Appellate Court Upholds Defense Verdict Obtained by McCumber Daniels Attorney Against Wilkes & McHugh, P.A.

On May 14, 2004, the Fifth District Court of Appeal unanimously affirmed a complete defense jury verdict obtained by McCumber Daniels partner Andrew McCumber in the case of The Estate of Ernesto Vazquez et al v. Avante Groups, Inc.

The trial involved a three-count complaint for violations of resident rights (Chapter 400), wrongful death and negligence. It was alleged that Ernesto Vazquez suffered a fractured hip which required an open reduction/internal fixation due to negligent care by the nursing home. The complaint also cited severe weight loss, dehydration, failure to inform the family of significant changes in the decedent's health, fraudulent documentation, understaffing, poor survey history, and death.

Plaintiff's theory of the case was that "someone" made a decision that the nursing home resident was to die, and that "someone" was the nursing home. Plaintiff’s case-in-chief began with the testimony of several disgruntled former employees, each of whom testified that the facility was understaffed, that they frequently observed residents lying in their own feces and urine, and that they were required to fill in blanks or holes in residents' charts in order to get paid. None of these witnesses was able to relate testimony to plaintiff's decedent as none recalled specifically knowing him.

At the close of Plaintiff's case, the Court granted a directed verdict dismissing the parent corporation, Avante Group, Inc. from any liability, and granted a second directed verdict eliminating plaintiff’s punitive damages claim. At the close of the eight-day trial, the jury returned a complete defense verdict on the remaining three counts against the nursing home licensee corporation.

On Appeal, counsel for the Plaintiff’s, Susan Morrison, Brian Thompson and Kimberly Kohn of Wilkes and McHugh, P.A. raised several grounds including assertions that the Trial Court erred in instructing the jury regarding the Chapter 400 claim. The Trial Court instructed pursuant to Beverly Enterprises-Florida, Inc. v. Knowles, 766 So.2d 355 (Fla. 4th DCA 2000), that in order for the personal representative of a nursing home resident to recover for an alleged violation of the nursing home resident’s rights as guaranteed by Chapter 400, the deprivation of the resident’s rights must have caused the death of the nursing home resident.

The Plaintiffs must have been encouraged by the recent Fifth District Court of Appeal decision in Youngblood v. Halifax Convalescent Center, Ltd., 29 Fla. L. Weekly D272 (Fla. 5th DCA Jan. 23, 2004) which certified a conflict with Knowles. In Youngblood the same Appellate Court reversed a judgment in favor of a nursing home on the basis that a personal representative of an estate can sue under Chapter 400 even if the violation of the resident right does not cause the death of the nursing home resident.

Despite the recent decision in Youngblood, the Court held that the (jury) verdict on the negligence count was sustainable and accordingly affirmed. Since the Chapter 400 claim for violation of resident rights filed by the Plaintiff was “virtually identical” to those contained in the negligence count, any error in instructing the jury was considered to be harmless.