Chapter 415 Vulnerable Adult Claims Against Hospitals & Attorneys Fees

Can You Sue a Hospital for Violating Chapter 415, Florida’s Adult Protective Services Act?

Suing a Hospital Under Chapter 415 & Attorneys Fee Awards

Florida courts have broadly interpreted Ch. 415 of the Florida Statutes, allowing a hospital to be sued for ‘neglecting’ a ‘vulnerable adult’ that is an in-patient in the hospital. The practical effect of this interpretation is helpful to the Plaintiff. If successful, the vulnerable adult can recover actual damages plus attorneys fees under Sect. 415.1111, Florida Statutes. This greatly increases a Plaintiff’s case value in the eyes of a jury or hospital insurance adjuster. In a post-tort reform litigation environment where it seems nearly impossible to pursue medical malpractice actions, Chapter 415 empowers wrongfully injured vulnerable adults by strengthening their hospital negligence case. Every Florida medical malpractice attorney should utilize this statute in applicable cases.

Chapter 415’s Legislative Purpose; Protecting Vulnerable Adults

The legislative intent of Florida’s Vulnerable Adult chapter is as follows, according to 415.101:

The Legislature recognizes that there are many persons in this state who, because of age or disability, are in need of protective services. Such services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation. It is the intent of the Legislature to provide for the detection and correction of abuse, neglect, and exploitation through social services and criminal investigations and to establish a program of protective services for all vulnerable adults in need of them. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation of vulnerable adults. In taking this action, the Legislature intends to place the fewest possible restrictions on personal liberty and the exercise of constitutional rights, consistent with due process and protection from abuse, neglect, and exploitation.

Chapter 415 Vulnerable Adult Key Definitions

According to 415.102, these key terms are defined as follows.

(28) “Vulnerable adult” means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

(5) “Caregiver” means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person’s guardian that a caregiver role exists. “Caregiver” includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection.

(16) “Neglect” means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term “neglect” also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. “Neglect” is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

Seeking Attorneys Fees Under Ch. 415 Against a Hospital for Negligence

Example of a Complaint Seeking Attorneys Fees and Damages Against a Hospital for Violating Ch. 415

Below is a Complaint where our lawyers successfully pleaded Chapter 415 violations against a local hospital. The underlying injury involved a fall in the hospital, resulting in a hip fracture. The patient was mentally incapacitated, thereby making her a ‘vulnerable adult’ under Chapter 415. The Defense moved to dismiss the Complaint. The Court ruled in our favor and allowed both a medical malpractice count and Count II, the below violations of Ch. 415 Count.

COUNT II – Violations of Ch. 415 vs. Hospital

Plaintiff adopts and re-alleges paragraphs 1 through 13 and further alleges:

18. At all material times, PATIENT was a “vulnerable adult”, as defined by Section 415.102, because she was a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. Specifically, upon her admission to HOSPITAL, PATIENT was totally incapacitated with mental and or physical disability and dysfunction, with diagnoses of [insert specific diagnoses].
19. During her hospitalization, PATIENT was unable to perform any activities of daily living alone and was totally dependent on staff to supervise and prevent her from falling.
20. At all times material hereto, the nurses and staff responsible for caring PATIENT while she was hospitalized were employees and/or agents of the HOSPITAL. These nurses and staff were specifically tasked with providing supervision to PATIENT while she was a patient at HOSPITAL.
21. After her admission to HOSPITAL, the nurses and staff at HOSPITAL became PATIENT’s “caregivers”, as defined by Section 415.102, because said nurses and staff were entrusted with or had assumed the responsibility for frequent and regular care of or services to the vulnerable adult, PATIENT, on a temporary or permanent basis (during the in-patient hospitalization) and who had a commitment, agreement, or understanding with that person (PATIENT) or that person’s guardian (her son and POA, PATIENT’S SON) that a caregiver role exists.
a. This caregiver relationship began when the nurses/staff began treating vulnerable adult PATIENT as a patient upon her admission to HOSPITAL. As referenced above, PATIENT could not care for herself, and could not be left alone in her room, therefore, HOSPITAL’s nurses and staff assumed the responsibility for the care and supervision of PATIENT.
b. This ‘caregiver’ relationship is memorialized by the fact that HOSPITAL admitted PATIENT as a patient into their hospital and accepted monetary payments in exchange for assuming responsibility for frequent and regular care and services to PATIENT on a temporary or permanent basis, under the commitment, agreement or understanding with PATIENT and/or her guardian that a caregiver role exists.
c. Additionally, PATIENT’S SON, the POA/guardian of the incapacitated PATIENT, upon her admission, spoke with the nurses at HOSPITAL who assured, committed and agreed to care for and supervise SON’s vulnerable mother, PATIENT, on a temporary basis while she resided in the hospital. SON, PATIENT’s guardian, understood this caregiver agreement to mean that the HOSPITAL nurses, as his mother’s “caregivers”, would maintain her safety, supervise her and ensure she was not a threat to herself.
22. Despite occupying the role of “caregiver” to PATIENT, HOSPITAL’s nurses and staff “neglected” PATIENT, as that term is defined by Section 415.102. HOSPITAL’s nurses and staff, as caregivers of PATIENT, failed to provide the care, supervision, and services necessary to maintain the physical and mental health of PATIENT, including, but not limited to, supervision and monitoring, that a prudent person would consider essential for the well-being of PATIENT.
23. HOSPITAL’s nurses and staff “neglected” PATIENT by:
a. Failing to supervise PATIENT;
b. Leaving PATIENT unattended;
c. Failing to help PATIENT out of bed; and
d. Failing to act reasonably under the circumstances.
24. As a direct and proximate result of the aforementioned violations of Chapter 415 by Defendant’s nurses and staff, PATIENT suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition.
25. Plaintiff has incurred and/or will incur attorney’s fees and costs related to pursuing its claim against this Defendant.
26. Pursuant to Section 415.1111, if Plaintiff prevails in this action, Plaintiff is entitled to attorney’s fees and costs.
WHEREFORE, Plaintiffs demand all damages, and recovery of all attorney’s fees and costs as afforded under Florida Statute § 415.1111, allowable against Defendant, HOSPITAL, and demand trial by jury on all issues.

The Above Count II Seeking Attorneys Fees Against a Hospital Via Chapter 415 Was Upheld

Hospital Arguments Against Applying Ch. 415 to Hospital Injury Cases, And Why They Fail

“You Cannot Bring a Claim For Vulnerable Adult Ch. 415 Violations if you Bring a Medical Malpractice Claim”

This is untrue on its face. A vulnerable adult wrongfully injured in a hospital may plead a Chapter 415 vulnerable adult count “in addition to and cumulative with” the medical malpractice count. “The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a disabled adult or an elderly person.” See, §415.1111, F.S. [emphasis added].

Bohannon Allows for Both Med Mal Allegations and Vulnerable Adult Claims to be Brought in One Lawsuit

The hospital industry’s contention that a Plaintiff’s Chapter 415 claim cannot be brought in addition to and cumulative with a Chapter 766 medical malpractice count is unfounded. See, Bohannon v. Shands Teaching Hospital and Clinics, Inc. 983 So. 2d 717 (Fla. 1st DCA 2008). It is entirely permissible for Plaintiff to pursue allegations of both medical negligence and violations of Chapter 415 against the hospital. As contemplated in Bohannon v. Shands, the First District Court of Appeals held that an acute care hospital could be a caregiver of a vulnerable adult under Chapter 415.

So Long as Ch. 766 Pre-Suit Requirements are Met, A Plaintiff Can Sue a Hospital for Both Medical Malpractice and Violations of Chapter 415

Chapter 415 provides for civil actions with specific enumerated statutory damages which are separate and distinct from those available with medical negligence actions under Chapter 766. If the allegations brought pursuant to Chapter 415 are identical with medical negligence allegations, it is then necessary to also satisfy presuit requirements for any medical negligence count. Bohannon v. Shands Teaching Hospital and Clinics, Inc. 983 So. 2d 717 (Fla. 1st DCA 2008).

By attempting to argue Plaintiff cannot simultaneously pursue a cause of action for both medical malpractice per Chapter 766 and violations of Chapter 415, based on similar facts, hospitals are ignoring the plain language of Fla. Stat. Section 415.1111 which states both causes of action may be brought at the same time.

Given the unambiguous language of Section 415.1111, it is clear that the remedies of Ch. 415 are in addition to those available to Plaintiff under Ch. 766.

“Chapter 415 Cannot Apply to Hospital Negligence”

“Florida Hospital Negligence Can Only Result in a Chapter 766 Medical Malpractice Lawsuit”

Also untrue. Chapter 415 specifically excludes claims for Florida nursing home abuse (Chapter 400 facilities) or Florida assisted living negligence (Chapter 429 facilities). The statute does not exclude Chapter 766 providers, like hospitals and nurses. Consider the legislative history of various House bills which failed in their efforts to make Chapter 766 an exclusive remedy for hospital neglect resulting in injury and wrongful death. House Bills 0063b, 0015C and 0067b, all efforts attempting to amend Section 415.1111 so it would not apply to actions involving medical malpractice allegations, failed.

Chapter 415 Can Apply to an Acute Care Hospital

Florida Courts have definitively stated that Chapter 415 can apply to an acute care hospital. See, Bohannon v. Shands, which held as follows:

We reject the position of the hospital and its amicus curiae because we can conceive of scenarios in which acute care hospitals might become “caregivers” of “vulnerable adults” under the chapter 415 definitions, and might then “abuse” or “neglect” those vulnerable adults. For example, once Gould became comatose, he arguably became a “vulnerable adult” as that term is defined in chapter 415, and once the hospital undertook his care in that condition for the period after the improper intubation until life support was terminated, instead of sending him to a long term care facility, it arguably became a “caregiver” as that term is defined in chapter 415. If, during the period after the improper intubation and before Gould’s life support was terminated, the hospital’s agents or employees had intentionally “abused” or “neglected” him, as those terms are defined in chapter 415, the hospital would arguably have been subject to suit under section 415.1111, Florida Statutes.

Chapter 415 Vulnerable Adult Claims Against Hospitals in Florida