Florida/Georgia Personal Injury & Workers Compensation

...The district court certified the following question as one of great public importance: MAY A PERSONAL REPRESENTATIVE BRING A STATUTORY CAUSE OF ACTION UNDER SECTION 400.023(1), FLORIDA STATUTES (1997), ON BEHALF OF A DECEASED RESIDENT OF A NURSING HOME FOR ALLEGED INFRINGEMENT OF THE RESIDENT'S STATUTORY RIGHTS PROVIDED BY SECTION 400.022, FLORIDA STATUTES (1997), WHERE THE INFRINGEMENT HAS NOT CAUSED THE RESIDENT'S DEATH? Beverly Enterprises — Florida, Inc....

...re provided by Washington Manor. Knowles was transferred to a medical hospital where he later died. Maggie Knowles, the personal representative for Gladstone Knowles, sued Washington Manor for violation of the Patient's Bill of Rights under sections 400.022 and 400.023, Florida Statutes (1997)....

...Prior to its en banc decision in Knowles, the Fourth District had held in Greenfield v. Manor Care, Inc., 705 So.2d 926, 933-34 (Fla. 4th DCA 1997), that section 400.023(1) permitted a personal representative to bring a cause of action for damages arising out of violations of section 400.022 regardless of whether the violations caused the death of the resident....

...dings consistent with this opinion. Greenfield, 705 So.2d at 933-34. In the en banc Knowles opinion, the district court relied upon and adopted the reasoning of Judge Warner's partial dissent in Greenfield, which provided: The rights protected under section 400.022 are rights that are largely personal to the resident of the facility, such as the right to religious liberty, see § 400.022(1)(a), the right to organize and participate in groups in the facility, see § 400.022(1)(e), and the right to manage one's personal affairs, see § 400.022(1)(h) to name a few. The resident also has the right to adequate medical care and proper treatment, see § 400.022(1)( l ) and under section 400.023(1), if the violation of these rights results in a death then, the personal representative of the estate of the deceased resident has a cause of action....

...intention of the law."). Petitioner claims that her interpretation of section 400.023(1) is supported by (1) the remedial nature of section 400.023(1), which should be construed liberally; (2) the effect of section 400.023(1) when viewed in light of section 400.022, Florida Statutes (1997), sections 768.16-768.27, Florida Statutes (1997), and section 46.021, Florida Statutes (1997); and (3) the legislative purpose and history of section 400.023(1)....

...She argues that instead of construing the statutory phrase in section 400.023(1) in isolation, the court below should have considered section 400.023(1) with other, related statutes in determining legislative intent. Petitioner points specifically to subsection 400.022(1)(h)(4), which states that the nursing home facility must hold, safeguard, manage and account for the resident's personal funds deposited with the facility and, upon the death of the resident, convey those funds to the decedent's ben...

...Furthermore, where it is possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Id. However, we disagree here that the lower court's construction of section 400.023(1) would render the right identified in section 400.022(1)(h)(4) meaningless. First, subsection 400.022(1)(h)(4) does not become effective until the resident dies....

...Thus, a personal representative of the resident's estate would not need to invoke the provisions of section 400.023(1) in order to secure the resident's funds. Rather, the personal representative can ensure the return of all funds under section 400.162. Accordingly, we disagree that the statutory provisions in section 400.022 have been rendered meaningless by the lower court's construction of section 400.023(1)....

...Furthermore, we note petitioner was not deprived of or prevented from relying on the violation of Mr. Knowles' chapter 400 rights, because although petitioner proceeded on a common law negligence theory she was permitted to refer to the rights listed in section 400.022 to establish her claim. More importantly, the trial court instructed the jury that residents in nursing homes have rights under section 400.022 and that a violation of those rights constitutes negligence....

...To correctly ascertain the intent of the Legislature in enacting and amending section 400.023(1) of the Florida Statutes, it is necessary to review the historical formation and development of chapter 400 itself. The Residents' Bill of Rights detailed in section 400.022, as well as the civil enforcement provision at issue in the instant action, were enacted largely to remedy the circumstances discovered and publicized by two 1979 Dade County grand jury reports which graphically described horrendous conditions in certain residential facilities....

...Id. at 1311 (emphasis supplied). In my view, it is absolutely clear that the interaction between section 400.023, in its original form, and Florida's survival statute preserved all causes of action for nonlethal violations of nursing home residents' section 400.022 rights, in the event of a resident's death due to a cause unrelated to any of the elements of chapter 400....

...later died due to unrelated causes, the decedent's estate would have had a continuing chapter 400 remedy for the wrongful conduct under the survival statute. Cf. id. Recognizing that care providers had begun asserting the defense that violations of section 400.022 could not be remedied in any fashion if the nursing home resident died as a result of chapter 400 violations subsequent to the violation, the Legislature amended section 400.023 in 1986. This is the revision perverted by the majority today. This revision was designed and intended to clarify the existence of a civil cause of action for violations of section 400.022 which resulted in death, after the death of the nursing home resident, to be pursued by the resident's personal representative — an action to clearly permit a claim that would not be subsumed by the Wrongful Death Act....

...nally inconsistent. The United States District Court for the Middle District of Florida has specifically noted that the following emphasized language from the statute is internally contradictory: Any resident whose rights as specified in [Fla. Stat. § 400.022] are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation....

...As is evident, the 1986 amendment — the precise statutory language at issue in the present action — was intended to expand protection to clarify that civil actions by personal representatives were proper, expand the range of remedies available for violations of section 400.022, and not restrict or reduce the protection designed, intended, and afforded by the Legislature, nor to abolish a survival action, as results from the majority decision today....

...hich a less literal reading would preserve. Cox v. Roth, 348 U.S. 207, 209, 75 S.Ct. 242, 99 L.Ed. 260 (1955) (quoting Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 90 L.Ed. 165 (1945)). [3] The trial court instructed the jury: Florida statute section 400.022 provides that nursing home residents have the following rights under Florida law and that all licensees of nursing home facilities shall treat their residents in accordance of the following rights: ......

....021. Contrary to petitioner's assertion, neither the court below nor Judge Warner in her dissenting opinion in Greenfield stated that personal rights do not survive the death of the resident. Rather, Judge Warner explained that the rights listed in section 400.022 are "largely personal to the resident of the facility." She further explained that she could conceive valid policy reasons why the Legislature would limit the cause of action to violations that caused the resident's death; vindication for violation of several of the rights listed in section 400.022 would not bring any personal satisfaction to the resident after death....

...[6] I cite these cases as examples of how we understand clauses of limitation in statutes. Clearly, these cases do not concern the same statute we consider here. [7] The complete abolition at death of a nursing home resident's civil action based upon violation of section 400.022 which caused the resident's death is not before the Court in this action.

...vision are legally without merit. Accordingly, we reverse. I. Appellee, as personal representative of the estate of Isabella Brooks, filed a civil damage action against appellant, asserting claims based on negligence, wrongful death and violation of section 400.022, Florida Statutes (sometimes referred to as the nursing home residents' bill of rights)....

...See Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486-87 (Fla. 1999). However, appellee argued in the trial court that the burden of persuasion required to obtain punitive damages pursuant to the claim for violation of the nursing home residents' bill of rights (§ 400.022) was only by the greater weight of the evidence....

...or violation of a nursing home resident's rights. Our review of the relevant statutory provisions, however, leads us to conclude that the representations were incorrect. Appellee's claim for a violation of the nursing home residents' bill of rights (§ 400.022) is controlled by the 2001 versions of the relevant statutory provisions....

...There are other regulatory statutes in which the legislature has specifically created a private right of action. In the nursing home statute, for example, the legislature created a nursing home resident's "right to receive adequate and appropriate health care," see § 400.022(1)( l ), Fla....

...This cause comes before the Court on the Defendant, Kindred Nursing Centers East, LLC's (hereafter Kindred) Motion to Dismiss Plaintiff, Theresia Thompson's (hereafter Thompson) Amended Complaint, concerning claims for negligence and violation of nursing home residents' rights pursuant to Fla. Stat. § 400.022 and § 400.023....

...00.00 from Defendant Kindred, as operator of Carrollwood Care Center. [Docket No. 7 ¶ 1]. The claims involve both a common-law allegation of negligence and a statutory allegation of violation of nursing home residents' rights pursuant to Fla. Stat. § 400.022 and § 400.023 arising out of the death of Lois Snellenberger while a resident at the Defendant's facility....

...ound that Various Allegations Therein Did Not Cause the Death of the Decedent Prior to the most recent amendments to Fla. Stat. § 400.023, it remained unclear as to whether a plaintiff could recover for defined resident rights created by Fla. Stat. § 400.022 under common-law negligence and statutory claims pursuant to Fla. Stat. § 400.023 unless the violation of a specific resident right caused the resident's death. Before its amendment, the statute read, in pertinent part, as follows: "Any resident whose rights as specified in [Fla. Stat. § 400.022] are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation....

...that the Florida courts have had difficulty interpreting its meaning. In 1997, the Fourth District Court of Appeal held that Fla. Stat. § 400.023 permits a personal representative to bring a claim for damages arising out of violations of Fla. Stat. § 400.022 regardless of whether the violations caused the resident's death....

...urt: May a personal representative bring a statutory cause of action under Section 400.023(1), Florida Statutes (1997), on behalf of a deceased resident of a nursing home for alleged infringements of the resident's *1350 statutory rights provided by Section 400.022, Florida Statutes (1997), when the infringement has not caused the resident's death?" Beverly Enterprises-Florida, Inc....

...Stat. § 400.023 underwent significant alteration during the First Regular Session of Florida's Seventeenth Legislature. The current version of Fla. Stat. § 400.023(1) reads, in pertinent part, as follows: "Any resident whose rights as specified in [§ 400.022 of the Florida Statutes] are violated shall have a cause of action....

...entative of the estate may recover damages for the negligence that caused injury to the resident." In Counts I and II of Plaintiff Thompson's Amended Complaint, she alleges that the Defendant Kindred, violated several residents' rights as defined by § 400.022 of the Florida Statutes, which established the grounds for both her negligence claim and her statutory claim for violation of residents' rights....

...The resident sustained loss, injury, death, or damage as a result of the breach." Fla. Stat. § 400.023(2) (2001). Under Count I for negligence, Plaintiff alleges the following: (a) Defendant Kindred, owed Lois Snellenberger a duty of reasonable care and a duty to provide her with the rights enumerated in Fla. Stat. § 400.022 [Docket No....

...7 ¶ 9]. Therefore, Plaintiff Thompson has sufficiently alleged a cause of action for negligence. While Count II, a statutory claim for violation of residents' rights, is also governed by a negligence standard, "[a] violation of the rights set forth in s. 400.022...shall be evidence of negligence but shall not be considered negligence per se." Fla. Stat. § 400.023(2)( d ) (2001). Therefore, if a plaintiff proves that the defendant violated "any right contained in s. 400.022," the plaintiff will have successfully proffered evidence of the defendant's negligence....

...Under Count II of Plaintiff Thompson's Amended Complaint, she alleges the following: (a) Defendant, as operator of Carrollwood Care Center, "assumed the *1352 obligation to treat each of its residents [including Lois Snellenberger] in accordance with the provisions" of Fla. Stat. § 400.022 [Docket No....

...ession and governs the civil enforcement of nursing home residents' rights, has clarified the instant issue. Section 400.023(1) provides that an "action may be brought in any court of competent jurisdiction to enforce [residents' rights contained in § 400.022 of the Florida Statutes] and to recover actual and punitive damages for any violation of the rights of a resident or for negligence." As such, § 400.023 governs both statutory claims and common-law claims for negligence....

...Indeed, the Court of Appeals for the Second District of Florida recently certified the following question to the Florida Supreme Court as one of "great public importance: If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in Section 400.022, must the plaintiff comply with the presuit conditions in Section 766.106." Integrated Health Care Services Inc....

...Further, Plaintiff Thompson, set out a short and plain statement showing that she is entitled to relief by stating, "Lois Snellenberger was a resident of Carrollwood Care Center...[and] was deprived of...her statutorily mandated nursing home residents' rights as set out in Fla. Stat. § 400.022...by acts or omissions of defendant[.]" [Docket No....

...nce claims arising out of a violation of residents' rights pursuant to Fla. Stat. § 400.023. Prior to the amendment, § 400.023(4) read as follows: Claimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to s. 400.022(1)(k) which resulted in personal injury to or the death of a resident shall conduct an investigation which shall include a review by a licensed physician or registered nurse familiar with the standard of nursing care for nursing home residents pursuant to this part....

...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 derivation from the standard of care....

...l Health Lawyers Association." This suit against the nursing home was filed while Riva was still alive, and after her death, her son Melvin, as personal representative, maintained it, asserting that Sunrise had violated Riva's statutory rights under section 400.022, Florida Statutes (2001)....

...A remedial statute is one which confers or changes a remedy. Campus Communs., Inc. v. Earnhardt, 821 So.2d 388 (Fla. 5th DCA 2002). The Nursing Home Resident's Act is remedial. Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004). The "Residents Rights" provisions in section 400.022 were enacted in 1980 to respond to a Dade County Grand Jury investigation of nursing homes which revealed detailed evidence of substantial elder abuse occurring in nursing homes....

...Clarke of Cole, Scott & Kissane, P.A., Tampa, for Appellee. SAWAYA, C.J. The Estate of Beulah Despain appeals a final judgment rendered pursuant to a jury verdict awarding compensatory damages for violation of the decedent's rights as a nursing home resident under section 400.022, Florida Statutes (1999), negligence, and the decedent's wrongful death....

...Once these two standards are determined, we can resolve the issue on appeal and arrive at a conclusion. I. The Requisite Showing That Must Be Made To Allow A Claim For Punitive Damages A. The Basic Standard A resident who has a cause of action against a nursing home under section 400.022, Florida Statutes (1999), may recover punitive damages in appropriate cases....

...Glenn of Cole, Scott & Kissane, P.A., West Palm Beach, for appellees. WARNER, J. The husband and guardian of a nursing home resident filed a claim against Manor Care, the nursing home, for deprivation of the resident's rights as set forth in sections 400.022 and 400.023, Florida Statutes (2001)....

...After leaving the nursing home, Lawrence and Josephine filed suit against Manor Care alleging that the nursing home failed to provide Josephine with adequate health care and protective services, constituting a deprivation of her rights pursuant to sections 400.022 and 400.023....

...1647, 114 L.Ed.2d 26 (1991)); see also Flyer Printing Co. v. Hill, 805 So.2d 829, 831 (Fla. 2d DCA 2001). When an arbitration agreement contains provisions which defeat the remedial provisions of the statute, the agreement is not enforceable. See Flyer Printing, 805 So.2d at 831. Sections 400.022 and 400.023 are remedial statutes, designed to protect nursing home residents. The Nursing Home Resident's *63 Rights Act, section 400.022, was originally enacted after a Dade County Grand Jury investigation of nursing homes revealed substantial elder abuse occurring in many nursing homes without any remedial action being taken....

...See Crotts & Martinez, The Nursing Home Resident's Rights Act-A Good Idea Gone Bad!, 26 Stetson L.Rev. 599 (1996). The law set up rights of residents, including the right to appropriate medical care, and requires nursing homes to make public statements of the rights and responsibilities of the residents. See § 400.022(1)....

...ary judgment entered in favor of Bon Secours — Maria Manor Nursing Care Center, Inc., d/b/a Bon Secours — Maria Manor, a Florida Corporation (the Nursing Home). The Estate brought this action pursuant to the nursing home residents' rights statute, section 400.022, Florida Statutes (2002)....

...unds.” Second, we hold that the district court below erred in failing to rule that the limitations of remedies provisions in this case violate public policy, for they directly undermine specific statutory remedies created by the Legislature. See §§ 400.022, 400.023, Fla....

...legislature to regulate the content of such agreements — which should primarily provide dispute resolution procedures — because they are actually being used to eliminate *468 substantive rights and remedies created by the Legislature in sections 400.022 and 400.023, Florida Statutes, for the protection of some of our most vulnerable citizens....

...4th DCA 2005), stated its position with respect to limitations of remedies provisions and public policy: A remedial statute is one which confers or changes a remedy. The Nursing Home Resident’s Act is remedial. The “Residents Rights” provisions in section 400.022 were enacted in 1980 to respond to a Dade County Grand Jury investigation of nursing homes which revealed detailed evidence of substantial elder abuse occurring in nursing homes....

...unconscionable. B. The Present Case Based on the foregoing, we conclude that the limitations of remedies provisions in the present case violate public policy, for they directly undermine specific statutory remedies created by the Legislature. See §§ 400.022, 400.028, Fla. Stat. (2008). This conclusion comports with the vast weight of authority in Florida, as discussed above. The Fourth District Court of Appeal in Romano v. Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003), explained succinctly: Sections 400.022 and 400.023 are remedial statutes, designed to protect nursing home residents. The Nursing Home Resident’s Rights Act, section 400.022, was originally enacted after a Dade County Grand Jury investigation of nursing homes revealed substantial elder abuse occurring in many nursing homes without any remedial action being taken....

...r dealing; count II, money had and received; count III, common law unjust enrichment; count IV, negligent omissions; count V, breach of contract for nursing care; count VI, breach of fiduciary duty; count VII, violations of Florida Statutes sections 400.022 (1993) and 400.165 (1993); and count VIII, declaratory judgment....

...Since she properly alleged a fiduciary duty between Manor Care and it residents, which arose out of a special relationship independent of the contract, and a breach of same, it was error for the trial court to dismiss count VI. COUNT VII VIOLATIONS OF FLORIDA STATUTES SECTIONS 400.022 AND 400.165 Appellant's count VII was brought as personal representative of the Estate of Herman Greenfield, and on behalf of all others similarly situated. In this count, appellant alleged that Manor Care violated section 400.022(1)(e), Florida Statutes (1993), by not advising appellant or residents orally or in writing at the time of admission, of the charges for goods and services not covered by Manor Care's per diem rates....

...e amounts of service or handling charges in the bills rendered by Manor Care. Section 400.023(1), Florida Statutes (1993) gives residents of nursing homes the right to bring a legal action to enforce those rights which are specifically enumerated in section 400.022, if they are violated....

...and of related charges for such services, including any charges for services not covered under Title XVIII or Title XIX of the Social Security Act or not covered by the basic per diem rates and of bed reservation and refund policies of the facility. § 400.022(1)(i), Fla....

...These are economic damages recoverable on the contract. See Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244 (Fla.1993). I also disagree with the majority's interpretation of section 400.023(1). The rights protected under section 400.022 are rights that are largely personal to the resident of the facility, such as the right to religious liberty, see § 400.022(1)(a), the right to organize and participate in groups in the facility, see § 400.022(1)(e), and the right to manage one's personal affairs, see § 400.022(1)(h) to name a few. The resident also has the right to adequate medical care and proper treatment, see § 400.022(1)( l ) and under section 400.023(1), if the violation of these rights results in a death then, the personal representative of the estate of the deceased resident has a cause of action....

...and costs, based upon alleged intentional, grossly negligent, or negligent, acts of the nursing home staff; and count three sought compensatory damages, punitive damages, costs, and attorney's fees, based upon Unicare's alleged violation of sections 400.022-400.023 of the Florida Statutes (1983)....

...uant to section 400.023, along with an affidavit of Hoak's attorney who claimed an entitlement to fees for 147 hours of legal services. Section 400.023 provides in pertinent part that [a]ny plaintiff who prevails in any such action [for violation of section 400.022] may be entitled to recover reasonable attorney's fees, costs of the action, and damages, unless the court finds that the plaintiff has acted in bad faith, with malicious purpose, and that there was a complete absence of a justiciable issue of either law or fact....

...Second, Unicare contends that Hoak accepted an offer of judgment settling a three-count complaint, only one count of which claimed statutory attorney's fees. Since the settlement did not address the merits of any particular count, Hoak cannot fairly be said to be a "prevailing *161 party" in the third count under sections 400.022-400.023....

...Moreover, since all three counts sought money damages, the judgment awarding money damages constituted a judgment on all three counts of the amended third amended complaint. Therefore, Hoak contends, he prevailed on count three and is eligible to recover attorney's fees pursuant to sections 400.022-400.023....

...Because we hold that accepting the offer of judgment effectively terminated the litigation and precluded Hoak from moving for postjudgment statutory attorney's fees, we need not determine whether Hoak was a "prevailing party" within the meaning of sections 400.022-400.023....

...We quash the opinion below and remand with instructions to reinstate the order of the circuit court. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ., concur. NOTES [1] Even though Larry Hoak was substituted as plaintiff, the style of this case has never changed. [2] Section 400.022, Florida Statutes (1983), provides a series of rights for residents of licensed nursing homes....

...On April 15, 1989, "agents or employees" of East Manor "negligently treated or handled" the plaintiff, causing her to suffer a severe injury to her previously fractured elbow. Count I of the complaint alleges simple negligence, and count II alleges a violation of section 400.022, Florida Statutes (1989), which sets forth certain rights of nursing home residents....

...The plaintiff allegedly sustained pressure sores resulting in the amputation of his leg and toe, suffered from poor nutrition and infection, and ultimately died. Id. at 975. Our supreme court explained that the Nursing Home Act created a "right to receive adequate and appropriate health care," § 400.022(1)( l ), Fla....

...(1997), and a private right of action for deprivation of a nursing home resident's statutory rights, § 400.023(1). More important, chapter 400 established a standard of care "consistent with ... established and recognized practice standards within the community, and with rules as adopted by the agency," § 400.022(1)( l ), and it had its own separate presuit investigation requirements for cases governed by it, § 400.023(1). For these reasons, the presuit requirements of chapter 766 did not apply to a lawsuit seeking to enforce only those rights enumerated in section 400.022....

...g interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429 ....

...e, each party's liability in relation to this Agreement. 1.2 Liability for any claim brought by a party to this Agreement against the other party, . . . including, without limitation, claims for medical negligence or violation(s) of Florida Statutes § 400.022, et....

...[t]he health, care, and treatment of persons in nursing homes and related health care facilities" and for "[t]he construction, maintenance, and operation of such institutions which will ensure safe, adequate, and appropriate care, treatment and health of persons in such facilities." § 400.011, Fla. Stat. (1997). Section 400.022 expressly sets out a nursing home resident's statutory rights, which include, in part, such rights as the right to civil and religious liberties, the right to uncensored communication, the right of a resident to be adequately informed...

...Thus, for the above reasons, I concur in the majority's decision that damages available under a section 400.023(1) action are not limited to those available under the Wrongful Death Act. LEWIS, J., concurs. NOTES [1] §§ 768.16-768.27, Fla. Stat. (1997). [2] § 400.022(1)( l ), Fla....

...n focused public attention on the substandard conditions that exist in some of Florida's 331 licensed nursing homes. The report described health hazards and deficiencies in patient care that allegedly have been allowed to continue for years. . . . . Section 400.022, Florida Statutes, contains a list of nursing home patients' rights, copies of which must be provided to each patient or to his or her guardian at the time of, or before, the patient's admission to the facility....

...21, Florida Statutes (1991). Sections 768.16 — .27 do not provide for an award of damages for the decedent's physical and mental pain but section 46.021 does allow such damages. We find no error in the trial court's denial of the motion to dismiss. Section 400.022, Florida Statutes (1991), sets forth the specific rights of nursing home residents....

...Morrison of Wilkes & McHugh, P.A., Tampa, FL, for Respondent. SHAW, J. We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance: If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in section 400.022, must the plaintiff comply with the presuit conditions in section 766.106? Integrated Health Care Services, Inc....

...Immediately thereafter, he resided at the Bon Secours Maria Manor ("Bon Secours") until his death in April of 1998. Pauline Lang-Redway, the personal representative for the estate of Albert Redway, sued IHS and Bon Secours, alleging that both nursing homes violated Redway's statutory rights as provided under section 400.022, Florida Statutes (1997). Relative to defendant Bon Secours, [1] the complaint alleged that Bon Secours violated section 400.022 when it failed to (1) assure that Redway received adequate health care and support services, (2) prevent his pressure sores and treat such sores after they occurred, (3) maintain accurate medical or clinical records including its fail...

...ility, (5) adequately monitor his nutritional intake, (6) adequately monitor significant signs and symptoms of infection, and (7) train, supervise, and retain a proper staff. The complaint specifically stated that it was founded on duties imposed by section 400.022....

...egligence action. The trial court denied the motion to dismiss, and Bon Secours appealed. The Second District Court of Appeal affirmed, noting that: The complaint alleges violations of Mr. Redway's rights as a nursing home resident exclusively under section 400.022....

...vider" as a defendant. See § 766.102(1), Fla. Stat. (1997) (citing § 768.50(2)(b), Fla. Stat. (1985)). Although the complaint alleges that Mr. Redway did not receive adequate and appropriate health care at the facilities as a statutory claim under section 400.022(1)( l ), the plaintiff *976 does not allege any common law theory attempting to make the defendants vicariously liable for a breach of a professional standard of care by a health care provider....

...The defendants misread NME Properties as requiring compliance with the presuit requirements of chapter 766 when a plaintiff alleges only a breach of the statutory "right to receive adequate and appropriate health care and protective and support services" under section 400.022(1)( l ).......

...ulatory surgical centers, blood banks, plasma centers, industrial clinics, and renal dialysis facilities. CHAPTER 400 Chapter 400, on the other hand, provides for the development and enforcement of basic standards of care imposed upon nursing homes. Section 400.022 creates twenty-two unique statutory requirements applicable to nursing homes....

...ces, 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. § 400.022(1)( l ), Fla....

...provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff. (4) Claimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to s. 400.022(1)(k) which resulted in personal injury to or the death of a resident shall conduct an investigation which shall include a review by a licensed physician or registered nurse familiar with the standard of nursing care for nursing home residents pursuant to this part....

...ously indifferent to the rights of the resident. § 400.023, Fla. Stat. (1997) (emphasis added). ANALYSIS In the current case, each count of the plaintiff's complaint alleged that the nursing home failed to provide for the degree of care mandated by section 400.022....

...the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). In this case, the plaintiff is filing an action against the nursing home based solely upon the violation of the statutory obligations imposed by section 400.022. As section 400.022(1)( l ) provides its own standard of care, [8] the medical negligence standard of care and the corresponding presuit requirements of chapter 766 are inapplicable....

...uire her to abide by the presuit requirements of chapter 766. [9] Bon Secours' argument that the Legislature intended plaintiffs to abide by two separate presuit requirements is clearly at odds with the Legislature's purpose in promulgating sections 400.022 and 400.023....

...ursing home if the professional medical negligence standard of care set forth in section 766.102 applied to the active tortfeasor—the agent or employee of the nursing home." Weinstock, 629 So.2d at 837 (citing McCullough, 590 So.2d at 441). [8] See § 400.022(1)( l ), Fla....

...consistent with ... established and recognized practice standards within the community, and with rules as adopted by the agency"). [9] We limit this holding to those cases where the plaintiff has limited his or her cause of action to violations of section 400.022.

...nce and operation of such institutions that will ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities.” § 400.011, Fla. Stat. (2008). The NHRRA sets forth the statutory rights of nursing home residents. § 400.022, Fla. Stat. (2008). The NHRRA includes a provision for civil enforcement that provides for a cause of action for negligence or a violation of the rights set forth in section 400.022....

...At the same time, the Legislature amended section 400.023 to provide that "[s]ections 400.023-400.0238 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a nursing home resident arising out of negligence or a violation of rights specified in s. 400.022. 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.” Ch.2001-45, Laws of Fla....

...Mugridge's death, Janet Lee Whitney (the Personal Representative) was appointed as the personal representative of his estate. The Personal Representative filed an action against Tandem asserting claims for the alleged violation of Mr. Mugridge's rights as a nursing home resident pursuant *532 to section 400.022, Florida Statutes (2001), and for common law negligence....

...order. [6] The petition for writ of certiorari is granted in part and denied in part, and this case is remanded to circuit court for further proceedings consistent with this opinion. RYDER, A.C.J., and CAMPBELL and THREADGILL, JJ., concur. NOTES [1] § 400.022 and 400.023, Fla....

...It includes chapters regulating such diverse professions as medicine, osteopathy, dentistry, nursing, and optics. Noticeably absent is Chapter 400, dealing with "nursing homes and related health care facilities." However, nursing home residents' medical records are also afforded privileged status by § 400.022(1)(h), Fla....

...The common law claims were that First Healthcare negligently failed to provide (a) appropriate protective and support services; (b) proper supervision; (c) a properly maintained physical plant; and (d) adequate systems for Barnes' protection, supervision, and safety. The statutory claims were that First Healthcare violated section 400.022, Florida Statutes (1995), by failing to provide adequate and appropriate healthcare and protective support services by (a) allowing Barnes to wander from the facility unaccompanied; (b) failing to have adequate alarm systems to alert...

...of Florida. *1142 4. Resource Healthcare does not maintain a registered agent for purposes of service of process in the State of Florida. 5. Resource Healthcare has not and has never been the licensee or manager of Glen Oaks Health Care, pursuant to § 400.022, Florida Statutes....

...Florida Statutes (1991). We grant the petition, quash the order under review, and remand for further proceedings. Petitioners, Key West Convalescent Center, Inc., and Care Management, Inc., are defendants in an action based on alleged violations of section 400.022, Florida Statutes (1991), which sets forth the basic standards for nursing home facilities....

...mend the complaint to add a claim for punitive damages. In support of the motion, the Respondent filed the affidavit of Dr. D.W. Frazier in which Dr. Frazier opined that the Petitioners had failed to provide adequate nursing home care as required by section 400.022. The trial court granted the motion and found that under section 400.022 a claim for punitive damages is "allowed without pleading or proving malicious, wanton or willful disregard of the rights of others." The court further found that the affidavit provided a sufficient basis to add the punitive damages claim....

...t there is an evidentiary basis for a punitive damages claim as provided for in *369 section 768.72, Florida Statutes (1991). [1] We agree and hold that section 400.023 should be interpreted to allow recovery of punitive damages for any violation of section 400.022 only where such recovery is warranted under Florida law. Section 400.023 allows the recovery of "actual and punitive damages for any deprivation or infringement on the rights of a resident" provided for in section 400.022....

...Deborah A. Moots, as Personal Representative of the Estate of Ethelwin A. Crisson, deceased. [1] Ms. Moots' complaint asserted multiple claims against the defendants below, including claims that Jaylene had violated the rights of the decedent under section 400.022, Florida Statutes (2000 and 2001)....

...The supreme court distinguished the HMO Act from acts like the nursing home statute, where the legislature expressly recognized a right of nursing home residents to receive adequate health care and a corresponding private right of action for deprivation of the residents' rights. Villazon, 843 So.2d at 852 (citing § 400.022(1)( l ), Fla....

...re provided by Washington Manor. Knowles was transferred to a medical hospital where he later died. Maggie Knowles, the personal representative for Gladstone Knowles, sued Washington Manor for violation of the Patient's Bill of Rights under sections 400.022 and 400.023, Florida Statutes (1997)....

...Thereafter, this court held in Greenfield v. Manor Care, Inc., 705 So.2d 926 (Fla. 4th DCA 1997), appeal dismissed, 717 So.2d 534 (Fla.1998), that section 400.023(1) permits a personal representative to bring a cause of action for damages arising out of violations of section 400.022 regardless of whether the violations caused the death of the resident....

...ew trial. [1] Florida Statutes chapter 400, Part II, Nursing Homes (§§ 400.011-400.335)(1997), provides comprehensive statutory standards for the operation of nursing homes and related facilities and the treatment of residents in those facilities. Section 400.022 furnishes a detailed listing of "[r]esidents' rights." Section 400.023 affords muscle to the Patient's Bill of Rights by establishing a civil cause of action: (1) Any resident whose rights as specified in this part are deprived or inf...

...me negligence which does not cause the resident's death is to nullify section 46.021. 705 So.2d at 933. In receding from the majority holding in Greenfield, we adopt the reasoning of Judge Warner's dissent where she wrote: The rights protected under section 400.022 are rights that are largely personal to the resident of the facility, such as the right to religious liberty, see § 400.022(1)(a), the right to organize and participate in groups in the facility, see § 400.022(1)(e), and the right to manage one's personal affairs, see § 400.022(1)(h) to name a few. The resident also has the right to adequate medical care and proper treatment, see § 400.022(1)( l ) and under section 400.023(1), if the violation of these rights results in a death then, the personal representative of the estate of the deceased resident has a cause of action....

...The court thought the language of the statute was so clear that no historical view or interpretation was necessary. It surmised that the Legislature could reasonably have determined that many of the Chapter 400 rights of nursing home residents spelled out in section 400.022 are personal to the resident, such as the right to organize, participate in groups, manage one's personal affairs, and privacy issues....

...Further, after a resident's death, it could excuse nursing homes from the duties and obligations established by Chapter 400, to provide proper accounting records, cost statements and justifications, and loss of personal property, which are among the other rights provided in Chapter 400.022....

...Plaintiff Reynoso is the guardian of an elderly incompetent, Cathleen Mangan. He has filed an action on her behalf against defendant Greynolds Park Manor, Inc., a nursing home. The lawsuit alleges that the ward suffered personal injury while in the care of defendant nursing home, in violation of section 400.022, Florida Statutes (1993), and the common law duty of care....

...rbitration in accordance with the provisions of the Florida Arbitration Code.... The complaint in this case purports to be an action for damages in excess of $15,000, and for violation of Mr. Alberts' rights as a nursing home resident under sections 400.022 and 400.023, Florida Statutes. The complaint recites in conclusory terms, without underlying factual allegations, violations of section 400.022, a law that details nursing home residents' rights....

...ion of which requires a reference to or construction of some portion of the contract" is clearly erroneous. Even more to the point, the dispute in this case arises out of, or is related to, the admission agreement, because the obligations imposed by section 400.022 do not arise until a person is admitted to a Florida nursing home, presumably under an admission agreement. Section 400.022(2) requires that a written statement of a patient's rights be provided "to each resident or the resident's legal representative at or before the resident's admission to a facility." From this we must conclude that the statutory rights enumerated in section 400.022 arise only as a result of an admission and, hence, an admission agreement, with a nursing home facility....

...law, then a dispute regarding a breach of a contractually-imposed duty is one that arises from the contract.'" Seifert, 750 So.2d at 640 (quoting Dusold v. Porta-John Corp., 167 Ariz. 358, 807 P.2d 526, 531 (Ct.App.1990)). The statutory duties under section 400.022 arose because of Mr....

...s affecting persons other than the plaintiff). In fact, in Gainesville Health Care Center v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003), we upheld an arbitration provision against a claim of unconscionability in an action for negligence brought under section 400.022....

...In that case, we found a similar arbitration clause neither substantively nor procedurally unconscionable and remanded with directions that the trial court compel arbitration. The complaint filed here alleges the nursing home failed to render adequate care to Mr. Alberts, thus resulting in his injury, in violation of section 400.022....

...Following this surgery, he was placed in another nursing home in October 1994. Mr. Freeman filed this civil enforcement action, alleging that he had sustained "actual" damages as a result of various violations of his nursing home residents' rights. § 400.023(1), Fla. Stat. (1993). Those rights, enumerated in section 400.022, Florida Statutes (1993), are extensive and diverse. For example, the statute provides that a resident has a right "to be treated courteously, fairly, and with the fullest measure of dignity." § 400.022(1)(n), Fla....

...maintain records and to make records available for inspection and copying). Finally, we note the trial court correctly rejected Mr. Freeman's argument that the verdict was against the manifest weight of the evidence. Because the various rights under section 400.022 were not individually identified on the verdict form, neither the trial court nor this court knows what violation the jury found....

...The terms of the agreement were never explained to her. We also find that the limitations found in the arbitration agreement appreciably diminish the statutory rights granted under Chapter 400 of the Florida Statutes. As the Romano court stated: "Sections 400.022 and 400.023 are remedial statutes, designed to protect nursing home residents. The Nursing Home Resident's Rights Act, section 400.022, was originally enacted after a Dade County Grand Jury investigation of nursing homes revealed substantial elder abuse occurring in many nursing homes without any remedial action being taken. [Citation omitted.] The law set up rights of residents, including the right to appropriate medical care, and requires nursing homes to make public statements of the rights and responsibilities of the residents. See § 400.022(1)....

...arpon Springs), Inc., d/b/a IHS of Tarpon Springs, Paul Vitale, Steven Webber, Anita Hoffman, Cindy Burton, Susan Nosworthy, Cheryl Seronick, Kim Adams, and William Householder in the Estate's lawsuit for negligence, wrongful death, and violation of section 400.022, Florida Statutes (1997), the nursing home residents' rights statute....

...the Facility for unpaid nursing home charges, or a claim by a Resident, arising out of the care or treatment received by the Resident at the Facility, including, without limitation, claims for medical negligence or violation(s) of Florida Statutes §§ 400.022, et seq., arising from simple or gross negligence, shall be limited as follows: 1....

...damages. There, we ruled as follows: Based on the foregoing, we conclude that the limitations of remedies provisions in the present case violate public policy, for they directly undermine specific statutory remedies created by the Legislature. See §§ 400.022, 400.023, Fla. Stat. (2003). This conclusion comports with the vast weight of authority in Florida, as discussed above. The Fourth District Court of Appeal in Romano v. Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003), explained succinctly: Sections 400.022 and 400.023 are remedial statutes, designed to protect nursing home residents. The Nursing Home Resident’s Rights Act, section 400.022, was originally enacted after a Dade County Grand Jury investigation of nursing homes revealed substantial elder abuse occurring in many nursing homes without any remedial action being taken....

...y Medical Care, Inc., Suncoast Neurosurgical Center, Inc., and Dr. Albert W. Auld, a neurosurgeon. Mr. Cascio also sued National Healthcorp for negligence and for violations of the statutory protections provided to nursing home residents pursuant to section 400.022, Florida Statutes (1991)....

...Cascio's claim that National Heathcorp had violated his statutory rights. National Heathcorp raised defenses that included the comparative fault of several defendants who were no longer active parties. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). The statutory rights enumerated in section 400.022 are quite wide-ranging....

...KELLY, Judge. The estate of Opal Hicks sued the appellant nursing home, Carrington Place of St. Pete, LLC, its employees, and others alleging negligence, wrongful death, breach of fiduciary duty, and violations of Ms. Hicks' rights as a resident under section 400.022, Florida Statutes (2007)....

...Mikesell while a resident at Westminster, Count I was framed as a survival action and alleged that Mr. Mikesell's injuries and, ultimately, his death were a direct and proximate result of Westminster's failure to provide adequate and appropriate care as required by Mr. Mikesell's nursing home resident rights set forth in section 400.022, Florida Statutes (2001)....

...its by staff members, that does not mean that they have agreed to have lawyers, photographers, and vidographers invading their privacy. Beverly relies in part upon the Florida Constitution's right to privacy under Article I, § 23. It also points to section 400.022(m), Florida Statutes, which guarantees a resident of nursing homes a right to privacy....

...Beverly also notes that assuming that the proximity of Deutsch's former rooms to the nurse's station is an issue, that matter can be addressed by blueprints and measurements without going into a resident's private room. The first issue is the extent of the right to privacy of the other residents of the nursing home. Section 400.022(m), Florida Statutes, guarantees: The right to have privacy in treatment and in caring for personal needs; to close room doors and to have facility personnel knock before entering the room, except in the case of an emergency or unless...

...Martinez, The Nursing Home Residents' Rights Act—A Good Idea Gone Bad!, 26 Stetson L.Rev. 599 (1996) (arguing that while the law is well-intended, it goes too far in its punitive effect); H. Glenn Boggs & Ken Connor, Nursing Home Tort Victims—Rights & Remedies, 63 Fla. B.J. 11 (Feb.1989) (listing patients' rights under § 400.022, including the right to privacy)....

...Pretrial Discovery Proceedings The plaintiff proceeded on the theory that National did not properly care for Mr. Cascio during his residence at National's facility from July 8 to July 15, 1992. The plaintiff's case focused primarily on alleged violations of the protections afforded patients under section 400.022, Florida Statutes (1991)....

...om December 4, 1992, until her death on September 4, 1997. The plaintiff's complaint is not a wrongful death action, but rather a survival action for negligence. It alleges that the Cambridge Convalescent Center violated various rights enumerated in section 400.022, Florida Statutes (1997), and claims that Ms....

...At the time article X, section 25, was passed, there was a long-standing distinction drawn between nursing home "residents" and health care "patients." Section 381.026 was the Florida Patient's Bill of Rights and Responsibilities. Nursing homes residents, however, had their own separate enumeration of rights. See § 400.022, Fla....

...Ferrera of Quintairos, McCumber, Prieto & Wood, P.A., Tampa; and Kendra D. Presswood of Law Office of Kendra D. Presswood, P.A., Bradenton, for Petitioners. Susan B. Morrison and Amy J. Quezon of Wilkes & McHugh, P.A., Tampa, for Respondent. ALTENBERND, Judge. The petitioners, defendants in an action filed pursuant to section 400.022, Florida Statutes (1997), seek a writ of certiorari requiring the plaintiff, Pauline *1109 Lang-Redway, as personal representative of the Estate of Albert W....

...prior to commencing an action in circuit court. We deny the writ. In an effort to clarify our ruling in NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991), we hold that a plaintiff who chooses to allege only a statutory claim under section 400.022 and does not also allege a common law claim for medical negligence is not required to comply with the presuit requirements of section 766.106, Florida Statutes (1997)....

...mmon law claim for medical negligence, we conclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400. Compare § 400.022(1)( l ), Fla. Stat. (1997), with § 766.102(1), Fla. Stat. (1997). If the legislature wishes to establish additional presuit requirements for nursing home claims under section 400.022(1)( l ), it must create a procedure that expressly applies to these statutory claims....

...April 1998. Mr. Redway allegedly suffered from pressure sores at both nursing homes and ultimately had his left leg and his right big toe amputated. The complaint alleges violations of Mr. Redway's rights as a nursing home resident exclusively under section 400.022....

..." as a defendant. See § 766.102(1), Fla. Stat. (1997) (citing § 768.50(2)(b), Fla. Stat. (1985) [1] ). Although the complaint alleges that Mr. Redway did not receive adequate and appropriate health care at the facilities as a statutory claim under section 400.022(1)( l ), the plaintiff does not allege *1110 any common law theory attempting to make the defendants vicariously liable for a breach of a professional standard of care by a health care provider....

...The defendants misread NME Properties as requiring compliance with the presuit requirements of chapter 766 when a plaintiff alleges only a breach of the statutory "right to receive adequate and appropriate health care and protective and support services" under section 400.022(1)( l )....

...Florida's policies favoring access to courts, however, weigh against interpreting the presuit conditions in chapter 766 to regulate statutory rights not mentioned in chapter 766. Nothing in section 766.106 compels this court to read that statute in an expansive manner to include claims filed under section 400.022(1)( l )....

...We would not wish to cause a plaintiff to suffer prejudice by relying upon this case if the Florida Supreme Court were later to disagree with our analysis. Accordingly, we certify the *1112 following question of great public importance: IF A PLAINTIFF FILES A LAWSUIT SEEKING TO ENFORCE ONLY THOSE RIGHTS ENUMERATED IN SECTION 400.022, MUST THE PLAINTIFF COMPLY WITH THE PRESUIT CONDITIONS IN SECTION 766.106? The trial court did not depart from the essential requirements of the law....

...ied from complications a short time later. [1] The personal representative filed suit for wrongful death and for violation of Florida's nursing home statute. The nursing home statute creates a "right to receive adequate and appropriate health care," § 400.022(1)( l ), Fla....

...right pneumothorax, subdural hematoma, and subarachnoid hemorrhage. She alleged that those injuries caused or contributed to Payson's death on December 15, 2003. The complaint alleged that Avante violated the patients' resident rights guaranteed by section 400.022, Florida Statutes, the Florida Administrative Code, OBRA [1] regulations, as well as the common law standard of care....

...close calls" by the trial judge. We find no reversible error. Having made this determination, the denial of the motion for directed verdict was proper based on the conflicting evidence presented. *648 Beverly also challenges the constitutionality of section 400.022, Florida Statutes (1993), and asserts that the statute is vague and violates the doctrine of separation of powers. On the issue of vagueness, section 400.022, entitled "Residents' rights" is a detailed enactment intended to ensure safe, adequate and appropriate care, treatment, and health of persons in nursing homes. It defines in detail the rights of such persons ranging from the right to have private and uncensored communications with others to the right to select one's own personal physician. Section 400.022 also includes terms such as "adequate and appropriate health care" and the right to be "treated courteously, fairly and with the fullest measure of dignity." It is these terms and other similar terms which Beverly contends are too vague and ambiguous to establish an enforceable standard of care....

...rding to the circumstances existing at each crossing." 235 So.2d at 299. For constitutional purposes, the court was satisfied with a "common sense interpretation" of the term. We have examined each of the complained-of words and phrases contained in section 400.022 and find them all to be terms of common usage and understanding. Specifically, with regard to "adequate and appropriate," the statute makes clear that the care provided by nursing homes must be "consistent with the [nursing home's] resident care plan." § 400.022(1)( l ), Fla. Stat. (1993). Since nursing homes, themselves, prepare such plans, they surely have notice of the requirements of these plans. Further, chapter 400 specifically defines "resident care plan." § 400.021(15), Fla. Stat. (1993). Finally, section 400.022(1)( l ) directs that the requisite care must be consistent "with rules promulgated by the department." The Department of Health and Rehabilitative Services promulgated extensive regulations that detail the responsibilities of nursing homes toward their residents. See Fla. Admin. Code Rule 59A-4.100 through 59A-41.29. The statute is not unconstitutionally vague. Beverly next challenges section 400.022 as an unconstitutional delegation of legislative authority to the Agency for Health Care Administration. Section 400.022(1)( l ), Florida Statutes (1993), provides that residents shall have: The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; plan...

...The specificity of the standards and guidelines the legislature provides may depend upon the subject matter at issue and "the degree of difficulty involved in articulating finite standards." Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). It is this principle which we deem controlling as to section 400.022(1)( l )....

...ed out. See State v. Dale, 775 S.W.2d 126, 130 (Mo.1989) (explaining that "[i]t would be impracticable to include the myriad and constantly changing requirements of care in the statute" governing neglect of nursing home residents). We determine that section 400.022(1)( l ) is not an unlawful delegation of legislative authority....

...See Integrated Health Care Servs., Inc. v. Lang-Redway (Integrated I), 783 So.2d 1108 (Fla. 2d DCA 2001), approved, 840 So.2d 974 (Integrated II) (Fla.2002). In Integrated I, the plaintiff sued a nursing home, alleging a claim for violation of nursing home residents’ rights under section 400.022, Florida Statutes. The complaint alleged that the decedent suffered from pressure sores while residing at the nursing home. He ultimately had his left leg and right big toe amputated. The relevant portion of section 400.022 gave residents [t]he 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. § 400.022(1)(Z), Fla....

...The nursing home moved to dismiss the complaint, arguing that the plaintiff was required to comply with the medical malpractice presuit requirements. The Second District disagreed, holding: [A] plaintiff who chooses to allege only a statutory claim under section 400.022 ... is not required to comply with the presuit requirements of section *494 766.106.... Although there may be some overlap between the [section 400.022(1)(£) ] statutory right to “receive adequate and appropriate health care” and the common law claim for medical negligence, we conclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to commo...

...The court explained: Florida’s policies favoring access to courts ... weigh against interpreting the presuit conditions in chapter 766 to regulate statutory rights not mentioned in chapter 766. Nothing in section 766.106 compels this court to read that statute in an expansive manner to include claims filed under section 400.022(l)(i)....

...& Design, Inc., 423 So.2d 518 (Fla. 5th DCA 1982). . The Baker Act provides for involuntary commitment of persons based on mental illness. See Ch. 394, Pt. I, Fla. Stat. (2008). . See § 394.459. .Chapter 766. . Although the Supreme Court limited its holding to claims under section 400.022, id....

...and neglect, and suffered physical and mental pain as a direct and proximate result of the actions or inactions of Fairview Manor, and their agents and employees. The complaint alleged further that Mr. Jackson was denied his resident's rights under section 400.022, Florida Statutes (2000), and consequently suffered various physical injuries including, but not limited to, decubitus ulcers and gangrene resulting in amputation, dehydration, scarring and disfigurement....

...NOTES [1] Because of our ruling herein, we do not reach the issue of whether disclosure of the names and addresses of patients of a nursing home, without more, improperly invades the right of privacy of the nonparty residents. We would note, however, that section 400.022(1)(m), Florida Statutes, creates a zone of personal privacy for residents confined in nursing homes, including confidentiality of personal and medical records....

...Appellant filed a complaint against Morse in August 1997 alleging willful disregard of advance health care directive under chapter 765, Florida Statutes (1995), willful disregard of the federal patient self-determination act, common law intentional battery, and violation of the Nursing Home Resident's Rights Act (section 400.022(1), Florida Statutes (1995))....

...) it ignores the illogical effect such an interpretation of the phrase has upon the provisions of 400.023(4) which expressly contemplates deprivations of the right to refuse care that result in death; (3) it renders the NHRRA right to refuse care of section 400.022(k), Florida Statutes (1995), meaningless; (4) it creates an unconstitutional requirement; and (5) it discriminates unfairly against those who express their constitutional right to health care self-determination by prohibiting life-prolonging treatment....

...We reverse the final judgment and remand for a new trial. Caulie Jackson Murray, Sr., was a resident of a nursing home operated by Delta when he died in February 2003. In March 2004, the Estate filed a complaint against Delta alleging violations of Mr. Murray's nursing home residents' rights under section 400.022, Florida Statutes (2002), as well as negligence and wrongful death....

...order would cause irreparable harm not remediable on direct appeal due to the disclosure of identifying personal information of residents in violation of both their Florida Constitutional right to privacy, embodied in Art. I, section 23, as well as § 400.022(l)(m), Fla....

...reme Court: MAY A PERSONAL REPRESENTATIVE BRING A STATUTORY CAUSE OF ACTION UNDER SECTION 400.023(1), FLORIDA STATUTES (1997), ON BEHALF OF A DECEASED RESIDENT OF A NURSING HOME FOR ALLEGED INFRINGEMENT OF THE RESIDENT'S STATUTORY RIGHTS PROVIDED BY SECTION 400.022, FLORIDA STATUTES (1997), WHERE THE INFRINGEMENT HAS NOT CAUSED THE RESIDENT'S DEATH? We are aware that there are numerous claims currently pending throughout the state based upon our holding in Greenfield v....

...nces. We affirm, however, the trial court's refusal to set aside the punitive damages award. We review an order granting a new trial under the abuse of discretion standard. Millar Elevator Serv. Co. v. McGowan, 819 So.2d 145, 151 (Fla. 2d DCA 2002). Section 400.022, Florida Statutes (2000), guarantees residents of nursing home facilities numerous rights, including but not limited to the right to be adequately informed of one's medical condition and the proposed treatment, the right to refuse med...

...[4] The court in Blankfeld explained: A remedial statute is one which confers or changes a remedy. Campus Communs., Inc. v. Earnhardt, 821 So.2d 388 (Fla. 5th DCA 2002). The Nursing Home Resident's Act is remedial. Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004). The "Residents Rights" provisions in section 400.022 were enacted in 1980 to respond to a Dade County Grand Jury investigation of nursing homes which revealed detailed evidence of substantial elder abuse occurring in nursing homes....

...from any criminal or civil liability therefor, unless that person has acted in bad faith, with malicious purpose, or if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. § 400.022(4), Fla....

...On the first of these issues, the Supreme Court held that the limitation-of-remedies provisions violated public policy. Id. at 471-75. The Court reasoned that the limitation-of-remedies provisions “directly un-derminted] specific statutory remedies created by the Legislature,” sections 400.022 and 400.023, Florida Statutes (2003), which were designed to provide nursing home residents with remedies against abuse at the hands of their nursing homes. Id. at 474. The resident’s bill of rights articulated in section 400.022 was backed up by the remedies, including punitive damages, in section 400.023....

...absence of any physical impact is irrelevant in this case. As to Count III, she argues that under the particular circumstances of this case she did not have to allege reliance in her claim of fraud and deceit. Finally, she contends the provisions of Section 400.022, Florida Statutes, became part of the contract, and Turtle Creek breached this provision....

...d for a violation of the duty of honesty and fair dealing which the law enjoins upon one in his transactions with another." 37 Am.Jur.2d "Fraud and Deceit" § 6. Appellant now asserts that the breach of contract stemmed from a failure to comply with Section 400.022, Florida Statutes, which was part of the contract by virtue of the rule that the laws of the state are part of every contract, however, the count for breach of contract did not rest on this basis and the possibility of breach by noncompliance with Section 400.022, which appellant now argues, was not specifically presented to the lower court. The incorporation by reference of Count I, in which Section 400.022 was mentioned briefly, but without regard to any alleged breach of contract, was insufficient to place the matter before the lower court for consideration....

...The intent of the Florida Legislature was not to include an action such as the one at issue, within Chapter 400.” The trial court apparently concluded that appellant had not alleged a violation of any of the statutory rights guaranteed to nursing home residents under section 400.022(1), Florida Statutes (1997), but, instead, had made a claim for medical negligence. Section 400.022(1), Florida Statutes (1997), establishes statutory rights for nursing home residents. Of the many rights that are enumerated in the statute, appellant alleged that his right to receive adequate and appropriate healthcare and protective and support services was violated. See § 400.022(l)(O- Section 400.023, Florida Statutes (1997), provides that, (1) Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation....

...Thus, based on Florida law and the plain language of the statute under consideration, it was error for the trial court to grant summary judgment in favor of ap-pellee. Appellant has sufficiently alleged *1000 violations of rights which are guaranteed him under section 400.022....

...[1] One of these documents was titled "Voluntary Arbitration and Limitation of Liability Agreement" (the Agreement). Five months after her admission, Ms. Halloran died. Eleven months later, her estate filed a lawsuit against Manor Care, alleging violations of the Nursing Home Residents Act. See §§ 400.022, .023, Fla....

...g interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429, or a claim for unpaid nursing home or related charges), shall be submitted to final and binding arbitration....

...me for the legislature to regulate the content of such agreements—which should primarily provide dispute resolution procedures—because they are actually being used to eliminate substantive rights and remedies created by the Legislature in sections 400.022 and 400.023, Florida Statutes, for the protection of some of our most vulnerable citizens....

...g interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429, or a claim for unpaid nursing home or related charges), shall be submitted to final and binding arbitration....

...y the Facility for unpaid nursing home charges, or a claim by a Resident, arising out of the care or treatment received by the Resident at the Facility, including, without limitation, claims for medical negligence or violation(s) of Florida Statutes § 400.022, et seq., arising from simple or gross negligence, shall be limited as follows: 1....

...The estate argues that the causes of action are entirely separate and distinct but we disagree, at least given the pleadings in this case. Further buttressing our conclusion is the fact that shortly after the estate filed this lawsuit, the Legislature clarified its intent in enacting section 400.022 when it amended section 400.023(2) to provide that a violation of section 400.022, Florida Statutes, is not considered negligence per se: Nothing in this part shall be interpreted to create strict liability. A violation of the rights set forth in section 400.022 or 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 shall be evidence of negligence but shall not be considered negligence per se....

...The individual has been identified by other witnesses as the roommate of the decedent and the person who alerted decedent’s family member of *712 specific nursing home staff interactions with the decedent. Delta asserts in its petition that the trial court’s order departs from the essential requirements of section 400.022, Florida Statutes, which provides that nursing home residents’ “personal and medical records” are confidential. § 400.022(l)(m), Fla....

support services,” which the facility had to honor. § 400.022, Fla. Stat. The chapter also establishes an “exclusive

...Accordingly, we affirm the order compelling arbitration but remand for the trial court to strike the attorneys' fees provision from the arbitration agreements. In 2015, Hochbaum filed a three-count complaint against the nursing home defendants. Count one alleged negligence in violation of section 400.022, Florida Statutes (2013), count two alleged a breach of fiduciary duty, and count three alleged violations of section 415.1111, Florida Statutes (2013)....

...She is alleged to be incapacitated by virtue of her health, and somewhat mentally impaired. She has not been judicially declared incompetent. In July, 1990, she fell at Brookwood and sustained serious injury. Her son, Roberto Garcia, acting as her next friend, sued Brookwood on her behalf for negligence and for violation of section 400.022, Florida Statutes (1993), known as the Nursing Home Residents’ Bill of Rights....

...The fact that TMRMC admitted Ms. Fields gives rise to an inference that its emergency room personnel concluded that her condition required emergency care. Lastly, state statute makes clear that any cause of action arising from a violation of the rights afforded patients under § 400.022 of the Florida Statutes is personal to the patient....

...Valdez and Vilma Martinez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for appellee. GROSS, J. Elizabeth Snyder disagreed with appellee Meridian Park Village Limited Partnership concerning her access to her 92-year-old mother. She moved for an injunction pursuant to sections 400.022 and 400.023, Florida Statutes (2019)....

...settlement agreement. Snyder filed an emergency motion to enforce the settlement agreement. 1Although Snyder referenced sections 400.422 and 400.423, Florida Statutes, in her request for an injunction, it appears that she meant to refer to sections 400.022 and 400.023.  We have carefully reviewed the thoughtful order of the circuit court and conclude that it acted reasonably to address Snyder’s concerns amid the constraints imposed by the pandemic. We do not reach an issue Snyder raised on appeal—that the Governor lacked the authority to suspend the rights provided by section 400.022— because she did not raise this issue in the circuit court. Affirmed. LEVINE, C.J., and ARTAU, J., concur. * * * Not final until disposition of timely filed motion for rehearing....

...mer and employee complaints. Mariner argues that the logs are privileged. We grant the petition and quash the circuit court’s order. Ada Best (Best) filed an action against Mariner, asserting a violation of a nursing home resident’s rights under section 400.022, Florida Statutes (2003)....

...Appellant’s final amended complaint consisted of three counts, two for compensatory damages based upon negligence theories, and one for compensatory and punitive damages, attorneys fees and costs based upon appellee’s violation of appellant’s rights guaranteed under sections 400.022 and 400.023, Fla.Stat....

...nd her personal representative, Mr. Larry Hoak, was substituted as plaintiff. However, the style of the case was never changed. . Section 400.023 provides that a nursing home resident may maintain a cause of action to enforce rights guaranteed under section 400.022 and to recover actual and punitive damages for any deprivation or infringement of those rights....

...93-217, § 4, at 2259-60, Laws of Fla. First, it created a separate pre-suit investigatory requirement for cases brought under Chapter 400, which provides, Claimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to s. 400.022(1)(k) which resulted in personal injury to or the death of a resident shall conduct an investigation which shall include a review by a licensed physician or registered nurse familiar with the standard of nursing care for nursing home residents pursuant to this part....

...tatutes affecting the same subject matter. Inciarrano v. State, 447 So.2d 386 (Fla. 4th DCA 1984), quashed on other grounds, 473 So.2d 1272 (Fla.1985). Here, the nursing home statute creates a "right to receive adequate and appropriate health care," § 400.022(1)( l ), Fla....