NME Properties2/12/2003
We affirm the punitive damage award against NME Properties, Inc., d/b/a Menorah House, following the death of Ida Revitz, a Menorah House resident, based on vicarious liability. Likewise, we also affirm all other issues raised on appeal and cross-appeal, but write to address the non-delegable duty of a nursing home licensee to provide adequate care to its residents, even though the nursing home was operated by an independent contractor.
Facts
Appellee, Florence Rudich, as Personal Representative of the Estate of Ida Revitz, Deceased, filed a six-count second amended complaint against appellant, NME Properties, Inc. d/b/a Menorah House, and others, including Dr. Aaron, following the death of Revitz. Rudich alleged in count I, a violation of Chapter 400, Florida Statutes (The Florida Nursing Home Residents' Rights Act), not resulting in death; count II, a violation of Chapter 400, Florida Statutes, resulting in death; count III, negligence; count IV, medical negligence against Menorah House; count V, wrongful death; and count VI, medical negligence against Dr. Aaron. In addition, appellee was permitted to include a prayer for punitive damages.
NME Properties, Inc. (NME), a Delaware corporation, was licensed by the State of Florida to operate a nursing home, and owned and operated Menorah House, located in Boca Raton, Florida. Revitz was a resident of Menorah House from July 1992 until January 1995, when she was discharged to North Broward Medical Center and subsequently to Hospice where she died in February 1995. The death certificate listed the primary cause of death to be acute bronchopneumonia secondary to decubitus ulcers.
At the time of her admission in July 1992, Revitz was in the middle phase of Parkinson's Disease, incontinent of bowel and bladder, had moderate to severe dementia, memory problems and limited mobility. She was totally dependent on Menorah House personnel for mobility, toilet needs, and bathing.
Menorah House had written policies and procedures on the care and monitoring of decubitus ulcers, which included record keeping requirements regarding treatment and status of the ulcer as well as notifying a physician and the Director of Nursing. The treatment nurse, who performed treatments and dressing changes for the residents, was responsible for filling out pressure ulcer reports and documenting residents' decubitus ulcers; those reports were not contained in the residents' charts. Menorah House's Director of Nursing testified that it was the nursing home's responsibility and its staff to provide the residents with the appropriate observation, assessment, nursing diagnosis, planning, intervention and evaluation of care. She agreed that if decubitus ulcers were not treated, they would worsen.
After suffering an 11-pound weight loss and a brief admission to the hospital where tests suggested colon cancer, Revitz was readmitted to Menorah House on October 17, 1994. At that time, Revitz did not have any decubitus ulcers or pressure sores on her body.
Records indicate that from December 16 through December 26, 1994, Revitz was not bathed or showered, even though the same was required on a daily basis. On December 24, Desitin was applied to Revitz's right hip and buttocks and was to be applied on a daily basis until the area was healed. Such treatment is commonly used for redness commonly associated with incontinent residents. On December 29, Revitz acquired a Stage Two decubitus ulcer on her coccyx, approximately two centimeters in size. A Ferris Polymer gel-filled pad was applied to Revitz's right hip; however, no physician's order was entered for such treatment.
Although a Stage Two decubitus
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