Jeffrey P. Gale, P.A. // Damages Available Under Florida’s Nursing Home Act (Chapter 400) Are Not Limited by Florida’s Wrongful Death Act

Our firm is contacted nearly every week by the adult children of elderly parents who have died as a result of medical negligence. Sadly, if the deceased left behind no surviving spouse or child under the age of 25, neither our firm nor any other can pursue damages on their behalf. This harsh limitation arises from section 768.21(8) of Florida’s Wrongful Death Act, which states:

“(8) The damages specified in subsection (3) shall not be recoverable by adult children … with respect to claims for medical negligence as defined by s. 766.106(1).”

The damages specified in subsection (3) are lost parental companionship, instruction, and guidance and mental pain and suffering.

In the past, some defendants have argued that the damages available to a personal representative bringing a cause of action under section 400.023(1), Florida Statutes (1997), are limited by the damages provided for in Florida’s Wrongful Death Act. Various appellate courts have taken differing stances on the issue. Because of this conflict, the Florida Supreme Court accepted jurisdiction in Florida Convalescent Centers v. Somberg, 840 So. 2d 998 (Fla. 2003), to resolve the dispute.

Relying on the plain language of section 400.023(1) of the Nursing Home Act, the Florida Supreme Court held that Chapter 400 expressly created a cause of action separate and independent from the Wrongful Death Act, complete with its own damages provisions.

Although the statutory language has been amended since 2003, the core holding of the Florida Supreme Court in Somberg remains unchanged.

What Damages Are Available Under the Nursing Home Act

Under § 400.023, a personal representative of a deceased nursing home resident may recover several types of damages when the death was caused by negligence or a violation of the resident’s statutory rights.

Here are the main categories:

1. Actual (Compensatory) Damages
   These are damages that compensate for real loss or harm. They may include:
   • Pain and suffering of the decedent before death.
   • Other injuries or harms the decedent suffered due to the negligence or rights violation.
   • Potentially medical expenses, if applicable before death, costs incurred because of the negligent act. (This is typical for “actual damages,” though whether specific expense categories are recoverable depends on the facts.)
2. Punitive Damages
   These are allowed under chapter 400 when the conduct was willful, wanton, grossly negligent, or showed conscious indifference to the resident’s rights. The statute expressly allows for punitive damages in addition to actual damages.
3. Survivorship vs Wrongful Death
   One special provision: when the cause of action is for death, the personal representative must elect (after verdict but before judgment) whether to pursue:
   • Survival damages under § 46.021, which are for the decedent’s own losses up until death (pain & suffering, etc.), or
   • Wrongful death damages under § 768.21, which are for the survivors (spouse, children, etc.) in a wrongful death action.
4. Actual & Punitive Damages for Violations of Resident Rights or Negligence
   If the violation is of statutory resident rights under § 400.022, or negligence by the facility or caregivers, then the personal representative can recover both actual and punitive damages for those violations.
5. Attorney’s Fees & Costs
   • If injunctive relief or administrative remedies are sought and awarded, the prevailing resident (or representative) may recover costs of the action and reasonable attorney’s fees (the statute caps fees for injunctive or administrative relief at $25,000) under certain conditions. The Florida Senate+1
   • But note: attorney’s fees are not recoverable for damage claims under § 400.023 (meaning the part seeking monetary damages), except where another statute provides otherwise.