FAQ's: Your Questions Answered
FAQ's: Your Questions Answered
Nursing Home Abuse FAQs
As in any action that is based upon negligence or intentional tort, the party seeking to make the claim must have legal standing, or a particular relationship between themselves and the injured party, before the court will recognize their right to file that claim. Florida Statute 429.29 defines those parties as “Any person or resident whose rights as specified in this part are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, or by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death. If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21. If the action alleges a claim for the resident’s rights or for negligence that did not cause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages, and punitive damages for violation of the rights of a resident or negligence. Any resident who prevails in seeking injunctive relief or a claim for an administrative remedy is entitled to recover the costs of the action and a reasonable attorney’s fee assessed against the defendant not to exceed $25,000. Fees shall be awarded solely for the injunctive or administrative relief and not for any claim or action for damages whether such claim or action is brought together with a request for an injunction or administrative relief or as a separate action, except as provided under s. 768.79 or the Florida Rules of Civil Procedure. Sections 429.29-429.298 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a resident arising out of negligence or a violation of rights specified in s. 429.28. This section does not preclude theories of recovery not arising out of negligence or s. 429.28 which are available to a resident or to the agency. The provisions of chapter 766 do not apply to any cause of action brought under ss. 429.29-429.298.
The statute further defines who has the burden of proof to establish the factual basis surrounding the act of abuse, neglect or violation or resident rights, and what facts must be proven by requiring “In any claim brought pursuant to this part alleging a violation of resident’s rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evidence, that:
(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident;
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
(d) The resident sustained loss, injury, death, or damage as a result of the breach.
Nothing in this part shall be interpreted to create strict liability. A violation of the rights set forth in s. 429.28 or in any other standard or guidelines specified in this part or in any applicable administrative standard or guidelines of this state or a federal regulatory agency shall be evidence of negligence but shall not be considered negligence per se.”
In any claim made, a licensee, person, or entity shall have a duty to exercise reasonable care. Reasonable care is that degree of care which a reasonably careful licensee, person, or entity would use under like circumstances. If it is alleged that the act of negligence or abuse was as a result of actions made by a licensed nurse or licensed doctor, such nurse or doctor shall have the duty to exercise care consistent with the prevailing professional standard of care for a nurse or medical professional. The prevailing professional standard of care for a nurse or doctor shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar nurses or doctors.
An award for punitive damages may be awarded if proven and reasonable in light of the actual harm suffered by the resident and the egregiousness of the conduct that caused the actual harm to the resident.
No suit may be filed for a period of 75 days after notice is mailed to any prospective defendant. During the 75-day period, the prospective defendants or their insurers shall conduct an evaluation of the claim to determine the liability of each defendant and to evaluate the damages of the claimants. During that 75 day period, the statute of limitations is tolled. The parties may mutually agree to a longer period for evaluation, and the statute of limitations shall be extended for that extension period, too. Upon receiving written notice by certified mail, return receipt requested, of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit. Upon filing a suit, a copy of the complaint served on any defendant shall also be served on the Agency for Health Care Administration.
If you, or a loved one, know of a family member that has been a victim of nursing home abuse, it is important that you have a qualified, experienced attorney by your side to advise you of your legal rights. The Law Office of Dan Newlin and Partners is dedicated to protecting those rights. We have a staff that is experienced in handling nursing home abuse cases and knows the right questions to ask in order to get the right answers. Call Dan at (407) 888-8000 if you have any questions about nursing home abuse. You are encouraged to call our office any time for a free consultation and it would be an honor to answer any questions you may have.