Florida Nursing Home Abuse Attorneys

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 a 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.

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

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 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.

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.

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

• Medical bills (past and future),
• Missed income,
• 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 punitives interprets Sect. 400.0237 literally, meaning a Plaintiff must only prove ‘gross negligence’ to seek punitive damages. Gross negligence is defined as 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.

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. See Somberg, 779 So. 2d at 668; Spilman, 661 So. 2d at 869. 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.” Somberg, 779 So. 2d at 668-69 (quoting Spilman, 661 So. 2d at 869).

Under the law existing in 1986 when the legislature amended section 400.023 to include personal representatives, nursing home actions for violations of resident’s rights so severe they caused the resident’s death were extinguished and replaced with a wrongful death action. See Spilman, 661 So. 2d at 868-69. As such, the claim does not ‘die’ with the victim. It may be pursued by the victim’s survivor(s).

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 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. 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 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.

HOUSE BILL NO. 154:REP. CANADY: This bill would amend Chapter 400, which sets forth the law concerning nursing homes. And in Chapter 400 currently there is set forth sort of a nursing home residents’ Bill of Rights. It’s a detailed listing there of the rights that the people who live in nursing homes have under the law. The law also gives the residents of nursing homes the right to bring a legal action to enforce those rights if they’re violated. So essentially, if a resident of a nursing home is mistreated in some way — and that’s really what it all boils down to — then the resident can sue the operator of the nursing home for damages and so on to redress that wrong that has been done. There’s an anomalous situation under the laws that now exist in that although a resident can do that, if the resident is treated so badly that the resident actually dies as a result of that, the cause of action does not survive so that no suit can be brought. In my home county we had this exact same situation come up. So the proposed — the proposal here would be to simply extend that cause of action to the personal representative of the estate of a deceased nursing home resident.

* * * * * *

REP. BILL BANKHEAD: Would you have any idea as to the limits of liability for the nursing home owners that might arise out of a suit so foul?

CHAIR: Don’t get yourself going, Mr. Bankhead, he may know the answer to that.

REP. CANADY: It would be the same as the — if a cause of action were brought by a living resident.

REP. DAVE THOMAS: Could I make one comment to Mr. Bankhead? … Are you implying that we should limit the liability of nursing homes that beat people to death?

CHAIR: All in jest. Secretary call the roll on the bill. [Bill passes].

* * * * * *

HOUSE BILL NO. 79:

REP. CANADY: Members, this bill has been before the Committee before and actually has passed the House last session. It is a bill changes Chapter 400. Under Chapter 400 currently the residents of nursing homes are given certain rights, basically the right to be treated decently and receive proper care. They are also given a legal remedy in case those rights are violated and not properly honored. However, there’s an anomaly under the law in that if a nursing home resident is abused and they survive that they can bring a lawsuit. However, if they’re abused so badly that they die, the cause of action is lost. So this bill would simply amend the statute to provide that the personal representative of the estate of a deceased nursing home resident would also be able to bring an action under Chapter 400 to redress the rights of a deceased nursing home resident. [Bill passes].

Ultimately, Senate Bill No. 128, amending section 400.23 to provide for actions being brought by the decedent’s personal representative, became law on June 9, 1986. Ch. 86-79, § 1, at 2, Laws of Fla. The answer brief of the Office of State Long-Term Care Ombudsman also points out:

Under [Eastbrooke’s] theory, it would be cheaper for a nursing home to kill its residents and thereby limit claims by personal representatives to the damages listed in the Wrongful Death Act. Such construction not only offends the strong public policy that nursing homes are to “promote maintenance or enhancement of the quality of life of each resident,” but basic statutory construction. See Williams v. State, 492 So.2d 1051, 1054 (1986) (statutes should not be given a meaning that leads to an absurd or unreasonable result).