Articles Posted in Nursing Home Liability

The Centers for Disease Control (CDC) reports that Florida is experiencing record-breaking new daily coronavirus cases. Despite reluctance from residents and some state officials, many local government entities are imposing restrictions on social gatherings and closing down beaches during high-traffic weekends, such as the Fourth of July. However, many of the new cases are tied to Florida nursing homes and long-term care facilities.

A recent news report indicates that most outbreak clusters occur in nursing homes, prisons, and food processing plants. This is likely the result of the inability to adequately social distance at these facilities. Additionally, although many clusters occur at prisons and food plants, the deadliest cases have been in nursing homes, where the residents are particularly vulnerable to COVID-19.

Florida nursing homes should prevent, quickly diagnose, and treat coronavirus outbreaks at their facilities. The CDC advises these entities to keep COVID-19 out of their facilities by limiting visitors, educating healthcare personnel, and ensuring adherence to infection prevention and control practices. Additionally, Florida nursing homes and long-term care facilities should identify infections as soon as possible by conducting regular screens of their staff and residents. Consistently engaging in these prevention, education, and treatment practices will help slow the rate of outbreaks.

Earlier this month, an appellate court issued a written opinion in a Florida wrongful death case brought by a woman whose husband died while in the care of the defendant nursing home. The case required that the court determine whether the plaintiff’s claim involving the validity of the arbitration agreement should be determined by the named arbitrator, or whether it was properly before the court. Citing the lack of a delegation clause, the court determined that the arbitrator lacked jurisdiction to make the determination.

Arbitration in Florida Nursing Home Cases

It is common for a Florida nursing home resident to be provided with an arbitration agreement prior to admission and asked to sign. While a nursing home cannot make admission contingent upon the signing of the agreement, that fact is rarely made known to residents and their families.

The benefits of arbitration flow mostly to the nursing home. For example, the decreased cost of litigation is more important for a nursing home, which may face frequent claims. Similarly, the confidentiality of arbitration benefits the nursing home in the event that the resident’s claim is substantiated. Finally, nursing homes are able to choose the forum where the arbitration will take place, creating the potential for favoritism and bias.

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