The state of Florida has enacted separate statutes regulating nursing homes and assisted living facilities. Our attorneys regularly sue Florida assisted living facilities and nursing homes for negligence.
While similar, nursing homes and assisted living facilities are distinct from one another. In simple terms, an assisted living facility is a residence that provides meals, housing and services that does not rise to the level of care required in a nursing home. The statutes explicitly state that a Florida assisted living facility “may not serve residents who require 24-hour nursing supervision”. For a more in depth view on the differences between a nursing home and an assisted living facility, click here.
“We Are An Assisted Living, Not a Nursing Home…”
An assisted living facility is not a nursing home. This is the built in defense whenever something bad happens inside an assisted living facility. While Chapter 429 recognizes that an assisted living facility owes a lower duty of care versus a nursing home, the assisted living facility is legally required to send out residents that require a higher level of care.
Who is ‘Appropriate’ for Assisted Living in Florida? Who Requires a Nursing Home?
Assessing the care needs of an assisted living resident can be achieved internally by the assisted living facility staff, as well as by an outside doctor signing an 1823 form. Since the 1823 form is a one time assessment, it is usually the facility’s responsibility for determining appropriateness of residency. A primary care physician may examine the patient one time in 2018 for 15 minutes. If the resident lives inside the Florida assisted living facility for 4 years, the one-time 2018 assessment is meaningless if the resident’s condition has deteriorated by 2022. It is up to the facility’s to determine that the resident is no longer safe or appropriate for assisted living, and instead, needs 24 hour nursing supervision (i.e. a nursing home).
“We Cannot Prevent Falls… We are an Assisted Living Facility”
Assisted living facility falls must be prevented under Florida law. If the resident suffers falls and appropriate measures are not put in place, this is grounds for a civil lawsuit. Additionally, even if the falls are unpreventable by Florida assisted living facility standards, the assisted living facility should recommend discharge to a higher care facility (nursing home) if they cannot do the job they are being paid to do.
Punitive Damages in Assisted Living Facility Cases
Our lawyers have routinely obtained leave of court to seek punitive damages in Florida assisted living facility cases. Usually, these fact patterns involve repeated instances of injury (like falls) without any real intervention on the part of the assisted living facility. Instead of recommending discharge to a nursing home, they continue to cash the Resident’s checks monthly. The falls continue.
Profits Before People; Ignoring Resident Safety
We argue to the court that this kind of behavior is intentional, or reckless, to the safety and well being of the Resident who continues to get hurt. Oftentimes the court will allow us to seek punitive damages against the Florida assisted living facility, which is governed by 429.298 of the Florida Statutes.
Cases Where Plaintiff Sought Punitive Damages Against a Florida Assisted Living Facility
Florida Statute 429.297 allows for punitive proffers when “the defendant was personally guilty of intentional misconduct or gross negligence”. In a trial, alleged punitive damages require a hearing, and the relevant defendants must be given notice within 20 days according to Florida Civil Rule of Procedure 1.190(f). While appellant courts in Florida can review the procedural aspects of a punitive proffer (such as wether the hearing and the notice were adequate), they are unable to review the evidence provided to the lower court (see Ortega v. Silva).
Below are a couple notable Florida assisted living facility lawsuits that resulted in punitive damages.
Nunziata v. Trans Health Managment, Inc.
The Nunziata case represented an egregious failing on the part of the assisted living facility which resulted in death. Ms. Elvira Ninziata was a resident in Pinellas Park Care & Rehabilitation Center [currently Signature Healthcare of Pinellas Park] on 8701 49th Street North, Pinellas Park, FL 33782. During her stay, Ms. Elvira Ninziata wandered off and an hour passed without any staff members noticing. Sadly, they found her strapped in her wheelchair at the bottom of an emergency stairwell. She had died by the time the paramedics arrived.
The judge allowed a punitive proffer because of multiple failings on the part of the facility, which was owned by the defendant Trans Health Management, Inc., including:
- understaffing the facility, and a history of falls, illnesses and poor care
- staff had prior knowledge that Ms. Elvira Nunziata was prone to wandering
- the safety equipment in the facility, such as alarms for an emergency door opening, wheelchair and clothing alarms, did not work correctly
The end result of this litigation was $60 million in compensatory damages and $140 million in punitive damages.
Alterra Health Corp v. Bryant
The Alterra case is important because it deals with arbitration agreements. When Mrs. Betsy Bryant became a resident of Alterra Sterling House of Vero Beach [currently Brookdale Vero Beach South] at 410 4th Ct, Vero Beach, FL 32962, and when she became a resident of Clare Bridge Cottage of Vero Beach [also currently Brookdale Vero Beach South] at 420 4th Ct, Vero Beach, FL 32962, she was given a series of papers to sign which included an arbitration provision. This arbitration provision provided alleged to “waive punitive damages” among other waivers.
An arbitration provision can be placed in an agreement which requires civil lawsuits to be brought in front of a neutral arbitrator instead of a normal civil court. Arbitration is overly friendly to the assisted living facility because a jury does not hear the case, the injured plaintiff must accept the result, and there are only very limited chances for appeal.
In Alterra, Mrs. Bryant sued the facilities and alleged punitive damages. The assisted living facilities argued that even if there was a situation that would allow for a punitive proffer, the arbitration provision waived punitive damages. The court found that arbitration provisions prohibiting punitive damages are unenforceable.
Do You Think Your Loved One Suffered at an Florida Assisted Living Facility?
If you believe your loved one suffered at an assisted living facility, contact the experience assisted living facility lawyers as Senior Justice Law Firm. We have significant experience suing assisted living facilities for abuse and neglect, and have successfully brought punitive proffers on numerous occasions.
