Nursing Home Neglect Survival Actions

“Survival” actions in Florida allow the estate of a deceased person to recover for the pain and suffering of a person who was injured due to another’s negligence. Typically speaking, however, those injuries cannot result in that person’s death or else the exclusive remedy is a claim pursuant to Florida’s Wrongful Death Act.

One exception to this rule is when the injury and death were caused by nursing home neglect. In other words, in Florida, if someone dies due to nursing home neglect, that person’s estate can elect to recover either: damages for the decedent’s pain and suffering from the time of the injury to the time of death; or wrongful death damages. The right to pursue a survival action even when the alleged neglect caused the person’s death is spelled out in Florida Statute 400.023(1)(b).

Why is this important? Sometimes, our lawyers handling nursing home neglect cases in Jacksonville accept cases in which a person died from nursing home neglect and that person had no surviving spouse or children. In such a case, there is no one entitled under Florida’s Wrongful Death Act to recover for pain and suffering. All that is left is the ability to recover medical and funeral bills. Such a limited recovery prevents lawyers from being able to handle the case because the recovery will probably not outpace the expense involved to prosecute the case.

However, since we are allowed to pursue survival damages in nursing home neglect cases, we can often take these cases because we can recover for the pain and suffering the deceased person experienced before his or her death. If the case involved a protracted painful condition, like an infected bedsore that took weeks or months to cause a person’s death, then a jury might be persuaded that the resulting suffering justifies significant reimbursement. Other conditions that can support survival actions against nursing homes include: infections; broken bones; dehydration; malnutrition; and medication errors, to name a few.

Even in cases where the decedent does have a surviving spouse or children, it can be helpful to bring a survival action alongside a wrongful death action. This is because Florida Statute 400.023(1)(b), allows the claimant to bring both claims at the same time and elect which of the two sets of damages to collect only after a jury has rendered its verdict. In this manner, the pain suffered by the decedent is relevant and admissible alongside the pain suffered by one or more surviving family member due to the loss of a loved one.

Otherwise, in a claim only premised on wrongful death, the pain that the decedent suffered is not relevant. Rather, only the emotional damage of the spouse or children is compensable. Evidence of the decedent’s pain can be very compelling. After the jury returns a verdict in favor of the claimant, the claimant can then pick the better of the two results.

Not every attorney is familiar with the survival action option as it only applies to nursing home negligence cases. If a law firm turned down a case because the decedent did not have a surviving spouse or children, you may want to have it reviewed by other lawyers handling nursing home neglect cases in Jacksonville. We are always happy to provide free consultations.

Our law firm has handled nursing home neglect and medical malpractice cases for decades. We work on a contingent basis, meaning that we only get paid if we recover money. We have the resources necessary to fully prosecute nursing home cases. Typically, we spend anywhere from $10,000.00 to as much as $150,000.00, which does not include the value of the time involved. If a nursing home operator is aware that a lawyer is unable to fully fund a case, that company is unlikely to make a full and fair settlement offer.