A nursing home resident breaks a hip in a fall

Attorney Answer

A fall that injures a nursing home resident is usually a claim against the home under Florida's nursing home statute, chapter 400 — not a medical malpractice case, even when the fall turns on how the staff assessed and planned for the resident's risk of falling. Chapter 400 has its own rules: written notice to the home before any lawsuit, a waiting period, and a deadline that generally runs two years from the fall or its discovery, with an outer limit of four years from the fall unless the injury was concealed.

The claim, and against whom. Fla. Stat. § 400.023(1) gives an exclusive cause of action for negligence or a violation of residents' rights against the licensee (the company licensed to run the home), its management or consulting company, its managing employees, and the direct caregivers. It can be brought by the resident, a guardian, someone acting for the resident with consent, or the personal representative of a resident's estate. The statute keeps it separate from malpractice. Section 400.023(1)(e) says that chapter 766, Florida's medical malpractice chapter, does not apply to it, and § 400.023(9) provides:

(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.

The Florida Supreme Court reached the same result under the earlier version of the statute: a suit against a nursing home confined to violations of residents' rights, which there included allegations that the home failed to prevent falls, was not a medical-negligence claim, so the malpractice presuit requirements did not apply: Integrated Health Care Services, Inc. v. Lang-Redway, 840 So. 2d 974 (Fla. 2002).

Where a doctor's decision is the issue. Fla. Stat. § 400.023(7):

(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.

So the nursing staff's assessment of a resident's fall risk, the care plan, supervision, and help with moving all stay within the chapter 400 claim against the home. A physician's own medical decision, such as a prescription that left the resident dizzy, is a separate matter: a claim against that physician would generally be a medical malpractice claim with its own presuit rules.

What has to be proved. The claimant must prove a duty, a breach, legal cause, and the resulting injury (§ 400.023(4), Fla. Stat.). A resident's rights include care consistent with the resident's own care plan. Fla. Stat. § 400.022(1)(l):

(l) The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.

And § 400.023(4) ends:

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.

So proof that the home did not follow the fall precautions in the resident's care plan, such as supervision or help with transfers, is evidence of negligence, not automatic proof of it.

Before any lawsuit: notice. Fla. Stat. § 400.0233(2):

(2) Prior to filing a claim for a violation of a resident’s rights or a claim for negligence, a claimant alleging injury to or the death of a resident shall notify each prospective defendant by certified mail, return receipt requested, of an asserted violation of a resident’s rights provided in s. 400.022 or deviation from the standard of care.

The notice must also identify the rights violated and the negligence alleged and describe the injuries, and it carries a certificate from a lawyer that a reasonable investigation gave a good-faith belief that grounds exist. No suit may be filed for 75 days after the notice is mailed. That is one reason to involve a lawyer early.

What you can do

1. Ask the home for a copy of the resident's records, including the care plan and any fall-risk assessment.

2. Note what you know about the fall: when it happened, who was present, and what the home told the family afterward.

3. Keep the hospital and treatment records for the hip injury, and every bill.

4. Note the date of the fall and the date the family learned of it; the deadline turns on them.

5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Florida attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. Fla. Stat. § 400.0236(1):

(1) Any action for damages brought under this part shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.

Where fraudulent concealment or intentional misrepresentation prevented discovery of the injury, § 400.0236(2) extends the period to 2 years from discovery, but never more than 6 years from the fall. Because the notice and its 75-day wait come before any suit, start early. Have a Florida attorney check the dates — no page can compute them for you.