There are several aspects of long-term care litigation in Florida that distinguish, and set these claims apart from other traditional personal injury, wrongful death, and common law tort litigation.
In a Florida nursing home, claims for negligence or resident rights violations are all governed by the provisions of Chapter 400 (or chapter 429, in the case of ALFs). The statutory scheme specifically provides that a nursing home claim is not a medical malpractice claim. §§400.023(7), and 400.0235, Fla. Stat. As such, some of the unique aspects of Florida law that apply generally to medical malpractice claims do not apply against the nursing home defendant.
Further, since all claims arising in the nursing home setting, whether wrongful death claims or survival claims, are governed by Chapter 400, Fla. Stat. there are some unique provisions to be aware of. Under Chapter 400, in the event the nursing home resident is deceased, the Personal Representative of the Estate may elect to claim the decedent’s pain and suffering prior to the time of death rather than compensation to the statutory Wrongful Death Survivors. §400.023(1), Fla. Stat. The option to elect survival damages when the negligence complained of caused death is not an option under traditional tort law.