Charpentier Law Firm Blog

An article in the November 23, 2001 edition of the ASSOCIATED PRESS reported that the Florida Supreme Court said in two separate cases that nursing home arbitration agreements that limit remedies allowed by state law are invalid. The 5-2 opinions said lower courts erred by requiring arbitration on allegations of negligence against nursing homes instead of letting them go to court.

The ruling will have a widespread effect as virtually all nursing homes require residents to sign arbitration agreements when they enter, said James Wilkes, whose law firm represented the plaintiffs in both cases. “They are going to be spending a lot of time in court,” Wilkes said. “This is going to end a lot of appeals.”

Arbitration agreements in both cases included bans on punitive damages, which are allowed by state law. One agreement also capped non-economic damages at $250,000. The majority in each case said those limits are contrary to public policy and undermine remedies set by the Legislature.

“We have always encouraged our members to follow guidance provided by the courts related to arbitration agreements and these decisions will enable us to continue doing so,” said Kristen Knapp, a spokeswoman for the Florida Health Care Association in an email. The association represents nursing home and other long-term care providers.

Both cases were appealed from the 2nd District Court of Appeal in Lakeland, which had affirmed decisions by trial judges to compel arbitration.

Gayle Shotts sued OP Winter Haven Inc., as personal representative of the estate of Edward Henry Clark, her uncle, following his death in 2003. The complaint filed in Polk County alleged negligence and a breach of legal duties to Clark.

In the other case, Angela Gessa accused Manor Care of Florida Inc., of negligence, violation of resident’s rights and breach of legal duties during a stay at its Carrollwood facility in Hillsborough County.

Justice James Perry wrote both opinions. In each he noted that state law has specific remedies – including damages and injunctive relief – for negligence of nursing home residents or the violation of their rights. The law outlines various residents’ rights including a guarantee of private communications and the ability to examine the results of nursing home inspections.

“In light of the recognized need for these remedies and the salutary purpose they serve, we conclude that any arbitration agreement that substantially diminishes or circumvents these remedies stands in violation of public policy of the state of Florida and is unenforceable,” Perry wrote in the Shotts opinion.

The majority also ruled that a 2010 U.S. Supreme Court decision that an arbitrator, not a court, had to decide whether an arbitration agreement was unconscionable did not apply to either nursing home case.

The federal ruling covers only cases in which challenges had been made against provisions in the agreements that delegate complaints to arbitration. Perry wrote the arbitration agreements in the nursing home cases lacked delegation provisions.

In dissenting from the Shotts ruling, Justice Ricky Polston argued that language in the agreement saying “any dispute” will be arbitrated was effectively a delegation provision. Polston also dissented from the Gessa ruling on grounds the Legislature rather than the Supreme Court should decide if arbitration agreements violate public policy. Chief Justice Charles Canady concurred with both of Polston’s dissents.

To speak with members of the Charpentier Law Firm and to find out how we can help, contact our Central Florida personal injury attorneys today. Or if you have questions about laws pertaining to nursing homes or assisted living facilities, or if you or someone you care about has been injured or neglected in a nursing home, contact our Brevard nursing home attorneys today. For more information on nursing home abuse or elder abuse,Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

An article by Britt Kennerly in the September 26, 2011 edition of FLORIDA TODAY reports that an inquiry into Florida’s assisted living facilities reveals deaths and neglect and that four Brevard assisted living facilities have been fined.
The article states that a shutdown of Florida’s worst assisted living facilities and tougher oversight of thousands of the centers statewide are among massive changes called for in a just-released legislative study.

The Senate’s report demands stronger enforcement of regulations protecting ALF residents, including center closure in worst cases and stiffer penalties and licensing requirements.

It also cites the need for higher employee training standards and better funding of care, a critical need, lawmakers said, in a state expected to have 4.5 million seniors (65 and older) by 2020 — 21.3 percent of the e stimated population.

Many of the neglect and abuse deaths occur in the most troubled of the state’s ALFs, including those housing residents with chronic mental illness, according to the report.

Senate President Mike Haridopolis, R-Merritt Island, “has charged the Senate Committee on Health Regulation, as well as the Committee on Children, Families, and Elder Affairs to examine issues relating to assisted living facilities,” said Lyndsey Cruley, communications director for Haridopolis’ office.

The two committees are expected to hear that report in coming weeks. The Senate study came after a Miami Herald investigation of the state’s 2,956 ALFs earlier this year. The Herald series reported that dozens of people have died of abuse and neglect in the facilities — nearly one a month since 2002. Currently, oversight of the homes falls to the Agency for Health Care Administration.

If you or someone that you care about has been injured or neglected in a nursing home, you need a legal team that will fight for you and your rights every step of the way. To speak with members of the Charpentier Law Firm about your case and to find out how we can help, contact our Central Florida personal injury attorneys today.

Florida Today-June 6, 2011-According to the article the Brevard County Triad will be hosting the sixth annual World Elder Abuse Awareness Day from 10:00 a.m. to 3:00 p.m. on June 15^th at the Merritt Island Mall on Merritt Island, Brevard County, Florida. Information about issues on senior health and wellness, resources, law enforcement, public safety, community senior service providers, elder abuse awareness and more will be provided. According to the article there is no charge and participants are encouraged to wear purple to show their support.

For more information on Nursing Home Abuse and Elder Abuse Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

AARP Bulletin Vol. 51 #10-December 2010- Maureen McDonald-According to this article “really bad infestations” bed bugs have been found in older adult communities. The bugs were literally found walking on clothes as interviewers spoke to residents. What’s important is that bed bugs can be specially problematic for older citizens, who may not see them because of diminished eyesight. If bed bug bites go unnoticed, the problem can spread unchecked.

For more information on Nursing Homes Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

AARP Bulletin Vol. 51 #10-December 2010-According to this article individual was repeatedly harassed for a debt she did not owe by representatives of Allied Interstate, one of the nations largest debt collection agencies. Apparently Allied has done this with other individuals. After three years of making such calls Allied Interstate has agreed to pay 1.75 million dollars to settle charges by the Federal Trade Commission that it violated federal law in trying to collect debts from the wrong people and routinely ignoring their protest without checking the accuracy of their claims.

 For more information on Nursing Homes Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

Cycle World Magazine-August 2010-Bombardier Recreational Products, Inc. is recalling it’s 2010 Can-Am Spyder Roadster RT SE5 and RS SE5. This recall involves about 1200 units. According to this recall, when bringing one of these semi-automatic-transmission vehicles to a full stop, the computer-control clutch may remain engaged, stalling the engine. Once the engine stalls, it could be impossible to restart, and the rear wheel could be locked. Should this happen, pushing the vehicle off the roadway may be impossible, increasing the risk of a crash.

Dealers will repair the vehicles free of charge. Owners not receiving this remedy can call Bombardier Recreational Products, Inc. at 888-638-5397.

For more information on Motorcycle Accidents Click Here: http://www.brevardlawyer.com/html/motorcycle-accidents.html

Florida Today-June 29, 2010-Susanne Cervenka-Cornelius Kline lived to be 105-years-old. A former physician, Dr. Kline retired at age 70 and moved to Melbourne, Brevard County, Florida when he was 100-years off age to be closer to his family. Dr. Kline is the second 105-or-older person to die in Brevard County within little more than a week.

For more information on Nursing Home  Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

WESH Orlando-June 15, 2010-The Florida Department of Children and Families is looking into allegations that two care givers at Springs Group Home in Apopka, Florida may have used excessive force on a resident who had cerebral palsy. According to this report the care givers involved have been suspended while the Sheriff’s office and the state are investigating.

For more information on Nursing Homes Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

According to an article in AARP Bulletin (June 2010, Vol. 51 #5) when nursing home residents consider living on their own, experts ask the following questions:

1. Do you want to live independently?

2. Are you able to live independently?

3. Can you afford to live independently?

4. Is in-home care available?

5. Is appropriate housing available?

6. Does the home have everything you need?

7. Does the community offer necessary medical services?

8. Do you have the necessary skills to care for yourself?

9. Is transportation available?

10. Is social support available?

According to Arlene Johnson a woman who actually accomplished this feet, “you do get frustrated at times. You pray a lot,”—”you have to be patient. But you also have to be very, very determined.”

For more information on Nursing Home Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html

Daytona–Beach News Journal-February 25, 2010-Anne Geggis-According to this article a 76-year-old patient at a Deland nursing home went for nearly 12 hours without treatment after she fractured her shoulder and both of her legs in an accident according to a Deland police report. The nursing home is being investigated for elderly abuse. Apparently the injuries under investigation occurred when a resident fell from her bed as her bedding was being changed, according to Deland police. The article goes on to state that the patient was put back into bed after the fall. Fortunately, according the article, it wasn’t until after the next shift came on duty that emergency workers were summoned to attend to the residents injuries. The resident was taken to a nearby hospital where she was admitted, according to the police report.

For more information on Nursing Home Abuse Click Here: http://www.brevardlawyer.com/html/nursing-home-abuse.html