Beverly Enterprises-Florida, Inc. v. Spilman, ENTERPRISES-FLORID

• Citation: 661 So.2d 867
• Decision Date: 29 September 1995
• Docket Number: INC,No. 94-376,ENTERPRISES-FLORID,94-376
• Parties: 20 Fla. L. Weekly D2228 BEVERLYd/b/a Eastbrooke Health Care Center, Appellant, v. Wilbur W. SPILMAN, as Personal Representative of the Estate of Walter M. Spilman, Appellee.
• Court: Court of Appeal of Florida (US)

Page 867

661 So.2d 867

20 Fla. L. Weekly D2228

BEVERLY ENTERPRISES-FLORIDA, INC. d/b/a Eastbrooke Health Care Center, Appellant, v. Wilbur W. SPILMAN, as Personal Representative of the Estate of Walter M. Spilman, Appellee.

No. 94-376.

District Court of Appeal of Florida Fifth District.

Sept. 29, 1995.

Gail Leverett Parenti of Parenti, Falk, Waas & Frazier, Coral Gables, for appellant.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Ollin & Perwin, P.A., Miami, amicus curiae for Nursing Home Hotline.

David R. Gemmer and James L. Wilkes, II, of Wilkes and McHugh, Tampa, and Dennis J. Wall, Orlando, for appellee.

A.E. (Ned) Pooser, IV, Tallahassee, amicus curiae for Office of State Long-Term Care Ombudsman.

PETERSON, Chief Judge.

Appellant, Beverly Enterprises-Florida, Inc. d/b/a Eastbrooke Health Care Center (Eastbrooke), appeals a final judgment awarding $719,064.02 in compensatory damages and $2,000,000 in punitive damages to appellee, Wilbur W. Spilman, as personal representative of the estate of Walter M. Spilman. Wilbur's father, Walter, died after he was admitted to a hospital for treatment of infections allegedly contracted while he was under Eastbrooke's care. Eastbrooke contends first that the trial court violated the provisions of section 400.023, Florida Statutes (1991), by denying its motion to dismiss claims for pain and suffering and by instructing the jury that such damages could be awarded. Second, Eastbrooke alleges the trial court erred by denying its motion for directed verdict on the issue of punitive damages, because the evidence was insufficient to demonstrate malicious or willful disregard of Walter's rights as a nursing home patient.

PAIN AND SUFFERING UNDER SECTION 400.023

Eastbrooke contends that the trial court erred in denying its motion to dismiss claims for Spilman's pain and suffering and in instructing the jury that they could award such damages. Eastbrooke submits that where a cause of action pursuant to section 400.023, Florida Statutes (1991), is advanced under a theory that the person has died as a result of the deprivation of his nursing home resident's rights, the nature and measure of damages are controlled by the Wrongful Death Act, sections 768.16--.27, Florida Statutes (1991), rather than by the survival statute, section 46.021, Florida Statutes (1991). Sections 768.16--.27 do not provide for an award of damages for the decedent's physical and mental pain but section 46.021 does allow such damages.

We find no error in the trial court's denial of the motion to dismiss. Section 400.022, Florida Statutes (1991), sets forth the specific rights of nursing home residents. The civil enforcement statute, section 400.023, Florida Statutes (1991), further provides as follows:

Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation. The action may be brought by the resident or his guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages, unless the court finds that the plaintiff has acted in bad faith, with malicious purpose and that there was a complete absence of a justiciable issue of either law or fact. Prevailing defendants may be entitled to recover reasonable attorney's fees pursuant to s. 57.105. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. ¹

(Emphasis added).

When section 400.023 was first enacted in 1980, it addressed only the rights of residents who survived the violation of their rights and allowed them to seek actual and punitive damages. ² However, this problem was later recognized--as reflected in transcripts of the committee hearings on House Bills 154 and 79 of the 1985 Regular Session:

HOUSE BILL NO. 154:

REP. CANADY: This bill would amend Chapter 400, which sets forth the law concerning nursing homes. And in Chapter 400 currently there is set forth sort of a nursing home residents' Bill of Rights. It's a detailed listing there of the rights that the people who live in nursing homes have under the law. The law also gives the residents of nursing homes the right to bring a legal action to enforce those rights if they're violated. So essentially, if a resident of a nursing home is mistreated in some way--and that's really what it all boils down to--then the resident can sue the operator of the nursing home for damages and so on to redress that wrong that has been done. There's an anomalous situation under the laws that now exist in that although a resident can do that, if the resident is treated so badly that the resident actually dies as a result of that, the cause of action does not survive so that no suit can be brought. In my home county we had this exact same situation come up. So the proposed--the proposal here would be to simply extend that cause of action to the personal representative of the estate of a deceased nursing home resident.

* * * * * *

REP. BILL BANKHEAD: Would you have any idea as to the limits of liability for the nursing home owners that might arise out of a suit so foul?

CHAIR: Don't get yourself going, Mr. Bankhead, he may know the answer to that.

REP. CANADY: It would be the same as the--if a cause of action were brought by a living resident.

REP. DAVE THOMAS: Could I make one comment to Mr. Bankhead? ... Are you implying that we should limit the liability of nursing homes that beat people to death?

CHAIR: All in jest. Secretary call the roll on the bill. [Bill passes].

* * * * * *

HOUSE BILL NO. 79:

REP. CANADY: Members, this bill has been before the Committee before and actually has passed the House last session. It is a bill changes Chapter 400. Under Chapter 400 currently the residents of nursing homes are given certain rights, basically the right to be treated decently and receive proper care. They are also given a legal remedy in case those rights are violated and not properly honored. However, there's an anomaly under the law in that if a nursing home resident is abused and they survive that they can bring a lawsuit. However, if they're abused so badly that they die, the cause of action is lost. So this bill would simply amend the statute to provide that the personal representative of the estate of a deceased nursing home resident would also be able to bring an action under Chapter 400 to redress the rights of a deceased nursing home resident. [Bill passes].

Ultimately, Senate Bill No. 128, amending section 400.23 to provide for actions being brought by the decedent's personal representative, became law on June 9, 1986. Ch. 86-79, Sec. 1, at 2, Laws of Fla. The answer brief of the Office of State Long-Term Care Ombudsman also points out:

Under [Eastbrooke's] theory, it would be cheaper for a nursing home to kill its residents and thereby limit claims by personal representatives to the damages listed in the Wrongful Death Act. Such construction not only offends the strong public policy that nursing homes are to "promote maintenance or enhancement of the quality of life of each resident," but basic statutory construction. See Williams v. State, 492 So.2d 1051, 1054 (1986) (statutes should not be given a meaning that leads to an absurd or unreasonable result).

Both the plain language of the statute and the transcripts of the committee hearings indicate that the legislature did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home's infringement or deprivation of the patient's rights resulted in the patient's death.

PUNITIVE DAMAGES

Eastbrooke contends that the trial court erred in denying its motion for directed verdict on the issue of punitive damages because it believes the evidence was insufficient to demonstrate that its agents acted in a manner that was malicious or in willful disregard of the rights of others.

Section 400.023(1), Florida Statutes (1991), allows recovery of punitive damages when the rights of nursing home residents are violated. Eastbrooke admitted that it violated Walter Spilman's rights under the statute, but that admission does not necessarily invite liability for punitive damages. In order to warrant an award of punitive damages, one district court requires a character of negligence evincing willful, wanton, and intentional misconduct sufficient to sustain a conviction for manslaughter. Key West Convalescent Ctr., Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993). The supreme court has declared:

The character of negligence necessary to sustain an award of punitive damages must be of a "gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them".

White Constr. Co. v. Dupont, 455 So.2d 1026, 1029 (Fla.1984) (quoting Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla.1959)).

Our review of the record in the instant case leads us to conclude that the jury could reasonably find that the acts and omissions of Eastbrooke warranted an award of...