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Florida courts have been increasingly allowing nursing home negligence lawsuits to go to trial, despite the existence of nursing home arbitration agreements. Defendant nursing homes are looking to compel plaintiffs to resolve their dispute via arbitration, where outcomes are private and tend to favor the facility.

The grounds on which a court may find an agreement unenforceable usually involve whether the agreement is “unconscionable.” That means the contract is so one-sided, it’s unfair to one party and violates public policy. It’s the kind of contract that leaves one party with no real, meaningful choice and typically arises due to the power imbalance between the two parties. So many of these nursing home arbitration agreements are signed by vulnerable patients or their loved ones upon admission – sometimes as a condition to admission. A contract can be unconscionable if there is:

  • Undue influence;
  • Duress;
  • Unequal bargaining power;
  • Unfair surprise.

Such an agreement may also be unenforceable if the person who signed it did not have the capacity or authority to do so. Elderly adults with dementia may not have the mental capacity to enter into legal agreements, but if their relatives are not expressly designated as their legal representative, they may not be able to legally sign on their loved one’s behalf.  Continue reading →

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A wealthy nursing home operator with mansions in Miami and Los Angeles is the subject of a U.S. Justice Department investigation and prosecution that alleges he orchestrated a Medicare and Medicaid bribery and kickback scheme totaling losses of more than $1 billion. Authorities in July stated it was the largest single criminal health care fraud case ever filed against an individual by the DOJ. 

Now, the subject of that investigation, Philip Esformes, is fighting to be released on bond, as federal authorities are placing enormous pressure on the courts to keep him locked up in South Florida, where he was arrested at one of his Miami Beach waterfront estates this summer. Although the court has been bombarded with letters of support for Esformes, some of which have included receipts related to his many philanthropic efforts, he remains at the Miami Federal Detention Center.

Authorities say Esformes and his father siphoned millions of taxpayer dollars every single year from federal programs intended to aid the sick and disabled over the course of 14 years. The pair had nursing homes across the country, including about 20 in Florida. According to the latest federal indictment, he and his co-conspirators took money from these federal programs in the name of some 14,000 patients at various facilities. In many cases, federal authorities allege, patients were given treatment that wasn’t necessary and in some cases was actually harmful. Continue reading →

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The corporate structure of many for-profit nursing homes is specifically designed to make it difficult to impose liability when there is a dispute over the quality of care. Our nursing home abuse lawyers in Florida know it’s not unusual for a single nursing home to be tied to nearly half a dozen different businesses connected by a tangle of contract agreements. It takes a skilled litigator to sort through that kind of mess in order to attain accountability for poor care. 

The recent case of Griffith v. SSC Pueblo Belmont Operating Co. is a prime example of how these corporate structures can complicate court cases.

According to court records, this matter out of Colorado involved a handful of separate corporations with varying levels of involvement in day-to-day operations of the facility. Some of those entities existed out-of-state, and technically did not operate in Colorado or have any of their own business contacts in that state. That made the issue of jurisdiction for Colorado state courts a very tricky matter.  Continue reading →

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The Florida Supreme Court has issued an opinion in a nursing home negligence lawsuit, tossing an arbitration agreement and the reasoning by the 3rd DCA that it was enforceable because the son signed on behalf of his father who lacked mental capacity. The court in Mendez v. Hampton Court Nursing Ctr. said the father’s mental capacity here did not matter because it didn’t change the son’s lack of legal standing to sign on his father’s behalf.

As we’ve seen in so many of these cases, the son signed a nursing home admission agreement – which included an arbitration provision – for his father when he was first admitted to the Miami-area facility back in 2009. But the son didn’t have legal power of attorney. The father likely couldn’t have legally signed that paperwork either because he lacked the mental capacity to do so, but that’s beside the point here. Later when a dispute arose and plaintiff alleged his father’s care had been negligent, the nursing home sought to enforce that arbitration agreement.

It was argued by defendant nursing home that the father’s lack of mental capacity meant the son was acting as his father’s representative. The trial court agreed with the nursing home and so too did the Third District Court of Appeals. But the state supreme court, in a 5-2 decision, reversed. The father’s mental state didn’t change the son’s legal power or somehow make the contract valid. Had the nursing home wanted to ensure the correct party was signing the document, they could have taken the matter to court, asked for the father to be declared mentally incompetent, had the court establish a legal representative and then asked that person to sign. Continue reading →

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Nursing home abuse and neglect lawsuits were always a challenge, for a myriad of reasons. But increasingly, more plaintiffs are running up against a formidable test: Arbitration. 

Arbitration agreements are thrust in front of patients and their families, often while they are in a state of emotional and physical turmoil – during the nursing home admission process. Buried in a stack of forms, the arbitration agreement compels the person to sign away their right to have disputes handled in a court of law. Instead, by signing their name at the bottom of the fine print, they agree instead to have such claims heard by a paid arbitrator, in private, behind closed doors. The arbitrator isn’t bound by the law. There is no jury. The arbitration process isn’t public. The arbitrator has an interest in keeping the nursing home happy, therefore preserving the lucrative contracts that keep them employed. These agreements are not in the best interests of residents and their loved ones.

As a recent article by ThinkProgress.org recently explained, these arbitration agreements are increasingly becoming the status quo. The good news is that advocates and elected officials are starting to take notice. However, as of right now, the process is still largely going unchecked, leaving many abused, mistreated and neglected nursing home residents fighting an uphill battle for justice.  Continue reading →

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Federal authorities are suing a nursing home system alleging the company committed fraud by filing false claims to both Medicare and the state-based TennCare (in Tennessee) on behalf of senior residents. Even as these facilities were being compensated for a litany of specialized services, they were not extending even the most basic level of care to residents, authorities say. 

The Tennessean reports residents suffered a host of injuries, ailments and injustices, including:

  • Pressure ulcers (also known as bed sores)
  • Falls
  • Dehydration
  • Malnutrition
  • Improper feeding

The lawsuit alleges these incidents were systemic and occurred in at least six different facilities throughout Tennessee, in Murfreesboro, Nashville, Shelbyville, Madison, Manchester and Memphis.  Continue reading →

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A Florida nursing home has lost its bid to compel arbitration in the case of a woman who alleges her husband suffered injury as a result of nursing home negligence while a patient there. Although the trial court had ruled the case should go to arbitration, Florida’s 2nd District Court of Appeal reversed, finding the claims raised by the estate of the decedent resident were not within the scope of the arbitration agreement. The reason? It had been signed with a different company entirely. 

That’s right. Defendant was attempting to use the arbitration agreement decedent had signed with his assisted living facility provider to require the complainant to resolve her allegation of negligence against the nursing home before an arbitrator rather than a court. The primary reason the trial court had Ok’d this was because the nursing home and the assisted living facility were owned by the same company. Further, there was a provision in the assisted living facility arbitration agreement in which it was stated that the agreement would remain in place, regardless of whether the patient was transferred to and from the facility. Upon readmission, that agreement would still remain in effect. It was to be understood the arbitration agreement was applicable to all future admissions.

Trial court had relied on this provision in granting defense motion to compel arbitration. However, the 2nd DCA reviewing Olson v. Florida Living Options reversed.  Continue reading →

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A New York man has filed a nursing home negligence lawsuit against the facility where his mother died late last year after choking on a grilled cheese sandwich.

According to Syracuse.com, the woman was just 63-years-old, yet suffered from dementia. For this reason, she had to wear dentures to bite and chew solid foods. Despite this, in December, the staffer fed her a sandwich during a meal at which she did not have her dentures in. Patient unsurprisingly choked on the sandwich, aspirated and stopped breathing. She was rushed to a nearby hospital, where she died a week later from complications caused by the choking and aspiration of her food.

The wrongful death lawsuit filed by her son, the administrator of her estate, alleges the nursing home staff was negligent, careless and reckless in feeding his mother solid food without her dentures. As a result, his mother suffered conscious pain and suffering, as well as incurred medical expenses. He is seeking compensation for these violations of her rights, as well as punitive damages and attorneys fees.  Continue reading →

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Residents at a nursing home in North Dakota have settled with a hospital system following the largest outbreak of hepatitis C in recent U.S. history. However, the ongoing legal battle between the hospital and the nursing home where most of those involved were sickened will press on.

Courthouse News Service reports that the confidential settlement, which is still pending approval from the judge, stems from the outbreak in August 2013 in which 52 people were sickened. Of those, 48 were residents or former residents of a nursing home. It was the biggest outbreak of hepatitis C in more than a dozen years, according to data with the U.S. Centers for Disease Control and Prevention.

As for what caused it, that’s still in dispute. The 21 victims who were plaintiffs in this lawsuit allege that a hospital employee of an outpatient laboratory service reused needles and failed to follow infection control practices. State and federal authorities never exactly pinpointed the source, but they did say they suspected the nursing home residents were infected in connection with blood services.  Continue reading →

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Jurors overhearing a recent nursing home neglect case were so horrified by the details, they awarded $30 million in damages – $28 million of that being punitive damages against the nursing home, its two owners and related companies. 

Such damage awards aren’t necessarily the norm. In fact, most nursing home neglect lawsuits are settled prior to trial. However, plaintiffs are increasingly becoming emboldened to take action against staffers and facilities that fail to provide proper care to them and their loved ones. The clear message is that substandard care of our most vulnerable citizens is unacceptable, and nursing homes that try to cut corners with reductions in staff and poor training are ultimately going to pay for it.

Most of the cases involve injury or death from falls, fractures, pressure sores, dehydration, malnutrition or a delayed response to certain infections. These are often very complex and challenging cases because usually the primary witness – the elderly victim – is either deceased or has diminished mental capacity. But when they are successful, plaintiffs are finding they can often result in substantial compensation. Still, most plaintiffs aren’t actually in it to recover money. Really what they are looking for is to prevent the same thing from happening to someone else. They don’t want someone else to endure what they and their loved one have.  Continue reading →

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