Florida/Georgia Personal Injury & Workers Compensation

...We have for review Beverly Enterprises — Florida, Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000) (en banc). 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....

...approve the decision of the Fourth District Court of Appeal. STATEMENT OF THE CASE & FACTS The personal representative of the estate of Gladstone Knowles, deceased, filed an action against Beverly Enterprises seeking damages under the provisions of section 400.023(1), Florida Statutes (1997), which provides: 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....

...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)....

...Washington Manor moved for summary judgment because the complaint did not allege that any violation of the statute caused Gladstone's death. Appellee conceded that Gladstone's death did not result from any of the alleged violations of the Patient's Bill of Rights. Interpreting section 400.023(1) to preclude actions by a personal representative when the patient's death is not caused by a deprivation of rights under the statute, the trial court granted appellant's motion for summary judgment....

...new trial. The new trial order relied upon a newly rendered decision from the Fourth District. 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....

...oner's motion for a new trial. Upon subsequent review, however, the Fourth District receded from its earlier decision in Greenfield and reversed the trial court's order for a new trial. The district court, sitting en banc, held that "the language of section 400.023 unambiguously provides that a personal representative of a deceased, nursing home resident may bring a cause of action against the nursing home for violation of the Patient's Bill of Rights only when the deprivation or infringement of the resident's rights caused the patient's death." Knowles, 766 So.2d at 336....

...It reasoned: The trial court dismissed count VII on the basis that appellant did not allege that her husband's death resulted from the deprivation or infringement of his rights under Chapter 400. We do not agree with that interpretation of the statute. On one level, section 400.023 lends itself to the interpretation espoused by the trial court, that is, that suits by personal representatives on behalf of deceased residents are allowed only when the nursing home's alleged negligence caused the resident's death. On the other hand, we do not think that such an interpretation was intended by the Legislature in light of section 46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person." To construe section 400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section 46.021. See generally Beverly Enterprises — Florida, Inc. v. Estate of Maggiacomo, 651 So.2d 816 (Fla. 2d DCA), quashed on other grounds, 661 So.2d 1215 (Fla.1995) (personal representative sued on behalf of deceased resident under section 400.023 for deprivation of nursing home rights for theft of diamond ring which was allegedly forced from finger of resident causing bruises; resident died of unrelated causes); Arthur v....

...denied, 613 So.2d 4 (Fla.1992) (when death results from complained-of injuries, The Wrongful Death Act applies; when death results from an independent cause, claim is preserved by section 46.021, the survival of actions statute). As such, we hold that section 400.023, Florida Statutes (1993), must be read in pari materia with section 46.021, Florida Statutes (1993) in order to reach a logical result....

...pate 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....

...s, it may have been part of the legislative bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section 400.023(1) was enacted long after section 46.021 and I do not see how the two can be harmonized.......

...obvious meaning." Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Accordingly, we begin our analysis by first determining the plain meaning of the pertinent language in section 400.023(1), Florida Statutes (1997), which provides: 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....

...onal representative of the estate of the deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights. (Emphasis added.) [1] The district court, and the trial court in its initial ruling, held that section 400.023(1) unambiguously *6 states that a cause of action may be filed by the personal representative of a deceased resident only when the death resulted from a violation of the rights under chapter 400....

...Knowles, 766 So.2d at 337. It provides that a personal representative of the estate of a deceased resident may bring a cause of action against a nursing home only when the death of the resident resulted from the deprivation or infringement of the decedent's rights. Hence, section 400.023(1), when read by itself, clearly limits the circumstances upon which a personal representative may sue for violation of the decedent's rights....

...h resulted from the deprivation or infringement of the decedent's rights may bring an action for damages under the statutory rights scheme. Legislative Intent Notwithstanding the above, petitioner contends that the district court's interpretation of section 400.023 is contrary to the Legislature's intent....

...urpose to be achieved by the legislation."); State v. Egan, 287 So.2d 1, 4 (Fla.1973) ("[T]he purpose of all rules relating to the construction of statutes is to discover the true 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). Accordingly, she asserts, even if the "plain meaning" of the specific language in section 400.023(1) appears to prevent petitioner in the instant case from bringing a statutory cause of action, courts should at least question if the plain meaning of section 400.023(1) is what the Legislature intended. Remedial Statutes Should be Liberally Construed Petitioner contends that section 400.023(1) is remedial in nature and therefore should be liberally construed....

...e and promote access to the remedy intended by Legislature); see also Golf Channel v. Jenkins, 752 So.2d 561, 566 (Fla.2000) (liberally construing Whistle-Blower Act in favor of granting access to remedy provided by Legislature). As mentioned above, section 400.023(1) provides a remedy to those residents whose rights have been deprived or infringed upon by the nursing home....

...l representative of the estate of a deceased resident whose death did not result from a violation of the act but who was injured by said violation. However, it is apparent that such an interpretation would alter the clear and unambiguous language of section 400.023(1) by either injecting a different circumstance upon which suit may be brought or by ignoring the language expressly used in the statute....

...d, modify, or limit, its express terms or its reasonable and obvious implications. " Holly, 450 So.2d at 219 (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). Thus, while petitioner is correct that section 400.023(1) should be liberally construed, such construction does not mean that this Court may rewrite the statute or ignore the words chosen by the Legislature so as to expand its terms. See id. Consideration of Related Statutes Petitioner also contends that courts should avoid interpreting a statute in a *8 way that would render related statutes meaningless. 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....

...the decedent's estate within thirty days. Petitioner argues that because this right does not become effective until the death of the resident and because the violation of this right would never lead to death, this right would not be actionable under section 400.023(1) as construed by the court below, thereby rendering it meaningless....

...604 So.2d at 455. 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....

...unds, and if not, to the resident's spouse or adult next of kin named in a beneficiary designation form provided by the nursing home to the resident. 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). Wrongful Death Act and Survival Statute Next, petitioner argues that the court below ignored the legislative intent of section 400.023(1) as evidenced by (1) existing law and (2) the legislative history of the statute....

...The estate may also recover loss of earnings of the deceased and medical and funeral expenses. See § 768.21, Fla. Stat. (1997). Petitioner argues that the court below erroneously applied the canon of statutory construction that the specific statute controls over a general statute, when it should have read section 400.023(1) in harmony with section 46.021....

...However, as noted by the Third District, "[t]here must be a hopeless inconsistency before rules of construction are applied to defeat the plain language of one of the statutes." Agency for Health Care Admin. v. Estate of Johnson, 743 So.2d 83, 87 (Fla. 3d DCA 1999). On the one hand, section 400.023, as written by the Legislature and construed by the court below, might appear to extinguish a statutory cause of action for those claimants in petitioner's position; the district court's interpretation of section 400.023 precludes a personal representative's ability to bring a survival action based on the statutory cause of action where death was not the result of a violation of the act....

...onal representatives only under certain circumstances, we conclude the Legislature had the authority both to determine the extent of the statutory right and to prescribe or limit the remedies available for a violation of the right. More importantly, section 400.023(1) does not "cut off" a deceased resident's right to bring a cause of action. Section 400.023(1) states that "[t]he remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency." § 400.023(1), Fla. Stat. (1997). Thus, in actuality, section 400.023(1) does not negate or extinguish a cause of action that would otherwise exist as among "other legal and administrative remedies." Rather, such resident (or estate) can bring a common law negligence action as was done in this case....

...Furthermore, in addition to common law negligence, the facility may be liable depending on the particular facts, under the theories of common law intentional torts, like battery, or abuse of a vulnerable adult under section 415.1111, Florida Statutes (1997). *10 Thus, section 400.023(1) does not necessarily conflict with section 46.021....

...ablish 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. [3] Thus, while petitioner's statutory claim under section 400.023(1) may have been dismissed, the trial court permitted petitioner to proceed in a manner substantially similar to the statutory cause of action. [4] Legislative History Finally, petitioner argues that the district court's interpretation of section 400.023(1) is inconsistent with the legislative purpose and legislative history of the statute....

...In that instance, it is well settled that courts will consider the "history of a statute as an aid in determining the Legislature's intent." Id. However, the Fourth District quite properly ruled that it would not consider the legislative history of the statute because it found that "section 400.023(1) is clear and, thus, leaves no room for resort to a consideration of legislative history to determine its meaning." Knowles, 766 So.2d at 337....

...The issue here is whether, when a nursing home resident dies, the personal representative may bring an action under the statute only when the cause of death resulted from the deprivation or infringement of the decedent's rights. I think the statute clearly answers that question "yes." The statute in question, section 400.023(1), Florida Statutes (1997) (emphasis added), provides as follows: 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....

...The statute allows a personal representative of the estate of the deceased resident to sue "when the cause of death resulted from the deprivation or infringement of the decedent's rights." The district court, sitting en banc, reading this same language, unanimously concluded that "the language of section 400.023 unambiguously provides that a personal representative of a deceased, nursing home resident may bring an action against the nursing home for violation of the Patient's Bill of Rights only when the deprivation or infringement of the resident's rights caused the patient's death." Beverly Enterprises-Florida, Inc....

...Reading the plain language of the WDA, the First District in Williams correctly recognized that the Act did not eliminate survival claims for pain and suffering or other damages for injuries not resulting in death. 471 So.2d at 629. The "when" clauses in the WDA and section 400.023(1) are similarly worded....

...ct resulted in death, not the survival of actions for wrongful conduct which has not resulted in death, which is the question presented in this case. Therefore, I dissent. 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....

...In response to public criticism that the then-existing nursing home oversight system did not include adequate provisions for enforcement, the Legislature included a "private *15 attorney general" section in the statutory scheme. At the time of the enactment of this important enforcement concept in 1980, section 400.023 provided: Any patient whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any facility responsible for the violation. The action may be brought by the patient or his guardian or by a person or organization acting on behalf of a patient with the consent of the patient or his guardian ... to enforce such rights.... § 400.023, Fla. Stat. (1981). At the time section 400.023 became operative, section 46.021 had been in effect as Florida's survival statute for decades....

...Obviously, in Martin, the Supreme Court wished to continue one's right to maintain an action for damages where death was not the result of injuries sustained. 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....

...[7] See § 768.20, Fla. Stat. (1997) (providing "[w]hen a personal injury to the decedent results in his death, no action for personal injury shall survive, and any such action pending at the time of death shall abate"). Thus, under the original provisions of section 400.023, along with Florida's survival and wrongful death statutes, in the scenario in which a nursing home resident's rights were violated and he or she 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....

...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....

...ulted 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. The statute was amended to state: The [section 400.023] action may be brought by the resident or his guardian, by a person or organization acting on behalf of the resident with the consent of the resident or his guardian, or by the personal representative of the estate of a deceased resident when the cause of *18 death resulted from the deprivation or infringement of the decedent's rights. § 400.023, Fla....

...For a number of reasons, it is necessary to at least refer to the legislative intent and history of the statutory provision at issue, due to the conflict created by the arguments asserted by care providers with regard to the language selected by the Legislature for the 1986 amendment to section 400.023. First, as may be recognized by considering the text of section 400.023, the arguments presented by the care providers would cause the statute itself to become internally inconsistent....

...The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of the resident. Thompson v. Kindred Nursing Ctrs. East, LLC, 211 F.Supp.2d 1345, 1349 (M.D.Fla.2002) (quoting § 400.023, Fla....

...The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation. Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982) (quoting Gay v. Canada Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952)) (emphasis supplied). While the language added to section 400.023 in 1986 was clearly intended only to provide a remedy for the situation in which the violation of a nursing home resident's rights resulted in death, the amendment has now been argued to totally disallow survival claims filed by an es...

...Manor Care, Inc., 705 So.2d 926, 933 (Fla. 4th DCA 1997). In Beverly Enterprises-Florida, Inc., v. Maggiacomo, 651 So.2d 816 (Fla. 2d DCA 1995), quashed, 661 So.2d 1215 (Fla.1995), the underlying action was based upon a claim of a personal representative pursuant to section 400.023 for pre-death injuries sustained in a nursing home prior to a death for unrelated causes, as is the present case....

...Unicare Health Facilities, Inc., 602 So.2d 596 (Fla. 2d DCA 1992), the court also reversed a summary judgment in favor of a nursing home with the majority permitting an action to proceed, as described in the dissent, for recovery by an estate under section 400.023, alternatively for injuries prior to death that did not cause death....

...olve and disappear simply because those injuries and deprivations cannot be directly causally connected to death, the court in Estate of Youngblood v. Halifax Convalescent Center Ltd., 874 So.2d 596 (Fla. 5th DCA 2004), reasoned that the language of section 400.023 is at best unclear....

...onstrued the provision differently, even though they have later altered the position, ambiguity and conflict necessitating the gathering of all possible information to ascertain the Legislature's original intent exists. The statutory language within section 400.023 which is argued to provide for the elimination of causes of action filed by estates for the violation of chapter 400 prior to the decedent's death due to other causes certainly conflicts with section 46.021 of the Florida Statutes, which provides that "no cause of action dies with the person." § 46.021, Fla....

...njured party, and a separate statutory provision provides that " no cause of action dies with the person" and "all causes of action survive." Because at least three distinct reasons exist upon which to utilize reference to the legislative history of section 400.023 in the instant case, I specifically contest and disagree with the concurring view's statement that "we [need not] resort to legislative history ......

...Lusk, 356 So.2d 1309, 1311 (Fla. 2d DCA 1978) (concluding that "the legislature did not, in fact, impliedly abolish the survival statute by enacting the wrongful death act"). It is my view that the majority's interpretation, as well as the concurring view, of section 400.023 in the instant case contravenes the express purposes for which the Legislature amended this statutory provision in 1986 and is without logical analysis. According to the construction given section 400.023 by the majority and concurring views today, the language inserted into this legislation in 1986 is transformed from the intended and logical text to also clearly recognize civil actions by personal representatives into a statutory roa...

...See James Talcott, Inc. v. Bank of Miami Beach, 143 So.2d 657, 659 (Fla. 3d DCA 1962) (stating "we are not free to add words to [a statute to] steer it to a meaning and limitation which its plain wording does not supply"). Indeed, under today's decision, the language of section 400.023 is supplemented in the following fashion: *22 "The action may be brought by the resident or his guardian, by a person or organization acting on behalf of the resident with the consent of the resident or his guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights," § 400.023, Fla....

...It is extraordinarily twisted that the Legislature's attempt to shield the elderly from abuse through an expansion of the right of estates to file actions for conduct causing death is today used as a weapon against the survival rights of former nursing home residents' estates. The 1986 amendment of section 400.023(1) was never intended to restrict actions or complaining parties under the Nursing Home Residents' Rights Act; indeed, the legislative history of the Act reflects that the provision interpreted by this Court today was designed with the opposite goals in mind....

...First, statutes remedial in nature are liberally construed to "preserve and promote access to the remedy intended by the legislature." Joshua v. City of Gainesville 768 So.2d 432, 435 (Fla.2000); see also Brill v. Jewett, 262 F. 935, 937 (5th Cir.1920). A reading of section 400.023 in pari materia with the provisions of the Wrongful Death Act must be tempered by the presumption that each statutory provision was intended to provide different and distinct remedies. Indeed, section 400.023 specifically provides that its remedies "are in addition to and cumulative with other legal and administrative remedies available to a resident." § 400.023(1), Fla. Stat. (1997). Such provision must also be applied consistent with Florida's survival statute. Consistent with the interpretation of section 400.023 by the Fourth District panel in Greenfield v. Manor Care, Inc., 705 So.2d 926 (Fla. 4th DCA 1997), which I would adopt here, the Florida Legislature again amended section 400.023 in 2001 *24 when this artificial defense arose to clarify its intent that the personal representative of a deceased nursing home resident's estate may file a cause of action against a nursing home for violations of the deceased's rights "regardless of the cause of death." § 400.023(1), Fla....

...quent legislation to determine the intent of a previously enacted statute, particularly after "a judicial interpretation [of] the original enactment ... which the legislature believed was contrary to its original intent"). When the 2001 amendment to section 400.023 is considered along with the original act and the survival statute, it is plain that Mr....

...ash the Fourth District's decision below. QUINCE, J., concurs. NOTES [1] We are aware that during the pendency of this proceeding, the 2001 Legislature amended the statutory provisions at issue in this case. See ch.2001-45, 4, Laws of Fla. (amending 400.023(1), Fla. Stat.); 400.023(1), Fla....

...Under the current version of the statute, which went into effect on May 15, 2001, the personal representative of the estate of a deceased resident may file a cause of action against the nursing home for violations of the deceased resident's rights "regardless of the cause of death." 400.023(1), Fla....

...Both parties have filed supplemental authority in effect asking us to interpret whether this new amendment was a clarification of the rights of a personal representative or if it was a wholesale revision to the law, and if so whether the Legislature intended the revisions to apply retroactively. The changes in section 400.023(1) were substantial and the legislative history is silent as to why the particular change in question, i.e., the expansion of a personal representative's right to bring a cause of action "regardless of the cause of death," was made....

...You should then determine whether such negligence was the legal cause of the loss, injury or damage complained of. [4] Petitioner also argues that the court below, in adopting Judge Warner's dissent from Greenfield, improperly holds that the statutory rights provided by section 400.023(1) are "largely personal to the resident of the facility" and thus do not survive the resident's death under section 46.021....

...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. Effective May 15, 2001, those provisions were amended in significant respects. Ch.2001-45, Laws of Fla. Section 400.0237 was created, providing (in subsection (4)) that "[t]he plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages." Ch.2001-45, § 9, at 229, Laws of Fla. In addition, section 400.023(1) was amended to provide that attorney's fees to a prevailing party "shall be awarded solely for ......

...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. Stat. (1997), and a concomitant private right of action for deprivation of a resident's statutory rights. See § 400.023(1), Fla....

...However, this tool of statutory construction was called into question somewhat by our opinion in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004). In Knowles, decided not more than two years ago, we were faced with the issue of determining the proper construction of section 400.023 of the Florida Statutes (1997)....

...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....

...ndant 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....

...Thompson, has alleged any redundant, immaterial, impertinent, or scandalous matters in her claim for negligence and violation of residents' rights when Plaintiff allegedly failed to comply with the pre-suit requirements of Fla. Stat. § 766.106 and § 400.023; and (C) whether Plaintiff Thompson, has alleged any redundant, immaterial, impertinent, or scandalous matters in her prayer for pre-judgment interest on medical expenses actually paid when Plaintiff Thompson, has allegedly failed to refer...

...Motion to Dismiss, or, in the Alternative, Motion to Strike Counts I & II—Negligence and Violation of Nursing Home Residents' Rights on the Ground 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....

...infringement of the decedent's rights. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of the resident. " Fla. Stat. § 400.023 (1997)....

...Considering the conflicting italicized portions of the aforementioned statute, it is of no surprise to this Court 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....

...§ 400.022 regardless of whether the violations caused the resident's death. Greenfield v. Manor Care, Inc., 705 So.2d 926 (Fla. 4th DCA 1997), appeal dismissed, 717 So.2d 534 (Fla.1998). However, the rule announced in that case was overturned by the same court just three years later, when the court held that Fla. Stat. § 400.023 "unambiguously provides that a personal representative may bring an action against [a] nursing home for a violation of the Patient's Bill of Rights only when the deprivation or infringement of the resident's rights cause the patient's death." Beverly Enterprises Florida, Inc. v. Knowles, 766 So.2d 335, 336 (Fla. 4th DCA 2000). Subsequently, the same court certified the following question "of great public importance to the Florida Supreme 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 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. v. Knowles, 763 So.2d 1285, 1285 (Fla. 4th DCA 2000). While the Florida Supreme Court has yet to announce its decision, it has granted review. Knowles v. Beverly Enterprises-Florida, Inc., 789 So.2d 346 (Fla.2001). Nonetheless, Fla. 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....

...Conversely, Plaintiff Thompson, alleged that Defendant Kindred, "[failed] to treat LOIS SNELLENBERGER courteously, fairly, and with the fullest measure of dignity." [Docket No. 7 ¶ 8( l )]. Consequently, pursuant to the revised version of Fla. Stat. § 400.023(1), Plaintiff Thompson, is "required to elect either survival damages pursuant to s....

...School Board Of Seminole County, Fla., 778 F.Supp. 518. Consequently, Plaintiff Thompson's claims for both negligence and violation of nursing home residents' rights survives Defendant Kindred's Motion to Dismiss and because of the newly amended language of § 400.023(1), delineating that even those violations of resident's rights that has not caused death are not redundant, immaterial, impertinent, or scandalous matters, but are also subject to suit, it also survives Defendant Kindred's Motion to Strike....

...The defendant breached that duty to the resident; (c) The breach of that duty is the legal cause of loss, injury, death, or damage to the resident; and (d). The resident sustained loss, injury, death, or damage as a result of the breach." Fla. Stat. § 400.023(2) (2001)....

...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)....

...njoyment of life, expense of hospitalization, medical, nursing care and treatment, and death" [Docket No. 7 ¶ 21]. Therefore, Plaintiff Thompson, has sufficiently alleged a cause of action for a violation of residents' rights pursuant to Fla. Stat. § 400.023....

...enied. B. Motion to Dismiss, or, in the Alternative, Motion to Strike Counts I & II—Negligence and Violation of Nursing Home Residents' Rights on the Ground that Plaintiff Failed to Comply with the Pre-Suit Requirements of Fla. Stat. § 766.106 and § 400.023 1. Pre-Suit Requirements of Fla. Stat. § 766.106 A recent amendment to § 400.023 of the Florida Statutes, which is current through the end of the 2001 regular session 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. Section 400.023(1) further states: "The provisions of chapter 766 do not apply to any cause of action brought under ss. 400.023-400.0238." Hence, the legislative intent appears unambiguous that the pre-suit requirements of chapter 766, governing medical malpractice actions, is inapplicable to both statutory and common-law claims of negligence brought under § 400.023 of the Florida Statutes....

...rated Health Care Services Inc. v. Lang-Redway, 783 So.2d 1108, 1111-1112 (Fla. 2d DCA 2001). While the Florida Supreme Court has yet to issue its opinion, it appears that the Florida legislature settled the dilemma by way of its recent amendment to § 400.023 of the Florida Statutes....

...Accordingly, Defendant Kindred's Motion to Dismiss, or, in the Alternative, Motion to Strike Counts I and II of Plaintiff Thompson's Amended Complaint on the ground that Plaintiff failed to comply with the pre-suit requirements of Fla. Stat. § 766.106 is denied. *1353 2. Pre-Suit Requirements of Fla. Stat. § 400.023 State procedural rules are trumped by the Federal Rules of Civil Procedure in diversity actions....

...Finally, Plaintiff Thompson, set out a short and plain statement demanding relief by stating, "Plaintiff demands judgment for compensatory and punitive damages against defendant KINDRED in excess of $75,000.00, together with costs, prejudgment interest on medical expenses actually paid, attorneys' fees pursuant to Fla. Stat. § 400.023, and such other and further relief as this court may deem proper." [Docket No. 7]. Even if this Court applied the pre-suit requirements applicable to claims under Fla. Stat. § 400.023 to the instant case, the result would remain constant. Chapter 400 of the Florida Statutes was recently amended to alter the pre-suit requirements for both statutory and common-law negligence 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....

...e [injuries] due to a deviation from the standard of nursing care which is considered adequate and appropriate on the part of skilled nursing facilities." [Docket No. 3 ¶ 5, 11]. However, the Florida legislature deleted this pre-suit requirement in § 400.023 and substituted it for a more liberal notice provision contained in § 400.0233(2) of the Florida Statutes....

...nnounced in Hanna, when the state law at issue directly conflicts with a Federal Rule of Civil Procedure, "the court is instructed to apply the Federal rule." Hanna v. Plumer, 85 S.Ct. at 1144. Indeed, even if the pre-suit requirements of Fla. Stat. § 400.0233(2) *1355 were characterized as substantive in nature, rather than procedural, they would be trumped by the Federal Rules of Civil Procedure....

...ederal procedural rule, then the state law is procedural for Erie/Hanna purposes regardless of how it may be characterized for other purposes."). Still, the overall intent of the Florida legislature in requiring the pre-suit conditions in Fla. Stat. § 400.0233(2), the thrust of which appears to be a desire for a reasonable investigation giving rise to a good-faith belief that grounds exist for the claim so as to avoid frivolous lawsuits, has been satisfied by Plaintiff Thompson....

...1683, 40 L.Ed.2d 90 (1974). Accordingly, Defendant Kindred's Motion to Dismiss, or, in the Alternative, Motion to Strike Counts I and II of Plaintiff Thompson's Amended Complaint on the ground that Plaintiff failed to comply with the pre-suit requirements of Fla. Stat. § 400.023 is denied....

...defendants to the nature of the special damages claimed that `nature' being `emotional distress.'" Id. Accordingly, the court denied the defendants' *1357 motion to strike the plaintiff's allegation of emotional distress damages. Id. It is true that § 400.023 of the Florida Statutes, pertaining to civil enforcement of nursing home residents' rights, does not specifically list pre-judgment interest as an available remedy....

...rights of another party or fraud, actual, or presumed. Requiring clear and convincing evidence of intentional or reckless misconduct effectively eliminates recovery for negligence, and is contrary to the Nursing Home Residents Act, which provides in section 400.023(2): In any claim brought pursuant to this part alleging a violation of resident's rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evidence, th...

...he resident; (b) The defendant breached the duty to the resident; (c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and (d) The resident sustained loss, injury, death, or damage as a result of the breach. § 400.023(2)(a)-(d), Fla....

...nursing homes. See Romano v. Manor Care, 861 So.2d 59, 62-63 (Fla. 4th DCA 2003); Crotts & Martinez, The Nursing Home Residents' Rights Act-A Good Idea Gone Bad!, 26 STETSON L.REV. 599 (1996). In 1993, the Legislature amended the statute by enacting section 400.023 ("Civil Enforcement"), providing civil remedies for nursing home residents for violation of the statute. § 400.023(1), Fla....

...may have under the common law, Federal Constitution, State Constitution, or statutes of this state." One of the provisions of the Act provides that individuals can bring actions to enforce violations of the Act "in any court of competent jurisdiction." § 400.023(1)....

...Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004), is a curious basis to rely on the remedial canon. Knowles refers to it but rejects any liberality in construction and turns instead to plain meaning. Id. ("it is apparent that such an interpretation would alter the clear and unambiguous language of section 400.023(1) by either injecting a different circumstance upon which suit may be brought or by ignoring the language expressly used in the statute."). Knowles directly involves the very same statutes at issue in this case, the nursing home code. Today's decision could be in conflict with Knowles, 898 So.2d at 7 ("while petitioner is correct that section 400.023(1) should be liberally construed, such construction does not mean that this Court may ......

...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. § 400.023(1), Fla....

...Dupont, 455 So.2d 1026, 1029 (Fla.1984) (quoting Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla.1959)), receded from on other grounds, Murphy v. International Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000); see also Owens-Corning, 749 So.2d at 486 (quoting White Constr. ). Section 400.023(5), Florida Statutes (1999), which codifies this standard, provides that "[f]or the purpose of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident." [2] This court and others have applied the standard adopted by the court in White Construction, and codified in section 400.023(5), to awards of punitive damages under chapter 400....

...NOTES [1] We note that the pertinent provisions of the Florida Nursing Home Act found in chapter 400, Florida Statutes, were substantially amended in 2001. Specifically, the Legislature stated: Notwithstanding any other provision of this act to the contrary, sections 400.0237, 400.0238, 400.4297, 400.4298, Florida Statutes, as created by this act, and section 768.735, Florida Statutes, as amended by this act, shall become effective May 15, 2001; shall apply to causes of action accruing on or after May 15, 2001; and shall be applied retroactively to causes of action accruing before May 15, 2001, for which no case has been filed prior to October 5, 2001. Ch. 2001-45, § 62, Laws of Fla. Section 400.0237 was added to specifically provide for punitive damage awards under the Act. Because the cause of action in the instant case accrued in 1999 and suit was filed on May 5, 2000, the provisions of section 400.0237 are inapplicable. Accordingly, we will apply the provisions of the 1999 version of the Act. [2] Section 400.023, Florida Statutes, was substantially amended in 2001 and subsection (5) was deleted. That amendment became effective after the cause of action in the instant case accrued. We will, therefore, apply the provisions of subsection (5) of the 1999 version of section 400.023....

...Although section 768.735 is not applicable to the instant action either, we note with interest that even under its provisions, the requirements of subsection (1) of the amended version of section 768.72 do apply to claims for punitive damages under chapter 400 because they are not excluded by section 768.735. [5] Section 400.023(7), Florida Statutes, similarly requires that "[d]iscovery of financial information for the purpose of determining the value of punitive damages may not be had unless the plaintiff shows the court by proffer or evidence in the record...

...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 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). To enforce these rights, the legislature provided each resident with a cause of action for their violation. See § 400.023(1)....

...he award of attorney's fees to assure the ability of the resident to enforce them. See id. [1] The legislature also provided for the award of punitive damages for gross or flagrant conduct or conscious indifference to the rights of the resident. See § 400.023(5)....

...ond, 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....

...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....

...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. In 1993, the Legislature amended the statute by enacting section 400.023 (“Civil Enforcement”), providing civil remedies for nursing home residents for violation of the statute....

...Life & Health of America, 704 So.2d 1386, 1390 (Fla.1998) (parties can contract around state or federal law except where such a contract provision would be void as contrary to public policy). Blankfeld, 902 So.2d at 298-99 (citations omitted) (quoting § 400.023(1), 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....

...evidence that *477 the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed. However, the Nursing Home Resident’s Act, found in section 400.023(2), Florida Statutes, calls for a preponderance of the evidence standard....

...or goods and services provided by third parties above and beyond handling charges and charges "actually incurred as an item of expense," and did not separately set forth the 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....

...efund policies of the facility. § 400.022(1)(i), Fla. Stat. (1993); see also § 400.165, Fla. Stat. (1993)(governs the method in which nursing homes must bill residents and the form which those statements should follow). The following language from section 400.023 is relevant to our consideration of the trial court's dismissal of this count: (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....

...The trial court dismissed count VII on the basis that appellant did not allege that her husband's death resulted from the deprivation or infringement of his rights under Chapter 400. We do not agree with that interpretation of the statute. On one level, section 400.023 lends itself to the interpretation espoused by the trial court, that is, that suits by personal representatives on behalf of deceased residents are allowed only when the nursing home's alleged negligence caused the resident's death. On the other hand, we do not think that such an interpretation was intended by the Legislature in light of section 46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person." To construe section 400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section 46.021. See generally Beverly Enterprises-Florida, Inc. v. Estate of Maggiacomo, 651 So.2d 816 (Fla. 2d DCA), quashed on other grounds, 661 So.2d 1215 (Fla.1995)(personal representative sued on behalf of deceased resident under section 400.023 for deprivation of nursing home rights for theft of diamond ring which was allegedly forced from finger of resident causing bruises; resident died of unrelated causes); Arthur v....

...denied, 613 So.2d 4 (Fla.1992)(when death results from complained-of injuries, The Wrongful Death Act applies; when death results from an independent cause, claim is preserved by section 46.021, the survival of actions statute). As such, we hold that section 400.023, Florida Statutes (1993), must be read in pari materia with section 46.021, Florida Statutes (1993) in order to reach a logical result....

...e overcharging for goods and services. 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)....

...pate 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....

...s, it may have been part of the legislative bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section 400.023(1) was enacted long after section 46.021 and I do not see how the two can be harmonized, nor does the majority opinion give any rationale to do so. As a general rule of statutory construction, a special statute controls over a general statute. See McKendry v. State, 641 So.2d 45 (Fla.1994). Therefore, I would hold that section 400.023(1) controls....

...tion 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....

...Bland, should she prevail in any arbitration against HCR, are fewer than those to which she would be entitled in a circuit court lawsuit under the Nursing Home Residents' Rights Act. For example, punitive damages are available as a possible remedy under the statute. §§ 400.0237(2),.0238. Attorneys' fees are available in limited circumstances. §§ 400.023(1), .0238(2). The statute does not cap noneconomic damages. § 400.023-.0238....

...ness in Florida. . . . . 15. Defendant, HILLTOPPER, is an entity that operated the nursing home during CHERYL CUTCHIN'S residency and as such owed a duty to CHERYL CUTCHIN to exercise reasonable care in its operation of the nursing home according to § 400.023(3), Florida Statutes. 16. Defendant, CENTENNIAL, is an entity that operated the nursing home during CHERYL CUTCHIN'S residency and as such owed a duty to CHERYL CUTCHIN to exercise reasonable care in its operation of the nursing home according to § 400.023(3), Florida Statutes....

...s, 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)....

...jury, and that the attorney's fees issue would be postponed until after trial. One day later, Hoak filed his acceptance of Unicare's offer of judgment. Then, on February 10, Hoak filed a motion for assessment and award of attorney's fees pursuant 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 th...

...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....

...To resolve the conflict, we must determine whether the offer of judgment effectively terminated the litigation and precluded Hoak's motion for statutory attorney's fees. If it did not preclude an award of statutory attorney's fees, we would then have to consider whether Hoak was a "prevailing party" within the meaning of section 400.023....

...That Girl in Miami, Inc., 377 So.2d 1011 (Fla. 3d DCA 1979); Wisconsin Life Ins. Co. v. Sills, 368 So.2d 920, 922 (Fla. 1st DCA), dismissed, 373 So.2d 461 (Fla. 1979); Hernandez v. Travelers Ins. Co., 331 So.2d 329, 331 (Fla. 3d DCA 1976). The attorney's fees provision of section 400.023 is merely a statutory right to seek fees....

...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....

...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. Section 400.023, Florida Statutes (1983), provides for civil enforcement to remedy violations of those rights.

...Our supreme court explained that the Nursing Home Act created a "right to receive adequate and appropriate health care," § 400.022(1)( l ), Fla. Stat. (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)....

...to make that decision and specify that such waivers are prohibited and void, rather than the judiciary. See Art. II, § 3, Fla. Const. (recognizing separation of powers); Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (ruling that section 400.023 is a legislatively created cause of action to be brought by personal representatives only under certain circumstances, and concluding that the Florida Legislature had the authority to determine the extent of the statutory right and to prescribe or limit the remedies available for a violation of the right)....

...82 appellants. To presume such an intent in these circumstances would amount to the most blatant form of judicial legislation. We decline appellants' invitation to don the legislative mantle."). See also Knowles, 898 So.2d at 7 (noting that although section 400.023(1) provides remedial remedies for nursing home residents, the Court is without power to add words to the statute); Fla....

...easily have said so"). Moreover, in Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989), the Florida Supreme Court recognized that remedies provided in Chapter 400 may be waived when it ruled that the attorney's fees provision of section 400.023 is "merely a statutory right to seek fees," and that "[c]learly, statutory rights can be waived." See also Bland v....

...Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the decision in Somberg, which held that the damages available to a personal representative bringing a cause of action under section 400.023(1), Florida Statutes (1997), are not limited by the damages provided for in Florida's Wrongful Death Act....

...Subsequently, respondent dropped the wrongful death claim and pursued only the chapter 400 claim. See id. The nursing home moved for summary judgment alleging "that chapter 400 damages for pain and suffering were eliminated in this case by the Wrongful Death Act." Id. Somberg opposed this motion, asserting that section 400.023, Florida Statutes, specifically authorizes the personal representative of a deceased patient to bring suit where the cause of the patient's death resulted from a violation of the patient's statutory rights....

...the holding in Beverly-Enterprises Florida, Inc. v. Spilman, 661 So.2d 867, 869 (Fla. 5th DCA 1995) ("Both the plain language of the statute and the transcripts of the committee hearings indicate that the legislature did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home's infringement or deprivation of the patient's rights resulted in the patient's death.")....

...e Fourth District's opinion in Hamilton. *1000 ANALYSIS The issue raised in this case is whether a personal representative for a deceased nursing home patient who brings a cause of action for a violation of the patient's statutory rights pursuant to section 400.023, Florida Statutes (1997), is limited to the damages provided for in the Wrongful Death Act when it is claimed that the patient's death resulted from a deprivation or infringement of the patient's statutory rights set out in chapter 400. Upon review of the conflicting decisions and the relevant statutes, we hold that the plain language of section 400.023(1) explicitly demonstrates that the damages of the Wrongful Death Act do not control the damages available under chapter 400....

...ing to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Section 400.023(1), Florida Statutes (1997), reads, in relevant part: 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....

...Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages.... The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. § 400.023(1), Fla. Stat. (1997). Notably, section 400.023(1) specifically states that a claimant will be entitled to recover actual and punitive damages for any violation of the rights of a nursing home resident....

...these statutory damages were authorized in addition to any other remedies that already existed. Furthermore, there is no reference in chapter 400 to the Wrongful Death Act or any other indication that the damages contemplated by or recoverable under section 400.023(1) are to be limited to those listed in the Wrongful Death Act. Thus, a cause of action brought under section 400.023(1) *1001 constitutes an independent cause of action with its own set of statutory damages....

...Logically, if the Legislature had intended for the Nursing Home Act to be limited by the Wrongful Death Act, it would have said so, rather than broadly providing not only for damages but also for a personal representative to claim those damages. Accordingly, a plain reading of section 400.023(1) indicates that the damages provided for are not limited by the Wrongful Death Act. Thus, we hold that based on the plain language of section 400.023(1), the damages recoverable in a cause of action brought under that section are not limited by the Wrongful Death Act. Spilman and Hamilton In the opinion below, the Third District identified the conflict between the Fourth and Fifth Districts as to whether the Wrongful Death Act controlled damages for causes of action brought under section 400.023(1)....

...In Spilman, the Fifth District disagreed with a nursing home's argument that any damages available to a personal representative under chapter 400 were controlled by the Wrongful Death Act. Spilman, 661 So.2d at 868. Writing for the court, Judge Peterson emphasized the plain meaning of the language in section 400.023(1) expressly authorizing the recovery of damages, as well as the express language providing that the chapter 400 remedies were in addition to and cumulative of any other legal and administrative remedies available to a resident. See id. Judge Peterson also found confirmation of his policy analysis in the legislative history surrounding the 1986 amendment to section 400.023(1), which gave personal representatives the right to bring a suit for violations of a decedent's chapter 400 rights....

...The Hamilton court noted that because causes of action for wrongful death did not exist at common law, all causes of action for wrongful death are created and controlled by the Wrongful Death Act. See id. As noted above, we find the plain language of section 400.023(1) to explicitly and clearly create a cause of action separate and independent from the Wrongful Death Act with its own damages. Therefore, there is no need to resort to an examination of legislative history or other rules of statutory interpretation and construction to determine that section 400.023(1) damages are not controlled by the Wrongful Death Act....

...ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion, in which LEWIS, J., concurs. SHAW, Senior Justice, concurs in result only. ANSTEAD, C.J., specially concurring. I concur in the majority's opinion that the plain meaning of the language in section 400.023(1) demonstrates that damages available to a personal representative under section 400.023(1) are not limited by the Wrongful Death Act....

...dent to be adequately informed of his or her medical condition, the right to adequate and appropriate health care, the right to be treated courteously, fairly, and with the fullest measure of dignity, and the right to refuse medication or treatment. Section 400.023(1), the statutory provision at issue in this case, was enacted in 1980 to create a private cause of action for persons whose chapter 400 rights have been violated. [6] As it was originally enacted, section 400.023(1) stated, in part: (1) Any patient whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any facility responsible for the violation....

...l and punitive damages for any deprivation or infringement on the rights of a patient.... The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a patient and the department. § 400.023(1), Fla. Stat. (Supp.1980). Section 400.023(1), Florida Statutes (1997), which is applicable to the cause of action in this case, reads, in relevant part: 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....

...Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages.... The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. § 400.023(1), Fla. Stat. (1997). As the Court notes, there is no reference in chapter 400 to the Wrongful Death Act or any other indication that the damages contemplated by or recoverable under section 400.023(1) are to be limited to those listed in the Wrongful Death Act....

...Spilman In Spilman, a nursing home resident died after being admitted to a hospital for treatment of infections allegedly contracted while he was in a nursing home. See 661 So.2d at 868. On appeal, the nursing home argued that the damages available under section 400.023(1) were controlled by the Wrongful Death Act rather than the survival statute....

...[7] Pursuant to chapter 400, the jury had awarded damages for the decedent's physical and mental pain while he was alive, damages not available under the Wrongful Death Act. See 661 So.2d at 868. In addition to the plain meaning of the language in section 400.023(1) which expressly authorizes the recovery of damages, as well as the express language providing that the chapter 400 remedies were in addition to and cumulative of any other legal and administrative remedies available to a resident, Judge Peterson also found confirmation of his policy analysis in the legislative history surrounding the 1986 amendment to section 400.023(1), which gave personal representatives the right to bring a suit for violations of a decedent's chapter 400 rights....

...d or unreasonable result). 661 So.2d at 869. The Fifth District ultimately concluded through Judge Peterson's opinion, and based on the plain language of the statute and the legislative history, "that the legislature did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home's infringement or deprivation of the patient's rights resulted in the patient's death." Id....

...Fourth, the court disagreed with the contention that limiting damages to those under the Wrongful Death Act would make it cheaper for the nursing home to "kill its residents" because the damages would be less. See id. The Hamilton court failed to address the language in section 400.023(1) that indicated that the statutory cause of action was cumulative with and in addition to other remedies....

...Further, as noted by the Fifth District in Spilman, the Legislature not only included broad provisions for damages in chapter 400, but specifically stated that these statutory damages were authorized in addition to those remedies that already existed. [9] The Fourth District's reliance on the fact that section 400.023(1) does not explicitly state that it "was intended to change the common law" does not provide any explanation for why Wrongful Death Act damages would apply to the exclusion of the damage provisions that are listed in section 400.023(1). Of course, neither the Wrongful Death Act nor the section 400.023(1) cause of action was available at common law....

...Moreover, I am confident in a trial court's ability to prevent improper double recoveries for the same types of damages under both the Wrongful Death Act and chapter 400. 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. Stat (1997). [3] In 2001, the Legislature substantially revised section 400.023(1). See § 400.023, Fla....

...Spilman, as personal representative of the estate of Walter M. Spilman. Wilbur's father, Walter, died after he was admitted to a hospital for treatment of infections allegedly contracted while he was under Eastbrooke's care. Eastbrooke contends first that the trial court violated the provisions of section 400.023, Florida Statutes (1991), by denying its motion to dismiss claims for pain and suffering and by instructing the jury that such damages could be awarded....

...Second, Eastbrooke alleges the trial court erred by denying its motion for directed verdict on the issue of punitive damages, because the evidence was insufficient to demonstrate malicious or willful disregard of Walter's rights as a nursing home patient. PAIN AND SUFFERING UNDER SECTION 400.023 Eastbrooke contends that the trial court erred in denying its motion to dismiss claims for Spilman's pain and suffering and in instructing the jury that they could award such damages. Eastbrooke submits that where a cause of action pursuant to section 400.023, Florida Statutes (1991), is advanced under a theory that the person has died as a result of the deprivation of his nursing home resident's rights, the nature and measure of damages are controlled by the Wrongful Death Act, sections 7...

...ain 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. The civil enforcement statute, section 400.023, Florida Statutes (1991), further provides as follows: 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....

...Prevailing defendants may be entitled to recover reasonable attorney's fees pursuant to s. 57.105. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. [1] (Emphasis added). When section 400.023 was first enacted in 1980, it addressed only the rights of residents who survived the violation of their rights and allowed them to seek actual and punitive damages....

...State, 492 So.2d 1051, 1054 (1986) (statutes should not be given a meaning that leads to an absurd or unreasonable result). Both the plain language of the statute and the transcripts of the committee hearings indicate that the legislature did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home's infringement or deprivation of the patient's rights resulted in the patient's death....

...*870 PUNITIVE DAMAGES Eastbrooke contends that the trial court erred in denying its motion for directed verdict on the issue of punitive damages because it believes the evidence was insufficient to demonstrate that its agents acted in a manner that was malicious or in willful disregard of the rights of others. Section 400.023(1), Florida Statutes (1991), allows recovery of punitive damages when the rights of nursing home residents are violated....

...SHARP, Judge, concurring specially. There is little I can add to Chief Judge Peterson's excellent opinion in this case. I write only to say we should never cease to be shocked by Man's inhumanity to Man, no matter the circumstances. And, a remedy must always be afforded. NOTES [1] Section 400.023, Florida Statutes, was amended on July 1, 1993, by the addition of several subsections....

...of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident. The legislature has provided that "[s]ubsections (2), (3), (4), and (5) of section 400.023, Florida Statutes, ... shall not be relied upon for the purpose of ascertaining legislative intent as to the interpretation of section 400.023, Florida Statutes, as it existed prior to July 1, 1993." Ch. 93-217, § 51, at 2296, Laws of Fla. See also note 2 following § 400.023....

...Wright, 403 So.2d 391, 394 (Fla.1981)). The NHRA is clearly remedial. Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA 2005) (en banc); Romano, 861 So.2d at 62. It provides for both compensatory and punitive damages for violations of the Act. § 400.023, Fla....

...The complaint specifically stated that it was founded on duties imposed by section 400.022. The defendants moved to dismiss the complaint on several grounds, including the allegation that despite the fact that the plaintiff had fulfilled the presuit requirements under section 400.023(4), she had failed to fulfill the presuit requirements under chapter 766, Florida Statutes (1997)—a necessary step before bringing a medical negligence action....

...e plan, with established and recognized practice standards within the community, and with rules as adopted by the agency. § 400.022(1)( l ), Fla. Stat. (1997) (emphasis added). If these rights are violated, a resident may file an action pursuant to section 400.023, which provides in part: "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." § 400.023(1), Fla. Stat. (1997). After this Court decided Weinstock, [7] the Legislature amended section 400.023 to add the following subsections: (3) A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the services of a medical director as required in this part....

...shall waive the requirement of the verified statement. (5) For the purposes of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident. § 400.023, Fla....

...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. Moreover, section 400.023 clearly demonstrates that the Legislature intended a nursing home to be liable for the "failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff." § 400.023(3), Fla....

...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....

...Thus, I conclude that the statute of limitations did not run as to the wrongful death action against Greenbrook Nursing Center, and the cause of action separately pleaded as Count II against the nursing home is sufficient to entitle the plaintiff, if he prevails, to damages under section 400.023, Florida Statutes (1989)....

...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. § 400.023, Fla....

...it would be anomalous to give greater rights to the estate and heirs than to the decedent. Finally, we note that holding otherwise in the nursing home context would give the personal representative of an estate the strategic choice under the NHRRA, section 400.023, to elect to pursue a wrongful death claim, rather than a survivor action on behalf of the decedent, simply to avoid arbitration that was agreed to by the decedent....

...Perry, 687 So.2d 831, 831 (Fla.1997) ("We decline to review the second cross-appeal issue raised by respondent because the issue is unrelated to the certified question upon which this Court's jurisdiction is based.”). . This provision was added in 2001. See ch.2001-45, Laws of Fla. 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....

...and suffering from the injuries causing death is settled law. See, e.g., Metropolitan Life Ins. Co. v. McCarson, 429 So.2d 1287, 1291 (Fla. 4th DCA 1983), modified, 467 So.2d 277 (Fla.1985). Thus, the issue here can be framed quite succinctly. Does section 400.023, Florida Statutes (1995), grant to the personal representative of a deceased nursing home resident entitlement to an element of damages to which the personal representative of a deceased not a resident of a nursing home would not be e...

...[5] In the absence of other authority, the trial court was obligated to follow the Spilman case. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992). However, we think that on this specific issue Spilman was incorrectly decided for several reasons. First, the 1986 amendment to section 400.023, which the Spilman court construed, simply created in the personal representative of a deceased nursing facility resident, whose death resulted from deprivation or infringement of the decedent's rights, a cause of action against the n...

...But punishing the nursing facility and compensating the injured parties are two separate considerations, and the Wrongful Death Act, by providing for damages recoverable by the decedent's survivors, adequately compensates for the wrong. Thus, in the absence of any language in the 1986 amendment to section 400.023, Florida Statutes (1995), which clearly and explicitly gives to the personal representative of a deceased nursing facility resident a right of action for the deceased's pain and suffering when the death results from deprivation of the...

...nstr. Co., Inc. v. Dupont, 455 So.2d 1026, 1029 (Fla.1984) (quoting Carraway v. Revell, 116 So.2d 16, 20 n. 12 (Fla.1959)); Eichenbaum v. Rossland Real Estate, Ltd., 502 So.2d 1333, 1335 (Fla. 4th DCA 1987). It is plaintiff's position, however, that section 400.023(5), Florida Statutes (1995), was intended to set a less stringent standard for the award of punitive damages in cases brought under section 400.023, Florida Statutes (1995). Section 400.023(5) provides: For the purpose of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident. We see a great similarity, both in the precise words used and in the clearly expressed intent, between the common law standard for punitive damage conduct and the statutory standard set out in section 400.023(5): the former expansive, the latter succinct, the essence of each the same—punitive damages may be awarded only where the conduct is of an extreme or egregious nature....

...The presumption is that a statute was not intended to alter the common law "other than by what was clearly and plainly specified in the statute." Jackson v. State, No. 98-1171, 736 So.2d 77 (Fla. 4th DCA 1999) (quoting Ady v. American Honda Fin. Corp., 675 So.2d 577, 581 (Fla. 1996)). Section 400.023 uses words found in various statements of the common law standard for punitive damages, without "clearly and plainly" signalling an intent to depart from that standard. We hold that section 400.023(5) adopts the common law punitive damage standard, and not, as plaintiff contends, some less stringent standard applicable exclusively to nursing home residents....

...cal impairments it was dangerous for him to leave the premises unaccompanied. We hold that such evidence was sufficient for the jury to conclude that defendants were "consciously indifferent to the rights of the resident" within the meaning *1198 of section 400.023 and award punitive damages....

...GROSS, J., concurs in part and dissents in part with opinion. OWEN, WILLIAM C., Jr., Senior Judge, concurs in part and dissents in part with opinion. GROSS, J., dissenting in part. I dissent from that portion of the majority opinion concerning the construction of section 400.023, Florida Statutes (1995)....

...Defendant, RESOURCE HEALTHCARE OF AMERICA, is an entity that operated the nursing home during LORENE McKINNEY'S residency on or after May 15, 2001, and as such owed a duty to LORENE McKINNEY to exercise reasonable care in the operation of the nursing home according to § 400.023(3), Florida Statutes (2001)....

...McLean and Schecht and Kevin A. McLean, Tampa, for respondent. Before HUBBART, JORGENSON and COPE, JJ. JORGENSON, Judge. This is a petition for a writ of certiorari seeking to quash an order granting a motion for leave to amend to add a claim for punitive damages under section 400.023, Florida Statutes (1991)....

...right not to be subjected to financial worth discovery until the trial court makes a finding that 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. Section 400.023, Fla. Stat. (1991). The trial court interpreted this section to mean that a claim for punitive damages is allowed without pleading or proving malicious or willful disregard of the rights of others. The trial court's interpretation of section 400.023 conflicts with the requirements of section 768.72 which specifically provides that "[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by...

...4th DCA 1991); see Wolper Ross Ingham & Co. v. Liedman, 544 So.2d 307 (Fla. 3d DCA 1989) (holding that party seeking punitive damages is not entitled to financial worth discovery until the party complies with section 768.72). The trial court's interpretation of section 400.023 also conflicts with well established principles regarding recovery of punitive damages....

...re 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. Stat. (1997); § 400.023(1), Fla....

...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)....

...Washington Manor moved for summary judgment because the complaint did not allege that any violation of the statute caused Gladstone's death. Appellee conceded that Gladstone's death did not result from any of the alleged violations of the Patient's Bill of Rights. Interpreting section 400.023(1) to preclude actions by a personal representative when *336 the patient's death is not caused by a deprivation of rights under the statute, the trial court granted appellant's motion for summary judgment....

...After the trial court disposed of the statutory negligence claims, the case went to trial on a common law negligence theory. The jury returned a verdict for Washington Manor. 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....

...Pursuant to our holding in Greenfield, the trial court granted appellee's motion for a new trial because the court determined that it erred by dismissing appellee's statutory negligence claims. We recede from Greenfield and hold that the language of section 400.023 unambiguously provides that a personal representative of a deceased, nursing home resident may bring an action against the nursing home for violation of the Patient's Bill of Rights only when the deprivation or infringement of the resident's rights caused the patient's death....

...[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 infringed upon shall have a cause of action against any licensee responsible for the violation....

...eath resulted from the deprivation or infringement of the decedent's rights.... Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages.... The majority in Greenfield read section 400.023(1) in pari materia with section 46.021, Florida Statutes (1993), which provides that "no cause of action dies with the person" and concluded that To construe section 400.023 as foreclosing all causes of actions for nursing home negligence which does not cause the resident's death is to nullify section 46.021....

...pate 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....

...s, it may have been part of the legislative bargain in passing the resident's bill of rights to limit actions to the lifetime of the patient, other than those alleging that the violation of the rights resulted in the death of the resident. Moreover, section 400.023(1) was enacted long after section 46.021 and I do not see how the two can be harmonized.... As a general rule of statutory construction, a special statute controls over a general statute. See McKendry v. State, 641 So.2d 45 (Fla.1994). 705 So.2d at 934. In conclusion, because the legislative language of section 400.023(1) is unequivocal on the specific subject to which it speaks, it need not be "harmonized" with section 46.021, an inconsistent, general, and earlier-enacted statute. See McKendry, 641 So.2d at 46. Likewise, although appellee invites us to examine the legislative history of the statute, the language of section 400.023(1) is clear and, thus, leaves no room for resort to a consideration of legislative history to determine its meaning. See Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla.1992); First Healthcare Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA), review dismissed, 743 So.2d 12 (Fla.1999). Therefore, we conclude that, pursuant to section 400.023(1), a personal representative may bring suit on behalf of a deceased resident of a nursing home for alleged infringement of the resident's rights only when the infringement has caused the resident's death....

...Knowles was the only appellate decision in this state which directly addressed the issue of whether Chapter 400 claims of deprivation of a nursing home resident's rights, which do not cause or contribute to the resident's death, survive the resident's death. [7] That *602 case held that pursuant to the version of section 400.023 which was in effect at the time Youngblood died (in 2000), unless the deprivation of a nursing home resident's rights caused the resident's death, a personal representative of the deceased resident has no cause of action against a nursing home for deprivation of Chapter 400 rights. The trial court in this case was bound by that decision. [8] In 2000, section 400.023(2), Florida Statutes (1997) provided: Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licencee responsible for the violation....

...Thus, the court reasoned, perhaps deprivation of those rights should not survive a resident's death. In this court's opinion in Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995), approved, Florida Convalescent Centers v. Somberg, 840 So.2d 998 (Fla.2003), we considered the legislative history of section 400.023 in determining a different issue, i.e.: In a lawsuit brought by a personal representative against a nursing home for deprivation of a resident's Chapter 400 rights, which deprivation is alleged to have caused the resident's death, is...

...n to and cumulative with other legal and administrative remedies available to a resident and to the agency." (emphasis supplied) In Beverly Enterprises v. Spilman , Judge Peterson quoted extensively from the Legislative discussions in the House when section 400.023 was revised to include the right of a personal representative of a deceased nursing home resident to bring a lawsuit under this chapter....

...ident than to keep one alive and able to sue for deprivation of Chapter 400 rights. This is so because the elderly, generally frail persons in nursing homes, often have little or no damages to claim under the Wrongful Death Act. [9] Further in 1995, section 400.023 expressly provided that "the remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency." In the case sub judice, the lawsuit was brought by the guardian, Abner, before the nursing home resident (Youngblood) died. Should all of the alleged deprivation of Chapter 400 rights suffered during Youngblood's lifetime dissolve simply because they cannot be connected to the cause of her death? The language in section 400.023 [10] makes the answer to this question unclear. Florida Rule of Civil Procedure 1.260(a) provides that when a party to an action dies, and the claim is not extinguished, the court may order substitution of the proper party; i.e., here the personal representative. There is nothing in section 400.023 which provides or infers that once an action is brought and the party later dies, the cause of action also dies with the nursing home resident....

...Kindred Nursing Centers East, LLC, 211 F.Supp.2d 1345 (M.D.Fla.2002), the court ruled that a nursing home's motion to dismiss the Chapter 400 claims not related to causation of the resident's death should be denied. It is not clear from that case whether it involved the same version of section 400.023(1) that is involved in the case sub judice, or whether the more recent statute governed that lawsuit. In Thompson v. Kindred Nursing , the suit was filed in state court in October of 2001, and removed to the federal court in November 2001. But it is not clear when the nursing home resident died, which would determine which version of section 400.023 applied. [12] In May of 2001, section 400.023(1) was changed as follows: (1) Any resident whose rights as specified in this part are violated shall have a cause of action....

...ause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident. (emphasis supplied) In Thompson, Judge Kovachevich stated that prior to the most recent amendment of section 400.023(1) (quoted above), it was unclear whether a personal representative who filed suit after the nursing home resident died, could recover damages unrelated to the cause of death for a deceased resident's rights under chapter 400....

...She noted the conflicting provisions at the end of the 1997 version. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. (emphasis supplied). § 400.023, Fla. Stat. (1997). She concluded the statute was in fact ambiguous, despite the fourth district's 2000 opinion in Beverly Enterprises v. Knowles , but pointed to the 2001 version of section 400.023 as controlling in that case. We agree with Judge Kovachevich that under the 1997 version of section 400.023(1), it was not clear whether a personal representative could bring an action for deprivation of Chapter 400 rights of a deceased nursing home resident, if the deprivation *605 of those rights did not cause the death....

...lished 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. This is a case in which we think the most recent version of section 400.023 should be employed to determine the true Legislative intent as to the meaning of this older, ambiguous version of the statute....

...On remand, Abner should be entitled to a new trial on her Chapter 400 claims as well as her common law negligence claims. We also agree she should have the opportunity to present evidence on her punitive damage claims. Chapter 400 expressly provides that such damages are available. Section 400.023(5) provides: For the purpose of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless or consciously indifferent to the rights of the resident....

...Sanchez, 642 So.2d 122 (Fla. 5th DCA 1994). All judges within a district must follow the ruling of the district court of appeal in that district. Sanchez. [9] See H. Glenn Boggs and Conner, Nursing Home Tort Victims Rights and Remedies, 63 Fla. B.J. 2 at 11 (1989). [10] Section 400.023, Fla....

provided for in Section 7 of Chapter 76-201, Section 400.23(3) and (4), Florida Statutes (Supp. 1976).

...Wilkes, II, and Edward J. Lyons of Wilkes & McHugh, P.A., Tampa, for Appellees. ALTENBERND, Judge. Beverly Health and Rehabilitative Services, Inc. (Beverly Health), appeals an order granting a new trial to the plaintiff, Ralph T. Freeman, in an action pursuant to section 400.023, Florida Statutes (1993), for damages allegedly resulting from violations of Mr....

...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....

...ck for further deliberations after it rendered this verdict. See Cowart v. Kendall United Methodist Church, 476 So.2d 289 (Fla. 3d DCA 1985). While we do not decide in this case whether a jury may award nominal damages in actions brought pursuant to section 400.023, we note that the statute only authorizes "actual" damages....

...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....

...edical care, and requires nursing homes to make public statements of the rights and responsibilities of the residents. See § 400.022(1). To enforce these rights, the legislature provided each resident with a cause of action for their violation. See § 400.023(1)....

...rney's fees to assure the ability of the resident to enforce them. See id. [Footnote omitted.] The legislature also provided for the award of punitive damages for gross or flagrant conduct or conscious indifference to the rights of the resident. See § 400.023(5)....

...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....

...ervised, and his bandages were not changed as needed. Finally, he argued that the nursing home had used an improper medication, Haldol, as a chemical restraint. It is obvious that the "actual damages" potentially recoverable in this case pursuant to section 400.023, Florida Statutes (1991), are extensive under Mr....

...The arbitrator(s) may award compensatory and punitive damages, and with respect to punitive damages arising under Chapter 400, Florida Statutes, [Nursing Home Resident's Act] or abuse of the elderly, such punitive damages shall comply with the provisions of Florida Statutes 400.023(7) and (8) and Florida Statutes 768.735....

...ing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed. Id. However, the Nursing Home Resident's Act, found in section 400.023(2), Florida Statutes, calls for a preponderance of the evidence standard....

...th pain and suffering, consistent with Somberg and Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995). Tandem, relying on First Healthcare Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999), argued that no language in section 400.023 explicitly affords a personal representative a right of action for the decedent's pain and suffering if the death results from a deprivation of a nursing-home resident's rights, and that the damages recoverable under section 400.023 are limited to those a personal representative is authorized to recover under the WDA....

...[2] Following the return of the verdicts, Tandem filed several posttrial motions, and, during their pendency, the supreme court approved the holdings in Somberg and Spilman, concluding that the WDA did not limit a deceased resident's damages under section 400.023....

...oneconomic damages to Williams' nine heirs, because, in the court's judgment, neither the RRA nor the WDA authorized such awards. The court decided, after reading Somberg II, that the damages available to a personal representative for a violation of section 400.023 are those specifically provided by the RRA, and there was no provision therein, unlike the WDA, for damages to the familial survivors of nursing-home residents....

...The issue decided in Somberg II addressed only the question of whether the WDA limited the damages a personal representative could obtain on behalf of a deceased resident under the RRA, not whether the WDA expanded the damages available under the RRA. The court's precise holding was that because section 400.023(1) clearly states the types of damages recoverable in an action brought pursuant to that statute, the provisions of the WDA do not control, and therefore do not limit, the measure of damages authorized by the RRA....

...The estate next complains that the lower court's decision to strike the heirs' survivorship award of noneconomic damages was flawed because it was based on an erroneous interpretation of the RRA. Among other things, the estate points to Somberg II's reference to section 400.023(1), wherein it is stated that the remedies provided are "in addition to and cumulative of other legal ......

...remedies available to a resident." Id. at 1001. The estate reasons therefrom that the same damages available to an heir under the WDA have thus been incorporated within the RRA for the benefit of the heirs. We cannot agree. *375 The clearly expressed provisions of section 400.023 permit the resident, personal representative, or other statutorily designated person "to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. " § 400.023(1), Fla. Stat. (2000) (emphasis added). As the Fifth District noted in Spilman, "When section 400.023 was first enacted in 1980, it addressed only the rights of residents who survived the violation of their rights and allowed them to seek actual and punitive damages." Spilman, 661 So.2d at 868 (footnote omitted)....

...The difficulty with the estate's argument is that it never brought the statutory exclusion to the lower court's attention. Indeed, in its two motions seeking leave to add the punitive-damages claim, the estate did not distinguish between claims for punitive damages under section 400.023, and those under section 768.21....

...The court then recited the requisite standard quoted supra at page 377. In our opinion, just as the negligence of the corporate employer in Dupont could not support a conviction for manslaughter, neither do we consider that of Tandem sufficient for such purpose. In following Dupont, we are not unaware that section 400.023(5) of the RRA provides its own statutory standard necessary to sustain an award of punitive damages....

...ions). ,. The Goodins also request equitable relief, which the Court does not find warranted. . Indeed, the punitive damages provisions are plainly applicable to other causes of action arising outside of the "Torts” title be *1215 cause Fla. Stat. § 400.023 , in the "Public Health” title of the Florida code, required an express exemption from coverage under ' § 768.72(2)-(4)....

...y or fraud, actual, or presumed. The Blankfeld court concluded that requiring clear and convincing evidence of intentional or reckless misconduct effectively eliminates recovery for negligence and was contrary to the Nursing Home Residents *643 Act, section 400.023(2), Florida Statutes (2001)....

...(Emphasis added.) We note that the arbitration agreement states that the agreement would be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"). Neither party argued to the trial court nor to this court that the terms of the FAA would support or defeat the motion to compel arbitration. [3] Section 400.023(2) states: In any claim brought pursuant to this part alleging a violation of resident's rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evide...

residents are being admitted to the facility." § 400.23(7)(d), Fla. Stat. (2003). AHCA was required to

...ial rulings involving discovery, and on that basis, he granted the plaintiff a new trial. He also denied National's motion for attorney's fees on the ground that "the legislature intended to exclude a defendant's entitlement to attorney's fees under section 400.023, Florida Statutes." This appeal by National ensued....

...judgment in the amount of $40,000 that was rejected. When National received a verdict in its favor, it immediately filed a motion for attorney's fees. The trial court denied National's motion and limited defendant's entitlement to attorney's fees to section 400.023, Florida Statutes (1995)....

...filed in the courts of this state, if a defendant files an offer of judgment, which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf.... Section 400.023 provides that "[p]revailing defendant may be entitled to recover reasonable attorney's fee pursuant to s....

...; however, such claim is not cognizable because it was not raised in the trial court. See Laursen v. Filardo, 468 So.2d *27 251 (Fla. 2d DCA 1985). By ruling that the legislature intended to exclude a defendant's entitlement to attorney's fees under section 400.023, the trial court improperly eliminated the role of the offer of judgment statute and rules of procedure appertaining....

...ing home residents. Id. at 473 . The arbitration agreement in Shotts stated that the arbitrators had no authority to award punitive damages. Id. at 471 . On its face, this eroded access to specific statutory remedies provided by sections 400.022 and 400.023, Florida Statutes (2003)....

...Thus, standing alone, the fact that a particular litigant cannot afford to arbitrate her claims does not establish that an arbitration agreement, which requires cost sharing and the payment of costs prior to the hearing, violates public policy. Inarguably, all of the statutory remedies provided by section 400.023, Florida Statutes (2011), are still available to the Estate in the arbitral forum....

...tion of rights and Mr. Doyle's death. In support, the Estate cites to the recent decision of Estate of Youngblood v. Halifax Convalescent Center, Ltd., 874 So.2d 596 (Fla. 5th DCA 2004). In Knowles, the Fourth District Court of Appeal concluded that section 400.023(1) unambiguously provides that a personal representative could bring a residents' rights claim on behalf of a deceased nursing home resident "only when the deprivation or infringement of the resident's rights caused the patient's death." 766 So.2d at 336. In Youngblood, the Fifth District Court of Appeal disagreed with Knowles and determined that section 400.023(1) was ambiguous....

...ts claim even if the alleged deprivations or infringements of those rights did not cause death. Id. at 603-05. We disagree with Youngblood and agree with the Fourth District's analysis in Knowles and its conclusion that the pre-amendment language of section 400.023(1) is unambiguous....

...Accordingly, we conclude that the trial court did not err in instructing the jury. Regarding the other issues argued by the Estate, we affirm without discussion. Therefore, we affirm the final judgment and certify conflict with Youngblood. Affirmed; conflict certified. FULMER and VILLANTI, JJ., Concur. NOTES [1] Section 400.023(1), Florida Statutes (1999), provides: 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 per...

...The Personal Representative also asserted that in order to be a Fabre defendant, the non-party defendant must be a joint participant in the act for which the damages are claimed. Since this was an action pursuant to Chapter 400, Florida Statutes (1999), and since section 400.023(1) allows only the licensee of a nursing home to be sued for damages resulting from deprivation and/or infringement of a resident's rights, the Personal Representative argued that the Medical Center could not be a joint participant....

...substantial competent evidence adduced at trial that there was only a single injury, and accordingly, that D'Amario did not apply. We think the trial judge got it right. We are also unconvinced by the Personal Representative's argument that because section 400.023(1), Florida Statutes (1999), allows only the licensee of a nursing home to be sued for damages resulting from deprivation or infringement of a resident's rights, the Medical Center could not be a joint tortfeasor with the Nursing Home....

...lege *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. There is no dispute that the plaintiff complied with the presuit conditions contained in section 400.023(4), Florida Statutes (1997)....

...We cannot predict with certainty that the presuit conditions of chapter 766 will never apply in this type of suit. In this case, we rule merely that the presuit conditions of section 766.106 have no application to this complaint. Amendments the legislature made to section 400.023 in 1993, however, make it likely the presuit requirements of chapter 766 will not apply in most, if not all, cases in which the plaintiff's theory is limited exclusively to a violation of rights under chapter 400....

...When chapter 766 is read in its entirety, there is nothing to suggest that the legislature intends to intertwine this chapter with the similar, but separate, rights and requirements in chapter 400. Second, the same year the supreme court decided Weinstock, the legislature amended section 400.023 implying that a complaint filed exclusively under chapter 400 is not intended to invoke the presuit conditions of chapter 766. See ch. 93-217, § 4, Laws of Fla. The amendment created a separate presuit investigatory requirement for cases under chapter 400. See § 400.023(4). A claimant now must conduct an investigation that includes a review by a licensed physician or registered nurse prior to filing any complaint. The complaint must attach a verified statement from that reviewer. Moreover, the legislature added section 400.023(3), which states: A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the services of a medical director as required in this part....

...home statute. The nursing home statute creates a "right to receive adequate and appropriate health care," § 400.022(1)( l ), Fla. Stat. (1997), and creates a private right of action for deprivation of a nursing home resident's statutory rights. Id. § 400.023(1)....

...The personal representative countered that chapter 400 explicitly authorizes suit "by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights." Id. § 400.023(1)....

...In contrast, in Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867, 869 (Fla. 5th DCA 1995), the Fifth District determined that "[b]oth the plain language of the statute and the transcripts of the committee hearings indicate that the legislature did not intend for damages under section 400.023 to be limited by the Wrongful Death Act where the nursing home's infringement or deprivation of the *669 patient's rights resulted in the patient's death." We agree with the Fifth District's opinion in Beverly Enterprises-Florida and certify direct conflict with First Healthcare Corp....

...See Manor Care of Fla., Inc. v. Olt, 620 So.2d 1297 (Fla. 2d DCA 1993). Douglas Stalley, as the personal representative of the estate of Margaret Maggiacomo, sued Beverly and sought damages for the deprivation of Mrs. Maggiacomo's nursing home rights, pursuant to section 400.023, Florida Statutes (1993)....

...rt II, Florida Statutes. See § 400.23, Fla. Stat. (2003). [1] The trial court held two hearings at which argument was made but no evidence adduced. In its order denying arbitration, the trial court held that the contract was "not illusory" and that section 400.023 does not preclude arbitration of chapter 400 claims by "an otherwise valid agreement for arbitration." The court noted that the Sunrise had not waived the right to assert the arbitration issue....

...3d 456, 471 (Fla. 2011)). The public policy of the Florida Nursing Home Resident's Rights Act is to provide rights for, and to protect, nursing home residents. Shotts, 86 So. 3d at 474. Under the Act, a resident may recover actual and punitive damages for the violation of these rights or for negligence, § 400.023(1)(c), Fla....

...The nursing home contends that she should not have been discharged because her sacral wound required "in-patient wound care and consultation, among other courses of treatment." As a result of injuries arising from the sacral wound, Sanders sued the nursing home under section 400.023, Florida Statutes (2001). That section allows a cause of action for negligence or for a violation of rights specified in Chapter 400, Part II. See § 400.023(1), Fla....

..., tort or statutory claims for statutory, compensatory or punitive damages arising out of the relationship between the Resident and the Facility, including but not limited to ... those rights that may be available under Florida Statutes §§ 400.22, 400.023, 400.428, 400.429, 415.1111 ......

...sted living facilities, contractual limits on noneconomic damages and the elimination of, or imposition of obstacles to, punitive damages were against public policy because they eroded access to the specific remedies provided by sections 400.022 and 400.023. 86 So.3d at *863 474-75 . The court noted that the arbitration agreement in that case broadly incorporated the AHLA 3 rules, one of which altered, to the plaintiffs detriment, the availability of punitive damages authorized by section 400.023....

...Only section 12 of the agreement addresses damages, and it requires a preliminary “reasonable showing by evidence” of a “reasonable basis for recovery” of punitive damages, which “may only be awarded based on clear and convincing evidence and pursuant to Florida law.” This provision is consistent with section 400.0237, Florida Statutes (2010), which provides, in pertinent part: (1) In any action for damages brought under this part, no claim for punitive *864 damages shall be permitted unless there is a reasonable showing by evidence in the record...

...The “greater weight of the evidence” burden of proof applies to a determination of the amount of damages. While the proffered arbitration agreement does not speak to the use of “the greater weight of the evidence” standard to determine the amount of punitive damages as required by section 400.0237(4), it does not require to the contrary....

...ination act count on the grounds that no private cause of action existed under those statutes. While the case was proceeding, this court issued its opinion in Beverly Enterprises-Fla., Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000), holding that section 400.023, Florida Statutes, provided for the personal representative of a deceased to bring a cause of action for violation of nursing home resident's rights "only when the deprivation or infringement of the resident's rights caused the patient's death." 766 So.2d at 336 (emphasis in original)....

...Neumann's death and there was no evidence to support that conclusion. The trial court granted Morse's motion for summary judgment as to violation of nursing home resident's rights, pursuant to Knowles. The Supreme Court of Florida later upheld this court's decision in Knowles, specifically agreeing that section 400.023, Florida Statutes, provides that the personal representative of an estate may bring an action against the nursing home for violation of the patient's bill of rights only when the deprivation or infringement caused the patient's death....

...right, and the amount of damages could not be conclusively ascertained prior to trial. The trial court denied appellant prejudgment interest. Appellant argues that the trial court's ruling was in error because: (1) it concludes that the language of section 400.023, Florida Statutes (1995), "when the cause of death results from the deprivation" *1133 to unambiguously require the deprivation to be the cause of death rather than an act which results in the cause of death—thus it deletes words from the statute; (2) 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 requi...

independent contractor to perform certain tasks. Section 400.23(1), Florida Statutes (1995), provides a cause

...ON MOTION FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE PER CURIAM. We grant the motion for certification of a question of great public importance, and hereby certify the following question to the Florida Supreme 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 TH...

...eive adequate and appropriate health care and protective and support services, and the right to be free from both mental and physical abuse. In the event that any of these statutory rights is violated, the legislature provided for a cause of action. § 400.023, Fla....

...(2000). The chapter also provides that a personal representative on behalf of the estate of a deceased nursing home resident may pursue this cause of action "when the cause of death resulted from the deprivation or infringement of the decedent's rights." § 400.023(1)....

...*521 See 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935 (Fla. 4th DCA 2002). Amendment 7 was directed toward claims for medical malpractice. Nursing home claims under chapter 400, Florida Statutes, however, do not constitute claims of medical malpractice. § 400.023(7), Fla....

...justiciable case or controversy exists. For the reasons that follow, we grant the petition.  Background Gail Francati, a former nursing home resident, seeks a declaration regarding the constitutionality of the 2014 amendments to section 400.023, Florida Statutes. Francati argues that the amendments violate the separation of powers doctrine by creating new procedural rules singling out nursing home residents and violate her right to access to courts by limiting the parties...

...parties to an action challenging the constitutionality of a redistricting plan). Applying these factors to Francati’s complaint, we conclude that Governor Scott is not a proper defendant to her suit. Specifically, Francati challenges the constitutionality of section 400.023(3), Florida Statutes (2015), which provides: 3  (3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee’s managem...

...We find no merit in this argument. 4  While we recognize that Atwater involved a statute that identified a specific enforcement authority, the holding in that case is equally applicable to an action challenging the constitutionality of a self-executing statute, such as section 400.023. The question of whether a state official is a proper defendant to a suit challenging the constitutionality of a statute does not turn on whether the statute is self-executing. Rather, as our court instructed in Atwater, our analys...

...Specifically, Francati was required to allege “a present controversy based on articulated facts which demonstrate a real threat of immediate injury.” Id. 6  Although she has been presented with multiple opportunities to do so, Francati fails to allege a violation of section 400.023....

...the licensee’s managing employees, and any direct caregivers, whether employees or contractors - breached a duty of reasonable care that caused her to suffer some sort of injury or loss. Instead, Francati contends that her complaint alleges a present controversy because section 400.023 directs the procedures she must follow, takes away her common law right to bring a suit for negligence, and limits her remedies in violation of her constitutional rights of due process and access to courts....

...involving the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought.’” Id. at 241 (quoting Colby v. Colby, 120 So. 2d 797, 799 (Fla. 2d DCA 1960)). Francati merely raises a general challenge to the constitutionality of section 400.023; she fails to allege any concrete injury or how the statute actually infringes on any of her rights....

...urt). Francati has failed to allege a justiciable claim, and she cannot argue, in good faith, that she can allege any of the factors enunciated in Atwater that would allow her to name the Governor as a defendant in her constitutional challenge to section 400.023. Under this unique set of facts, we find that prohibition is warranted to prevent the trial court from exceeding its jurisdiction and to afford Governor Scott adequate relief....

Beverly's nursing home conducted pursuant to section 400.23, Florida Statutes (2001). The surveyors classified

...it. Shortly before the trial commenced, the Florida Supreme Court issued its opinion in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004), which held that a personal representative could not bring a claim under the 1997 version of section 400.023(1) when the alleged violation did not cause the resident's death....

...The trial court struggled with its decision but ultimately ruled that Knowles applied and that the claims under the Act would be limited to the allegations that occurred after May 15, 2001. This date became a component of the trial court's ruling because the Legislature amended section 400.023(1), effective on that date, to eliminate death as a causal factor when a personal representative brings a claim under the Act....

...Hadi, 932 So.2d 1086, 1089 (Fla.2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review."). The textual point marked for emphasis by the parties upon which we focus our attention is the part of the Act found in section 400.023(1) that states: 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....

...g 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 when the cause of death resulted from the deprivation or infringement of the decedent's rights. § 400.023(1), Fla....

...ome only when the death of the resident resulted from the deprivation or infringement of the decedent's rights. " Knowles, 898 So.2d at 6. What is clear from even a casual reading of the decision in Knowles, besides, of course, its interpretation of section 400.023(1), is that if the supreme court had the power to rewrite the statute with sensible design, it would have done so in a way that deleted the requirement that a personal representative can bring suit only if he or she shows that the all...

...maintaining a suit previously filed by the patient or guardian of a patient who dies during the pendency of the litigation. Unlike the trial court, we do not consider the terms "bring" and "maintain" to be synonymous within this statutory context of section 400.023(1)....

...1997). Judicial insertion of the provision "maintain an action" into the structure of the statute constitutes error on the part of the trial court, just as the Estate contends. We are not persuaded to the contrary by the cases that have dealt with section 400.023 and a personal representative's ability to bring suit prior to the statutory change, primarily because the factual scenarios that were presented to the courts in those cases are not similar or analogous to the facts in the instant case....

...trial on the claims under the Act. Certified Question Mariner suggests, and we think appropriately so, that the issue we have resolved should be certified to the Florida Supreme Court given the large number of pending claims based on the version of section 400.023(1) in effect prior to its amendment in 2001. Therefore, we certify the following question to the Florida Supreme Court as a matter of great public importance: DOES THE VERSION OF SECTION 400.023(1), FLORIDA STATUTES, IN EFFECT PRIOR TO ITS AMENDMENT IN 2001 PROHIBIT A PERSONAL REPRESENTATIVE FROM MAINTAINING A CLAIM WHEN THE ALLEGED VIOLATION DID NOT CAUSE THE RESIDENT'S DEATH AND WHEN THE SUIT WAS ORIGINALLY FILED BY THE RES...

...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. § 400.023(1), Fla....

...ursing homes. See Romano v. Manor Care, 861 So.2d 59, 62-63 (Fla. 4th DCA 2003); Crotts & Martinez, The Nursing Home Residents' Rights Act-A Good Idea Gone Bad!, 26 STETSON L. REV. 599 (1996). In 1993, the Legislature amended the statute by enacting section 400.023 ("Civil Enforcement"), providing civil remedies for nursing home residents for violation of the statute. § 400.023(1), 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. See § 400.023(1) (“The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any violation of the rights of a resident or for negligence.”)....

...rbitrator determined that there was “clear and convincing evidence” “of conduct evincing an intentional *300 or reckless disregard for the rights of another party, or fraud, actual or presumed.” Id. at 476-77 . This provision was contrary to section 400.023(2), which called for only a preponderance of the evidence standard....

...Angelo, suffered a fall while he was a resident in appellee’s rehabilitation facility following brain surgery on a tumor. As a result of the fall, he broke his hip and had to undergo two replacement surgeries. Appellant filed suit against appellee pursuant to section 400.023, Florida Statutes, alleging that appellee and its staff deprived appellant of his statutorily mandated right to receive adequate and appropriate health care and rehabilitative services....

...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....

...his section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. (Emphasis supplied.) In its order, the trial court found as persuasive authority the “legislative history” from section 400.023, Florida Statutes (1997), as well as two New York cases which construed that state’s nursing home law. Because the language of section 400.023 is clear and unambiguous, however, there is no need to extrapolate a meaning from legislative intent or from cases from other jurisdictions which interpret different statutes....

...tion 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....

...egislature 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....

...tion 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....

...ssociated with the arbitration will be divided equally between the parties. The parties shall bear their own attorney's fees and costs and hereby expressly waive any statutory right to recover attorney fees or costs, including under Florida Statutes § 400.023 § 400.029 and § 57.105 and Proposals for Settlement....

...recting a verdict in favor of the defendants on punitive damages is rendered moot. The estate additionally pled a cause of action for violation of Chapter 400, Florida Statutes (1999) which allows, in a proper case, for recovery of punitive damages. § 400.023(1), Fla....

...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....

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

...The trial court erred in dismissing the complaint. Florida Rule of Civil Procedure 1.210 provides that “a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.” Section 400.023, Florida Statutes, provides that: 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....

...cting on behalf of a resident with the consent of the resident.... (Emphasis added.) This section authorizes a person acting on behalf of a nursing home resident to sue to enforce the rights granted in Chapter 400. Construed with Fla.R.Civ.P. 1.210, section 400.023 authorizes Roberto Garcia to sue Brookwood on behalf of the real party in interest — his mother — in his mother’s name....

immediately. § 400.23(9)(a). The present ease involved a Class II deficiency, described in section 400.23(9)(b):

...4th DCA 2005), a case that, like Shotts and like this case, involved a nursing home arbitration. Blankfeld , determined that section 606 of the NHLA rules 3 was contrary to public policy because it limited the statutory remedies available in the Nursing Home Resident’s Act, § 400.023(2), Fla....

SUAREZ, J. Affirmed. § 400.023(1), Fla....

expressed the intent to file suit pursuant to section 400.023, Florida Statutes, for “deprivations and/or

...e occurring on a frequent basis in those facilities, whereupon the legislature responded with statutes intended to protect the residents, guaranteeing them certain rights and providing a civil cause of action for violations of those rights. See e.g. § 400.023, Fla....

...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....

...recovery of statutorily authorized fees, the plaintiff/offeree was not a prevailing party under that statute, and fees were properly denied. 3 Like *204 wise, in the instant case, the trial court found that appellant was not a prevailing party under section 400.023 because the count alleging violation of that statute was one of three counts alleged, the other two charging negligence....

...JOANOS and WIGGINTON, JJ., concur. . Emma Mort died prior to filing her final amended complaint due to causes unrelated to this case and 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....

personal representative can bring an action under Section 400.023 in connection with an infringement of a patient’s

...By agreement with the defendant, the plaintiff voluntarily dismissed the estate’s damage claim without prejudice. The trial court entered a final judgment, from which the plaintiff appeals. We reverse. The plaintiffs complaint alleged that the nursing home had violated her husband’s rights as a resident, under section 400.023, Florida Statutes (1999), resulting in his death....

...While these damages are specifically enumerated in the Wrongful Death Act, the plaintiff did not use the words “Wrongful Death Act” in the original complaint. On the eve of trial, the nursing home filed a motion for partial summary judgment. It argued that section 400.023, Florida Statutes (1999), limited claims to those on behalf of a resident and did not allow for survivor’s claims....

...Ten days after the hearing, but before the trial court entered the actual final judgment, the plaintiff attempted to amend the complaint. The amended complaint contained two counts. Both counts alleged claims for wrongful death, one based on a violation of rights under section 400.023, and the other based on simple negligence....

...The trial court denied the motion and entered the final judgment. The plaintiff moved for a rehearing to clarify that the original complaint sounded in wrongful death even though not specifically alleged. The trial court denied the motion. At issue is whether the 1999 version of section 400.023, Florida Statutes (1999), allows the personal representative of a deceased nursing home resident to recover survivor’s damages under the Wrongful Death Act when the allegations of negligence are based on a violation of the resident’s rights as set forth in the statute. We hold that it does. The 1999 version of section 400.023 provided: 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 viola *475 tion....

...and punitive damages for any deprivation or infringement on the rights of a resident.... The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency. § 400.023, Fla....

safety or security of nursing home residents. § 400.23(9)(b), Fla. Stat. (1995). A single class II deficiency

...make[s] out a prima facie case for relief” and enables the defendants “to intelligently answer and defend [themselves].” See Foerman v. Seaboard Coast Line R.R. Co., 279 So. 2d 825, 828 (Fla. 1973). We hold that it does. The complaint arises from section 400.023, Florida Statutes (2021), “which governs civil suits for negligence involving nursing home residents.” Sun Coast Nursing Ctrs., Inc....

...t or consulting companies also does not merit dismissal. The nursing home negligence statute allows claims “against the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers.” § 400.023(1), Fla. Stat. A management or consulting company is “an individual or entity who contracts with, or receives a fee from, a licensee to provide” certain services. Id. § 400.023(2)(b)....

...2d 1029, 1037 n.5 (Fla. 2001)). Holding that it applies here would negate the express purpose of the nursing home negligence statute, which creates an “exclusive cause of action” that “may be brought in any court of competent jurisdiction.” See § 400.023(1), Fla....

...In addition to providing for arbitration as a method to resolve disagreement, the arbitration agreement contains a limitation of liability. Because this provision “substantially diminishes or circumvents” the statutory remedies available to nursing home residents under section 400.023, Florida Statutes (2007), this provision is unenforceable....

...Arthur developed complications after his admission, leading to aspiration and death. The Estate alleged that Boca Rehab failed to adequately diagnose, treat or care for his condition. The Estate’s amended complaint alleged that appellants were liable under section 400.023(2)(b), Florida Statutes (2016), which governs civil suits for negligence involving nursing home residents....

...to do business in Florida and affiliated with the other appellants in ownership, control, operation, servicing, consultation and management of Boca Rehab. Similar to the allegations made against FI-Boca Raton, the Estate alleged that Sun Coast was liable under section 400.023(2)(b), because they hired or fired the administrator or director of nursing, controlled staffing levels, and created the budget, policies, and procedures of Boca Rehab. Airamid was alleged to be a Delaware corporation as well, and...

...Trollinger, sued the owners and operators of East Bay Nursing Center, where Ms. Trollinger resided prior to her death. The complaint sought both survival and wrongful death damages. The trial court granted the Defendants' Motions to Dismiss on the basis of section 400.023(1), Florida Statutes (2005), which provides: "If the action alleges a claim for the resident's rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s....

...Savoretti now petitions for a writ of certiorari to challenge the trial court's order. Savoretti argues that forcing the election at the pleading stage departs from the essential requirements of law. The cases she relies on are not persuasive because they do not involve actions governed by the statutory requirement in section 400.023(1). In her reply, she concedes that she raises an issue of first impression. She also asserts that she will not have an adequate remedy on plenary appeal because she will be forced to show her hand in an initial trial. Section 400.023(1) is silent as to whether the election of remedies must be made at the pleading stage or at the end of trial, and this appears to be an issue of first impression....

...injuries prior to her death or caused her death. The trial court has entered an order dismissing the multi-count complaint and requiring the personal representative to file an amended complaint that omits one cause of action or the other. As I read section 400.023(1), it requires the personal representative to elect to receive only one of the two different measures of damages that are available in such a case....

...5th DCA 2005) (allowing plaintiff to plead alternative bases for relief); Hines v. Trager Constr. Co., Inc., 188 So.2d 826, 830-31 (Fla. 1st DCA 1966) (noting that a pleader may seek relief under different theories of law even if relief depends upon materially different or inconsistent facts). Even if one assumes that section 400.023(1) requires a plaintiff to elect one cause of action, this election of a claim would not logically occur at the pleading stage....

...Trollinger, sued the owners and operators of East Bay Nursing Center, where Ms. Trollinger resided prior to her death. The complaint sought both survival and wrongful death damages. The trial court granted the Defendants’ Motions to Dismiss on the basis of section 400.023(1), Florida Statutes (2005), which provides: “If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s....

...Savoretti now petitions for a writ of certiorari to challenge the trial court’s order. Savoretti argues that forcing the election at the pleading stage departs from the essential requirements of law. The cases she relies on are not persuasive because they do not involve actions governed by the statutory requirement in section 400.023(1). In her reply, she concedes that she raises an issue of first impression. She also asserts that she will not have an adequate remedy on plenary appeal because she will be forced to show her hand in an initial trial. Section 400.023(1) is silent as to whether the election of remedies must be made at the pleading stage or at the end of trial, and this appears to be an issue of first impression....

report was prepared on Federal Form 2567. Under section 400.23(7)(d), Florida Statutes (2003), Menorah Manor

...ident's rights for providing inadequate medical care. We agree and, thus, reverse. Appellant sued Health Care, who was authorized to operate Heartland Health Care Center/Lauderhill ("Heartland"), the decedent's nursing home, for wrongful death under section 400.023, Florida Statutes (1997), of the Florida Nursing Home Act....

...whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1). Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993). *572 After McCullough, however, the Florida legislature amended section 400.023 in two critical ways....

...Any complaint alleging such a deprivation or infringement shall be accompanied by a verified statement from the reviewer that there exists reason to believe that a deprivation or infringement occurred during the resident's stay at the nursing home. § 400.023(4), Fla. Stat. Second, the legislature significantly restricted a claimant's ability to allege vicarious liability for the actions of a health care provider by adding section 400.023(3), which states: A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the services of a medical director as required in this part. Nothing in this subsection shall be construed to protect a licensee from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff. § 400.023(3), Fla....

...2d DCA 1997); Linkemar v. Health Care & Retirement Corp. of Am., No. 996909-CIV-HIGHSMITH, 1999 WL 984428 (S.D.Fla. 1999). Recently, however, the second district, in Integrated Health Care Services, Inc. v. Pauline Lang-Redway, 783 So.2d 1108 (2001), held these changes to section 400.023 make it likely that the Act's pre-suit requirements would not apply in most, if not all, cases in which the plaintiff's theory is limited to a violation of rights under Chapter 400....

...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. Stat. (1997), and creates a private right of action for deprivation of a nursing home resident's statutory rights. § 400.023(1), Fla. Stat. Although section 766.106 applies to suits involving general medical negligence, we conclude that the legislature, by enacting the 1993 amendments, clearly intended that the less comprehensive pre-suit requirements of section 400.023(4) should apply where the plaintiff alleges only that a nursing home violated a resident's right to adequate health care. *573 In this respect, we note that section 400.023(4) was enacted long after section 766.106 and we do not see how the two can be harmonized. As a general rule of statutory construction, a special statute controls over a general statute. See McKendry v. State, 641 So.2d 45 (Fla. 1994). Here, while section 766.106 applies to general medical negligence cases, section 400.023(4) specifically applies to suits involving a nursing home's failure to provide a resident with adequate health care. Because the legislative language of section 400.023(4) is unequivocal on the specific subject to which it speaks, it need not be "harmonized" with section 766.106, an inconsistent, general, and earlier-enacted statute....

...ursing home in which Ms. Pulido resided from 1994 until her death on February 14, 2001. The complaint alleged a claim for wrongful death, see § 768.19, Fla. Stat. (2001), and a separate claim for violation of a nursing home resident’s rights, see § 400.023, Fla....

...Lopez later filed a complaint alleging a deprivation of rights under the Assisted Living Facilities Act (“ALFA”), “a remedial statute closely akin to the NHRA.” Alterra Healthcare Corp. v. Bryant, 937 So.2d 268, 266 (Fla. 4th DCA 2006). Like section 400.023 of the NHRA, section 429.29(2) of the ALFA provides that claims for a violation of a resident’s rights or for negligence may be proved by “a preponderance of the evidence.” § 429.29(2), Fla....

...CIKLIN and KLINGENSMITH, JJ., concur. . While this appeal was pending, Ms. Lopez died. . During the proceedings in Blankfeld , the National Health Lawyers Association changed its name to the American Health Lawyers Association. . The Nursing Home Resident’s Act provides in section 400.023 that (2) In any claim brought pursuant to this part alleging a violation of resident’s rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evide...

...the resident; (b) The defendant breached the duty to the resident; (c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and (d) The resident sustained loss, injury, death or damage as a result of the breach. § 400.023(2)(a)-(d), Fla....

staffing shortage was a Class III deficiency under section 400.23(9)(c), and subject to a fine of $500 for *108each