Are we still protecting our elderly?
by Michael J. Kohl
Just what does Knowles mean to the elderly people in our state?
The Fourth District Court of Appeal held that it means:
1) Joseph was a resident of a nursing home and his rights were violated. He later died from an unrelated cause. Joseph cannot enforce the Legislature's creation of the "bill of rights" for elderly residents in the state of Florida.
2) Esther is a resident of an assisted living facility and her rights were violated. She was fortunate enough to survive the violation and sued to enforce her rights. Esther cannot continue to enforce her "resident's rights" if she dies while waiting for a motion to compel to be heard in a busy court system.
3) Benjamin's rights were violated, and he was fortunate enough to survive the violation, sue to enforce his rights, and survive long enough to get a trial date. But Benjamin died as the jury deliberated. So did his resident's rights.
4) If Jane Doe's rights are violated and she is fortunate enough to survive trial, but has a mistrial declared due to inadvertent and highly prejudicial comments by defense counsel in closing, then Jane Doe's rights cannot be enforced if she dies while waiting for her next trial.
5) If your dad's rights are violated and yet he is fortunate enough to survive the violation, enforce rights, survive the trial, and obtain a verdict, his rights are still lost if he dies while the case is remanded for a new trial due to juror misconduct.
On May 24, 2000, the Fourth District Court of Appeal was I submit respectfully wrong when it held that a deceased nursing home resident could bring an action against the nursing home for violation of the Patient's [sic] Bill of Rights only when the deprivation or infringement of the resident's rights caused the patient's [sic] death. Beverly v. Knowles, So. 2d (Fla 4th DCA 2000). It was clear that the opinion was made after careful consideration. Perhaps it was an appeal to the Legislature for an amendment. On August 23, 2000, Knowles was certified to the Florida Supreme Court as a question of great public importance.
The statute seems clear. It was created in 1980 because the conditions in long-term care facilities in the state of Florida were such that the health, safety and welfare of residents were not ensured by the Department of Health and Rehabilitative Services or the Agency for Health Care Administration, or by the good faith of owners or operators of long-term care facilities. F.S. s. 400.0061(1). The purpose of Part II was to provide for the development, establishment and enforcement of basic standards for health, care and treatment of persons in nursing homes and related health care facilities. F.S. s. 400.011(1). Section 400.022, entitled "Residents' Rights" states that each nursing home facility shall provide a statement assuring each resident 22 specified rights. The Civil Enforcement provision was amended in 1996 to provide as follows:
Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the resident's rights. (amendment in italics)
Within weeks of the Knowles decision I received numerous motions to dismiss, motions for summary judgment and motions for judgment on the pleadings, all seeking to curtail the enforcement of rights by personal representatives who were initiating or continuing the enforcement of the rights that each facility contractually agreed to provide. The residents' rights are not only statutorily mandated, but virtually every facility has incorporated these rights into the same contract that so many of the facilities seek to enforce when the bill is not paid. The only difference is that the facility can enforce each provision of the contract and collect actual damages, whereas the resident, through the personal representative, cannot.
Under a breach of contract theory, one is limited by the economic loss rule. Under a negligence survivorship theory, one is limited to actual damages over a very brief time. After all, the typical scenario is that the resident dies shortly after the violation occurs, but proving that the death was a result of the violation is an uphill battle with 80 and 90 year old residents. Consequently, even though a 98 year old resident suffers horribly with bed sores or the pain of a fractured leg, when he or she dies of "old age" within a month, most jurors would be hard pressed to award sufficient damages for such a brief period of time.
The remedies set forth in F.S. s. 400.023 were intended to be in addition to and cumulative with other legal and administrative remedies available to a resident. F.S. s. 400.023(1). Why then, should there be disparate treatment for those who are not fortunate enough to survive the violation and time consuming enforcement provisions? To bring a claim under Ch. 400 where there is a deprivation or infringement of a resident's rights to receive adequate and appropriate health care requires an investigation which shall include a review by a licensed physician or registered nurse and a verified opinion attached to the complaint. Obtaining records from a facility is close to pulling teeth. Facilities hem and haw, they request prepayment and notarized authorizations, they even require your first born. The statute waives the requirement of the verified opinion when records are not timely provided, but what about the investigation? What about the old argument that the facility is entitled to notice under the medical malpractice statutes before suit can be filed?
