Florida Statute 400.023 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XXIX
PUBLIC HEALTH

Chapter 400
NURSING HOMES AND RELATED HEALTH CARE FACILITIES

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F.S. 400.023

400.023 Civil enforcement.—

(1) An exclusive cause of action for negligence or a violation of residents’ rights as specified under this part which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or violation of rights and which seeks damages for such injury or death may be brought only against the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (3).

(a) The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.

(b) If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall, after the verdict, but before the judgment is entered, elect survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21. If the action alleges a claim for the resident’s rights or for negligence that did not cause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident.

(c) The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for the violation of the rights of a resident or for negligence.

(d) A resident who prevails in seeking injunctive relief or an administrative remedy is entitled to recover the costs of the action, and reasonable attorney fees assessed against the defendant of up to $25,000. Fees shall be awarded solely for the injunctive or administrative relief and not for any claim or action for damages whether such claim or action is brought with a request for an injunction or administrative relief or as a separate action, except as provided under s. 768.79 or the Florida Rules of Civil Procedure.

(e) This section does not preclude theories of recovery not arising out of negligence or s. 400.022 which are available to a resident or to the agency. Chapter 766 does not apply to a cause of action brought under ss. 400.023-400.0238.

(2) As used in this section, the term:

(a) “Licensee” means an individual, corporation, partnership, firm, association, governmental entity, or other entity that is issued a permit, registration, certificate, or license by the agency and that is legally responsible for all aspects of the operation of the nursing home facility.

(b) “Management or consulting company” means an individual or entity who contracts with, or receives a fee from, a licensee to provide any of the following services for a nursing home facility:

1. Hiring or firing of the administrator or director of nursing;

2. Controlling or having control over the staffing levels at the facility;

3. Having control over the budget of the facility; or

4. Implementing and enforcing the policies and procedures of the facility.

(c) “Passive investor” means an individual or entity that has an interest in a facility but does not participate in the decisionmaking or operations of the facility.

(3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:

(a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and

(b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident.

For purposes of this subsection, if, in a proposed amended pleading, it is asserted that such cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the proposed amendment relates back to the original pleading.

(4) In a claim brought pursuant to this part alleging a violation of residents’ rights or negligence causing injury to or the death of a resident, the claimant has the burden of proving, by a preponderance of the evidence, that:

(a) The defendant owed a duty to the resident;

(b) The defendant breached the duty to the resident;

(d) The resident sustained loss, injury, death, or damage as a result of the breach.

This part does not create strict liability. A violation of the rights set forth in s. 400.022, in any other standard or guidelines specified in this part, or in any applicable administrative standard or guidelines of this state or a federal regulatory agency is evidence of negligence but is not considered negligence per se.

(5) In a claim brought pursuant to this section, a licensee, individual, or entity has a duty to exercise reasonable care. Reasonable care is that degree of care which a reasonably careful licensee, individual, or entity would use under like circumstances.

(6) In a claim for a residents’ rights violation or negligence by a nurse licensed under part I of chapter 464, such nurse has the duty to exercise care consistent with the prevailing professional standard of care for a nurse. The prevailing professional standard of care for a nurse is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar nurses.

(7) A licensee is not liable for the medical negligence of a physician rendering care or treatment to the resident except for the administrative services of a medical director as required under this part. This subsection does not protect a licensee, individual, or entity from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.

(8) The resident or the resident’s legal representative shall serve a copy of a complaint alleging in whole or in part a violation of any rights specified in this part to the agency at the time of filing the initial complaint with the clerk of the court for the county in which the action is pursued. The requirement of providing a copy of the complaint to the agency does not impair the resident’s legal rights or ability to seek relief for his or her claim.

(9) An action under this part for a violation of rights or negligence recognized herein is not a claim for medical malpractice, and s. 768.21(8) does not apply to a claim alleging death of the resident.

History.—ss. 3, 18, ch. 80-186; s. 2, ch. 81-318; ss. 6, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 1, ch. 86-79; s. 30, ch. 93-177; ss. 4, 49, ch. 93-217; s. 765, ch. 95-148; s. 30, ch. 99-225; s. 4, ch. 2001-45; s. 34, ch. 2001-62; s. 1, ch. 2014-83.

F.S. 400.023 on Google Scholar

F.S. 400.023 on Casetext

Amendments to 400.023

Arrestable Offenses / Crimes under Fla. Stat. 400.023

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 400.023.

Annotations, Discussions, Cases:

Cases Citing Statute 400.023

Total Results: 20

Jody Meyer v. U-Haul Co of Florida, and Cindy Pronto

Court: District Court of Appeal of Florida | Date Filed: 2024-09-04

Snippet: such injury or death” against the facility. § 400.023(1), Fla. Stat. The suit in Laizure depended on

ELIZABETH SNYDER, as the Daughter and Authorized Agent of Judith Goldstein v. MERIDIAN PARK VILLAGE LIMITED PARTNERSHIP

Court: District Court of Appeal of Florida | Date Filed: 2021-03-03

Snippet: an injunction pursuant to sections 400.022 and 400.023, Florida Statutes (2019). 1 The case was resolved

SUN COAST NURSING CENTERS, INC., AIRAMID FLORIDA, LLC and HOWARD JAFFE v. LINDA LITTMAN, as Personal Representative of the ESTATE OF ARTHUR LITTMAN

Court: District Court of Appeal of Florida | Date Filed: 2020-04-08

Snippet: alleged that appellants were liable under section 400.023(2)(b), Florida Statutes (2016), which governs civil

CAROL F. JOHNSON v. HEARTLAND OF FORT MYERS, FL, LLC

Court: District Court of Appeal of Florida | Date Filed: 2018-11-07

Citation: 257 So. 3d 634

Snippet: [the remedies set forth in sections 400.022 and 400.023] stands in violation of the public policy of the

Northport Health v. Louis

Court: District Court of Appeal of Florida | Date Filed: 2018-02-26

Citation: 240 So. 3d 120

Snippet: violation of these rights or for negligence, § 400.023(1)(c), Fla. Stat. (2016), and there are no caps

FI-POMPANO REHAB, LLC d/b/a POMPANO HEALTH & REHAB, etc. v. MARJORIE IRVING, etc., ESTATE OF MERCEDES NESBETH

Court: District Court of Appeal of Florida | Date Filed: 2017-07-05

Citation: 221 So. 3d 781, 2017 WL 2859245, 2017 Fla. App. LEXIS 9643

Snippet: statutory remedies provided in sections 400.022 and 400.023, Florida Statutes (2003). Shotts, 86

Rick Scott, in his official capacity etc. v. Gail Francati

Court: District Court of Appeal of Florida | Date Filed: 2017-03-20

Citation: 214 So. 3d 742, 2017 Fla. App. LEXIS 3663

Snippet: constitutionality of the 2014 amendments to section 400.023, Florida Statutes. Fran-cati argues that the amendments

Florida Holdings III, LLC v. Duerst Ex Rel. Duerst

Court: District Court of Appeal of Florida | Date Filed: 2016-03-11

Citation: 198 So. 3d 834, 2016 Fla. App. LEXIS 3760, 2016 WL 920540

Snippet: home resident’s rights under sections 400.022 and 400.023, Florida Statutes (2012), and other related claims

Fi-Tampa, LLC v. Kelly-Hall

Court: District Court of Appeal of Florida | Date Filed: 2014-04-11

Citation: 135 So. 3d 563, 2014 WL 1396593, 2014 Fla. App. LEXIS 5355

Snippet: statutory remedies provided by sections 400.022 and 400.023, Florida Statutes (2003). Id. at 474. In the present

Lopez ex rel. Lopez v. Andie's, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2014-04-02

Citation: 137 So. 3d 528, 2014 WL 1301528, 2014 Fla. App. LEXIS 4777

Snippet: 2d 268, 266 (Fla. 4th DCA 2006). Like section 400.023 of the NHRA, section 429.29(2) of the ALFA provides

FI-Evergreen Woods, LLC v. Estate of Vrastil

Court: District Court of Appeal of Florida | Date Filed: 2013-07-05

Citation: 118 So. 3d 859, 2013 Fla. App. LEXIS 10753, 2013 WL 3357519

Snippet: be available under Florida Statutes §§ 400.22, 400.023, 400.428, 400.429, 415.1111 ... [except claims

Sarasota Facility Operations, LLC v. Manning

Court: District Court of Appeal of Florida | Date Filed: 2013-05-08

Citation: 112 So. 3d 712, 2013 WL 1891311, 2013 Fla. App. LEXIS 7356

Snippet: available in the Nursing Home Resident’s Act, § 400.023(2), Fla. Stat. (2001). Blankfeld, 902 So.2d at

Laizure v. Avante at Leesburg, Inc.

Court: Supreme Court of Florida | Date Filed: 2013-02-14

Citation: 109 So. 3d 752, 38 Fla. L. Weekly Supp. 102, 2013 WL 535417, 2013 Fla. LEXIS 249

Snippet: of the rights set forth in section 400.022. § 400.023, Fla. Stat. (2008). The action may be brought by

LTCSP-ST. Petersburg, LLC v. Robinson

Court: District Court of Appeal of Florida | Date Filed: 2012-08-10

Citation: 96 So. 3d 986, 2012 Fla. App. LEXIS 13361, 2012 WL 3238263

Snippet: available to nursing home residents under section 400.023, Florida Statutes (2007), this provision is unenforceable

Estate of Deresh ex rel. Schneider v. FS Tenant Pool III Trust

Court: District Court of Appeal of Florida | Date Filed: 2012-07-11

Citation: 95 So. 3d 296, 2012 WL 2813819, 2012 Fla. App. LEXIS 11284

Snippet: created by the Legislature,” sections 400.022 and 400.023, Florida Statutes (2003), which were designed to

Benjamin v. Tandem Healthcare, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2012-06-27

Citation: 93 So. 3d 1076, 2012 WL 2400880, 2012 Fla. App. LEXIS 10488

Snippet: home resident’s rights under sections 400.022 and 400.023, Florida Statutes (2004). Mrs. Gagnon, an Alzheimer’s

Gessa v. Manor Care of Florida, Inc.

Court: Supreme Court of Florida | Date Filed: 2011-11-23

Citation: 86 So. 3d 484, 36 Fla. L. Weekly Supp. 676, 2011 Fla. LEXIS 2765, 2011 WL 5864823

Snippet: 898 So.2d 1, 9 (Fla.2004) (ruling that section 400.023 is a legislatively created cause of action to be

Shotts v. OP Winter Haven, Inc.

Court: Supreme Court of Florida | Date Filed: 2011-11-23

Citation: 86 So. 3d 456, 36 Fla. L. Weekly Supp. 665, 2011 Fla. LEXIS 2764, 2011 WL 5864830

Snippet: remedies created by the Legislature. See §§ 400.022, 400.023, Fla. Stat. (2003). In light of the recognized

FL-Carrollwood Care, LLC v. Gordon

Court: District Court of Appeal of Florida | Date Filed: 2011-08-05

Citation: 72 So. 3d 162, 2011 Fla. App. LEXIS 12306, 2011 WL 3364349

Snippet: law of Florida allows punitive damages. See §§ 400.023(1), .0237, .0238; 768.72, Fla. Stat. (2007); Reeves

Estate of Irons Ex Rel. Springer v. Arcadia Healthcare, L.C.

Court: District Court of Appeal of Florida | Date Filed: 2011-08-03

Citation: 66 So. 3d 396, 2011 Fla. App. LEXIS 12145, 2011 WL 3300218

Snippet: statutes against Arcadia Healthcare, L.C. See §§ 400.023, 768.21, Fla. Stat. (2009). We have jurisdiction