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Survival Action vs. Wrongful Death in Florida Nursing Home Abuse Cases

It’s a sad reality in Florida nursing home abuse cases for the person who suffered to die, whether due to frailty or age or directly because of the abuse or neglect endured. In these cases, there may be several avenues for legal action. nursing home abuse

When a person survives nursing home abuse, it’s fairly straightforward: It’s a personal injury lawsuit. Nursing home injury cases can be a little more complex than other types of torts because they sometimes stem from some medical malpractice, which could complicate matters in terms of the statute of limitations (2 years, as opposed to the 4 allowed in personal injury cases). Further, medical malpractice cases require more evidence, as well as expert witnesses.

However, things can get a bit more complicated when the person who was victimized dies. The two primary avenues for compensation are:

  • Wrongful death lawsuit;
    Survival action.

In a survival action, per F.S. 46.021, the case is filed by the estate of that individual for the losses or damages they suffered in life. That can include pain and suffering and loss of life enjoyment, among other damages. Survival actions can also arise when a person files a personal injury lawsuit, but dies before its resolution. The estate would then carry on the case as a survival action.

Wrongful death, meanwhile, is brought pursuant to Florida’s Wrongful Death Act, F.S. 768.14. The wrongful death lawsuit is filed by the surviving family in order to recover losses they have sustained. In order for a wrongful death to be filed, one must show the death was directly caused by the negligence alleged. Rather than go to the estate, it is paid to eligible heirs and family.

Although statutes on wrongful death and survivor actions vary greatly from state-to-state, there was an interesting nursing home abuse case out of Illinois that centered on a dispute regarding the statute of limitations for survival actions, versus the one for wrongful death. The Pennsylvania Supreme Court ruled that the “cause of action” (date when the clock starts ticking) in both medical malpractice survival actions and wrongful death lawsuits is two years from the date of the victim’s death. This was important because plaintiffs filed the case past the statute of limitations had the “cause of action” in this survival action been the date of injury, as opposed to the date of death.

According to court records, plaintiff was moved to defendant nursing home facility with severe injuries and major illnesses, including a head injury, COPD, diabetes and several pressure ulcers. The doctor overseeing her care ordered she be turned regularly in bed to combat the pressure ulcers. Those orders were not followed. She developed additional bed sores which resulted in her becoming septic and contract a bone infection (she was also malnourished, dehydrated and in conscious pain). She was admitted in 2005 and died little more than two years later from multiple pressure sores and sepsis. The administrator of her estate filed both a survival action on behalf of the victim’s suffering and a wrongful death action, to compensate her survivors.

The two cases were consolidated. The first trial resulted in a mistrial, while the second resulted in a a verdict of $125,000 in the wrongful death action and $1 million for the survival action. There was also an $875,000 punitive damage award issued.

Defense appealed and argued the survival action was not timely filed because it was barred by the (in that state) two-year statute of limitations on personal injury cases, the clock for which began at the time of decedent’s first injury in 2005. The state supreme court ruled the trial court applied the correct statute of limitations for survival actions in medical malpractice lawsuits and that the two-year time limit for the survival action didn’t begin until decedent’s death.

Our nursing home abuse attorneys in Orlando know this can all be quite confusing, especially when we start talking about the laws in other states. However, it’s important to underscore how complex these matters can be, and why it’s important to discuss your concerns with an experienced injury attorney as soon as possible about your concerns regarding a loved one’s treatment in a nursing home.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Dubose v. Willowcrest Nur. Home, Nov. 22, 2017, Pennsylvania Supreme Court

More Blog Entries:

AARP Foundation Sues Nursing Home To Halt Unlawful Evictions, Nov. 22, 2017, Orlando Nursing Home Abuse Attorney Blog

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