Articles Posted in Nursing Home Issues

One might expect that Florida nursing homes recruit some of the best nursing staff available because they care for one of society’s most vulnerable populations. However, given the track record of most Florida nursing homes, that does not seem to be the case. Indeed, it seems as though every few days there is a new report of abuse or neglect at a Florida nursing home.

According to recent estimates by the World Health Organization, nearly two out of three nursing home staff members have reported that they engaged in some type of abuse over the past year. The number of instances involving nursing home neglect is more difficult to determine because residents report such a small percentage of the cases. However, it is estimated that approximately 12% of nursing home residents will suffer from neglect at some point during their stay in a skilled nursing facility.

Of course, Florida nursing homes have a duty to provide a base level of care to their residents. The extent of this duty depends on the individual needs of the resident, but certainly includes assistance with feeding, using the bathroom, taking medications, and following up on developing medical conditions. When staff members neglect to care for a resident, both staff and management may be held liable through a Florida nursing home neglect lawsuit.

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Over the past few decades, there has been a drastic increase in the number of dual-income households. While this allows for both spouses to have a fulfilling career, it also frequently prevents adult children from caring for their aging parents, which is a full-time job in itself. Thus, along with the increase in dual-income households has come a corresponding increase in the need for nursing homes to care for older Americans.

While most Florida nursing homes are reputable establishments that strive to provide an adequate level of care to all residents, each month there are dozens of reports of Florida nursing home abuse and neglect. In the event of Florida nursing home abuse or neglect, the resident or their loved ones may pursue a claim for compensation against the nursing home.

Nursing home cases have much in common with other Florida personal injury cases in that a plaintiff must establish that the defendant nurse or administrator acted negligently or intentionally to cause their loved one’s injuries. However, Florida nursing home lawsuits often present an issue that does not frequently come up in other personal injury cases: arbitration.

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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.

Chances 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.

Arbitration 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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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.

The 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.

Shortly 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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