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• Introduction
• Common Law Negligence
• Breach of Contract
• Chapter 400 Causes of Action
• Negligent Hiring and Retention
• Statute of Limitations
• Conclusion
• Further Information

INTRODUCTION

COMMON LAW NEGLIGENCE CLAIM

Prior to Chapter 400, a resident or relative could sue a nursing home or other long term care facility for injuries or death caused by their negligence. A facility’s negligence would be determined by judging its conduct up against what was considered the standard of care in that community. Unfortunately, prior to Chapter 400, this "standard of care" was not written anywhere. To determine which standard of care a nursing home had to follow, one would have to go to other nursing home experts to elicit their idea of what the standard of care in that community was for a nursing home. Thus, nursing homes were somewhat left to themselves to create what the standard of care was for other nursing homes in their community.

The elements of a nursing home malpractice case prior to Chapter 400, which had to be proved to a jury or judge in order to succeed, are the following:

A. Duty

In any negligence claim, a relationship between the persons or businesses must be established to justify the requirement that one person exercised care to another. In a nursing home malpractice case, that relationship is usually established by showing that the injured person is a resident of that nursing home or long term care facility.

B. Negligence

Once a duty is established, a breach of that duty or the failure to use reasonable care must be established. Reasonable care is defined as that degree of care or standard of care which a reasonably careful person would use under like circumstances. Thus, a nursing home’s conduct would be compare to the conduct of other nursing home’s in the same community.

C. Causation

After you establish that a duty existed and that duty was breached, you must show the breach of that duty was a legal cause of loss, injury, or damage. Just because someone has been injured does not mean that their injuries have been caused by the negligence of another person. This is especially true in nursing home malpractice cases. Very often, a resident of a nursing home will die or become sicker, however, that does not mean that the resident’s injuries were caused by a nursing home’s breach of a standard of care. However, in order to determine whether such legal causation exists, it is imperative to contact an attorney immediately to help you obtain the extensive records that a nursing home facility or other long term care facility keeps to determine in the beginning whether such legal causation exists.

D. Damages

Damages in a normal negligence case include medical bills, if reasonable, lost wages, lost earning capacity, disability, pain, suffering, mental anguish, inconvenience, and loss of capacity for the enjoyment of life. Unfortunately, in a nursing home malpractice case, these damages are usually very nominal or do not exist at all. For instance, a resident in a nursing home will virtually never have lost wages or lost earning capacity or else they would not have been in the nursing home to begin with. Many nursing home residents are already suffering some disability and are experiencing pain, suffering, mental anguish, and a loss of capacity for the enjoyment of life, thus it is difficult to measure any increase in their pain and suffering caused by subsequent negligence.

In cases involving death, damages include lost support and services to a survivor and medical and funeral expenses. Survivors include the spouse or minor children. Unfortunately, in a nursing home malpractice case without Chapter 400, lost support and services are virtually none because the resident in the nursing home is the one who is being supported instead of vice versa. Medical expenses are often times low because the resident goes down hill so quickly after a negligent act that only a few thousand dollars of medical expenses are incurred before death. Almost no case involving minor children are involved because the elderly resident’s children have long since passed the age of twenty-five, which is the cutoff point for most children to collect wrongful death damages for a parent’s wrongful death. All that remains is a claim for mental pain and suffering for the widow and the loss of companionship, protection, and society of that resident. However, the resident was of such advanced age and in such frail health, it is questionable how long the resident would have lived anyway and whether a quality relationship existed anyway.

Unfortunately, under common law negligence, violations of a resident’s dignity, privacy, and violation of resident’s freedoms are not available and, thus, no damages are available for those violations.

BREACH OF CONTRACT

A nursing home facility or other long term care facility can be sued under an additional theory of breach of contract, however, the benefits of Chapter 400 are still not available under that theory. In a breach of contract action, the duty is not defined by the standard of care of other nursing homes in the community, but rather by the terms written in the contract itself to which the parties agreed. However, if a contract is even signed between a resident’s relative and the nursing home facility, the contract is usually drafted by the nursing home or its attorneys in a manner that is more favorable to the nursing home. Oftentimes, the resident’s relative who is placing their loved one in a nursing home rarely thinks about the finer points of the contract with the nursing home. As a result, many nursing home contracts do not establish a strict standard by which the nursing home is to live by in caring for that resident. In addition, the contract usually will not provide that the nursing home must pay attorneys’ fees of the resident or their relative who wins a lawsuit based on a dispute stemming from that contract.

CAUSES OF ACTIONS UNDER CHAPTER 400

Under Chapter 400, residents of nursing homes, assisted living facilities, and adult family-care homes are protected by similar bill of rights which protect, in part:

Any resident whose rights are deprived or infringed upon shall have a cause of action against that nursing home, assisted living facility, or adult family-care home responsible for the violation. The action may be brought by the resident or his guardian, by a personal organization acting on behalf of a resident with the consent of the resident or his 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 decedent’s rights.

The action may be brought to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on these rights of a resident. Punitive damages may be recoverable when the facility’s conduct is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident. One Florida case has stated that liability for punitive damages will be found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Significantly, anybody who prevails in an action to enforce a resident’s rights may be entitled to recover reasonable attorneys’ fees, costs of the action, and damages. As a result, even though the damages that are recoverable may be small because there are hardly any medical bills, no lost wages, an attorney would still be willing to take the case because if successful, his attorneys’ fees will be paid by the facility. This also makes it more beneficial for the resident or relative who is suing original recovery of damages is not reduced by the 40% attorneys’ fee.
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NEGLIGENT HIRING AND RETENTION

In addition to all the other theories available to a resident or their relatives, the facility could also be held liable under the theory they negligently hired and retained an employee. This theory is available when a nursing home facility was required to make an appropriate investigation of an employee and failed to do so, and if done, it would have revealed the instability of an employee for the particular duty that he or she was asked to do. Thus, it would be unreasonable for the employer to hire the employee in light of the information he knew or should have known.

Even if the nursing home facility has not negligently hired an employee, if through the course of that employee’s tenure at the nursing home the nursing home obtained information regarding problems of an employee’s fitness, it is required to investigate or take corrective action such as discharge or reassignment.
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STATUTE OF LIMITATIONS

A suit under any one of these theories may be dismissed for failure to bring suit within a specific amount of time after the wrongful conduct occurred. Usually a claim against a nursing home facility, assisted living facility, or adult family care home must be brought within four years from the wrongful conduct. However, waiting four years before bringing such a suit can be risky. Some lawyers defending these nursing home facilities have argued that actions against nursing home facilities are subject to the two year medical malpractice statute of limitation. These defense attorneys have not necessarily been successful with this argument, however, the law is always changing and the possibility exists that in some instances the two year statute of limitation may apply. In addition, often times actions against nursing homes will include actions against the nursing home’s medical director and/or the doctor who negligently placed the resident in the assisted living facility or nursing home. The medical director and the referring doctor would be subject to the two-year medical malpractice statute of limitations. Finally, waiting until almost four years after the wrongful conduct makes it difficult to prove the claim as people’s memories fade and records are lost or purged.

Finally, the breach of contract action is subject to a five year statute of limitations from the date the contract is breached. Therefore, even if the four year statute of limitations is missed for the other causes of action, perhaps the five year statute of limitations for breach of contract may still not have run.
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CONCLUSION

If you become suspicious of any mistreatment of a loved one at a nursing home or assisted living facility or family care homes, you should immediately start keeping a diary of your suspicions or take photographs to document your suspicions. Additionally, do not hesitate to contact an attorney who is knowledgeable about nursing home law to obtain guidance as to how to proceed in protecting your loved one’s interests.
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FURTHER INFORMATION

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