Burden of Proof and Nursing Home Agreements

nursing-home-residents-13-30715-m.jpgIn a recent case, a woman appealed an order that granted a retirement home’s motion to compel arbitration. These motions are fairly common in nursing home abuse or nursing home negligence cases. Often a nursing home requires incoming residents to sign an arbitration agreement before being admitted and this agreement requires the resident to submit any dispute to a particular arbitrator and set of arbitration rules. Issues arise when the arbitration agreement requires a resident to subscribe to rules that impact their ability to recover for serious losses under Florida law.

In Florida, an arbitration agreement can be found contrary to public policy where the agreement substantially limits remedies set forth under the Nursing Home Residents Act (NHRA) or Assisted Living Facilities Act (ALFA). Under NHRA, any claim alleging a violation of rights or negligence causing injury or death to someone living in a nursing home must be proven by a preponderance of the evidence. A claimant must show (1) nursing home or other defendant’s duty to the resident, (2) breach of duty, (3) the breach is a legal cause of loss or injury or other damage to the resident, (4) actual loss, injury, death or damage due to the breach.

In this case, the plaintiff had signed an arbitration agreement that required arbitration by the American Health Lawyers Association under its alternative dispute resolution rules. She signed it in order to be admitted to the residential facility.


Later she suffered a fracture in her arm. She filed a complaint asserting her rights had been violated under ALFA.

In an earlier case, an agreement specified that all disputes would be resolved through binding arbitration conducted by the National Health Lawyers Association. Section 606 of the NHLA rules states that an arbitrator is not permitted to award anything beyond compensatory damages (e.g. exemplary, punitive or special damages) without clear and convincing evidence that the defendant acted with intentional or reckless disregard for another’s rights.

The court in that case found that heightening the standard required to obtain special damages eliminated the recovery for negligence and ran counter to the NHRA. Accordingly, the agreement ran counter to public policy.

This is a statute very similar to NHRA. ALFA allows for claims of negligence to be proved by a preponderance of the evidence standard. This is a fairly low burden of proof, certainly lower than the “clear and convincing” standard. However in 2010, one rule was revised to provide that a clear and convincing standard would apply to issues of consequential, exemplary or special damages.

The court in this case explained that the revision was not sufficient. In negligence cases generally, consequential and special damages are terms used to describe forms of compensatory damages. In court, you would have to prove these damages by a preponderance of the evidence.

The court concluded that the trial court had erred in granting the motion to compel. It also found that the portion of the AHLA rules that was improper could not be severed and removed from the rest of the arbitration agreement.

If you have been hurt due to another person or entity’s negligence, contact the experienced Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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