Articles Posted in Nursing Home Abuse

two elderly womenIn WG Evergreen Woods SH, et al. v. Fares, the Florida Fifth Circuit Court of Appeals considered whether Florida Rule of Civil Procedure (FRCP) 1.190(f) required the trial court to hold a hearing before allowing the plaintiff leave to amend its complaint to add a claim for punitive damages. The plaintiff in the action was the estate of a man named Donald DeVore, who was a resident at the defendant’s assisted living facility. At the facility, he received occupational and physical therapy to improve his strength. He was also permitted to use the pool and the hot tub. One day, a staff member found DeVore alone and unresponsive in the hot tub. It was later determined that he suffered a heart attack and consequently died.

The estate sued the defendant for negligence and wrongful death, seeking compensatory damages. In its complaint, the estate alleged that the decedent’s medical conditions indicated that he should not be allowed to use the hot tub and that despite assurances from the defendant, the decedent often used the hot tub and pool without assistance or supervision. They alleged that the decedent’s ultimate cause of death was drowning.

After the litigation progressed for one year, the plaintiff moved for leave to amend the complaint to add a claim for punitive damages. Pursuant to FRCP 1.190(f), the plaintiffs included a copy of the proposed amended complaint. The amendment would add 18 new sections, including affidavits from the plaintiff’s experts, an autopsy report, deposition transcripts, and more.

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old womanIn Mendez, Jr. v. Hampton Court Nursing Center, LLC, the Supreme Court of Florida had the occasion to consider an important issue regarding arbitration clauses in nursing home contracts. The plaintiff, a personal representative of his father’s estate, appealed the Third District Court’s decision regarding when a convalescent hospital resident is bound by the terms of an arbitration term in a nursing home agreement when the resident did not sign or otherwise commit to the agreement.

The facts of the case are as follows. The son admitted his father to the defendant’s nursing home facility in 2009. At this time, he executed a nursing home residency contract on behalf of his father. The agreement contained a clause stating that any disputes regarding the care provided to the resident would be subject to arbitration as the exclusive remedy. The father did not sign the agreement.

During his residency at the defendant’s facility, the father contracted an eye infection that ultimately required the removal of his afflicted eye. Shortly thereafter, the son initiated a lawsuit against the nursing home on his father’s behalf, alleging statutory violations and negligence. The defendant responded to the complaint by filing a motion to compel arbitration, and the trial court granted this request. During the appeal, the father passed away.

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time-699965_960_720-300x200One of the most common types of claims to arise in a nursing home abuse case is medical malpractice. Ensuring that the elderly receive the treatment that they need in an appropriate and timely fashion falls directly within a nursing home’s duty to its residents. In Florida, there are certain time limits placed on when an injury victim can file a claim. When it comes to medical negligence, an injury victim has two years from the date the injury victim learned about or should have learned about the negligence. According to Florida Statutes Section 95.11(4)(b), however, an injury victim cannot bring a claim more than four years from the date of the incident.

Determining the date that the injury victim discovered or should have discovered the negligent act is one of the biggest issues in nursing home negligence cases. The resident may suffer from dementia or another illness, leaving it up to the family members to ensure that their loved one is receiving the care that they need. Even with the most attentive and involved families, determining exactly when the negligence occurred can be difficult.

In the recent case of Bove v. Naples HMA, LLC, the Florida Second District Court of Appeals considered this very issue. The decedent in the case died following a medical procedure to obtain a bone marrow biopsy. According to a physician who testified at trial, the patient died from a retroperitoneal bleed that interacted with other medical issues. Following the death of her husband, the decedent’s wife obtained letters from medical experts who informed her that the death was associated with the biopsy procedure and resulting bleed.

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couple in hospitalIn the recent case of Sovereign Healthcare of Tampa LLC v. The Estate of Otto N. Schmitt, the Florida Second District Court of Appeal was presented with multiple issues regarding the enforceability of an arbitration clause against the estate of a deceased resident. Otto N. Schmitt was a resident and patient at the defendant’s nursing home facility on two separate occasions. The decedent resided at the Bayshore Pointe Nursing & Rehabilitation Center from February 1, 2013, to March 6, 2013. A Resident Admission and Financial Agreement for this stay was signed on February 7, 2013. The decedent did not sign this agreement, however. Instead, his wife, Mrs. Schmitt, executed the agreement. Between September 25, 2013, and October 18, 2013, the decedent resided at the Bayshore facility once more. The Resident Admission and Financial Agreement for this period was dated September 26, 2013.

Shortly following the decedent’s death, his wife, who was acting as the personal representative of his estate, filed a nursing home negligence action against the nursing home. The defendant filed a motion to compel arbitration of the dispute and to stay the litigation against it. Its motion was based on the terms of both Resident Admission and Financial Agreement forms. Regarding the first stay, the defendant claimed that the contract included an arbitration provision. They asserted the same basis for compelling arbitration regarding the decedent’s second tenure at the Bayshore facility.

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a-moment-of-sadness-968652_960_720The Florida Court of Appeal for the Fifth District recently revisited an issue involving the enforcement of arbitration agreements in disputes involving nursing homes. In Estate of Reinshagen v. WRYP ALF, the decedent was a resident at the defendant’s living facility. Following his death, the personal representative administering his estate sued the nursing home facility, alleging that the defendant’s negligence was the cause of the decedent’s death. The personal representative also alleged that the defendant violated the decedent’s rights under Florida Statutes chapter 429.

In response to the complaint, the defendant filed a motion to compel arbitration pursuant to the residence agreement that the decedent signed upon moving into the care facility. The trial court granted the defendant’s motion to compel arbitration, and the personal representative appealed.

The Fifth District Court of Appeal reversed the lower court’s order compelling arbitration, citing the recent case of Estate of Novosett v. Arc Villages II. In that case, the lower court concluded that the term in an arbitration contract between a nursing home resident and the nursing home operator that placed a cap on the amount of noneconomic damages the resident could recover was not enforceable. The court also struck a term that prohibited the resident from seeking punitive damages. According to the appellate court, both terms violated public policy.

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doctor-563428_960_720The recent case of North Broward Hospital District v. Kalitan has raised important legal questions regarding Florida’s medical malpractice laws, particularly when it comes to the limit on monetary damages that a plaintiff can recover in litigation. The Fourth District Court of Appeals recently concluded that these statutory limitations were unconstitutional. The defendant has appealed the issue, and the Florida Supreme Court has granted review.

The plaintiff underwent a surgical procedure to address carpal tunnel syndrome in her wrist. During the procedure, a nurse punctured the plaintiff’s esophagus but failed to identify the perforation. Although the plaintiff informed the doctors after the surgery that she was experiencing severe pain in her chest, she was discharged and sent home with painkillers. The next day, the plaintiff’s neighbor found her in a non-responsive state, and she was rushed to the emergency room. The plaintiff was placed into a drug-induced coma, required multiple invasive treatments to address the injury, and continues to experience complications along with pain, anxiety, depression, and reduced independence.

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4084160160_6e8c282505_zIn the recent case of Estate of Novosett v. Arc Villages, the Florida Fifth District Court of Appeals voided an arbitration agreement between a nursing home and one of its residents, who died while in the nursing home’s care.

The specific term at issue in the arbitration agreement was a limitation of liability provision, which limited the amount of non-economic damages that the plaintiff could seek and precluded the plaintiff from obtaining punitive damages. Non-economic damages reflect categories of damages like pain and suffering and reduced quality of life, as opposed to economic damages, which encompass quantifiable items like medical bills. Punitive damages are a category of recovery designed to punish a defendant that has engaged in willful, careless, reckless, or wanton conduct. Punitive damages are also designed to discourage other actors from engaging in similar conduct.

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file0001849487704Florida’s Second District Court of Appeal recently handed down an opinion agreeing with other appellate authority in the state that a resident of a nursing home is not bound by an arbitration agreement executed by the resident’s family member at the time of the resident’s admission to the facility. In Sovereign Healthcare of Tampa v. Estate of Yarawsky, 2D13-2083, an elderly nursing home resident had lived at the plaintiff’s facility for 10 months prior to his death. Following his death, the decedent’s estate filed a lawsuit against the nursing home, alleging that the decedent died due to the nursing home’s negligence. Shortly thereafter, the nursing home filed a motion to compel arbitration on the basis that the resident admission forms and financial agreement executed at the time of the decedent’s admission contained an arbitration agreement.

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wheelchair-300x214Florida’s Second District Court of Appeal held in a recent case that a nursing home accused of violating a resident’s rights could not enforce an arbitration agreement because the agreement was incomplete.

After the decedent died of injuries she sustained while living in the nursing home, the plaintiff’s estate brought an action against the facility for a violation of the decedent’s rights. During the discovery process, the decedent’s estate requested a copy of an arbitration agreement she signed when she moved in. The nursing home produced the last page of the agreement, which contained the decedent’s signature, but it was unable to produce the first six pages of the agreement.

Before trial, the nursing home filed a motion to compel arbitration pursuant to the arbitration agreement. In support of its motion, the nursing home introduced into evidence the last page of the agreement. Based on the limited language contained on that page, the nursing home argued that the decedent agreed to arbitration. The estate argued that the agreement was incomplete and therefore unenforceable. The trial court granted the nursing home’s motion.

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KONICA MINOLTA DIGITAL CAMERAA trial will soon conclude in a U.S. Bankruptcy Court in an attempt to resolve issues stemming from a Florida nursing home negligence case. The facts of the underlying case, Estate of Jackson v. Trans Healthcare, illustrated that a woman had been placed in a Florida nursing home for roughly a year. After she had left the facility in 2003, the victim died as a result of alleged mistreatment, including malnutrition and neglect.

The wrongful death claim went to trial in 2010, when the deceased’s estate obtained a $110 million judgment. However, the operators of the nursing home did not pay, or even appeal, the judgment. When the estate attempted to collect the judgment, it ran into major difficulties due to alleged fraud on behalf of the defendants.

The plaintiff’s estate has argued that several of the defendants have effectively made themselves judgment-proof by structuring their corporate organizations and transferring liabilities to a shell company, while at the same time establishing a chain of nursing homes that are protected from judgment. Apparently, according to the plaintiffs, two companies that operated the chain of nursing homes at issue were involved in a series of transactions in 2006 in which their stock was purchased by two separate entities. One of those entities kept the companies’ assets, and one took on the liabilities.

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