Assisted Living Facilities (ALFs) are an alternative to nursing homes and in many cases may be a suitable alternative to nursing home confinement where the resident is not in need of skilled nursing care. As in the case of Florida nursing homes, Florida ALFs must go through a licensing process and be approved by the State of Florida. It must be emphasized that ALFs, in contrast to nursing home facilities, do not provide on-site nursing care. ALFs are generally allowed only to administer doctor-prescribed medications to the resident, which are ideally dispensed by the pharmacy in unit dose packs. Moreover, ALFs must not accept or keep as residents any individual who has physical or mental health issues which require skilled medical treatment or which would pose either a danger to the individual or other residents of the nursing home facility. Assisted Living Facilities are governed by Florida Statute 429.
Elderly individuals confined to a nursing home are ripe candidates for negligent care and abuse due to their vulnerability, whether physical (e.g., frailness); mental (e.g., dementia or Alzheimer’s), or a combination of the two. The Florida legislature has made it very clear that such residents are entitled to certain rights and privileges through a law commonly known as the Nursing Home Resident Bill of Rights (Florida Statute Chapter 400 s.022). Every Florida nursing home resident resident or his /her legal representative should be provided with a copy of the “Bill of Rights” at the time of admission. In brief, residents’ rights, under Florida Statute 400.022, include the following:
1. The right to civil and religious freedom.
2. The right to private and uncensored communication.
3. The right to have reasonable access to the resident by an entity or individual that provides health, social, legal or other services to residents of nursing homes.
4. The right of a resident to present grievances, i.e., providing a forum where grievances can be presented.
5. The right to organize and participate in resident groups.
6. The right to participate in social, religious, and community activities.
7. The right to examine the results of the most recent federal or state inspection of the facility.
8. The right to manage his or her own financial affairs.
9. The right to be fully informed at the time of admission and throughout of services available in the facility and the related charges for such services.
10. The right to be adequately informed of his or her medical condition and proposed treatment, including the right to refuse medication and treatment.
11. The right to refuse medication or treatment and to be informed of the consequences.
12. The right to receive, in a nursing home, adequate and appropriate healthcare and protective and support services, including social, mental, recreational, therapeutic and rehabilitative services consistent with the resident’s care plan and with established and recognized practice standards.
13. The right to privacy and treatment and in caring for the resident’s personal needs, including the right to confidentiality of their medical records.
14. The right to be treated courteously, fairly, and with the fullest measure of dignity.
15. The right to be free from mental and physical abuse, corporal punishment, extended but involuntary seclusion and to be free from physical and chemical restraints, except those restraints authorized by a physician for a specified and limited period of time or as necessitated by emergency.
16. The right to be transferred or discharged only for medical reasons or for the welfare of other residents.
17. The right to freedom of choice in selecting a personal physician.
18. The right to retain and use personal clothing and possessions.
19. The right to have copies of the facility’s rules and regulations.
20. The right to receive notice before a resident’s room is changed.
21. The right to be informed of the bed reservation policy for hospitalization.
22. For recipients of Medicaid or Medicare, the right to challenge the decision by the facility to discharge or transfer.
The nursing home or ALF’s family members play a crucial role in protecting the rights of the resident. A vulnerable elderly person may not know or understand that he or she is not being properly cared for, or does not have the ability to even complain of such treatment. The person may also be afraid to complain for fear of repercussions by the staff members. Remember that elderly individuals often feel alone, isolated, and fearful. Our previous posted blogs in the area of nursing negligence and abuse contain suggestions for monitoring the adequacy of the care being administered to the nursing home resident or ALF resident. Briefly, the resident’s family members need to be on the lookout for the following examples of potential nursing home negligence and abuse:
1. Pressure sores or bedsores
2. Unexplained bruising
3. Unexplained weight loss.
4 A resident’s expressed fear for his/her health and safety.
5. Falls; broken bones
6. Dehydration.
In passing laws to protect our vulnerable nursing home and ALF residents from negligent and/or abusive treatment, the Florida legislature clearly weighed society’s interest in promoting residents’ rights against subjecting nursing homes and ALFs to possible civil lawsuits. The legislature concluded that allowing residents and their families to police the facility’s activities and commence legal actions against the facility for monetary damages would “encourage” facilities to “do the right thing” and respect the resident’s rights.
If you or a loved one believe he/she has suffered nursing home and/or ALF negligence or abuse, you may wish to consult with an attorney of your choosing to discuss the potential case. The attorneys at Troy & Schwartz, LLC would be honored to have the opportunity to discuss your options. Under Florida law, keep in mind that a civil action may be commenced by a family member on behalf of the elderly victim. Any resultant monetary recovery would be applied towards the healthcare and medical needs of the victim. Similarly, if a resident has passed away, as a result of the facility’s negligence and abuse, the victim’s family may bring a wrongful death action. In contrast to other wrongful death actions commenced in Florida, the plaintiffs in a wrongful death lawsuit brought for nursing home negligence and/or abuse are not limited to the surviving spouse and/or children under the age of twenty-five (25). Any monies recovered from the wrongful death action would be for the benefit of the resident’s estate, namely the estate’s beneficiaries pursuant to the deceased victim’s valid will or, if there is no valid will, according to the intestate laws of the State of Florida.
DISCLAIMER: THIS BLOG IS NOT LEGAL ADVICE, NOR SHOULD YOU CONSIDER IT AS SUCH. IF YOU ARE CONTEMPLATING TAKING AN ACTION WHICH HAS LEGAL CONSEQUENCES, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.
]]>This blog is intended to emphasize that: 1) the causes of bedsore development are known; 2) the risk factors for developing bedsores are known; and 3) steps/procedures which will help reduce the development of bedsores or at the very lease allow for early “treatment” intervention are well known. The above prevention tactics are nothing more than common-sense procedures that every nursing home and hospital can implement via specific quality care programs which are actually followed. That this blog contains references to Dr. Deming is due to the fact that one of the authors, prior to attending law school, was involved in product development in the medical device industry for an international medical device manufacturing company where product development was carried out through product development teams consisting of members ranging from R&D to regulatory affairs. The teams’ responsibilities included the establishment of objective quality assurance indicators. As discussed below, the authors believe that Dr. Deming’s principles are applicable to hospital and nursing home settings for reducing the development of bedsores.
As the name suggests, pressure sores result when the weight of the person’s body presses against a firm surface such as a bed mattress or a chair. Or put another way, the bed sores develop due to the pressure exerted by the bed or chair on the person’s body. In understanding just how such pressure cause bedsores, remember that the skin contains hundreds of blood vessels. Bedsore occur when the pressure cuts off the skin’s blood supply to the "pressure-contact" area. This area of damaged skin will become more susceptible to pressure-induced damage if steps are not taken to relieve/reduce pressure on the now-compromised skin. (Reference #2)
It should not be surprising that the elderly, who are often frail due to poor bone and skin integrity, are particularly susceptible to pressure sores because of their lower tissue tolerance for pressure. Old age is thus a “no brainer” risk factor for developing bedsores. Yet, many other well-known risk factors are associated with the development of pressure sores. Obviously the greater the number of risk factors specific to the person, the greater the likelihood that the person will develop bedsores. Besides old age, the following factors are known to increase the risk for developing pressure sores:
• Being bedridden
• Spending considerable time in a wheelchair
• Diabetes or vascular disease that prevents areas of the body from receiving proper blood flow
• Spinal cord injury (paralysis), brain injury, or other physical condition which prevents the person from moving parts of his/her body without assistance.
• Malnourishment
• Mental disability such as Alzheimer’s disease or dementia which may prevent the patient from moving parts of his/her body without assistance not necessarily because they are unable to do so, but because they are not aware that then need to do so
• Urinary incontinence or bowel incontinence (Reference #1).
Many of the listed risk factors are typically associated with old age; therefore most elderly persons have multiple risk factors ranging from confinement to bed and wheelchairs to incontinence, mental disability, and/or malnutrition. Upon their admission to a nursing home or hospital, elderly persons should thus undergo a formal risk factor assessment to determine their risk of developing bedsores. They should then be monitored carefully for the onset of bedsores so that treatment can be timely rendered while the bedsore is still at a readily treatable stage.
Unfortunately, failure of nursing home staff members and administrators to actively take measures to minimize the onset of bedsores and/or initiate prompt medical intervention can result in dire consequences for the “bedsore” patient, especially where Stage III and Stage IV bedsores are at issue. Obviously, nursing home patients confined to their beds should be turned frequently to “spread out” the pressure from the hard surface across a large area of the person’s body. The medical literature suggests that turning should occur every two hours. Nor should residents be allowed to sit for hours on end in a wheel chair without pillows or other means to reduce pressure points between their skin and the chair itself.
Pressure sores may also result if the bed-ridden elderly person is dragged or slid across bed sheets, thereby creating potentially harmful frictional forces between the person’s skin and the bed sheet. (Reference 2). It is also conceivable that “dragging” an elderly frail person may result in injuries to muscles or bones quite apart from bedsores. Such treatment may also constitute abuse. Nursing home patients are entitled to respectful, gentle treatment to prevent injuries, and it is up to the administrators to ensure that the residents are treated appropriately.
Another known risk factor involves incontinence. Failure to frequently change the underwear of individuals who are incontinent may increase the risk of developing bedsores; the resultant wetness from bodily waste can make the skin too soft and more likely to be injured by pressure.
Diabetes and hyperglycemia are two other well known risk factors for bedsores. One would hope that any nursing home resident or hospital patient who is known to be diabetic or hyperglycemic would receive a “heightened scrutiny” type of monitoring for bedsores from the onset of his or her hospitalization or residence at a nursing home.
Bedsores are generally associated with nursing homes. It must be emphasized, however, that bedsores do not only originate in nursing homes. Elderly people who are hospitalized also have a high risk of developing bedsores due to the various risk factors which make them susceptible to bedsores. Patients transferred from hospitals to nursing home rehabilitation centers or being returned to their previous nursing home residences, are particularly vulnerable to bedsores according to the statistics. It has been estimated that at least 10% and upwards of 35% of individuals transferred from hospitals to nursing home rehabilitation centers or the nursing home where they had previously resided prior to hospitalization already have bedsores at the time of admission. (Reference #4). Nursing homes should thus make every effort to carefully check any patient being transferred to the nursing home for bedsores at the time of admission. Without proper medical care, even minor bedsores originating at the hospital may “turn into” serious Stage III and Stage IV bedsores.
We further emphasize that pressure sores are not merely a condition of the elderly. Individuals suffering from conditions which prevent movement such as paralysis, severe arthritis and/or multiple sclerosis, are susceptible to bedsores because of their inability to move without assistance. Recently, Eric Trainor, a 30-year-old New York State resident, was awarded $2.2 million by a jury for the pain and suffering caused by horrific bedsores. As a consequence of a motor vehicle accident in which he had been a passenger, the Mr. Trainor had been hospitalized at Westchester Medical Center. His injuries had caused him to become a quadriplegic. Because of the hospital’s failure to turn the injured patient every two hours during his 6 week stay, the patient developed Stage IV bedsores which had to be surgically closed. Furthermore, as a consequence of the bedsores, the injured man had to refrain from participating in physical rehabilitation so much so that he lost the chance to build up his upper body strength.
]]> As nursing home negligence and abuse attorneys, we are particularly offended by those situations where the and/or hospital nursing home facility knew or should have known of the bedsore(s) and failed to secure proper medical care before the bedsores turned into Stage III or Stage IV bedsores. As discussed above, the risk factors associated with bedsore formation are well known. One would hope that somewhere along the chain of command in nursing homes and hospitals that supervisory oversight would kick sooner rather than later to ensure that: 1) that basic procedures for reducing the formation of bedsores are in place, at the very least for those individuals who have multiple risk factors for developing bedsores; and 2) pressure sores are “caught” in their early stages.We also hear the argument that bedsore prevention procedures would “break the bank” so to speak. This assertion is disingenuous, however, because it has been estimating that the price of managing a single serious pressure ulcer is as much as $70,000.00 and US expenditures for treating pressure ulcers have been estimated at $11 billion per year. (Reference No. 3). In general, elderly persons tend to heal more slowly from any type of injury because aging is associated with a decrease in the repaid rate of cells. (Reference No. 4). And its Medicare or the elderly resident’s Medicare HMO which is picking up the treatment cost, generally rendered by a wound care specialist, for all individuals 65 years old and over.
The foregoing begs the following question: If the reasons for bedsores are well-established, why haven’t many hospitals and nursing homes initiated quality care programs to minimize bedsores? Most hospitals and nursing homes at least give lip service to quality medical care by having a mission statement. But a mission statement in and of itself does not guarantee quality care. Quality can be an elusive concept if the “quality purveyor of medical care” cannot objectively define what constitutes quality care according to defined measurable parameters. As discussed in a previous blog, perhaps it’s time that medical facilities and nursing homes read up on Deming, the “godfather” behind the concept that reliable quality control procedures can actually increase the bottom line for manufacturing companies. (Reference No. 5). For medical care providers, the “quality control” procedures would of course be “quality care” procedures.
Interestingly, the American Nurses Association has articulated that the maintenance of skin integrity in hospitalized patients as an important indicator of quality nursing care “based on the premise that pressure ulcers are preventable.” (Reference No. 4). This is the type of measurable parameter that can be assessed in both hospitals and nursing homes. Furthermore, this type of objective quality care indicator is the type of ascertainable data we had in mind when we discussed the “Deming-like” approach to assessing cost effective steps for minimizing bedsores in nursing homes in a previous blog.
As stated above, surgery is known to be a risk factor for the development of bedsores, and patients undergoing cardiac surgery “have been identified as being at higher risk that surgical patients overall.” (Reference No. 4). In a journal article entitled “Prevention and Early Detection of Pressure Ulcers in Patients Undergoing Cardiac Surgery” by D. Sewchuck, C. Padula, and E. Osbourne published in AORN on July 2006, the authors discussed the results of a study to assess strategies for minimizing pressure sores in patients undergoing cardiac surgery. The authors cited the results of a study in which it was found that over half of the total pressure ulcers which occur in hospitalized patients occur in patients who have under gone surgery and that most of these were found in cardiac surgery patients. (Reference No. 4).
The authors further noted that cardiac surgery patients are probably already at a high risk of developing pressure sores in the first place because of the presence of diabetes, advanced age, and/or several comorbidities. Also, the nature of the cardiac surgery itself is a risk factor. Thus, a patient who is “bypass” will generally be confined to an operating room bed for an extended period of time, and “during the intraoperative period in particular, patients are often supine and cannot be turned.” (Reference No. 4).
Based on the results of their study, the authors concluded that “[m]easures which can be implemented in the OR [for reducing bedsores] should be considered.” These measures may include reducing the number of layers of material and assessing warming methods. The authors went on to make several recommendations for nurses who provide postoperative care to cardiac surgery patients. The recommendations are important because they are based on a common sense approach to understanding the patient’s risk for developing bedsores based on identified risk factors and taking actions to reduce the likelihood of bedsores based on the known risk factors. In particular, the authors emphasized that “an interdisciplinary, collaborative approach is critical” for developing a bedsore ulcer prevention strategy. In other words, a hospital’s bedsore prevention strategy will never be successfully implemented absent a team effort from the top down. (Reference No. 4).
Interestingly, Dr. Deming himself was an advocate of a multi-disciplinary team approach to both new product development and product performance issues within an organization to improve quality, develop products that meet pre-defined and achievable specifications consistent with customer requirements; and reduce product performance problems once the product is in the customers’ hands.
Sewchuk's, et al.'s own conclusions certainly argue in favor of the implication that the teamwork concept for promoting quality nursing care is indeed transferable to the hospital setting. Thus as a “high bedsore risk” risk, a cardiac patient’s hospital care team might consist of the bedsore risk assessor, a dietician knowledgeable in bedsore-related nutrition issues, the pre-operative nursing staff, and the post-operative nursing staff.
We applaud the American Nurses Association for “studying” bedsore prevention approaches in a hospital setting based on known risk factors. Serious bedsore development should not be treated as an expected outcome of hospitalization or nursing home confinement. That is, bedsores should not be treated as “collateral damage” of nursing home confinement where the residents, given their various risk factors, are ripe candidates for bedsore development. The same applies to hospital patients.
Bedsores may never be totally preventable, particularly in those nursing home residents who are often frail to start with and often have other risk factors such as diabetes and poor nutrition resulting from eating problems. Nevertheless, it would seem that any nursing home facility which has as its elderly persons as it customers should have in place procedures to, at the very least “catch” bedsores at a very early stage so that proper treatment can be timely rendered. Ditto for hospitals.
The successful implementation of a quality care program to reduce bedsores will require dedication from top management on down to create an environment dedicated to bedsore prevention and/or early intervention in treatment. This is not a situation where the wheel needs to be re-invented to achieve a desirable outcome. As discussed above, the risk factors associated with bedsore development are well known. Furthermore procedures for minimizing bedsore formation are well known. Nevertheless, knowledge without action is not going to solve bedsore problems.
It is our belief that any sustainable quality control program must include proper training of staff members and holding staff members and their supervisors accountable for lapses in the program. On the flip side, the institution could also encourage proper treatment of patients or residents by implementing an awards recognition program for those departments showing a genuine decline in the number of bedsore incidents due to the implementation of a quality control program. Management studies have repeatedly shown that employee motivation can play a key role in creating an atmosphere dedicated to quality control and also in retaining good employees. One well known way of motivating employees is through an employee recognition program because employees based on achievement of pre-defined quality care indicators.
Two possible objective quality care indicators are:
1. Bedsores per patient or per resident before and after implementation of a specific quality care program or modifications to an existing program. Objective indicator: a reduction in the percentage of patients who develop bedsores within a defined population of patients or residents.
2. Bedsore stage at which treatment commenced. Objective indicator: an increase in the percentage of patients who receive treatment at the readily treatable Stage I stage and a decrease in the percentage of patients who develop Stage III and Stage IV bedsores.
As stated above, procedures for minimizing bedsores are well known, and it is often the failure to follow these procedures which result in bedsores often because of improper training; lack of employee accountability; and/or lack of supervisory. These procedures include changing positions often. (Reference 2) Unfortunately many elderly nursing home residents do not have the strength to turn themselves and require assistance. Moreover, those residents suffering from dementia or Alzheimer’s probably lack the cognitive ability to “know” to turn themselves. Nursing homes and hospitals should have a policy whereby staff members turn their bedridden residents/patients every two hours and staff members should be required to document their actions.
Other prevention tactics include: 1) keeping the incline of the head of the resident’s bed less than 30 degrees; 2) supporting the resident’s legs correctly; 3) keeping the resident’s knees and ankles from touching by using a pillow under the legs from the middle of the calf to the ankle; 4) keeping the skin clean and dry; and 5) daily skin inspections. (Reference 2). The latter means actually evaluating the areas most susceptible to bedsores, namely the buttocks, hips, elbows, lower back, legs, and heels. (Reference 2).
Prolonged sitting in wheel chairs can present problems for the elderly resident who is either physically or cognitively unable to adjust his/her position. It has been recommended that the caregiver manually change the elderly person’s position every 15 minutes or so. (Reference 2). Such a recommended position-change schedule (4 times per hour) may be difficult to achieve in a busy nursing home on a routine basis. At the very least, the wheelchairs should have cushions that reduce pressure and provide maximum support and comfort. (Reference 2).
Nursing homes might also consider providing pressure-release wheelchairs for their residents, which tilt to redistribute pressure and may make sitting long periods easier and more comfortable and beds which have been shown to reduce the likelihood that a pressure ulcer will form. (Reference 2). Such seating and bed arrangements could at least be provided to those residents which are deemed to have a high risk of developing bedsores based on multiple risk factors as identified by the nursing home patient or hospital assessment team.
Other prevention tactics include using pressure-reducing beds, proper nutrition, and keen supervisory oversight. To borrow from former president Harry Truman, the buck will need to stop with upper management and supervisors and managers who must be the moral trend setters to create an atmosphere dedicated to minimizing pressure sores in nursing home residents and hospital patients. As discussed above, many of the procedures which are known to help reduce bedsores involve “hands on participation” by staff members and not additional equipment. At the very least, any patient who evidences signs of a Stage I bedsore needs to be treated promptly and such treatment can only be rendered if the staff is pro-active in monitoring its patients or residents.
The cost of doing something may be deemed unreasonable just based on dollars and cents. In fact any impact on dollars and cents may not be an immediate outcome of any implemented quality carel program. If, however, the pain and suffering of bedsore victims is taken into account, the cost of doing something should seemingly be a deemed a reasonable expense by of any hospital or nursing home which truly cares about its patients and residents. Even taking “baby” steps towards a lofty goal such as reducing bedsores are preferable to doing nothing. It should be noted that medical providers themselves have opined that the Deming philosophy is applicable to their profession. Reference #6.
Unfortunately, we are not optimistic that nursing home negligence and abuse and hospital negligence will become a problem of the past any time soon. Bedsore victims do have the legal right to seek damages for their pain and suffering from nursing homes, and we would state that this right to sue is intended by state legislatures to “encourage” medical providers and nursing homes to provide decent care to its patients/residents. In fact, Florida has Nursing Home Bill of Rights which provides bedsore victims with a right to initiate legal action. If the bedsores become so serious that they contributed to the person’s death, the victim’s estate may commence a wrongful death action.
A bedsore case attributable to hospital neglect, even if involving the nursing staff only, must be brought as a medical malpractice lawsuit. However, unlike other "med mal" actions in Florida, standing is enlarged to include family members for their own pain and suffering. If the bedsores cause or are the partial causes of a wrongful death, standing embraces family members other than the widow, widower and/or surviving children under the age of 25.
We hope the above discussion was informative. If you or a loved one have suffered from bedsores resulting from hospitalization and/or a nursing home, particularly from bedsores which were allowed to worsen before treatment was commenced, you may wish to consult with an attorney to discuss your options.
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Reference #1. Electronic publication by the National Institutes of Health. Available at www.nlm.nih.gov/medlineplus/ency/article/007071.htm
Reference #2. Electronic publication by the Mayo Clinic www.mayoclinic.com/health/bedsores/DS00570.METHOD=print&DSECTION= all
Reference #3. Preventing Pressure Ulcers: a Systematic Review by Madhuri Reddy, MD; Sudeep S. Gill, M.D.; and Paula A. Rochon, MD in the Journal of the Medidcal Association (JAMA), vol. 2006 No. 8, August 23/30, 2006.
Reference No. 4: Prevention and early Detection of Pressure Ulcers in Patients Undergoing Cardiac Surgery by Dennis Sewchuk, Cynthia Padula, and Evelyn Osborne in AORN J.
See also Patient Risk Factors for Pressure Ulcers During Cardiac Surgery by Linda Lewiski, Lorraine Mion, Karen Splane, Doris Samstag, and Michelle Secic, AORN J. vol. 65, pp 933-42 (May 1997).
Reference #5. Electronic publication by Aetna. available at www.intelihealth.com/IH/ihtIH/W/9339/10914.html
Reference #6. Teamwork, Quality, and Competitive Advantage: the Deming philosophy in orthodontics. J. Clin. Orthod. vol. 27, pp 269-75 (May 1997).
“An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.” Section 95.11(4)(b), Florida Statutes.
This particular time frame imposed by the Florida Legislature is considerably shorter than the statute of limitations for bringing actions for personal injuries caused, for example, by motor vehicle accidents, dog bites, and slip and fall accidents. For these "non-med mal" negligence cases, the statute of limitations under Florida law is four (4) years.
The medical malpractice statute of limitations is not as cut and dry as it may seem. For example, in the case of motor vehicle accident, the date and time of the event which caused the the plaintiff’s injuries is documented, generally through an accident report form prepared by police officer called to the scene of the accident. Also, in many cases, the injured plaintiff will have been transported by an ambulance to a hospital.
In medical malpractice cases, the start date from which the statute of limitations is calculated may well be open to interpretation. In the case of a malpractice matter, the negligence may not be discovered for a considerable time after the negligence which gave rise to the malpractice occurred. For example, the ramifications of a missed cancer diagnosis may not be known for years. Also, pain is often the result of surgery. When should a patient be required to know that certain pain manifestations following surgery were a possible cause of medical malpractice? The bottom line is that for medical malpractice cases, the start date for assessing the statute of limitations is not always as easy to pin down as it may seem.
The most recent Florida case to deal with the issue of the medical malpractice statute of limitations is Cohen v. Cooper, a case decided by the Fourth District Court of Appeal on October 28, 2009. No. 4D07-4056. In Cohen, the Plaintiff appealed the lower court judge’s ruling that her medical malpractice claim for “eye” complications resulting from cosmetic surgery was barred by the statute of limitations for medical malpractice lawsuits and that the defendant was therefore entitled to final summary judgment as a matter or law. The plaintiff appealed..
In arriving at a decision favorable to the plaintiff, the Cohen court discussed the numerous Florida cases which have held inter alia that the “determination of timeliness under the statute of limitations is fact specific and within the province of the jury, not the trial judge.” For example, in Tanner v. Hartog, 618 S0. 2d 177, 181 (Fla. 1993), the Florida Supreme Court held that “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical practice.” The Tanner court was concerned over situations where the injured party became aware of a detrimental medical result after treatment by a medical practitioner, but did not have enough information available to ascertain that there was a reasonable possibility that the injury was caused by medical malpractice.
In Cunningham v. Lowery, 724 So. 2d 176, 178 (Fla. 5th DCA 1999), the court held that the plaintiff’s awareness of a medical condition “is not the same thing as knowledge that there was a reasonable possibility” that the plaintiff was injured through the malpractice of a doctor. The Cunningham court further opined that the statute’s requirement of “due diligence” does not require that courts hold a plaintiff struggling with the fact of a crippling or horrifying illness to undertake sophisticated medical analysis. Furthermore, the defendant-doctor in Cunningham continued to treat the plaintiff for a bacterial infection which was diagnosed following spinal surgery performed by that same doctor. The Cunningham court found this fact troublesome, and held that the continued treatment of the injured plaintiff by the defendant “embodies an estoppel concept; Medical providers or their agents who convince patients than untoward medical event was ‘natural’ and non-negligent will rarely be permitted to deny that same representation is correct for purposes of the statute of limitations.” Cohen citing Cunningham, 724 So. 2d at 180.
In 2008, the Florida Third District Court of Appeal held that “pain after a medical procedure, standing alone, does not trigger the statute of limitations and creates a question of fact on the issue of notice [of intent to initiate medical malpractice litigation]." Cohen citing Gonzalez v. Tracy, 994 So. 2d 402, 405 (Fla. 3d 2008).
]]> In 2008, the Fifth District Court of Appeal held that [s]imply suspecting wrongdoing is not enough” when determining just when clock starts ticking. Thomas v. Lopez, 982 So. 2d 64, 68 (Fla. 5th DCA 2008). The Thomas court concluded that “[t]he determination of when a person knew or should reasonably have known with the exercise of due diligence of the possibility of medical negligence is generally a question of fact.”In the recent Cohen case, the court emphasized that, as in the cited Cunningham case, the plaintiff continued to see her plastic surgeon after the onset of her eye problem and stated that “[a]s a result of [the defendant doctor’s] assurances that [the plaintiff’s] eye condition would improve, [the defendant doctor] cannot now claim that [the plaintiff] should have known three days after the initial surgery that her pain was the result of his negligence.” Moreover, the Cohen court pointed that the conflicting evidence presented by the parties concerning just when the plaintiff should have reasonably known her eye pain was the result of medical negligence was for the jury to evaluate, not the judge. The trial court had thus erred in granting final summary judgment to the defendant doctor.
The Cohen court opinion also reminds us that the moving party is entitled to a judgment as a matter of law only where there is no genuine issue of material fact and that “summary judgments should be cautiously granted in negligence and malpractice suits.” Cohen quoting Davis v. Green, 625 So. 2d 130, 131 (Fla. 4th DCA 1993).
The Cohen decision reiterates that, under Florida law, the determination of just when the plaintiff should have reasonably known that medical negligence was a possible cause of the injury is a question of fact for the jury. In addition, the opinion also emphasizes those medical providers who continue to treat a patient, perhaps in hopes of thwarting a claim against them for medical negligence, should not be later be able to assert that the plaintiff missed the “deadline” imposed by the statute of limitations for medical malpractice.
If you or a loved suspect that you have been the victim of medical negligence, you may wish to consult with an attorney to discuss your rights. When you consult with an attorney, be prepared to provide information on the specific dates you were treated by the medical provider(s) you allege to have committed medical negligence and how and when you came to believe that your symptoms were the result of medical negligence. Such information will be necessary to help your attorney make a preliminary assessment as to whether your claim should be within the two year statute of limitations based on Florida case law and the facts surrounding your particular situation.
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Both nursing homes and ALFs are regulated by the Agency for Healthcare Adminstration. ALF's are also known as adult congregate living centers and are governed by Chapter 429, Florida Statutes. ALFs may range from large residential facilities to private homes. Generally, ALFs which have been granted a stadard license by the State of Florida are required to provide only the "basics" of day-to-day living and limited personal services. A special license is required to provide nursing services through licensed nurses.
Nursing homes often involve large institutions which provide skilled nursing care and are governed by Chapter 420 of the Florida Statutes. Nursing home residents may include long-term residents or residents who are released to the nursing home for a period of rehabilitation following a hospital stay. The latter situation typically occurs when the elderly person is released to a nursing home directly from the hospital, say, for example, after a hip replacement surgery, for an interim stay at a nursing home.
Individuals who work at nursing homes or ALFs and will be performing personal services on behalf of the elderly residents are supposed to pass a background check pursuant to Florida Statute 435.03, otherwise known as "Level I" screening. Interestingly, the Level I screening requirement does not require a nationwide background check for criminal "activities" through the Federal Bureau of Investigation (FBI). The "loose" Level I screening requirements mean that theoretically a former felon from another state could move to Florida, begin working at a nursing home or day-care center or ALF and pass a Florida background check!
As the Sun Sentinel Article pointed out, a more stringent background check (Level II) involving a nationwide criminal background check is required for individuals whose jobs involve handling financial assets pursuant to Florida Statute 435.04.
Furthermore, the law allows individuals who have a suspect criminal background record to apply for an exemption through Florida Statute 435.07. Perhaps it is this loophole in the law that is most disturbing. According to the Sun Sentinal report, the "exemption" system has cleared nearly 9000 individuals with a criminal past to work as caregivers with children and the elderly. The report has prompted state officials to investigate over 850 individuals who were cleared to work as caregivers and then re-arrested for new crimes!
As a consequence of the Sun Sentinel's investigation, legislation is now being proposed to close this loophole where nationwide background checks for children and elder caregivers would be required before such caregivers are even hired. Also, Florida's Attorney General, Bill McCollum, has ordered a review of Florida's questionable employee screening system which has allowed convicted felons to work in nursing homes, day-care centers, and assisted living facilities (ALFs). Bravo!
It is difficult to understand just why Florida has such loosy goosy standards in place. Perhaps the underlying intention was to give reformed felons a “second chance” in life. Unfortunately this program has resulted in serious ramifications for unsuspecting elderly adults and their families as the Sun Sentinel investigative series discussed. For example, a jury has just convicted Andrew Gosciminski, a supposedly “reformed” felon, for the robbery and murder of the daughter of a resident at the Fort Pierce ALF where he was actually the marketing director! The jury recommended the death sentence.
The Sun Sentinel also reported a case where an "exempt" former felon stole $36,000.00 from the patients at the nursing home where she was employed and pedophiles have been employed in jobs where they have routine contact with children! Moreover, the high recidivism rate of felons is well known. Who knows if certain former felons who seek employment at facilities serving our vulnerable citizens are simply looking to commit crimes of opportunity? Or perhaps, the crime of opportunity, which happens to present itself, is just too good to pass up.
Thanks to the Sun Sentinel's investigation, Florida state senators and representatives are promising to take swift action to remedy these pitfalls in Florida law. As nursing home negligence and abuse attorneys, we have posted numerous blogs on nursing home negligence and abuse, including one blog which touched on implementing common sense procedures designed to better protect the elderly from injuries related to negligence and/or abuse. Requiring stringent screening standards for those who work with the elderly and children is surely a common sense approach for protecting our vulnerable citizens from exploitation by “unsavory” characters which can result in both physical harm and financial harm. Afterall, what better a victim than an elderly person suffering from frailty, dementia, and/or Alzheimer's?
The opinion is instructive because it involves a situation where the trial court “impermissably allowed the introduction of evidence of negligence and allowed the jury to consider such evidence” in contradiction of the standard established by the Florida Supreme Court in D’Amario v. Ford Motor Co., 806 So. 2d 424, 436 (Fla. 2001), for determining when the introduction of evidence of the plaintiff’s or a third party’s negligence should be allowed at trial and considered by the jury. Moreover, the Probkevitz opinion reiterates well-settled areas of law concerning the admission of evidence and expert testimony. As plaintiffs' attorneys, we believe that the Third DCA’s decision is clearly correct because in this particular case, the Plaintiff was prejudiced by not one but several questionable rulings.
The Prokevitz case was a wrongful death action brought by the personal representative (the minor decedent’s mother) of the minor decedent’s estate. The decedent died as the result of an automobile accident in which she had been driving a vehicle owned by her mother. The decedent had a learner’s permit at the time of the accident which had been signed for by her mother.
Under Florida law, adults who sign for a minor learner’s permit are representing that they will not allow the minor to drive unless accompanied by a licensed Florida driver. On the night of the accident, the decedent had evidently taken the mother’s car without the mother’s permission or knowledge after the mother had gone to bed. Dixon (the defendant driver) had asserted as an affirmative defense that the personal representative’s action was barred, or that his percentage of fault should be reduced because of the mother’s negligence. Dixon later moved for leave to file a third-party complaint against the mother-personal representative in her capacity as a survivor, for vicarious liability, negligent supervision, and negligent entrustment. The trial court denied the counts related to negligent supervision and negligent entrustment.
The trial court then went on to make several conflicting rulings during the trial as to whether or not the jury would be allowed to consider the mother’s vicarious negligence and/or evidence pertaining to the mother’s own negligence as the proximate legal cause of the unfortunate accident. Eventually on the last day of trial, the trial court reversed its previous ruling which had disallowed the mother’s negligence as a legal proximate cause of the accident to be considered. Or put another way, the trial court reversed its previous ruling which had only allowed the vicarious negligence of the mother to be considered by the jury.
For those who may not be familiar with the various negligence theories, suffice it to say that vicarious liability means the owner of a vehicle may be financially liable for the injuries caused by the driver of the vehicle even though the owner's actions were not the legal proximate cause of the accident. The issue of vicariously liability often arises in the context of employment-employer relationships where the employer, in the performance of his work duties, causes an injury to another, e.g., as the result of an automobile accident. Vicarious liability provides a means to obtain compensation for the injuries caused by, e.g., the employee while performing duties in the scope of his employment. In fact, the plaintiff in Probkevitz was presumably suing Defendant Velda Farms as Dixon’s employer under the legal theory of vicarious liability.
We will briefly note here that vicarious liability has become a less likely means of securing recovery for injuries in certain situations. Readers should also keep in mind that many companies which rely on drivers are often now hiring independent contractors in lieu of having actual company employees as drivers. One “legal” benefit to such companies is that they will generally not be found as being vicariously liable for injuries caused by the negligent driving of an independent contractor. It would seem, however, from a public policy perspective, that companies do at least only hire independent contractors which carry adequate motor vehicle liability insurance and have safe driving records.
The Defendants in Probkevitz understandably wanted to issue of the mother’s own negligence included on the verdict form. Why? Because this jury instruction would have required the jury to consider the issue of the mother’s negligence separate and apart from the negligence of the minor decedent and the Defendant driver. Any resultant award of damages to the decedent’s estate would have been reduced according to the assignment of “fault” to both the mother and the decedent, thereby most likely effectively reducing the amount of damages subsequently paid to the estate. The following examples illustrates this point.
Scenario II. Mother’s ordinary negligence is a jury consideration. Jury determines that the minor decedent was 50% negligent and that the mother was 20% negligent. Jury awards damages in the amount of five million dollars ($5,000,000.00). The actual damages paid to the plaintiff’s estate is reduced by 70% to reflect minor decedent’s comparative negligence. Final payout is $1.5 million.
Scenario III. Mother vicariously liable. Jury determines that the minor decedent was 50% negligent and that mother is vicariously liable. The actual damages paid to the plaintiff’s estate is reduced by 50% to reflect minor decedent’s comparative negligence. Final payout is $2.5 million. Same financial outcome as Scenario I.
As it turned out, the Probkevitz jury returned a defense verdict of no negligence whatsoever against the Defendant driver, and the jury never reached the question of the mother’s negligence. The mother’s motion for a new trial was denied and she appealed.
The Defendant-Appellees argued that the introduction of evidence pertaining to the mother’s negligence during the trial constituted harmless error. Citing D’Amario, the Third DCA disagreed and stated that the “negligence, if any [of the mother], was not so closely intertwined with any negligence of Dixon so as to provide a basis for the admission of the [the mother’s] negligence into evidence.”
The D’Amario case involved a products liability case against an automobile manufacturer. The defendant asserted that a third party had actually caused the accident and both parties stipulated to the jury the driver’s level of intoxication. As in Probkevitz, the D’Amario trial court made several conflictive rulings concerning the admission evidence about the driver’s intoxication. Eventually the intoxicated driver’s name was permitted to appear on the verdict form for purposes of apportionment of fault. The jury returned a verdict of no fault on the part of the manufacturer.
The D’Amario trial court did grant the plaintiff’s motion for a new trial. The Second DCA reversed on appeal, but the Florida Supreme Court ruled in favor of the plaintiff and stated that “[a] remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.” Probkevitz quoting D’Amario at 436. The Florida Supreme Court’s decision in D’Amario was seemingly intended to prevent an allegedly negligent party from attempting to circumvent a finding by the jury of negligence on its part by alleging the negligence of a third party on the basis of some remote condition or conduct. In Probkevitz, that third party was the minor decedent’s mother.
In holding for the Plaintiff, the Probkevitz Court stated that “a new trial is warranted whenever irrelevant, prejudicial evidence is improperly introduced. The evidence of [the mother’s] negligence, as well as a question of her negligence on the verdict form, allowed the jury to base their determination of the Defendant-driver’s negligence on facts and circumstances irrelevant to his fault as a driver. This may have improperly confused the jury, influences their thought process, and prejudiced the plaintiff [the decedent’s estate].”
The Probkevitz trial court also was found to have made incorrect rulings concerning the admission of expert testimony. Generally, an appeals court will give the trial court judge broad discretion in handling expert witness testimony. The Third DCA, however, found that the trial court abused its discretion by refusing a rebuttal expert witness, an accident reconstructionist, to testify on behalf of the plaintiff. “A trial court abuses its discretion when it forbids the presentation of rebuttal evidence that negates the theory of defense.” Probkevitz quoting Gerber v. Iyengar, 725 So. 2d 1181, 1185 (Fla. 3d DCA 1998).
The Probkevitz trial court also had inexplicably allowed the traffic homicide officer who investigated the accident to opine, over the plaintiff’s objection, that “[the minor decedent] had violated the traffic signal.” The Third DCA held that the officer’s opinion constituted prejudicial error and that the plaintiff’s objection should have been sustained. “It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error, which in appropriate circumstances will warrant a new trial.” Probkevitz quoting Spanagel v. Love, 585 So. 2d 317 (Fla. 5th DCA 1991). Our emphasis.
In conclusion, we would emphasize that the trial court made numerous “wrong calls” which, taken together, clearly prejudiced the plaintiff. The plaintiff will now have the opportunity to again present her case at a new trial ordered by the Third DCA. It also appears that this case is a comparative negligence case where the new jury will apportion the negligence between the Defendant-driver and the minor decedent presuming that the new jury attributes some degree of fault to the defendant-driver, based on "correctly admitted" evidence.
The Blanks Court held in favor of the defendant rental car company by simply citing two previous opinions on the same issue, Kumarsingh et al., v. PV Holding Corp. and Avis Rent A Car System, Inc., 983 So. 2d 599 (Fla. 3d DCA 2008); and Vargas v. Enter. Leasing Co., 993 So. 2d 614 (Fla. 4th DCA 2008). The purpose of this blog is to provide background on “Graves Amendment” jurisprudence which clearly establishes that car rental companies are off the hook for vicarious liability claims.
In Kumarsingh, the plaintiffs had been seriously injured in an automobile accident caused by the driver of a rental car. The rental car driver had a valid Mexican driver but was uninsured. The plaintiffs filed a lawsuit against the rental car company “alleging vicarious liability as the owners/lessors of the car and negligent entrustment.” See Kumarsingh at 599.
The defendants argued that a federal law, 49 U.S.C. s. 30106, commonly known as the Graves Amendment, pre-empted or “trumped” Florida’s statute imposing vicarious liability of auto lessors up to the limits set forth in section 324.021(9)(b)(2)., Florida Statutes). Section 324.021(9)(b)(2)., Florida Statutes is part of Chapter 324, Florida Statutes entitled “Financial Responsibility.” The purpose of the Chapter 324 is to:
Recognize the existing privilege to own or operate a motor vehicle in the public streets and highways of this state when such vehicles are used with due consideration for others and their property, and to promote safety and provide financial security requirements and provide financial security requirements for such owners or operators whose responsibility it is to recompense others for injury to person or property caused by the operation of a vehicle. Garcia, et al., v. Vanguard Car Rental USA, Inc., 510 F. Supp. 2d 821, 828 (Fla. M.D. 2007) citing Fla. Stat. s. 324.011 (The Kumarsingh opinion cited Garcia.)
As the Garcia Court pointed out, in return for the privilege of operating a motor vehicle in Florida, Chapter 324 requires the operators of motor vehicles in Florida to establish their financial responsibility by “proof of ability to respond in damages for liability on account of crashes arising out of the use of a motor vehicle in the amount of $10,000.00 per person, $20,000.00 per accident for bodily injury and $10,000.00 for property damage per accident.” Fla. Stat. s. 324.021(7).
Section 324.021(9)(b)(2) of Florida’s Financial Responsibility Chapter pertains specifically to the liability of owners/lessors of cars where the motor vehicle lease was for a short term lease (less than 1 year). Under the statute, short term lessors were vicariously liable up to “$100,000 per person and up to $300,000 total for bodily injury and up to $50,000. The short term lessor could also be held liability for up to an additional $500,000 in economic damages if the lessee or the operator of the vehicle was uninsured or had insurance with limits less than $500,000.
See also Garcia at 829.
The Graves Amendment, which became effective on August 10, 2005, has effectively abrogated Florida’s Financial Liability laws as they applied to car rental companies under Section 324.021(9)(b) by providing that “a lessor of a motor vehicle shall not be liable under the law of any state by any reason of being the owner, for harm that arises out of the use of the vehicle during the lease period if the owner is engaged in the trade of renting vehicles and there is no owner negligence or criminal wrong-doing on the owner’s part.”
]]> The Graves Amendment, does not, however, supercede any state law that imposes minimum financial responsibility on the owner of a rental car company for the privilege of “owning and operating a motor vehicle or that imposes liability on entities engaged in renting motor vehicles for failure to meet insurance standards.” Kumarsingh at 600. Indeed the trial court in Kumarsingh had found that the defendants were liable up to the limits of the statutory limits of $10,000.00 as provided for in Florida Statute 324.021(7). Kumarsingh at 600.Plaintiffs have tried to get around the limitations of the Graves Amendment by arguing that the Graves Amendment is unconstitutional. See, e.g., Garcia at 833. "The Graves Act was enacted pursuant to Congress’ power under the Commerce Clause of the U.S. Constitution to “ 'regulate for economic or social purposes, the passage of interstate commerce of either people or goods.' ” Garcia at 834. The Garcia Court held that the “Graves Amendment is a permissible exercise of Congress’ Commerce Clause powers.” Garcia at 837. The Garcia decision was affirmed by the 11th Circuit Court of Appeals in Garcia v. Vanguard Car Rental, USA, Inc., 540 F.3d 1242 (11th Cir. 2008).
Plaintiffs who have tried to avoid the claim-preclusion impact of the Graves Amendment by arguing that the car rental company was negligent have also been unsuccessful in circumventing the reach of the Graves Amendment. For example, in Sigaran v. ELRAC, a 2008 New York case, the plaintiffs alleged that the rental vehicle company had negligently entrusted the rental vehicle to the lessee by failing to check his driving history. The Court held that the rental car company has no further obligation than to verify that the renter has a valid driver’s license in order to qualify for the protections of the Graves Amendment. 2008 NY Slip Op. 52569(U) (Sup. St. Bronx Co., decided December 23, 2008).
To date, all of Florida’s intermediate appellate state courts that have addressed the issues raised in Garcia have reached the same conclusion as the Garcia Court. Besides Kumarsingh and Blanks (both Fla. 3d DCA cases), see, e.g., St. Orange v. White, 988 So. 2d 59 (Fla. 1st DCA 2008); Vargas v. Enterprise Leasing Co., 993 So. 2d 614 (Fla 4th DCA 2008); and Karling v. Budget Rent A Car System, 2 So. 3d 354 (Fla 5th DCA 2008).
The recent, succinct opinion by the Third DCA in Blanks should certainly drive home the point that the Graves Amendment is here to stay. Moreover, other court decisions also suggest that the exceptions provided in the Graves Amendment will be of little use in establishing the vicarious liability of vehicle rental companies absent clearly negligent conduct by rental car owners (for example, for failing to verify that the renter has a valid driver's license).
So what is an injured person(s) to do if the at-fault driver of a rental vehicle does not have automobile insurance? The injured person should still put the vehicle rental company on notice because the car rental companies may still have some degree of “damages” responsibilities under Florida Statute 324.021(7) if the renter was the at-fault driver. Also, the injured person will hopefully have uninsured (UM)/under-insured (UIM) motorists coverage through his/her own insurance company as we have discussed in a previous blog. Should you be injured because of the negligence of the driver of a rental car, you may wish to consult a personal injury attorney to discuss your rights in light of the Graves Amendment.
Disclaimer: The foregoing is not legal advice, nor should you consider it as such. You should consult with an attorney of your choosing before taking an actions which have legal actions.
“[M]edical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, incuding, but not limited to, those incidents that are required by state or federal law to be reported to any government agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee of representative of any such committees. See Article X, Section 25(c), Fla. Const.
Perhaps not surprisingly, requests for the release of medical incident reports pursuant to the requirements of Amendment have been met with resistance. Medical providers have engaged in lengthy and costly litigation over the scope and applicability of the amendment to no avail. See e.g., Florida Eye Clinic, P.A. v. Gmach, (5th DCA, May 29, 2009); and Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). Arguments used by the defendants in such cases have ranged from “protected attorney work product” arguments to “federal law preemption” arguments.
Recently even the constitutionality of Amendment 7 was challenged in Columbia Hospital Corporation of S. Broward v. Fain, (Fla. 4th DCA, August 19, 2009). In Fain, William Fain, while a patient at a hospital operated by Columbia, died as the result of a fall from his hospital bed. His estate sued Columbia for medical negligence. As part of its discovery request, the estate had requested incident reports for Fain’s fall and all adverse medical incident reports involving falls of patients under “fall precautions” within the past five years. Columbia objected to the request on a number of grounds based on Florida’s Amendment 7, including an argument that incident reports such as the ones requested were protected work product. Columbia appealed the trial court’s order overruling many of Columbia’s objections, and Columbia appealed.
Columbia’s first argument against providing the requested incident report was based on its assertion the information was protected work product under the Florida Rules of Civil Procedure and therefore not discoverable under Amendment 7. As stated above, such arguments have been used in other Florida cases. The Fain Court noted that, “[p]rior to the passage of Amendment 7, a hospital’s incident reports have generally been considered protected as a fact work product and discoverable only upon a showing of need and undue hardship.”
The Fain Court declined to decide on the work product issue on “lack of ripeness grounds”, but did state that “[a] distinction may need to be made between fact work product and opinion work product” to provide clarity on the records discoverable under Amendment 7. The Fain Court did opine that “[i]t is not clear that a provider or healthcare facility may, after the amendment, continue to refuse to provide an adverse medical incident report based on a fact work product.”
Columbia further argued that the “estate’s discovery requests are irrelevant, overbroad, and unduly burdensome.” The Fain Court noted that other decisions of Florida’s courts have held that the Amendment’s scope is very broad. For example, in Morton Plant Hospital Ass’n v. Shahbas ex rel. , 960 So. 2d 820, 825 (Fla. 2d DCA 2007) the Court held that “burdensome is not a relevant consideration under Amendment 7.” The Shabas Court further stated held that “Amendment 7 contains no requirement that information sought by a patient be relevant to any pending medical malpractice action or medical care decision.” Fain Court citing Shahbas at 825.
Also in 2008, the Florida Supreme Court found that Amendment 7 applied retroactively to materials prepared before its passage and that attempts by the Florida legislature to limit requests under Amendment 7 to facilities or providers where the party seeking the information was physically a “patient” receiving treatment were unconstitutional. Fain, citing Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478, 493 (Fla. 2008).
As the Fain Court noted, “[t]he purpose of Amendment 7 was to lift the shroud of secrecy from records of adverse medical incidents and to make them widely available." In finding that the estate’s discovery request was not irrelevant, overbroad, and burdensome, the court went on to state:
A request for Amendment 7 materials is not an ordinary discovery request which can be subjected to overbreadth, irrelevance, or burdensome objections. Pursuant to the amendment, a “patient” has the absolute right to discover records relating to an adverse medical incident and that right is not conditioned on the discovery being relevant to a pending claim. A litigant in a medical malpractice case clearly qualifies as a “patient” under the amendment and is entitled to discover the information. It is illogical to conclude that the estate could discover information regarding adverse medical incidents out the context of this litigation but cannot discover the same information as part of its discovery in this case.
Columbia also argued that the estate’s request should be limited to those incidents which must be reported by law under Florida Statute 395.0197. The Fain Court again recognized the broadness of Amendment 7 by stating that “[t]he amendment provides that it is “not limited to” incidents that already must reported under law.” Fain Court citing Article X, section 25(c)(3).
]]> Columbia also went on to challenge the constitutionality of Amendment 7 itself on Federal Preemption Grounds under the Health Care Quality Improvement Act of 1986 and Impairment of Contracts grounds. The Fain Court found both arguments unpersuasive.Regarding the Federal Pre-emption argument, Columbia invoked the doctrine of implied conflict preemption to argue that the Federal Healthcare Improvement Act of 1986 (HCQIA) preempts Amendment 7 stands as obstacle to the accomplishment and execution of the full purposes and objectives of the HCQIA. The Fain Court noted that the HCQIA was passed to promote effective professional peer review to help stem the tide of increasing medical malpractice. The HCQIA was passed to promote effective peer review and also to prevent “the problem of incompetent doctors moving from one state to another.” The act also strives to encourage effective peer review by “bodies and those providing information in such proceedings from damages in a civil suit immunizing peer review bodies and those providing information in such proceedings from damages in a civil suit.”
See Fain citing 42 U.S.C. s. 11111.
The HCQIA also “provides for limited confidentiality of certain reports which must be submitted for inclusion in a national database.” Fain quoting 42 U.S.C. 11137 (b)(1).
Columbia attempted to use this particular provision of the HCQIA to argue that the type of information sought by the Plaintiff was confidential under the HCQIA. Or put another way, Amendment 7’s requirement for the release of adverse medical incident reports, was inconsistent with the HCQIA’s confidentiality requirements and thus violated the Supremacy Clause of the U.S. Constitution. Columbia further argued that Amendment 7 eliminates effective peer review by removing the discovery protections to those involved in the peer review.
Columbia’s circuitous argument can be summarized as follows. Without confidentiality protections afforded under the HCQIA, effective peer review cannot occur because those involved will be “afraid” to be involved in the peer review and will not offer concrete opinions and/or ideas on how to resolve a situation. Therefore the HCQIA’s confidentiality requirements, when read together with the HCQIA’s underlying intent to promote effective peer review, “trump” or pre-empt Amendment 7’s requirements for the release of adverse medical reports.
The Fain Court rightly discounted Columbia’s federal-preemption argument by pointing out that “[n]othing in the HCQIA, however, preempts a state from removing confidentiality or discovery protections that are not required by the federal act.” The Court also emphasized that both Florida Statute s. 766.101 and the HCQIA continue to provide immunity from liability for statements or opinions in peer review proceedings.
Finally, Columbia also argued that Amendment 7 violates the “Impairment of Contracts” Clause of the U.S. Constitution. This Clause prohibits “the states from passing any law that impairs “the Obligation of Contracts.” Columbia asserted that doctors who are in a contractual relationship with Columbia “have vested contractual rights to confidentiality which cannot be taken away by constitutional amendment.”
The test to establish a violation of “Contracts” provision of the U.S. constitution is “substantial impairment. The Fain Court held that “the impairment [of Columbia’s contracts with doctors] is not severe, and we conclude the at public’s interest in providing for broad discoverability of adverse medical incident reports easily meets the constitutional hurdle.”
What does the Fain decision mean for the medical malpractice litigant? That Amendment 7 should be construed very broadly by Florida courts in terms of: 1) who can discover records relating to adverse medical incidents; and 2) that a “lack of relevance” argument by the medical provider should have no consequence. The “verdict” is still out, however, over whether "work product" information is fully discoverable under Amendment 7. Indeed, the Fain Court stated, "a distinction may need to be drawn by the courts between fact work product and opinion-related work product." Until then, medical providers involved in litigation will most likely continue to argue that medical incident reports such as the ones at issue in Fain, constitute work product and should not be discoverable. At the very least, we contend that documentation generated in-house which provides information on an adverse incident (e.g., a fall) and is required to be completed as part of the medical provider’s routine business practices constitutes fact work product and is clearly the type of “discoverable” information covered by Amendment 7. Any other conclusion would defeat the purpose behind Amendment 7.
Clearly the estate in Fain was attempting to obtain the incident report information to determine Columbia’s “patient fall” history to establish a pattern of on-going “negligent” practices. Indeed one would like to believe all hospitals have procedures in place for: 1) identifying patients particularly susceptible to falls; 2) implementing procedures for preventing such falls and providing training to the staff; 3) timely documenting incidents involving a patient fall; 4) utilizing formal procedures for determining if the procedures in place were reasonably sufficient for preventing the particular patient’s fall, and if not, what procedures should be modified or added to prevent a recurrent. These suggested procedures are basic quality control procedures, which we have discussed in nursing home blogs. Hind site may be 20:20, but it's of little comfort to those who were injured as the result of medical negligence.
In medical negligence cases, the “product” is the patient, and patients should certainly warrant treatment under quality control and quality assurance practices. Obviously, despite the most reasonable and caring medical treatment and care, many patients will simply not get better. But for the cases in which you or a loved one believe that you or your loved was harmed by medical negligence, you may wish to seek legal advice to discuss your options.
In Diaz-Hernandez, the Insured filed a lawsuit against State Farm, seeking to recover UM benefits for injuries sustained in an automobile collision with an uninsured motorist. The complaint did not name the uninsured motorist as the second defendant. State Farm attempted to “get out” of the law suit by arguing that the lawsuit should be dismissed because Diaz failed to name both State Farm and the uninsured motorist as joint defendants. The trial court granted State Farm’s motion to dismiss with prejudice and Diaz-Hernandez appealed, arguing that the provision in the UM policy, which required him to join the uninsured motorist in his claim against State Farm, is against the public policy of Florida’s Uninsured Motorists (UM) statute.
The Diaz-Hernandez Appellate Court noted that State Farm’s policy added “an additional burden upon the Insured by requiring the Insured to join the uninsured motorist in the Insured’s contractual action against State Farm for UM coverage.” In reaching its decision, the Diaz-Hernandez Court relied on the Florida Supreme Court’s holding in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229, 233-34, 238 (Fla. 1971) which stated in part:
The public policy of the uninsured motorist statute . . . is to provide uniform and specific insurance benefits to members of the public to cover damages for bodily injury caused by the negligence of insolvent or uninsured motorists and such statutorily fixed and prescribed protection is not reducible by insurers’ policy exclusions and exceptions. . . .
. . . .
[The uninsured motorist statute] was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist; it is not to be “whittled away” by exclusions and exceptions.
The Diaz-Hernandez Court agreed with the Insured and stated that the “additional burden [Statefarm’s policy provision] places upon the Insured violates the clear policy articulated in Armstrong v. Allstate Ins. Co., 712 So. 2d 788 (Fla. 2d DCA 1998), that the purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist.” The policy provision at issue was found to be void because it violated public policy.
It has been our observation that many drivers in Florida do not have UM/UIM coverage through their automobile insurance companies. In fact, we have also observed that many individuals are not even aware that such coverage is available nor do not understand the purpose of UM/UIM coverage, most likely because the motor vehicle insurance companies do not generally “push” this type of coverage. Such individuals sign the rejection form discussed above and that’s the “end of it” as far as uninsured motorists coverage is concerned.
Florida is also a state where thousands of drivers do not carry bodily insurance coverage or they carry the minimum coverage required, generally $10,000.00 per individual or $20,000.00 per accident. UM/UIM coverage provides an additional way for drivers to obtain benefits should they have the misfortune to be in an accident involving an uninsured or underinsured motorist.
It must be emphasized, however, that just because the Insured has UM/UIM coverage under his/her automobile policy does not mean that the Insurance Company is going to write a “blank check” to the Insured for asserted UM/UIM benefits. In fact, where an insured seeks to recover UM/UIM motorist benefits from its insurance carrier, the UM/UIM insurance carrier and its Insured are adversaries. As the Diaz-Hernandez Court stated, “in a UM claim the insured must prove that she is legally entitled to recover from the owner or operator of the uninsured or underinsured vehicle. Just as she would in a suit against the tortfeasor, the insured bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident.” Diaz-Hernandez quoting USAA Cas. Ins. Co. v. Shelton, 932 So. 2d, 605, 608 (Fla. 2d DCA 2006).
If you are injured in an automobile accident, we would recommend that you consult with an attorney of your choosing to determine your rights in seeking benefits through the other driver’s bodily liability insurance, providing that other driver has such insurance, and/or through your own UM/UIM insurance, should you have such insurance.
In Wyeth v. Levine, 555 U.S. (2009) (complete citation not available as of the date of this post; citations are for Slip Opinion), the Plaintiff, a professional musician, lost her hand to gangrene when she was administered Phenergan, an FDA-approved drug manufactured by Wyeth Pharmaceuticals for treating the nausea which often accompanies severe migraine headaches. During her first visit to the clinic, Phenergan was administered by an intra-muscular injection. The Plaintiff returned later in the day, but this time the drug was administered by an “IV-push” intravenous injection by the attending physician’s assistant. Unfortunately for the Plaintiff, the “second” injection procedure caused the drug to come into contact with arterial blood, resulting in the onset of gangrene and eventually the amputation of her hand and forearm.
The Plaintiff sued Wyeth in Vermont State Court on grounds of negligence for failure to provide an adequate warning concerning the potential danger of an “IV-push” procedure for administering the drug and product liability. A Vermont jury agreed and found Wyeth liable on grounds of negligence and product liability, and awarded Ms. Levine over $6,000,000.00 in damages.
Wyeth appealed the verdict to Vermont’s Supreme Court arguing that the drug’s label, which had been approved by the FDA, was in compliance with federal laws and regulations which govern drug safety and labeling requirements. Hence, the FDA’s regulatory requirements for prescription drug labels should pre-empt Vermont’s tort law which were in conflict with the FDA’s requirements. The Vermont Supreme Court affirmed the verdict and rejected Wyeth’s position. Wyeth appealed the decision to the U.S. Supreme Court.
The issue before the U.S. Supreme Court was whether Phenergan’s FDA- approved warning label "preempt state law product liability claims premised on the theory that different labeling judgments were neessary to make drugs reasonably safe for use." Slip Op. at 6. According to the U.S. Supreme Court, the answer is no. The Court, in a 6 to 3 decision, to the surprise of many observers, has affirmed the Vermont Supreme Court by holding that Vermont’s tort law was not pre-empted by the FDA’s labeling requirements for Phenergan.
Justice Stevens delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring in separate opinions.
To better understand the US Supreme Court’s “pre-emption discussion,” some background on the pre-emption doctrine may be helpful. Generally pre-emption can be broken down into three distinct types: Conflict Pre-emption, Field Pre-emption, and Implied Pre-emption. The Wyeth decision focused on Conflict Pre-emption. Under case law developed for Conflict Preemption, federal law generally will trump state law under the following two circumstances:
1. A conflict between federal and state law makes it physically impossible to comply with both federal and state standards. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).
2. A state law may conflict with federal law by creating an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
Wyeth argued that FDA labeling requirements preempted or “trumped” Vermont’s tort laws on the basis of both types of Conflict Preemption as follows:
1. It is impossible for Wyeth to comply with both the state-law duties and federal-labeling regulations, since the latter forbids it from changing its label without FDA approval. See Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982). Slip Op. at 6.
2. Permitting states to require stronger warnings creates an unacceptable “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), because it substitutes a lay jury’s decision about drug labeling for the expert judgment that Congress sought to entrust with drug labeling decisions when it created the FDA. Slip Op. at 6-7.
The majority’s analysis of the pre-emption issue begins by stating that “[o]ur answer to that question must be guided by two cornerstones of our pre-emption jurisprudence. “ ‘First, the purpose of Congress is the ultimate touchstone in every pre-emption case.’ ” Slip Op. at 8. citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal quotation marks omitted).
" Second, “ ‘[i]n all pre-emption cases, and particularly in those in which Congress has "legislated. . .in a field which the States have traditionally occupied, . . . we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ " Lohr, 518 U.S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218 230 (1947)" Slip Op. at 8.
In reaching its conclusion that Wyeth’s two-pronged preemption argument must fail, the High Court first reviewed the history behind Congress’ establishment of the Food and Drug Administration in 1906 to the gradual expansion of the FDA’s power to ensure the safety and efficacy of prescription drugs in 1962. Since 1962, any prescription drug sold in the US must be pre-approved by the FDA before it can actually be sold in this country. Pre-market approval involves the submission of considerable safety and efficacy data to the FDA for evaluation. Clinical trials, performed according to defined clinical trial protocols are required and the results become part of the FDA “new drug” evaluation package. Slip Op. at 9-10.
Regarding Wyeth’s first pre-emption argument, the majority emphasized that re-labeling the drug to conform to Vermont law would not necessarily have violated federal labeling regulations.
Although a manufacturer generally needs FDA approval before changing a drug label, the agency's “changes being effected” (CBE) regulation permits certain unilateral labeling changes that improve drug safety without waiting for FDA approval. Such changes may include warnings that “add or strength an instruction about dosage and administration that is intended to increase the safe use of the drug product.” Slip Op. at 11 quoting the CBE regulation §§ 314.70(c)(6)(iii)(A), (C). Any such “CBE” changes must be accompanied by a supplemental application to the FDA which retains its authority to review all supplemental applications. Slip Op. at 11.
Regarding Wyeth’s second pre-emption argument, the High Court found that Wyeth was incorrect that permitting states to require stronger warnings would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions, because it was not Congress's intent, in writing the Food, Drug, and Cosmetic Act, to preempt state-law failure to warn actions. Slip Op. at 17. The High Court opined that Congress never intended the FDCA Food, Drug, and Cosmetics Act to pre-empt state law failure-to-warn actions. “Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in an subsequent amendment. Evidently it determined that widely available state rights of action provided appropriate relief for injured consumers.” Slip Op. at 17.
The High Court also discussed the concept of preemption on the basis of the preamble to the FDA’s 2006 regulations which stated “state-law-failure-to-warn claims threaten the FDA’s statutorily prescribed role.” Wyeth argued that this preamble preempted state law. The Court discounted Wyeth’s assertion based on its holding in Skidmore v. Swift & Co., 323 U.S. 134 where the court held that where Congress has not authorized a federal agency to pre-empt state law directly, “[t]he weight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness.” Slip Op. at 20.
Relying on Skidmore, the High Court stated that the “FDA’s 2006 preamble does not merit deference.” Slip Op. at 20. The majority opined that the preamble is inherently suspect in light of the FDA’s failure to offer States or other interested parties notice or opportunity for comment on the pre-emption question. Moreover, it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation. Slip Op. at 21.
Justice Stevens went on to carefully distinguish Geier v. American Honda Motor Co., 529 U. S. 861, the case relied on Justice Alito in the minority’s dissenting opinion, which concerned the federal agency, the department of transportation. Slip Op. at 20.
The High Court further emphasized that had Congress wished to terminate state tort claims in matters involving prescription drugs it would have done so. Noting the express pre-emption language used by Congress concerning medical devices where Congress had enacted an express or direct preemption provision for medical devices in 1976, the majority concluded that Congress’ “silence on the issue [of prescription drugs], coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence” that Congress did not intend for the FDA to be exclusively responsible for ensuring drug effectiveness and safety." Slip Op. at 18.
As an aside, medical devices include products ranging from clinical assay instrumentation and reagents to sophisticated instrumentation such as MRI (magnetic resonance instrumentation) and are regulated by the FDA. As with drugs, medical devices must be pre-approved by the FDA prior to being placed on the market, and clinical trials are generally required.
The Wyeth decision clearly emphasizes that drug manufacturers are responsible for ensuring that warning labels are up-to-date, accurate and complete. That burden has always legally existed. The FDA, as a regulatory agency, relies on the information provided to it by the very companies it regulates first to approve a new product, and then to ensure the continuing safety and efficacy of the products it regulates. If a drug manufacturer becomes aware of a complication or side effect that threatens the safety of users, it has the obligation to monitor the situation and inform the FDA.
Although drugs sold with non-FDA approved labels are illegal, the CBE regulation provides a mechanism for the drug manufacturer to effect a labeling change to protect the public while the supplemental application containing the “heightened” warnings undergoes FDA review. It would certainly seem that proactive steps to address a safety and/or efficacy problem in the field would be viewed favorably by the FDA and be consistent with Congress’ intent that the drug manufacturer is ultimately responsible for ensuring the safety and efficacy of its drugs. As the High Court stated, “[a]nd the very idea that the FDA would bring an enforcement action against a manufacturer for strengthening a warning pursuant to the CBE regulation is difficult to accept – neither Wyeth nor the United States has identified a care in which the FDA has done so.” Slip Op. at 14.
As support for its rationale, the majority also cited several reports by the “experts” which state inter alia that “[t]he FDA lacks the resources for post marketing drug safety work are inadequate and that resource limitations have hobbled the agency’s ability to improve and expand this essential component of its mission.” Slip Op. at 22 This “economic” reality was also indirectly used by the High Court to drive home the point that the FDA regulations, as they apply to prescription drugs, do not pre-empt common law tort suits in state court. Slip Op. at 22. “Failure-to-warn [state court] actions, in particular, lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge. State tort suits . . . provide incentive for drug manufacturers to disclose safety risks promptly.” Slip Op. at 22-23.
In light of Wyeth, drug companies should take proactive steps to reduce the possibility of lawsuits in state court where the state law requirements may require “something more” to protect consumers than the labeling previously approved by the FDA. As the Wyeth Court stated, drug companies can take advantage of the “changes being effected” (CBE) regulation which permits certain unilateral labeling changes that improve drug safety. In the Wyeth case, the potential ramifications to the patient receiving Phenergan through the IV-push method were severe. Had Wyeth used the relatively “cost-effective” CBE regulation to address this issue, the revised “heightened warning” label most likely would have been found to meet the requirements of Vermont State Law and been approved by the FDA down the road. Wyeth would have been off the hook, including being off the hook for hefty legal bills.
We hope that this blog has been informative. In a nutshell, the Wyeth case holding emphasizes that prescription drug manufacturers have the ultimate responsibility for ensuring the safety and effiicacy of their products. We would recommend that if you and/or a loved one have reason to believe that you have experienced complications related to a drug prescription, that you discuss your concerns with your doctor and also visit the FDA’s website to determine if any information is available for that drug concerning reported adverse effects. You may also wish to consult with an attorney about your potential legal rights.
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We would recommend that those readers who may be unfamiliar with maritime law jurisprudence review the following blogs for background information on the Jones Act, and the Doctrines of Unseaworthiness and Maintenance and Cure.
As of date of this blog, only the Slip Opinion as been published. This blog will be updated in the future with actual citation page references once the complete citation becomes available.
In Atlantic Sounding Co., Inc. v. Townsend, the owner of a tugboat advised a crewman injured aboard the tugboat, that it would not provide maintenance and cure. See 496 F. 3d 1282 (CA11 2007). The tugboat owner subsequently filed an action for declaratory relief regarding their obligations with respect to maintenance and cure. The injured seaman then filed his own lawsuit against the vessel owner under the federal Jones Act alleging negligence and unseaworthiness, and arbitrary and willful failure to pay maintenance and cure, and wrongful termination. The Plaintiff also had filed similar counterclaims against the vessel owner in the declaratory action judgment, seeking punitive damages for the denial of maintenance and cure. Id. at 1283-1284
The vessel owner in Atlantic Sounding moved to dismiss the injured seaman’s punitive damages claim. The 11th Circuit of Appeals affirmed the district court’s ruling that punitive damages were available in an action for maintenance and cure under the U.S. Supreme Court’s decision in Hines v. J.A. Laporte, Inc., 820 F. 2d 1187, 1189 (CA 11 1987). Atlantic Sounding, Slip Op. at 1284.
Due to a conflict among the circuits concerning the availability of punitive damages under maintenance and cure actions, the U.S. Supreme Court granted certiorari. In a 5 to 4 decision issued on June 25, 2009, the Court held that injured seaman may recover punitive damages for his employer’s willful failure to pay maintenance and cure. Atlantic Sounding Co., et al. v. Townsend, 557 U.S. 2009, Slip Op. at 1. Justice Clarence Thomas delivered the opinion of the Court.
The majority opinion first noted that “[p]unitive damage awards have long been an available remedy at common law for wanton, willful, or outrageous conduct” to establish that punitive damages are “nothing new” in American Jurisprudence. Punitive damages are intended to compensate the injured or damaged party above and beyond compensatory damages for particularly egregious conduct on the part of the defendant.
Justice Thomas’ opinion included a review of the long history behind the development of maritime common law jurisprudence during the 1800s and pointed out that in 1893, the High Court in Lake Shore & Michigan, Southern R. Co. v. Prentice, 147 U.S. 101, 108 (1893) had held that “[t]he general rule that punitive damages were available at common law extended to claims arising under federal maritime law.” Atlantic Sounding, Slip Op. at 5.
]]> The High Court went on to cite several cases which had upheld an award of punitive or exemplary damages for failure of the vessel owner to pay maintenance and cure “where the nature of the case required it,” prior to the enactment of the Jones Act of 1920. Atlantic Sounding Co., Slip Op. at 5-6.
The Atlantic Sounding defendants had argued that punitive damages in maintenance and cure actions are not warranted because the enactment of the Jones Act precluded an award of punitive damages, based on the following wording contained in the Jones Act:
“A seaman injured in the court of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States, regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” Jones Act, 46 U.S.C. § 30104(a) (incorporating the Federal Employers’ Liability Act [FELA], 45, U.S.C. §§ 41-60).
Slip Op. at 10. According to the Atlantic Sounding defendants, the Jones Act precluded recovery of punitive damages because the FELA does not itself provide for the recovery of punitive damages in personal injuries brought under the FELA. They further argued that the Jones Act provided the only remedy for maintenance and cure claims. Slip Op. at 17.
The High Court disagreed by first noting that the Jones Act is not the seaman’s exclusive remedy to seek compensation for injuries sustained in the course of his job based on the very wording of the Act. “Section 30104 [the Jones Act] bestows upon the injured seaman the right to “elect” to bring a Jones Act claim, thereby indicating a choice of actions for seamen, not an exclusive remedy.” Atlantic Sounding, Slip Op. at 17. Because the Congress was aware that the then-accepted remedies for injured seamen arose from general maritime law and not statutory law, the High Court reasoned, “ Slip Op. at 10. Interestingly, the Jones Act was passed by Congress to overrule the U.S. Supreme Court decision in The Osceolo, 189 U.S. 158, 175 (1903), where the Court had prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negligence.
Justice Thomas’ noted that a claim for the “negligent denial of maintenance and cure may also be subject of a Jones Act Claim.” Slip Op. at 17. Or put another way, maintenance and cure claims that involve personal injury can be asserted under the Jones Act. This does not mean, however, that maintenance and cure actions have to be brought exclusively under the Jones Act. As provided in Cores v. Baltimore Insular Line, Inc., 287 U.S. 367, 374-375 (1932), a seaman has the “right to choose among overlapping statutory and common-law remedies for injuries sustained by the denial of maintenance and cure.” Atlantic Sounding, Slip Op. at 17.
Because a seaman has the right to bring a “willful and wanton” maintenance and cure action separate and apart from any claims under the Jones Act for injuries resulting from the employer’s own negligence, the High Court held that punitive damages are awardable for non-Jones Act maintenance and cure actions. Why? “Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law.” Slip Op. at 19.
What exactly does Atlantic Sounding decision mean for the injured seaman? In a nutshell, the decision reiterates that remedies under the Jones Act and the unseaworthiness remedies are additional to maintenance and cure; the seaman may have maintenance and cure and also one of the other two. Slip Op. at 18. Furthermore, a seaman’s action for maintenance and cure is “independent” and “cumulative” from other claims such as negligence and that the maintenance and cure right as “in no sense inconsistent with, or an alternative of, the right to recover compensatory damages [under the Jones Act]”. Atlantic Sounding quoting Peterson, 278 U.S. 138, 139.
What does the holding in Atlantic Sounding mean for the injured seaman who has a valid claim for the wanton and willful disregard of maintenance and cure payments? That the damages awarded to the injured seaman may well include an award of punitive damages in addition to compensatory damages.
In closing, we would emphasize that the Atlantic Sounding Court included in its discussion of a rather famous statement in maritime law made by Justice Story in 1832: “If some provision be not made for [seaman] in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment . . .[T]he merchant himself derives an ultimate benefit because it encourages seamen to engage in perilous voyages with more promptitude and at lower wages.” Slip Op. at 7.
Though overall vessel living conditions may have improved considerably since 1832, the fact remains that the very nature of many seamen’s jobs exposes them to daily dangers. Under the Maintenance and Cure doctrine, which was in effect long before the enactment of the Jones Act, an injured seaman is entitled to financial compensation for covering reasonable living and medical expenses.
As discussed in our previous blogs, the area of Maritime law is complex. It is recommended that any seaman who has been injured in the course of his or her duties consult with an attorney of his/her choosing to discuss his options and legal rights, including the legal right to be rewarded punitive damages, where appropriate, under the High Court’s opinion in Atlantic Sounding, 557 U.S. 2009.
One systematic problem in Florida and throughout the country is failure to staff the nursing home facility with a sufficient number of employees willing and capable of dealing with problems of the aged. In a previous blog, we emphasized that the adoption of clearly-defined quality assurance measures could help address this problem, and one such measure involves the on-going training of employees.
Residents of nursing homes often arrive with specific physical ailments and often in the course of their stay, their ailments may worsen or other physical ailments may arise. We would emphasize that even the best nursing homes cannot be expected to totally prevent their residents from getting sick, acquiring new ailments, or undergoing worsening of their pre-existing ailments. After all, the nursing home population is comprised of individuals who, for the most part, are there because of poor health, either physical, mental, or a combination of the two.
Nevertheless, nursing home staff members should have the capability of at least identifying situations where follow-up medical intervention should be recommended and promptly rendered.
In a 2007 New Mexico case, a nursing home resident died of a gastrointestinal hemorrhage. Gastrointestinal hemorrhages usually do not occur out of the blue. They are preceded by worsening gastrointestinal problems. In the New Mexico case, the unfortunate victim’s estate successfully sued the facility on the following grounds:
1) Failure to properly assess her condition;
2) Failure to provide qualified employees to care for her.
Keith v. Manorcare, Inc., N.M. Bernadillo Co. Jud. Dist., No. CV2005-08066, June 2, 2007.
These situations are cited not just to heap criticism on nursing homes. Caring for sick, frail elderly people is a difficult endeavor, particularly where the elderly person may also be suffering from dementia and/or Alzheimers. Yet, as we all know, our elderly population is vulnerable to negligence and abuse because so often they are unable to speak up on their own behalf. Or they are afraid to render criticism in surroundings where they are, for all practical purposes, confined until when and if their legal representative “checks them out” so to speak. Therefore they must rely on their loved ones to look out for their own best interests.
The decision to put a loved one in a nursing home is a difficult one and can be emotionally draining. It is our hope that the readers of this and our other blogs have received useful information on how to select a nursing home. As stated in a previous blog, a good place to start is the website provided by Medicare which provides rankings of nursing homes throughout the country. We would also recommend that you try and speak with the family members of other residents to get their “take” on the care rendered to residents.
Once you have chosen the facility after a careful investigation, try to make surprise visits to the facility as often as possible. Ask questions and get to know the staff on a first name basis. Try and visit during mealtimes to see if your loved is being provided with proper food for his/her physical condition. For example, many elderly people have swallowing problems and require a diet consisting of soft, even pureed, food. Periodically request a list of the medications the resident is supposedly receiving. Document any concerns and bring them to the immediate attention of a supervisor. And don't ignore your intuition. If something doesn't "smell" right, it probably isn't.
For those family members who do not live in the geographical area where their loved one’s nursing home is located, we would suggest that they arrange for a friend to make these visits, or perhaps even hire an advocate to make periodic visits and report back to them.
Of course, the above “watchdog” suggestions may not be particularly feasible given the circumstances. Sometimes the elderly resident’s own family members have their own health issues, especially where there is an elderly spouse, which prevent the family members from making frequent visits. Economic issues may prevent the loved one from being placed in a “top” private-care nursing home facility where the staff members often receive better training and supervision.
Of course another option involves legal action where family members have the option of initiating legal action on behalf of their loved one to recover damages for the loved one’s pain and suffering. Alternatively, if the loved one dies as a consequence of nursing home negligence and/or abuse, the personal representative of the decedent’s estate may initiate legal action on behalf of the loved one’s estate.
Nevertheless, we hope that the information presented in this and our other blogs will give our readers some ideas in how to proactively “manage” the care of loved ones confined to nursing homes where reasonably possible under the circumstances to avert a life-endangering situation. As nursing home negligence attorneys, we believe first and foremost that "an ounce of prevention can be worth a pound of cure" when it comes to trying to protect the health and safety of our vulnerable senior citizens.
]]>In a previous blog, we distinguished the four stages of bedsores. Quite frequently bedsores arising from relatively short hospital stays due to inadequate nursing attention are highly treatable Stage I or Stage II bedsores. We would encourage the patient’s family members and friends to be on the lookout for possible bedsores. Suspected bedsores should be immediately reported to the nursing staff and the family members should follow up to ensure the proper wound care procedures have been initiated. Remember that the earlier a bedsore is caught, the more easily it can be treated. Once a bedsore progresses to a Stage 3 or Stage 4 bedsore, the prognosis becomes substantially worse.
If the patient is to be transferred from the hospital directly to his or her home or a family member’s home, the patient and/or the patient’s family members should carefully check the patient’s body for bedsores at the time of the patient’s release and take photographs if any suspect bedsores are found. If suspect bedsores are found, the patient should be seen by a doctor. The doctor will likely make a referral to a wound care specialist.
]]> Many times, patients are released from a hospital to the rehabilitation departments of nursing homes, or back to the nursing home where they had been living prior to their hospitalization. One would hope that the patient would be checked for bedsores at the time of admission to or return to the nursing home by nursing home staff and that any found bedsores would be carefully documented.Why? If bedsores are found, the nursing home has the obligation to take appropriate steps for commencing wound care treatment under a doctor’s care. Alternatively, if the patient was already receiving wound care treatment, the nursing home facility has the obligation to ensure that the patient continues receiving that treatment, as prescribed by a doctor.
Without proper nursing home administration of bedsore treatment, “still minor” bedsores originating at a hospital may worsen into extremely serious Stage 3 or Stage 4 bedsores. For those cases where the bedsores actually originate at a hospital and then worsened while the patient was at the nursing home facility, both the nursing home and the hospital could be liable for the patient’s pain and suffering.
Nursing homes are often underinsured or may not carry any liability insurance at all while hospitals, particularly private hospitals, have adequate financial resources. It is thus important for legal counsel to determine the initial source of the victim’s bedsores (e.g., hospitals) as well as all of the facilities where worsening of the bedsores allegedly occurred. If, due to negligent care, the bedsores originated at a hospital and worsened upon release to a rehabilitation center or nursing home which lacks insurance, the victim will at least have one viable party to sue for negligence, namely the hospital.
]]>In a recent automobile accident matter, we represented a bicyclist who was charged with a right-of-way violation at an intersection. A review of the actual Accident Report completed by the officer, who was not present at the scene of the accident, revealed numerous inconsistencies throughout the report, including the specified location of the accident. Furthermore, our investigation at the actual scene of the accident convinced us that the motorist who hit our client was more likely to have been at fault than our client. Our information was used to obtain a favorable settlement for our client for his serious injuries.
The favorable result described above does not mean that persons injured in an accident involving a motor vehicle will always be compensated for their injuries through settlement negotiations or trial, even in a comparative negligence state as Florida. What it does mean is the following: the driver in an automobile accident situation who is issued the traffic citation should consider seeking legal advice as to his/her potential rights particularly where he/she sustained serious injuries and believes that he/she was wrongly issued the citation by the reporting officer.
We would also recommend that any driver/pedestrian who is involved in an automobile accident should "insist" that the reporting officer complete a formal Accident Report. Why? Because a Drivers Exchange of Information generally does not provide any information whatsoever as to the actual details of the accident. As described above, the Accident Report may come in very handy in determining just which party was more likely to have been at-fault and/or the extent of comparative negligence, if any.
]]>We would like to emphasize that alternative dispute resolution procedures such as mediation and arbitration do have their place and can reduce the costs and time associated with prolonged litigation. A serious problem arises, however, where the arbitration agreement attempts to so “overly” protect one of the parties, that the arbitration agreement is invalid based on procedural and substantive unconscionability and/or is contrary to public policy.
Courts have frequently been called upon to determine the enforceability of arbitration agreements. In fact Florida law is very clear that courts have the obligation to determine whether a written agreement to arbitrate is valid when deciding a motion to compel arbitration. See Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005).
Many times arbitration agreements are upheld. Courts will not, however, uphold an arbitration agreement where the arbitration agreement is found to be void as contrary to public policy. Where the Contractual Agreement, which contains an “arbitration agreement” provision, also contains a severability clause, the court may also simply sever the offending arbitration agreement provision from the Contractual Agreement and find that the rest of the agreement is acceptable.
Previous blogs have addressed conduct generally associated with nursing home negligence and/or abuse. Individuals reading this blog may not realize that many nursing homes are now seeking to limit damages awarded to the injured resident for the nursing home’s negligent conduct by requiring the resident and/or his/her legal representative to sign an Arbitration Agreement in connection with admission to the facility. Yes, an admission to a nursing home, generally involves a formal contract, folks. Perhaps not surprisingly, such arbitration agreements have been “attacked” by injured nursing home residents as being void as contrary to public policy and inconsistent with the provisions for patient’s remedies under Florida’s Nursing Home Resident’s Act, also known as the Nursing Home Bill of Rights.
Many times, admissions to nursing homes occur where the resident and family members are making very difficult decisions concerning their elderly or sick family member’s quality of life. Most individuals are not signing nursing homes admissions documents such as arbitration agreements in contemplation of future personal injury litigation because they presume that their loved one will be well taken care of.
What happens if the nursing home resident is a victim of nursing home negligence and/or abuse and an arbitration agreement was signed as part of the admissions process? It all depends on whether the arbitration agreement is valid or invalid. The following discussion contrasts an invalid nursing home arbitration agreement with an acceptable nursing home arbitration agreement according to Florida law.
]]> In a 2006 nursing home negligence case, the Arbitration Agreement used by the nursing home stated that any dispute between the parties would be resolved by arbitration as provided for by the Alternative Dispute Resolution Service Rules of Procedure for Arbitration of the American Health Lawyers Association (“AHLA”). SA-PG-Ocala, LLC v. Stokes, 935 So. 2d 1242 (Fla. 4th DCA 2006). Of course, Ms. Stokes, the nursing home resident, probably had no clue whatsoever as to what rights she had under the Florida Nursing Home Resident’s Act she was signing away by signing the Arbitration Agreement as a condition for her admission to the nursing home.What she could not have possibly understood is the following arbitration rule used by the AHLA:
[T]he arbitrator may not award consequential, exemplary, incidental, punitive, or special damages against a party unless the arbitrator determines, based on the record, that there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed. Our emphasis
Stokes at 1242-1243 citing Section 6.06 of the AHLA rules.
The standard for finding negligence in a personal injury lawsuit is preponderance of the evidence, a lower standard of proof relative to the clear and convincing evidence standard. Moreover, the conduct required for establishing negligence in a personal injury lawsuit need not rise to the level of gross negligence or intentional wrongdoing.
The Arbitration Agreement used by the nursing home in the Stokes case attempted to virtually make it impossible for a nursing home patient injured through the negligence of the defendant nursing home to recover reasonable damages for his/her pain and suffering.
Indeed the Stokes court stated that “requiring clear and convincing evidence of intentional or reckless misconduct to recover certain damages would substantially impair negligence actions brought by nursing home patients and would be contrary to the Nursing Home Residents’ Act.” The Court went on to state that “[s]uch Act was enacted to protect nursing home patients. It would be against public policy to permit a nursing home to dismantle the protections afforded patients by the Legislature through the use of an arbitration agreement.” Stokes at 1243.
The nursing home in Stokes attempted to “save” the Arbitration provision by arguing that the offending provision of the AHLA rules could be severed from the arbitration agreement. The Stokes Court dismissed this argument finding that the arbitration agreement did not include a severability clause. As the court stated, “these provisions served to taint the entire agreement and rendered the arbitration agreement completely unenforceable).
It must be emphasized that the Stokes holding is based on very specific facts. That is, the provisions pertaining to the standard of proof and damage awards failed to provide other procedures for typical negligence liability cases. Nor did the arbitration agreement provide for severability. Several other Florida cases have followed the Stokes holding. See e.g., Place at Vero Beach, Inc, v. Hanson, 953 So. 2d 773, 774-775 (Fla. 4th DCA 2007); Fletcher v. Huntington Place, Ltd. Partnership, 952 So. 2d 1225, 1226-27 (Fla. 5th DCA 2007). In these later cases, the court determined that the offending provisions of the arbitration agreement were not severable and that the arbitration agreement was thus invalid.
More recent Florida case law indicates that courts may not always find that a nursing home arbitration agreement is invalid. For example, in Shotts v. Op Winter Haven, Inc., 988 So. 2d 639 (Fla. 2d DCA 2008), the Arbitration Agreement anticipated the use of AHLA procedures but then went onto specify that damages “shall be determined in accordance with the provisions of Florida law applicable to comparable civil action except for [punitive] damages.” Shotts at 644 quoting the nursing home’s arbitration provision.
The Shotts court, finding that this particular arbitration agreement was not unconscionable, noted that “[n]othing suggests that the arbitrators could not easily resolve this case using proper elements of damage under Florida law and with the appropriate burden of proof.” Id.
The Schotts arbitration agreement is distinguishable from the Stokes arbitration agreement for the following reason: it allows the arbitrator to determine negligence liability by the usual preponderance of the evidence standard and to award various types of damages in the event the nursing home is found to be liable for the resident’s injuries.
The Shotts court further held that the offensive clauses within the arbitration agreement were severable provisions. It should be noted that the Shotts court also found that the resident and her legal representative were not “rushed” into signing the agreement and could have obtained assistance from the admissions director had she had had any questions. Shotts at 641.
The take home point is that arbitration agreements will continue to be used by nursing homes to try and limit the damages arising from the facility’s negligent treatment of its residents. If an arbitration agreement is written in such a way so as to violate public policy as in the Stokes case, the court could well find that the arbitration agreement is void.
If an arbitration agreement is found to be void, the resident, or the resident’s legal representative can proceed with a negligence lawsuit in a court of law. Where the offending provision of the Arbitration Agreement can be severed from the rest of the agreement, as in the Shotts case, the resident or the resident’s legal representative will be limited to trying to secure damages in an arbitration proceeding. Many times, the award of damages in an arbitration proceeding for nursing home negligence will be substantially less relative to an award of damages for nursing home negligence by a jury.
We would recommend that the nursing home resident, or his/her legal representative, who is considering seeking damages for the resident's pain and suffering resulting from the nursing home’s negligence, consider consulting with a personal injury attorney to assess the validity of any signed arbitration agreement with the nursing home. If the arbitration agreement is valid, the nursing home resident still has the right to legal representation during the arbitration proceedings.
Disclaimer. The foregoing information is not legal advice, nor should you consider it as such. Should you be considering legal action, you should consider consulting with an attorney of your choosing.
Though bedsores get the most publicity, there are many other serious medical outcomes resulting from nursing home neglect. This blog will focus on two (2) such outcomes: 1) injuries from falls; and 2) injuries resulting from failure to monitor eating limitations of elderly residents.
I. Falls in Nursing Homes. Of the approximately three million people who spend some time in nursing homes each year, most are elderly and may have actually ended up in a nursing home in the first place because of complications resulting from a fall at home. In addition, individuals who reside in nursing homes are generally more frail because of their generally advanced age, have poor eyesight and/or hearing, and suffer from chronic conditions such as diabetes. Many nursing home residents also suffer from senility, dementia, or Alzheimer’s.
Statistics compiled from clinical studies confirm the fact that nursing homes falls are not a rare event. For example, studies conducted by LZ Rubenstein and his colleagues demonstrate that as many as 3 out of 4 nursing home residents fall each year, or put another way, about two times as many nursing home residents fall each year as compared to adults living in the community. Other studies have shown that while 5% of adults 65 and older live in nursing homes, nursing home residents account for about 20% of deaths from falls in this age group. See Ref. 1.
Of course, as with any statistical results, the results must be viewed against the backdrop of the fact that individuals who reside in nursing homes are generally more frail because of their generally advanced age, have poor eyesight and/or hearing, and suffer to a greater extent from chronic conditions such as diabetes relative to their non-nursing home counterparts. Those residents who are not totally confined to a wheel chair will generally have difficulty walking and bending and have gait problems. Just being confined to beds and wheel chairs may in and of itself result in muscle atrophy and weakness, thereby making the elderly resident more susceptible to falling, for example, when moving from a bed to a chair. Moreover, the many nursing home residents who suffer from senility, dementia, or Alzheimer’s are often medications which affect the central nervous system, thereby making them further susceptible to falls. See Ref. 2. In other words, the typical nursing home resident is not living at the facility for fun and games but because of genuine old-age related health issues.
Most nursing homes are for-profit institutions. As with any for-profit institution, the management makes decisions concerning the funds they will spend on operating their institution. One would hope that the decision-making process would be based on the safety and health requirements of the very people they are licensed to serve, namely elderly adults no longer able to take care of themselves because they are suffering from a variety of limitations and ailments, both physical and mental.
Since falls frequently occur in nursing homes as a consequence of these limitations and ailments, the ideal nursing home facility will be pro-active in taking steps to try and prevent falls to its residents. The Centers for Disease Control states that “[f]all prevention takes a combination of medical treatment, rehabilitation, and environmental changes.” One of best ways to prevent falls would be to ensure that the staff members are formally trained on and educated about fall risk factors and prevention strategies on a scheduled basis. See Ref. 3. It is the day-to-day staff that has the most interaction with the facility’s patients, not high level managers ensconced in some suite of offices often off-site. Such staff members should of course also be trained and monitored in the detection and prevention of bedsores. And of course, the nursing home institution should hire a sufficient number of staff members to meet the needs of their elderly residents.
]]> Other approaches include: 1) adding equipment and accessories specifically geared towards the special needs of elderly patient such as adding raised toilet suits and installing handrails in the hallways; and 2) using devices such as alarms that go off when patients try to get out of bed or move about without help. See Ref. 4
The old adage, “an ounce of prevention is worth a pound of cure” should certainly apply to nursing home institutions. This particular customer base served by nursing home institutions is challenging to say the least, but this customer base consists of parents, spouses, other family members, and friends and are among our most vulnerable citizens. One would hope that nursing home institutions do not merely look at the residents as contributors to their bottom line, but truly see the residents as individuals who once lived active, full lives, and who now must look to the nursing home to provide their day-to-day needs. Sometimes, simple common sense in the administration of a nursing home’s obligations to provide a safe environment could well go a long ways to preventing disastrous consequences for the elderly resident and a potential lawsuit against the facility.
For example, a recent case in Illinois involved a situation where an elderly woman was assigned to a room next to the back stairwell of a nursing home facility. The woman had been able to open the door to the stairwell and fallen down the stairs. Her son sued the home, alleging it failed to prevent his mother’s fall and negligently assigned her to a room next to the back stairwell. The case was settled for an undisclosed amount.
What would have been the common sense thing to do to have substantially reduced the possibility of a fall by this elderly woman? Several cost-effective possibilities should come to mind.
II. Non-Compliance with Dietary Orders. It is not uncommon for nursing home residents to have a history of food allergies or perhaps chewing, swallowing and/or G.I. tract problems. In such cases, the resident may have special dietary needs designed to avoid distress and even more severe complications. The resident and his/her family will necessarily depend on the nursing home staff to abide by these dietary restrictions.
In a fairly recent Connecticut case, a nursing home resident died after choking on a piece of beef. His estate sued the nursing home and adduced evidence that the aide who had served the meal had failed to read the decedent’s name card. This card included information on his dietary requirement, a mechanical soft diet. The verdict was in favor of the nursing home resident’s estate.
The Connecticut case illustrates the importance of training staff members and providing a system for insuring good communication among staff members. For example, potential problems may occur with new aides particularly if they have not been provided with detailed information on the residents (e.g., dietary restrictions, the importance of reading the dietary card, etc.) they will be serving. Again common sense would tell us that one way to prevent a sad outcome would be to ensure that all aides, and especially new ones, are thoroughly trained in the special needs of the residents they were hired to serve. Also, where the aide is not fluent in English, instructions pertaining to the nursing home resident should be provided in the aide’s native language as well as English.
Despite the fact that this blog is written by attorneys, its focus has not been about pursuing legal action against nursing homes for negligence and abuse. Instead, it has attempted to emphasize that nursing home negligence and abuse, even if not totally preventable, certainly can be reduced by a pro-active management. In fact, such actions may reduce the number of law suits against nursing homes. Indeed, nobody should want to see a vulnerable nursing home resident become a victim of nursing negligence and abuse. As the children and friends of elderly people, we would emphasize that nursing home managers consider implementing quality control procedures for cutting down on injuries to its residents and developing a metrics system for monitoring the effect on those procedures on injuries. It just might be time to apply a “Deming-like” approach to combating nursing home negligence and abuse. As discussed above, “common sense” approaches which focus on preventing “preventable” accidents from occuring need not be cost prohibitive.
As discussed in our previous nursing home blogs, family member advocates play a critical role in monitoring the well-being of nursing home residents. Of particular concern for our aging baby boom population is that many future nursing home residents may not have family advocates who can be on the look out for negligence of abuse. Many baby boomers have chosen not to have children, generally the “first-in-line” defense for vulnerable nursing home residents. Moreover, people are living longer these days meaning that the nursing home population will at least increase over the next two decades or so and that parents may be more likely to outlive their children than in the past.
The current tight “economic” times also mean that states may well reduce nursing home oversight as a way to reduce costs due to severe budgetary constraints. For example, in Florida, Senate bill 1562, which is under consideration at this time, would eliminate annual “drop-in” inspections by Florida’s Long-Term Care Ombudsmen program.
We are unfortunately not particularly optimistic that incidents of nursing home negligence and abuse will decline substantially. Legal action will continue to be a viable recourse to protect nursing home residents who suffered from negligence and abuse. It is our hope that family members who seek legal recourse on behalf of their loved one through an attorney will at the very least eventually gain a sense of closure and to some extent, satisfaction in knowing that the negligent actions of nursing home were not “swept under the carpet” in the case of their own loved one.
In closing, we would recommend that those who are facing the often-times very difficult decision of placing a loved one in a nursing home should review the website launched by the Centers for Medicare and Medicaid Services which ranks nearly 16,000 nursing homes. The information should prove useful in helping family members select a nursing home facility that has evidenced a high level of care for its residents.
Ref. 1. Rubenstein, L.Z. Preventing Falls in Nursing Homes. Jr. Am. Med. Asso. 1997; 278(7):595-6.
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Ref. 2. Ray, W.A., et al. Benzodiazepenes and the Risk of Falls in Nursing Homes. Jr. Am. Geriatric Soc 2000; 48(6):682-5.
Ref. 3. Ray, W.A., et al . A Randomized Trial of Consultation Services to Reduce Falls in Nursing Homes. Jr. Am. Med. Asso. 1997; 278(7): 557-62.
Ref. 4. Rubenstein, L.Z., et al. Falls in the Nursing Home. Annals of Internal Medicine 1994; 121:442-51.