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In late March, Governor DeSantis signed Senate Bill 72 into law providing vast protections for nursing homes from liability for Covid infections.  The law applies to more than just nursing homes, it also applies to hospitals, schools, churches and state governmental agencies. As Jacksonville nursing home lawyers, our focus is on the effect this will have for residents or family members who suffered personal injury or death due to Covid infections.

Not surprisingly, we saw some of the worst outbreaks of Covid at the worst nursing homes in Jacksonville.  Nevertheless, nursing homes that were more careless than others may see no repercussions for their failure to respond to Covid.  We do not think that any legal protection from Covid claims was necessary for nursing homes.  Infectious disease concerns are nothing new in the nursing home realm.  Nursing homes must be constantly vigilant for contagious infections including: clostridium difficile (“c diff”); scabies; certain urinary tract infections; and tuberculosis, to name a few.

The new law provides many obstacles for a claimant asserting the nursing home ignored Covid concerns.  First, the claimant must establish that the nursing home was “grossly negligent.”  Normally, a plaintiff in a nursing home neglect lawsuit provide oridinary negligence, i.e., that the nursing home failed to meet general nursing standards of care.  Now, presumably, a nursing home operator that neglected coronavirus issues will not be responsible for residents who were unnecessarily infected, provided the nursing home operator did not act “grossly” negligent.

The difference is much more than semantics.  Instead of merely having to prove that the nursing home failed to satisfy general nursing home standards, the plaintiff must now prove that the nursing home operators had a deliberate and reckless disregard for the safety and reasonable treatment of residents.

Furthermore, a claimant must now obtain an affidavit from a physician and file that affidavit when suit is filed.  Previously, a claimant merely had to have the matter reviewed by a registered nurse. This makes the process more difficult and expensive for the nursing home attorneys representing nursing home injury cases related to Covid.  Our attorneys handling nursing home injury claims in Jacksonville front all costs associated with prosecuting a claim, but, at the end of the case, the money we spend is paid back from any settlement or judgment. So, we try to mindful of the expenses we incur as we pursue a case.

Once suit is filed, the court is required to make an initial determination whether the plaintiff pled the complaint with “particularity” (which means more facts than normal are required) and whether the defendant made a good faith effort to comply with government issued health standards. If the court finds that the nursing home operator made a good faith effort, the nursing home will be immune from liability and the lawsuit will be dismissed.

The burden of proof is on the claimant to establish that the nursing home operator failed to make a “good faith effort” to comply with the Covid health standards. If a court determines that the nursing home operator made a “good faith effort” to comply, then the nursing home is immune from civil liability.  What constitutes good faith will be determined on a case by case basis and the trial court’s determination in this regard will be very hard to overturn on appeal.

The law also applies retroactively, creating a one-year statute of limitations for all Covid claims. Normally, nursing home neglect claims have a two year statute of limitations. Continue reading

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Jacksonville, Clay County and Flagler County have a total of six nursing homes operated by Consulate Healthcare, which is a large national chain. In northeast Florida, Consulate operates: Harts Harbor Health and Rehabilitation; San Jose Health and Rehabilitation; Consulate Healthcare of Jacksonville; Governors Creek Health and Rehabilitation; Consulate Health Care of Orange Park; and Grand Oaks Health and Rehabilitation Center.

Our Jacksonville nursing home neglect lawyers have handled many cases against Consulate facilities, including five wrongful death cases.  Previously, our lawyers blogged about Consulate’s nursing homes’ poor rankings in 2019 and Consulate’s poor nursing home rankings in 2018.

Consulate manages many of its nursing homes through a company called “CMC II, LLC.”  Several years back, a judgment was entered against CMC II, LLC and several other Consulate entities in relation to a claim brought against it by a whistleblower alleging Medicare billing fraud.  After originally being set aside by the trial judge, last year the 11th Circuit Court of Appeals reinstated the judgment in excess of $257 million. This judgment led to the bankruptcy filing.

The Effect of CMC II’s Bankruptcy Filing on Nursing Home Neglect Cases

Ever since the judgment was reinstated, nursing home neglect lawyers have been uncertain what would become of CMC II, LLC, along with uncertainty about the pending claims against it for nursing home neglect or abuse.  Days before learning that CMC II, LLC, filed bankruptcy, we filed a wrongful death suit against the San Jose Health and Rehabilitation nursing home in Jacksonville.  Thankfully, we sued both the licensee and CMC II, LLC.  The licensee was a company related to CMC II, LLC; however, the licensee did not file bankruptcy.  As such, we are able to move forward with the lawsuit against the licensee, but the case against CMC II, LLC, is subject to the bankruptcy automatic stay provisions, meaning the lawsuit cannot move forward.

Each nursing home operated by Consulate has its own separate LLC, which is usually named after the address of the nursing home. For example, Governor’s Creek Health and Rehabilitation is a Consulate nursing home in Green Cove Springs.  The licensee for Governors Creek is 803 Oak Street Operations, LLC, which is a Consulate entity.  So, at least for the time being, our suits against Consulate nursing homes will proceed against the licensee LLC and not against the management company, CMC II, LLC.  The effect that this will have on future litigation is unknown.

Suspect you may have a claim against a Consulate nursing home?

As Jacksonville nursing home abuse lawyers, we typically receive calls from a concerned family member of a nursing home resident.  Often, family members have a suspicion that neglect occurred, without knowing exactly what happened.  If we agree that something does not seem right, we will obtain and review the nursing home records.  Typically, the injuries at issue will require EMT and hospital care.  We typically get those records as well.

If, after reviewing the records, we think there is a potential basis for a neglect claim, we will incur the expense of having a registered nurse review the records to determine whether the appropriate nursing standards of care were met.  If not, we typically accept the case at that point and initiate the claim process. Continue reading

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Three bicyclists were hit by a vehicle on US 1 at 2:30 am last Sunday.  Tragically, one of the bicyclists was killed and the other two suffered serious injuries.  It has been reported that all three were wearing helmets and were riding in the bike lane when they were struck.  The bicyclists were riding North on US 1, south of St. Augustine near the intersection with I-95.  The vehicle driver was driving in the outside lane before striking the bicyclists.  The bicyclists were involved in a bicycle adventure race.

St. Johns County Bicycle Accident Lawyers

Unfortunately, St. Johns County and St. Augustine have seen more than their fair share of serious bicycle accidents, many of them deadly.  With St. Johns county being close to Jacksonville, yet more rural, many people bike on St. Johns County roadways including US 1 and A1A.  While there is an extended bike path alongside State Road 207, there are not many other options for long distance road biking without traffic concerns.

The National Highway Traffic Safety Administration keeps statistics on bicycle accident deaths.  In 2018, there were 857 bicyclist deaths in collisions with vehicles nationwide.  Thirty-seven percent of these collisions involved alcohol consumed by either the vehicle driver or the bicyclist.  Fifty percent of the collisions happened at night.

Of all the states, Florida had the highest number of deaths at 151, followed by California and Texas.  Taking population into consideration, Florida also had the highest number of bicyclist deaths in the country with a rate of 7.56 deaths per 1 million residents.

Clearly there is more to be done to decrease these collisions.  Drivers can avoid collisions with bicyclists by: maintaining a proper lookout for bicyclists; providing three feet of clearance when passing bicyclists; avoiding distractions while driving; and obeying the rules of the road.

As bike accident attorneys in St. Augustine, we know all too well how serious the injuries are that result from a collision with a car or truck.  These injuries can be prevented by bicyclists by: wearing bright clothing, preferably with reflective patches when biking at night; obeying traffic laws as if driving a vehicle; wearing a helmet; using roadways with designated bike lanes; and by using front and tail lights at night.

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Nursing Home Ratings – St. Augustine Nursing Home Injury Attorneys

Every skilled nursing facility in the country that accepts payment from Medicare or Medicaid is rated by the Centers for Medicare and Medicaid Services (“CMS”) on a scale of one to five stars. St. Johns County has eight nursing homes.  The surrounding counties of Flagler and Putnam have two nursing homes each.  Three of the nursing homes in St. Johns County, one nursing home in Flagler County, and both of the nursing homes in Putnam County have poor ratings from CMS.

In St. Johns County, St. Augustine Health and Rehabilitation Center received two stars and the Clyde Vassen State Veterans Nursing Home received two stars.  In Flagler County, Grand Oaks Health and Rehabilitation received a one star rating. In Putnam County, Solaris Healthcare Palatka received a one star rating and Windsor Care and Rehab had no rating provided.  Rather, the following advisement is provided: This facility is not rated due to a history of serious quality issues and is included in the special focus facility program.”  The special focus program provides periodic inspections and recommendations in an effort to enhance the quality of care provided at the nursing home.  It may be best to steer clear of this nursing home until it has earned a better rating.

How Nursing Home Ratings are Determined

CMS’ nursing home ratings are based on numerous factors including: health inspections; staffing; and quality of resident care.  Health inspections are performed by state nursing home regulators employed by Florida’s Agency for Healthcare Administration.  Such inspections include complaint inspections; periodic health inspections; and infection control inspections.  The rating for staffing is based on: the number of hours LPNs and RNs are working on a per resident per day basis; the number of certified nurse assistants working on a per resident per day basis; and the working hours of physical therapists working on per resident per day basis. Quality of resident care considers the frequency that residents have to be sent to an emergency room, the number of residents who develop bedsores or suffer worsening bedsores, the percentage of residents whose mobility is increased and the number of residents who required antipsychotic medication for the first time in their lives.

As nursing home neglect and abuse lawyers in St. Augustine, we have found the rating system to be a fair, although not perfect, indicator of nursing home quality.  For example, we have only brought one claim against a five star facility. In comparison we have brought multiple claims against many of the one and two star facilities in the greater Jacksonville area.

We highly recommend that you include the CMS ratings when making a decision about which nursing home is best.  In addition to the ratings, we recommend you tour the facility before admission.  While doing so, look for telltale signs such as: whether the facility has an unpleasant smell; whether the floors, walls and bathrooms are clean; whether the nursing staff seems stressed and hurried; and the level of hygiene being provided to the residents.

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Earlier this week, Florida Highway Patrol reported a fatal crash on Interstate 95 in St. Johns County.  According to FHP, one person died and two other people suffered critical injuries in a multi vehicle crash.  The crash occurred when a sport utility vehicle traveling north crossed the grass median and collided with a tractor trailer headed south.  After the initial impact, a sedan travelling south collided with the SUV.  At least one vehicle caught fire.  FHP has not given any indication why the SUV crossed the median. Our condolences go out to all of those affected by this terrible crash.

As St. Augustine car accident attorneys, we have repeatedly written about the disproportionate number of fatal accidents that happen in the St. Johns County section of I-95 as reflected in our webpage titled “Car Accident Attorneys in St. Johns County.” Unfortunately, the portion of I-95 in Florida is considered the most dangerous interstate in the country with the Jacksonville portion representing the fifth most dangerous section of interstate in the country.

We cannot be sure why there are so many serious accidents on the St. Johns County section of I-95. Perhaps one reason is that there is frequent traffic congestion in this area due to traffic heading into, and coming out of, Jacksonville, which is directly north of St. Johns County.  Construction along this portion of I-95 may also be a factor.  Of course, texting and other distractions by cell phones have also become a very common cause for collisions in recent years.

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The Lawrence Law Group is proud to announce it has opened an office in St. Johns County located at 2225 Florida A1A, Suite C-16, St. Augustine Beach, FL 32080.  This location is on the west side of A1A, just south of the intersection with State Road 312. This location is convenient to all residents of St. Augustine and is a short drive from the hospital and majority of the medical facilities just south of downtown.  Expanding into St. Augustine is a natural result of Greg Lawrence’s move from Jacksonville Beach to North Beach, near Vilano.

As St. Augustine personal injury lawyers, we are familiar with local medical providers including primary care physicians, physical therapists, surgeons, pain management specialists and chiropractors.  As not all doctors will accept automobile personal injury protection insurance, it can be very helpful for an injured person to get a referral to a doctor who does.

We are also familiar with the intersections where car and truck crashes occur, the nursing homes, tourist attractions, businesses and hotels where accidents take place. Having this familiarity helps us understand how your accident happened and who may be liable to compensate you for your injuries, disability, lost wages and medical bills.

Our attorneys have handled personal injury cases in St. Augustine for years including: car accidents; tourist injuries; bicycle accidents; slip, trips or falls at business locations; injuries at hotels; and nursing home abuse. Previously, we handled these claims out of our Jacksonville office.  Now, clients can meet with us in St. Augustine.

St. Augustine has a number of areas where accidents tend to occur.  First, there are several intersections and roadways that have more than their fair share of auto accidents, including: State Road 16 and U.S 1; County Road 312 and U.S. 1; County Road 312 and A1A; and Interstate 95.  Bicycle accidents are unfortunately common on both A1A and U.S. 1.  With its high volume of tourists, St. Augustine also has a lot of accidents that happen in hotels including stairway accidents, preventable criminal assaults, and slip, trip and falls. Tourists also suffer injuries from scooter and bicycle rentals and when being struck by a vehicle while walking.

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Florida is well known as a place for retirees. What comes with that is an abundance of long term care facilities, also known as nursing homes or skilled nursing facilities.  In general, nursing home residents are at a very high risk of dying if they contract the cornonavirus due to their age and preexisting health issues.

To date, over 3,000 residents of Florida nursing homes have died from Covid.  This figure represents approximately 40% of Florida’s Covid deaths.  This is, of course, hugely disproportionate as less than 4% of Florida’s population resides in nursing homes at any one time. This demonstrates that more needs to be done.

Last week, the nursing homes located in St. Augustine, Jacksonville and the rest of Northeast Florida, reported 22 Covid deaths.  Before last week, the highest weekly total was 11.  So far, 109 Northeast Florida nursing home residents have died due to Covid.

Complicating the fight against coronavirus in nursing homes is that staff members, especially CNAs and LPNs, see many residents each day.  CNAs perform or assist with many of the personal activities of daily living, like eating, bathing, toileting and transferring in and out of bed.  Because of the close nature of this personal care, CNAs can easily spread the virus from one resident to another.

It is necessary that nursing homes take special precautions to ensure that none of its staff members bring coronavirus into the facilities.  Staff members who have the virus but asymptomatic present a disaster in the making.  Nursing homes must mandate mask wearing by its employees, must test even asymptomatic employees on a frequent basis, must provide (and require the use of) personal protective equipment for each resident to whom a staff member provides care.  Staff members must also be questioned daily on whether they have been in contact with anyone who has tested positive and whether they have had any symptoms consistent with Covid.  Of course, their temperatures must be taken before each work shift.  In addition, residents who test positive should be kept isolated from other residents.

Without these measures in place, nursing homes will continue to be hotbeds of Covid infections and death.  Whether nursing homes will be held liable for preventable Covid infections remains unknown due to the length of time it takes for a nursing home case to be litigated.  Furthermore, there has been mention of the possibility of legislation providing immunity for health care providers for coronavirus infections and resulting injuries or death.  Whether such legislation would violate constitutional rights to seek redress in the court system remains uncertain.  We do know from prior legislation that caps limiting damages have been held to be constitutional.  Lower caps would make nursing home claims economically infeasible due to the high expense in prosecuting nursing home cases and would effectively amount to a ban on such cases. Continue reading

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As of June 16, 2020, Duval County, Florida (Jacksonville), has had 59 deaths due to the coronavirus.  In all, there have been 2194 people diagnosed in Jacksonville with Covid.  Tragically, one Jacksonville nursing home has accounted for 30% of the Covid deaths in the county, which translates to 18 people.  That nursing home, Signature Healthcare of Jacksonville, is located at 2061 Hyde Park Road, Jacksonville, FL, 32210.

While nursing homes may represent one of the most challenging environments for dealing with the coronavirus, nursing home operators must respond accordingly.  It is simply not satisfactory for a nursing home to claim that the situation is difficult and that, as a result, it is not responsible for failing to appropriately respond to the virus. Our Jacksonville nursing home abuse attorneys have handled many claims against local nursing homes for failing to prevent or treat infections and we have seen many egregious situations.

The US Centers for Disease Control has issued guidelines for nursing homes dealing with coronavirus concerns.  Among the CDC’s “core practices” are the following: 1. assign at least one person with training in infection control to provide on-site management of the facility’s infection protection and control program; 2. report Covid cases to the national database on a weekly basis; 3. educate all residents, staff and other persons entering the facility about the precautions; 4. implement source control measures (all heathcare providers should wear facemasks and residents should wear masks when leaving their rooms); 5. have a plan for visitor restrictions; 6. create a plan for testing residents and health care providers; 7. manage healthcare personnel (sick leave policies, excluding non-essential personnel, and screening employees for infection by taking temperatures); 8. provide sufficient supplies of hand sanitizer, masks and personal protective equipment; 9. segregate a space in the facility for caring for residents with covid; 10. create a plan for dealing with the admission of new residents whose Covid status is unknown; and 11. evaluate and manage residents with Covid.

Some nursing homes will respond better than others to the coronavirus.  We have a feeling we already know which ones are going to do the worst, and, frankly, that is a shame.   Most often when we see neglect, we find out that the nursing home was understaffed.  Understaffing in nursing homes will only make coronavirus all the more deadly as overworked nurses and assistants try to juggle more than they can handle.  Continue reading

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When a nursing home resident is injured in Florida, Florida Statute § 400.147, requires that the nursing home prepare an incident report.  While nothing in the statute directs the type of information that must be contained in the incident report, obtaining the report can shed light on what happened to cause the incident.

Florida Statute § 400.147 not only requires that a nursing home prepare an incident report, it specifically provides that the report is discoverable.  Typically speaking anything that is “discoverable” can be obtained once suit has been filed.

Unfortunately, courts interpreting this statute have ruled that the reports are protected from discovery as work product. Tampa Medical Associates, Inc. v. The Estate of Torres, 903 So.2d 259 (Fla. 2nd DCA 2005). This means, that in order to obtain the reports, a lawyer prosecuting the nursing home abuse claim in Florida must prove a need for the report and that he or she faces undue hardship without it.  Undue hardship focuses on whether there are other ways to obtain information about how the incident occurred.

Proving need and undue hardship can be accomplished in cases where witnesses cannot be found or if the witnesses cannot recall what happened.

Nursing home staff members have usually been well trained to keep the description of an incident entered into the nursing notes extremely vague.  For example, nursing notes may describe an incident as “resident fell, leg pain, sent to hospital for evaluation.”  Because of such generic charting, the resident’s representatives are often left in the dark about what caused the fall.

This problem is compounded by several factors.  First, nursing home residents often suffer from some sort of cognitive deficits, whether it be by reason of dementia, Alzheimer’s disease or simple age-related cognitive decline.  Because of this, residents are often uncertain about how the incident occurred.  In wrongful death cases, there is obviously no input that can be provided by the resident.

The next concern is that nursing home claims are subject to a pre-suit process.  Obtaining records from a nursing home can take forty days or more as the nursing home is given thirty business days to produce the records of a former resident.  On top of that, nursing homes often fail to provide all of the records, resulting in even more delay as the resident’s attorney must determine what is missing and inform the nursing home.  As delay is on their side, nursing homes are often slow to respond to such requests.

Once all the records are obtained, the attorney must then have the matter reviewed by an expert witness, usually a registered nurse.  Only if the expert finds that the nursing home failed to meet the standard of care does the attorney then have the ability to initiate the seventy-five day pre-suit process.  Once suit is filed, it takes at least several months to take the first deposition.

Furthermore, nursing homes have very high employee turnover.  This means that in order to take the depositions of former staff members, those individuals must be located and served with a subpoena to appear.  It gets even worse as the nursing home will usually refuse to give the names of staff members who were working on the wing and shift in question.  If so, a motion to compel must be filed, with a hearing set weeks or months out to get the names.

In all, the first depositions are often not taken for more than a year after an incident occurred. After such a lengthy delay, the nursing home staff members commonly assert they can no longer recall any details about the incident.  Our Jacksonville nursing home abuse attorneys find that this happens in almost every case to some degree.

Once all of the available witnesses have been deposed, the attorney can then demonstrate to the judge that he or she was unable to obtain the information through other means and that the incident report is necessary to determine what happened.  Hopefully, the judge will agree and require the nursing home to produce the report.

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File this one under “believe someone the first time they show you who they are.”

Across the country, the nursing home industry has been lobbying for immunity from Covid-19 claims.  In fact, Florida’s governor is  considering such a proposal right now.  Immunity means that a nursing home can neglect your loved one and unnecessarily cause his or her death and have no consequences for doing so whatsoever.  None.

What is even more preposterous is that some states are also providing immunity for nursing homes that fail to keep resident records currently required by law.  Imagine that your loved one dies from Covid and you get no explanation from the nursing home as to what happened and there no records to review.  That’s it – your inquiry is over.

Highlighting this problem is that nursing home residents are our most vulnerable citizens, they need more protection, not less.  So far in Florida, Covid deaths in nursing homes represent 20% of all Covid deaths in the state.

Nursing homes that fail to take even the most basic precautions to prevent infections would have no consequences for doing so.  Failing to use PPE, failing to educate staff on simple infection protocols, failing to test and isolate sick residents – you name it – its open season.

In all but the absolute worst circumstances, they wont have any criminal responsibility either.  No repercussions whatsoever.  Sound like a good idea?  Has this industry demonstrated it doesn’t need oversight?

Are there nursing home operators who are conscientious and will do a good job?  Yes, and they don’t need protection.

Let me give you an example, the Centers for Medicare and Medicaid services rank every nursing home in the country that accept Medicare as a form of payment.  The ranking system is from one to five stars and is based on a host of categories relevant to resident health and safety.  Our Jacksonville nursing home abuse attorneys have brought claims against every one star facility in the greater Jacksonville area and, in some instances, we have brought multiple wrongful death claims against the same nursing home.  In contrast, to date, we have not handled a single claim against a five star facility.  Not one.

When we were not in a crisis, how did some of the nursing home operators act?  In other words, “who have they shown us to be?”

The cases handled by our Jacksonville nursing home neglect lawyers tell volumes:  a woman who died unnecessarily from a ruptured intestine after nursing home staff ignored weeks of diarrhea; a 52 year old woman who died because the nursing home refused to provide her with medication because the medication was too expensive; and a woman who died after her tracheostomy tube came out and no one at the nursing home knew it needed put it back in in order for her to breathe.  In all of these cases, the nursing homes were understaffed and its employees were poorly trained.

How will we feel when we learn that the nursing homes with one or two stars are the ones with the highest rate of Covid infections and Covid deaths?  I guarantee that there will be a positive correlation.  Is that okay?  Do those operators deserve immunity?

Also, don’t buy it when they try to tell you they don’t get enough money from the government to properly take care of people.  It is not true. One star facilities get paid exactly the same amount per resident as five star facilities. Continue reading

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