & Kranz, K. D. (2000). Tort reform 1999: A building without a foundation. Florida State University Law Review, 27 Fla. St. U.L. Rev. 397 (Winter 2000), 397-445. Phillips, C. D., Morris, J. N., Hawes, C., Fries, B. E., Mor, V., Nennstiel, M., et al. (1997). Association of the Resident Assessment Instrument (RAI) with changes i n function, cognition, and psychosocial status. Journal of the American Geriatrics Society, 45 (8), 986-993. Polivka, L., Salmon, J. R., Hyer, K., Johnson, C., & Hedgecock, D. (2003). Forum: The nursing home problem in Florida. The Gerontologist, 43 (Spec No. 2), 7-18. Priest, G. L. (1991). The modern expansion of tort liability: Its sources, its eff ects, and its reform. The Journal of Economic Perspectives, 5 (3), 31-50. Quality of Long-Term Care Facility Improvement Trust Fund, Fla. Stat. § 400.0239 (2005). Ransom, S. B., Dombrowski, M. P., Shephard, R., & Leonardi, M. (1996). The economic cost of the medical-legal tort system. American Journal of Obstetrics & Gynecology, 174 (6), 1903-1906. Residence rights, Fla. Stat. § 400.022 (1976).

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118 Richards, C. (2002). Infections in residents of long-term care facilities: An age nda for research. Report of an expert panel. Journal of the American Geriatrics Society, 50 570-576. Robbins, M. K. (1994). Nursing home reform: Objective regulation or subjective decisions? Thomas M. Cooley Law Review, 11 (185). Rustad, M., & Koenig, T. (1995). Reconceptualizing punitive damages in medical malpractice: Targeting amoral corporations, not "moral monsters". Rutgers Law Review. Retrieved November 18, 2002, from Lexis-Nexis (TM) Academic database. Schapp, D. L. (2001). Nursing industry in critical condition; high insurance premiums, jury awards are crushing blows. Texas Lawyer. Retrieved July 16, 2002, from the Lexis-Nexis (TM) Academic database. Schneider, E. K. (2000). Long-term care regulatory reform: HCFA, the IOM and opportunity lost. Quinnipiac Health Law, 4 107-147. Scott, E. J. (2002). Punitive damages in lawsuits against nursing homes. Journal of Legal Medicine. Retrieved November 26, 2002, from the Lexis-Nexis (TM) Academic database. Sirin, S. R., Castle, N. G., & Smyer, M. (2002). Risk factors for physical restraint us e in nursing homes: The impact of the nursing home reform act. Research on Aging, 24 (5), 513-527. Sloane, T. (2002, July 15). Back on the tort reform merry-go-round. Modern Healthcare, 32, 22. Spector, W. D., & Drugovich, M. L. (1989). Reforming nursing home quality regulation. Medical Care, 27 (8), 789-801. Stevenson, D. G. (2005). Nursing home consumer complaints and their potential role in assessing quality of care [Electronic Version]. Medical Care, 43 (2), 102-111. Stevenson, D. G., & Studdert, D. M. (2003). The rise of nursing home litigation: Findings from a national survey of attorneys [Electronic Version]. Health Affairs 22 219229. Retrieved March 3, 2004. Stewart, L. (2002). Large med mal awards fall nearly 37 pct. The Legal Intelligencer. Retrieved November 13, 2002, from the Lexis-Nexis (TM) Academic database. Studdert, D., & Stevenson, D. G. (2004). Nursing home litigation and tort reform: A case for exceptionalism. The Gerontologist, 44 588-595.

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119 Studdert, D. M., Mello, M. M., & Brennan, T. A. (2004). Medical malpractice [Electronic Version]. The New England Journal of Medicine 350 283-292. Retrieved June 8, 2005 from http://content.nejm.org/cgi/content/short/350/3/283?query Sullivan, J. G. (1996). Long term care on trial. Contemporary Long Term Care, 19 (3), 38-45. The Florida Bar. (2007). Florida rules of judicial administration Retrieved January 19, 2007, from http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/63413B851B738 BA585256B29004BF86B/$FILE/304JAR.pdf?OpenElement The Foundation for Taxpayer & Consumer Rights. (2002). Insurance crisis: How insurance companies periodically disrupt the economy and why. Retrieved December 11, 2002, from http://www.consumerwatchdog.org/insurance/fs/fs000154.php3 The New York Law Publishing Company. (1999, February 1). Family Wins $ 12.5M After Wrong Man Gets Insulin The National Law Journal, p. B19. The New York Law Publishing Company. (2001a, June 25). $12.3M awarded in Ark. nursing home death The National Law Journal, p. A12. The New York Law Publishing Company. (2001b, September 3). $ 92M nursing home award nearly decimated The National Law Journal, p. C7. The New York Law Publishing Company. (2001c, February 26). A nursing home settle s negligence suit for $ 1M The National Law Journal, p. A13. The New York Law Publishing Company. (2002a, January 14). Jury awards $ 21.5M for senior's choking death The National Law Journal, p. B3. The New York Law Publishing Company. (2002b, February 4). Mock trials, major verdict The National Law Journal, p. A12. Thomason, D. (2001). Nursing home liability insurance rates: Factors contributing to the rate increases in Texas Austin: Senate Research Center of the Texas Senate. Thompson, M. (1997, Oct 27). Fatal neglect. Time, 150, 34-38. Thorpe, K. E. (2004). The medical malpractice 'crisis': Recent trends and the im pact of state tort reforms [Electronic Version]. Health Affairs 2005 Troyer, J. L., & Thompson, H. G., Jr. (2004). The impact of litigation on nursing home quality [Electronic Version]. Journal of Health Politics, Policy and Law 29 11 42. Retrieved 10/19/2004.

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122 APPENDICES

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123 Appendix A Court Case Summary Form General Information 1. Court case number: Special Notes 2. Date case was filed (opened): 3. Court date closed: Year Filed 4. Facility/building code: 5. Total number of case files: Defendant Information 6. Defendants listed in case file match master li sting? 7. Address in file: Address if available: 8. Attorney for defendant(s): List Oth er 1 Bavol, Bush & Sisco, PA 6 Quintaros McCumber et al. 2 Fowler, White, Gillen et al. 7 Shofi Hennen & Associates 3 Hill Ward & Henderson 8 Wilson, Els er, Moskowitz et al. 4 Luks, Koleos & Santaniello 9 Ziegler Steven 5 Murphy & Runyon 10 Other (See list fo r additional names) Plaintiff Information 9 Resident/patient: DOB: 10. Resident's representative (suing with/on behalf of resident): 11. Representative's relationship to resident: 1 Cannot be determined 5 Son/Daughter 2 Other relative 6 Legal guardian non prof essional 3 Legal guardian professional 7 Uncertain bu t same surname 4 Spouse 8 Self 12. Attorney for plaintiff(s): List Ot her Non-Wilkes Case 4 Beltz & Ruth, PA 31 Nursing Home Abu se Law Center 7 Brunetti, PA 33 Perenich, Carroll, et al 16 Fowler, White, Gillen et al. 43 Trentalan ge, Michael, PA 25 Milcowitz & Lyons 47 Wilkes & McHugh 27 Morgan, Colling & Gilbert 00 Other (See list for additional names) 13. Resident's dates of stay in facility: From To 14. Is resident deceased? If yes, date of death:

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124 Appendix A (Continued) Case Outcome 15. Actual settlement date 16. No documentation indicating dismissal/settlemen t, yet case is closed 17. Did plaintiff terminate lawsuit at own request or joint stipulation? (voluntary dismissal) IF YES: Specified that all parties will bear t heir own costs and attorney fees? Case dismissed (prejudice): 18. Involuntary dismissal (court dismissed plaintif f's suit) Reason: 19. Settlement reached prior to jury trial? IF YES: 1) Settlement details confidential/s ealed per included statement 2) Confidentially statement not found, but no $ f igures included 3) Details disclosed as follows: 20. Jury trial resolution? Court order date Trial date IF YES: Summarize disclosed jury awards or ca se outcomes in last section. 21. Mediation used Mediation date Result Mediator 22. Defendant bankruptcy declared? Complaint Information Terminology: 1 0 Statutorily mandated responsibility 2 0 Owed/breached duty 3 0 Direct, proximate result 4 0 Direct, proximate cause 5 0 Standard of care required of similarly situated, re asonably prudent nursing home employees, etc. 6 0 Nonaccidental infliction physical/psychological in jury 7 Other Verbiage 23. Type of lawsuit specified. List all that apply (Specify “Other”) Y/N Counts 5/15/01 Y/N Counts 5/15/01 PRE A POST B PRE A POST B 1 0 Wrongful death 0 0 2 0 Negligence survival 0 0 3 0 Breach of fiduciary duty 0 0 4 0 Misleading adver tising claims 0 0 5 0 Vicarious Liability 0 0 6 0 Chapter 400 claims 0 0 7 0 Other (list above) 8 0 SB 1202 negligence charg es 9 Non-lethal negligence 0 0 10 Lethal negligence 0 0 0 Wrongful death without negligence survival 0 Negl igence survival w/o wrongful death 0 Chapter 400 alone without wrongful death and negl igence survival 0 Wrongful death with negligence survival

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125 Appendix A (Continued) 24. ALL resident's rights listed in the complaint? 25. Separate, specific allegation in complaint of “ Failure to provide adequate and appropriate health care”? 26 Physical condition allegations. List all that apply (specify other): 1 0 Pressure sore(s) 2 0 Infection of pressure sore or other wound 3 0 Sepsis/septicemia 4 0 Gangrene 5 0 Amputation 6 0 Single fall, with injury 7 0 Multiple falls 8 0 Fracture from fall or injury while in facility 9 0 Dehydration 10 0 Malnutrition or excessive weight loss 11 0 Existing condition worsens 12 0 Other (specify above): 0 Both pressure sores and falls 0 Contractures 27. Other allegations List all that apply: 1 0 Delays in the provision of care 2 0 Violation of resident's privacy/dignity 3 0 Illegal resident transfer/discharge 4 0 Resident neglect 5 0 Resident abuse 6 0 Medication errors or mismanagement 7 0 Failure to notify physician 8 0 Failure to carry out physician orders 9 0 Failure to question physician orders 10 0 Failure of physician to act 11 0 Inadequate number/retention of staff 12 0 Inadequate staff training/ communication/supervision 13 0 Failure to notify family 14 0 Failure to develop, implement, update adequate, appropriate care plan 15 0 Records/documentation problems 16 0 Inadequate preventative/custodial care 17 0 Failure to provide materials/ devices 18 0 Inadequate/improper assess /monitor 19 0 Failure to protect from abuse (§415) 20 0 Failure to protect from foreseeable harm 21 0 Unsafe environment 0 Resident abuse with resident neglect 0 Abuse only and no others 0 Neglect only and no others 28. Defense's rebuttal statements and/or counter ev idence in file? 29. Expert witness used? Expert’s name: SPSS ID # 30. Punitive damages Motion? File date Granted/denied date Punitives denied? 31. Settlement proposed? Date Party proposing Amount: 32. Death certificate cause of death 33. Judge 34. Brief account of plaintiff's allegations 35. Case notables/comments (list anything exception al or important about this case):

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Appendix B Study Variables Variable Label Measurement Notes Sample characteristics Filing period Pre reform 1/1/99 – 5/14/01 29.5 mon ths Post reform 5/15/01 – 12/31/03 30.5 months Facility features Ownership For profit 0,1 Longest held status within study years Affiliation Chain 0,1 Longest held status within study years Available beds Bed size 45 – 266 Occupied beds Occupied beds 28 -220 If these data missing for a particular year, accord ing to availability, the previous or following year’s AHCA data for occupied beds was used. Occupancy rate Occupancy rate 0 – 100% Calculated 126

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Appendix B (Continued) Variable Label Measurement Notes Extent of lawsuits Multiple lawsuit filings One 0,1 Two 0,1 Three 0,1 Total lawsuits 1 3 Lawsuits filed per occupied bed Lawsuits filed per occupied bed Calculated Number of lawsuits filed against facility during to rt reform period divided by number tort reform period months divided by average number of AHCAreported occupied beds for same reform period Lawsuits filed per facility Lawsuits filed per nurs ing facility 0 – 42 Lawsuit elements Resident characteristics Gender 0 = male, 1 = female Age at death Calculated Based on birth and death d ates Age at filing Calculated Based on birth and lawsui t filing dates Residency duration – months Calculated Based on re sidency start and end dates 127

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Appendix B (Continued) Variable Label Measurement Notes Somatic allegations per suit 0 Staff-related allegations per suit 0 Lawsuit duration – months Calculated Based on laws uit filing and dismissal dates Cause of death List Filing relationship Self 0,1 Spouse 0,1 Child 0,1 Other relative 0,1 Undetermined – same surname 0,1 Legal guardian, professional 0,1 Legal guardian, nonprofessional, e.g., best friend 0,1 Could not be determined 0,1 Case characteristics Case number Court assigned num ber Number of files 1 – 32 Residency end until lawsuit filing Calculated Base d on residency end and lawsuit filing dates 128

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Appendix B (Continued) Variable Label Measurement Notes Individual defendants 0,1 Bankruptcy documents filed 0,1 Lawsuit activity Bankruptcy & insurance insolvency docs filed 0,1 Case reinstated to pending 0,1 Case removed from pending due to bankruptcy 0,1 Foreclosure documents filed 0,1 Insurance company insolvency documents filed 0,1 Motion to enforce settlement filed 0,1 Punitive damages motion filed 0,1 Punitive damages motion granted 0,1 Counts Breach of fiduciary duty 0,1 Chapter 400 residents’ rights violations 0,1 Loss of consortium 0,1 Misleading advertising claims 0,1 Negligence common law, per se 0,1 Negligence lethal 0,1 129

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Appendix B (Continued) Variable Label Measurement Notes Negligence medical 0,1 Negligence survival 0,1 Other 0,1 SB 1202 defined negligence 0,1 Vicarious liability 0,1 Wrongful death 0,1 Combined wrongful death & negligence survival damage claims 0,1 All Fla. Stat, § 400.022 resident’s rights listed 0,1 “Failure to provide adequate and appropriate health care.” 0,1 Allegations Somatic Amputation 0,1 Asphyxiation, aspiration, choking 0,1 Contractures 0,1 Dehydration 0,1 130

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Appendix B (Continued) Variable Label Measurement Notes Fecal impaction 0,1 Fracture or other injury while residing 0,1 Gangrene 0,1 Infection of pressure ulcer or wound 0,1 Malnutrition or excessive weight loss 0,1 Multiple falls 0,1 Other (conditions not listed) List Physical assault 0,1 Pressure sores 0,1 Pressure ulcers and falls 0,1 Sepsis/septicemia 0,1 Single fall with injury 0,1 Skin tears 0,1 Urinary tract infections 0,1 Worsening, aggravation of existing condition 0,1 Total somatic allegations 0 12 Staff-related Abuse 0,1 131

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Appendix B (Continued) Variable Label Measurement Notes Delays in care provision 0,1 Failure to carry out physician orders 0,1 Failure to implement, develop, update care plan 0, 1 Failure to notify family of significant changes 0, 1 Failure to notify physician 0,1 Failure to protect from abuse §415 0,1 Abuse according to Fla. Stat. § 415.101 is aimed at protecting disabled or elderly adults and requires mandatory reporting of suspected cases to Florida’s Adult Protective Services for intervention Failure to protect from foreseeable harm 0,1 Failure to provide materials or devices 0,1 Failure to provide materials, devices 0,1 Illegal transfer, discharge 0,1 Inaccurate, inconsistent records 0,1 Inadequate preventative, custodial care 0,1 Inadequate staff numbers 0,1 132

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Appendix B (Continued) Variable Label Measurement Notes Inadequate staff training, communication 0,1 Inadequate, improper resident assessment 0,1 Medication errors, mismanagement 0,1 Neglect 0,1 Neglect with abuse 0,1 Physician fails to act 0,1 Physician’s orders unquestioned (seem ill-advised) 0,1 Privacy, dignity violations 0,1 Unsafe environment 0,1 Total allegations per lawsuit 0 – 12 Negotiation measures Arbitration attempt 0,1 Mediation use 0,1 133

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Appendix B (Continued) Variable Label Measurement Notes Mediation used 1 4 Mediation extended or waived 0,1 Mediation outcome – fully settled 0,1 Mediation outcome – impasse 0,1 Settlement proposal either party 0,1 Defendant proposed settlement 0,1 Plaintiff proposed settlement 0,1 Settlement proposals made 1 7 Proposal $ $25,000 $1,000,000 Duration Duration based on dismissal date Calculate d Based on filing and dismissal dates Duration based on settlement date Calculated Based on filing and settlement dates Interims Lawsuit filing until punitive damages mot ion Calculated Based on filing and motion dates Punitive damages motion until settlement date Calc ulated Based on motion and settlement dates Granted punitive damages motion until settlement Calculated Based on motion and settlemen t dates Settlement date until court dismissal date Calcula ted Based on settlement and dismissal dates 134

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Appendix B (Continued) Variable Label Measurement Notes Lawsuit filing date until jury trial order date Ca lculated Based on filing and motion dates Jury trial order date to settlement date Calculate d Based on order and settlement dates Jury trial order date to dismissal date Calculated Based on order and dismissal dates Lawsuit outcomes Disposition Dismissed With prejudice 0,1 Without prejudice 0,1 Voluntary 0,1 Involuntary 0,1 Moved to Federal court Moved to Federal court 0,1 Jury trial Jury trial 0,1 Verdict Plaintiff 0,1 Defendant 0,1 Mistrial 0,1 135

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Appendix B (Continued) Variable Label Measurement Notes Total settlement amount Total settlement $ $25,000 $2,200,000 Costs and payouts Attorney fees $10,000 $732,600 Attorney costs $4,050 $33,090 Medicare liens $750 $20,000 Medicaid liens $120 $24,530 Other settlement payouts $2,420 $216,910 Net to plaintiff $13,200 $525,990 Jury awards Plaintiff awards $75,000 $929,910 Defendant attorney awards $31,061 $555,991, Punitive damages Punitive damages $675,000 Note 0 = no, 1 = yes. 136

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Appendix C Facility Lawsuit, Allegation, and Residency Data Lawsuits filed Year 2001 Allegations Duration in months Available beds 5/15 – 10/5 All other months Five-year Staff-related Somatic Residency Lawsuit Facility 1999 2000 2002 2003 Total M N M N M N M N M 648 a 60 425 45 0 0 1 0 0 0 1 0.2 1 8.00 1 3.00 1 12.63 1 13 .43 195 75 1 1 1 0 0 0 3 0.6 3 10.00 3 5.33 2 50.05 3 20.14 443 80 0 0 0 0 2 1 3 0.6 3 4.00 3 3.33 2 6.44 3 20. 19 687 113 0 1 0 0 1 2 4 0.8 3 9.00 3 4.33 3 2.17 4 16 .45 202 163 0 0 1 1 1 2 5 1.0 5 10.20 5 6.00 5 29.03 3 39.44 699 96 1 1 0 1 1 2 6 1.2 6 10.17 6 5.33 6 23.78 5 1 9.01 163 180 7 0 0 0 0 0 7 1.4 6 9.50 6 3.83 4 4.48 6 20.58 418 97 4 0 1 2 0 0 7 1.4 7 10.86 7 4.14 7 13.50 7 24.37 137

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Appendix C (Continued) Lawsuits filed Year 2001 Allegations Duration in months Available beds 5/15 – 10/5 All other months Five-year Staff-related Somatic Residency Lawsuit Facility 1999 2000 2002 2003 Total M N M N M N M N M 803 100 0 2 3 1 0 1 7 1.4 7 12.29 7 5.43 7 13.20 7 30.86 632 109 4 0 1 2 1 1 9 1.8 8 10.63 8 3.50 8 10.62 8 22.84 257 120 1 2 3 1 0 3 10 2.0 9 9.56 9 5.11 9 12.64 8 25.16 677 180 0 2 5 1 2 1 11 2.2 11 11.55 11 5.18 10 11.0 5 9 18.45 190 120 2 0 3 0 3 5 13 2.6 13 10.92 13 4.77 12 14.7 8 9 25.21 592 120 5 1 2 1 3 2 14 2.8 14 9.86 14 4.43 13 8.42 14 19.24 152 179 1 3 5 4 1 2 16 3.2 16 11.31 16 4.75 14 21.41 12 25.87 937 179 1 1 8 1 3 1 15 3.0 14 10.14 14 3.79 13 30.1 0 14 18.12 436 179 8 1 4 1 0 3 17 3.4 17 9.59 17 4.00 16 22.99 13 19.59 582 120 3 3 5 2 1 4 18 3.6 16 9.56 16 5.69 16 30.93 14 24.43 628 120 0 3 9 1 1 4 18 3.6 18 10.67 18 4.72 18 20.1 8 18 20.03 950 120 1 3 8 3 1 2 18 3.6 17 11.41 17 3.82 16 19.6 6 15 29.70 682 117 1 0 8 0 3 7 19 3.8 19 11.16 19 5.21 19 8.05 15 25.61 952 120 1 3 8 1 2 4 19 3.8 17 9.47 17 5.59 16 24.13 15 30.32 138

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Appendix C (Continued) Lawsuits filed Year 2001 Allegations Duration in months Available beds 5/15 – 10/5 All other months Five-year Staff-related Somatic Residency Lawsuit Facility 1999 2000 2002 2003 Total M N M N M N M N M 193 120 5 2 7 1 1 5 21 4.2 21 12.00 21 4.52 20 10.1 1 20 22.33 390 240 5 1 8 3 3 1 21 4.2 21 10.14 21 5.05 18 15.6 1 17 26.78 901 120 5 5 6 3 3 0 22 4.4 22 10.36 22 5.45 21 14.0 2 19 27.18 171 120 2 2 5 6 3 5 23 4.6 22 11.23 22 4.36 22 10.3 4 21 26.75 486 150 3 4 9 2 3 4 25 5.0 25 9.76 25 4.80 24 28.31 22 25.77 199 120 6 6 7 0 5 4 28 5.6 28 9.79 28 4.50 28 10.65 26 20.41 804 120 7 4 8 4 6 5 34 6.8 34 10.97 34 4.32 34 11.6 9 29 28.02 806 240 5 6 9 4 3 7 34 6.8 33 9.85 33 4.64 31 17.74 28 24.91 873 266 8 9 6 6 2 4 35 7.0 35 10.69 35 4.94 32 25.0 3 34 26.77 703 174 13 6 12 2 1 8 42 8.4 42 11.55 42 4.76 41 27 .77 42 24.31 Total 101 76 160 57 58 94 546 M 136.5 b 3.1 2.3 4.8 1.7 1.8 2.8 16.6 3.3 10.48 4.69 18. 13 24.66 Note. Shaded cells indicate facility was nonoperational during all or part of the study period. a Facility had no lawsuit activity during study perio d and is not included in calculations. b Does not include beds for facilities nonoperational during all of the study period 139

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140 Appendix D IRB Approval

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141 Appendix D (Continued)

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142 Appendix E Descriptive Statistics for Filing Year Data Analysis found that on average lawsuits were not filed until 15.5 months after the end of a resident’s nursing facility stay (range six days to 49.2 months). For e xample a typical lawsuit filed in June of 2001 would be based upon a nursing facility stay that ended in March of 2000. This major caveat must be taken into account when reviewing findings in this section. It should not be assumed that documented allegations reference the year in which a lawsuit was filed or are reflective of any tort refor m effects in that year, but, rather simply describe the content of lawsuits filed at that time. If omnibus tests indicated significant differences between years, additi onal twoway contingency tables and chi square tests of independence were performed on independent pairs of years. If F tests indicated overall significance, follow-up tests were conducted to evaluate pair-wise differences between means. If tests of homoge neity of variance were non-significant indicating that the variances between year s were similar, Tukey post hoc means differences’ results were examined. If variance homogen eity was significant, Dunnett’s C tests were used instead since this pair-wise com parison test is based on unequal variances between groups. Extent of Lawsuits The mean for lawsuits filed per year for the five-year study period was 109 .2 ( SD = 62.5). More lawsuits were filed in 2001 than any other study year. In 2002, lawsuits decreased 73.3% from 2001 ( N = 58). Post reform period findings based on

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143 residency start dates reflect a decrease in lawsuits for the specific pe riod, but total lawsuits filed yearly increased 62% in 2003 ( N = 94) from 2002. Lawsuit Elements Residency Duration The mean duration of nursing facility residencies that began between 1999 and 2003 are listed by year in Table E-1. Residencies beginning in 1999 were found to be significantly longer than stays beginning during 2000 through 2003. Overall differ ences between years in residency duration based on residency start dates was found t o be significant, F (4, 252) = 11.28, p < .001. Lawsuit-associated residencies starting in 2000 ( N = 100) were the greatest portion of all lawsuits filed during the research peri od. Table E-1 Lawsuit Associated Nursing Facility Residency Durat ion Having Start Dates 1999 2003 Range Residency duration months Admission year N Days Years M 1999 71 2 4.21 12.4 2000 94 2 4.08 8.1 2001 59 1 1.51 3.7 2002 26 3 0.76 2.2 2003 3 1 0.22 1.1 253 All years 7.6 Note Only lawsuits having residency admission and disc harge dates are included Individual Defendants Lawsuits filed in 2002 and 2003 were significantly more likely to include individual defendants than lawsuits filed in 2000 and 2001 (Table E-2). Lawsuits filed in

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144 1999 were significantly more likely to add individuals as defendants than lawsuits filed in 2000. Table E-2 Individuals Added As Defendants – Comparison of Fil ing Years 1999 – 2003 1999 2002 2003 df N c 2 p df N c 2 p df N c 2 p 1999 1 159 0.20 NS 1 195 2.70 NS 2000 1 177 6.28 .012 1 134 7.45 .006 1 170 14.50 .0 00 2001 1 318 3.20 NS 1 275 4.20 .041 1 311 14.38 .000 2002 1 152 0.93 NS Note NS = non-significant. Lawsuit Proceedings Significant differences were found between years in lawsuits filing pun itive damages motions (Table E-3). In 2003, there was a decrease of approximately 35% in t he proportion of lawsuits filing motions for punitive damages compared to 1999 and 2000. Filing years were also significantly different in the numbers of lawsuits documenting the granting of punitive damages motions, with the smallest proportion of lawsuits noting the granting of such motions occurring in lawsuits filed in 2002 and 2003. Between 1999 and 2003 there was a decrease in documented granted punitive damages motions of approximately 24%. No lawsuits filed in 1999 and 2000 documented motions to enforce settlements, but 10.2% of lawsuits filed in 2001 did, a significant difference.

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145 Table E – 3 Punitive Damages and Settlement Enforcement Proceed ings by Filing Year 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Difference between years Action N % N % N % N % N % c 2 p Punitive damages motion filed 44 44.4 35 46.1 45 21 .1 12 21.4 9 10.1 46.54 .000 Punitive damages motion granted 28 28.3 13 17.1 24 11.3 6 10.7 4 4.5 25.77 .000 Motion to enforce settlement filed 0 0.0 0 0.0 19 1 0.2 4 7.7 1 1.4 22.38 .000 Charges Significant differences between filing years in all lawsuit char ges except loss of consortium and “other” category charges are identified in Table E-4. Use of com bined wrongful death and negligence survival damage claims decreased signifi cantly in 2002 and 2003 from 2000 and 2001. The use of wrongful death charges in 2002 and 2003 did not decrease to 1999 levels, but was significantly lower during those years compar ed to 2000 and 2001. Negligence survival charges were documented less in 2003 than any other filing year in the study. Documented use of breach of fiduciary duty char ges found 33.3% of all such charges filed in 2003, even more frequently than in 2001 with its greater number of filed cases. Misleading advertising claims were docum ented more in 1999 than any other filing year. Vicarious liability charges were documented less in 2003 than any other filing year in the study with the greatest percentage of cases incorporating this charge filed in 1999. Of all Chapter 400 residents’ rights charges, 40.5% were filed in 2001. The lowest

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146 percentage of Chapter 400 claims occurred during 2003 and all lawsuits filed in 2000 contained this charge. In 2003, the use of negligence charges based on SB 1202 definitions constituted 69.2% of all lawsuits documenting this charge. The remainder of lawsuits using this charge was filed in 2002. Increased use of this charge was expected after 20 01 Fla. Laws ch. 45 went into full effect October 6, 2001.

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Table E – 4 Lawsuit Charges by Filing Year (N = 534) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Charge N % N % N % N % N % c 2 p Chapter 400 residents’ rights violations 95 95.0 76 100.0 210 98.6 54 96.4 83 93.3 9.94 .042 Wrongful death 41 41.0 50 65.8 136 63.8 23 41.1 46 51.7 23.02 .000 Negligence survival 58 58.0 49 64.5 122 57.3 30 53. 6 36 40.4 11.22 .024 Wrongful death and negligence survival 38 38.0 40 5 2.6 109 51.2 18 32.1 29 32.6 16.12 .003 Negligence – common law, per se 39 39.0 29 38.2 89 41.8 17 30.4 50 56.2 11.30 .023 Vicarious liability 58 58.0 30 39.5 54 25.4 17 30.4 17 19.1 43.32 .000 Breach of fiduciary duty 9 9.0 12 15.8 29 13.6 10 1 7.9 30 33.7 24.14 .000 Negligence lethal 1 1.0 0 0.0 7 3.3 4 7.1 34 38.2 121.34 .000 Negligence – medical 3 3.0 1 1.3 25 11.7 5 8.9 3 3. 4 15.84 .003 Loss of consortium 5 5.0 2 2.6 10 4.7 2 3.6 2 2.2 1 .66 NS Other 1 1.0 5 6.6 10 4.7 1 1.8 3 3.4 4.95 NS Negligence according to SB 1202 0 0.0 0 0.0 0 0.0 4 7.1 9 10.1 37.02 .000 Misleading advertising 5 5.0 2 2.6 0 0.0 1 1.8 1 1. 1 10.87 .028 Note NS = non-significant. 147

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148 Medical negligence charges were used significantly more in 2001 (67.6% of all such charges) than any other filing year. Lawsuits filed in 2003 documenting letha l negligence charges constituted 73.9% of all lawsuits claiming this charge d uring the study period. Significantly more lawsuits filed in 2003 documented use of common law negligence than other filing years, including 2002 which had the lowest documented use of this charge. Each study filing year was analyzed to identify the five leading lawsuit charges. After all years were compared and duplicate charges combined, vicarious li ability, combined wrongful death and negligence survival damage claims, common law negligence, wrongful death, negligence survival, lethal negligence, and breach of fiduciary duty were identified as the seven leading charges for the study period. T hese charges have been sorted according to 1999 rankings in Table E-5. Chapter 400 residents’ rights claims were the leading charge each year, ranging from a high o f 100% in 2000 to 93.3% in 2003, and are not displayed. Leading charges in 2003 differed from previous filing years, eliminating combined wrongful death and negligence survival claims and vicarious liability as leading charges, and adding lethal negligence and breach of fiduciary duty. Inc reased use of lethal negligence charges may be due to the inability under tort reform meas ures to file combined wrongful death and negligence survival damage claims, and used with the intent of applying a possible greater level of legal injury accountability. Th e increased use of breach of fiduciary duty may be based on attorney attempts to place financ ial responsibility for plaintiffs’ charges on business entities associated in an y way with and that may be more financially solvent than the defendant nursing facility.

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149 Table E – 5 Leading Five Lawsuit Charges, Excluding Chapter 400 Residents’ Rights Claims, per Filing Year 1999 2000 2001 2002 2003 Charge Rank % Rank % Rank % Rank % Rank % Negligence survival 1 58.0 2 64.5 2 57.3 1 53.6 3 4 0.4 Vicarious liability 1 58.0 4 39.5 5 25.4 4 30.4 19 .1 Wrongful death 3 41.0 1 65.8 1 63.8 2 41.1 2 51.7 Common law negligence 4 39.0 5 38.2 4 41.8 4 30.4 1 56.2 Combined wrongful death & negligence survival damage claims 5 38.0 3 52.6 3 51.2 3 32.1 32.6 Breach of fiduciary duty 9.0 15.8 13.6 17.9 5 3 3.7 Lethal negligence 1.0 0.0 3.3 7.1 4 38.2 % = Percentage of lawsuits containing charge. Allegations Somatic Initial omnibus two-way contingency table analyses found there were signifi cant mean differences between years in six somatic allegations (Table E-6). Ap proximately 41% of all lawsuits alleging urinary tract infections were filed in 2002 and 2003 wi th an average of 36.8% of lawsuits filed each of these years compared to an average of 17.9% for 1999, 2000, and 2001 documenting this allegation (not shown). Contracture allegation documentation reached a high in 2002. Approximately 48% of all sepsis or septicemia allegations were filed in 2001. However, 2002 had the greatest percentage of filed ca ses documenting this allegation, significantly more than 1999. All other filing years had significantly larger proportions of lawsuits alleging dehydration than 1999 had. Individual pair-wise comparisons found that documented allegations of pressure ulcer or wound infection increased significantly in 2003 over every other filing year exce pt 2000.

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150 Lawsuits documenting pressure ulcers and falls decreased significantly in 2 003 from 1999 and 2000. Lawsuits alleging “other” somatic charges significantly increas ed from 1999 in 2001, which could be expected with the influx of filed cases that year. Continued increases in documented use of this allegation were seen in 2002 and 2003, which significantly increased over 2000 as well as 1999. Staff-Related Initial omnibus tests indicated there were significant differences betwe en years in all but four staff-related allegations noted in lawsuits (Table E-6). The f our allegations in which no significant differences were found between years were failure to c arry out physician’s orders, failure to question seemingly ill-advised physician order s, physician failed to act, and illegal resident transfer or discharge. Individual pair-wise comparisons found all filing years had significantly lar ger proportions of lawsuits alleging an unsafe environment than 1999 did. All filing years significantly increased over 1999 levels in allegations of medication errors or mismanagement as well. However, all filing years decreased signifi cantly from the 1999 proportion of lawsuits documenting failure to provide materials or devices. A significantly larger percentage of lawsuits filed in 2003 contained alle gations of delays in the provision of care than any other study filing year. Allegations of resident abuse in lawsuits filed in 2003 increased significantly over 2000, 2001, and 2002. The 2003 proportion of lawsuits having this allegation was lower than the 1999 level, but the difference was not significant.

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151 Lawsuits filed in 2003 contained significantly fewer failure to protect from abuse as defined in Fla. Stat. § 415 allegations than other filing years in the study. Laws uits filed in 2003 also significantly decreased from all other filing years in the d ocumentation of resident abuse with resident neglect in the same lawsuit. Allegations of r esident neglect significantly decreased in 2003 from 2000, 2001, and 2002. The 2003 proportion of lawsuits containing this allegation decreased from the 1999 level as well, but t he difference was not significant. Lawsuits filed in 2003 also contained signific antly fewer allegations of failure to notify family of significant changes than other study filing years. Allegations of failure to develop, implement or update care plan significantly dec reased in 2003 from all other study filing years as well, Lawsuits filed in 2002 and 2003 documented significantly fewer allegations of failure to protect from foreseeable harm than lawsuits filed in 1999 and 2003. Lawsuits filed in 2002 and 2003 also contained significantly fewer allegations of inaccurate or inconsistent records than 1999, 2000, and 2001.

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Table E – 6 Allegations by Filing Year (N = 534) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Allegation Rank N % Rank N % Rank N % Rank N % Rank N % c 2 p Somatic Worsening, aggravation of existing condition 1 82 82.0 1 69 90.8 1 182 85.4 1 42 75.0 1 79 88.8 8.13 NS Pressure ulcer 2 69 69.0 2 47 61.8 2 125 58.7 3 34 60.7 2 54 60.7 3.13 NS Fracture, other injury while residing 3 46 46.0 6 3 7 48.7 4 103 48.4 6 31 55.4 6 44 49.4 1.31 NS Multiple falls 4 46 46.0 34 44.7 6 93 43.7 5 32 57 .1 35 39.3 4.69 NS Malnutrition, excessive weight loss 5 43 43.0 3 46 60.5 5 102 47.9 2 35 62.5 4 46 51.7 9.13 NS Pressure ulcer or wound infection 6 42 42.0 5 39 51 .3 82 38.5 19 33.9 3 51 57.3 13.12 .011 Pressure ulcers & falls 31 31.0 24 31.6 26 12.2 12 21.4 13 14.6 23.83 .000 Dehydration 27 27.0 4 44 57.9 3 106 49.8 4 34 60.7 5 45 50.6 24.78 .000 Other 19 19.0 17 22.4 69 32.4 18 32.1 38 42.7 15.36 NS Contractures 11 11.0 12 15.8 55 25.8 16 28.6 1 6 18.0 12.81 .012 Urinary tract infection 10 10.0 15 19.7 51 23.9 21 37.5 32 36.0 23.96 .000 Sepsis/septicemia 6 6.0 12 15.8 35 16.4 12 21.4 8 9.0 11.16 .025 Amputation 6 6.0 6 7.9 7 3.3 4 7.1 4 4.5 3.42 NS Skin tears 4 4.0 5 6.6 22 10.3 7 12.5 8 9.0 4. 99 NS 152

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Table E – 6 (Continued) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 *N = 89 Allegation Rank N % Rank N % Rank N % Rank N % Rank N % c 2 p Gangrene 4 4.0 1 1.3 1 0.5 0 0.0 4 4.5 9.27 NS Asphyxiation, aspiration, choking 2 2.0 3 3.9 13 6.1 2 3.6 8 9.0 5.52 NS Single fall with injury 2 2.0 5 6.6 12 5.6 4 7. 1 4 4.5 3.03 NS Physical assault 2 2.0 0 0.0 2 0.9 0 0.0 0 0.0 3.88 NS Fecal impaction 1 1.0 0 0.0 6 2.8 1 1.8 6 6.7 9.18 NS Staffing -Related Inadequate staff training, communication 1 93 93.0 2 71 93.4 4 192 90.1 41 73.2 3 68 76.4 26.19 .000 Inadequate, improper resident assessment 2 92 93.9 4 69 90.8 3 199 93.4 3 46 82.1 1 85 95.5 10.38 .035 Privacy, dignity violations 3 91 91.0 4 69 90.8 18 7 87.8 2 50 89.3 62 69.7 24.26 .000 Inadequate staff numbers 3 91 91.0 6 66 86.8 6 191 89.7 5 44 78.6 6 63 70.8 22.83 .000 Care plan not developed, implemented, updated 5 90 91.8 1 73 96.1 2 202 94.8 1 52 92.9 5 64 71.9 43.36 .000 Inaccurate, inconsistent records 5 90 91.8 2 71 93.4 1 204 95.8 4 45 80.4 3 68 76.4 32.86 .000 Failure to notify family of significant changes 80 81.6 6 66 86.8 187 87.8 6 42 75.0 43 48.3 63. 21 .000 Failure to protect from foreseeable harm 75 76.5 34 44.7 77 36.2 15 26.8 27 30.3 61.00 .000 Inadequate preventative, custodial care 71 72.4 65 85.5 4 192 90.1 6 42 75.0 2 75 84.3 1 8.83 .001 Abuse 56 56.0 23 30.3 141 66.2 39 69.6 45 50.6 34.70 .000 153

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Table E – 6 (Continued) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Allegation Rank N % Rank N % Rank N % Rank N % Rank N % c 2 p Failure to provide materials, devices 55 56.1 12 15.8 62 29.1 18 32.1 17 19.1 43.55 .000 Failure to notify physician 40 40.0 12 15.8 90 4 2.3 28 50.0 41 46.1 22.75 .000 Failure to protect from abuse §415 37 37.8 19 25.0 101 47.4 8 14.3 2 2.2 71.40 000 Neglect 15 15.0 15 19.7 96 45.1 11 19.6 6 6.7 65.02 .0 00 Neglect with abuse 2 15 15.2 8 10.5 79 37.1 5 8.9 0 0.0 70.94 .000 Failure to carry out physician's orders 14 14.0 1 0 13.2 28 13.1 12 21.4 18 20.2 4.44 NS Unsafe environment 12 12.2 40 52.6 132 62.0 21 37.5 54 60.7 75.5 4 .000 Medication errors, mismanagement 9 9.0 35 46.1 1 15 54.0 23 41.1 27 30.3 62.37 .000 Illegal transfer, discharge 5 5.0 4 5.3 5 2.3 0 0.0 1 1.1 6.15 NS Delays in care provision 4 4.0 8 10.5 56 26.3 1 2 21.4 38 32.2 49.07 .000 Physician's orders unquestioned (seem ill-advised) 2 2.0 0 0.0 0 0.0 1 1.8 0 0.0 7.34 NS Physician fails to act 1 1.0 0 0.0 1 0.5 0 0.0 0 0.0 1.93 NS Note NS = non-significant. For filing year 1999, 98 lawsuits were available fr om which to compile this variable. 2 For filing year 1999, 99 lawsuits were available fr om which to compile this variable. 154

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155 The six leading somatic and staff-related allegations for each filing yea r are marked accordingly in Table E-6 that is sorted according to 1999 rankings. Worsening or aggravation of an existing condition was the most frequently documented somatic allegation for each filing year, followed by pressure ulcers each year except for 2002. During that year, the second most documented somatic allegation was malnutriti on or excessive weight loss. As noted previously, allegations of dehydration were greater each year than i n 1999 during which it did not rank in the leading six allegations. In 2003 this allegation ranked fifth in frequency. Pressure ulcer or wound infection ranked third in 2003 and was documented significantly more that year than other filing year except 2000 as a lso noted previously. No other significant differences were noted between years in le ading somatic allegations. The greatest proportion of lawsuits documenting inadequate, improper resident assessment occurred in 2003 and ranked as the leading allegation that year. Inadequa te preventative or custodial care which had not ranked at all in 1999 or 2000 and was sixth in 2002, ranked second in 2003. Care plan not developed, implemented, updated ranked fifth in 2003, a significant decrease from all other years as noted previously. Negotiation Strategies Two-way contingency tables and chi square tests of independence were used to examine differences between mediation or arbitration use and filing years Arbitration, mediation, and settlement proposal data are displayed in Table E-7. The percentage of lawsuits attempting arbitration increased significantly in lawsuits f iled in 2003. Conversely, documented mediation use decreased significantly, with the smalle st

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156 percentage of lawsuits documenting mediation (34.8%) occurring in 2003 compared to other filing years. Of lawsuits documenting mediation use, 23.5% of 2001 cases ( N = 213) resulted in full settlements and 33.9% of 2002 lawsuits ( N = 56) resulted in impasses, larger proportions than any other study years. Although the percentag e of lawsuits documenting settlement proposals increased in 2002 and 2003 over other filing years, the increase was not significant. Plaintiffs were significant ly more likely to offer settlement proposals in 2003 than any other filing year.

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Table E – 7 Negotiation Methods by Filing Year (N = 534) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Action N % N % N % N % N % c 2 p Arbitration attempt 1 1.0 1 1.3 39 18.3 7 12.5 22 2 4.7 37.76 .000 Mediation use 53 53.0 53 69.7 148 69.5 35 62.5 31 34.8 36.64 .000 Mediation extended or waived 0 0.0 1 1.3 69 32.4 10 17.9 9 10.1 73.64 .000 Mediation outcome – fully settled 15 15.0 11 14.5 5 0 23.5 6 10.7 10 11.2 10.49 .033 Mediation outcome – impasse 11 11.0 19 25.0 52 24.4 19 33.9 10 11.2 19.14 .001 Settlement proposal either party 22 22.2 15 19.7 42 19.7 16 28.6 22 24.7 2.67 NS Defendant proposed settlement 16 16.2 11 14.5 27 12.7 9 16.1 5 5.6 5.86 NS Plaintiff proposed settlement 4 4.0 4 5.3 10 4.7 4 7.1 13 14.6 11.86 .018 Note NS = non-significant. For 1999 N = 99. 157

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158 Greatest use of mediation was found in lawsuits filed in 2002 and the most settlement proposals per lawsuit occurred in cases filed in 2003 (Table E-8). Over all, there were no significant differences between years in either variable Table E – 8 Mediation Usage and Settlement Proposals per Lawsui t by Filing Year 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Action N M SD N M SD N M SD N M SD N M SD F p Mediation usage 53 1.08 0.33 53 1.04 0.19 148 1.12 0.40 35 1.26 0.56 31 1.03 0.18 .052 NS Settlement proposals 22 1.36 0.66 15 1.40 0.83 42 1.83 1.55 16 1.88 1.26 22 1.91 1.48 .463 NS Note NS = non-significant. Duration Lawsuits filed in 2001 had the shortest mean interim from residency ending date until filing date (14.4 months). The longest interim between these dates was 17.6 months and occurred in 2000, followed by 16.4 months for lawsuits filed in 2003. Differences between years were not found to be significant. Significant differences were found between years in lawsuit duration based on dismissal and settlement dates, int erim from opening date until punitive damages motions filed, interim between settlement date s and dismissal dates, and interim between jury trial order dates and settlement dates. Based on dismissal dates, the duration of lawsuits filed in 2003 ranged from 3.4 to 8.1 months shorter than those filed in 1999, 2000, and 2001, a significant difference (Table E-9). Lawsuit duration based on settlement dates found cases filed in 2003 significantly shorter than cases filed in 2001, 16.0 versus 24.3 months respectively. The time difference between settlement and dismissal dates increased sig nificantly in lawsuits

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159 filed in 2003 over cases filed in 1999 and 2000. Motions for punitive damages were filed significantly later in lawsuits filed in 2001 than they were in lawsuits file d in 1999 and 2002. The interim between court-ordered jury trial dates and settlement dates decr eased significantly in 2001 and 2003 from 1999.

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Table E – 9 Impact of Motions on Lawsuit Duration by Filing Yea r (N = 534) 1999 N = 100 2000 N = 76 2001 N = 213 2002 N = 56 2003 N = 89 Differences between years Time period N M SD N M SD N M SD N M SD N M SD F p Duration Based on dismissal date 99 23.85 13.7 8 74 26.65 14.6 1 191 28.60 14.0 5 55 22.16 11.1 8 78 20.46 10.94 6.72 .000 Based on settlement date 68 21.23 13.5 2 43 24.31 14.1 6 106 24.31 11.0 5 22 18.79 10.1 9 19 15.97 7.21 2.95 .021 Interim Lawsuit filing and punitive damages motion 38 12.01 9.54 31 15.29 11.9 4 42 20.87 11.1 0 13 11.73 3.85 9 16.54 6.18 4.50 .002 Punitive damages motion and settlement date 24 10.9 0 9.59 24 10.98 10.1 2 22 13.17 7.75 7 13.24 9.34 2 16.59 9.17 0.40 NS Granted punitive damages motion and settlement 26 13.46 11.1 1 16 12.83 10.8 5 24 10.88 6.03 9 11.05 6.46 2 7.80 0.28 0.42 NS Settlement date and court dismissal date 68 2.53 4.11 43 2.90 3.70 103 3.94 4.64 22 4.71 4.90 19 6.77 5.94 4.05 .003 Lawsuit filing date and jury trial order date 36 19 .14 15.5 1 29 20.39 14.0 9 50 24.89 11.2 8 14 16.22 7.93 15 18.67 8.77 2.03 NS Jury trial order date and settlement date 29 5.54 3.18 19 4.52 2.17 30 3.48 2.07 7 4.35 2.96 6 1.90 1.77 3.84 .006 Jury trial order date and dismissal date 36 7.83 4.33 28 8.25 5.06 49 7.28 4.49 14 9.47 7.42 11 6.87 4.49 0.70 NS Note NS = non-significant. 160

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161 Lawsuit Outcomes Analyses of variance were used to determine means for settlement proposals, tot al settlements, and attorney fees and costs, Medicare and Medicaid liens, other pa yout, and net to plaintiff amounts for filing years. Tukey post hoc pair-wise comparison te sts were conducted to compare means differences between years. Initial omnibus tests found no significant differences between study years in all variables, except attorney costs (Table E-10). However, ANOVAs comparing individual filing years found that 2003 was significantly lower than 1999 in mean total settlements, F (1, 14) = 7.97, p =.014, and attorney fees, F (1, 14) = 4.79, p = .046 (not shown). Differences between 1999 and 2002 included total settlements being significantly lower in 2002, F (1, 16) = 5.03, p = .039, but attorney costs being significantly higher that year, F (1, 5) = 58.92, p = .001 (not shown). The mean net to plaintiff in 2002 was significantly lower than 2000, F (1, 2) = 20.22, p = .046 (not shown). However, there was only one lawsuit in 2002 compared with three in 2000. Significantly lower means were found in 2003 than in 2000 in the following: total settlement, F (1, 6) = 13.25, p = .011, attorney fees, F (1, 5) = 9.28, p = .029 (not shown). Attorney costs were again significantly higher in 2002 than 2001, F (1, 6) = 6.20, p = .047 (not shown). Although only one case noting attorney costs was found in 2002, the $33,089 figure was the highest attorney cost amount reported for the entire study period ( N = 19).

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Table E – 10 Settlement Proposal, Total Settlement, and Payout A mounts by Filing Year(Thousands of Dollars) 1999 2000 2001 2002 2003 Variable N M SD N M SD N M SD N M SD N M SD F p Proposal $ 8 338.25 267.42 7 317.86 318.43 9 279.17 193.04 3 135.00 99.62 4 102.50 102.83 0.983 NS Total settlement $ 12 466.75 250.10 4 348.25 97.36 16 413.76 509.53 6 197.65 215.72 4 98.18 96.97 1.16 9 NS Attorney fees 13 177.86 101.52 4 141.43 36.22 14 17 1.06 177.24 6 79.06 86.29 3 43.50 49.62 0.321 NS Attorney costs 6 12.61 2.47 3 17.01 4.65 7 14.88 6. 84 1 33.09 --2 10.82 9.58 3.206 .046 Medicare liens 1 0.78 --2 6.86 5.70 5 9.75 6.66 0 ----2 13.81 1.68 1.183 NS Medicaid liens 3 8.59 13.81 1 3.28 --3 3.50 4.19 0 ----2 0.17 0.07 0.368 NS Other settlement payouts 2 149.46 95.39 1 29.26 --3 10.85 2.34 1 2 .42 --0 0.00 0.00 2.970 NS Net to plaintiff 7 267.58 153.06 3 145.69 22.17 7 1 55.54 92.96 1 30.58 --2 59.94 66.11 2.132 NS Note NS = non-significant. 162

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ABOUT THE AUTHOR Deborah K. Hedgecock graduated summa cum laude in 1999 receiving a Bachelor’s Degree in Psychology from the University of South Florida and ente ring the Ph.D. in Aging Studies program at USF the same year. Deborah was an instructor f or The Life Cycle undergraduate course. She was also a graduate research assis tant, working as a lead investigator for the Task Force on Availability and Affordability of Long -Term Care for the Florida Legislature and was a co-principal investigator for the Florida Nursing Home Litigation and Liability Insurance Survey conducted for the Florida H ealth Care Association and Florida Association of Homes for the Aging.. She is the principal a uthor of one report and one article and the coauthor of six articles. She has made several presentations on nursing facility litigation at national conferences of the Ger ontological Society of America and spoken at The Florida Conference on Aging, and the Societ y of Certified Senior Advisors.