Pursuit of ch. 415 neglect or abuse of a vulnerable adult claims against hospitals in Florida.

• Author: Smith, Stephen P.

Florida law provides statutory causes of action for medical malpractice (F.S. Ch. 766) and neglect of a vulnerable person (Ch. 415). This article discusses efforts by injured patients to recover against hospitals under Ch. 415 rather than Ch. 766. Specifically, it addresses 1) whether a Ch. 415 neglect of a vulnerable adult claim is an available remedy for a patient to pursue recovery against a hospital; and 2) if so, what actions by the hospital or its staff can serve as a foundation for a patient's Ch. 415 claim.

Regarding the first issue, Ch. 415's statutory language and the caselaw on this issue suggest patients, if they qualify as a vulnerable adult under Ch. 415, have a right of action under Ch. 415 separate from any other cause of action available to them, including Ch. 766 medical malpractice claims. Regarding the second issue, the same caselaw also makes clear a Ch. 415 claim against a hospital cannot be based on allegations of medical negligence.

These two principles seem straightforward; in reality, they are anything but. Instead, the same caselaw that suggests patients have a remedy under Ch. 415 against a hospital independent of other claims the patient may have against the hospital has created significant problems in understanding 1) what actions by a hospital or its staff could make the hospital a Ch. 415 caregiver (an essential element of a Ch. 415 neglect of a vulnerable adult claim); and 2) whether allegations plead in support of a Ch. 415 claim are allegations of medical negligence.

Regarding the first point, Ch. 415's statutory language is clear a person or entity must affirmatively accept a caregiver role before a vulnerable adult can pursue a Ch. 415 claim against that person or entity. Although two Florida district courts of appeal have commented in dicta hospitals may serve as Ch. 415 caregivers, neither decision provides any analysis or discussion as to what actions by the hospital or its staff could indicate such affirmative acceptance. Neither does the language of Ch. 415 itself. Therefore, it is nearly impossible to determine what actions by a hospital or its staff could constitute such affirmative acceptance.

Second, Ch. 415 provides "neglect" of a vulnerable adult can consist of a caregiver's failure to provide a vulnerable adult with medicine or medical services. Despite this language, the caselaw referenced above states Ch. 415 claims against hospitals cannot be based on allegations of "medical negligence," which Ch. 766 defines as a claim arising out of the rendering of, or the failure to render, medical care or services. Although Ch. 415's definition of neglect provides that a Ch. 415 neglect claim can be based on failing to provide a vulnerable adult with medicine or medical services, this caselaw reads into Ch. 415 a requirement that a patient's Ch. 415 claim must be based on actions by the hospital or its staff that do not relate to the rendering or failure to render medical care or services.

Establishing that a Ch. 415 claim against a hospital is not based on allegations of medical negligence is difficult, as an extensive body of caselaw construes virtually any alleged actions by a hospital or its staff as allegations of medical negligence, no matter what claim is premised on those actions. This caselaw suggests there are few allegations a patient can make to support a Ch. 415 claim against a hospital a court will not consider allegations of medical negligence.

This is the correct result. Hospitals only provide medical care or services and Ch. 766, not Ch. 415, was intended by the Florida Legislature to be the sole remedy for patients injured by health care providers like hospitals. Patients, therefore, should be confined to Ch. 766 to assert any claims against a hospital based on the hospital or its staff's actions.

The Relevant Statutes: F.S. Chs. 415 and 766

* Neglect of a Vulnerable Adult: Ch. 415--Ch. 415 was enacted as part of the Adult Protective Services Act, which was passed to assist "vulnerable adults," whom the act defines as "a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging." (1) The legislature intended to give these individuals "the same rights as other citizens and, at the same time, protect the individual from abuse, neglect and exploitation." (2) The act provides for assistance and services for vulnerable adults, including protective supervision. (3) The act also provides a civil remedy for any vulnerable adult who has been abused, neglected, or exploited. (4) Under this provision, a vulnerable adult can recover actual and punitive damages, costs, and attorneys' fees. (5) The statute also states, "The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult." (6)

Ch. 415 defines "abuse" as "any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health." (7) It defines "neglect" as:

[T]he failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death. (8)

A "caregiver" is defined by Ch. 415 as:

[A] person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (9). (9)

Finally, "exploitation" includes misappropriating the vulnerable adult's funds or property or failing to use the vulnerable adult's income and assets for his or her support or maintenance. (10)

* Medical Malpractice: Ch. 766--Ch. 766 is the vehicle for asserting claims for medical negligence against health care providers in Florida. The Florida Legislature enacted Ch. 766 in 1985 "to provide a plan for prompt resolution of medical negligence claims." (11)

Ch. 766 defines a "'[c]laim for medical negligence' or 'claim for medical malpractice' [as] a claim, arising out of the rendering of, or the failure to render, medical care or services." (12) To prove a claim of medical negligence, a plaintiff must prove "the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider." (13) The prevailing professional standard of care is the "level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." (14) To determine if a plaintiff is pursuing a medical negligence claim versus some other claim, a court must "look to whether the plaintiff must rely on the medical negligence standard of care as set forth in [[section]]766.102(1)." (15)

Ch. 766 contains several procedural requirements that must be satisfied before suit can be filed. (16) The claimant first must conduct an investigation to corroborate 1) there are reasonable grounds to believe all prospective defendants were negligent in his or her treatment or care; and 2) that negligence resulted in injury. (17) This corroboration consists of "a verified written medical expert opinion" from a medical expert, whom Ch. 766 defines as a health care provider in the same or similar specialty as the allegedly negligent health care provider. (18)

After the presuit investigation is complete, a claimant must give written notice to the allegedly negligent health care provider(s) of his or her intent to file suit. (19) The notice must be accompanied by the verified medical expert opinion. (20) Upon receipt of the notice, the health care provider's insurer or the health care provider (if self-insured) has 90 days to investigate the claim. (21) During this presuit period, the parties can engage in informal discovery, such as written questions, document requests, and unsworn statements. (22) If the...