Edgewater Legal News - Nursing Home
The Law Office of Paul Bernardini
According to an article in the July 13, 2016, issue of the Daytona Beach News-Journal, Grace Manor in Port Orange has been ordered shut down by the state after being accused of improperly reporting sexual assaults to unwilling patients in the memory care unit. Unfortunately, this is not the first time Grace Manor has been accused of nursing home abuse, nor is it by any means the only nursing home affected by mismanagement and failure to perform mandatory background checks, for example.
Everyone (I mean everyone) is more than welcome to a free telephone conference concerning any questions about nursing home abuse and nursing home injuries. So if you have any questions or concerns, please call me at 386-258-3453.
- Paul Bernardini
On May 16, 2016, a jury in Colorado awarded a family of a former patient of Life Care Centers of America, Inc. (LCCA) $5.5 million. The horrible conditions and indignity Sophia Maria Alcon lived through until her death as a result of her lack of care at Life Care Center of Pueblo resulted in one of the higher court decisions against a nursing home for abuse and neglect. LCCA owns more than two dozen nursing homes in Florida, two in Orlando. If you have a loved one in a nursing home anywhere, please know the signs that can indicate a problem and address them right away. Nursing home abuse and negligence include, but are not limited to, the following:
- Bedsores, also called decubitus ulcers or pressure ulcers
- Staff refusing or delaying visits by family to see resident
- Overmedicating patient
- Falls with injuries
- Unexplained injuries
- Emotional abuse
- Signs of emotional trauma
- Sudden changes in patient behavior or prognosis
- Rapid weight loss or malnutrition
- Cracked lips or dehydration
- Unsanitary conditions
- Inadequate staffing or poor quality of staff
- Signs of sexual abuse, venereal diseases or genital infections
- Transfer to hospital for infection, wound care, or malnutrition
- Transfer to wound care clinic for wound care, debridement, or flap surgery
- Financial exploitation
- Unexplained death
It is important to make sure your loved one is being treated with the respect and care they deserve. Visitation by you and other family and friends is crucial. If you believe your loved one is suffering from any of these symptoms, or has had an unexplained death, please, please call me right away at 386-258-3453.
Florida’s statute of limitations on nursing home abuse is only two years, and it is essential that you act right away to gather evidence and witnesses. There is no time to lose. One of the first orders of business is to remove the patient from the facility as soon as possible. The sooner we can meet with you, the sooner we can user our experience to get you the help you need.The consultation is always free.
In a nursing home resident's rights case, the trial court erred in finding that a durable power of attorney did not give the resident's wife authority to enter into the nursing home admission agreement on her husband's behalf. Zephyr Haven Health and Rehab Center, Inc. v. Estate of Clukey, 39 FLW D561 (Fla. 2nd DCA 3-14-2014).
Very soon, a legislative bill may be in effect which will change some aspects of litigation against nursing homes. One of the benefits of this bill will be its effect on acquiring a resident's nursing home records. As of now, an estate would have to be set up in order to acquire nursing home records of a deceased resident. When the new bill becomes law, family members, and their attorney, can acquire their loved one's nursing home records without an estate. This will save the family approximately $3,000 in costs.
A recent arbitration claim involving the wrongful death of a nineteen year old who had signed an arbitration agreement. Generally speaking, an arbitration agreement is a document where a party agrees to waive or give up their right to a trial by jury and must proceed to arbitration. Generally speaking, nursing home and health care facilities prefer arbitration to trials by jury.
On October 11, 2013, the First District Court of Appeal held the arbitration provision was valid and enforceable even though it meant that there would be a judicial enforcement of a religiously based arbitration agreement that invoked religious principles and, at least facially, involved religious acts such as prayer.
This case points out the danger of signing without reading documents at nursing homes. You are not required to sign an arbitration agreement. You are never required to give up your rights to a trial by jury unless you sign.
A common mistake most of us make is that people believe that arbitration clauses are not valid. In Florida, arbitration clauses are 100% valid if the proper procedures are used.
Likewise, a waiver of liability that is signed by a person before participating in an event is also generally held to be valid.
In fact, in our District, the Fifth District, our Court of Appeals held on October 4, 2013 that an evidentiary hearing was necessary to determine the validity of an arbitration agreement that the husband signed even though his wife, who was the actual resident of the nursing home, did not sign the arbitration agreement. The Fifth District Court of Appeal held that a trial court is required to conduct an evidentiary hearing to determine whether the wife actually consented to the arbitration agreement or to determine whether the husband had the authority to sign on the wife’s behalf. Evergreen Woods v. Robinson.
I think it is helpful to always take such agreements home and think about them before you sign. If you have any particular questions about signing something, always feel free to telephone us at 386-258-3453.
Another case allowing arbitration regarding nursing home cases is Tampa HCP v. Satan, 36 FL W D2350.
Where a nursing home resident's wife acting under a Durable Power of Attorney signed an Admission Agreement for her husband, and also signed an addendum that provided for arbitration of disputes only in her capacity as a financially responsible party, and not as the resident's representative, the arbitration provision was not enforceable against the resident of the nursing home. Lepisto v. Senior Lifestyle New Port Limited Partnership, 36 FLW D1655 (4th DCA Fla. August 3, 2011).
It is generally better for the injured person to avoid arbitration and it is generally better for the nursing home to have arbitration. Many people sign arbitration agreements without realizing what they signed. This case and the one following indicate how important it is for people to fully understand what they are signing. The sa.'!le applies for nursing homes, hospitals as well as insurance policies regarding uninsured motorist coverage.
For example, a health care power of attorney appointing a nursing home resident's daughter as her health care surrogate did not empower the daughter to consent to arbitration of a dispute with the nursing home. Estate of Irons v. Arcadia Healthcare, 66 So. 2d 3rct 396 (2"ct DCA Fla. 2011 ). On the other hand, some courts enforce harsh provisions of arbitration agreements.
For example, in Florida Carrollwood Care v. Gordon, 36 FLW D1716 2d DCA Fla. August 5, 2011) the Second District held that an arbitration agreements limitation on discovery and a $250,000 limit on noneconomic damages were not sufficient, standing alone, to support a finding of substantive unconscionability and were valid clauses. When dealing with "letters of protection" to doctors, the plaintiff should be very careful and so should their attorney. In Katzman v. Rediron Fabrication, Inc., 36 FL W D 17 4 7 (Fla. 4th DCA), the doctor was required to allow the insurance company to investigate the doctor's charges.
After the auto accident, the plaintiff's lawyer referred the plaintiff to a doctor who entered into a letter of protection. The doctor then performed a controversial and expensive outpatient procedure. The Fourth District held that the trial court did not abuse its discretion allowing the defendant to seek discovery from the physician regarding how often the doctor had ordered the procedure over the preceding four years and what he had charged in litigation and non-litigation cases.
The above information is intended for general purposes only and should not be construed as legal advice.