What is the Difference Between a Medical Malpractice Case and a Nursing Home Neglect Case?

Our Jacksonville nursing home neglect lawyers frequently get calls from potential clients asking about a “medical malpractice” case which turns out to actually be a nursing home neglect case. While the two types of cases are similar, the differences are very important.

Medical malpractice and nursing home neglect cases are governed by similar Florida statutory frameworks. Chapter 766 governs claims for medical malpractice and chapter 400 applies to nursing home injury claims.

Both chapters require that the potential case be screened by an expert witness who concludes that neglect or abuse occurred. Once that has been completed, both chapters require the claimant provide a pre-suit notice to all potential defendants.

After the notice has been served, medical malpractice cases have a 90 day pre-suit period and nursing home claims have a 75 day pre-suit period during which suit cannot be filed. The period is ostensibly for the investigation and resolution of claims; however, it is very rare that either of these types of cases settles pre-suit.

There are some major differences. For medical malpractice claims that involve death, if there is no surviving spouse, the decedent’s children must be under the age of 25 in order to recover anything for their emotional damages resulting from the death of their parent.

Every year, we receive calls from people who lost a parent due to suspected medical malpractice and there is nothing we can do if the children are over 25 and there is no surviving spouse. This is because without being able to recover anything for emotional damages, the limited amount of medical and funeral bills is insufficient to cover the costs of litigation, e.g., we would spend ten dollars to recover nine dollars.

The sad truth is that the medical industry lobbyists have created a scheme through which there is no feasible remedy for medical neglect when an elderly person has no spouse at the time of his or her passing.

Nursing home neglect claims do not have this limitation. Where there is no surviving spouse, children of a decedent can bring an action for nursing home neglect regardless of their age. Because many nursing home residents are elderly, their children are almost always over the age of 25. For our Jacksonville nursing home neglect lawyers, most of our nursing home cases involve death with the only survivors being children over the age of 25.

The next major distinction is that medical providers that do not perform surgery in Florida must either carry malpractice insurance with at least $100,000.00 per claim and $300,000.00 in annual aggregate coverage or maintain an escrow account with a balance in the same amounts. For medical providers performing surgeries, that amount increases to $250,000.00 per claim and $750,000.00 in the aggregate.

Unfortunately, nursing home operators do not have this requirement. Instead, Florida Statute § 400.141 merely requires that nursing homes “Maintain general and professional liability insurance coverage that is in force at all times.” Notice that there is no minimum limit of insurance coverage required. What does that mean? It means that most of the time there is a single policy of coverage in place for multiple nursing homes with a single combined limit of $50,000.00 or less.

This is not a per claim limit but an aggregate limit for all of the homes, which means that while the nursing home operators can check off the box that they have professional liability coverage, the limits are so low that, in reality, there is no meaningful coverage whatsoever. We almost never see nursing homes with significant insurance coverage. Simply put, the statute is nothing more than a sham designed to trick Florida’s citizens into thinking nursing homes are well regulated when the truth is that they are not.

Our Jacksonville attorneys specializing in nursing home abuse and neglect are happy to explain your rights if you, or a relative, has suffered at the hands of nursing home operators.

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