Articles Posted in Nursing Home Issues

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Equal access to the court system is one of our country’s most fundamental rights. Regardless of a person’s background or economic status, the United States Constitution guarantees everyone’s right use the courts to resolve disputes among parties. However, that right, like many others, can be waived.

Arbitration AgreementsChances are, anyone who has dealt with a claim against a Florida nursing home is familiar with the concept of arbitration. Arbitration is a form of dispute resolution outside the traditional court system, in which a private arbitrator hears the case and renders a decision. Generally speaking, those parties who engage in frequent litigation prefer arbitration because it offers a quicker, cheaper, and confidential way to handle cases.

Arbitration, however, can present some potentially serious problems for individual litigants, including Florida nursing home residents and their families. This is because the nursing home usually creates the “rules of the game,” so to speak. For example, a nursing home can include clauses in an arbitration agreement specifying which state’s law applies, procedural deadlines, and even which arbitrator will hear the case. Thus, normally it is in a nursing home resident’s best interest to avoid arbitration, if possible.

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Earlier this month, an appellate court issued a written opinion in a Florida nursing home negligence case dealing with the validity of an arbitration agreement that was signed by the plaintiff on behalf of her deceased husband. The case required the court to determine whether the court or the arbitration panel named in the agreement should determine whether certain clauses contained in the arbitration agreement were severable from the rest of the contract. Ultimately, the court concluded that the severability of the clauses was properly before the court because the arbitration agreement contained no “delegation” clause.

signatureArbitration Agreements Generally

When someone is injured due to the alleged negligence of another person or business, the injured person has a right to file a personal injury case against the party they believe to be responsible for their injuries. The same is true for the loss of a loved one. However, the right to file a claim in a court of law can be waived through an agreement to submit the claim to arbitration.

Arbitration is an informal, although still legally binding, way of resolving disputes between parties. Normally, arbitration is requested by a company prior to providing services. Commonly, arbitration agreements arise in the context of nursing home pre-admission contracts, whereby the resident agrees to submit any claim for damages to arbitration, rather than filing a personal injury case in a court of law.

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Before a Florida medical malpractice lawsuit proceeds to trial, the parties go through the pre-trial discovery process, in which each side requests information of the other side that they believe will be relevant in the case. While most relevant material is discoverable, historically some categories of evidence have not been discoverable because they fit within a privilege.

Old FilesIn 2004, Florida citizens amended their constitution, adding a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” This has come to be known as Amendment 7. Recently, the Florida Supreme Court issued a written opinion clarifying how far Amendment 7 reaches.

The Facts

The plaintiff filed a medical malpractice lawsuit against the defendant doctors after her bile duct was severed during a routine medical procedure. Pursuant to Amendment 7, the plaintiff requested a number of her medical records relating to the medical procedure. The defendants claimed that the medical records were exempt from the rules of discovery, citing several privileges.

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Now that Hurricane Irma has come and gone, it’s time for Florida to start the rebuilding process. While the wrath of Irma may not have been what many news outlets claimed it would be, the storm was still severe, displacing hundreds of thousands and leaving millions of Floridians without power.

Storm at SeaFlorida nursing homes were also affected by the storm, as well as the subsequent power outages. In fact, according to a recent news report, one nursing home is currently facing a wrongful death lawsuit filed by the surviving loved one of a resident who died in the aftermath of the storm.

According to the report, the plaintiff in the case is the daughter of a 94-year-old woman who was a resident in a South Florida nursing home where eight residents died after the nursing home was left without power while Irma passed. The plaintiff claims that the nursing home’s failure to prepare for the power outage showed “negligence and reckless indifference” toward the residents it was charged to protect.

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Earlier this month, the District Court of Appeal for Florida’s Second District issued a written opinion in a nursing home negligence case. The issue the court had to decide was whether the arbitration clause that was signed by the deceased resident’s daughter could bind the resident’s estate in a subsequent wrongful death lawsuit against the nursing home. The court held that the agreement could not bind the estate to arbitrate, and it allowed the estate to pursue its claims through the court system.

Attorney's TableThe Facts of the Case

The case arose after a nursing home resident died while in the care of the defendant nursing home. At the time of her death, as well as prior to her admission to the nursing home, the resident was not competent to make her own medical decisions. Thus, the woman’s daughter was helping her get placed into a nursing home facility. As a part of this assistance, the daughter arranged for her mother to stay at the defendant nursing home and signed an arbitration agreement prior to her mother’s admission.

At the time the daughter signed the arbitration agreement, her mother had not assigned a power of attorney to her daughter. In fact, it was undisputed that the daughter was merely acting as a health care proxy for her mother and did not have any control over financial or legal matters involving her mother. However, when the daughter signed the arbitration agreement, she signed on the line designated for a “legal guardian.” The agreement defined a legal guardian as someone “who, under independent legal authority, such as a court order has authority to act on the Resident’s behalf.”

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Earlier this month, the District Court of Appeal of Florida’s Second District issued a written opinion in a nursing home negligence case, invalidating an arbitration agreement signed by one of the resident’s sons. As a result of the court’s decision, the estate of the deceased resident will not be required to argue their claim in front of an arbitration panel, and may file a personal injury case in the Florida court system.

ContractThe Facts of the Case

The nursing home resident was admitted into a nursing home in 2013. Before admission, her son, who had valid power of attorney for his mother, signed the nursing home contract. Included in the contract was an arbitration clause by which the parties agreed any claims arising from the resident’s admission would be settled through arbitration rather than the court system.

Later, the nursing home was acquired by another company. The nursing home claimed that a subsequent agreement was made to replace the old nursing home’s name with the new nursing home’s name. However, this was never admitted into evidence. At some point the resident was injured while in the care of the new nursing home and her estate later filed a personal injury claim against the nursing home.

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Earlier this month, the first case of Ebola was documented in the United States. The first case was a Texas man who had recently returned from a trip to Liberia. He died 14 days after he was exposed to the deadly virus.

nurse-1-1158314-mShortly after his death, a healthcare worker started to develop symptoms of Ebola. The healthcare worker was diagnosed with Ebola and underwent a course of treatment for the disease, luckily recovering 14 days after diagnosis. Just days after the first healthcare worker was diagnosed, another hospital employee was then diagnosed with Ebola, bringing the total count to three. This person, however, flew to Atlanta the day before diagnosis, so all passengers on the two flights needed to be screened. The Centers for Disease Control is currently conducting the necessary screens.

According to a report by one local South Florida news source, South Florida nurses are calling on their hospitals to step up their protective efforts in dealing with Ebola, should a case arise in South Florida. Members of National Nurses United gathered last Friday in Fort Lauderdale to bring awareness to the issue, arguing that “We haven’t gotten hands on effective training that we need to take care of any patient that walks into the ER.”

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