NextGen Injury Law has summarized the most important nursing home and assisted living facility cases issued by Florida Appellate Courts in 2017.  We have broken down the cases by subject matter (e.g. arbitration versus punitive damages) and placed them in chronological order.  Additionally, we have provided practitioner tips for each case.


An assisted living facility, Emeritus of Fort Myers, was bought out by another company called Lamplight of Fort Meyers.  In a wrongful death lawsuit, Lamplight attempted to enforce an arbitration agreement.  The arbitration agreement was signed by one of the resident’s sons; however, the signatory son was not the power of attorney at the time in which the agreement was signed.  Additionally, the arbitration agreement applied only to Emeritus of Fort Meyers, the prior owner, and not any subsequent owners. Of importance, Lamplight failed to produce any documents showing they entered into their own arbitration agreement or that they acquired the right to enforce the prior owner’s arbitration agreement.  Nonetheless, the trial court enforced the arbitration agreement against the Plaintiff.  The 2nd District Court of Appeal reversed finding that there was no record demonstrating that Lamplight obtained rights to arbitrate or that a new arbitration agreement was signed.  Additionally, the 2nd District Court of Appeal found that the signatory son did not have authority to bind the resident.  As a result, the trial court improperly enforced the arbitration agreement.

Key issues: Subsequent owners of nursing homes or assisted living facilities cannot arbitrate claims when they have not acquired the rights from the prior owner and when there is no new arbitration agreement signed.  Relying on old agreements may prove to be unenforceable.

Practitioner tip:  Always determine who signed the arbitration agreement.  Was it entered into with a prior or subsequent owner of the nursing home or assisted living facility.  If a subsequent owner tries to enforce the agreement, this case proves they need to have acquired that right from the prior owner and/or need to have entered into their own agreement.  Additionally, the person signing on behalf of the resident must have authority to bind that resident.

A nursing home, Palm Garden of Orlando, sought to enforce an arbitration agreement; however, the trial court did not enforce it as the signatory did not have authority to bind the resident.  The 5th District Court of Appeal affirmed the trial court’s decision finding despite there being conflicting evidence surrounding the execution of the agreement and whether it was enforceable.  The 5th District Court of Appeal found that there was evidence that (1) the resident did not sign the agreement (2) the signatory was not authorized by nor did the resident give his consent to the resident to execute this agreement on his behalf, (3) the signatory advised the nursing home she had no authority to sign documents on behalf of the resident, and (4) the nursing home’s admission director had no independent recollection of either the resident or the execution of the admissions agreement.  Because there was no power of attorney and evidence of no agency relationship between the resident and signatory, the trial court’s decision was affirmed.

Key issues: The signatory must have authority to bind the resident in order to enforce an arbitration agreement.

Practitioner tip: As always, look to see who signed the arbitration agreement and determine what level of authority the signatory had at the time of execution.  Be prepared to present evidence on lack of agency.

A nursing home, Riverfront Nursing and Rehabilitation Center, sought to enforce an arbitration agreement in a wrongful death lawsuit.  The trial court enforced the arbitration agreement; however, the 2nd District Court of Appeal reversed finding that a health care proxy does not have authority to (a) waive the resident’s right to a jury trial or (b) agree to arbitrate the resident’s nursing home claims.  The daughter who signed the arbitration agreement at issue was not the agent, actual or apparent, of the resident who was mentally incompetent when the agreement was signed.  The nursing home attempted to argue that the resident was a “third party beneficiary” of the arbitration agreement; however, the 2nd District Court of Appeal rejected this argument in light of the recent Florida Supreme Court decision in Mendez v. Hampton Court Nursing Center, LLC, 203 So. 2d 146 (Fla. 2016).

Key issues: A health care surrogate/proxy who is not an agent, actual or apparent, of an incompetent resident does not have authority to bind a resident to an arbitration agreement or a provision waiving the right to a jury trial.

Practitioner tip: Determine who entered the arbitration agreement, was it a power of attorney or health surrogate.  Then determine whether the resident was competent or not at the time of signing the agreement and whether the signatory was acting as an actual or apparent agent of the resident.

In a medical malpractice case, the 2nd District Court of Appeal reversed a trial court for enforcing an arbitration agreement.  The reason for reversal was that the arbitration agreement was unenforceable since it essentially “cherry-picked” provisions that would help the physician but not the patient.  Specifically, the agreement incorporated a statutory cap on damages but did not provide for the concession of liability provisions contained in the Medical Malpractice Act.  The 2nd District Court of Appeal cited Franks v. Bowers, 116 So. 3d 1240, 1248 (Fla. 2013) where the Supreme Court of Florida held an arbitration to be invalid when it does not adopt all of the arbitration provisions contained in the Medical Malpractice Act.  The 2nd District also found that this provision could not be severed similar to how the Florida Supreme Court ruled.

Key issues: Arbitration agreements that “cherry pick” favorable language from the Medical Malpractice Act for the Defendant might be unenforceable when they omit other statutory provisions.  Additionally, the issue of “severability” needs to be examined.

Practitioner Tip: Look at the arbitration agreement language and determine if the language has cherry picked certain statutory arbitration provisions but omitted others.  If so, this could cause the whole agreement to be unenforceable.  Franks v. Bowers outlines when a contract’s terms may be severable versus unseverable.

An assisted living facility, Angels Senior Living at Connerton Court, sought to enforce an arbitration agreement in a wrongful death lawsuit.  The trial court denied the request and the assisted living facility appealed the decision.  The assisted living facility attempted to argue that the trial court could not make a ruling on whether the arbitration agreement was valid or invalid since the agreement only allowed the arbitrator to make such determination.  However, the assisted living facility lawyers failed to argue this to the trial court, therefore the 2nd District Court of Appeal did not entertain this argument.  The assisted living facility also appealed the trial court’s decision that two provisions in the agreement violated public policy: (1) incorporation of American Health Lawyers Association (AHLA) arbitration rules and (2) discovery limitations.  The 2nd District found that such provisions did not violate public policy and reversed the trial court and remanded the case so that arbitration would be enforced against the Plaintiff.

Key issues: Multiple motions to compel arbitration are not permitted and arguments must be timely made.  Arbitration agreements might contain provisions that violate public policy however it depends on the language of the agreement.

Practitioner tip: Examine the arbitration agreement to see which provisions might violate public policy.  Different appellate courts are reaching different conclusions as to what will cross the “public policy” line.  In addition, you need to determine whether offending provisions can be severed or not, although the above case did not address that issue.

The parties agreed to submit their entire case to voluntary binding arbitration pursuant to Florida Statute 44.104.  After a decision was rendered by the arbitrator, one of the parties sought review of the decision by the 4th District Court of Appeals.  The 4th District refused to accept jurisdiction of the case because Florida Statute 44.104 states that appeal is to the circuit court and no further review is permitted unless a constitutional issue is raised.  Since no constitutional issue was raised, the 4th District declined jurisdiction.

Key issues: Voluntary binding arbitration can limit your appellate review.

Practitioner Tip: Avoid agreeing to voluntary binding arbitration as Florida Statute 44.104 might limit where you can appeal the arbitrator’s decision. It would be better for a trial court to force you into arbitration.

A nursing home owned and managed by Greystone Healthcare Management Corp. appealed an order denying their motion to compel arbitration.  The trial court denied the nursing home’s request for arbitration finding that the arbitration agreement contained an attorney’s fee provision which violated public policy and could not be severed.  The 5th District Court of Appeals agreed that the attorney’s fee provision violated public policy; however, they reversed the trial court concluding that the provision could be severed from the other parts of the arbitration agreement as it contained a “severability clause.”  As a result, the 5th District reversed the trial court and remanded the case so that arbitration could be enforced against the Plaintiff.

Key Issues: Attorney’s Fee provisions can violate public policy.  However, courts might find that these offending provisions can be severed from the rest of the contract.

Practitioner Tip: Look to determine whether certain provisions violate public policy and also look to see whether there is a “severability clause” in the arbitration agreement.  The above Court refused to address whether it would have reached the same conclusion without a severability clause, therefore, this may be grounds for distinguishing the above case.


Two doctors sought appellate review of a trial court order allowing the Plaintiff to amend its complaint for punitive damages.  The 5th District Court of Appeal reversed the trial court as the Plaintiff did not attach a copy of the amended complaint to his motion and the trial court improperly considered oral evidentiary proffers made by Plaintiff’s counsel during the hearing on the motion.  The 5th District Court of Appeal stated that the trial court cannot properly consider Plaintiff’s counsel’s oral or other proffers of evidence which are first presented during the hearing.  However, counsel is free to suggest inferences that may be drawn from the timely filed evidence and proffers.

Key issues: Attach the amended complaint to your motion for leave to amend for punitive damages.  Additionally, give the other side sufficient time to review the evidence as presenting it for the first time at the hearing will not be permitted.

Practitioner Tip: Courts do not like when you play “hide the ball” with evidence you are using to support your claim for punitive damages.  Give the opposing side sufficient time to review the evidence and timely file it before the hearing.

In case involving allegations of tortious interference, unfair competition, and conversion, the Plaintiff sought leave to amend its complaint to allege punitive damages.  The trial court permitted the amendment finding that the allegations contained in the amended complaint were sufficient for seeking punitive damages and that the Plaintiff does “not need to provide evidence of those allegations.”  The 4th District Court of Appeal reversed this ruling stating that the trial should have determined whether the Plaintiff had established a reasonable evidentiary basis to recover punitive damages.  There must be more than “mere allegations.”

Key Issues: In order to amend a complaint to plead punitive damages, evidence must be presented and that evidence must provide a reasonable basis to recover punitive damages.

Practitioner Tip: Do not just amend your complaint to allege punitive damages without presenting evidence.  Present evidence that supports your allegations.

In a DUI motor vehicle collision case where punitive damages was bought sought, the trial court was reversed for not giving a jury instruction.  The 5th District Court of Appeal held that the trial court should have provided a jury instruction that a jury “may not award an amount that would financially destroy the defendant.”  This instruction was required as the Defendant requested it, incorporated it in their proposed written jury instructions, and also presented evidence about the Defendant’s lack of financial resources.  The 5th District Court of Appeal found that the lack of jury instruction was not harmless and reversed and remanded for a new trial on punitive damages.

Key Issues: Certain jury instructions on punitive damages may be required if a Defendant requests it and also presents evidence about the financial resources of the Defendants.

Practitioner Tip: Determine whether the Defendant has complied with the above case or not.  It is their burden and obligation to have this jury instruction read.


A man who suffered with mesothelioma brought a lawsuit for negligence and strict liability as a result of being exposed to asbestos.  The exposure and date of injury were said to have occurred in 1973 and 1974.  The man later married his wife in 1976 and tragically went on to die from his condition during the pendecy of his lawsuit.  Due to his death, the wife continued to pursue the claim under Florida’s Wrongful Death Act.   However, the Defendants moved to dismiss the claim arguing that the wife was not married to the decedent at the time of injury.  Shockingly, the 4th District Court of Appeal agreed with this argument finding that Florida’s Wrongful Death Act requires the spouse to be married to the injured person at the time of the injury.  Since the marriage occurred after date of injury, the case for wrongful death damages was dismissed.

Key Issues: As of now, you cannot marry into a lawsuit. The surviving spouse needs to have been married as of the date of injury.

Practitioner Tip: Let’s wait and see if this case is addressed by the Florida Supreme Court.


In a nursing home negligence case against Haborside Health Corporation, the Plaintiff sought discovery from the nursing home including 73 requests for production with subrequests.  Numerous objections were filed by the Defendants to prevent the disclosure of documents.  The trial court compelled the production of documents; however, in doing so, the trial court did not address each specific objection and allowed production of privileged documents without proper review of those documents.  The nursing home appealed the discovery order.  As a result, the 2nd District Court of Appeal quashed the trial court’s order on some of the requests for production and advised the trial court that it may have to conduct an in camera inspection as it relates to privileged items.

Key issues: Specific discovery objections need to be addressed by the Court, especially privileged items.

Practitioner Tip: Attack each specific objection in your proposed orders and make sure a Court conducts an in camera assessment of the privilege documents.  This should hopefully reduce the chance of an appeal/reversal on discovery items.

The Plaintiff filed a lawsuit against Walgreens when his wife was injured due to malfunctioning doors which knocked her to the ground.  The lawsuit alleged that the woman died as a result of the injury.  A second lawsuit was also filed against an assisted living facility where it was alleged that the her existing injuries worsened and were aggravated due to the facility’s negligence and that she died to the those injuries.  The Plaintiff moved to consolidate both cases to avoid inconsistent verdicts.  The trial court denied the motion claiming that the cases involved different causes of action with different theories of liability and different measures of damages.  The 2nd District Court of Appeal reversed the trial court finding that the consolidation was required citing to other appellate decisions in support of its opinion that separate trials would result in inconsistent verdicts.

Key Issues: Consolidation of two cases may be possible to avoid inconsistent verdicts.  This is particularly true in cases where an initial existing injury is worsened or aggravated by a separate tortfeasor.

Practitioner Tip: Decide whether consolidation might be best for your case if you have separate causes of action against separate tortfeasors but there is the same underlying injury stemming from each incident. Additionally, sometimes Defendants will seek to sever cases when there are different theories of liability; however, this case would support that it is not proper when the injury is the same.