In Florida, only the personal representative of the deceased person's estate can file a wrongful death case against a nursing home. This representative is typically named in the will or appointed by the court, and they file the lawsuit on behalf of eligible survivors, like a surviving spouse or children. While the personal representative initiates the legal action, the damages recovered go to the qualifying family members.
If you've lost a loved one due to nursing home neglect, nursing home or elder abuse, or inadequate care at an assisted living facility, this article could help you better understand how to bring a Florida nursing home wrongful death claim. That way, you can be better prepared for the legal journey ahead.
Understanding Nursing Home Negligence
Simply put, nursing home negligence involves the failure to provide adequate care to residents which ultimately results in harm or death. Negligence in nursing homes may be obvious, but it's often hidden. Thus, remaining diligent and identifying signs early can prevent the worst types of outcomes.
There are several common types of negligence that are the usually the focus of wrongful death lawsuits against nursing homes. Most include one or more of the following:
- Physical abuse
- Emotional abuse
- Medical neglect
- Inadequate supervision
- Inadequate staffing
- Inadequate security
In our experience, the typical negligence case will involve some form of neglect. This neglect often leads to bed sores, pressure sores, infection, malnutrition, dehydration, severe weight loss, or other untreated medical conditions. Other common cases involve falls that cause injury, as well as the failure to properly treat patients after serious falls.
Personal Representative's Role in a Wrongful Death Lawsuit
Florida Statute 768.16-768.26 governs wrongful death cases in the state, including those involving nursing home deaths. This is also known as the "Florida Wrongful Death Act."
The Florida Wrongful Death Act specifically designates who can take legal action when a nursing home resident dies due to negligence. Specifically, only the personal representative of the deceased person's estate can file a wrongful death claim. The personal representative acts on behalf of the estate and the surviving family members who are entitled to recover damages.
In other words, the personal representative acts as the plaintiff in the case since the deceased person cannot represent themselves. The personal representative is typically:
- Named in the deceased person's will
- Appointed by the court if no will exists
- A surviving spouse, adult child, or close family member
- In some cases, a professional administrator appointed by the court
The personal representative acts as the plaintiff in the wrongful death lawsuit and works to recover damages, just as an injured person would pursue a personal injury claim for damages. By limiting the proper plaintiff to the personal representative, the law ensures that one coordinated legal action can address all the claims arising from the death, rather than multiple lawsuits from different family members. This promotes judicial efficiency in the court system and helps to bring about a clear resolution after a tragic incident occurs.
Who Are the Beneficiaries in a Nursing Home Wrongful Death Case?
While only the personal representative can file the lawsuit, specific family members are entitled to recover damages when a long term care facility or nursing home causes a resident's death through negligence or abuse. Below we will discuss the different parties that can be compensated in a wrongful death case and the types of compensation they may be entitled to.
Surviving Spouse
The surviving spouse of generally has the strongest claim under Florida law. Spouses can recover for a variety of damages, including:
- Loss of companionship and protection
- Mental pain and suffering from the date of injury
- Loss of the deceased's support and services
- Medical and funeral expenses paid by the spouse
In our experience handling these cases, surviving spouses often struggle not just with grief, but with the knowledge that their loved one's death was preventable. When nursing homes and nursing home staff members fail in their duties, spouses can seek answers, justice, and compensation through a wrongful death lawsuit.
Children of the Deceased
Children can recover damages in nursing home wrongful death cases, but their rights depend on their age:
Minor Children (Under 25):
- Can recover for lost parental companionship, instruction, and guidance
- Entitled to mental pain and suffering from the date of injury
- May recover for loss of support and services
Adult Children (25 and Older):
- Can only recover if there is no surviving spouse
- Entitled to recover for mental pain and suffering
- May seek compensation for lost support and services
This distinction between minor children and adult children becomes particularly important in nursing home cases, where many residents have adult children who are actively involved in their care.
Parents of the Deceased
When an adult nursing home resident dies without a spouse or children, their parents may file a claim through the personal representative. Parents can recover for mental pain and suffering and medical care expenses they paid. While less common in nursing home cases, we've seen situations where elderly parents outlive their adult children who resided in nursing facilities.
Common Grounds for Nursing Home Wrongful Death Lawsuits
Understanding who can file is just the first step. Families also need to recognize when a death constitutes actionable negligence. In our experience, several patterns of home abuse and neglect commonly lead to wrongful death lawsuits.
Physical Abuse and Neglect
Physical abuse in nursing homes is one of the most heartbreaking things to witness. The families who trusted these facilities with their loved ones' safety experience a degree of betrayal they never thought possible. Signs of abuse that can lead to death include:
- Unexplained injuries, bruises, or fractures
- Sudden changes in behavior or fear of specific staff members
- Bedsores that become infected
- Malnutrition or dehydration
- Failure to provide necessary medical equipment or assistance
Our investigations often reveal patterns of neglect that facilities tried to hide from families. This neglect often stems from the fact that nursing homes are often understaffed, and the employees are too overworked to provide proper care. This issue is often caused by the deep-pockets in charge that demand higher profits.
Falls and Inadequate Supervision
Falls are a leading cause of death in nursing homes, and many are entirely preventable with proper supervision and safety measures. Facilities may be liable when:
- Staff fails to assist residents who need help walking
- Safety equipment like bed rails or grab bars are missing or broken
- Floors are wet or cluttered without warning
- Residents with dementia are allowed to wander unsupervised
- Fall prevention protocols are ignored or not implemented
Medical Negligence and Medication Errors
Some wrongful death cases against nursing homes and staff involve medical malpractice, which can take many forms. Common medical malpractice issues in this context include:
- Medication errors (i.e., wrong medication, wrong dosage, drug interactions)
- Failure to diagnose or treat a condition (i.e., infections, stroke, heart conditions)
- Improper use of a medical device
When facilities fail to provide proper medical oversight, residents can suffer fatal consequences from what should be manageable health conditions. The key in proving a medical malpractice case is to establish that the care provide fell below the applicable standard of care.
The Legal Process for Filing a Nursing Home Wrongful Death Lawsuit
Seeking justice for a loved one who died in a nursing home requires navigating complex legal procedures. Understanding this process helps families make informed decisions during an already difficult time.
Step 1: Appointing a Personal Representative
If the deceased didn't name a personal representative in their will, the family must petition the probate court for appointment. The court typically prioritizes:
- The surviving spouse
- Adult children
- Parents
- Other close relatives
This process can take several weeks, which is why families should consult with a nursing home abuse lawyer quickly after a death to preserve evidence and meet legal deadlines.
Step 2: Investigation and Evidence Gathering
Once appointed, the personal representative can work with their lawyer to investigate the death. Critical evidence in home wrongful death cases includes:
- Medical records and nursing notes
- Observation records
- Incident reports and internal communications
- Surveillance footage from the facility
- State inspection reports and violation histories
- Witness statements from other residents and staff
- Expert testimony about standards of care
In our experience, facilities will often try to hide or destroy evidence once they anticipate legal action. That's why immediate investigation is crucial.
Step 3: Filing the Formal Complaint
If negotiations are unsuccessful during the pre-suit process, it may be necessary to file a lawsuit. What steps must be taken before a lawsuit is filed depends on whether the case is one for ordinary negligence or medical malpractice. Cases involving ordinary negligence can be filed pretty much at any time, so long as it's within the statute of limitations.
However, if the case involves medical malpractice, additional pre-suit requirements apply. Florida law requires the following specific procedures before filing a wrongful death lawsuit based on medical malpractice:
- Obtaining an expert affidavit confirming negligence occurred
- Providing notice of intent to initiate litigation to the potential defendants
- Participating in pre-suit discovery
- Attempting settlement negotiations
If settlement negotiations fail or if the defendant denies the claim, the lawsuit can be filed.
Damages Available in Florida Nursing Home Wrongful Death Cases
Florida law provides for both economic and non-economic damages in nursing home death cases. We will discuss each of these in greater detail below.
Economic Damages
Economic damages are damages that are quantifiable or tangible. These losses include things like:
- Medical expenses from the injury until death
- Funeral and burial costs
- Loss of the deceased's net accumulations to the estate
- Loss of support and services to survivors
- Loss of future earnings (if applicable)
Non-Economic Damages
Non-economic damages are intangible and not easily quantifiable. Generally, these damages compensate for emotional losses. Some common types of non-economic damages include:
- Mental pain and suffering of survivors
- Loss of companionship and protection
- Loss of parental guidance for minor children
- Loss of spousal consortium
The value of non-economic damages often exceeds economic losses in nursing home death cases. That's because the profound impact of losing a loved one to preventable negligence often outweighs the medical bills and other tangible losses. In other words, the value of a life lost will typically far exceed the economic damages.
Statute of Limitations for a Nursing Home Wrongful Death Lawsuit
Florida's statute of limitations for wrongful death claims is generally two years from the date of death. However, some exceptions exist:
- If negligence wasn't immediately discoverable, the timeline may be extended in some cases
- Claims against government-run facilities have shorter notice requirements
- Medical malpractice cases may have different deadlines, depending on the circumstances
Missing the statute of limitations typically means losing the right to seek compensation, regardless of how clear the negligence was. Accordingly, time is of the essence.
Why You Need an Experienced Nursing Home Wrongful Death Attorney
Nursing home corporations and their insurance companies aggressively defend against wrongful death claims. They employ teams of lawyers whose job is to minimize or deny compensation to grieving families. Common defense tactics include:
- Blaming the resident's pre-existing conditions
- Claiming the death was from natural causes
- Destroying or "losing" critical evidence
- Intimidating witnesses or other residents
- Offering quick, lowball settlements before families understand their rights
At Spetsas Buist, we've successfully overcome these tactics, and we understand the defense's arguments. We know what evidence is critical, which experts to consult, and how to prove that negligence caused your loved one's death.
Taking Action After a Nursing Home Death
If you've lost a loved one in a Florida nursing home and suspect negligence played a role, don't wait to seek legal help. Evidence disappears, witnesses forget details, and legal deadlines pass quickly. More importantly, other residents remain at risk until negligent facilities face accountability.
Contact our Orlando office today at 321-LAWSUIT for a free consultation about your potential wrongful death case against a nursing home. We work on a contingency fee basis, meaning you pay nothing upfront and we only get paid when we recover money for you. Even if other law firms have turned down your case, give us a call because we may be able to help.
Your loved one deserved dignity, respect, and proper care in their final years. When nursing homes fail in these basic duties, they must be held accountable. By taking legal action, you're not just seeking compensation for your family; you're potentially saving other residents from suffering the same fate.
Don't let a negligent facility continue operating without consequences. Call us today, and we will help you hold the negligent facility accountable.