CS/CS/HB 661

1	A bill to be entitled
2	An act relating to nursing home litigation reform;
3	amending s. 400.023, F.S.; specifying conditions under
4	which a nursing home resident has a cause of action
5	against a licensee or management company; requiring the
6	trial judge to conduct an evidentiary hearing before a
7	claimant can assert a claim against certain interested
8	parties; providing a limitation on recovery; amending s.
9	400.0237, F.S.; requiring evidence of the basis for
10	punitive damages; requiring the trial judge to conduct an
11	evidentiary hearing before a claimant can assert a claim
12	for punitive damages; permitting a licensee or management
13	company to be held liable for punitive damages under
14	certain circumstances; providing criteria for awarding of
15	punitive damages in a case of vicarious liability of
16	certain entities; providing applicability; providing for
17	severability; providing an effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Section 400.023, Florida Statutes, is amended
22	to read:
23	400.023  Civil enforcement.-
24	(1)  Any resident who alleges negligence or a violation of
25	whose rights as specified in this part has are violated shall
26	have a cause of action against the licensee or its management
27	company, as specifically identified in the application for
28	nursing home licensure, and its direct caregiver employees.
29	Sections 400.023-400.0238 provide the exclusive remedy against a
30	licensee or management company for a cause of action for
31	recovery of damages for the personal injury or death of a
32	nursing home resident arising out of negligence or a violation
33	of residents' rights specified in s. 400.022.
34	(2)  A cause of action may not be asserted individually
35	against an officer, director, owner, including any designated as
36	having a "controlling interest" on the application for nursing
37	home licensure, or agent of a licensee or management company
38	under this part unless, following an evidentiary hearing, the
39	court determines there is sufficient evidence in the record or
40	proffered by the claimant that establishes a reasonable basis
41	for a finding that:
42	(a)  The officer, director, owner, or agent breached,
43	failed to perform, or acted outside the scope of duties as an
44	officer, director, owner, or agent; and
45	(b)  The breach, failure to perform, or conduct outside the
46	scope of duties is a legal cause of actual loss, injury, death,
47	or damage to the resident.
48	(3)  The action may be brought by the resident or his or
49	her guardian, by a person or organization acting on behalf of a
50	resident with the consent of the resident or his or her
51	guardian, or by the personal representative of the estate of a
52	deceased resident regardless of the cause of death. If the
53	action alleges a claim for the resident's rights or for
54	negligence that caused the death of the resident, the claimant
55	shall be required to elect either survival damages pursuant to
56	s. 46.021 or wrongful death damages pursuant to s. 768.21. In
57	any claim for wrongful death brought under this section,
58	noneconomic damages may not exceed $300,000 per resident,
59	regardless of the number of claimants or defendants.
60	(4)  If the action alleges a claim for the resident's
61	rights or for negligence that did not cause the death of the
62	resident, the personal representative of the estate may recover
63	damages for the negligence that caused injury to the resident.
64	The action may be brought in any court of competent jurisdiction
65	to enforce such rights and to recover actual and punitive
66	damages for any violation of the rights of a resident or for
67	negligence.
68	(5)  Any resident who prevails in seeking injunctive relief
69	or a claim for an administrative remedy may is entitled to
70	recover the costs of the action, and a reasonable attorney's fee
71	assessed against the defendant not to exceed $25,000. Fees shall
72	be awarded solely for the injunctive or administrative relief
73	and not for any claim or action for damages whether such claim
74	or action is brought together with a request for an injunction
75	or administrative relief or as a separate action, except as
76	provided under s. 768.79 or the Florida Rules of Civil
77	Procedure. Sections 400.023-400.0238 provide the exclusive
78	remedy for a cause of action for recovery of damages for the
79	personal injury or death of a nursing home resident arising out
80	of negligence or a violation of rights specified in s. 400.022.
81	This section does not preclude theories of recovery not arising
82	out of negligence or s. 400.022 which are available to a
83	resident or to the agency. The provisions of Chapter 766 does do
84	not apply to any cause of action brought under ss. 400.023-
85	400.0238.
86	(6)(2)  In any claim brought under pursuant to this part
87	alleging a violation of resident's rights or negligence causing
88	injury to or the death of a resident, the claimant has shall
89	have the burden of proving, by a preponderance of the evidence,
90	that:
91	(a)  The defendant breached the applicable standard of
92	care; and owed a duty to the resident;
93	(b)  The defendant breached the duty to the resident;
94	(b)(c)  The breach of the duty is a legal cause of actual
95	loss, injury, death, or damage to the resident; and
96	(d)  The resident sustained loss, injury, death, or damage
97	as a result of the breach.
98	(7)  Nothing in this part shall be interpreted to create
99	strict liability. A violation of the rights set forth in s.
100	400.022 or in any other standard or guidelines specified in this
101	part or in any applicable administrative standard or guidelines
102	of this state or a federal regulatory agency shall be evidence
103	of negligence but shall not be considered negligence per se.
104	(8)(3)  In any claim brought pursuant to this section, a
105	licensee, person, or entity shall have a duty to exercise
106	reasonable care. Reasonable care is that degree of care which a
107	reasonably careful licensee, person, or entity would use under
108	like circumstances.
109	(9)(4)  In any claim for resident's rights violation or
110	negligence by a nurse licensed under part I of chapter 464, such
111	nurse shall have the duty to exercise care consistent with the
112	prevailing professional standard of care for a nurse. The
113	prevailing professional standard of care for a nurse shall be
114	that level of care, skill, and treatment which, in light of all
115	relevant surrounding circumstances, is recognized as acceptable
116	and appropriate by reasonably prudent similar nurses.
117	(10)(5)  A licensee shall not be liable for the medical
118	negligence of any physician rendering care or treatment to the
119	resident except for the administrative services of a medical
120	director as required in this part. Nothing in this subsection
121	shall be construed to protect a licensee, person, or entity from
122	liability for failure to provide a resident with appropriate
123	observation, assessment, nursing diagnosis, planning,
124	intervention, and evaluation of care by nursing staff.
125	(11)(6)  The resident or the resident's legal
126	representative shall serve a copy of any complaint alleging in
127	whole or in part a violation of any rights specified in this
128	part to the Agency for Health Care Administration at the time of
129	filing the initial complaint with the clerk of the court for the
130	county in which the action is pursued. The requirement of
131	providing a copy of the complaint to the agency does not impair
132	the resident's legal rights or ability to seek relief for his or
133	her claim.
134	(12)(7)  An action under this part for a violation of
135	rights or negligence recognized herein is not a claim for
136	medical malpractice, and the provisions of s. 768.21(8) does do
137	not apply to a claim alleging death of the resident.
138	Section 2.  Subsections (1), (2), and (3) of section
139	400.0237, Florida Statutes, are amended to read:
140	400.0237  Punitive damages; pleading; burden of proof.-
141	(1)  In any action for damages brought under this part, a
142	no claim for punitive damages may not be brought shall be
143	permitted unless there is a reasonable showing of admissible by
144	evidence that has been in the record or proffered by the parties
145	and provides claimant which would provide a reasonable basis for
146	recovery of such damages when the criteria set forth in this
147	section are applied. The claimant may move to amend her or his
148	complaint to assert a claim for punitive damages as allowed by
149	the rules of civil procedure. The trial judge shall conduct an
150	evidentiary hearing and weigh the admissible evidence proffered
151	by all parties to ensure that there is a reasonable basis to
152	believe that the claimant, at trial, will be able to demonstrate
153	by clear and convincing evidence that the recovery of such
154	damages is warranted. The rules of civil procedure shall be
155	liberally construed so as to allow the claimant discovery of
156	evidence which appears reasonably calculated to lead to
157	admissible evidence on the issue of punitive damages. No A
158	discovery of financial worth may not shall proceed until after
159	the pleading on concerning punitive damages is approved
160	permitted.
161	(2)  A defendant, including the licensee or management
162	company against whom punitive damages is sought, may be held
163	liable for punitive damages only if the trier of fact, based on
164	clear and convincing evidence, finds that a specific individual
165	or corporate defendant actively and knowingly participated in
166	intentional misconduct or engaged in conduct that constituted
167	gross negligence and contributed to the loss, damages, or injury
168	suffered by the claimant the defendant was personally guilty of
169	intentional misconduct or gross negligence. As used in this
170	section, the term:
171	(a)  "Intentional misconduct" means that the defendant
172	against whom punitive damages are sought had actual knowledge of
173	the wrongfulness of the conduct and the high probability that
174	injury or damage to the claimant would result and, despite that
175	knowledge, intentionally pursued that course of conduct,
176	resulting in injury or damage.
177	(b)  "Gross negligence" means that the defendant's conduct
178	was so reckless or wanting in care that it constituted a
179	conscious disregard or indifference to the life, safety, or
180	rights of persons exposed to such conduct.
181	(3)  In the case of vicarious liability of an employer,
182	principal, corporation, or other legal entity, punitive damages
183	may not be imposed for the conduct of an employee or agent
184	unless only if the conduct of a specifically identified the
185	employee or agent meets the criteria specified in subsection (2)
186	and an officer, director, or manager of the actual employer,
187	corporation, or legal entity condoned, ratified, or consented to
188	the specific conduct as alleged in subsection (2).:
189	(a)  The employer, principal, corporation, or other legal
190	entity actively and knowingly participated in such conduct;
191	(b)  The officers, directors, or managers of the employer,
192	principal, corporation, or other legal entity condoned,
193	ratified, or consented to such conduct; or
194	(c)  The employer, principal, corporation, or other legal
195	entity engaged in conduct that constituted gross negligence and
196	that contributed to the loss, damages, or injury suffered by the
197	claimant.
198	Section 3.  If any provision of this act or its application
199	to any person or circumstance is held invalid, the invalidity
200	does not affect other provisions or applications of this act
201	which can be given effect without the invalid provision or
202	application, and to this end the provisions of this act are
203	severable.
204	Section 4.  This act shall take effect July 1, 2011, and
205	shall apply to all causes of action that accrue on or after that
206	date.

CODING: Words stricken are deletions; words underlined are additions.