CopyCited 89 times | Published | Supreme Court of Florida | 2004 WL 2922097
...action as was done in this case. Furthermore, in addition to common law negligence, the facility may be liable depending on the particular facts, under the theories of common law intentional torts, like battery, or abuse of a vulnerable adult under section 415.1111, Florida Statutes (1997)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 14984, 37 Fla. L. Weekly Fed. D 2157
...In June 2010, Mr. Knobloch filed an action against the operator of the nursing home and others for alleged deficiencies in his care during his residence at the home. Mr. Knobloch alleged claims for negligence, breach of fiduciary duty, and violations of section 415.1111, Florida Statutes (2009)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11105, 2016 WL 3913368
...Id.; see also Surloff v. Regions Bank,
179 So.3d 472, 476 (Fla. 4th DCA 2015) (noting that, there is no liability for another’s suicide unless a special duty of care is assumed by taking care and custody of the person). 2 As to the count alleging a violation of section
415.1111, Florida Statutes (2010), we agree with appellees that Chapter 415 does not apply in this instance....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2013 WL 5493462, 2013 Fla. App. LEXIS 15627
...cal complications due to Appellants’ negligence. Resident also alleged that Appellants breached a fiduciary duty by accepting payments and not providing appropriate care. Finally, Resident sought to recover under the Adult Protective Services Act, section 415.1111, Florida Statutes (2011), under which she alleged that she was a vulnerable adult with a long-term disability who did not have capacity to consent....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 14248, 2007 WL 2609464
...Appellant’s Third Amended Cross-claim (“cross-claim”) against TRG sought relief under five counts. 1 Relevant to this appeal are counts I and II, which seek specific performance and claim breach of contract, respectively, as well as count IV, which is an action for elder abuse pursuant to section 415.1111, Florida Statutes (2005)....
...As such, these allegations are insufficient to show that Appellant signed the Termination Letter involuntarily and as a result of coercive acts. Moreover, under the facts set forth in the cross-claim, Appellant cannot maintain a claim for elder abuse under section 415.1111, Florida Statutes (2005)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 2338516
...adult family-care home, adult day care center, group home, or mental health treatment center. "Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a vulnerable adult. Section 415.1111 provides that "[a] vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation" (emphasis supplied)....
...If, during the period after the improper intubation and before Gould's life support was terminated, the hospital's agents or employees had intentionally "abused" or "neglected" him, as those terms are defined in chapter 415, the hospital would arguably have been subject to suit under section 415.1111, Florida Statutes....
...rsistent vegetative state." We must also reject the position of the plaintiffs/appellants and their amicus curiae. We affirm the trial judge's determination that the allegations of the amended complaint which purport to state a cause of action under section 415.1111 are clearly allegations of medical negligence....
...also affirm his ruling that the amended complaint failed to state a cause of action under chapter 415, which was not intended by the Florida Legislature to provide an alternate cause of action for medical negligence. To state a cause of action under section
415.1111, a complaint must set forth factual allegations which demonstrate that the plaintiff or the plaintiff's decedent was a "vulnerable adult" as defined by section
415.102(27), that the defendant was a "caregiver" as defined by section 4...
CopyCited 3 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 124535, 2015 WL 5474509
...civil cause of action for a “vulnerable adult who has been abused, neglected, or exploited as specified in this chapter ... against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” Fla. Stat. § 415.1111 (2014)....
...), or “exploitation” as defined by section
415.102(7) with respect to the vulnerable adult.
983 So.2d at 721 . Nevertheless, Bohannon is not controlling. First, Bohannon is distinguishable from the instant case and, second, the plain language of Section
415.1111 does not require that Olga establish Michelle and Teresa were her “caregivers.” Bohannon is distinguishable because the complaint in that case alleged the defendant’s “conduct constituted ‘abuse’ ” as defined by Section
415.102(1)....
...a. Stat. §
415.102 (1). Thus, a plaintiff alleging “abuse” must establish the defendant is a relative, caregiver, or household member. In contrast, the Amended Complaint in this case alleges Michelle and Teresa exploited Olga. (Doc. # 62 at 6). Section
415.1111 provides a cause of action for a “vulnerable adult who has been abused, neglected, or exploited ......
...§
415.102(1) (stating that abuse is committed by a “relative, caregiver, or household member”). Furthermore, nothing within the Legislature’s enacted statement of intent indicates actions alleging “exploitation” may only be brought against “caregivers.” §
415.101. As such, the plain language of Section-
415.1111 does not require that a “perpetrator” who exploited a “vulnerable adult” be a “caregiver.” This Court must give effect to the plain language of the statute....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1998 WL 145077
...ry factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one." Id. We note that in the 1995 amendment to chapter 415, the legislature included a section entitled "Civil Penalties," section 415.1111....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2013 Fla. App. LEXIS 10753, 2013 WL 3357519
...for statutory, compensatory or punitive damages arising out of the relationship between the Resident and the Facility, including but not limited to ... those rights that may be available under Florida Statutes §§ 400.22,
400.023, 400.428, 400.429,
415.1111 ......
...Following Vrastil’s death, Gill, as personal representative of Vrastil’s estate (“Appellee”), sued Appellants for negligence and wrongful death based on alleged violations of sections 400.22 and
400.23, Florida Statutes (2010), breach of fiduciary duty, and violations of section
415.1111, Florida Statutes (2010)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2012 WL 6216764, 2012 Fla. App. LEXIS 21521
...We find merit in these arguments and reverse the order denying the motion. The underlying lawsuit is Benjamin Figueroa’s action as personal representative of the Estate of Lucy R. Figueroa against Spring Lake for negligence, wrongful death, breach of fiduciary duties, and violations of section 415.1111, Florida Statutes (2010)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...Catt died, his Estate sued Diversicare, as the owner and
operator of Hardee Manor. The Estate ventured several theories: nonlethal negligence
(count I), lethal negligence (count II), wrongful death (count III), breach of fiduciary duty
(count IV), aiding and abetting breach of fiduciary duty (count V), and violations of
section 415.1111, Florida Statutes (2017) (count VI).
Diversicare moved to stay the lawsuit and compel arbitration....
...neys' fees." After the
hearing, the trial court entered a written order compelling arbitration and severing the
costs and fees provisions, finding that they violated public policy because section
-2-
415.1111 provides a potential statutory right for a prevailing party to recover attorneys'
fees.
Diversicare argues that the trial court improperly severed the attorneys'
fees provision from the arbitration agreement; it argues that...
...severed this provision only as to count VI, the only count providing for a statutory right
to potentially recover fees. Thus, Diversicare asserts that the trial court "should have
only removed the agreement of the parties to bear their own attorney's fees with respect
to the section 415.1111 count and should have left the remainder of the provision
intact ....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 4472, 2012 WL 933030
...isinherited her, making it clear that she opposed it). The alternate grounds raised by the appellees in their motions to dismiss do not support dismissal with prejudice. Lastly, count V was correctly dismissed because appellants lacked standing. See § 415.1111, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 2813819, 2012 Fla. App. LEXIS 11284
...(2) lethal negligence, in that the non-lethal negligence ultimately caused Deresh’s death; (3) wrongful death, a claim pursued on behalf of Deresh’s surviving children; (4) breach of fiduciary duty; (5) the corporate defendants’ violations of section 415.1111, Florida Statutes (2008), exploitation of a -vulnerable adult; and (6) the individual defendants’ violations of the same statute....
...Shotts and Gessa compel the holding that the provision in the arbitration agreement preventing the arbitration panel from awarding punitive damages violated public policy. This case involves Chapter 415 rather than Chapter 400, which was at issue in Shotts and Gessa ; however, like the statute in those cases, section 415.1111, Florida Statutes (2008) expressly authorizes punitive damages....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2013 WL 6438940, 2013 Fla. App. LEXIS 19594
...abilitation Center nursing home, in Gainesville, Florida. Webb alleged that nursing home staff actions or inaction caused him to suffer severe bedsores and a below-the-knee amputation. Subsequently, the trial court granted leave to add a claim under section 415.1111, Florida Statutes, for abuse, neglect, or exploitation of a vulnerable adult. Webb also sought to add a claim for punitive damages. The trial court dismissed the section 415.1111 claim with prejudice and denied the request to add punitive damages....
...ovember 2010 and as to THMI in January 2011. It ordered that all subsequent papers be served on counsel for the receiver, Chavez-Ruark, who is licensed in Maryland. Webb obtained leave from the successor judge to amend the complaint to re-assert the section 415.1111 claim and, later, to add a punitive damages claim....
...The trial on damages proceeded, lasting three days, with no attorney present to represent the defendants. The jury returned a $900 million verdict for Webb: $100 million in compensatory damages on the negligence claim; $100 million in compensatory damages on section 415.1111 exploitation claim; and $700 million in punitive damages....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 14827
...In 2015, Hochbaum filed a three-count complaint against the nursing
home defendants. Count one alleged negligence in violation of section
400.022, Florida
Statutes (2013), count two alleged a breach of fiduciary duty, and count three alleged
violations of section
415.1111, Florida Statutes (2013)....
...On January 14, 2014, she
-2-
that all three arbitration agreements violate public policy because they require each
party to pay for their own attorneys' fees, thereby eliminating the fee-shifting provision of
section 415.1111....
...ing home defendants' motion to
compel arbitration.
Hochbaum first argues on appeal that the arbitration agreements are
unenforceable because they violate public policy by limiting Hochbaum's statutory right
to attorneys' fees under section 415.1111. In her complaint, Hochbaum asserted a
count for violation of section 415.1111, alleging that the nursing home defendants' "acts
or omissions constitute exploitation of a vulnerable adult in violation of" the statute.
Section 415.1111 provides that "[a] vulnerable adult who has been abused, neglected,
or exploited as specified in this chapter has a cause of action against any perpetrator
and may recover actual and punitive damages for such abuse, neglect, or exp...
...3d 456, 474 (Fla. 2011); Fonte v. AT&T Wireless Servs., Inc.,
903 So. 2d 1019,
1023 (Fla. 4th DCA 2005). Hochbaum's main argument at the hearing was that the
arbitration agreements are void as against public policy because they defeat the
remedial purpose of section
415.1111.
"A remedial statute is designed to correct an existing law, redress an
existing grievance, or introduce regulations conducive to the public good....
...The legislature intended
"to provide for the detection and correction of abuse, neglect, and exploitation through
social services and criminal investigations and to establish a program of protective
services for all vulnerable adults in need of them." Id. Section 415.1111 creates a civil
cause of action for abuse, neglect, and exploitation committed against vulnerable
adults, and it provides for actual and punitive damages as well as prevailing party fees
and costs....
...at 833.
The arbitration agreements in this case require the parties to equally bear
the fees associated with arbitration, in contravention of Hochbaum's statutory right to
seek a full award of her fees under the prevailing party attorneys' fees provision of
section 415.1111....
CopyPublished | Florida 2nd District Court of Appeal
...Johnson sustained her injuries (and her cause of action accrued, see, e.g., Dep't of
1Count one alleged negligence, in violation of section
400.022, Florida
Statutes (2016); count two alleged a breach of fiduciary duty; and count three alleged
violations of section
415.1111, Florida Statutes (2016).
-2-
Transp....
...Relying on Hochbaum ex rel. Hochbaum v. Palm Garden of Winter Haven,
LLC.,
201 So. 3d 218, 220-21 (Fla. 2d DCA 2016), Ms. Johnson argues that the
provision improperly limits her statutory right to seek a full award of her fees under the
prevailing-party provision of section
415.1111, Florida Statutes (2016).2 The Manor
Care Appellees respond that Hochbaum is distinguishable because the provision in this
agreement allows the arbitrator to award attorney's fees and costs under state or federal
law; thus, it does not preclude Ms. Johnson, if prevailing, from being awarded her
attorney's fees and costs under section
415.1111 and does not impinge on her statutory
rights.
We agree with the Manor Care Appellees....
...fees, costs of the action, and damages.
-4-
associated with arbitration, in contravention of Hochbaum's statutory right to seek a full
award of her fees under the prevailing party attorneys' fees provision of section
415.1111. Thus . . . this provision of the arbitration agreements violates public policy."
(emphasis added)). Section 415.1111 does not guarantee a prevailing party an award
of attorney's fees and costs but provides that the prevailing party "may be entitled to
recover reasonable attorney's fees [and] costs," and the attorney's fees provision in this
case allows the arbitrator to award attorney's fees and costs under "state law," which
includes section 415.1111....
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 2200453, 2017 Fla. App. LEXIS 7175
...tor—Julie Morris.
The four-count complaint included a count for violation of Florida’s Nursing Home
Residential Rights Act, sections
400.022-.023, Florida Statutes (2013), two counts for
violation of Florida’s Adult Protective Services Act, section
415.1111, Florida Statutes
(2013), and one count for breach of fiduciary duty.
Appellants responded to the complaint by filing a Motion to Dismiss and to Compel
Arbitration. The trial court denied the motion, finding that the attorneys’ fee provision
violated public policy because it effectively “replaced” the prevailing party provision set
forth in section
415.1111 with a provision requiring each party to be responsible for its
own attorneys’ fees....
...Accordingly, an
arbitration agreement provision that purports to preclude application of the Act’s prevailing
party fee provision is unenforceable because it violates public policy. See id. at 221
(holding that arbitration agreement that limits statutory remedy of attorneys’ fees pursuant
to section 415.1111 violates public policy).
3
Based on the determination that the arbitration agreement attorneys’ fee provision
violates public policy, we must next determine whether the provision is severable....
...3d at 475.
In Hochbaum, our sister court was similarly confronted with an arbitration
agreement between a nursing home and one of its residents that contained an attorneys’
fee provision that was inconsistent with the prevailing party attorneys’ fee provision set
forth in section 415.1111....
CopyPublished | Court of Appeals for the Eleventh Circuit
...The lead poisoning resulted in debilitating and permeant health
2 In his appeal, Cordero also challenges the district court’s with-prejudice dis-
missal of his claim for exploitation of a vulnerable adult under Florida’s Adult
Protective Services Act, Florida Statute § 415.1111....
CopyPublished | Court of Appeals for the Eleventh Circuit
...The lead poisoning resulted in debilitating and permeant health
2 In his appeal, Cordero also challenges the district court’s with-prejudice dis-
missal of his claim for exploitation of a vulnerable adult under Florida’s Adult
Protective Services Act, Florida Statute § 415.1111....
CopyPublished | Florida 2nd District Court of Appeal
...2 The Estate includes Laurel Point Care and Rehabilitation Center,
LLC, in the Skyline group of defendants.
3 The Estate separately alleges that the Skyline group is liable for
aiding and abetting Laurel Point's breach of its fiduciary duty and for
violating section 415.1111, Florida Statutes (2006).
3
Compass Pointe moved to compel arbitration of those claims,
arguing that although it was not a signatory to the arbitration
agreement, it nonetheless could subj...
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 22, 2022
...Cordero asserted two claims
against Transamerica: one for breach of contract under New York
law, and the other for exploitation of a vulnerable adult under Flor-
ida’s Adult Protective Services Act (“FAPSA”), Florida Statute
§ 415.1111.
This appeal followed the district court’s with-prejudice dis-
missal of Cordero’s claims....
...We deferred our decision on this claim in our prior
opinion. See Cordero, 34 F.4th at 996 n.2.
Under FAPSA, a “vulnerable adult who has been abused, ne-
glected, or exploited” may bring a civil lawsuit “against any perpe-
trator.” Fla. Stat. § 415.1111....
CopyPublished | Florida 3rd District Court of Appeal
...rother,
caregiver, trustee and power of attorney – has “exploited” Maniglia for
Gomes’s own personal benefit and the benefit of Gomes’s mother
(Maniglia’s stepmother). Maniglia’s initial complaint seeks punitive damages
pursuant to section 415.1111 of the Florida Statutes.1
1
Under the Act, “[a] vulnerable adult who has been abused, neglected, or
exploited as specified in [Chapter 415] has a cause of action against any
perpetrator and may recover actual and punitive damages for such abuse,
neglect, or exploitation.” § 415.1111, Fla....
CopyPublished | Florida 1st District Court of Appeal
...hua County.
Monica J. Brasington, Judge.
July 15, 2019
B.L. THOMAS, J.,
Appellant/Cross Appellee Specialty Hospital-Gainesville
appeals a final judgment awarding Appellee/Cross Appellant
Charles Barth damages under section 415.1111, Florida Statutes,
which provides a cause of action for a vulnerable adult against
“any perpetrator” where the vulnerable adult has been “abused,
neglected, or exploited as specified in this chapter” (emphasis
added)....
...Barth after he was treated at Specialty
Hospital of Gainesville.
We reverse in both appeals. We hold that under Bohannon v.
Shands Teaching Hosp. & Clinics, Inc., 2 an allegation of medical
negligence subject to the statutory requirements of chapter 766,
Florida Statutes, cannot form the basis of a claim under section
415.1111, Florida Statutes....
...s a
“caregiver,” as those terms are defined in section
415.102, Florida
Statutes.
Specialty Hospital moved to dismiss Count II, arguing that it
described medical negligence and therefore could not support a
cause of action under Bohannon and section
415.1111, Florida
Statutes....
...Barth’s calls for medical assistance. The jury
awarded damages on this claim in the amount of $25,000. The jury
found that punitive damages were not warranted. Specialty
moved to set aside the verdict, and the trial court denied the
motion. Mr. Barth moved for attorneys’ fees under section
415.1111, Florida Statutes, following the verdict.
Analysis
I....
...and other provisions of
chapter 766, the claim cannot be asserted under chapter 415; if the
claim asserts non-medical negligence or criminal conduct, it can be
asserted under chapter 415.
That statute refers to “perpetrators” for a reason. § 415.1111,
Fla. Stat. (2018). The entire legislative scheme of chapter 415 is to
punish “perpetrators” of abuse, neglect or exploitation, not medical
negligence. Id.
The overarching and critical sentence in section 415.1111,
Florida Statutes, reads as follows: “A vulnerable adult who has
been abused, neglected or exploited 4 as specified in this chapter
has a cause of action against any perpetrator and may recover
actual and punitive damages for such abuse, neglect or
exploitation.” (Emphasis added). Supporting our decision in
Bohannon, and our analysis here, the legislature in the
4 Both parties agree that Specialty was not liable for any
exploitation of Mr. Barth.
9
immediately preceding subsection of 415.1111, Florida Statutes
provides that: “A person who knowingly and willfully fails to report
a case of known or suspected abuse, neglect, or exploitation of a
vulnerable adult, or who knowingly and willfully prevents another
person from doing so...
...al personal injury suit.”
Stuart v. Hertz Corp.,
351 So. 2d 703, 706 (Fla. 1977) (emphasis
added). The same logic applies here: the complex issues of medical
negligence under chapter 766 cannot be permitted to be litigated
as a parallel suit under section
415.1111, Florida Statutes,
designed to address a completely different type of wrongful
conduct.
We recognize section
415.1111, Florida Statutes, states that
the “remedies provided in this section are in addition to and
cumulative with other legal and administrative remedies provided
to a vulnerable adult.” But this sentence cannot be logically
interpret...
...2d
935, 936 (Fla.1st DCA 1988) (“Although failure to obtain informed
consent may also constitute a technical battery, labeling the act an
intentional tort does not change the action from what it is, a
species of medical negligence”). The allegations here are all
“species of medical negligence.” While the sentence in section
415.1111, Florida Statutes, provides that its remedies are
“cumulative” to other legal and administrative remedies, this
11
language must be interpreted to refer to remedies outside of
chapter 766, Florid...
...But the responses and
restraints were part of Plaintiff’s medical treatment, and they
required a degree of medical skill or judgment. See Townes,
242
So. 3d at 309. The assertions regarding the restraint lie in medical
negligence, not abuse or neglect as prohibited in section
415.1111,
Florida Statutes.
Appellee’s claims were contained within his suit for damages
from medical malpractice and could not be maintained as a
separate count for damages resulting from alleged abuse or neglect
of a vulnerable adult under chapter 415....
...consideration of the competing interests in preventing such claims
from unduly interfering with the effective delivery of complex
professional medical care while preserving patients’ constitutional
rights to access to courts.
We do not hold that claims under section 415.1111, Florida
Statutes, could never be asserted against a hospital or health-care
provider....
...As this court recognized in Bohannon, such claims could
be maintained for non-medical abuse or neglect. For example, if a
nurse or doctor committed a sexual offense against a vulnerable
adult or attempted to harm a vulnerable adult such a claim could
be asserted under section 415.1111, Florida Statutes....
...orida
Statutes.
We therefore reverse the appeal and remand with directions
to enter a directed verdict for Specialty Hospital on Count II of the
13
verdict. As a matter of law, no cause of action existed under section
415.1111, Florida Statutes, based on the allegations of medical
negligence, which encompassed all claims asserted by Mr....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 3588326, 2012 Fla. App. LEXIS 14000
...He apparently suffered falls, decubitus ulcers, and other health issues relating to hygiene. Mr. Gaynor, by and through Classie Gaynor, his guardian de son tort, filed this action alleging negligence, breach of fiduciary duty, and statutory violations of section 415.1111, Florida Statutes (2007)....
CopyPublished | Florida 3rd District Court of Appeal
...5 This appeal followed.
4
Conte further explained: “Corrective action plan is something that we—
issue to a provider in order for them to correct something that was found to
be not in line with established rules.”
5
The trial court also granted summary judgment on counts II (violation of
section 415.1111) and III (breach of fiduciary duty) on the basis that the
7
ANALYSIS
As it argued below, the Estate contends on appeal that it is not
challenging the “act of discharge” but...
