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Articles Posted in Nursing Home Abuse

Florida Appellate Court Concludes that Motions for Leave to Amend to Add a Punitive Damages Claim Require a Pre-Ruling Hearing

Published on: January 26, 2017 | Lusk, Drasites & Tolisano, P.A.

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.

Supreme Court of Florida Resolves the Split of Authority Regarding Nursing Home Arbitration Agreements

Published on: September 30, 2016 | Lusk, Drasites & Tolisano, P.A.

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.

Florida Appellate Court Denies Medical Negligence Action Based on Statute of Limitations

Published on: August 19, 2016 | Lusk, Drasites & Tolisano, P.A.

time-699965_960_720-300x200-1 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.

Florida District Court Remands Car Accident Lawsuit For Lack of Diversity of Citizenship

Florida Appeals Court Reverses Lower Court’s Increase of Pain & Suffering Damages in Car Accident Lawsuit

Florida Appellate Court Finds Arbitration Provision in Nursing Home Negligence Dispute Unenforceable

Published on: July 12, 2016 | Lusk, Drasites & Tolisano, P.A.

couple in hospital 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.

Florida Fifth District Court of Appeal Overturns Order Compelling Arbitration in Nursing Home Neglect Case

Published on: June 10, 2016 | Lusk, Drasites & Tolisano, P.A.

a-moment-of-sadness-968652_960_720 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.

Florida Supreme Court to Consider Constitutionality of Medical Malpractice Damages Cap

Published on: May 16, 2016 | Lusk, Drasites & Tolisano, P.A.

doctor-563428_960_720 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.

Florida Appellate Court Voids Arbitration Agreement in Nursing Home Wrongful Death Case

Published on: April 26, 2016 | Lusk, Drasites & Tolisano, P.A.

4084160160_6e8c282505_z 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.

Florida Appellate Court Holds Nursing Home Arbitration Agreement Unenforceable Against Resident in Negligence Action

Published on: May 22, 2015 | Lusk, Drasites & Tolisano, P.A.

Florida’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.

The trial court ruled in favor of the nursing home company, compelling the parties to arbitrate their dispute. The decedent’s estate filed a motion for reconsideration of the order on the basis of the arbitrator that the nursing home selected to preside over the proceeding. While the nursing home’s motion for reconsideration was pending, the Florida Fifth District Court of Appeals entered an opinion in a case involving similar circumstances, Perry ex rel. Perry v. Sovereign Healthcare of Metro W., 100 So. 3d 146 (Fla. 5th DCA 2012).

In Perry, the Fifth District concluded that the arbitration clause was not enforceable against the daughter of an individual who passed away during residency with the nursing home facility. The admission paperwork omitted any references to the resident, and the area where the daughter could have indicated her authority to execute agreements on behalf of the resident was left blank. Additionally, “there was ‘no evidence [that the resident] was incapable of singing the agreement on her own behalf’ and even if the daughter had signed on the mother’s behalf, there was ‘absolutely no evidence that [the daughter] had the authority to bind [the resident] to the arbitration agreement.” The court reasoned that an agreement could not be enforced against an individual who was not a party to the agreement, and who was not bound to its terms by a representative.

Nursing Home’s Incomplete Arbitration Agreement Unenforceable, Holds Florida’s Second District

Published on: February 25, 2015 | Lusk, Drasites & Tolisano, P.A.

wheelchair-300x214 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.

To enforce an arbitration agreement, the party seeking enforcement must prove that:

There is a valid arbitration agreement;
An issue subject to arbitration exists; and
The right to arbitration has not been waived.

The Second District held that the nursing home could not prove the first element because none of the terms of the agreement were known.

As arbitration agreements become more common, it is important for Floridians to understand their significance. In general, a person who was injured by a negligent nursing home has the right to file an injury lawsuit in Florida state court. If the plaintiff can prove a duty, the defendant’s breach, actual and proximate causation, and damages, he or she will be entitled to collect compensatory damages from the defendant.

However, if the resident signed a binding arbitration agreement, he or she may have waived his or her right to bring a lawsuit. Instead, the nursing home may be able to enforce the agreement and force the parties into arbitration. Depending on the terms of the agreement, the nursing home could have a significant advantage in arbitration, including the right to choose the arbitrators and dictate the procedure of the arbitration hearing.

The Southwest Florida injury attorneys at Lusk, Drasites & Tolisano can help you if you or a family member was injured by a negligent nursing home in Cape Coral, Naples, Fort Myers, or beyond. We can handle all aspects of your case, even if you signed an arbitration agreement. If arbitration is required, many agreements allow the parties to be represented by counsel at the hearing. If not, we have significant experience taking negligent nursing homes to court. To schedule a free nursing home negligence case evaluation, call (800) 283-7442.

A Jury Verdict Alone Does Not Entitle Florida Personal Injury Plaintiffs to Future Noneconomic Damages, February 4, 2015.

Family Attempts to Recover Jury Verdict in Florida Nursing Home Negligence Case, Fights Complex Corporate Operation

Published on: September 26, 2014 | Lusk, Drasites & Tolisano, P.A.

A 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.