Arbitration & Mediation

Nursing Home Sues Hospital for Equitable Subrogation in "Stuart v. Hertz" Situation

By Christopher B. Hopkins, Esq.

Thirty years ago, Florida courts addressed the question of "who to sue?" when a person is injured in an accident and then, while being treated, suffers further injury from medical negligence. Not much changed in that area of the law until long term care litigation arose in the 1990's.

The case of Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District d/b/a Memorial Hospital West revives some of these issues. It also may provide some instruction on the interpretation of release language in "Stuart v. Hertz" situations.

Before we get to that April 2009 opinion, here's a brief primer:

Under the 1977 case of Stuart v. Hertz Corp., the personal injury plaintiff can sue the defendant driver for all injuries. The public policy concern was that a simple auto accident case should not be burdened with the complexities of a med mal case.

Three years later, in 1980, the Florida Supreme Court indicated that a separate cause of action for equitable subrogation was the preferred way to handle any claims between the defendant driver and health care provider. A detailed article on that issue is here.

Nursing home litigation brought back this "my-fault-then-yours" scenario since often a resident is allegedly injured at a nursing home and then may suffer further injuries at the subsequent hospital or facility.

In the 1999 plaintiff-friendly case of Beverly Enterprises-Florida, Inc. v. McVey, the Second DCA concluded that the nursing home could not list the subsequent hospital as a Fabre defendant because it was a "Stuart v. Hertz" subsequent, not joint, tortfeasor. Thus, the plaintiff could recover all of its damages from the nursing home alone. Despite the suggestion in this article, that McVey would turn into an important case, it never grew to any significant precedent (prior to the statute changes).

Five years later, in 2004, the Fifth District ruled in a decubitus ulcer case that damages were to be apportioned between the nursing home and the subsequent hospital under the theory of a continuing tort. That opinion, Jackson v. York Hannover Nursing Centers, did not mention the McVey case and there appears to be little law clarifying the distinctions between the two cases. Thus, plaintiff lawyers cite McVey while defense lawyers cite Jackson.

Back to the April 2009 Villa Maria v. Memorial West case. Again, the nursing home resident has a decubitus (sacral) ulcer and went from nursing home to hospital. The nursing home settled the case for $325k and looked to bring that "preferred" equitable subrogation claim against the hospital.

The trial court granted summary judgment in favor of the hospital but the appellate court revived the suit, claiming that it should have only been dismissed without prejudice so the facility could comply with the pre-suit note "condition precedent" requirements in Florida Statutes 768.28(6)(a).

Interestingly, the release between resident and facility said that it released the facility, hospital, and others for all damages resulting from the admission "including future developments thereof or in any way growing out of or connected with said transactions and/or incidents, including the subject sacral/buttock wound(s)."

The 4th DCA held that that damages allegations in the lawsuit and the release language sufficiently confirmed the reason why the facility made payment to the plaintiff AND that the release did, indeed, cover the hospital.

Full post as published by Florida Arbitration Law on May 08, 2009 (boomark / email).