Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1396
                                Barcode 799184                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/13/2011           .                                

       The Committee on Health Regulation (Diaz de la Portilla)
       recommended the following:
    1         Senate Amendment to Amendment (541928) (with title
    2  amendment)
    4         Delete line 3
    5  and insert:
    7         Delete lines 28 - 338
    8  and insert:
   10         Section 1. Section 400.023, Florida Statutes, is reordered
   11  and amended to read:
   12         400.023 Civil enforcement.—
   13         (1) A Any resident who whose alleges negligence or a
   14  violation of rights as specified in this part has are violated
   15  shall have a cause of action against the licensee or its
   16  management company, as identified in the state application for
   17  nursing home licensure. However, the cause of action may not be
   18  asserted individually against an officer, director, owner,
   19  including an owner designated as having a controlling interest
   20  on the state application for nursing home licensure, or agent of
   21  a licensee or management company unless, following an
   22  evidentiary hearing, the court determines there is sufficient
   23  evidence in the record or proffered by the claimant which
   24  establishes a reasonable basis for finding that the person or
   25  entity breached, failed to perform, or acted outside the scope
   26  of duties as an officer, director, owner, or agent, and that the
   27  breach, failure to perform, or action outside the scope of
   28  duties is a legal cause of actual loss, injury, death, or damage
   29  to the resident.
   30         (2) The action may be brought by the resident or his or her
   31  guardian, by a person or organization acting on behalf of a
   32  resident with the consent of the resident or his or her
   33  guardian, or by the personal representative of the estate of a
   34  deceased resident regardless of the cause of death.
   35         (5) If the action alleges a claim for the resident’s rights
   36  or for negligence that:
   37         (a) Caused the death of the resident, the claimant must
   38  shall be required to elect either survival damages pursuant to
   39  s. 46.021 or wrongful death damages pursuant to s. 768.21. If
   40  the claimant elects wrongful death damages, total noneconomic
   41  damages may not exceed $300,000, regardless of the number of
   42  claimants.
   43         (b)If the action alleges a claim for the resident’s rights
   44  or for negligence that Did not cause the death of the resident,
   45  the personal representative of the estate may recover damages
   46  for the negligence that caused injury to the resident.
   47         (3) The action may be brought in any court of competent
   48  jurisdiction to enforce such rights and to recover actual and
   49  punitive damages for any violation of the rights of a resident
   50  or for negligence.
   51         (10) Any resident who prevails in seeking injunctive relief
   52  or a claim for an administrative remedy may is entitled to
   53  recover the costs of the action, and a reasonable attorney’s fee
   54  assessed against the defendant not to exceed $25,000. Fees shall
   55  be awarded solely for the injunctive or administrative relief
   56  and not for any claim or action for damages whether such claim
   57  or action is brought together with a request for an injunction
   58  or administrative relief or as a separate action, except as
   59  provided under s. 768.79 or the Florida Rules of Civil
   60  Procedure. Sections 400.023-400.0238 provide the exclusive
   61  remedy for a cause of action for recovery of damages for the
   62  personal injury or death of a nursing home resident arising out
   63  of negligence or a violation of rights specified in s. 400.022.
   64  This section does not preclude theories of recovery not arising
   65  out of negligence or s. 400.022 which are available to a
   66  resident or to the agency. The provisions of chapter 766 do not
   67  apply to any cause of action brought under ss. 400.023-400.0238.
   68         (6)(2)If the In any claim brought pursuant to this part
   69  alleges alleging a violation of resident’s rights or negligence
   70  causing injury to or the death of a resident, the claimant shall
   71  have the burden of proving, by a preponderance of the evidence,
   72  that:
   73         (a) The defendant owed a duty to the resident;
   74         (b) The defendant breached the duty to the resident;
   75         (c) The breach of the duty is a legal cause of loss,
   76  injury, death, or damage to the resident; and
   77         (d) The resident sustained loss, injury, death, or damage
   78  as a result of the breach.
   79         (12) Nothing in This part does not shall be interpreted to
   80  create strict liability. A violation of the rights set forth in
   81  s. 400.022 or in any other standard or guidelines specified in
   82  this part or in any applicable administrative standard or
   83  guidelines of this state or a federal regulatory agency is shall
   84  be evidence of negligence but may shall not be considered
   85  negligence per se.
   86         (7)(3) In any claim brought pursuant to this section, a
   87  licensee, person, or entity has shall have a duty to exercise
   88  reasonable care. Reasonable care is that degree of care which a
   89  reasonably careful licensee, person, or entity would use under
   90  like circumstances.
   91         (9)(4) In any claim for resident’s rights violation or
   92  negligence by a nurse licensed under part I of chapter 464, such
   93  nurse has a shall have the duty to exercise care consistent with
   94  the prevailing professional standard of care for a nurse. The
   95  prevailing professional standard of care for a nurse is shall be
   96  that level of care, skill, and treatment which, in light of all
   97  relevant surrounding circumstances, is recognized as acceptable
   98  and appropriate by reasonably prudent similar nurses.
   99         (8)(5) A licensee is shall not be liable for the medical
  100  negligence of any physician rendering care or treatment to the
  101  resident except for the administrative services of a medical
  102  director as required in this part. Nothing in This subsection
  103  does not shall be construed to protect a licensee, person, or
  104  entity from liability for failure to provide a resident with
  105  appropriate observation, assessment, nursing diagnosis,
  106  planning, intervention, and evaluation of care by nursing staff.
  107         (4)(6) The resident or the resident’s legal representative
  108  shall serve a copy of any complaint alleging in whole or in part
  109  a violation of any rights specified in this part to the agency
  110  for Health Care Administration at the time of filing the initial
  111  complaint with the clerk of the court for the county in which
  112  the action is pursued. The requirement of Providing a copy of
  113  the complaint to the agency does not impair the resident’s legal
  114  rights or ability to seek relief for his or her claim.
  115         (11)(7) An action under this part for a violation of rights
  116  or negligence recognized herein is not a claim for medical
  117  malpractice, and the provisions of s. 768.21(8) do not apply to
  118  a claim alleging death of the resident.
  119         Section 2. Subsections (1), (2), and (3) of section
  120  400.0237, Florida Statutes, are amended to read:
  121         400.0237 Punitive damages; pleading; burden of proof.—
  122         (1) In any action for damages brought under this part, a no
  123  claim for punitive damages is not shall be permitted unless,
  124  based on admissible there is a reasonable showing by evidence in
  125  the record or proffered by the claimant, which would provide a
  126  reasonable basis for recovery of such damages is demonstrated
  127  upon applying the criteria set forth in this section. The
  128  defendant may proffer admissible evidence to refute the
  129  claimant’s proffer of evidence to recover punitive damages. The
  130  trial judge shall conduct an evidentiary hearing and weigh the
  131  admissible evidence proffered by the claimant and the defendant
  132  to ensure that there is a reasonable basis to believe that the
  133  claimant, at trial, will be able to demonstrate by clear and
  134  convincing evidence that the recovery of such damages is
  135  warranted. The claimant may move to amend her or his complaint
  136  to assert a claim for punitive damages as allowed by the rules
  137  of civil procedure. The rules of civil procedure shall be
  138  liberally construed so as to allow the claimant discovery of
  139  evidence which appears reasonably calculated to lead to
  140  admissible evidence on the issue of punitive damages. No
  141  Discovery of financial worth may not shall proceed until after
  142  the trial judge approves the pleading on concerning punitive
  143  damages is permitted.
  144         (2) A defendant, including the licensee or management
  145  company, against whom punitive damages is sought, may be held
  146  liable for punitive damages only if the trier of fact, based on
  147  clear and convincing evidence, finds that a specific individual
  148  or corporate defendant actively and knowingly participated in
  149  intentional misconduct, or engaged in conduct that constituted
  150  gross negligence, and that conduct contributed to the loss,
  151  damages, or injury suffered by the claimant the defendant was
  152  personally guilty of intentional misconduct or gross negligence.
  153  As used in this section, the term:
  154         (a) “Intentional misconduct” means that the defendant
  155  against whom a claim for punitive damages is sought had actual
  156  knowledge of the wrongfulness of the conduct and the high
  157  probability that injury or damage to the claimant would result
  158  and, despite that knowledge, intentionally pursued that course
  159  of conduct, resulting in injury or damage.
  160         (b) “Gross negligence” means that the defendant’s conduct
  161  was so reckless or wanting in care that it constituted a
  162  conscious disregard or indifference to the life, safety, or
  163  rights of persons exposed to such conduct.
  164         (3) In the case of vicarious liability of an employer,
  165  principal, corporation, or other legal entity, punitive damages
  166  may not be imposed for the conduct of an identified employee or
  167  agent unless only if the conduct of the employee or agent meets
  168  the criteria specified in subsection (2) and officers,
  169  directors, or managers of the actual employer corporation or
  170  legal entity condoned, ratified, or consented to the specific
  171  conduct as alleged by the claimant in subsection (2).:
  172         (a) The employer, principal, corporation, or other legal
  173  entity actively and knowingly participated in such conduct;
  174         (b) The officers, directors, or managers of the employer,
  175  principal, corporation, or other legal entity condoned,
  176  ratified, or consented to such conduct; or
  177         (c) The employer, principal, corporation, or other legal
  178  entity engaged in conduct that constituted gross negligence and
  179  that contributed to the loss, damages, or injury suffered by the
  180  claimant.
  181         Section 3. This act shall take effect July 1, 2011.
  183  ================= T I T L E  A M E N D M E N T ================
  184  And the title is amended as follows:
  186         Delete lines 7 - 10
  187  and insert:
  189         Delete lines 2 - 24,
  190  and insert:
  192         An act relating to nursing homes; amending s. 400.023,
  193         F.S.; requiring the trial judge to conduct an
  194         evidentiary hearing to determine the sufficiency of
  195         evidence for claims against certain persons relating
  196         to a nursing home; limiting noneconomic damages in a
  197         wrongful death action against the nursing home;
  198         amending s. 400.0237, F.S.; revising provisions
  199         relating to punitive damages against a nursing home;
  200         authorizing a defendant to proffer admissible evidence
  201         to refute a claimant’s proffer of evidence for
  202         punitive damages; requiring the trial judge to conduct
  203         an evidentiary hearing and the plaintiff to
  204         demonstrate that a reasonable basis exists for the
  205         recovery of punitive damages; prohibiting discovery of
  206         the defendant’s financial worth until the judge
  207         approves the pleading on punitive damages; revising
  208         definitions; providing an effective date.