South Florida Personal Injury Lawyers Blog
A Florida nursing home negligence claim, or a claim that a resident’s rights were violated, follows its own presuit procedure in Chapter 400, Part II, of the Florida Statutes. Section 400.023(1)(e) states that Chapter 766, the medical malpractice statute with its own presuit investigation rules, does not apply to these claims. The notice, the waiting period, and the deadlines all come from Chapter 400 instead.
Before filing suit over an injury or death in a Florida nursing home, the claimant must send written notice by certified mail, return receipt requested, to each prospective defendant, and then wait 75 days. The notice has to go out within the limitations period, which is two years from the incident or its discovery and never more than four years from the incident.
Friedman Rodman Frank & Estrada has represented injured people and their families across Miami-Dade and South Florida since 1976, and our Miami nursing home negligence attorneys handle these claims under Chapter 400. An assisted living facility falls under a different chapter, Chapter 429, with different rules.
What the Nursing Home Presuit Notice Must Say
Presuit notice is the written notice of a claim that Florida law requires a claimant to serve on each prospective defendant before a lawsuit can be filed. Under § 400.0233(2), the notice identifies the residents’ rights that were violated, the negligence alleged, and the injuries that can reasonably be identified. It comes with a certificate from the claimant’s attorney that a reasonable investigation found a good-faith basis for the claim.
During the 75 days, the facility and its insurer evaluate the claim. By the end of that period, each prospective defendant must respond in writing, either rejecting the claim or making a settlement offer. A defendant that does not reply within 75 days after receiving the notice is treated as having rejected it.
Deadlines for a Florida Nursing Home Negligence Claim
Section 400.0236(1) requires the claim to be brought within two years of the incident, or of when it was or should have been discovered with due diligence. In no event may it be brought more than four years after the incident. Where fraudulent concealment or intentional misrepresentation prevented discovery of the injury, the period extends to two years from discovery, capped at six years from the incident.
The limitations period is tolled during the 75-day window for every prospective defendant, and during any extension the parties agree to. After written notice ends an extension, the claimant has 60 days or the rest of the limitations period, whichever is longer, to file.
Who the Claim Is Against and Who Brings It
Section 400.023(1) limits the claim to the facility’s licensee, its management or consulting company, its managing employees, and the direct caregivers who are its employees or contractors. A passive investor is not liable, and anyone else can be added only after a hearing and a finding of a reasonable showing that the person owed a duty, breached it, and caused the harm. The claim may be brought by the resident, a guardian, someone acting with the resident’s consent, or, after the resident’s death, the personal representative of the estate, regardless of the cause of death.
Where the negligence caused the resident’s death, the personal representative chooses after the verdict, and before judgment, between survival damages and damages under Florida’s wrongful death statute. Punitive damages against a nursing home carry their own pleading rule in § 400.0237, which requires a court hearing on admissible evidence submitted by the parties before the claim can be added.
Starting a Nursing Home Claim on Time
Medication records, care plans, incident reports, and staffing schedules from the facility are the records a presuit notice is built on. If you are handling this for a parent or spouse, keep copies of what the facility gives you and write down the dates of falls, hospital transfers, and conversations with staff. At Friedman Rodman Frank & Estrada, we represent residents and families in nursing home claims throughout Miami-Dade, Broward, and Collier Counties. If you would like us to look at your claim, call (305) 448-8585 or contact our office. The consultation is free, and there is no fee unless we recover.