In 2002, Sandra Banning’s 77-year old mother who suffered from dementia was raped at Southwood Nursing Center, a Jacksonville, Florida nursing home. The rape was committed by Ivy Edwards, another Southwood Nursing Center resident with a history of sexual assault. Edwards’ criminal file is 13 pages long and includes 59 arrests, including child molestation and sexual assault. Research of records in 37 states has uncovered that 380 registered sex offenders live in nursing homes. This number does not include sex offenders who are not required to register or residents with other types of criminal backgrounds.
Nursing homes are supposed to be a place where some of the most vulnerable people find compassionate care and the best possible quality of life during their last years. Sadly, many residents find themselves physically, mentally, or financially abused by staff or other residents. Even more sad is the fact that much of the abuse goes unpunished. Shockingly, earlier this year a bill was introduced in the Florida senate by Sen. Bill Galvano, R-Bradenton that would make it more difficult for negligent nursing homes to be held financially responsible where their negligence resulted in abuse.
Florida’s Proposed Change
Current Florida law requires that a plaintiff who sues a nursing home seeking punitive damages show reasonable evidence to support his or her claim. The proposed law, known as Nursing Home Litigation, S.B. 1384, seeks to raise the plaintiff’s burden of proof. The new law would require that a plaintiff show “clear and convincing” evidence that the nursing home’s active and knowing negligence contributed to the victim’s injury. Punitive damages are the most detrimental damages that can be levied against a defendant. Compensatory damages are awarded to cover losses with a specific economic value such as medical expenses, the cost to replace property, or lost wages. On the other hand punitive damages are designed to punish and deter a defendant in cases where the defendant’s act was extremely egregious and compensatory damages are deemed by the court as inadequate. Punitive damage awards are typically significantly greater than compensatory damage awards, but are limited by Florida law to $2 million.
Rationale of Proposed Change
Supporters of the proposed new law feel that the current law is unfair and that its impact can be devastating for the corporations that operate nursing homes and for individual executives. They argue that since the impact of a court assessing significant punitive damages can be so financially devastating for defendants, it should be more difficult to be able to seek punitive damages. Ultimately S.B. 1384 failed. A similar but more aggressive bill introduced in the Florida House also failed to pass. However, supporters may again introduce similar legislation in a future legislative session.
What is curious about the rationale of those who support a change to the status quo is that they do not address the issue of sex offenders and other criminals posing a threat to other residents of nursing homes. The ultimate goal of nursing home operators is to not be faced with lawsuits and assessed with financially crippling punitive damages. So why not take steps to protect residents and staff from harm? Nursing home abuse and nursing home neglect are such serious problems that the federal government stepped in. The recently enacted federal Patient Safety Abuse Prevention Act seeks to protect nursing home patients by requiring background checks on staff. Why not introduce legislation that would require background checks on those who apply to become residents? Instead of making it more difficult for the victims, why not make it more difficult for people with criminal histories to move into nursing homes, or take special precautions with residents who have criminal backgrounds?