Articles Posted in Nursing Home Abuse and Negligence

According to a recent report, a Florida nursing home administrator was charged with causing the overheating deaths of nine patients after Hurricane Irma in 2017. The deaths began occurring three days after Hurricane Irma knocked out a transformer that powered the cooling system. The victims ranged in age from 57 to 99 and had body temperatures of up to 108 degrees. The trial for this case started recently, and the prosecutor alleges that the administrator failed to give adequate direction to his staff after power to the facility’s air conditioning system was lost. It is alleged that the administrator failed to order the evacuation of patients to a hospital across the street that had working air conditioning.

In order for the administrator to be found guilty of manslaughter, Florida law requires that prosecutors prove that the administrator acted recklessly, and showed gross and careless disregard for his patients’ safety. The administrator could face 15 years in prison if convicted. The administrator was originally charged with 12 deaths, but three of the cases were dropped. Three employees who were previously charged but had their charges dropped will be testifying against the administrator during the trial. According to allegations, the administrator directed his staff to buy fans and had portable AC units installed, but instead of making the temperatures better, it made the temperatures on the second floor where the death occurred worse.

The defense attorney has argued that the administrator did everything in his power to protect his patients, including having staff notify Florida Power & Light about the situation immediately after the power went down, and updating the company several times over the next two days. According to the defense counsel, the power company did not send a crew until there were news reports about patients dying. The problem ultimately took 10 minutes to fix. According to a state report, before the storm hit, the administrator and his staff began to prepare by purchasing extra food and water and fuel for the generator. Additionally, once the air conditioner failed, the administrator and staff called the power company, but no one came to help. They then proceeded to call the then-Governoer Rick Scott’s cellphone and city officials, which still did not turn up any results.

An appeals court recently addressed an arbitration agreement contained in a residency agreement on behalf of a Florida assisted living resident. The assisted living facility (“ALF) appealed a trial court’s order denying their motions to dismiss and to compel arbitration under an arbitration agreement.

The case arose when the resident’s estate (“Estate”) filed a complaint against the ALF for injuries the resident sustained while residing at the facility. The Estate’s complaint included causes of action for negligence, wrongful death, breach of fiduciary duty, civil conspiracy and violations of Florida’s Deceptive and Unfair Trade Practices Act. In response, the ALF filed motions to compel arbitration according to the arbitration agreement contained in the residency agreement, which was signed by the resident’s attorney-in-fact. The trial court denied the motions finding that the agreement was unconscionable and unenforceable.

The appeals court explained that in Florida, arbitration is mandated when:

Florida maintains statutes that limit the amount of time claimants have to file their civil lawsuits in court. The statute of limitations for personal injury cases is generally four years from the date of the incident. If a claimant fails to file their claim within this time, the court will most likely dismiss the lawsuit. However, depending on the case’s unique circumstances, the statute of limitations may be shorter or longer.

For instance, a Florida appeals court recently heard a plaintiff’s appeal seeking a review of a final judgment dismissing her complaint against the defendant. The plaintiff, a resident of an assisted living facility, filed a complaint alleging that the facility was negligent in allowing a dangerous condition to exist and failing to train employees. The case arose following an incident where an employee placed a food tray in front of a resident’s door. The cup on the tray spilled and created a puddle that the plaintiff slipped on, causing her to experience serious injuries.

The defendant moved to dismiss, arguing that the Assisted Living Facilities Act (“ALFA”) governs the claim, and the plaintiff failed to comply with ALFA’s presuit requirements. The plaintiff claimed that her suit was not brought under ALFA because ALFA only covers abuse, neglect, or deficient care claims. She contended that her claim arose from common-law negligence.

Recent news reports indicate that although many of new Florida COVID-19 cases consist of younger people, the vast majority of deaths are linked to nursing homes. Florida COVID-19 cases have reached record heights since the state reopened. Unfortunately, this surge may have a deadly impact on vulnerable individuals, such as those older adults residing in nursing homes. In many states, including Florida, nursing homes have been pushing for legislation that provides immunity for COVID-19 related deaths. However, even in states where the bill has passed, the protection has limitations. Individuals whose loved ones contracted COVID-19 while residing in a Florida nursing home should contact an attorney to discuss their rights and remedies.

The Centers for Disease Control (CDC) has stated that these facilities should take steps to prevent the spread of COVID-19 into their facility. Engaging in safe practices could drastically change the likelihood of transmission within these facilities. However, nursing homes argue that they would experience an undue burden if they were responsible for COVID-19 deaths in their facility. As lawmakers address proposed legislation to limit nursing home liability for COVID-19 deaths, many argue that these facilities need more oversight, rather than immunity.

Government Accountability Office (GAO) reports on nursing homes found that over 80% of these facilities had infection prevention and control violations before the pandemic, despite regulatory practices. These violations included conduct that created serious risks to staff and residents. Inspectors found that many of these facilities failed to isolate sick residents and failed to ensure that personnel engaged in proper hand hygiene. Further, over half of the facilities with violations were previously cited for health and safety deficiencies.

According to a news report, earlier this month, the Florida Health Care Association (FHCA), asked Florida Governor Ron DeSantis to provide health care facilities and providers with sovereign immunity for lawsuits related to the COVID-19 outbreak. The request asked the Governor to provide them with civil and criminal protection for any claim for damages related to their act or omission while providing healthcare services during the COVID-19 crisis. Further, the letter included a request for immunity for these entities and professionals if they are arranging or providing health care services.

Florida code defines health care facilities as agencies that are authorized to provide health care services, such as hospitals, long-term care facilities, and nursing homes. The code also includes any site that provides health care services related to the COVID-19 outbreak. FHCA’s proposal does not include claims that are the result of any willful or intentional criminal or reckless misconduct, gross negligence, or intentional infliction of harm. However, it does request protection from acts and omissions related to staff or resource shortages.

Florida has the highest percentage of older adults in the country and almost 700 licensed nursing homes. Research suggests that those older adults that live in long-term supportive housing and nursing homes are at risk for abuse and neglect. Although many variables make the rate challenging to quantify, studies suggest that at least 1 in 10 residents over the age of 60 have suffered abuse or neglect in a nursing home. Additionally, about 20 percent of Florida COVID-19 deaths are residents of nursing home facilities.

Recently, a national news source reported on the rising rates of drug-resistant infections present in hospitals and nursing homes. The startling report indicates that the fungus, Candida Auris, was present in over 100 nursing homes and 64 hospitals. In many instances, individuals who suffer exposure to this fungus die within 90 days. Florida nursing home residents and their families who suffer injuries or death because of exposure to this or other resistant bacteria and fungus should speak with an attorney to discuss their rights and remedies.

The Centers for Disease Control and Prevention (CDC), considers the spread of this fungi a global health threat. Candida Auris is resistant to common antifungal drugs and is often misidentified. The misidentification often leads to inappropriate treatment and allows the fungus to become more potent and deadly. Additionally, this fungus is quick spreading and frequently causes a fatal epidemic at affected facilities.

Nursing homes are particularly susceptible to outbreaks because the facilities typically have less sophisticated disease control teams. The lack of skilled infection control teams compounded with highly immunocompromised, and vulnerable residents can have disastrous consequences on residents.

According to the Florida Health Care Association, there are 697 licensed nursing homes in Florida, and they serve over 70,000 residents. These homes provide acute care, rehabilitative treatment, and convalescent services to older adults and those suffering from disabilities. Despite the startling frequently of Florida nursing home abuse cases, families do not always have many options when it comes to the long-term care and treatment of their loved ones. If a family member suspects that their loved one is experiencing nursing home abuse, they should immediately contact law enforcement and seek the assistance of a Florida nursing home abuse attorney.

Nursing home abuse, neglect, and exploitation is a pervasive, long-standing, and frequently unreported problem. Nursing homes may be criminally and civilly liable when they willfully inflict physical injury or mental harm to a resident. Abuse includes depriving residents of appropriate care and services and sexually, mentally, or physically abusing them. Neglect occurs when a nursing home provider or their employee fails to provide services and treatment that is necessary to avoid physical or emotional harm to a resident. Finally, exploitation arises when a provider takes advantage of a resident by manipulating, intimidating, or threatening them. Many times, nursing home abuse and neglect cases involve injuries from falls, pressure injuries, choking, medication errors, infection, dehydration, malnutrition, and unsafe elopement. These incidents can cause significant long-term damage or death to a resident.

There are several laws in place to address concerns regarding patient underreporting. Nursing homes must notify a resident’s treating physician and family if there are any significant changes in the resident’s condition. Further, before 2013, many nursing homes adopted “no CPR” policies, and would not perform life-saving measures on residents who were pulseless and not breathing. However, facilities must now provide essential life support treatment while awaiting emergency personnel, following the resident’s directives, or when they do not have one on file.

Florida nursing home residents and their families are often forced into signing arbitration agreements with nursing homes, purporting to require that the claims be resolved in arbitration. However, such agreements are not always enforceable, as shown by one recent case.

According to the court’s opinion, an elderly woman was admitted to a nursing facility with a number of debilitating conditions. At some point, her daughter signed an arbitration agreement with the facility. She signed in the signature block for “Resident Representative/Agent Signature.” Evidently, the plaintiff’s mother was later transferred to a hospital for ulcers, gangrene, and sepsis. The mother died soon after. The daughter sued the facility alleging that her right leg had to be amputated and she suffered severe injuries because the nursing facility failed to provide proper care. She alleged negligent and willful misconduct, elder abuse, and wrongful death.

Specifically, the daughter sued the nursing facility as her mother’s successor in interest. She also sued the facility in her individual capacity for the wrongful death of her mother. The nursing facility argued that all the claims had to be resolved in arbitration, as stated in the arbitration agreement. An employee stated in a declaration that the mother and daughter were both present when the agreement was signed during the admission process and that the mother explicitly authorized the daughter to sign the agreement on the mother’s behalf. In contrast, the daughter claimed that she signed the agreement in an office after the admission process, and that her mother was not present. She also claimed that her mother never authorized her to sign any documents on her behalf.