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Appeals Court Ruling Limits Plaintiffs in Nursing Home Abuse Lawsuits


It was not an altogether surprising decision. A three-judge panel held that a plaintiff could not bring a separate cause of action against a defendant in the event that medical negligence is alleged to have occurred. A claim was filed under the theory of both medical negligence and secondary claim under the Adult Protective Services Act. The court ruled that one plaintiff may not simultaneously make both claims.

What Does This Mean? 

Plaintiffs are now limited to only filing cases under The Adult Protective Services Act for instances of abuse or negligence that are not medical related. If the plaintiff wants to file a claim for medical negligence, they would forfeit any right to make a claim for abuse or general negligence.

The Case in Question 

Charles Barth developed a deep-tissue pressure ulcer while in the care of Select Specialty Hospital in Gainesville. In case you didn’t guess, a deep-tissue pressure ulcer is also known as a bedsore. The plaintiff alleged that he was not repositioned during his stay at Specialty and sued the hospital for medical malpractice after developing a serious ulcer.

The Florida Supreme Court has already upheld that for a medical practice to be held liable for medical malpractice, a medical decision or action must be involved. In Barth’s case, the staff simply neglected to turn him over.

Barth and his attorney filed a suit under the Adult Protective Services Act and a medical malpractice suit. The court determined that he could not file a lawsuit under both statutes but had to choose between one or the other.

During the trial, a jury found Specialty guilty of medical malpractice and awarded Barth over $500,000. They awarded him a separate sum of $25,000 under the Adult Protective Services Act.

According to the lawsuit, Specialty used restraints on Barth and then neglected to turn him over despite complaints. Interestingly, attorneys for Specialty argued that the improper use of restraints and neglect constituted medical malpractice and not elder abuse. The court agreed that the elder abuse statutes that make up the Adult Protective Services Act were not meant to provide a duplicative remedy. So the $25,000 award will likely be vacated.

Nursing Home Abuse Blurs Legal Lines 

In a case like this, you have a quasi-medical decision being made. A patient is held in restraints for whatever reason and then completely neglected by staff to the extent that they develop an ulcer on their skin. There is an argument to be made that the act constitutes a very cruel form of direct torture and severe indifference to the rights and safety of the victim. But it can also be argued that a failure to render services or maintain the patient’s health is more closely related to medical negligence than overt abuse.

Talk to a Tampa Medical Malpractice Attorney Today 

If you or someone you love has been injured in a nursing home due to either medical negligence or direct abuse, the Tampa medical malpractice attorneys at Masterson, Hoag & Smith can file a cause of action on your behalf. Talk to us today for a free consultation.


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