Articles Posted in Elder Abuse

wheelchairLike other industries providing services to vulnerable populations, nursing homes are no strangers to lawsuits. However, simply because nursing homes and similar long-term care businesses often find themselves in courts does not mean they like to be there. Indeed, nursing homes routinely have their incoming residents sign arbitration agreements providing that potential claims against the nursing home be resolved through informal arbitration rather than formal litigation. Given that arbitration panels are often believed to be biased, the enforceability of such arbitration provisions is frequently at issue. For instance, in a recent decision, Sovereign Healthcare of Tampa, LLC v. Estate of Schmitt, Florida’s Second District Court of Appeals addressed whether a nursing home resident’s wife had the authority to sign an arbitration agreement on his behalf.

Sovereign Healthcare arose from incidents of alleged negligence at Bayshore Pointe Nursing & Rehabilitation Center in Tampa, Florida. The plaintiff in this case was the widow of a resident who spent two separate stints at Bayshore prior to his death. Before each of the deceased’s residencies at Bayshore, a “Resident Admission and Financial Agreement” was executed. The agreements included identical arbitration clauses that provided for the arbitration of disputes related to the deceased man’s residency at Bayshore. After the widow of the deceased man filed suit on behalf of his estate, Bayshore made a motion to compel arbitration, arguing that the arbitration provision in the first residence agreement required that the claims asserted be arbitrated. The trial court denied the motion, and Bayshore appealed the adverse ruling.

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photo_20633_20110611-225x300In light of Florida’s large elderly population, it’s not surprising that the Florida legislature has specifically passed legislation providing specific rights to those who reside in nursing homes. See §§ 400.022-.023, Fla. Stat. (2010). However, among the many rights encompassed in these provisions is not one assuring that these rights must be adjudicated in a court. Indeed, these claims, like many others, can be subject to compelled arbitration when an unwitting party signs away his rights to formal adjudication. Given that arbitration can pose the risk of unfair or inadequate adjudication of rights, the enforceability of these provisions is often a topic of litigation. For instance, the Second District Court of Appeal recently issued its decision in Greenbrook NH, LLC v. Estate of Sayre, which addressed whether an arbitration agreement entered into by the daughter of a nursing home resident was enforceable.

Sayre arose from an alleged act of negligence at a nursing home facility in St. Petersburg, Florida. The plaintiff in this case is the daughter of a deceased nursing home resident who brought this action as the representative for the decedent’s estate. The decedent resided at the nursing home for most of 2011. Following the death, the plaintiff brought suit against the nursing home for both negligence and the violation of the decedent’s nursing home resident’s rights under §§ 400.022-.023 of the Florida Statutes. At the time the daughter placed her mother in the nursing home, she signed an arbitration agreement as her mother’s authorized legal representative. In light of this arbitration agreement, the nursing home moved to dismiss and compel arbitration. The trial court denied the motion, finding that the agreement was invalid and unenforceable because portions of the copy of the arbitration agreement proffered to the court were obscured. The nursing home then brought the current appeal, arguing that despite the photocopying error, the trial court’s factual finding was in error because the other terms of the agreement were sufficiently clear and definite to make the agreement enforceable.

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ResearchFlorida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..

Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.

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