Claims and Defenses in Nursing Home Litigation

Claims against long-term care facilities in Florida can involve a variety of complex legal issues, however, such claims can also be aggressively prosecuted and aggressively defended with an understanding of the legal framework involved. For example, state regulatory inspection reports and plans of correction are used by the parties to establish claims and defenses. We provide herein a brief overview.

Claims and defenses for litigation arising from the residency of an elderly person in a nursing home are governed primarily by Florida Statutes Chapter 400 and the common law that has interpreted the provisions of this Chapter. Chapter 400.022 enumerates the Resident's Rights including: the right to civil and religious liberties; the right to independent and personal decision making; the right to private and uncensored communications; the right of access to health, social and legal services and the right to consent or withdraw consent for such services; and the right to immediate access to family and representatives of the federal and state government, including the Long Term Care Ombudsman for the presentation of complaints. Violation of any enumerated rights and/or negligence provides the basis for civil claims for compensatory and potentially punitive damages. There is 75-Day pre-suit investigatory period, which is required before a lawsuit can be filed. The statute mandates that Notice be provided to the prospective defendants and that there is an opportunity for informal exchange of information and unsworn statements of the parties. Pre-Suit Mediation is also mandated. At the conclusion of the 75-day investigatory period, the prospective defendant must either reject the claim or make a settlement offer. The Pre-Suit investigatory period is designed to encourage settlement of claims.

Nursing Home claims can also be pursued under Florida Statutes Chapter 415, the Adult Protective Services Act. This statute provides protection for vulnerable adults from neglect, abuse and exploitation. There is a provision for civil actions and criminal penalties for failure to report abuse, neglect and/or exploitation as well as for the reporting of false claims. Claims under this statute require more than mere negligence by the caregivers and in effect require a degree of neglect rising to the level of willful actions or inactions. See Fla.Stat. § 415.111 Claims can be pursued for both compensatory and punitive damages.

The need for arbitration as a dispute resolution measure was deemed necessary by the long-term care industry as the only means of survival from the tremendous number of claims, valid or not, presented in recent years, which nearly caused long-term care to cease to exist. However, since arbitration replaces the right to a trial by jury in the civil courts, patient advocacy groups presented strong opposition. In May, 2017, the U.S. Supreme Court upheld the nursing homes' right to include arbitration clauses in long term care contracts. In a 7-1 opinion, the Court determined that the Federal Arbitration Act places arbitration agreements on equal footing with all other contracts. See Kindred Nursing Centers Ltd v. Clark, 581 US__(2017). The Centers for Medicare and Medicaid Services (CMS) in June, 2017 proposed new regulations for arbitration clauses, requiring plain language and transparency in the contracts so that the resident or those with power of attorney are fully apprised that they are entering into a contract with an arbitration clause.

With long-standing experience in the litigation of these issues, we stand ready to answer any questions with respect to claims and defenses in long-term care disputes.

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