Navigating the Pre-suit Process for Florida Nursing Home Neglect and Abuse Claims
Unfortunately, due to intense lobbying by the nursing home industry, Florida lawyers must complete a statutory pre-suit investigative and notice process before a lawsuit can be filed for injuries or death resulting from nursing home neglect. Our Jacksonville nursing home neglect lawyers have years of experience in dealing with these requirements.
While the required pre-suit process offers no benefit to injured victims or their families, it greatly increases their expense and delay in receiving compensation. On the other hand, the nursing home operators enjoy great benefits from this process at essentially no cost.
Florida Statute § 400.0233 sets forth the requirements that must be met before a lawsuit can be filed against a nursing home. For an attorney not well acquainted with the statute’s requirements, it presents a minefield as a claim may later be dismissed if the statute’s pre-suit requirements are not satisfied.
First, the statute requires that the injured victim’s lawyer conduct an investigation regarding the claim. This, of course, starts with obtaining the resident’s records. This is where the unfair delay begins. In almost all nursing home claims, the resident at issue no longer lives at the nursing home in question. Sadly, this is often because the resident died due to neglect. By statute, nursing homes are allowed 30 “working days” in which to provide the records of a former resident. Given weekends, this provides nursing home operators roughly 40 days just to make a copy of the records.
Next, the attorney must review the records to gain an understanding of the: resident’s normal baseline conditions; the resident’s symptoms or changes in conditions; the nursing home staff’s response to those symptoms; the effort taken by the nursing home to prevent an accident, injury or infection; and the involvement of any unrelated medical care providers. This is no small task as the typical residency involves hundreds of pages of records.
Next, the attorney must determine whether serious injury or death was caused by failures on the part of the nursing home operator. Most of the nursing home cases handled by our attorneys in Jacksonville involve the alleged wrongful death of the resident. Otherwise, for us to accept the case, the injuries have to be fairly severe such as broken bones or infected bedsores.
If the attorney is convinced that the nursing home was negligent, and that such negligence caused serious harm or death, the next step required by the statute is to have the matter reviewed by a licensed physician or registered nurse. This is an expensive proposition for the attorney as a reviewing doctor or, more commonly, R.N. is going to charge hourly expert witness fees to review the entire nursing home chart in addition to records relating to any subsequent care received at a hospital.
If the reviewing registered nurse or physician comes to the conclusion that the nursing home departed from the nursing standard of care, then the attorney must draft a pre-suit notice to every “prospective defendant.” Determining who all of the prospective defendants are can be a daunting task as Florida nursing homes are typically owned and operated by a maze of interrelated limited liability companies. This is purposefully done by the nursing home operators in an effort to escape liability, and to avoid transparency of both liabilities and profits.
After the prospective defendants have been identified, the attorney must serve a pre-suit notice by certified mail on each that identifies: the resident’s rights that have been violated; the negligence alleged to have caused the injury; and a description of the injuries at issue.
In addition, we routinely request that the nursing home operators provide us with witness statements and documents as the statute specifically provides we have the right to do. However, the nursing homes almost always refuse to provide any documents other than the resident’s chart (which has already been provided). Moreover, they do not even bother to respond to our request for witness statements. The nursing homes do this with impunity as the statute provides no repercussions for refusing to engage in the pre-suit “information sharing.” (Unlike the medical malpractice pre-suit statutory scheme, Florida’s nursing home pre-suit statute does not provide that a claim or defense may be stricken if a party fails to participate).
After receiving the certified pre-suit notice, the prospective defendants have 75 days to review the claim. At the end of the 75 day period, the prospective defendant or its insurer is supposed to provide a written response either rejecting the claim or making a settlement offer. They typically do not even do this as the statute also says failing to respond is the same as a rejection. Again, the entire burden of this exercise is borne by the claimant.
After the expiration of the 75 day period, the parties are supposed to meet to mediate the case in an effort to discuss the issues of liability and damages. Nursing home operators almost always ignore this provision as well. Again, the statute fails to provide any repercussion for failing to mediate.
In short, throughout the entire pre-suit process, the nursing home does essentially nothing, and, in return, gets months and months of delay that later prove helpful when its staff members can no longer recall the specifics of the resident’s care. Meanwhile, the plaintiff’s claim is subject to being stricken if the completely worthless and expensive pre-suit notice requirements are not met.
While it is an unfortunate state of affairs, navigating the pre-suit process is an important task of any nursing home neglect attorney’s practice. Making sure your lawyer fully understands the process – including the glaring flaws – is necessary for you to obtain effective legal counsel.
Our Jacksonville attorneys handle nursing home neglect or abuse claims throughout Northeast Florida including the following counties: Duval; Clay; Nassau; St. Johns; Baker; Columbia; Indian River; Flagler; Putnam; Alachua; Union; Volusia; Brevard; and Bradford.