How to Get Punitive Damages in Florida Nursing Home Negligence and Personal Injury Cases

There are many different kinds of personal injury cases in Florida; the most common are car accidents and truck accidents, instances of medical malpractice, slip and fall incidents, and wrongful death claims. Lawsuits are filed every day by injured people and their families against other individuals, insurance companies, corporations, hospitals, and nursing homes. The majority of the claims seek monetary awards called “damages” to reimburse claimants for past medical expenses, lost earnings, and payment for physical and emotional pain and suffering. These kinds of damages are called “compensatory” under the law because they are designed to compensate injured victims.

Compensatory damages are difficult to prove and are hotly contested in every case. Even so, they are far easier to obtain than Punitive Damages, which differ from compensatory damages because they are designed not to compensate the victim but to punish the defendant for wrongful conduct. In order to claim Punitive Damages, a plaintiff must show evidence of the defendant’s intentional misconduct or conscious gross negligence. Most corporate defendants, like auto insurance companies and hospitals, are less concerned with the amount of punitive damages they may have to pay than the invasive nature of the discovery of their financial data that would be conducted if Punitive Damages were allowed.

For example, in a recent case against an assisted living facility (ALF) called Atria Evergreen Woods, the Personal Representative of Donald Devore, a patient who died in the facility, sought to obtain punitive damages against the ALF for its alleged wrongful conduct. Mr. Devore had been found unresponsive in the ALF’s hot tub during scheduled, supervised, pool activity time. A nurse and certified nursing assistant arrived and began CPR, but Devore was initially declared dead from a heart attack at the scene.   

A wrongful death case against the nursing home was filed in Hernando County, Florida, alleging that the use of the hot tub was contraindicated for Mr. Devore’s medical condition, placing him at higher risk of suffering a heart attack; moreover, the family claimed it had been assured by the ALF that he would not be able to use the hot tub.  

Upon receiving these allegations in a proposed amended complaint, the trial judge–without conducting a hearing even though the defendant had twice requested a hearing–allowed the Plaintiff to seek punitive damages, by permitting him to amend his original complaint.  To be clear, this ruling did not grant the damages, but rather only gave him permission to request a jury to consider them.

The ALF immediately appealed the trial court’s order to Florida’s Fifth District Court of Appeal, which has jurisdiction over Hernando County trial courts. In its appeal the ALF claimed that it had been deprived of due process when the court granted the amendment without a hearing and that the Plaintiff failed to show any evidence of intentional misconduct or conscious gross negligence. The appellate court agreed with the ALF and found that the trial judge “departed from the essential requirements of law,” or in other words made a mistake that was more than merely outside of its discretion and actually violated the law. As a result, the punitive damage request was reversed and the case was sent back to the trial judge with an order to first conduct a hearing.

PUNITIVE DAMAGES IN FLORIDA

Florida Statutes Section 429.297, Florida Statutes (2015), provides the framework for punitive damage claims specifically against Assisted Living Facilities. And that statute, like the general punitive damage statute, found in Florida Statutes Section 768.72(1), Florida Statutes (2015), states that punitive damages are permitted only in cases where there has been a “reasonable showing” by evidence in the record that there is a “reasonable basis” to allow for them.   

The rule also requires that before a party is permitted to amend its complaint to seek punitive damages, they must serve the supporting evidence at least 20 days before a mandatory hearing takes place. There is no exception in the rule that would have permitted this trial judge to grant the Plaintiff’s request without a hearing. Ironically, the rule does not describe what kind of hearing is required.

We express our condolences to Mr. Devore’s family and wish them success in obtaining justice.

FREE INITIAL CONSULTATION WITH A MIAMI PERSONAL INJURY ATTORNEY 1-866-597-4529

If you have been injured or if a member of your family has been injured or died while at a nursing home, assisted living facility, or under the supervision of any other healthcare provider or similar careless defendant, our personal injury lawyers in Miami are experienced and passionate about helping our clients obtain money to compensate them for lost wages, medical expenses, funeral costs, and pain and suffering. Speak with an experienced personal injury attorney today regarding your potential claim, by phone at 305-441-0440, or toll-free at 1-866-597-4529, email at [email protected], or FACETIME.

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¹After litigating this case for approximately a year, the Plaintiff attempted to add a claim for punitive damages against the ALF, in accordance with the requirements of Florida’s Rule of Civil Procedure 1.190(f) and attached a proposed amended complaint and a written proffer to the motion to amend that consisted of eighteen separate sections, including expert affidavits, Mr. DeVore’s autopsy report, deposition transcripts, the ALF’s Management Agreement, the ALF’s Policies and Procedures Index, photographs, a map of the ALF pool area, the ALF’s activity calendar, and the State of Florida Department of Health Inspection Reports for the ALF’s hot tub.

²WG EVERGREEN WOODS SH, LLC, ATRIA MANAGEMENT COMPANY, LLC, VENTAS SENIOR HOUSING, LLC, VENTAS AOC OPERATING HOLDINGS, INC., VTR EVERGREEN WOODS, LLC F/K/A A98 SENIOR LLC AND JAMES WESTRICH, Petitioners, v. JULIE A. FARES, AS PERSONAL REPRESENTATIVE IN THE ESTATE OF DONALD L. DEVORE, Respondent. 5th District. Case No. 5D16-1204. Opinion filed December 30, 2016.

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