Most states, including Florida, have established a list of rights to which nursing home residents are entitled. Violation of these provisions may result in state or federal sanctions or the right of the resident and/or surviving family member to pursue civil action against the facility or staffers.
For example, F.S. 400.022 states residents have the right to be treated with dignity, respect and fairness, be free from any form of abuse, receive necessary services to maintain and preserve health and well-being, receive written and oral information regarding medical care and nursing services and maintain private communication with family members and loved ones. These are just a few of the rights outlined in the statute.
A similar law exists in California, where the recent case of Lemaire v. Covenant Care Cal., LLC was reviewed by the California Court of Appeal, Second Appellate District, Division Six. In that state, each violation of the statute entitles a plaintiff to receive $500. And based on that statute, a plaintiff suing for the wrongful death of her mother at a nursing home facility (due to what she alleged was inadequate care), received $1.1 million, which included $270,000 in statutory damage.
However, when the case was reviewed by appellate court, it was determined that $500-per-violation was not to be meted out for every daily violation, as trial court ruled, but rather $500 per violation in general. Plus, the court ruled attorney fees were wrongly calculated. The end result is likely to significantly reduce plaintiff’s nursing home wrongful death lawsuit damages.
According to court records, decedent suffered a stroke and was admitted to defendant facility in 2010. After she died, her daughter, plaintiff, filed a lawsuit against the nursing home for elder abuse, wrongful death and violation of patient rights under state statute. Plaintiff asserted facility was understaffed to a chronic degree. She further asserted her mother didn’t receive an adequate level of care because of this lack of staff. Further, plaintiff alleged her mother died as a result of neglect, abuse and misconduct that was willful.
In her cause of action regarding violation of patient’s rights, she alleged the nursing home violated her mother’s right to have the nursing staff write medical notes that were clear, legible, signed and dated. In her complaint, she requested the statutory $500 per violation – per day.
The nursing home countered on this point, arguing there was nothing in state law that would imply the fine should be issued on a per-day basis. It argued for a jury instruction that would limit the fine to $500 per listed violation. Trial court overruled this request.
Ultimately, jurors found against plaintiff in her claim of wrongful death and rejected her assertion the nursing home provided her mother insufficient nursing staff or failed to treat decedent with dignity and respect.
However, jurors did find in her favor on the health care records issues. Jurors found the center did not provide complete and accurate records (468 violations in total) and the center failed to provide meaningful and informative nurses’ progress notes as patient’s condition warranted (72 violations in total). For these offenses, jurors awarded $500 each, for a total of $270,000 in damages.
On appeal, the nursing home argued patients (or their estate representatives) don’t have the right in the first place to sue for violation of patient rights. The facility contended that is the sole authority of the state. The appellate court disagreed, noting individuals do have that right.
However, the appellate court did find the statute only allows for $500 per violation. That would reduce the damage award to $1,000 total, versus the $270,000 she had initially secured. Plaintiff argued this was not the legislative intent as it would undermine the goal of encouraging residents to exercise assertion of patients’ rights. (A bill was introduced in that state in 1999 that would have increased the maximum per-violation penalty to $25,000, but that measure did not pass.)
However, the court chose to interpret the existing statute exactly as written, which allows only $500 per violation.
Therefore, the trial court’s finding of damages was reversed, and the case remanded back to trial court for a recalculation.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Lemaire v. Covenant Care Cal., LLC , Feb. 23, 2015, California Court of Appeal, Second Appellate District, Division Six
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