Articles Posted in Nursing Home Abuse and Negligence

arbitrationRecently, a state appellate court issued an opinion in a Florida nursing home negligence lawsuit requiring the court to determine if the plaintiff’s case was properly brought in court or if she was required to submit the case to arbitration. Ultimately, the court concluded that while there was one clause in the agreement that was unenforceable, the agreement as a whole should be upheld. Thus, the plaintiff was still required to submit her case through arbitration.

The Facts

The plaintiff was the estate of a woman who died while in the care of the defendant nursing home. Prior to the woman’s admission into the nursing home, she executed an arbitration agreement. Essentially, the agreement waived her right to pursue a claim against the nursing home in a court of law, favoring resolution of any claims through the arbitration process.

After the woman died, the estate filed a personal injury lawsuit against the nursing home, claiming that the arbitration agreement the woman had signed was unenforceable because while the agreement stipulated that Florida substantive law would be applied at the arbitration proceedings, it also stipulated that Alabama rules of evidence and procedural rules would apply.

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Nursing homes have come under fire over the past few years for the manner in which they get residents and their families to give up their right to pursue a case against the nursing home in court. Often, these arbitration clauses are, at best, written in small text hidden among countless other pages of documents or, at worst, presented to residents in a take-it-or-leave it fashion, such that if they refuse to sign their application will be rejected.

Legal News GavelAn arbitration clause is not so much about what a nursing home resident is getting, but about what they give up. Under the U.S. Constitution, everyone has the right to access the court system to resolve grievances; however, that right can be waived through an explicit agreement to arbitrate all claims instead of using the court system. One of the problems with arbitration, however, is that it often puts a nursing home at an unfair advantage.

Thus, government agencies and watch-dog groups have been advocating for nursing homes to do away with arbitration clauses in their pre-admission paperwork. These are often presented to a potential resident or their family in a time of desperation, when the consequences of waiving their rights may not be fully realized. Notwithstanding that fact, nursing homes continue to include arbitration clauses in their pre-admission paperwork, although few have the gall to deny a resident admission if they refuse to sign it. Instead, nursing homes are relying on a resident not fully understanding what it is they are signing or simply overlooking the clause altogether.

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In most Florida nursing home abuse and neglect cases, the threshold issue is whether the case can be pursued through the court system, or if the plaintiff must pursue their claim for compensation through the arbitration process. The reason this issue so often arises is because nursing homes routinely include arbitration agreements in their pre-admission paperwork.

Legal News GavelWhile arbitration is generally understood to be a more favorable forum for a nursing home, many families end up signing these agreements due to the inherent emotional pressures that are present at the time a decision must be made. While courts do have the ability to declare arbitration agreements void, it is the plaintiff’s burden to establish why that is the case.

In a recent opinion, the plaintiff’s case was dismissed based on an arbitration agreement that she had signed prior to admitting her mother into the defendant nursing home. In so holding, the court rejected the plaintiff’s argument that, at the time she signed the document, she did not have the legal authority to do so.

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Recently, a state appellate court issued a written opinion in a personal injury lawsuit that was filed against a Florida nursing home. The case presented the court with the opportunity to discuss the validity of an arbitration contract that was signed by a resident’s wife prior to the resident’s admission into the nursing home.

Legal News GavelNursing Home Arbitration Contracts

When someone is admitted into a Florida nursing home, the nursing home will require that the resident sign a pre-admission contract outlining the expectations, rights, and remedies of the parties. More often than not, these pre-admission contracts contain a clause whereby the parties agree to submit any claims that may arise between the parties to binding arbitration, rather than filing a case through the court system.

What nursing homes rarely tell prospective patients is that an agreement to arbitrate claims cannot be forced upon a resident or their family. In other words, if a resident does not agree to arbitration but agrees with the remaining terms of the contract, the nursing home should not reject the resident’s application based on that fact.

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When someone is killed due to the negligence of another party, the survivors of the deceased may be entitled to financial compensation for their loss through a Florida wrongful death lawsuit. In order to succeed in a wrongful death lawsuit, a plaintiff must establish that their loved one’s death was a result of a negligent act or omission of the defendant.

Legal News GavelOne issue that frequently comes up in wrongful death lawsuits, especially those arising in the context of nursing home abuse or neglect, is whether an arbitration agreement between the deceased and the defendant can be enforced against a survivor of the deceased when they file a wrongful death lawsuit. The short answer, in Florida, is “yes.”

A recent case in another state clearly illustrates the issue of derivativeness and its importance.

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Earlier this month, an appellate court issued a written opinion in a nursing home case brought by the surviving loved ones of a woman who died while in the care of the defendant nursing home facility. The case presented a hot-button issue in many nursing home cases across the country:  the enforceability of an arbitration clause that was contained in a pre-admission contract. Ultimately, the court concluded that the plaintiff was bound by the arbitration clause because the person who signed on the resident’s behalf had the authority to do so, and the clause itself was not contrary to public policy or otherwise unenforceable.

Legal News GavelThe Facts of the Case

The plaintiff was the daughter of a nursing home resident who died shortly after being admitted to the hospital while she was a resident at the defendant nursing home. The allegations were that the nursing home failed to implement a safety protocol to prevent residents from falling. The evidence presented suggested that the plaintiff’s loved one fell at least twice during her stay, resulting in injuries that worsened and eventually led to her premature death.

Prior to the resident’s admission into the nursing home, one of the resident’s daughters signed a pre-admission contract. That contract had an arbitration clause contained in it, which stated that the parties agreed to submit any claims between the two to binding arbitration, rather than handling them through the court system. At the time, the resident had executed a power of attorney document, granting her daughter power over her affairs “without limitation.”

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When someone is injured due to the negligent or intentional conduct of another person, the victim is entitled to file a Florida personal injury claim against the person or people they believe to be responsible for their injuries. If successful, an accident victim can recover compensation for their injuries.

Legal News GavelCompensation awards in personal injury cases are broken down into different categories. For example, the most common category of personal injury damages is called compensatory damages. Compensatory damages are designed to put the plaintiff back into the position where they were before the accident. Medical expenses, lost wages, and a decrease in one’s quality of life are all categories of compensatory damages. Since these damages are designed to make the plaintiff “whole” again, the focus is on the victim, rather than the conduct of the defendant.

Punitive damages, on the other hand, focus on the defendant’s conduct that resulted in the plaintiff’s injuries. Punitive damages are rare and can be significant – sometimes reaching into the tens of millions of dollars. These damages are designed to deter parties from engaging in the type of conduct that resulted in the plaintiff’s injury. As a result, punitive damages focus on the defendant’s conduct, rather than the injuries suffered by the plaintiff. Punitive damages are rare and generally are not appropriate when mere negligence is alleged. Normally, there must be a showing of intentional conduct or recklessness in order for a court to consider punitive damages.

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When a South Florida nursing home abuse or neglect case is filed, the parties must exchange certain requested materials before the case is scheduled for trial. This is called the pre-trial discovery process, and it is an opportunity for both sides to learn a little more about the other’s case.

Legal News GavelIn most South Florida personal injury or wrongful death cases filed against a nursing home, the plaintiff will request not just information that he believes will be helpful to his case but also information that could potentially be harmful to his case. The idea is to be prepared for what lies ahead at trial. A recent case illustrates the tactics that some nursing home defendants will attempt in order to prevent the plaintiff from obtaining certain material.

The Facts of the Case

The plaintiff was the father of a mentally ill man who was a resident at the defendant nursing home. While the plaintiff’s son was a resident of the home, he was attacked by another resident with a blunt object and subsequently died from the injuries he sustained in the attack.

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Earlier this month, Hurricane Irma ripped through South Florida, leaving behind a disaster area in some locations. Hurricane Irma may not have been as bad as some had forecasted, but hundreds of thousands of Floridians were left without power in the wake of the storm. While a power outage may be a minor annoyance to most, outages can be deadly to a nursing home resident who relies on medical equipment.

Legal News GavelAccording to a recent news report, one South Florida nursing home is facing at least one lawsuit stemming from the deaths of eight residents following Hurricane Irma. The report details the allegations in the plaintiff’s complaint, which claim that the nursing home’s failure to take adequate precautions to protect residents leading up to the storm showed “negligence and reckless indifference.”

The plaintiff points to several alleged failures on the part of the nursing home, including the home’s failure to secure a generator in the event of a power outage despite ample warning that the facility was likely going to lose power. Indeed, there were reports that the temperature inside the nursing home reached as high as 106 Fahrenheit at times due to the lack of air conditioning.

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Over the past few years, arbitration contracts in nursing homes have been a hot-bed of litigation across the country. Indeed, last year, a federal agency attempted to make it much more difficult for government-funded nursing homes to include arbitration agreements in their pre-admission contracts. However, since then, the nursing home industry has been successful in preventing the ultimate passage and enforcement of that rule.

Legal News GavelIn the most recent development, the United States Supreme Court issued an opinion in a nursing home case siding with the nursing home. In that case, two family members filed wrongful death lawsuits against a nursing home that had cared for two of their loved ones prior to their death. Prior to the residents’ admission into the nursing home, they executed a general power of attorney in favor of the plaintiffs, giving the plaintiffs the ability to “dispose of all matters.”

The plaintiffs later placed their loved ones in the defendant nursing home. However, prior to their loved ones’ admission, the plaintiffs had to complete the pre-admission contract. One clause in that contract agreed to submit any and all claims that may arise between the parties to binding arbitration.

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