FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 3

CASES FROM THE WEEK OF JANUARY 20, 2017

ERROR TO COMPEL ARBITRATION IN NURSING HOME CASE WHEN EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT ENTITY THAT ACQUIRED NURSING HOME HAD ITS RESIDENTS SIGN-OFF ON THE NEW ARBITRATION AGREEMENT.

Dea v. PH Fort Myers, LLC, 42 Fla. L. Weekly D168 (Fla. 2nd DCA January 13, 2017):

A woman was admitted to an ALF in 2013. Her son held her durable power of attorney, when provided that if he were unable or unwilling to serve as the attorney-in-fact, he would appoint his brother to do it.

The next year, another entity acquired the ALF. It purported to amend the residence and services agreement. It replaced the fee summary but explicitly said it would not modify any other section of the residency agreement.

When the resident was injured and sued, the ALF moved to compel arbitration. As it turned out, her other son (without the durable power of attorney) signed the documents.

The plaintiff first asserted that the arbitration agreement was not part of the newly signed agreement, and also that the son who signed it did not have the authority to bind his mother, because the son with the power of attorney, was not shown to be unable or unwilling.

The court reversed the order compelling arbitration. It first noted that generally a non-signatory to a contract containing an arbitration agreement cannot compel a signatory to submit to arbitration. Because the current owner was not a party to the original residency agreement, and because the arbitration agreement was silent on whether successors in interest could enforce the agreement, it was unenforceable. In fact, there was no document in the record--notwithstanding the claims by the ALF--that the resident had signed a new residency agreement.

Alternatively, the court concluded that the brother who signed the agreement did not have the authority to do so under the power of attorney anyway. Without evidence that the person imbued with that authority had resigned or was unable or unwilling to serve, the brother had no right to act in that capacity.

NO NEED TO PRESUIT SEXUAL ASSAULT IN A HOSPITAL BECAUSE IT IS NOT MEDICAL MALPRACTICE--HOWEVER, COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT FOR HOSPITAL ON CLAIM THAT IT FAILED TO COMPLY WITH STATUTORY DUTY TO INSTITUTE AND MAINTAIN A RISK MANAGEMENT PROGRAM CONCERNING ADVERSE INCIDENTS BECAUSE SEXUAL ASSAULT DOES NOT QUALIFY AS SUCH UNDER THE STATUTE.

St. Joseph’s Hospital v. Doe, 42 Fla. L. Weekly D170 (Fla. 2nd DCA January 13, 2017):

Plaintiff alleged that while she was a mental health patient at the hospital, a technician employed by the hospital sexually assaulted her in the room. She further alleged that when she reported the incident, hospital officials tried to intimidate her, and failed to investigate the allegation. Because that count did not involve medical malpractice, there was no need for the plaintiff to presuit the defendant on that basis.

In the second count, the plaintiff alleged violations of section 766.110 entitled “Liability of healthcare facilities.” Pursuant to that statute, hospitals have a duty to assure comprehensive risk management and competent medical staff.

The plaintiff specifically alleged that the hospital violated the requirements of that section as well as the comprehensive risk management program found in section 395.0197. That section is an internal risk management program pertaining to adverse incidents in hospitals and health care facilities.

Because any claim pleaded under that section is necessarily a “medical negligence” claim based on the definition, the plaintiff could not plead a count under those sections and not complying with presuit notice requirements. The court also noted that specific allegations of sexual assault do not meet the statutory definition of “adverse incident” according to the statute’s definition. The trial court should have granted summary judgment as to that count in the complaint.