Blog

Florida Supreme Court Rules Nursing Home Wrongful Death Claim Must Be Arbitrated

Posted by Guy DiMartino | Mar 08, 2013 | 0 Comments

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 resident's 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 Resident's 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 Resident's 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) 267-9168 or fill out the internet consultation form on the right.

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

What makes me Unique?

What distinguishes my firm from the many injury firms throughout the state is my background as a chiropractic physician treating injured patients for 17 years. This gives you the benefit of having someone fighting for you that understands the nature and extent of your injuries and your road to recovery.

We are Partners

If you are my client, we are partners in your road to recovery. You will always have direct access to me to have your questions answered.

Copyright © 2017 Guy S. DiMartino DC, JD, PA

Areas That We Serve: Hammond, IN | Highland , IN | St. John, IN | Schererville, IN | Griffith, IN | Merrillville, IN | Hobart, IN | Portage, IN | Burns Harbor, IN | Ogden Dunes, IN | Gary, IN | South Haven, IN | Valparaiso, IN | Kouts, IN | Knox, IN | Hebron, IN | DeMotte, IN | Cedar Lake, IN | Crown Point, IN | Dyer, IN | Lowell, IN | Michigan City, IN | LaPorte, IN | Wanatah, IN | Westville, IN | Winamac, IN | South Bend, IN | Plymouth, IN | Elkhart, IN | Whiting, IN | Rolling Prairie, IN

Menu