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Is Medical Malpractice a Form of Elder Abuse in Florida?


Florida law provides strong protections against elder abuse. For example, under Section 415.1111 of the Florida Statutes, if a “vulnerable adult” has been abused, they can file a civil lawsuit “against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” However, it is important to note that this law may conflict with other provisions of the Florida Statutes governing medical malpractice claims.

Appeals Court Reverses Elder Abuse Award Against Hospital, But Holds It 100 Percent Responsible for Malpractice Verdict

In a recent decision, Specialty Hospital-Gainesville, Inc. v. Barth, the Florida First District Court of Appeal addressed this conflict. The case involved a plaintiff who was paralyzed during a surgical procedure. The plaintiff was then moved to a long-term care facility operated by the defendant, Specialty Hospital. During his time at Specialty, the plaintiff “suffered a deep-tissue pressure ulcer,” according to court records, and was later transferred to two other facilities, where he required additional surgery.

The plaintiff sued Specialty Hospital, alleging both medical malpractice and elder abuse. Specialty Hospital moved to dismiss the elder abuse allegation, arguing medical malpractice could not form the basis of a Section 415.1111 claim. The trial judge denied the motion and the case proceeded to a jury trial.

The jury ruled in favor of the plaintiff, awarding him over $561,000 in damages for medical malpractice, and another $25,000 for elder abuse. The jury further found that Specialty Hospital was 70 percent liable for the medical malpractice award, apportioning the other 30-percent liability to another health care facility that treated the plaintiff but was not a party to this lawsuit.

Both sides appealed. Specialty Hospital repeated its argument that medical malpractice could not form the basis for an elder abuse claim under Florida law. Meanwhile, the plaintiff argued Specialty should have been held 100 responsible for the medical malpractice award. The First District agreed with both arguments.

With respect to elder abuse, the appeals court said Section 415.1111 applies to “any perpetrator” of abuse. In this context, a “perpetrator” is not a health care provider. Indeed, “The entire legislative scheme of Chapter 415 is to protect vulnerable adults, not to provide a duplicative remedy for medical malpractice.” Furthermore, medical malpractice cases involved “complex issues of liability” that by their very nature differ from “the typical personal injury suit.”

Here, all of the evidence presented at trial “indicated the abuse of neglect” suffered by the plaintiff “was directly related to medical care or services.” Therefore his only remedy against Specialty Hospital was rooted in medical malpractice law.

And on that point, the First District said the jury’s decision to apportion some of the fault to a third party was inappropriate. Specialty Hospital’s own argument was that “its own negligence and [the third party’s] negligence combined to create” the plaintiff’s injury. The problem was that there was no evidence the third party, which treated the plaintiff after Specialty Hospital, actually caused the “original” injury; at best it merely aggravated the injury caused entirely by Specialty Hospital’s negligence. And under Florida law, the First District said, the “initial tortfeasor is liable for subsequent medical malpractice that adds new injuries or aggravates the initial injury.”

Speak with a Florida Elder Abuse Attorney Today

Elder abuse and medical malpractice both represent serious threats to some of Florida’s most vulnerable residents. If you or a family member need legal advice from a qualified Fort Myers elder abuse lawyer, contact the Kuhn Law Firm, P.A., at 239-333-4529 today.


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