Articles Posted in Nursing Home Abuse and Negligence

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.

In any Florida personal injury case brought against a nursing home, one issue that frequently arises is whether the resident has previously agreed to arbitrate their claim, rather than proceed through the court system. This is a critical issue because, in some cases, an arbitration clause signed by a resident may also preclude a resident’s family member from pursuing a claim against the nursing home.

While arbitration is supposed to be a neutral alternative to the court system, most experts agree that arbitration favors nursing homes for several reasons. For example, arbitration is generally a quicker process than a traditional lawsuit, saving nursing homes significant money on litigation costs. More concerning, however, is that arbitration proceedings are not bound by the procedural and evidentiary rules that apply in a Florida personal injury lawsuit. Finally, arbitration results are generally kept secret and cannot be appealed.

Given the benefits arbitration offers to nursing homes, most Florida nursing homes include arbitration agreements in their pre-admission contracts. Generally, a valid arbitration contract is enforceable. However, to prove that an arbitration agreement binds a plaintiff, a nursing home must establish that the plaintiff’s case falls within the agreement. Recently, the U.S. Supreme Court issued an opinion discussing whether a court can determine, as a preliminary matter, whether a claim must be resolved through arbitration.

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Recently, 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.An 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.While 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.

Nursing 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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