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Estate of Williams v. Tandem Health Care of Florida3/29/2005
ON MOTION FOR REHEARING
We withdraw our previous opinion issued January 19, 2005, and substitute the following. In an action brought for damages under the Nursing Home Residents' Rights Act (RRA) and the Wrongful Death Act (WDA) against Tandem Health Care of Florida, Inc. (Tandem), the Estate of Lucille Williams appeals an order granting Tandem's motion for new trial directed to the jury's return of non-economic damages awarded to Williams' nine adult children, and denying the estate's request to amend its complaint by adding a claim for punitive damages. We affirm as to both issues.
Lucille Williams, 74 years old, died from a fall suffered while she was a resident in the care of Tandem. She had been hospitalized for congestive heart failure, pulmonary embolism, and renal kidney failure, and was discharged to Tandem's supervision on February 23, 2000. The Tandem staff knew that Williams was at risk for falling, and her care plan included interventions to prevent falls. Notwithstanding Tandem's knowledge, Williams fell while unattended three days after her admission, but sustained no injury. Thereafter, on February 29, around 3:15 a.m., Williams called for assistance to go to the bathroom. A licensed practical nurse (LPN), Beatrice Haynes, escorted Williams to the bathroom and instructed her to use the call light when she was finished. Williams instead attempted to return to bed without calling, and when Nurse Haynes returned, she found Williams lying on the bathroom floor, complaining of pain in her sacrum. Another LPN assessed Williams, performed neurological checks, and considered her normal. Later during the morning, when Williams could not be aroused, she was transported to the hospital. An intracranial bleed was discovered, and, because she had given a do-not-resuscitate order, she was allowed to expire.
The estate brought an action for damages under three claims, two of which are pertinent to this appeal. The estate alleged (1) deprivation or infringement of a nursing-home resident's rights under section 400.23, Florida Statutes (2000), of the RRA, authorizing the recovery of "actual and punitive damages," and (2) wrongful death under section 768.21, Florida Statutes (2000), permitting awards for medical and funeral expenses, and non-economic damages for certain designated beneficiaries. On the morning of trial, the parties, knowing that Somberg v. Florida Convalescent Centers, Inc., 779 So. 2d 667 (Fla. 3d DCA 2001), was pending for review before the Florida Supreme Court, presented argument to the trial court on the measure of damages which could be awarded. The estate maintained it should be permitted to seek damages under the RRA claim for Williams' pre-death pain and suffering, consistent with Somberg and Beverly Enterprises-Florida, Inc. v. Spilman, 661 So. 2d 867 (Fla. 5th DCA 1995). Tandem, relying on First Healthcare Corp. v. Hamilton, 740 So. 2d 1189 (Fla. 4th DCA 1999), argued that no language in section 400.023 explicitly affords a personal representative a right of action for the decedent's pain and suffering if the death results from a deprivation of a nursing-home resident's rights, and that the damages recoverable under section 400.023 are limited to those a personal representative is authorized to recover under the WDA. The court thereafter entered a pretrial order stating it would follow Hamilton; as a result, the damages sought under the RRA for Williams' pain and suffering from the time of injury to the time of death were not presented to the jury, and the verdict form given the jury was consistent with the court's ruling.
The jury returned verdicts finding, as to the RRA claim, that Tandem had deprived Williams of such rights, and that her c
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