Abuse and Neglect under Florida’s Adult Protective Services Act: Is Medical Negligence Enough?

Author: Amy L. Dilday

Last month, Florida’s First District Court of Appeal brought welcome clarification to health care providers regarding the difference between a medical negligence claim and a claim for abuse or neglect under Florida’s Adult Protective Services Act.  In Specialty Hospital-Gainesville, Inc. v. Barth, Case No. 1D18-511 (July 15, 2019), the court held that allegations of medical negligence could not form the basis for a claim for abuse or neglect of a vulnerable adult under the Act.

audit transactionBecause the Adult Protective Services Act provides the opportunity for successful Plaintiffs to recover attorneys’ fees, medical malpractice plaintiffs often allege a claim for abuse arising from the same facts as their medical negligence claims.  In a lawsuit alleging malpractice against a hospital, the court reversed the damages awarded for abuse under the Act.  It highlighted the difference between medical negligence and the criminal focus of the Act, noting that the Act “refers to ‘perpetrators’ for a reason.”  It reasoned, “This chapter does not intend to criminalize health care providers or anyone else who may fail to report medical negligence.”  Medical negligence claims, the court explained, are “the subject of an entirely different chapter [which] includes extensive procedures, investigations, and protections, including pre-suit investigations.”

While recognizing that the Adult Protective Services Act permits its remedies to be “cumulative” to other legal and administrative remedies, the court concluded that “this sentence cannot be logically interpreted to mean that a claim of medical negligence can be transformed into a claim against a nurse or doctor as a ‘perpetrator’ of abuse, neglect, or exploitation.”  Rather, the court interpreted the additional, cumulative remedies available to be outside of those remedies provided by the medical negligence statutes.

In clarifying the different objectives of the Adult Protective Services Act and Florida’s medical malpractice statutes, the court did not eliminate the possibility that a claim may be brought against a health care provider under the Act.  It stated, “if a nurse or doctor committed a sexual offense against a vulnerable adult or attempted to harm a vulnerable adult,” a claim could be brought under the Act.  But, if “the claim involves medical negligence which requires compliance with the pre-suit procedures and other provisions of [the medical malpractice statutes], the claim cannot be asserted under [the Act].”