Daily Business Review: Elder-Abuse Plaintiffs Attorneys Weigh In After Nursing Home Deaths

Daily Business Review
By: Celia Ampel
Daily Business Review
September 15, 2017

Elder-law attorneys were quick to weigh in Thursday on the legal implications of eight deaths at a Hollywood nursing home following a loss of air conditioning during Hurricane Irma.

Any need for regulatory reform will be determined by the facts as they emerge, said Fort Lauderdale attorney Jonathan Gdanski of Schlesinger Law Offices. Key questions, he said, would include the following: What steps, if any, were taken to transport nursing home residents? Was the facility monitoring the deterioration of patients over time? And what plans were in place to help those who needed assistance the most?

“?Some of the most basic facts still need to be determined, yet what is already known seems to present a clear picture of absolute, complete, reprehensible conduct, which resulted in death,” said Gdanski, a plaintiffs lawyer focused on catastrophic personal injury and medical malpractice.

Meanwhile, he said, “the large majority” of caregivers across the state appear to have been adequately cautious in the face of the storm.

More than 150 residents of the Rehabilitation Center at Hollywood Hills were evacuated to hospitals Wednesday. Three people were already dead when first responders arrived, and five more died that afternoon. Gov. Rick Scott called the deaths “unfathomable,” and state and local authorities have started a criminal investigation.

The nursing home’s administrator, Jorge Carballo, said in a statement that the facility was “cooperating fully with relevant authorities to investigate the circumstances that led to this unfortunate and tragic outcome.”

Broward County reported the nursing home told officials Tuesday the air conditioning was out but did not request help, according to the Associated Press. The facility complied with a state law requiring an evacuation plan and hurricane drills.

“I have been litigating nursing abuse cases throughout Florida for years and this is the worst case I have seen,” said Fort Lauderdale attorney Marcus Susen of Koch Parafinczuk Wolf Susen.

The Hollywood nursing home seems to be an outlier rather than an example of a systemic problem, said Miami attorney Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine.

“I believe our existing regulatory scheme is sufficient to administer nursing home and rehabilitation facilities,” said Katzen, whose practice includes elder abuse cases. “However, the existing regulatory system needs to be enforced. This facility apparently had a long list of violations.”

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Rainmaker Q&A: Kluger Kaplan’s Abbey Kaplan

Law360Law360, New York (September 30, 2016, 9:54 AM EDT) — Abbey L. Kaplan is a seasoned trial lawyer known for taking on complex cases and crafting creative strategies for tackling the most complicated legal issues in commercial litigation and business tort cases.

akaplanA founding member of Kluger Kaplan Silverman Katzen & Levine PL in Miami, Kaplan has experience handling partnership and corporate breakups, real estate development disputes including banking and broker controversies, professional liability disputes, corporate finance issues, contract disputes and intellectual property. Kaplan has also dealt with white collar criminal issues in the civil litigation…

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Will Dispute Lead to Potential Prison Time for Multimillionaire’s Widower?

Captureby Celia Ampel

A South Florida multimillionaire’s widower could face prison time after taking control of assets left to his stepsons and then leaving the country in defiance of court orders.

Victor Moskalenko’s actions were the most “disturbing and troubling” behavior Broward Circuit Judge Mark Speiser had seen in his 33 years on the bench, the probate judge wrote earlier this year before Moskalenko apparently fled to Israel using a passport he’d been ordered to turn over to the court.

Speiser said he will find Moskalenko in criminal contempt of court if he does not appear at a September hearing in Fort Lauderdale, which could result in a fine, incarceration or probation.

Kluger in DBR“As civil lawyers, we don’t usually run into parties being imprisoned for contempt,” said Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine in Miami, who is representing Moskalenko’s stepsons. “It’s rare. I’ve been practicing over 30 years. I’ve never seen anything like it.'”  

Katzen and his colleague Jamie Zuckerman have been battling Moskalenko in court for six years, after the 2010 death of oil heiress and businesswoman Sofi Moskalenko-Kemelman led to a will contest.

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Why Do So Few Americans Have Advance Directives?

Kluger Kaplan’s Jamie Zuckerman explains in Wealth Management the importance of advance directives and why – regardless of age and health – everyone should consider one.  

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By Jamie Zuckerman

Advance directives enable individuals to exercise control over their futures and ensure that the care they receive at the end of their lives is pursuant to their wishes.  Yet, the majority of individuals have not taken advantage of advance directives and the opportunity to control their futures.

There are two forms of advance directives—instruction directives and proxy directives. An instruction directive is one in which a person leaves instructions for his or her future care, but does not appoint an agent to carry out the directions.  A living will is the most widely used instruction directive. A proxy directive is one in which instructions are combined with the designation of a person to carry out instructions or to make decisions for the person executing the document. A durable power of attorney for health care or property is an example of a proxy directive.

Kluger- JamieTo record his or her medical preferences, an individual will need to execute written documents detailing them. A living will allows the declarant to document his or her wishes concerning medical treatments at the end of life if the individual is unable to speak for themselves. A health care power of attorney appoints someone to make health care decisions—and not just decisions regarding life-prolonging treatments— on one’s behalf. The appointed health care agent (also called an attorney-in-fact or proxy) becomes the patient’s spokesman and advocate on a range of medical treatments the patient sets out in the document. This type of document is sometimes referred to as a health care proxy, appointment of a health care agent or durable power of attorney for health care.

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Daubert, Frye, or Both: Becoming an Expert on the Standards for Experts

By Gina P. Villar

Up until 2013, the standard for admitting expert testimony in Florida was fairly simple to comprehend: any expert opinion based on scientific technique is “inadmissible unless that technique is generally accepted as reliable in the relevant scientific community.” Thus, according to what many attorneys refer to as the Frye test, the expert testimony must be generally accepted as reliable among his or her peers in order to be admissible in court.

Effective July 1, 2013, Florida changed its expert testimony standard from Frye to Daubert pursuant to Fla. Stat. § 90.702. The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals rejected the Frye standard and implemented a new standard for allowing experts to testify based on Federal Rule of Evidence 702, which in the simplest way, is comprised of two parts: 1) the testimony must be based on “scientific, technical, or other specialized knowledge;” and 2) the testimony must “assist the trier of fact to understand the evidence.” The Court also explained that judges can look to other factors in making its determination including if the theory has been tested; peer reviewed; published; contains a small rate of error; and is generally accepted in the relevant scientific community. The Supreme Court made clear that the less-stringent Frye test is just a factor under Daubert.

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