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Nursing Home Negligence

I believe that my elderly father is the victim of nursing home negligence. How do I get the medical records to find out? Under Federal and Florida law, the medical records of nursing home residents are available to a variety of duly authorized individuals and representives.Section 164.502(g) of Title 45, Subtitle A, Code of Federal Regulations (part of HIPAA), provides that nursing homes must treat any person who has authority to act on behalf of a deceased individual as if that person was the deceased individual.2009->Ch0400->Section%20145#0400.145″ target=”_blank” rel=”noopener noreferrer”>Section 400.145(1) of the Florida Statutes declares that nursing home records shall not be considered as part of an estate and are to be made available to a spouse, guardian, surrogate, or proxy prior to administration of an estate.Both HIPAA and 400.145(1), Fla. Stat. also require nursing homes to make records available even though the person is still alive. Section 164.502(g) of the C.F.R. provides that nursing homes are required to disclose records to any person authorized to act on behalf of an individual with regard to health care. Section 400.145(1) of the Florida Statutes requires the release of nursing home records to any spouse, guardian, surrogate or proxy for a resident who has not died. 2009->Ch0765->Section%20401#0765.401″ target=”_blank” rel=”noopener noreferrer”>Section 765.401 of the Florida Statutes describes the authority of a “proxy” to act on behalf of an incapacitated person. A proxy is defined as including the patient’s spouse, an adult child of the patient, a parent of the patient, and even a close friend of the patient. Finally, a facility that fails to comply with a duly authorized request for records is subject to being sued pursuant to Section 400.0233, Fla. Stat. as authorized by Section 400.0234, Fla. Stat.

I would like to bring a lawsuit against a nursing home for harming my mother. However, the paperwork signed when she was admitted to the facility contains an arbitration agreement. Can I defeat the agreement? It depends. A lawyer would need to see the agreement and hear the facts. These are some issues that come up with regard to arbitration clauses:Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscionability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 256 (Fla. 2d DCA 2006). If the arbitration agreement is not procedurally unconscionable, the court does not reach substantive unconscionability. Id. at 257; Eldridge v. Integrated Health Servs., Inc., 805 So. 2d 982, 982 (Fla. 2d DCA 2001). Procedural unconscionability relates to the manner in which the contract was made. Bland, 927 So. 2d at 256. It involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. Id. A court can find a contract unconscionable if important terms are “hidden in a maze of fine print,” minimized by deceptive sales practices, or if the contract has a “take it or leave it” approach with an absence of meaningful choice on the part of the consumer. See Orkin Exterminating Co., 872 So. 2d at 265; Powertel, Inc. v. Bexley, 743 So. 2d 570, 574 (Fla. 1st DCA 1999). To determine if an arbitration agreement is procedurally unconscionable, “a court must look to the `circumstances surrounding the transaction’ to determine whether the complaining party had a `meaningful choice’ at the time the contract was entered.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 284 (Fla. 1st DCA 2003) (quoting Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449 (D.C. Cir. 1965)).In Tampa HCP, LLc v Bachor, Fla: Dist. Court of Appeals! 2nd Dist. 2011, a case involving the death of a nursing home resident where the admission papers were signed by her daughter, the court pointed to the following factors in finding that procedural unconscionability was NOT shown.

  • The admission paperwork was signed three days before the resident was admitted.
  • The daughter was not rushed to sign the admission documents or given misleading information concerning its contents.
  • The arbitration agreement was clearly labeled as such in large capital lettering at the top of the page.
  • The agreement did not contain any limitations on damages, discovery and appellate rights.
  • The agreement gave the daughter the right to have it reviewed by an attorney before it was signed and 30 days to rescind after execution.
  • Execution of the agreement was not a precondition to the furnishing of services to the resident.

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