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The Centers for Medicare and Medicaid Services (“CMS”) recently enacted a new federal regulation [42 C.F.R. Section 483.70(n)(1)] that invalidates arbitration agreements signed at the time of a person’s admission to any nursing home that accepts reimbursement from either Medicare or Medicaid.  This covers essentially every nursing home in the country.

Through an arbitration agreement, a nursing home resident waives his or her constitutional right to a trial by jury in the event the nursing home is negligent and causes injury or death. Instead, through arbitration, one to three attorneys, acting as arbitrators, would decide whether nursing home neglect occurred and, if so, the amount to be awarded to compensate the injured person for medical expenses, funeral expenses (if death resulted from the neglect), and emotional losses.

Arbitration agreements have long been the bane of attorneys that handle nursing home injury and wrongful death cases because, generally speaking, arbitrators tend to be more conservative than juries.  Arbitrators deal with tragic claims routinely.  The thought is that, in doing so, they can become desensitized to neglect and the resulting injuries or death.  Jurors on the other hand, having not been exposed to such tragedies on a regular basis, may be shocked by neglect and have more sympathy with respect to the injury or wrongful death that resulted.

Arbitration agreements, which are usually presented by a nursing home employee along with a host of other paperwork at the time of admission, are controversial to begin with.  Many residents have some degree of dementia and their ability to fully understand the rights they are signing away can be questionable.  Further, with many admissions documents being signed at once, it is common that relatively little explanation is given to the new resident about the effect of the arbitration agreement.

Our law firm challenges the enforceability of arbitration agreements on numerous bases including: whether the resident had the mental capacity to understand the nature of the rights being waived; whether a family member that signed the agreement had the authority to sign on the resident’s behalf, which is usually conveyed by a pre-existing power of attorney; and whether the agreement is unambiguous in the language used to explain what is being waived.  Despite these challenges, it is common that there is no “out,” and the case proceeds to arbitration.

Acknowledging the unfairness of arbitration agreements, CMS enacted the new rule which was to take effect with respect to any arbitration agreements signed after November 27, 2016.

The legality of the new rule has already been challenged by the nursing home industry. Unfortunately, the Court hearing the case – the United States District Court for the Northern District of Mississippi – has made a preliminary finding that there is a “substantial likelihood” that CMS did not present sufficient justification for banning arbitration agreements in nursing home neglect cases. The necessary support, according to the Court, required objective proof that arbitration actually caused the harmful effects CMS relied on in making the rule.

Furthermore, the Court held that CMS overstepped its authority in enacting the rule.  Simply put, an agency, as part of the executive branch of government, cannot create legislation.  Instead, rules created by an agency are supposed to help implement the laws as enacted by Congress.  Citing the fact that Congress has considered, but not passed, bans on arbitration agreements for nursing home abuse or neglect claims, the Court found that CMS lacked the authority to ban arbitration agreements even though it is charged with the task of: “protecting and promoting the rights of each resident;” establishing “other rights” for residents; and promoting the “health, safety and welfare” of residents.

The Court’s ruling is only preliminary; however, the obstacles presented by its preliminary injunction Order present a very burdensome task.  Should the rule ultimately be ruled invalid on the basis that CMS overstepped its authority and effectively enacted legislation, it is unlikely that Congress will ban nursing home arbitration agreements any time in the near future, given the current Republican majority.

We will continue to monitor and report on developments regarding this issue. Continue reading

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Interstate 95 which runs through the length of Jacksonville’s Duval County and goes directly through downtown, is the country’s fifth deadliest interstate according to Everquote Auto Insurance Company.  Everquote compiled data provided by the National Highway Traffic Safety Administration.

I-95 had nearly one death per mile during the five year period of 2010 to 2015.  To put that in perspective, I-95 traverses approximately 30 miles in Duval County – meaning there were nearly 30 deaths on this stretch of interstate during the five year period.

Interstate 10, the eastern end of which begins in Jacksonville, was ranked the seventh most deadly with .85 deaths per mile.  Interstate 4, which runs from Tampa to Daytona, is Florida’s deadliest interstate with an astonishing 1.4 deaths per mile. I-4 is our nation’s fourth deadliest interstate.

The U.S. Department of Transportation also reports a greater than 10% increase in traffic deaths from January 1, 2016, compared to the same six months of 2015.  This may be an anomaly, it may result from an increase of vehicles on the road due to a sharp decrease in gas prices, or it may be due to an increase in distracted driving.  No matter what the cause, we should experience a decrease in collisions over time, not an increase.

What is worse is that 2015 brought the highest increase in traffic fatalities in fifty years according to the National Safety Council.  More than 38,000 people were killed in vehicle accidents in 2015 and another 4 million people required medical care for injuries.  Furthermore, 2014 showed an 8% increase over 2013.  Even though more miles are being driven in the years since the recession that began in 2008, the rate of fatal accidents has outpaced the increase in total miles driven.  The exact cause is not known; however, we suspect that texting, tweeting and using Facebook while driving have played a significant role.

We certainly seem to see more drivers than ever on their cell phones while driving at highway speeds. Whenever I notice someone using their phone while driving (typing, not talking), I take measures to make sure that person does not end up behind me.  Texters often fail to appreciate slowing traffic in time and frequently cause rear-end collisions.

Because interstates involve much higher speeds than local roads, the chances of suffering severe injury or death in a collision are higher than accidents that occur on local roadways.  Further complicating things is that the downtown Jacksonville portion of I-95 has been under constant construction for over ten years now.  Construction causes abrupt lane changes, sudden stops and confusion to motorists, all of which contribute to the chances an accident will occur. Continue reading

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Now that the danger from Hurricane Matthew has passed, the cleanup – and insurance claims – processes begin.  Hurricane Matthew skirted just east of Jacksonville as a category 3 storm, causing an estimated $70 million in damages in Duval County alone.  Counties further to the south, including St. Johns, Flagler and Volusia suffered even worse damage as the storm passed closer to their coasts.

Businesses and houses were flooded, roofs were damaged, oceanfront homes lost their entire backyards, trees fell, and signs were destroyed.  There will be thousands of insurance claims in the Jacksonville area.  Most of them will be adjusted and paid fairly; however, others will not.

Despite the fact that Floridians pay extraordinarily high insurance rates to take into account the threat of hurricanes, some insurers look for every excuse possible to avoid paying claims.  It is important that you don’t give them ammunition to do so.

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In January, a twenty-nine year old driver caused a fatal accident driving the wrong way on Interstate 295 near the intersection with Interstate 95 here in Jacksonville.  The car crash happened at 4:00 a.m.  Sadly, a sixty-nine year old military veteran and grandfather died as a result of the accident.  The wrong way driver was also critically injured in the crash.

Hours after the accident, the blood alcohol level of the wrong way driver was .117 – well above Florida’s .08 maximum blood alcohol level.  Given that alcohol in the blood dissipates at the rate of approximately .015% per hour, a two hour delay between the accident and blood testing would put the driver’s blood alcohol level at .147, nearly twice the legal limit.  The wrong way driver was not arrested for driving under the influence/manslaughter until last week – six months after the collision.

 

Wrong way car accidents are much more common than many people think. During 2015, there were 1490 wrong way crashes in Florida alone – more than four per day.  Because wrong way car accidents typically cause head-on collisions, the injuries that result are often tragic. This is illustrated by the 96 fatalities and 1454 injuries that resulted from 2015’s 1490 crashes. In more than two-thirds of wrong way car accidents, the driver was either injured or killed.

Whenever I hear of a wrong way accident, I tend to assume the driver going the wrong way was intoxicated; however, the statistics do not support this presumption.  With respect to Florida’s wrong way collisions in 2015, fifty-one percent of the at-fault drivers were not intoxicated at the time of the crash.

There are things you can do to minimize your chances of being involved in a wrong way car accident.  According to the Florida Department of Highway Safety and Motor Vehicles, interstate and freeway drivers should stay in the right lane, especially at night, to avoid the chances of being struck by a wrong way driver.  According to the Department, most fatal wrong way accidents take place in the left or center lane.

Of course, it is also very important to take steps to ensure you do not enter an expressway going the wrong way. As referenced above, many wrong way drivers were not intoxicated.   To prevent such mistakes it is important to: avoid driving while drowsy; avoid distractions, such a cellphones, while driving; and not driving after dark if your night vision is impaired.

In addition, Florida’s Department of Transportation is implementing new measures in an effort to reduce wrong way accidents.  FDOT is installing additional signage at expressway exit ramps warning drivers that they are proceeding in the wrong direction.  FDOT is also installing flashing lights at exit ramps and using radar to detect wrong way drivers headed up exit ramps. When the radar detects a wrong way driver, emergency alert signage warns others drivers to be on the look out for the wrong way vehicle.

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The Florida Agency for Health Care Administration regulates nursing homes throughout the state.  As part of this process, every six months, the agency releases its survey findings and this month it released its inspection ratings for the October of 2015 through March of 2016 period.

The ratings are based on a five star system and includes survey results for each nursing home in the following categories: dignity; decline; restraints and abuse; nutrition and hydration; administration; quality of life; and quality of care.  The end result is an “overall inspection” rating.

A “one star” overall inspection rating means a nursing home is in the bottom 20% of the facilities in the Jacksonville region.  “Two stars” means a nursing home ranked better than 20% but less than 40%.  Three, four and five star ratings follow a similar formula, with each bracketed in 20% divisions.

Many nursing homes in the Jacksonville region were ranked as one star facilities.  Those nursing homes include: Avante at Jacksonville Beach; Brookdale Atrium Way 2; Consulate Health Care of Jacksonville; Governor’s Creek Health and Rehabilitation; Heartland Health Care Center – Jacksonville; The Ponce Therapy Center; Signature Health Care of Jacksonville; and Woodland Grove Health and Rehabilitation Center.

Perhaps not surprisingly, our law firm has represented clients in claims of neglect against five of these eight nursing homes.  In comparison, we have not handled a single case against any of the five star rated nursing homes, yet every nursing home is paid in the same manner by Medcaid and Medicare.  What does this tell us? It tells us that nursing homes receive enough money to take proper care of residents.

We find many problems when nursing homes attempt to increase profits by decreasing the expense of hiring enough nurses and nurse assistants to take proper care of residents.  Florida has minimum standards that require a certain number of nurses and nurse assistants providing direct care to residents based on the resident population of the nursing home.

These are minimum standards, yet often we find that nursing homes cut as close to the minimum levels as possible and, in some instances, we have uncovered situations where nursing homes included time for nurses that did not provide direct care.

In one instance, we determined that a certified nurse assistant’s time was included for shifts she did not even work.  In another, we learned that a nurse assistant assigned to our client was disciplined for actually sleeping on the job instead of tending to our client.  Sadly, the woman died from a curable infection.

It takes a lot of digging to find such deficiencies.  Hiring a lawyer experienced in nursing home neglect cases is very important.

Nursing homes in the Jacksonville area with a two star ranking include: Heartland Health Care Center of South Jacksonville;  and San Jose Health
and Rehabilitation Center.

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The greater Jacksonville area has had a rash of tragic motorcycle accidents causing fatalities during the last ten days.  Four of these accidents involved a vehicle that failed to yield to the motorcyclist when making a left turn.  In at least two of these motorcycle accidents, the person operating the motorcycle was not wearing a helmet.  Four of the accidents happened in Duval County, one in Flagler County and two in Clay County.

Left turn accidents are the second most common type of accident our lawyers encounter, with rear-end collisions being the most common.  Left turn accidents are especially tragic for motorcyclists who typically hit the turning car head-on. Further compounding the problem is that motorcycles, with their much smaller profile, are harder to see than larger vehicles.  With texting and the other driver distractions that are so common these days, the failure to appreciate that a motorcycle is approaching becomes all the more likely.

Most motorcyclists are trained to drive defensively and to be on the lookout for drivers that do not see them; however, drivers turning left across their path of travel often offer no opportunity to avoid impact.

Defensive driving tactics for motorcyclists include:

– wearing a helmet;

– having a working headlight on at all times;

– operating within the speed limit;

– not driving in the blind spots of other vehicles;

– not sharing a single lane with other motorcyclists;

– riding a safe distance behind the vehicle in front of you; and

– watching for drivers trying to turn left across your path of travel, especially when their light is yellow;

– leaving yourself an “out” in case something unexpected happens;

– never drive when drowsy, under the effects of medication, alcohol or illegal substances; and

– take a motorcycle driving course.

According to the Insurance Institute for Highway Safety, in 2013, motorcyclists were twenty-six times more likely to die in an accident than occupants of four wheeled vehicles.  Motorcyclists account for approximately fourteen percent of traffic deaths despite representing only a tiny fraction of the number of vehicles on the road.

Florida law requires that motorcycle operators under the age of twenty-one wear helmets.  Operators who are at least twenty-one years of age are required to carry at least $10,000.00 in insurance to cover them for injuries they might suffer.  This law is designed to ease the burden on the state and public to pay for the increased injuries that can result from the failure to wear a helmet.

Florida law also requires that drivers under the age of twenty-one must take a course in motorcycle operation.  Drivers twenty-one and over can take a skills test instead of taking the course.

 

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A Jacksonville nursing home that our firm has sued on two occasions for causing the death of elderly residents has made the news for another death. As reported by Jacksonville’s Channel Four News , a resident at the Harts Harbor Health Care Center was hit in the head by another resident wielding a dresser drawer. The resident that struck him is reportedly suffers from dementia.

The victim suffered a very serious intracranial hematoma that required surgery.  Tragically, approximately three weeks after the incident, the man passed.  He was only 61 years old.

Nursing homes must be on the lookout for resident on resident violence, especially with residents suffering from dementia.  While some people suffering from dementia are very pleasant, others may exhibit aggressive behavior. Such behavior can be very uncharacteristic of the how the person acted before the onset of dementia.  Depending on the degree of dementia at issue, the person may not even be aware of the nature of his or her actions.

In cases like this, the nursing home must closely monitor the behavior of its residents suffering from dementia.  Often, aggressiveness caused by dementia will escalate over time, which may provide the nursing home the opportunity to catch the behavior before serious injuries occur.  An aggressive resident may not be a good fit in a nursing home environment, and, if other residents’ safety is being compromised, the aggressive resident must be placed elsewhere.

Resident on resident violence is a serious problem in nursing homes.  Several years back, a plaintiff received a judgment for $750,000.00 against a Jacksonville nursing home when a female resident was raped by another resident who had a long history of sexual misconduct.  Unfortunately, that judgment was never paid because shortly after the hard fought judment was received, the nursing home was transferred to new operators and the former company that owned was left essentially insolvent.

In this situation, it is unknown whether the aggressor had prior issues with violent behavior.  If that person demonstrated aggression or violence in the past, and the nursing home did nothing to prevent other residents from being assaulted, then Florida law will allow family members to seek a recovery for their emotional losses.

This incident has been reported to Florida’s Agency for Health Care Administration (AHCA), which oversees skilled nursing facilities and nursing homes in the state.  AHCA has previously fined this facility for insufficiencies regarding safety and resident care.

According to the Centers for Medicare and Medicaid Services Five Star Rating system, Harts Harbor Health Care Center has an overall rating of four stars; however, it has only two out of five stars on “quality measures.”  Quality measures track things like: the prevalence of bed sores or pressure ulcers; the frequency that residents are injured in falls; the number of residents that report the onset of pain; and the rate of infections.

Both of the lawsuits our firm has handled against the Harts Harbor nursing home also resulted from the death of residents.  One action is currently pending. Continue reading

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Jacksonville has an alarmingly high number of driving under the influence convictions.  Using 2011 as an example, Florida’s Department of Motor Vehicles provides there were 33,625 driving under the influence convictions in the state. The Jacksonville area had the third highest number of DUI convictions – 2,222. Only the Tampa area and Miami-Dade had more convictions, with 3,256 and 2,274 respectively.

Factoring in the much larger populations in those cities, it appears Jacksonville has the highest per capita DUI convictions of all large cities in the state.   Whether this means we have the highest number of drunk drivers on our roads or whether Jacksonville’s police and state attorneys are simply doing a better job is impossible to know.

This problem is reflected in our news nearly every week. For example, recently, a 21-year-old Jacksonville man was charged with the death of his friend in a crash on Loretto Road in the Mandarin area of Jacksonville. Police say the man was exceeding the speed limit and traveling at 47 to 60 mph in a 30-mph zone on a curve. Wet weather conditions added to the danger.

The car left the roadway and struck a tree.  The 22-year-old passenger was ejected and killed and the driver broke an arm and suffered other injuries. Police reported there were containers of alcohol at the scene and said the driver showed signs of impairment and smelled of alcohol. At first, the man admitted he was the driver but later claimed he was not, investigators said.

The driver has been charged charged with vehicular homicide, DUI-manslaughter, and knowingly operating a vehicle with a suspended license. We can only imagine that the grief, remorse and guilt will dwarf this young man’s criminal consequences, no matter how severe they may be.

The driver’s blood alcohol content tested at .23, according to the arrest report. The legal limit to drive in Florida is .08.  Intoxication at the level of .23 is associated with a laundry list of deficits including: nausea; blackout; emotional swings; severe motor skill impairment; drastically reduced reaction times; stupor; and loss of consciousness.

A host of laws have been enacted in the state in an effort to reduce drunk driving.  Despite these measures, the problem continues.  Years ago, the legal limit was reduced from .10 to .08.  In addition, fines and sentences have increased dramatically.   Due to public pressure, state attorneys are much less likely to agree to a plea arrangement that does not include a conviction for DUI.

Florida law mandates that any driver convicted of a second DUI must have an ignition interlock device installed in their vehicle.  The interlock prevents the car from being started unless the driver successfully blows a breathalizer connected to the engine’s ignition system.  A judge may order an interlock installed on a first conviction depending on the circumstances.  Perhaps this law be changed to include all first convictions.

Florida also has a “zero tolerance” policy for drivers under 21 who drink alcohol and get behind the wheel. Any driver under 21 who is stopped by police and has a blood alcohol level of .02 or higher will automatically face the suspension of their drivers’ license for six months.

In addition to criminal consequences, drunk drivers face civil liability for wrongful death or injuries.  Unlike other debts, claims for injuries or death caused by drunk driving are not dischargeable in bankruptcy.

 

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2016 is expected to be a year of significant changes in Florida’s homeowners’ insurance market.  The insurance market in Florida is changing quickly resulting in a lot of new insurers springing up, leading to the likelihood of a greater number of insurance disputes.

The shift was covered in a special report from A.M. Best. It noted how the market is shifting in Florida as Citizens Property Insurance Corp. (Citizens) – the state-run property insurance company- depopulates and moves its policyholders to the private market, which has resulted in the emergence of many new and untested, in-state insurers.

The A.M. Best report noted that while these new companies have seen sudden and fast growth as Citizens’ has shifted its market position, there is “significant risk as proper risk management, risk analytics and overall infrastructure to manage the growth are in some cases untested.”
This certainly raises the prospect of more inconsistencies and insurance disputes for the payment of insurance claims in Florida.

While Florida has not had many major storms in the past few years, it has been hit by other unique issues, including a rash of sink-hole claims. The Best’s Special Report, titled, “Florida Property Insurers Remain Untested: Will 2015 Be the Year?,” highlights how sink-hole losses, fast rising reinsurance costs and overall market conditions have prompted many larger, national carriers to reduce Florida property exposures. This may not be good news for policyholders. The increased involvement of smaller and less-experienced insurance companies has been seen since 2007.

The report identifies that a key component of how insurance companies analyze risk remains their exposure to hurricane loss and the recoveries of reinsured losses. A.M. Best stated many companies have a very high gross probable maximum loss. A stress test is also performed on the company’s capitalization that “measures the capital position post an event and its ability to absorb a subsequent event on its capitalization.”

In 2004, a series of four hurricanes caused significant insured property losses in Florida, with two of them causing damage in Jacksonville and Northeast Florida. In the wake of hurricanes, insurance companies often seek to limit their exposure by denying or underpaying claims, leading to a spike in insurer bad faith and breach of contract lawsuits, as seen after Hurricane Sandy hit New Jersey in 2012.

Florida’s new insurers will be tested if and when Florida is next hit by a major hurricane. Jacksonville has not suffered a direct hit from a hurricane since Dora in 1964, but its rapid development in the 50 years since, means considerable property damage would be likely if another storm came ashore here.

There are many scenarios that can lead to disputes. Often an insurer will not offer fair value for property damage under a homeowners or an auto policy. An insurer may claim a policyholder intentionally caused a loss or has exaggerated the value of items destroyed.

In the aftermath of Hurricane Sandy, insurers found a number of ways to reduce claim payments. For instance, commercial property insurance policies provide for higher “named storm” or “hurricane” deductibles than standard deductibles. While Sandy at one time possessed hurricane characteristics, it lost those traits before making landfall, and the National Weather Service downgraded it to a post-tropical cyclone hours before it hit New Jersey. Some of the insurance companies tried to apply so-called “hurricane” or “named storm” deductibles to cover Sandy losses, despite the National Weather Service’s official classification of Sandy as a post-tropical cyclone when it hit land.

As with any purchase, consumers should make sure to do thorough research before buying an insurance policy. Always make sure to read the fine print. Because insurance disputes are normally resolved based on the language contained in the policy, you should be clear about the details of the policy and thoroughly understand your obligations as well as your rights.

Written by David Macauley
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Some nursing home operators are ethical and do their best to provide quality care.  Others; however, do their best to bill Medicare and Medicaid as much as possible while providing minimal, and often, substandard care.

It is necessary that lawyers prosecuting nursing home negligence cases, understand the interplay between billing fraud and negligent care.

Every nursing home is required to prepare “Minimum Data Set” assessments of each resident’s functional capabilities and health problems.  “Care area assessments” are part of the process and are used to develop individual care plans for each resident.  MDS assessments are required for all nursing home residents and are to be prepared on admission and updated regularly.

MDS assessments are a double-edged sword for nursing homes.  Medicare reimburses nursing homes based on the complexity of each resident’s medical needs as identified in the MDS assessments prepared by the nursing home. Hence, there is the financial incentive to maximize the amount of care each resident requires.  Here is the catch –  after requesting payment for a heightened level of care, and after receiving such payment, sometimes nursing homes fail to provide that care, resulting in injury or death to the resident.

Understanding MDS assessments and the billing that results is essential to prosecuting nursing home negligence.  Without knowing how to prove that the nursing home itself determined that certain care was necessary, the nursing home is free to claim the care at issue was not required.

It is not uncommon for nursing homes that face elder abuse allegations in Florida to also be investigated for Medicare and Medicaid billing fraud. In southern Florida, a nursing home chain that runs seven nursing homes in the Miami area has been accused of providing substandard healthcare to its residents.  Just six months ago, that same chain agreed to pay $21.5 million to settle federal civil charges that it defrauded Medicare and Medicaid.

A media review of the company looked at U.S. Department of Health and Human Services (HHS) and Florida Agency for Health Care Administration (AHCA) records since 2012 and found 191 documented deficiencies at the nonprofit’s seven nursing homes in Miami-Dade County.  The same nursing home chain was hit with $24,820 in federal and state penalties for violations at three of its nursing homes in the Miami area.  The chain was also the subject of whistle-blower litigation that was settled earlier this year.

The cited deficiencies involving nursing home neglect included: allowing a resident’s wound to worsen for nearly three weeks without contacting the resident’s doctor; and improperly inserting a catheter into a resident causing injury and extensive bleeding.  We suspect that a lack of training (a cost saving measure) is most likely the ultimate cause of the catheter injury.

The Miami Herald’s investigative report “Neglected to Death” provides an eye opening look at the terrible reality of life and death for many residents in Florida’s nursing homes and assisted living facilities.

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