Jeffrey P. Gale, P.A. // Florida’s Nursing Home Statute Provides Remedy to Some Barred by Florida’s Wrongful Death Act

I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

Section 400.023, Florida Statutes creates an “exclusive cause of action for negligence or a violation” of the rights of residents of nursing homes and related health care facilities. See, 440.023(1). Interestingly, while residents may be harmed or caused to die by a failure to receive appropriate health care, section 440.023(1)(e) provides that “Chapter 766 does not apply to a cause of action brought under ss. 400.023-400.0238.” Chapter 766 contains Florida’s medical malpractice statutes. Hence, claims for wrongful death brought under ss. 400.023-400.0238 are not subject to the damage limitations of 768.21(8).

While the causes of action, in other words, the standards necessary for recovery, under each statutory scheme are different, it is sometimes difficult for the parties and the judiciary to tell them apart. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993); NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). A party failing to properly do so may suffer serious negative consequences, up to having the case dismissed with prejudice. Moreover, as explained above, if it turns out that the facts make the case one of medical negligence rather than nursing home negligence, the surviving adult children and parents of a deceased victim may be denied a remedy. Accordingly, it is exceedingly important to understand the differences between the two causes of action.

In Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla. 2002), the Florida Supreme Court was presented with the following question certified by the district court of appeal as being one of great public importance:

If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in section 400.022, must the plaintiff comply with the presuit conditions in section 766.106?

The district court, in Integrated Health Care Services, Inc. v. Lang-Redway, 783 So. 2d 1108 (Fla. 2d DCA 2001), decided that because the plaintiff had chosen to allege a statutory claim under section 400.022 and not also allege a common law claim for medical negligence, she was not required to comply with the presuit requirements of section 766.106, Florida Statutes (1997).  In doing so, the Second District Court of Appeal observed that

Although there may be some overlap between the statutory right to “receive adequate and appropriate health care” and the common law claim for medical negligence, we conclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400. Compare § 400.022(1)(l), Fla. Stat. (1997), with § 766.102(1), Fla. Stat. (1997).

Citing to the cases noted above, the court made the following comments:

In cases involving vicarious liability of nursing homes for the actions of their employees, determining whether the presuit requirements of chapter 766 are invoked has been a difficult task for the judiciary. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993); NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section 766.102(1). See Weinstock, 629 So.2d at 838; Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000). This complaint does not seek vicarious liability for the actions of a health care provider under a medical negligence standard.

The Florida Supreme Court agreed with the lower court’s holding. Recognizing the importance and complexity of the issue, the court analyzed the elements of each cause of action. It made the following observations:

• “[E]ach count of the plaintiff’s complaint alleged that the nursing home failed to provide for the degree of care mandated by section 400.022. Since this claim relies upon the right to receive adequate health care and services from the nursing home, the plaintiff was required to (and in fact did) follow the presuit requirements within chapter 400.”
• “[I]n order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). In this case, the plaintiff is filing an action against the nursing home based solely upon the violation of the statutory obligations imposed by section 400.022. As section 400.022(1)(l) provides its own standard of care,^[8] the medical negligence standard of care and the corresponding presuit requirements of chapter 766 are inapplicable.”
• “[S]ection 400.023 clearly demonstrates that the Legislature intended a nursing home to be liable for the ‘”failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.”‘ § 400.023(3), Fla. Stat. (1997). Accordingly, we do not find that the plaintiff has pled a medical malpractice cause of action against a health care provider which would require her to abide by the presuit requirements of chapter 766.”

While the Integrated case dealt with a pre-suit notice issue, its relevance to the subject of this blog involves the insightful discussion regarding the separate causes of action. As the Second DCA and the Florida Supreme Court noted, making the proper distinction can sometimes be difficult. With the right facts, survivors otherwise barred by chapter 766 can get their day in court for the wrongful death of a loved one.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.