Florida Nursing Home Abuse Lawyers

Florida has one of the largest nursing home resident populations in the US. As Florida’s population continues to age, this number will continue to grow larger. Due to widespread systemic neglect throughout the Florida nursing home industry, the legislature in Tallahassee enacted a Nursing Home Resident’s Bill of Rights in Chapter 400, the statutory section governing Florida nursing home abuse. In order to understand Florida nursing home abuse lawsuits, it is important to examine the formation and development of Chapter 400 and the subsequent case law interpreting it. This nursing home Residents’ Bill of Rights set forth in §400.022, Fla. Stat. was expanded to its current form in the wake of two critical Miami-Dade County Grand Jury reports and the proliferation of wrongful death and injuries to Florida nursing home residents.

“Inadequate Care and Dehumanizing Conditions for Frail Older People”

The first official Dade County Grand Jury investigation into rampant Florida nursing home neglect found “rats in patients’ beds and roaches in their food”, and “lack of social, leisure, rehabilitative and therapeutic services; disregard for the personal dignity of residents; the use of chemical and physical restraints; and the lack of privacy”. This shocked the public for obvious reasons. Florida’s legislature and lawmakers had to act. The existing regulations and laws governing nursing homes dealt only with the structure and reimbursement for nursing home care. The laws on the books at the time did little to nothing for wrongfully injured Floridians in negligent nursing homes.

The 1980 amendments to Florida’s nursing home laws were adopted to remedy the problem of “inadequate care and dehumanizing living conditions for frail older people”. The law was changed to protect elderly residents from a widespread systemic abuse that resulted from substandard nursing home care and an ineffective regulatory scheme. Significantly, before the amendment, negligent nursing homes could be fined minimal amounts by the State of Florida. This amounted to a slap on the wrist of the corporate owners. However, the nursing home laws in Tallahassee were changed to add §400.023, which allowed for civil lawsuits brought on behalf of the victim or the victim’s survivors, to enforce the resident’s rights. This meant that Florida’s nursing homes could be held accountable in a court of law before a judge and jury. Contact our Florida elder abuse attorneys to fight for the rights of your loved one.

A Rude Awakening to Florida’s Problem with Nursing Home Neglect & Elder Abuse

The legislative history of the bill creating section 400.023(1) in 1980 cited the Dade County Grand Jury report describing outrageous living standards existing for years in nursing homes across the state. See Fla. S. Comm. on HRS, CS/SB 1218 (1980) Staff Analysis 1-2 (rev. June 10, 1980). This took our lawmakers and voters by surprise. No one was aware that more than 7 out of 10 Florida nursing homes had serious violations of state and federal regulations potentially causing harm to residents. The Florida Legislature stated in Florida Statutes § 400.0061:

The Legislature finds that conditions in long-term care facilities in this state are such that the rights, health, safety, and welfare of residents are not ensured by rules of the Department of Health and Rehabilitative Services or the Agency for Health Care Administration, or by the good faith of owners or operators of long-term care facilities.

Arming victims to take justice into their own hands, the Florida legislature enacted the protections in sections 400.022 and 400.023(1) precisely because the rights and remedies afforded in traditional common law negligence actions were inadequate to protect elderly nursing home residents. The laws dealing with injuries from a car crash were insufficient in dealing with unique nursing home neglect injuries. The Nursing Home Act’s purpose is clearly stated in its enacting legislation — to establish “basic standards for the health, care, and treatment of persons in nursing homes and related health care facilities” as well as to “ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities.” § 400.011; see Beverly Enters.-Fla., Inc. v. McVey, 739 So. 2d 646,648 (Fla. 2d DCA 1999). The Nursing Home Act “evinces a legislative plan to protect the interests of the citizens of this state who use” nursing homes. Garcia v. Brookwood Extended Care Ctr., 643 So. 2d 715 (Fla. 3d DCA 1994).

Chapter 400’s Purpose: To Keep Florida Nursing Home Residents Safe Through Nursing Home Lawsuits

The policy behind the enactment of Chapter 400 was clear and was set forth with specificity in §400.001 — to improve the quality of care in Florida nursing homes. The policy behind creating the civil enforcement procedure was to add some ‘muscle’ into the statute, to provide a further incentive for nursing homes to meet the applicable standard of care.  Prior to Chapter 400 and its civil enforcement procedure, there was little or no incentive to nursing home victims and their families to sue a skilled nursing facility in Florida. Similarly, there was little financial punishment a Florida nursing home would face if it wrongfully neglected its resident and caused the injury. To improve nursing home care in our state, the legislature sought to provide an abused elderly resident with access to the civil justice system, thereby granting power to individual people to right the wrongs of elder abuse and neglect.
Contact Senior Justice and speak with our Florida elder abuse lawyers to discuss your concerns.

The Residents’ Rights guarantees each Florida nursing home resident:

• The right to be free of nursing home abuse and neglect;
• Have access to private and uncensored communication like mail, phone calls and visits with family;
• The right of family members to visit the resident unannounced;
• The right of a resident to refuse treatment, if able to make medical decisions;
• To access and see the recent facility inspection upon request;
• The right to manage his/her own financial affairs; and,
• The right to be treated courteously and with dignity.

Violations of the Resident Rights may be considered Florida nursing home abuse. Negligent facilities may be held accountable for related injuries in a Florida nursing home abuse lawsuit.

If a resident is neglected or abused in a Florida nursing home, the aggrieved can seek justice through a Florida nursing home abuse lawsuit. If the Residents’ Rights are not met, the resident or their guardian can sue the nursing home under §400.023. This section of the Florida statutes states,

This is considered a Florida nursing home abuse lawsuit. Speak with a Florida elder abuse attorney or FL nursing home abuse law firm to discuss your situation.

Compensatory damages in a lawsuit compensate the victim or their family for losses. These typically include:

• Medical bills (past and future),
• Missed income,
• Funeral bills,
• Loss of ability to enjoy life, mental anguish, loss of consortium,
• Pain and suffering of the victim, if still alive,
• Pain and suffering of the survivors, if the claim was for wrongful death.

The Florida Legislature created a private cause of action in section 400.023 to protect frail and elderly residents of nursing home residents. To accomplish this purpose, the Legislature specifically authorized personal representatives to bring nursing home actions and recover “actual and punitive damages” and attorney’s fees for a violation of resident’s rights. See § 400.023(1). The attorney’s fees provision of Chapter 400 was later taken away, but the availability of punitive damages in outrageous cases of nursing home abuse remains. Punitive damages are awarded in addition to compensatory damages. These ‘extraordinary’ damages are made to punish and deter a defendant’s wrongful behavior. Punitive damages are only available in Florida nursing home cases where there exists a willful, wanton, or gross deviation from the standard of care. See Garcia, 643 So. 2d at 717; Mang, 559 So. 2d at 673-74, Blankfeld v. Richmond Health Nursing Home.

For a nursing home victim to recover punitive damages, this requires wrongdoing “evincing willful, wanton, and intentional misconduct sufficient to sustain a conviction for manslaughter.” Key West Convalescent Ctr., Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993). The Supreme Court has described this wanton wrongdoing as:

The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them”. White Constr. Co. v. Dupont, 455 So.2d 1026, 1029 (Fla. 1984) (quoting Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla. 1959)).

Recent Florida cases have moved away from this older line of cases on Florida punitive damages in the nursing home context. The more recent case law on punitive interprets Sect. 400.0237 literally, meaning a Plaintiff must only prove ‘gross negligence’ to seek punitive damages. Gross negligence is defined as the conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

For more information on this unique statutory damage category, click the link to learn more about punitive damages in Florida nursing home negligence cases.

In the early years of Chapter 400, the Nursing Home industry’s lawyers attempted to stop causes of actions for deceased residents. In other words, the industry took the position that if a resident died from the abuse, the family should not be able to maintain a nursing home abuse lawsuit. The legislature, sensing the ridiculousness of this proposition[1], amended the statutory language in 1986, so that an action may be brought “by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent’s rights.”

The amended section 400.023(1) makes it clear that the estate is the proper vehicle to pursue a wrongful death claim on behalf of a deceased victim of nursing home neglect. The plain language of the statute allows personal representatives to recover actual damages from the infringement, not the more limited remedy of the Wrongful Death Act. Considering this unambiguous language, the courts in Somberg and Spilman concluded that the Legislature “did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home’s infringement or deprivation of the patient’s rights resulted in the patient’s death.”

Under Florida’s statutory laws governing nursing home negligence, the claim does not ‘die’ with the victim. It may be pursued by the victim’s survivor(s), by and through the decedent’s estate.

Florida’s nursing homes are typically underinsured with phony self-insured policies. When facing a large settlement or verdict, these facilities ‘cry poor’ and shield their assets in sister companies. Imagine a shell game, except with corporate entities. For this reason, it is critical that a nursing home neglect lawsuit involving underinsured defendants names not only the facility licensee but also the individuals who actively manage and control the facility, if they acted negligently.

Florida case law had interpreted Florida Statutes Chapter 400 to be liberally not strictly construed, so that individual owners and active managers can be held liable for resident harm. In Mang v. Country Comfort Inn, Inc., 559 So.2d 672,673 (Fla. 3d DCA 1990) the court held that the “Florida legislature deemed it necessary to make certain designated individuals are responsible for the day-to-day operations of facilities caring for the elderly and the infirm.” In Mang, one of the issues was whether the administrator of an assisted living facility could be sued in his individual capacity. Florida’s Third District Court of Appeal affirmed that individuals can be named, explaining that the public policy is that these “individuals” shall be responsible for their actions and “not become faceless entities.” See also, Estate of Cutchin v. Hilltopper Holding Corporation, wherein the Plaintiff sued the nursing home’s management company for having actual control over the facility budgets and staffing levels.Understanding the complex corporate structure of a nursing home chain is integral to prevailing in litigation.