By – Michael R. Jackson, Shareholder
The Jackson Law Firm, P.A. possesses sixteen (16) years of evaluating nursing home charts to determine whether a resident suffered from abuse and/or neglect. These claims arose often within / against a number of the largest nursing home chains in the country. Such claims involve, typically, any number of serious injuries / issues, including, but not limited to:
- Assault and battery by another resident;
- Assault and battery by staff;
- Development of pressure sores / bed sores / decubitus ulcers;
- Elopement (leaving the facility unsupervised given an individual’s mental/physical state);
- Financial exploitation;
- Fractures (fractured hips, bones, arms, etc.);
- Inadequate staffing;
- Inadequate training or supervision;
- Inappropriate physical or chemical restraints;
- Injuries caused by a failure to manage dementia / Alzheimer’s;
- Negligent supervision;
- Medication errors;
- Violation of Privacy;
- Sexual abuse / rape;
- Unhygienic living conditions;
- Unrecognized cardiac conditions, kidney failure, or other unrecognized medical conditions not communicated to a physician that lead to the resident’s death; and/or
- And any other physical, mental, or emotional abuse or neglect that can give rise to a claim.
A familiarity with the law and the underlying medical condition of the resident is critical to an understanding of potential claims in this area of the law. In Florida, the rights that are held by a resident residing in a nursing home may be found in Chapter 400 of the Florida Statutes. This article is designed to explain in much greater detail the legal mechanics behind such claims.
Chapter 400 of the Florida Statutes
The Florida legislature made the determination that the rights, health, safety, and welfare of residents residing in long-term care facilities are not fully protected by the rules of the Department of Elderly Affairs or the Agency for Health Care Administration or by the good faith of owners or operators of long-term care facilities. See Fla. Stat., § 400.0061. To address this problem, the legislature formed the Ombudsman Program, as set forth within Part I of Chapter 400 of the Florida Statutes. The legislature also went several steps further in creating Part II of Chapter 400, which addresses standards and their enforcement with respect to Florida’s nursing homes. FN1 Specifically, the Florida legislature explains the purpose behind Part II of Chapter 400 as follows:
Purpose – The purpose of this part is to provide for the development, establishment, and enforcement of basic standards for:
(1) The health, care, and treatment of persons in nursing homes and related
healthcare facilities; and
(2) The maintenance and operation of such institutions that will ensure safe,
adequate, and appropriate care, treatment, and health of persons in such
Fla.Stat., § 400.011. The basic standards for nursing home residents have been labeled as “residents’ rights” and are set forth at length within the statue. See Fla. Stat., § 400.022. Similarly, the enforcement mechanism relative to a breach or failure by the nursing home to comply with these rights is addressed through the filing of a claim pursuant to section 400.023 of the Florida Statutes. See Fla. Stat., § 400.023.
I. Resident’s Rights in Florida Nursing Homes
Licensees of nursing home facilities within the state of Florida must adopt and make public a statement of rights and responsibilities of the residents of such facilities and are bound to treat the facilities’ residents accordingly. Fla. Stat., § 400.022(1). Moreover, section 400.022 of the Florida Statutes sets forth certain discreet rights of nursing home residents, which are as follows:
(a) The right to civil and religious liberties, including knowledge of available choices and the right to independent personal decision, which will not be infringed upon, and the right to encouragement and assistance from the staff of the facility in the fullest
possible exercise of these rights.
(b) The right to private and uncensored communication, including, but not limited to, receiving and sending unopened correspondence, access to a telephone, visiting with any person of the resident’s choice during visiting hours, and overnight visitation outside the facility with family and friends in accordance with facility policies, physician orders, and Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act regulations, without the resident losing his or her bed. Facility visiting hours shall be flexible, taking into consideration special circumstances such as, but not limited to, out-of-town visitors and working relatives or friends. Unless otherwise indicated in the resident care plan, the licensee shall, with the consent of the resident and in accordance with policies approved by the agency, permit recognized volunteer groups, representatives of community-based legal, social, mental health, and leisure programs, and members of the clergy access to the facility during visiting hours for the purpose of visiting with and providing services to any resident.
(c) Any entity or individual that provides health, social, legal, or other services to a resident has the right to have reasonable access to the resident. The resident has the right to deny or withdraw consent to access at any time by any entity or individual. Notwithstanding the visiting policy of the facility, the following individuals must be permitted immediate access to the resident:
- Any representative of the federal or state government, including, but not limited to, representatives of the Department of Children and Family Services, the Department of Health, the Agency for Health Care Administration, the Office of the Attorney General, and the Department of Elderly Affairs; any law enforcement officer; members of the state or local ombudsman council; and the resident’s individual physician.
- Subject to the resident’s right to deny or withdraw consent, immediate family or other relatives of the resident.
- The facility must allow representatives of the State Long-Term Care Ombudsman Council to examine a resident’s clinical records with the permission of the resident or the resident’s legal representative and consistent with state law.
(d) The right to present grievances on behalf of himself or herself or others to the staff or administrator of the facility, to governmental officials, or to any other person; to recommend changes in policies and services to facility personnel; and to join with other residents or individuals within or outside the facility to work for improvements in resident care, free from restraint, interference, coercion, discrimination, or reprisal. This right includes access to ombudsmen and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. The right also includes the right to prompt efforts by the facility to resolve resident grievances, including grievances with respect to the behavior of other residents.
(e) The right to organize and participate in resident groups in the facility and the right to have the resident’s family meet in the facility with the families of other residents.
(f) The right to participate in social, religious, and community activities that do not interfere with the rights of other residents.
(g) The right to examine, upon reasonable request, the results of the most recent inspection of the facility conducted by a federal or state agency and any plan of correction in effect with respect to the facility.
(h) The right to manage his or her own financial affairs or to delegate such responsibility to the licensee, but only to the extent of the funds held in trust by the licensee for the resident. A quarterly accounting of any transactions made on behalf of the resident shall be furnished to the resident or the person responsible for the resident. The facility may not require a resident to deposit personal funds with the facility. However, upon written authorization of a resident, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility as follows:
- The facility must establish and maintain a system that ensures a full, complete, and separate accounting, according to generally accepted accounting principles, of each resident’s personal funds entrusted to the facility on the resident’s behalf.
- The accounting system established and maintained by the facility must preclude any commingling of resident funds with facility funds or with the funds of any person other than another resident.
- A quarterly accounting of any transaction made on behalf of the resident shall be furnished to the resident or the person responsible for the resident.
- Upon the death of a resident with personal funds deposited with the facility, the facility must convey within 30 days the resident’s funds, including interest, and a final accounting of those funds, to the individual or probate jurisdiction administering the resident’s estate, or, if a personal representative has not been appointed within 30 days, to the resident’s spouse or adult next of kin named in the beneficiary designation form provided for in s. 400.162(6).
- The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Title XVIII or Title XIX of the Social Security Act.
(i) The right to be fully informed, in writing and orally, prior to or at the time of admission and during his or her stay, of services available in the facility and of related charges for such services, including any charges for services not covered under Title XVIII or Title XIX of the Social Security Act or not covered by the basic per diem rates and of bed reservation and refund policies of the facility.
(j) The right to be adequately informed of his or her medical condition and proposed treatment, unless the resident is determined to be unable to provide informed consent under Florida law, or the right to be fully informed in advance of any nonemergency changes in care or treatment that may affect the resident’s well-being; and, except with respect to a resident adjudged incompetent, the right to participate in the planning of all medical treatment, including the right to refuse medication and treatment, unless otherwise indicated by the resident’s physician; and to know the consequences of such actions.
(k) The right to refuse medication or treatment and to be informed of the consequences of such decisions, unless determined unable to provide informed consent under state law. When the resident refuses medication or treatment, the nursing home facility must notify the resident or the resident’s legal representative of the consequences of such decision and must document the resident’s decision in his or her medical record. The nursing home facility must continue to provide other services the resident agrees to in accordance with the resident’s care plan.
(l) The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.
(m) The right to have privacy in treatment and in caring for personal needs; to close room doors and to have facility personnel knock before entering the room, except in the case of an emergency or unless medically contraindicated; and to security in storing and using personal possessions. Privacy of the resident’s body shall be maintained during, but not limited to, toileting, bathing, and other activities of personal hygiene, except as needed for resident safety or assistance. Residents’ personal and medical records shall be confidential and exempt from the provisions of s. 119.07(1).
(n) The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the licensee, including those required to be offered on an as-needed basis.
(o) The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety.
(p) The right to be transferred or discharged only for medical reasons or for the welfare of other residents, and the right to be given reasonable advance notice of no less than 30 days of any involuntary transfer or discharge, except in the case of an emergency as determined by a licensed professional on the staff of the nursing home, or in the case of conflicting rules and regulations which govern Title XVIII or Title XIX of the Social Security Act. For nonpayment of a bill for care received, the resident shall be given 30 days’ advance notice. A licensee certified to provide services under Title XIX of the Social Security Act may not transfer or discharge a resident solely because the source of payment for care changes. Admission to a nursing home facility operated by a licensee certified to provide services under Title XIX of the Social Security Act may not be conditioned upon a waiver of such right, and any document or provision in a document which purports to waive or preclude such right is void and unenforceable. Any licensee certified to provide services under Title XIX of the Social Security Act that obtains or attempts to obtain such a waiver from a resident or potential resident shall be construed to have violated the resident’s rights as established herein and is subject to disciplinary action as provided in subsection (3). The resident and the family or representative of the resident shall be consulted in choosing another facility.
(q) The right to freedom of choice in selecting a personal physician; to obtain pharmaceutical supplies and services from a pharmacy of the resident’s choice, at the resident’s own expense or through Title XIX of the Social Security Act; and to obtain information about, and to participate in, community-based activities programs, unless medically contraindicated as documented by a physician in the resident’s medical record. If a resident chooses to use a community pharmacy and the facility in which the resident resides uses a unit-dose system, the pharmacy selected by the resident shall be one that provides a compatible unit-dose system, provides service delivery, and stocks the drugs normally used by long-term care residents. If a resident chooses to use a community pharmacy and the facility in which the resident resides does not use a unit-dose system, the pharmacy selected by the resident shall be one that provides service delivery and stocks the drugs normally used by long-term care residents.
(r) The right to retain and use personal clothing and possessions as space permits, unless to do so would infringe upon the rights of other residents or unless medically contraindicated as documented in the resident’s medical record by a physician. If clothing is provided to the resident by the licensee, it shall be of reasonable fit.
(s) The right to have copies of the rules and regulations of the facility and an explanation of the responsibility of the resident to obey all reasonable rules and regulations of the facility and to respect the personal rights and private property of the other residents.
(t) The right to receive notice before the room of the resident in the facility is changed.
(u) The right to be informed of the bed reservation policy for a hospitalization. The nursing home shall inform a private-pay resident and his or her responsible party that his or her bed will be reserved for any single hospitalization for a period up to 30 days provided the nursing home receives reimbursement. Any resident who is a recipient of assistance under Title XIX of the Social Security Act, or the resident’s designee or legal representative, shall be informed by the licensee that his or her bed will be reserved for any single hospitalization for the length of time for which Title XIX reimbursement is available, up to 15 days; but that the bed will not be reserved if it is medically determined by the agency that the resident will not need it or will not be able to return to the nursing home, or if the agency determines that the nursing home’s occupancy rate ensures the availability of a bed for the resident. Notice shall be provided within 24 hours of the hospitalization.
(v) For residents of Medicaid or Medicare certified facilities, the right to challenge a decision by the facility to discharge or transfer the resident, as required under Title 42 C.F.R. part 483.13.
Fla. Stat., § 400.022(1)(a-v). These rights were broadly written by the legislature to ensure the safe, adequate, and appropriate care, treatment, and health of persons in this state’s nursing home facilities.
II. Enforcement of a Resident’s Rights
The provision which allows a resident or someone acting on their behalf to initiate a claim against a nursing home for the violation of any of the resident’s rights listed above is section 400.023 of the Florida Statutes. See Fla. Stat., § 400.023. Specifically, the statute provides:
Any resident whose rights as specified in this part are violated shall have a cause of action. 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 regardless of the cause of death.
Fla. Stat., § 400.023. This section further spells out the elements of such a claim, providing that:
(2) In any claim brought pursuant to this part alleging a violation of resident’s rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evidence, that:
(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident.
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the
(d) The resident sustained loss, injury, death, or damage as a result of the breach.
Fla. Stat., § 400.023(2). The duty element is generally not difficult to satisfy with respect to residents of nursing homes. The fact that a resident sustained damages may also not be a difficult element to establish, as these cases often involve death or significant injury to these individuals. More difficult is the demonstration that the nursing home breached its duty and that the actions of, or failure to act by, the nursing home and/or its staff was the, or a, cause of the injury or death of the resident. It is not enough for the family or average lay witness to testify about these matters. Rather, the law requires a plaintiff in such cases to establish causation through the testimony of the resident’s treating health care providers and/or expert witnesses retained to review the matter. In either instance, the testimony often involves complicated medical matters and requires the use of an attorney familiar with this area of the law.
III. How Does One Know if a Resident’s Rights Have Been Violated?
As a lay person – meaning someone lacking healthcare training, education, and experience – it can be difficult to determine whether there has been a lack of, or inadequate, care of a loved one. The following are typical areas of inquiry when considering whether a resident’s rights are being, or have been, violated:
1) Does the nursing home have a significant smell of urine or feces?
This may be due to the fact that staff is not timely cleaning its incontinent residents. Aside from being a dignity issue, long-time exposure to urine or feces, may accelerate skin breakdown and aid in the development of pressure sores. It may also lead to infection, particularly so with urinary incontinence in the elderly female residents.
2) When staff assistance is needed, are they readily available or do they respond quickly to call lights?
Staff in nursing homes is often overworked, for budgetary reasons, and simply cannot accomplish the numerous tasks on behalf of those residents placed within their charge. Such inattentiveness can lead to a number of problems with, for example, hygiene, nutrition, hydration, or safety.
3) Has there been a sudden change in the resident’s weight?
Weight loss can have devastating effects on the elderly as they often no longer have significant weight reserves. Malnutrition, as typically evidenced by sudden, unplanned weight loss, can wreak havoc on their health, and such weight loss should be monitored closely.
4) Has there been a sudden change in the resident’s mental status?
Although, certainly, watching a loved one suffer from a decline in cognitive function can be devastating, sometimes such changes are due to inadequate or inappropriate care. Inappropriate medication or insufficient dosages or an over-dosage of medication can also cause changes in mentation. Similarly, an underlying and undiagnosed infection and other disease processes can be the root cause of such changes in behavior. Particularly dangerous is the fact that an undiagnosed infection can lead to sepsis, meaning that the infection has become systemic in nature, which can lead to death of the resident. Similarly, injuries to the head may also potentially cause sudden changes in awareness, cognition, and behavior.
5) Is the resident suffering from pressure sores?
Most pressure sores are preventable with proper repositioning of the resident, whether by the staff physically doing so on a regular schedule or through the use of repositioning devices. The development of such sores may be a sign of lack of care by the staff.
6) Does the resident have unexplained bruises or, especially if uncommunicative, do they seem to be in unexplained pain?
Sometimes residents do not receive adequate supervision within the nursing home facility and they sustain falls and/or other injuries. If the nursing home staff is not particularly attentive, the only record of such an injury may be the bruising of the resident or, worse yet, a fracture. Individuals suspected of having fallen should be carefully evaluated for fractures, head injuries, and related injuries. In some instances, also, facilities have been known to illegally restrain residents to prevent them from falling. Aside from being a dignity issue, illegal restraints have led at times to other types of injuries, including bruising and even strangulation.
7) Has the resident been attacked by another resident?
A nursing home can be held responsible for allowing another resident to attack your loved one, if it can be demonstrated that the facility should have been on notice of the risk of such conduct. Often this is the case in dementia wards, where residents have a history of being abusive to caregivers and other residents.
As a side note, in some instances residents are attacked by staff of the nursing home. Such cases are particularly egregious when such staff holds previous convictions or has a work history of being terminated at other facilities for such actions, but is nevertheless employed at the facility in which your resident resides.
These are a few examples of the types of violations that may occur in the nursing home setting. For a complete evaluation of a potential claim, we encourage you to contact us.
IV. Statute of Limitation
Any case asserting claims under Chapter 400 of the Florida Statutes must be brought within two years from the time that the alleged incident[s] occurred or within two years from the time the incident[s] is [are] discovered or should have been discovered with the exercise of due diligence. Fla. Stat., § 400.0236. The Florida legislature mandates that under no circumstances shall any such claim be brought in excess of four years from the date of the incident[s]. Id.
Please remember that your rights, or those of a family member, as guaranteed by Chapter 400 of the Florida Statutes, cannot be enforced indefinitely. If you have any concern about whether your rights or those of a loved one have been violated, we encourage you to seek advice from an attorney who has extensive experience in this area of the law. We also encourage you to explore our website at www.jacksonlawfirm.net to learn more about The Jackson Law Firm, P.A., its attorneys, and the firm’s practice areas. Moreover, we further encourage you to become informed about your, and/or your family member’s, rights and options. You should also ensure that any law firm you consult or retain to represent you has the experience, resources, and ability to litigate your case through the time of trial and, if necessary, appeal.
Should you retain this firm, we will evaluate your case and advise you as to whether, in our opinion, you may have a valid claim for nursing home abuse and/or neglect. Any claim that we pursue will be based upon a contingency fee basis, meaning that unless you recover any proceeds against the nursing home, we are not owed a fee.
If you have a question about whether the treatment of your family member, friend, and/or loved one is / was appropriate under the laws governing nursing homes, assisted living facilities, adult family-care homes, board and care facilities, and other similar residential adult care facilities in the state of Florida, please do not hesitate to contact us immediately at The Jackson Law Firm, P.A.
FN1 Although this firm handles matters involving assisted living facilities and other long-term care facilities, the focus of this article is geared towards Florida’s nursing homes.
© The Jackson Law Firm 2012