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Estate of Jones v. Mariner Health Care of Deland, Inc., 2007 Fla. App. LEXIS 3857 (Fla. Ct. App. 2007)Estate of Jones v. Mariner Health Care of Deland, Inc., 2007 Fla. App. LEXIS 3857 (Fla. Ct. App. 2007)

Court of Appeals affirmed in part and reversed in part after trial court denied motion for new trial. Estate, substituted for resident after her death, contended that final judgment for Defendants was erroneous and a new trial was warranted because the trial court improperly limited claims under the Nursing Home Residents’ Act. The case was brought after resident was taken to hospital, after suffering a second brown emesis; after noting contractures in resident’s hips and knees, a colostomy was performed and it was discovered that resident had a perforated rectum and a massive fecal impaction “the size of a football.” She was later released to a different nursing home where she lived another year and a half until her death. Plaintiff sued for failing to provide adequate care resulting in contractures and the impaction. Shortly before trial, “the Florida Supreme Court issued its opinion in Knowles v. BeverlyEnterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2004), which held that a personal representative could not bring a claim under the 1997 version of section 400.023(1).” Mariner then moved to strike all claims under the Act. The trial court ruled that Knowles applied and limited all allegations that occurred after May 15, 2001 (the Legislature amended section 400.023(1) effective that date to remove death as a causal factor when a personal representative brings a claim under the Act. The case proceeded to trial and the jury returned a defense verdict for two defendants and a verdict for two other defendants finding them not liable. On appeal the court found that the limitations in the Act described in Knowles did not apply because the action was originally brought by the resident herself prior to her death. The court rejected Mariner’s argument that a prohibition on bringing the action also precluded maintaining an action. The court rejected Mariner’s assertion that limiting the Estate’s claims was harmless error. The case was remanded for new trial on claims brought under the Act.

Note: At Mariner’s request, the Court of Appeals certified the following question to the Supreme Court: Does the version of Fla. Stat. § 400.023(1) in effect prior to its amendment in 2001 prohibit a personal representative from maintaining a claim when the alleged violation did not cause the resident’s death and when the suit was originally filed by the resident prior to his or her death?

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