Florida Assisted Living Facility Abuse and Negligence

The problem posed by the ALF replacing the nursing homes is a care-level issue. Assisted living facilities are not required by Florida law to provide anywhere near the level of care of a nursing home. So the ALF can accept all the insurance reimbursement, the private payment, the Medicare money, and then provide a fraction of the care. This creates a dilemma we see more and more in ALF injury cases; keeping a patient who is no longer appropriate for A.L.F. care. The problem has reached such epic proportions that PBS Frontline dedicated a full investigation to the ALF neglect phenomenon, entitled “Life and Death in Assisted Living.” Highlighting the loose regulation and wild profits that the ALF industry enjoys, the PBS investigation shows the ALF negligence problem facing so many of our seniors today.

Florida law requires that if an assisted living facility cannot meet the needs of its resident, it must send the resident out to a higher care facility. This is not always the case when an ALF is getting good insurance and/or private pay money for its resident. It may want to keep the resident in-house and continue to cash those checks. Failing to recognize the patient’s change in condition and deterioration can be considered ALF negligence. Let’s analyze a typical example of this. Jane Smith enters a West Palm Beach assisted living facility as a spry 78-year-old woman. She is mentally competent, but has early onset dementia and walks with a walker. Her 1823 form, signed by her doctor, says she can live in assisted living. At this point, she is appropriate for ALF care under Florida law. However, Jane spends 6 years in the ALF. Her dementia deteriorates. Her ability to walk also decreases. She is more confused and more unsteady on her feet. She suffers 4 falls during her 6^th year. Yet, because she has good insurance, the ALF does not want to send her to a higher care, skilled nursing facility. The ALF management team convinces the family to keep her in the facility at the care plan meetings. They overpromise care that they cannot and do not provide. It is no surprise when Jane suffers her 5^th fall at the ALF, this time suffering a brain bleed and passing away.

In the above example, the ALF’s defense will be “we are not a nursing home so we cannot prevent falls.” The assisted living facility’s lawyers will try to look at the 6^th fall in a vacuum, ignoring all the other red flags that presented before that fall. However, the problem here is much deeper than preventing only that 6^th fall. This is a problem of ALF corporate greed in keeping a resident that the facility clearly could not care for. We have handled cases against assisted living facilities in fact patterns like this and were permitted by the Judge to seek punitive damages (extraordinary, punishment) against the ALF.

ALF Negligence Lawsuits in Florida

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Our assisted living facility abuse lawyers have decades of experience prosecuting abuse cases against A.L.F.’s in Florida. For this reason, we are brought in by local counsel to assist in assisted living facility lawsuits across the state.

When we file an assisted living facility negligence lawsuit, we do so under §429.28, which states in pertinent part:

“Any person or resident whose rights (under §429.28) are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, or by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.”

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We have litigated long term facility neglect cases in the Florida counties shown on the map.

Assisted living facility negligence usually arises out of the ALF staff failing to do something that the resident requires. This could mean a failure to provide supervision, medication, medical treatment or communicate with the patient’s physician. It may also mean physical abuse, either at the hands of nurse or by a fellow ALF resident.Common A.L.F. abuse and neglect injuries include:

• Falls
• Unexplained fractures
• Elopement (a wandering out of the facility unattended)
• Failure of the ALF to send the patient to a higher care facility, like a nursing home
• Bedsores (Pressure Ulcers)
• Medication mistakes (withholding meds or accidentally overdosing medication)
• Failure to respond to a deteriorating condition
• Failing to prevent other resident-on-resident attacks

“But We Are Not a Nursing Home… We Are Just an A.L.F.”

Ironically, no ALF undersells its level of care until something goes wrong. Only after an injury happens do we hear the excuse, “we are just an assisted living facility.” This is the inherent defense in any assisted living facility negligence lawsuit. “We do not provide the level of care of a nursing home.” That may be true, but the Florida administrative regulations are clear on an ALF’s duties to their residents.

Florida Administrative Code Regulations Governing Assisted Living Facility Care

In most assisted living facility injury cases, the ALF claims it has no duty under Florida law to provide care and supervision to their resident. We know, based on the applicable Florida law, this is false.

58A-50182 lays out the Resident care requirements for Florida’s ALFs. This ALF regulation requires the facility:

• Supervise the resident’s whereabouts on and off the facility premises,
• Observe the resident’s whereabouts and remain aware of their health, safety and physical wellbeing,
• Contact the resident’s guardian if something changes in the resident’s condition, or they suffer an injury,
• Maintain a written record of any illness or significant change in condition,
• Supervise and assist the resident with activities of daily living (i.e. walking, eating, bathing, dressing, etc.)
• Establish elopement prevention policies to prevent the wandering of residents,

58A-5.0181 discusses the criteria to determine if the Resident is an appropriate candidate for living in the assisted living facility. The facility must:

• Be able to perform activities of daily living with supervision and/or assistance from ALF staff,
• Not accept a resident with Stage 3 or 4 pressure sores, or allow pressure sores to develop,
• Not allow a bedridden resident to continue to reside in the ALF,
• Ensure the resident does not need 24 hour nursing care, like what is provided at a nursing home,
• Have its Administrator and a health care professional periodically examine and assess the resident for continued residency in the facility, especially after a significant change in condition, like a fall or traumatic event.

If the resident does not meet the requirements for admission or continued residency in the Florida ALF, the facility must discharge the resident to a higher care facility.

58A-5.019 details the staffing standards required of Florida assisted living facilities. This ALF regulation requires that the ALF provide enough staff to provide appropriate care to all its residents, as required by Chapters 408, Part II, 429, Part I, F.S. and Rule Chapter 59A-35, F.A.C.. This means if an ALF accepts confused, demented residents with a higher care level, the ALF must provide enough staff to provide care for these residents.

58A-5.0241 and Section 429.23(3) require an ‘adverse incident report’ be created within 1 business day after an adverse incident occurs. An adverse incident involves an incident resulting in:

• Death
• Brain injury
• Spinal injury
• Disfigurement and scarring
• Broken bones, or
• Any condition involving the police or transfer to a higher care facility

SUMMARY:Result: $2,395,828 VERDICT INCLUDING $1,500,000 IN PUNITIVE DAMAGES

STATE: Florida

COUNTY: Broward

NEGLIGENCE:

VIOLATION OF FLORIDA’S ASSISTED LIVING FACILITY ACT; FLORIDA ASSISTED LIVING FACILITY ABUSE & NEGLECT

FACTS:

This ALF lawsuit was brought by the granddaughter of a 99-year-old woman who fell 11 times during her 29-day stay in the defendant’s ALF. The plaintiff alleged violations of Florida’s Assisted Living Facilities Act. Specifically, the lawsuit alleged that the defendant failed to provide fall precautions and failed to adequately supervise the resident, allowing her to fall repeatedly in the facility. The decedent sustained a cervical vertebra fracture in her last fall and was confined to bed until her death approximately seven months later. The defendant maintained that the decedent’s falls were unpreventable.

The plaintiff contended that over a 29-day residency at the defendant’s A.L.F., the elderly decedent fell 11 times and also suffered other unexplained injuries. The plaintiff alleged that the decedent’s repeated falls resulted from the defendant’s failure to implement any fall precautions, such as increased supervision, alarms or the placing of mats on the floors. She was transported to the hospital where she was diagnosed with a C-2 vertebra fracture as a result of the fall.

The decedent also suffered two black eyes and a gash over her nose in the fall, according to evidence offered. Because of the decedent’s advanced age, her physician advised that surgery was not a viable option. Thus, the decedent remained in hospitals and nursing homes for seven months and was required to wear a neck brace, to immobilize her cervical spine, until her ultimate death. The plaintiff contended that, during the seven months prior to her death, the decedent suffered the development and deterioration of pressure ulcers. The plaintiff claimed $145,828 in past medical expenses and sought punitive damages, as well as compensatory damages from the defendant.

The Assisted Living Facility argued that the decedent’s falls were a result of her deteriorated physical and mental condition and advanced age and were not the result of anything that the defendant’s staff did or failed to do. The defense maintained that the decedent was adequately supervised at all times and that her falls could not have been prevented.

The jury found the defendant was negligent and also that it violated Florida Statute section 429, also referred to as the Assisted Living Facility Act. The plaintiff was awarded $2,395,828 in damages comprised of $145,828 in past medical expenses; $750,000 in compensatory damages and $1,500,000 in punitive damages.

PEOPLE AND PARTIES:
Plaintiff: The Estate of Tremblay
Defendant: Hillsborough Management d/b/a Living Legends Retirement Center
Plaintiff’s family medicine expert: Lee Alan Fischer from West Palm Beach, FL.
Plaintiff’s nursing expert: Cynthia Oram from Fort Myers, FL.
Defendant’s internal medicine expert: Kenneth Homer from Oakland Park, FL.
Defendant’s nursing expert: Darla Ura from Atlanta, GA.
Plaintiff’s attorney: William Dean and Michael Rotundo
Presiding Judge: John J. Murphy

TOPIC: ASSISTED LIVING NEGLIGENCE & VIOLATION OF RESIDENT’S RIGHTS UNDER CH. 429.

SUMMARY:

Verdict: $922,665 for Plaintiff ($900,000 – violation of rights under Chapter 429, Florida Statutes; $22,665 – medical expenses).

STATE: Florida

COUNTY: Duval

NEGLIGENCE: FLORIDA ASSISTED LIVING FACILITY ABUSE & NEGLECT

NATURE OF INJURY: Decedent developed deep, infected Stage 4 bedsores, severe bruising, multiple skin tears, severe dehydration, and weight loss. Plaintiff’s expert testified that these conditions caused his passing away. Decedent was a resident of Defendant’s Wyndham Lakes Retirement Village (“Wyndham Lakes”), a Jacksonville, Florida Assisted Living Facility. The Estate brought this cause of action alleging violations of Ch. 429 resident rights. The decedent was only a resident of the ALF for 17 days, yet he was neglected and developed multiple bedsores (stage 4) and was severely malnourished. The ALF also did not allow the family to see the patient at certain times. Allegedly due to his injuries, the victim was hospitalized and died a month after his discharge from Wyndham Lakes.

PEOPLE AND PARTIES:
Plaintiff: The Estate of Sherburne
Defendant: Wy-Lak Partners Limited, d/b/a Wyndham Lakes Retirement Village
Plaintiff’s family medicine expert: Dr. Richard Coker
Plaintiff’s nursing expert: Unknown.
Defense attorney: William Stone
Plaintiff’s attorney: Peek & Cobb
Presiding Judge: Michael Weatherby

SUMMARY

Outcome: Plaintiff Verdict

Total Verdict: $223,893

Pre-Trial Demand: $95,000

Pre-Trial Defense Offer: $5,000

STATE: Florida

COUNTY: Duval

PRIMARY INJURY: Burn to Leg in Assisted Living Facility

NEGLIGENCE: FLORIDA ASSISTED LIVING FACILITY ABUSE & NEGLECT

DAMAGES:

Medical Bills: $23,893

Pain and Suffering: $200,000

Total: $223,893

FACTS: An 80-year-old female suffered serious second degree burns and scalding injuries to her thigh when hot coffee spilled onto her leg. The Chapter 429 ALF rights violations included that the facility did not use properly maintained coffee pots and that the ALF employees left the hot coffee to close to vulnerable residents. The assisted living facility denied the negligence and claimed that the injury was unforeseeable, and therefore could not be reasonably prevented.

PEOPLE AND PARTIES:
Plaintiff: Wiggins
Defendant: St. Johns Terrace Homes
Witnesses: [unlisted/unknown]
Judge/Court/Attorneys/Experts: [unlisted/unknown]

SUMMARY:Result: $60 million dollars in compensatory damages and $140 million dollars in punitive damages.

STATE: Florida

COUNTY: Pinellas

NEGLIGENCE:

VIOLATION OF FLORIDA’S RESIDENTS’ RIGHTS

FACTS:

Mrs. Nunziata, a 92 year old resident of the facility, suffered from dementia. She required human assistance to be transported around the facility and was in a wheelchair. Her confusion made her prone to wandering and elopement.

The resident was able to open a stairway door. While seat-belted into her wheelchair, Mrs. Nunziata suffered a fall down a flight of cement stairs in the fire escape stairway, resulting in her wrongful death.

Upon investigating the fall death, multiple failures were found. Due to her wandering risk, staff provided a personal alarm on Mrs. Nunziata, a wheelchair alarm and an alarm on the stairwell door. The facility’s numerous alarm systems all failed, or were turned off. The resident also had two prior attempts that day to go through the stairwell door.

The case was undefended since 2010. The jury deliberated and issued a verdict within a four hour period.