Florida nursing home lawyer, Guy S. DiMartino, DC, JD, discusses nursing home arbitration agreements and wrongful death cases.
In the initial paperwork when a resident goes into a Florida nursing home, the resident or his/her legal representative will be presented with an arbitration agreement. In essence, the agreement will state that the resident and/or their legal representative agree to arbitrate any and all claims against the facility.
In the recent case of Laizure v. Avante at Leesburg, the personal representative of the resident who passed away filed a wrongful death case claiming negligence and violations of a the residents rights. The nursing home moved to invoke the arbitration clause and the personal representative disputed that the arbitration agreement claiming that the resident that signed the agreement had passed away.
The specific facts in Laizure are as follows:
- In 2006, the resident was admitted to Avante of Leesburg for rehabilitation after surgery and died a few days later. The personal representative sued for wrongful death. The arbitration agreement stated:
The Facility and the Resident and/or Residents Authorized Representative (hereinafter referred to collectively as the “Parties”) understand and agree that any legal dispute, controversy, demand, or claim where the damages or other amount in controversy is/are alleged to exceed ten thousand dollars ($10,000.00), and that arises out of or relates to the Resident Admission Agreement or is in any way connected to the Residents stay at the Facility shall be resolved exclusively by binding Arbitration; and not by a lawsuit or resort to other court process. The parties understand that arbitration is a process in which a neutral third person or persons (“arbitrator(s)”) considers the facts and arguments presented by the parties and renders a binding decision.
This agreement to arbitrate shall include, but is not limited to, any claim based on . . . breach of contract, breach of fiduciary duty, fraud or misrepresentation, common law or statutory negligence, gross negligence, malpractice or a claim based on any departure from accepted standards of medical or nursing care (collectively “Disputes”), where the damages or other amount in controversy is/are alleged to exceed ten thousand dollars ($10,000.00). This shall expressly include, without limitation, claims based on Chapter 400, Florida Statutes, which allege damages in excess of ten thousand dollars ($10,000.00).
This agreement shall be binding upon, and shall include any claims brought by or against the Parties representatives, agents, heirs, assigns, employees, managers, directors, shareholders, management companies, parent companies, subsidiary companies or related or affiliated business entities.
The trial court compelled arbitration and the personal representative appealed the issue to the Fifth District Court of Appeal. The appellate court held that the injury that caused the death happened to the resident and the wrongful death claim is derivative of what happened to the resident so the parties were required to arbitrate the matter. The Fifth District certified the matter the Florida Supreme Court and the Supreme Court decided to take jurisdiction and look at the issue.
The Florida Supreme Court said that there is no question that the wrongful death claim fell within the language of the arbitration agreement. So the supreme court in our state has come down telling us that if a loved one has died because of poor care in a nursing home, the claim must be arbitrated if there is a valid arbitration agreement.
If you have any questions about a Florida nursing home abuse matter, give me a call at 352-329-0329 or fill out the internet consultation form on the right.