Can I Be Sued for Nursing Home Negligence? A Look at Florida Statute § 400.023
Updated: May 3, 2019
In June of 2014, the Governor approved new legislation, revamping certain aspects of Chapter 400. Among those revisions were changes to the individuals and/or entities that could be sued for Chapter 400, nursing home negligence and the procedures associated with adding additional parties beyond those specifically authorized by the statute.
The Initial Chapter 400, Nursing Home Negligence Complaint
Let’s start off with the language of the statute. Florida Statute § 400.023(1) (“Civil enforcement”) states:
An exclusive cause of action for negligence or a violation of residents’
rights as specified under this part which alleges direct or vicarious liability
for the personal injury or death of a nursing home resident arising from
such negligence or violation of rights and which seeks damages for such
injury or death may be brought only against the licensee, the licensee’s
management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors.
A passive investor is not liable under this section. An action against any
other individual or entity may be brought only pursuant to subsection (3).
Put simply, if a complaint alleges that a nursing home caused the injury or death of a (former) resident, then the cause of action must be brought pursuant to Chapter 400. And, at least initially, the lawsuit may only be brought against (a) the licensee, (b) the licensee’s management or consulting company, (c) the licensee’s managing employees, or (d) any direct caregivers. See Fla. Stat. § 400.023(1).
The statute goes on to define some of these key terms:
“Licensee” is defined as “an individual, corporation, partnership, firm, association, governmental entity, or other entity that is issued a permit, registration, certificate, or license by the agency and that is legally responsible for all aspects of the operation of the nursing home facility.”
“Management or consulting company” is defined as “an individual or entity who contracts with, or receives a fee from, a licensee to provide any of the following services for a nursing home facility: 1. Hiring or firing of the administrator or director of nursing; 2. Controlling or having control over the staffing levels at the facility; 3. Having control over the budget of the facility; or 4. Implementing and enforcing the policies and procedures of the facility.”
An Amended Chapter 400, Nursing Home Negligence Complaint
If a Plaintiff desires to name additional parties beyond those specifically authorized by Fla. Stat. § 400.023(1), a Plaintiff must first ask the court for permission (or leave) to do so. At that time, a Plaintiff must either identify sufficient evidence already existing in the record or make a proffer of evidence to establish a reasonable showing that the individual and/or entity proposed as a new defendant (a) owed a duty of reasonable care to the resident, (b) breached that duty of reasonable care, and, as a result, (c) caused loss, injury, death, or damage to the resident. Absent the required showing, a Court should deny a Plaintiff’s request to name additional parties in a nursing home negligence lawsuit.
Among other things, Michael B. Kornhauser, Esq. represents skilled nursing facilities in negligence and wrongful death cases. If you have any questions, feel free to contact him.