Nursing home cases are distinct from medical negligence claims, Florida high court rules .

The Florida Supreme Court recently drew a clear distinction between medical care and nursing home care by ruling that plaintiffs in cases alleging nursing home abuse and neglect can sue for wrongful death and negligence without meeting the state's presuit requirements for filing a medical malpractice claim. (Integrated Health Servs. v. Lang-Redway, No. SC01-792, 2002 WL 31769252 (Fla. Dec. 12, 2002).)

Citing Florida's Nursing Home Residents Bill of Rights statute, the court held that "if a plaintiff files a lawsuit seeking to enforce only those rights enumerated in [the] statute governing the rights of nursing home residents, the plaintiff is not also required to comply with the presuit conditions for filing a lawsuit involving medical malpractice."

Susan Morrison, a Tampa lawyer who represented plaintiff Pauline Lang-Redway, said the court correctly distinguished between the two types of claims. "Medical malpractice is generally an identifiable, single incident," Morrison said. "This is a custodial issue."

She cited findings by the intermediate appeals court, affirmed by the state high court, that various nursing home staff members, from nurses to aides to dieticians, were responsible for the neglect at issue in the case.

From October 1997 until his death in April 1998, Lang-Redway's husband, Albert, resided at two St. Petersburg nursing homes. Lang-Redway sued both homes, alleging that they had violated the nursing home statute by, among other things, failing to prevent and treat her husband's pressure sores, to prevent him from filling, and to adequately monitor his nutritional intake.

The defendants--a national nursing home chain and a Florida nonprofit facility--maintained that the conduct on which the plaintiff based her claim constituted medical negligence. Before they can be held vicariously liable, the defendants argued, the plaintiff must abide by the state's presuit conditions for bringing a medical negligence action.

The supreme court disagreed, stating that the nursing home statute provides its own standard of care specific to such facilities, and therefore "the medical negligence standard of care and the corresponding presuit requirements ... are inapplicable."

The court cited the reasoning of the Second District Court of Appeals, which had affirmed the trial court's decision not to dismiss. Although the plaintiff had fulfilled the presuit requirements under the nursing home law, the defendants moved to dismiss the complaint on the ground that she had failed to fulfill the presuit requirements for medical malpractice claims.

The appeals court concluded that because the plaintiff claimed that her husband did not receive adequate care at the facilities but did not name or identify any physician or other "health care provider" as a defendant, "this complaint does not seek vicarious liability for the actions of a health care provider under a medical negligence standard."

The supreme court noted that nursing homes employ a variety of workers and that the failures the plaintiff alleged "may have been caused by the nursing staff, by the nursing home in not having adequate staff, by the negligence of aides or other workers, or by a combination of the above."

The ruling is important for cases involving claims that accrued before May 15, 2001, when the Florida legislature enacted dramatic reforms aimed at improving the quality of care at nursing homes, but that also afforded them greater protection from patient lawsuits.

"This [decision] is pretty far-reaching," said Morrison. "There are potentially hundreds, if not thousands, of cases where the cause of action accrued" before the reform law took effect.