Williams v. Tandem Health Care of FloridaWilliams v. Tandem Health Care of Florida
Thomas J. Guilday, Vikki R. Shirley, and Elizabeth G. Demme of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellee.
ON MOTION FOR REHEARING [Original opinion at 2005 WL 94505]
ERVIN, J.
We withdraw our previous opinion issued January 19, 2005, and substitute the following. In an action brought for damages under the Nursing Home Residents’ Rights Act (RRA) and the Wrongful Death Act (WDA) against Tandem Health Care of Florida, Inc. (Tandem), the Estate of Lucille Williams appeals an order granting Tandem‘s motion for new trial directed to the jury‘s return of noneconomic damages awarded to Williams’ nine adult children, and denying the estate‘s request to amend its complaint by adding a claim for punitive damages. We affirm as to both issues.
Lucille Williams, 74 years old, died from a fall suffered while she was a resident in the care of Tandem. She had been hospitalized for congestive heart failure, pulmonary embolism, and renal kidney failure, and was discharged to Tandem‘s supervision on February 23, 2000. The Tandem staff knew that Williams was at risk for falling, and her care plan included interventions to prevent falls. Notwithstanding Tandem‘s knowledge, Williams fell while unattended three days after her admission, but sustained no injury. Thereafter, on February 29, around 3:15 a.m., Williams
The estate brought an action for damages under three claims, two of which are pertinent to this appeal.1 The estate alleged (1) deprivation or infringement of a nursing-home resident‘s rights under
The jury returned verdicts finding, as to the RRA claim, that Tandem had deprived Williams of such rights, and that her conduct did not contribute to the injuries, and, as to the WDA claim, that Tandem‘s professional negligence was 95 percent the cause of Williams’ death, and Williams’ negligence the remaining five percent. As a result of those findings, the jury awarded $220,000 in noneconomic damages to each of the decedent‘s nine adult children, and $9,631 in medical, nursing, and funeral expenses to the estate.2
Following the return of the verdicts, Tandem filed several posttrial motions, and, during their pendency, the supreme court approved the holdings in Somberg and Spilman, concluding that the WDA did not limit a deceased resident‘s damages under
The court thereupon ordered a new trial wherein the estate would be permitted to seek RRA damages for the deceased resident‘s pain and suffering,3 and it set aside the awards of noneconomic damages to Williams’ nine heirs, because, in the court‘s judgment, neither the RRA nor the WDA authorized such awards. The court decided, after reading Somberg II, that the damages available to a personal representative for a violation of
I. The Propriety of the Order Striking the Noneconomic Damages
The estate first argues that the lower court erred in striking the noneconomic damages returned, because Tandem argued inconsistently as to the measure of damages recoverable on behalf of the decedent, and thus invited any error. It continues that Tandem should not be permitted to take advantage of the change in the law the supreme court announced in Somberg II, in that it failed to preserve the issue of the heirs’ entitlement to such damages.
Our review standard over an order granting a motion for new trial based entirely on issues of law is de novo. See Heckford v. Fla. Dep‘t of Corrs., 699 So. 2d 247, 250 (Fla. 1st DCA 1997). In applying that standard to the lower court‘s application of the law to the facts, we find no error and affirm.
In support of its non-preservation argument, the estate cites Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992); Leveritt v. State, 817 So. 2d 891, 896-97 (Fla. 1st DCA 2002); Gray Mart, Inc. v. Fireman‘s Fund Ins., 703 So. 2d 1170 (Fla. 3d DCA 1997); and Clay v. Prudential Insurance Co. of America, 670 So. 2d 1153, 1154 (Fla. 4th DCA 1996), all of which are factually dissimilar to the case at bar. Leveritt is a typical example of the application of the rule. While Leveritt‘s appeal from his convictions for DUI manslaughter and vehicular homicide was pending, the Florida Supreme Court decided State v. Miles, 775 So. 2d 950 (Fla. 2000), holding that the state was not entitled to the statutory presumption of impairment based on blood-alcohol test results. Although Leveritt had not objected during trial to the court‘s jury instructions on the presumptions of impairment, he sought the benefit of the Miles rule on appeal. While agreeing that the trial court erred in giving the instruction, we nevertheless affirmed because appellant had failed to preserve the issue by timely objecting during trial, and the error was not fundamental.
It is true that Tandem relied on certain language in the opinion to undergird its posttrial argument that the noneconomic damages awarded the adult children should be stricken because the RRA contains no language authorizing same, unlike the WDA. Although Somberg II includes statements supporting such argument,4 the non-preservation rule the estate cites requires that the change in the law directly affect the outcome of the issue that a party raises in a subsequent case. In other words, the change in the law must have binding, precedential effect in order for such party to benefit from it. The issue decided in Somberg II addressed only the question of whether the WDA limited the damages a personal representative could obtain on behalf of a deceased resident under the RRA, not whether the WDA expanded the damages available under the RRA. The court‘s precise holding was that because
The estate next complains that the lower court‘s decision to strike the heirs’ survivorship award of noneconomic damages was flawed because it was based on an erroneous interpretation of the RRA. Among other things, the estate points to Somberg II‘s reference to
Since the inception of the RRA in 1980, the damages authorized to be recovered are limited to those which are personal to the resident, and the inclusion of the words “personal representative” by the 1986 amendment was intended to furnish only a right of action surviving the resident‘s death, and not to extend to the resident‘s heirs the right to recover the same damages permitted them under the WDA. This conclusion is reinforced by a reference to the language of the WDA and its history. Before the WDA‘s creation in 1972, there was no common-law right to damages after the death of the person negligently injured by another. See Nissan Motor Co., Ltd. v. Phlieger, 508 So. 2d 713, 714 (Fla. 1987). The WDA is unique in that it created in favor of certain statutorily designated beneficiaries an independent cause of action for the recovery of damages suffered by them—not by the decedent—resulting from the wrongful invasion of legal rights by a tortfeasor. Id. See also Knowles v. Beverly Enters.-Fla., 898 So. 2d 1, 4 (Fla. 2004).
The estate next argues the lower court erred in striking the noneconomic damages returned to the heirs under
Although the estate did object to the trial court‘s pretrial decision to instruct the jury on whether Tandem‘s conduct was professional negligence, it did not object during the charge conference to the actual
At the charge conference, the estate initially argued that the court should adopt its proposed verdict form as to the WDA claim only, which would allow the jury to decide whether any professional negligence of Tandem contributed to the resident‘s injuries, but that such question would be inapplicable to the residents‘-rights claim. When the court suggested that the jurors be allowed to allocate fault between professional and ordinary negligence without separately designating the allocation under either of the two claims, the estate agreed that such was “the best solution,” and the verdict form submitted so read. The conference then took up the subject of the propriety of the instructions to be given, and the estate did not object to the charge on professional negligence, nor did it do so after the court actually instructed the jury.
II. The Propriety of the Court‘s Refusal to Allow the Estate to Add a Claim for Punitive Damages
Finally, appellant urges that the lower court erred in denying its motions to amend the complaint in order to add a claim for punitive damages. Our review standard of this issue is de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188 (Fla. 4th DCA 2005). When a claim for punitive damages is made, the trial court must decide, after the submission of evidence, whether there is a legal basis for the recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Spilman, 661 So. 2d at 873. The Florida Supreme Court has declared the type of evidence necessary to uphold such damages must be
of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire
want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them“. [sic]
White Constr. Co., Inc. v. Dupont, 455 So. 2d 1026, 1029 (Fla. 1984) (quoting Carraway v. Revell, 116 So. 2d 16, 20 n. 12 (Fla. 1959)). Another court has characterized the conduct that would support a claim for punitive damages as negligence evincing such willful, wanton, or intentional misconduct as would warrant sustaining a conviction for manslaughter. Key West Convalescent Ctr., Inc. v. Doherty, 619 So. 2d 367 (Fla. 3d DCA 1993).
Appellant initially argues that punitive damages are awardable against Tandem under either of the following two theories: (1) By finding the employer vicariously liable for the wilful or wanton misconduct of the employee, and some fault by the employer which foreseeably contributes to the plaintiff‘s injury, or (2) by finding evidence of willful or wanton misconduct by a managing agent or officer of the corporation. Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla. 1995).
Appellant asserts the trial court reversibly erred in refusing to allow it the opportunity to amend the complaint by adding a claim for punitive damages, because the court applied the wrong legal standard. It points out that the court relied on
The difficulty with the estate‘s argument is that it never brought the statutory exclusion to the lower court‘s attention. Indeed, in its two motions seeking leave to add the punitive-damages claim, the estate did not distinguish between claims for punitive damages under
In any event, the estate does not show that the trial court erred by disallowing it from amending the complaint under either of the two theories stated in Schropp. Under the first, that of vicarious liability, the estate contends that Nurse Haynes’ conduct in leaving Williams alone on a toilet while she answered other residents’ calls was egregious employee conduct that warranted a jury‘s consideration of its requested punitive-damages claim. Both at trial and in its brief, however, the estate repeatedly emphasized that Nurse Haynes testified she did not know that Williams was a high-fall risk, and that, had she known, she would have taken special precautions and not left Williams alone. The estate is thus unable to demonstrate that the trial court erred in concluding that Nurse Haynes’ conduct failed to satisfy the standard necessary to sustain an award of punitive damages, i.e., that it was wilful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident.
As to the second method, that of direct corporate liability, the estate points out that Williams’ chart stated in numerous places that she was at a high risk for falls, that she was at times confused and
In support of this alternative theory of liability, the estate cites First Healthcare Corp. v. Hamilton, wherein the Fourth District upheld an award of punitive damages on facts showing that the nursing home knew when the resident entered the facility that he had dementia and had been admitted because he needed supervision to keep him from wandering; that he was taking seven medications, including psychotropic drugs; and that he had a visual impairment. The resident was nevertheless allowed to wander off the premises and repeatedly cross a four-lane highway. Staff also knew that a sliding glass door leading outside from the resident‘s room was stuck in an open position, yet they never followed through on their promise to repair it, with the result that he eventually wandered from the facility unaccompanied, fell into a pond, and drowned. The nursing-home administrator thereafter prepared a fraudulent document which attempted to cover up its lack of care by placing blame on the decedent‘s widow. Id. at 1197 & 1200.
Although there are similarities between the facts in Hamilton and those at bar, i.e., the impairments of the respective residents and the failure by the corporate defendants to take corrective action, we are of the opinion that the dissimilarities in the present case make it an unsuitable means for the prosecution of a punitive-damages claim. First, although there was evidence of Williams’ occasional disorientation, there was none of dementia, as suffered by the resident in Hamilton. Additionally, although Tandem was negligent in failing to take measures which would reasonably ensure Williams’ protection, despite its notice that Williams had previously fallen at the facility, it cannot be said that such behavior approached the clearly egregious conduct of the home in Hamilton, which continued to remain indifferent to its resident‘s safety, notwithstanding its notice of his repeated acts that exposed him to the threat of serious harm. Finally, unlike Hamilton, the present case does not involve a situation in which the corporate employer attempted to conceal its misconduct by falsely accusing another person of its own misdeeds.
The most that can be said of Tandem is that it was negligent, perhaps grossly negligent, in failing to take corrective measures in the face of a known risk that might have made Williams more secure against the danger of injury from falls. Such failure does not, in our judgment, per se equate to egregious conduct sufficient to sustain an award of exemplary damages. In our opinion, the facts at bar are far more similar to the circumstances in White Constr. Co., Inc. v. Dupont, 455 So. 2d 1026 (Fla. 1984), than those in Hamilton. There, a large 80,000-pound loader, 22 feet in height, whose brakes the employer knew were defective, was backed at top speed into a work area where it collided with a parked tractor-trailer, seriously injuring the driver standing next to it. In
The evidence in this case showed that the loader‘s brakes had not been working for some time, and that the petitioners were aware of this fact. Although this evidence would be sufficient to show that the petitioners were negligent, it is not sufficient, as a matter of law, to submit the issue of punitive damages to the jury.
Id. at 1028. The court then recited the requisite standard quoted supra at page 377.
In our opinion, just as the negligence of the corporate employer in Dupont could not support a conviction for manslaughter, neither do we consider that of Tandem sufficient for such purpose. In following Dupont, we are not unaware that
AFFIRMED.
KAHN and VAN NORTWICK, JJ., Concur.