As published in "The Florida Bar Journal", October 1993
By: Thomas P. Scarritt, Jr. and Madison McClellan
Imagine the scenario. Leona Helmsley procures an early release from her income tax evasion prison sentence. Unfortunately, she has developed physical ailments that require residence in a nursing home. She likes Florida's climate, and decides to move into one of approximately 623 nursing homes in operation here.1
Things go well in the beginning, and she flourishes in her new surroundings. She attempts to relax, but her entrepreneurial tendencies emerge. She begins to convene increasingly larger numbers of her former business entourage in the nursing home to plan the takeover of some of Florida's premiere hotels.
One day she is conducting a working luncheon in her room, barking out orders to her employees and the nursing home staff while enjoying a spicy bowl of Florida conch chowder. She accidentally knocks the bowl over, spilling its contents all over the floor. She immediately orders a certified nursing assistant (CNA) to clean up the mess. He is less than diplomatic, and mumbles that she is "a clumsy oaf". The CNA further enrages her by telling her that the business meeting is over and that her entourage has to disperse because of complaints from other residents.
She reluctantly complies, and orders her employees to leave, with the exception of her lawyer. She reaches over to her night stand, picks up her well read copy of Florida's Nursing Home Bill of Rights, hands it to her lawyer, and issues a simple directive: "Sue them for all they are worth." With great trepidation, her lawyer inquires as to the nature of her claim. She replies, "You were there—you saw how they intentionally violated my rights to manage my own financial affairs and to be treated courteously, fairly, and with the fullest measure of dignity." After a careful review of the law, her lawyer agrees, informing her that she can request not only compensatory but punitive damages.
How likely is this scenario? Under the Nursing Home Bill of Rights, it could happen. F.S. Ch. 400 provides basic standards for the health care and treatment of persons in nursing homes and related health care facilities. 2 In furtherance of those goals, the chapter provides nursing home residents a comprehensive list of rights. These residents' rights include such general provisions as the right to civil and religious liberty, privacy, and the right to choose a certain physician, to the more specific rights of clothing and bed reservation. 3From a medical perspective, the statute provides residents with the right to adequate and appropriate health care and services as well as the freedom from physical and chemical restraints.4
Although the rights in and of themselves seem to constitute reasonable provisions for the protection of elderly citizens in nursing homes, it is the legal grounds for civil enforcement of nursing home violations that has stirred controversy. Specifically, F.S. subsection 400.023 provides that any resident whose rights are deprived or infringed upon shall have a cause of action to recover both actual and punitive damages.5 Additionally, a successful litigant may recover reasonable attorneys' fees. The statute also grants standing to a personal representative of the estate of a deceased resident if the cause of death results from a deprivation or infringement of the decedent's rights.6
Standard for Recovery of Punitive Damages
Because compensatory damages for elderly patients in generally poor health are presumably low, the statute's reference to punitive damages and attorneys' fees has been a major focal point in litigation. Applying the earlier example, if Ms. Helmsley can establish that one of her "rights" was violated, then not only is she allowed to recover for any damages sustained by her but the nursing home may be liable for punitive damages for its failure to ensure that Ms. Helmsley's rights were not sufficiently guarded. Thus, it is important to determine what standards must be established to recover punitive damages against a nursing home under Ch. 400.
A literal reading of Ch. 400 would suggest that punitive damages are recoverable any time the right of a resident has been deprived or infringed upon. An action may be brought "to recover...punitive damages for any deprivation or infringement on the rights of a resident."7 A per se violation of any of the enumerated nursing home rights in and of itself may be sufficient to justify the recovery of punitive damages against the nursing home. Under this theory, the acts of the nursing home's employees which violate the rights of the plaintiff do not, in and of themselves, have to be of a character justifying the imposition of the punitive damages. However, the Florida Legislature has recently amended Ch. 400 to require a showing of willful and wanton conduct prior to a claimant recovering punitive damages.8 Additionally, the Third District Court of Appeal of Florida has recently concluded that the common law willful and wanton standard applied to the recovery of punitive damages pursuant to Ch. 400 violations.9
These recent attempts at clarification were needed to save the statute from constitutional attack. If a court were to allow the imposition of punitive damages without a higher showing, it is certainly arguable that Ch. 400, as applied, is unconstitutional. In Pacific Mutual Life Insurance Co. v. Haslip, 59 U.S. 4157, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), the U.S. Supreme Court identified certain criteria to determine whether an award of punitive damages violates the due process cause of the Fourteenth Amendment to the U.S. Constitution. Although the Court in Haslip recognized that punitive damages have long been a tradition in state tort law, the Court reasoned that unlimited jury discretion in the fixing of punitive damages would invite extreme results jarring one's constitutional sensibilities.
In Haslip the Alabama Supreme Court required the following criteria to be taken into consideration in determining whether a punitive damages award was excessive or inadequate:
1) Whether there was a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred;
2) The degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conducts;
3) The profitability to the defendant of the wrongful conduct and the desirability of removing that profit and then of having the defendant also sustain a loss;
4) The "financial position" of the defendant;
5) All the costs of litigation;
6) The imposition of criminal sanctions on the defendant for its conduct, these taken at mitigation; and
7) The existence of other civil awards against the defendant for the same conduct which would also be taken into mitigation.
The court concluded that Alabama's application of these standards imposed sufficiently definite and meaningful constraints on the discretion of Alabama factfinders in awarding punitive damages. Since the jury instructions were confined to deterrence and retribution, the state policy was advanced by punitive damages allocation. Sufficient restraints on a jury's discretion afforded a defendant adequate due process protection.
Although the constitutionality of Ch. 400 has not yet been presented to a Florida court, the Third District Court of Appeal has recently issued an opinion with regard to the standard for the recovery of punitive damages. In Key West Convalescent Center v. Doherty, 18 Fla. L. Weekly D1326 (Fla. 2d DCA 1993), the court held that the character of negligence necessary to sustain an award of punitive damages pursuant to F.S. subsection 400.023 must be "willful, wanton and intentional misconduct sufficient to sustain a conviction for manslaughter." 10 In reaching its conclusion, the court held that the recovery of punitive damages pursuant to Ch. 400 should not vary from the well established principles regarding recovery of punitive damages pursuant to common law. Furthermore, the court reasoned that since a Ch. 400 claim for punitive damages was subject to the Tort Reform Act (F.S. Ch. 768) and Florida common law, evidence of willful and wanton conduct must be proffered into the record to support a claim for punitive damages.
Nature of Conduct Required for Punitive Damages
Although the Key West opinion apparently resolved the issue of the standard for the recovery of punitive damages, the court did not address or provide examples of conduct that would support a claim for punitive damages pursuant to Ch. 400. Therefore, many of the issues addressed by the U.S. Supreme Court in Haslip remain unresolved in nursing home claims. While the establishment of a definitive standard is helpful, application to Florida nursing homes may be precarious. Using the original example, if a CNA intentionally referred to resident Helmsley as a "clumsy oaf" and intentionally interfered with her right to manage her financial affairs, do these intentional acts constitute behavior that is sufficiently willful and wanton to justify the imposition of punitive damages?
Assuming the willful and wanton standard applies, it still must be determined what acts or omissions of the defendant nursing home can be characterized as so gross and flagrant as to evince a reckless disregard of human life for the safety of persons exposed to the effect of the employee's conduct so as to justify the imposition of punitive damages. In a negligence action, the Florida Supreme Court has required a showing of conduct that would sustain a conviction for manslaughter. 11 The plaintiff must present sufficient evidence to sustain a finding of willful or wanton conduct. In essence the jury is asked the question: "Do you find that the nursing home acted with wantonness, or willfulness, or reckless indifference to the rights of others in their care and treatment of the patient?" If the answer is yes, then the jury can consider assessing punitive damages. However, this raises a distinctive issue. How can you determine if a nursing home has willfully and wantonly violated a resident's access to a telephone, the right to visit with persons of the residents' choice, the right to use personal clothing, or the right to be treated courteously? Although there is no doubt that nursing home residents should have these rights, can a nursing home be said to have willfully and wantonly denied a patient these rights? Is there any other way for such a right to be denied but willfully and intentionally?
It would appear that prior state law on the punitive damage issue could not have effectively anticipated the multitude of problems presented by Ch. 400. In Payton Health Care Facilities, Inc. v. Campbell, 497 So. 2d 1233 (Fla. 4th DCA 1986), the court attempted to address this issue. In attempting to delineate whether a plaintiff could recover punitive damages against a nursing home, the court referred to the standards for the recovery of intentional infliction of emotional distress. Specifically, punitive damages could be recovered against the nursing home only if the conduct was so outrageous in character as to go beyond all possible bounds of decency. Pursuant to this standard, a jury would be asked to impose punitive damages against a nursing home only if the violation of the residents' rights was so extreme in character as to lead an average member of a community to exclaim, "outrageous!" Once again, many potential jurors may feel that any violation of a nursing home patients' rights is outrageous. Certainly many of Florida's senior citizens, faced with the possibility of nursing home placement, may find such conduct extreme and outrageous. Since the Key West opinion did not address what actions would constitute "punitive conduct," this issue remains unresolved.
Does Mercury Motors Apply to the Bill of Rights?
To further accentuate this confusion, even this application of punitive damages may be inappropriate. Any assessment of damages against a nursing home would be premised on the misconduct or omissions of the nursing home employees. Although a Florida court has now required a showing of willful and wanton conduct, it is unclear whether the nursing home would be directly or vicariously responsible for any violations. In Mercury Motors Express, Inc. v. Smith, 399 So. 2d 545 (Fla. 1981), the Florida Supreme Court held that before punitive damages may be imposed on an employer, the plaintiff must show some fault on the part of the employer such as its decision to hire or retain the employee who engaged in the willful and wanton conduct. Furthermore, this fault by the employer must have foreseeably contributed to the harm done to the plaintiff. Even simple negligence on the part of the nursing home would suffice as long as the plaintiff can demonstrate that the nursing home should have reasonably foreseen that the employee would have engaged in a willful and wanton violation of a residents' rights.
Although no caselaw as of yet has read this standard into F.S. subsection 400.023, similar statutory provisions have been held to allow the recovery of punitive damages against the employer under the Mercury Motors rationale. In McCarthur Dairy, Inc. v. Original Kielbs, Inc. 481 So. 2d 535 (Fla. 3d DCA 1986), the Third District Court of Appeal had to determine the vicarious liability of an employer for punitive damages in a civil theft action. Importantly, the civil theft statute was similarly silent with regard to the standard for recovering punitive damages and the parties against whom they could be recovered. The court held that since the statute was silent, ordinary principles of civil liability regarding punitive damages should apply. Citing Mercury Motors, the court held that for an employer to be vicariously liable for punitive damages, the plaintiff must show that the employer was guilty of some fault which foreseeably contributed to the plaintiff's injury.
Although the application of Mercury Motors to Ch. 400 would provide some guidance, certain questions still remain. Initially, since the statutory language makes no literal requirement of harm to the patient, would the Mercury Motors standards still apply even if there was no actual damage to the plaintiff? For example, if the nursing home inappropriately screened a patient's mail, would that conduct be sufficient to allow the recovery of punitive damages? Furthermore, must a plaintiff establish that the nursing home was negligent in hiring or retaining the employee who willingly and wantonly read the patient's mail? Additionally, if the Mercury Motors standard is engrafted onto Ch. 400, will the focus of the patient's case shift away from the act violating the patient's rights to the act of the nursing home in hiring or retaining the employee guilty of the violation?
In an effort to proscribe the application of Mercury Motors, some plaintiffs suggest that the nursing home has a "nondelegable duty" to ensure that the resident's rights are not violated. Thus, the nursing home is strictly liable for the acts of its employees in protecting residents' rights. The issue of whether the violations occurred outside the course and scope of employment is irrelevant. Any violation establishes liability directly against the nursing home, even for punitive damages. However, this seems to fly in the face of Mercury Motors. There, the Florida Supreme Court held that punitive damages could not be assessed against the corporate entity absent some fault by the entity employing the person guilty of the rights' violation. If a nurse or certified nursing assistant engages in violative conduct, to hold the nursing home directly liable for punitive damages encroaches the court's holding. Furthermore, if a nursing home is liable for punitive conduct directly, then Florida public policy precludes insurance coverage for any award of punitive damages against the nursing home.12
Since the attachment of vicarious liability for punitive damages against the employer under Mercury Motors arises out of the employer/employee relationship, additional problems arise. To recover punitive damages under this theory, the plaintiff must demonstrate that the employee's willful and wanton acts were committed within the scope of employment. This differs from the recovery of compensatory damages under a negligent hiring or retention theory. It is only when recovery is sought for punitive damages under Mercury Motors that the employee's act must be committed within the scope of employment. Since the majority of nursing homes have taken significant strides to ensure that their residents' rights are protected, can any employee's act that violates those rights ever be committed within the scope of his or her employment?
To establish that an employee's act was within the scope of employment, it must be shown that the conduct was motivated, at least in part, by the purpose of serving the employer. 13 Although it is clear that an employee's negligent or unintentional conduct may well be within the course and scope of employment, these violations would not be sufficient to recover punitive damages. Rather, an employer is responsible only for the intentional wrongful acts of the servant if the employee's conduct is in some way furthering the interest of the employer or at least is motivated by some purpose to serve those interests, rather than the employee's own interest. Obviously, since the nursing home will take the postition that it made every effort to ensure against the violation of a residents's rights and is in business to prolong life, it will be difficult for a plaintiff to establish that the employee's violation in some way furthered the employer's interest. Furthermore, if the nursing home takes the position that the employee acted outside the scope of employment, will insurance protection apply? Does the insurer owe the employee a separate defense?
While there is little debate that some nursing homes engage in conduct so egregious as to justify the imposition of punitive damages, it seems unlikely that the legislature intended to allow for the recovery of punitive damages for any intentional violations. Further, some of the rights guaranteed to nursing home patients, even if violated, do not seem sufficiently fundamental so as to justify punitive damages. Although the nursing home resident's "bill of rights" takes admirable steps to protect a discrete and vulnerable minority, it clearly does not establish a consistent basis for a civil cause of action. Some of the rights, while certainly worth protecting, should not grant a patient the right to litigate for damages, especially punitive.
In Florida, 20 percent of the population is 65 years of age or older. 14 And, while the demand for nursing homes in Florida is certainly increasing, so has the quality. There is significant evidence that the typical nursing home is improving in the quality of services rendered to its patients. 15 Federal and state legislation has improved the quality of life for nursing care patients. That being the case, is it in Florida's best interest to allow for the recovery of punitive damages based on residents' rights that are more idealistic than practical? Do we want to follow the medical malpractice crisis with one in the nursing home field?
Conclusion
The Florida Legislature has passed legislation allowing for the recovery of compensatory and punitive damages under such vague standards that a nursing home licensee could conceivably be held liable based upon a display of bad manners toward a resident. The legislature attempted to fix the problem by inserting a willful and wanton standard for the recovery of punitive damages in the amendments that took affect on July 1, 1993, for all causes of action occurring on or after that date. Despite this effort, a nursing home could still be held liable for significant damages if its employees willfully and wantonly act in a discourteous manner toward a resident. Additionally, the Nursing Home Bill of Rights fails to specify whether the nursing home is liable directly or vicariously for these allegedly punitive violations.
Nursing homes cannot be insurers against minor violations committed by employees who are reasonably hired and trained. The current law is so vague in its description of rights that it in effect imposes nearly strict liability on nursing homes for conduct such as that described in the beginning of this article. While the effort of the legislature was unquestionably well intentioned, the legislature has now perhaps created a problem bigger than the one it was attempting to resolve. The burden placed on Florida's nursing homes may ultimately hurt the rights of present and future residents by financially eliminating many of Florida's nursing homes. A free market enables residents and their families to research, inquire, and select a nursing home most capable of caring for an elderly patient. An overly regulated and overly burdened market may increase costs. Eliminate availability, and ultimately restrict the one right residents take for granted--the right to choose.
1 April 2, 1993, telephone conference with Department of Professional Regulation.
2FLA. STAT. subsection 400 (1993).
3Id. at subsection 400.022.
4Id.
5Id. at subsection 400.023.
6Id.
7Id.
8See supra note 2.
9Key West Convalescent Center v. Doherty, 18 Fla. L. Weekly D1326 (Fla. 2d D.C.A. 1993).
10White Construction Co., Inc. v. DuPont, 455 So. 2d 1026 (Fla. 1984).
11Id. at 540.
12See U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1064 (Fla. 1983)
14M. V. v. Gulf Ridge Council Boy Scouts of America, 529 So. 2d 1248 (Fla. 2d D.C.A. 1988).
15THE FLORIDA STATE UNIVERSITY, ALTERNATIVES TO LONG TERM CARE FOR DISTRICT ONE NORTHWEST FLORIDA HEALTH COUNCIL 3 (Aug. 10, 1987).
16JOHNSON AND GRANT, THE NURSING HOME IN AMERICAN SOCIETY 3 (1988).
The authors gratefully acknowledge the assistance of James Wilkes of Tampa, who reviewed and offered comments on this article.
This column is submitted on behalf of the Trial Lawyers Section, Ellsworth William Hoppe, Jr., chair, and Samuel R. Mandelbaum, editor.