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Nursing Home Abuse & Lawsuits

With the national spotlight on those horrific conditions, including 11 deaths at the Hollywood, Fla Nursing home only steps away from treating hospital & other medical facilities, many of us who practice Plaintiffs personal injury law have known of the terrible & inadequate conditions, the understaffed and under trained staff at many of the Florida facilities. Both Florida & Federal laws protect the Nursing Home residents give them and their families rights for mistreatment, negligence and statutory violations. I thought this would be a good time to provide some information on this topic:
Florida Law is:
Chapter 400
First though,Florida has enacted by statute a statement of patient rights and responsibilities. It is aspirational
in nature, for the most part. It applies to all patients in a hospital or health facility licensed pursuant toChapter 395, Florida Statutes (hospitals, ambulatory surgical centers). Section 381.026, Florida Statutes contains a detailed list of patient rights,and responsibilities along with detailed descriptions, and the same for patient responsibilities. This section of Florida Statutes also contains a summary of these as follows: A patient has the right to be treated with courtesy and respect, with appreciation of his or her individual dignity, and with protection of his or her need for privacy. A patient has the right to a prompt and reasonable response to questions and requests.There is a long list of rights and responsibilities which is too long for this blog and I urge you all to read. Though they are not “per se” actionable, their deviations can be used as “evidence” of negligence or malpractice. Of course if anyone has any questions or would like to go over the entire list with me please feel free to contact me.
Florida has one of the largest nursing home resident populations in the US. As Florida’s population continues to age, this number will continue to grow larger. Due to widespread systemic neglect throughout the Florida nursing home industry, the legislature in Tallahassee enacted a Nursing Home Resident’s Bill of Rights in Chapter 400, the statutory section governing Florida nursing home abuse. In order to understand Florida nursing home abuse lawsuits, it is important to examine the formation and development of Chapter 400 and the subsequent case law interpreting it. This nursing home Residents’ Bill of Rights set forth in §400.022, Fla. Stat. The Florida legislature enacted the protections in sections 400.022 and 400.023(1) precisely because the rights and remedies afforded in traditional common law negligence actions were inadequate to protect elderly nursing home residents. The laws dealing with injuries from a car crash were insufficient in dealing with unique nursing home neglect injuries. The Nursing Home Act’s purpose is clearly stated in its enacting legislation — to establish “basic standards for the health, care, and treatment of persons in nursing homes and related health care facilities” as well as to “ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities.” § 400.011; see Beverly Enters.-Fla., Inc. v. McVey, 739 So. 2d 646,648 (Fla. 2d DCA 1999). The Nursing Home Act “evinces a legislative plan to protect the interests of the citizens of this state who use” nursing homes. Garcia v. Brookwood Extended Care Ctr., 643 So. 2d 715 (Fla. 3d DCA 1994).The policy behind the enactment of Chapter 400 was clear and was set forth with specificity in §400.001 — to improve the quality of care in Florida nursing homes. The policy behind creating the civil enforcement procedure was to add some ‘muscle’ into the statute, to provide a further incentive for nursing homes to meet the applicable standard of care. Prior to Chapter 400 and its civil enforcement procedure, there was little or no incentive to nursing home victims and their families to sue a skilled nursing facility in Florida. Similarly, there was little financial punishment a Florida nursing home would face if it wrongfully neglected its resident and caused injury. To improve nursing home care in our state, the legislature sought to provide an abused elderly resident with access to the civil justice system, thereby granting power to individual people to right the wrongs of elder abuse and neglect.
As a result of these legilative enactments a Nursing Home Residents Bill of Rights was created eas is statutorily and judicilly enforced which in summary provides and protects:
The Residents’ Rights guarantees each Florida nursing home resident:
The right to be free of nursing home abuse and neglect;
Have access to private and uncensored communication like mail, phone calls and visits with family;
The right of family members to visit the resident unannounced;
The right of a resident to refuse treatment, if able to make medical decisions;
To access and see the recent facility inspection upon request;
The right to manage his/her own financial affairs; and,
The right to be treated courteously and with dignity.
Violations of the Resident Rights may be considered Florida nursing home abuse. Negligent facilities may be held accountable for related injuries in a Florida nursing home abuse lawsuit.
If a resident is neglected or abused in a Florida nursing home, the aggrieved can seek justice through a Florida nursing home abuse lawsuit. If the Residents’ Rights are not met, the resident or their guardian can sue the nursing home under §400.023. This section of the Florida statutes states,
“Any resident whose rights as specified in this part are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.”
This is considered a Florida nursing home abuse lawsuit.Compensatory damages in a lawsuit compensate the victim or their family for losses. These typically include:
Medical bills (past and future),
Missed income,
Loss of ability to enjoy life, mental anguish, loss of consortium,
Pain and suffering of the victim, if still alive,
Pain and suffering of the survivors, if the claim was for wrongful death.
The Florida Legislature created a private cause of action in section 400.023 to protect frail and elderly residents of nursing home residents. To accomplish this purpose, the Legislature specifically authorized personal representatives to bring nursing home actions and recover “actual and punitive damages” and attorney’s fees for a violation of resident’s rights. See § 400.023(1). The attorney’s fees provision of Chapter 400 was later taken away, but the availability of punitive damages in outrageous cases of nursing home abuse remains. Punitive damages are awarded in addition to compensatory damages. These ‘extraordinary’ damages are made to punish and deter a defendant’s wrongful behavior. Punitive damages are only available in Florida nursing home cases where there exists a willful, wanton or gross deviation from the standard of care. See Garcia, 643 So. 2d at 717; Mang, 559 So. 2d at 673-74, Blankfeld v. Richmond Health Nursing Home.
For a nursing home victim to recover punitive damages, this requires wrongdoing “evincing willful, wanton, and intentional misconduct sufficient to sustain a conviction for manslaughter.” Key West Convalescent Ctr., Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993). The Supreme Court has described this wanton wrongdoing as:
The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them”. White Constr. Co. v. Dupont, 455 So.2d 1026, 1029 (Fla. 1984) (quoting Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla. 1959)).
Recent Florida cases have moved away from this older line of cases on Florida punitive damages in the nursing home context. The more recent case law on punitive interprets Sect. 400.0237 literally, meaning a Plaintiff must only prove ‘gross negligence’ to seek punitive damages. Gross negligence is defined as conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
section 400.023(1) makes it clear that the estate is the proper vehicle to pursue a wrongful death claim on behalf of a deceased victim of nursing home neglect. The plain language of the statute allows personal representatives to recover actual damages from the infringement, not the more limited remedy of the Wrongful Death Act. See Somberg, 779 So. 2d at 668; Spilman, 661 So. 2d at 869. Considering this unambiguous language, the courts in Somberg and Spilman concluded that the Legislature “did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home’s infringement or deprivation of the patient’s rights resulted in the patient’s death.” Somberg, 779 So. 2d at 668-69 (quoting Spilman, 661 So. 2d at 869).
Finally because in large cases many small Nursing Homes carry lower insurance limits and also they many shield their assets,it is critical that a nursing home neglect lawsuit names not only the facility licensee, but also the individuals who actively manage and control the facility, if they acted negligently. Florida case law had interpreted Florida Statutes Chapter 400 to be liberally not strictly construed. In Mang v. Country Comfort Inn, Inc., 559 So.2d 672,673 (Fla. 3d DCA 1990) the court held that the “Florida legislature deemed it necessary to make certain designated individuals are responsible for the day-to-day operations of facilities caring for the elderly and the infirm.” In Mang, one of the issues was whether the administrator of an assisted living facility could be sued in his individual capacity. Florida’s Third District Court of Appeal affirmed that individuals can be named, explaining that the public policy is that these “individuals” shall be responsible for their actions and “not become faceless entities.” See also, Estate of Cutchin v. Hilltopper Holding Corporation, wherein Plaintiff sued the nursing home’s management company for having actual control over the facility budgets and staffing levels.
I hope this blog/information is helpful now or into the future…as most of us have older relatives and we ourselves aren’t getting any younger it is critical we know our rights on this topic..So save this
If I can be of any help please call me at either 561-391-0448 or 561-702-4312(cell) or email me @ BJG Namaste Brian J Glick