Legal Memorandum: Estate's Claims in a Negligence Action in FL

Issue: Whether an estate may assert both a negligent survival claim and a wrongful death claim in a negligence action pursuant to Chapter 400 of the Florida Statutes?

Area of Law: Estate Planning & Probate, Personal Injury & Negligence
Keywords: Negligence action; Negligent survival claim; Wrongful death claim
Jurisdiction: Florida
Cited Cases: 159 So. 2d 915; 168 So. 644; 529 So. 2d 799; 908 So. 2d 1178; 566 So. 2d 1338; 550 So. 2d 54
Cited Statutes: Fla. Stat. § 400.023 (2008) ; Fla. Stat. § 400.022(1) (2008), § 400.023(1), § 400.022; Fla. R. Civ. P. 1.110(g)
Date: 05/01/2008

Fla. Stat. § 400.023 (2008) provides a cause of action against a nursing home that violates any one of a resident’s statutorily enumerated rights—a quite lengthy and specific list.  Those statutory rights, the violation of which gives rise to a cause of action under § 400.023, are:

(a)  The right to civil and religious liberties.

(b)  The right to private and uncensored communications with others.

(c)  The right to deny or withdraw consent to the facility’s access to himself or herself.

(d)  The right to present grievances to the staff or administrator of the facility, to governmental officials, or to any other person.

(e)  The right to organize and participate in resident groups in the facility and the right to have the resident’s family meet in the facility with the families of other residents.

(f)  The right to participate in social, religious, and community activities.

(g)  The right to examine the results of the most recent inspection of the facility.

(h)  The right to manage his or her own financial affairs or to delegate such responsibility to the nursing home.

(i)  The right to be fully informed of services available in the facility and of related charges for such services.

(j)  The right to be adequately informed of his or her medical condition and proposed treatment.

(k)  The right to refuse medication or treatment and to be informed of the consequences of such decisions.

(l)  The right to receive adequate and […]

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