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November 02

Probate Litigation: Are Damages Under Chapter 400 Action Limited to Those Under the Wrongful Death Act?

Written by Thomas Upchurch , , ,

"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same." – Albert Einstein

No, they are not limited. The interpretation of statutes and case law regarding a Personal Representative’s election to sue for wrongful death when a nursing home may have violated the patient’s rights resulting in death did not come easy.

The Court’s Conflicting Decisions

The Fifth District Court of Appeals (5th DCA) held the position in Spilman that yes, a Personal Representative may elect to sue under Chapter 400 if it is more favorable than under the Wrongful Death Act. The nursing home argued that the Personal Representative suing on behalf of the estate was limited to recovery under the Wrongful Death Act. The Third District Court of Appeals (3rd DCA) adopted the 5th DCA’s position.
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