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Articles Posted in Nursing Home Abuse and Negligence

As COVID-19 continues to spread quickly throughout Florida, the state’s nursing homes have witnessed unprecedented illnesses related to the virus. During this time, many nursing homes have failed to adequately protect their staff and residents from the viruses’ toll. Although some of the spread is uncontrollable, the Centers for Disease Control (CDC) provides regulations and guidance on how these facilities can manage and stop outbreaks. Despite a broad range of immunity that nursing homes and manufacturers of personal protective equipment (PPE) are given during this time, individuals who have suffered because of the negligence of these entities should contact a Florida product liability and nursing home negligence attorney to discuss their rights and remedies.

Recently, a national news source reported on a controversy over inadequate PPE that the Federal Emergency Management Agency (FEMA) sent to nursing homes to battle the COVID-19 crisis. Nursing homes and long-term assisted living facilities were included as benefactors of an effort to provide healthcare workers with PPE. However, when the facilities received the shipments, they were shocked to discover that the boxes included loose gloves in unmarked plastic bags, outdated surgical masks, and gowns without openings. Health officials advised these facilities to refrain from using the equipment as they are unaware of whether they have been compromised.

FEMA responded to the claims and stated that there were only a few shipments with outdated and ineffective equipment. Additionally, they claimed that the gear does meet federal standards but agreed to contact the private contractor and asked them to provide replacements. The PPE problem highlights the many issues that these facilities and their residents are facing with sufficiently managing the health and safety of their residents.

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.

Recently, an appeals court issued an opinion in a Florida nursing home abuse lawsuit. According to the court’s opinion, the plaintiff filed a lawsuit against a nursing home, alleging that the home neglected his father, leading to the father’s death. The nursing home filed a motion to dismiss the claim and compel arbitration based on an agreement the parties signed before the plaintiff’s father admittance.

Arbitration agreements are designed to provide parties with an alternative to filing a lawsuit when a dispute arises. Although arbitration is designed to cut legal costs, it also is a means to force plaintiffs to accept terms that may not be in their favor. There are generally two types of arbitration, binding and non-binding. If a party signs a contract for binding arbitration, the decision is binding and cannot be appealed. However, non-binding arbitration allows the parties to either accept the decision or file a lawsuit.

Generally, both parties must agree to arbitrate before undertaking any contractual relationship. However, in many situations, a nursing home adds the provision to their contract, and the other party may not adequately understand the agreement or have the opportunity to dispute it. For example, if a family needs to get their loved one member into a Florida nursing home, they may sign the contract and agreement to arbitrate because they want to ensure that their loved one is admitted as soon as possible.

Florida nursing homes and medical providers can be held accountable for the negligent or criminal conduct of their employees amounting to elder abuse. And, if successful, substantial compensation may be awarded to abused patients and their families. An alarming number of nursing home residents are victims of sexual, physical, and psychological abuse, as well as neglect. In a recently released opinion by a state appellate court, a substantial jury verdict in favor of the estate of a sexually abused woman was addressed on appeal, and ultimately overturned.

The plaintiff in the recently decided case was the estate of an elderly woman who was molested and raped by an employee of the defendant nursing home while under the home’s care. The plaintiff sued both the employee who committed the criminal acts, as well as the nursing home where the abuse occurred. At trial, the jury found that the nursing home was vicariously liable for the conduct of the employee, and the plaintiff was awarded a significant sum in damages, and the nursing home appealed.

The primary issue on appeal was whether the trial court erred in finding, as a matter of law, that the employee was acting within the scope of his employment when he committed the crimes, and also instructing the jury as such. Because an employer can only be held accountable for negligent or criminal acts committed by an employee while in the scope of their employment, the appellate court found that the lower court’s decision likely played a significant role to convince the jury that the nursing home was liable for damages. The higher court also ruled that the issue of whether the employee was acting within the scope of his employment should not have been decided as a matter of law before trial, and instead should have been submitted to the jury as a question of fact. Because the issue wasn’t presented to the jury, the verdict was overturned and the case remanded for a new trial.

In June of 2019, a state appellate court issued a written opinion in a Florida wrongful death case discussing whether the evidence presented by the plaintiff was sufficient to warrant punitive damages against the defendant nursing home. Ultimately, the court concluded that, while the evidence showed “multiple appalling examples” of situations where nursing home staff “dropped the ball,” the staff’s negligence was not attributable to the nursing home.

According to the court’s opinion, the estate of a woman who died while in the care of the defendant nursing home brought a Florida wrongful death claim against the facility, claiming that the facility’s negligence caused of the woman’s death. After the initial complaint was filed, the estate sought leave to amend to add a claim for punitive damages. The lower court granted the estate’s request, and the defendant nursing home appealed.

On appeal, the lower court’s decision to allow the estate to seek punitive damages was reversed. The court began its analysis by noting that when a plaintiff seeks to leave to amend to add a claim for punitive damages, a trial court must determine whether “there is sufficient admissible evidence … to ensure that there is a reasonable basis to believe that the claimant, at trial, will be able to demonstrate … such damages [are] warranted.” The court added that a plaintiff could meet this burden by proving either direct liability or vicarious liability.

When someone is killed due to the negligence of another person or entity, the Florida wrongful death statute allows for the surviving loved ones of the deceased to pursue a claim for compensation against the at-fault parties. Under Florida Statutes section 768.18, these claims are generally brought for the benefit of the spouse, parent, or child of the deceased, but can be brought on behalf of other family members in certain situations.

One issue that frequently comes up in wrongful death cases is whether the survivors’ claim against the at-fault party is derivative of their deceased loved one’s claim. This is a fairly complex topic, and courts across the country have wrestled with this question for years, often coming to different results. Indeed, in a recent federal appellate opinion, the court certified a question to state supreme court, asking that court to answer whether wrongful death claims are derivative.

The Facts of the Case

According to the court’s opinion, the plaintiff’s mother was taken by ambulance to the defendant nursing home. Before she was admitted, the plaintiff signed a pre-admission form, containing, among other things, an agreement to arbitrate all claims. At the time, the plaintiff’s mother had executed a power of attorney document in favor of the plaintiff. Later, the plaintiff’s mother died while in the care of the defendant nursing home, and the plaintiff filed a wrongful death case against the facility.

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