On February 6, 2003, the Supreme Court of Florida issued a per curiam opinion in the case of Florida Convalescent Centers, Inc., v. Reed Somberg, Case No. SC01-731. This case may be read in its entirety at www.flcourts.org. This important ruling helps protect our elderly from nursing home neglect and abuse.

In short, the high court ruled in Somberg that a nursing home that negligently or abusively causes a resident's death must be held accountable for compensating the family members for specific damages under Florida Statute §400.023. These are damages that are independent of those that the family members would be limited to under the Florida Wrongful Death Act. In so ruling, the Court recognized the unique nature of a nursing home's duty to protect its elderly residents from harm, and finally "caught up" with the legislative changes of 2001.

By way of background, since the mid-1990s there has been disagreement among Florida's appellate courts on the issue of what the proper measure of damages must be when a nursing home causes a resident's death. For example, until 2001, the law in some areas of Florida limited a nursing home's exposure to those minimal damages delineated under the Florida Wrongful Death Act. This led to the ridiculous result in some counties where it actually would be cheaper for the home if it accelerated a resident's death, than if the resident had lingered on from the home's abuse, and then died of an unrelated cause. This occurred because some appellate courts viewed nursing home cases as being regulated by the state medical malpractice laws. Accordingly, in nursing home death cases, these courts would then apply the "medical malpractice exception" to the Florida Wrongful Death Act. This exception prohibits an adult child from being compensated for non-economic damages where the parent's death is caused by medical malpractice. Unfortunately, recent attempts to change the "medical malpractice exception" have been unsuccessful.

In any event, as to nursing home residents, the Legislature responded to this problem in 2001. It mandated that Florida's nursing homes that are found civilly liable for injuries or death be responsible: 1) to a deceased resident's estate for survival damages (pain and suffering by the resident caused during the resident's stay, but which did not cause the resident's death); or 2) to a deceased resident's family members for wrongful death damages (pain and suffering by the family members for the nursing home's causing the untimely death of the resident).

While the Legislature was acting, the Somberg case was making its way through the courts. In that case, the decedent had contracted an infection that the nursing home ignored and the resident died. The family brought a civil action for specified damages under the Florida Nursing Home Act and also sought recovery for damages provided by the Florida Wrongful Death Act. After the appellate court in Miami ruled that the family was entitled to those damages provided by the Florida Nursing Home Act, the nursing home appealed. Ultimately, the Supreme Court reasoned that the 1997 wording of the Florida Nursing Home Act should never have been misinterpreted by any of the Florida appellate courts, as it clearly did not limit damages to the rather restrictive Florida Wrongful Death Act. Thus, the family should be compensated as consistently intended by the Legislature.

So, what does this mean for our loved ones who are in Florida's nursing homes? It sends a strong message to nursing home operators that not simply the Legislature, but now the highest court in the State of Florida, will not tolerate neglect or abuse of Florida's citizens.