Several families are pursuing litigation against a South Florida nursing home after a disastrous post-hurricane evacuation resulted in more than a dozen deaths. However, in order to do so, they will face significant legal hurdles.
Nursing home abuse attorneys in West Palm Beach recognize that these cases are difficult, but not impossible. Although most civil injury and wrongful death cases are settled prior to trial, having an experienced litigator and trial attorney is necessary. Preparation, skill and experience are critical.
At this juncture, Bloomberg Law reports at least 10 lawsuits have been filed against the Hollywood Hills nursing home that evacuated in September, days after Hurricane Irma cut off power to the air conditioning system at the facility. Fourteen residents died. However, holding the owners of the facility responsible could prove difficult. There are several reasons for this.
The first is that medical malpractice laws in Florida (which is the legal theory under which many nursing home injury lawsuits are filed) are heavily restricted in Florida. These make it tougher – but again, not impossible – to obtain compensation in wrongful death cases. It started back in the 1990s when Florida nursing home liability insurers began to raise their rates substantially or refuse to cover facilities at all. In 2001, state legislators, in an effort to lure back those insurers, enacted a host of minimum requirements for higher staffing levels. Lawmakers also mandated nursing homes carry liability insurance. The problem was, they never set exactly how much that should be.
That brings us to the second issue, which is that many nursing homes carry minimal liability insurance. Nonetheless, according to the 2016 Long Term Care General Liability and Professional Liability Actuarial Analysis, Florida nursing homes on average pay out higher and more frequent liability claims than most other states. The national average claim amount is $214,000, while in Florida it’s $250,000. Nationally, nursing homes reported 2.79 nursing home neglect or abuse claims for every 100 occupied beds. In Florida, it’s 1.04 claims for every 1.04 beds.
The state also imposed limits on attorney fees and punitive damage awards.
Just three years ago, lawmakers enacted a measure that prevents plaintiffs from pursing claims against “passive” nursing home investors. This is especially problematic because many plaintiffs are then forced to contend with what our nursing home negligence attorneys refer to as the “corporate shell game.” Nursing homes are commonly structured to disperse their liabilities from their assets, making it difficult to actually obtain payouts.
Finally, another issue is mandatory arbitration agreements, which have become the norm in nursing homes. However, there are often ways for experienced plaintiff attorneys to work around them. For instance, in some cases, nursing homes fail to make sure it is actually the resident who signs the paperwork. If a family member signs it without the legal authority to do so, that could be grounds for the contract to be unenforceable. While the Centers for Medicare and Medicaid Services announced they were revising the rules in June – withholding federal funds from nursing homes who forced patients to sign these agreements – the current administration has sought to suspend that order.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Will Storm-Struck Nursing Home Find Shelter From Litigation? Oct. 11, 2017, By Chris Marr, Bloomberg BNA
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Elder Financial Abuse, Fraud, Alleged in Nursing Home Lawsuit, Oct. 11, 2017, West Palm Beach Nursing Home Abuse Lawyer Blog