Nursing Home Negligence

July 4, 2021

Jeffrey P. Gale, P.A. // Florida’s Nursing Home Statute Provides Remedy to Some Barred by Florida’s Wrongful Death Act

I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

December 31, 2011

Arbitration Clauses Enforceable in Florida Nursing Home Personal Injury and Wrongful Death Cases

by Jeffrey P. Gale, P.A.

Much was published in 2011 by The Miami Herald in its multi-part exposé, Neglected to Death – see this blog, Nursing Home/Assisted-Living Facility Negligence – Shame on Governor Scott and Florida Legislature, for links to some of the articles – with regard to the horrible conditions existing in many of Florida’s nursing homes. One of the points made is that state regulators have been unwilling or unable to regulate the homes and punish the worst offenders.

Private lawsuits are another avenue for exacting punishment against negligent and grossly negligent operators. However, a common drawback to this remedy is that many of the homes operate without the financial means to pay for their negligence, by not maintaining adequate liability insurance and shielding themselves behind layers of shell corporations. This is certainly the case with many of the smaller facilities.

In recent times, another barrier has come in the way of fully and adequately punishing wrongdoers. Arbitration.

Traditionally, victims harmed by nursing home negligence have sought their remedy through the courts, with juries making the final call on the issues of fault and damages. Arbitration removes these decisions from citizen jurors, turning them over, instead, to costly arbitrators. Business interests prefer arbitration, which is looked upon with disfavor by victims’ lawyers.
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December 4, 2011

How to Obtain Medical Records of Florida Nursing Home Residents

by Jeffrey P. Gale, P.A.

Under Federal and Florida law, the medical records of nursing home residents are available to a variety of duly authorized individuals and representives. Interested parties must know their rights to keep from being deterred by nursing homes in their quest for the records. This blog summarizes the laws that can be utilized to obtain the records.

Section 164.502(g) of Title 45, Subtitle A, Code of Federal Regulations (part of HIPAA), provides that nursing homes must treat any person who has authority to act on behalf of a deceased individual as if that person was the deceased individual.

Section 400.145(1) of the Florida Statutes declares that nursing home records shall not be considered as part of an estate and are to be made available to a spouse, guardian, surrogate, or proxy prior to administration of an estate.

Both HIPAA and 400.145(1), Fla. Stat. also require nursing homes to make records available even though the person is still alive. Section 164.502(g) of the C.F.R. provides that nursing homes are required to disclose records to any person authorized to act on behalf of an individual with regard to health care. Section 400.145(1) of the Florida Statutes requires the release of nursing home records to any spouse, guardian, surrogate or proxy for a resident who has not died.

Finally, Section 765.401 of the Florida Statutes describes the authority of a “proxy” to act on behalf of an incapacitated person. A proxy is defined as including the patient’s spouse, an adult child of the patient, a parent of the patient, and even a close friend of the patient.
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August 7, 2011

Nursing Home/ALF Abuse: Florida Republicans Fail Elderly/Infirm

by Jeffrey P. Gale, P.A.

Florida Republicans have controlled the state’s legislature and Governor’s office (Jeb Bush (1998-2006); Charlie Crist (2006-2010); Rick Scott (elected in 2010)) for more than 10 years. Their time in power has seen a decline in the rights and protections afforded Florida’s elderly and infirm. Bad legislation and funding cuts are the reasons for the decline.

The Republican policy of putting business interests before individuals explains the bad legislation and funding cuts. The beat goes on….

In its hard-hitting multi-part series, Neglected to Death, The Miami Herald exposes the sorry state of affairs involving Florida’s ALF/nursing home industry. (Here is a link to the newspaper’s latest story in the series, State of Failure.)

Examples since 2007:

Encouraged by Florida’s largest industry group, a dozen legislators came forward with 36 pieces of legislation to remove or weaken regulations – including parts of the Residents’ Bill of Righs that guarantees safety and protection to vulnerable adults. (This past legislative session saw 23 such bills.)
In 2009, lawmakers said that state regulators no longer have to report abuses and deaths to the Legislature, instead allowing them to keep the cases secret.
Republican lawmakers rejected a plan to crack down on rogue operators.
Saying they were too expensive, lawmakers blocked efforts to increase inspections by state agencies to once every 15 months.
AHCA inspectors – ACHA is the state agency charged with controlling conditions in the facilities – were stripped of the authority to call doctors to get residents removed from facilities, leaving the decision to the facilities.
During the 2011 legislative session, fellow Republicans tried to repeal a law sponsored by Sen. Mike Fasano requiring homes to carry life-saving heart devices. “It’s outrageous,” he said. “I shake my head in disbelief. The cost is minimal to what the cost of life is.

May 6, 2011

Personal Liability Exposure of Nursing Home Director Under Florida Law

by Jeffrey P. Gale, P.A.

In the wake of The Miami Herald’s excellent series, Neglected to Death (Part 1; Part 2; Part 3), on the dire health and safety issues associated with Florida’s nursing home/assisted living facility industry, this is a good time to discuss some legal propositions closely related to the subject.

The Herald series focused on the problems and the state’s role, through AHCA and law enforcement, to control the situation. It paid little attention to the important role the civil justice system can and does play in regulating the system.

Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.

In Florida, nursing home residents and their families harmed by negligence can bring claims through the civil justice system against those responsible for causing the harm. Such claims are brought under the parameters established by Chapter 400 of the Florida Statutes.

Even though victims may have the right to sue under Florida law, there is no guarantee of recovering compensation from the wrongdoers. This is because many of the facilities do not carry adequate insurance to cover losses or operate through a legal tangle of corporations and fictitious names designed to frustrate collection efforts.

Estate of Canavan v. National Healthcare Corp., 889 So. 2d 825 (Fla. 2d DCA 2004), provides some assistance to those trying to collect for nursing home negligence. The case, involving a lawsuit brought by the estate of a deceased nursing home resident, allows victims’ attorneys to hold a company’s directors or statutory managers personally liable for policy-level decisions affecting the operation of a long-term care facility.
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May 1, 2011

Nursing Home/Assisted-Living Facility Negligence – Shame on Governor Scott and Florida Legislature

by Jeffrey P. Gale, P.A.

Kudos to The Miami Herald for exposing the widespread abuse and neglect of residents within Florida’s nearly 2900 nursing homes and assisted-living facilities, and AHCA’s failure to perform its mandate to regulate and punish the wrongdoers. NEGLECTED TO DEATH Part I; Part II; Part III.

It is a must read and will make your blood boil… unless, of course, you are Governor Rick Scott or one of his merry band of radical right-wing Republican legislators who are pushing to create laws designed to weaken rather than strengthen the rights of private citizens to hold bad facilites accountable.

These are some of The Herald’s findings:

70 People died from abuse or neglect since 2002.
1,732 Homes were caught using illegal restraints like ropes, locking residents in closets, and tranquilizing them since 2002.
Only 26 facilities closed down by AHCA since 2002. State regulators could have shut down 70 homes in the past two years for a host of severe violations – including abuse and neglect by caretakes – but in the end, closed just seven.
13,250 Police and rescue calls to a small enclave of ALFs in Broward County since 2005 – essentially one every four hours.
While the number of new homes has exploded across the state – 550 in the past five years – the state has dropped critical inspections by 33 percent, allowing some of the worst facilities to stay open.
Though the state has the power to impose fines on homes that break the law, the penalties are routinely decreased, delayed or dropped altogether. Consider: In 2009 AHCA could have imposed more than $6 million in fines, but took in just $650,000.

Now for what Rick Scott and his cohorts are seeking to enact:
House Bill 661 and Senate Bill 1396 would cap non-economic damages at $250,000 in wrongful death cases involving nursing homes for the first time. It would also make it more difficult to obtain punitive damages, and prohibit naming an out-of-town owner or investor of a nursing home in a lawsuit.
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