Articles Posted in Nursing Home Abuse

In 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.

In 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.

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.

On February 25, 2014, the wife mailed a notice of intent to sue the hospital where the procedure was performed. On May 12, 2014, she mailed a notice of intent to sue the doctor who performed the procedure, and on June 11, 2014, she sent a notice of intent to sue the physician who handled the biopsy.

The plaintiff sought an extension of the statute of limitations and later initiated her lawsuit after receiving denials of each notice of intent to sue. The physicians and the hospital filed a motion to dismiss, claiming that the plaintiff failed to initiate her action within the statute of limitations, and the trial court granted all three motions.

On appeal, the plaintiff alleged that she did not learn about the potential negligent cause of her husband’s death until she first consulted with her lawyer in July 2012 and that the action was timely filed because she sought an extension of the statute of limitations. The appellate court agreed with the defendants that the plaintiff could not contravene the notices of intent to sue that she sent to the hospital and doctors, which included a statement that she became aware of the defendant’s potential negligent conduct on the date of the decedent’s death, meaning the statute of limitations expired before the defendants received notice.

If you or a loved one have suffered injuries while in the care of a convalescent hospital, nursing home, or senior care residence, you may be entitled to compensation. At Lusk, Drasites & Tolisano, our nursing home abuse and neglect attorneys are well versed in the nuances of Florida’s statute of limitations laws as applied to medical malpractice cases. We can assist you with obtaining evidence, calculating the likely statute of limitations, and bringing your claim. Proudly serving clients throughout Southwest Florida, including in Naples, Cape Coral, and Fort Myers, we offer a free consultation to discuss your potential case and the legal options that may be available to you. Call us at 1-800-283-7442 or contact us online to schedule your appointment.

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In 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.

The lower court denied the motion to compel arbitration, concluding that Mrs. Schmitt lacked authority to sign the agreement on the decedent’s behalf regarding the first stay. As a result of her lack of authority to sign on her husband’s behalf, the lower court concluded that the arbitration agreement was not enforceable against the decedent’s estate. In confirming this ruling, the appellate court cited the 2014 case of Sovereign Healthcare of Tampa, LLC v. Estate of Yarawsky. In this case, the Second District Court of Appeals concluded that an arbitration provision in a resident agreement could not be enforced when a wife signed the agreement on her husband’s behalf only in her capacity as the responsible party and not in a capacity to make legally binding decisions on behalf of her husband.

The 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.

The 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.

According to Florida Statutes Section 766.118, a plaintiff cannot recover more than $500,000 in non-economic damages from a medical practitioner. This category of recovery encompasses damages like pain and suffering and diminished quality of life. Damages of this nature typically are not easily quantifiable, like medical bills or lost wages. When it comes to non-practitioners, the cap is raised to $750,000. If the patient enters a permanent vegetative state or dies as a result of the practitioner’s negligence, the claimant can recover up to $1.5 million in non-economic damages.

In 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.

The decedent’s estate filed suit, challenging the arbitration agreement. The lower court struck the limitation of liability term from the contract, but it compelled the parties to proceed with arbitration because the contract included a severability clause. According to a severability clause, if one part of the contract is deemed unenforceable, it is struck from the agreement, and the remainder of the terms still stand. The decedent’s estate appealed this decision.