Florida Senate - 2011                                    SB 1396
       By Senator Bogdanoff
       25-01113A-11                                          20111396__
    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
    6         the trial judge to conduct an evidentiary hearing
    7         before a claimant can assert a claim against certain
    8         interested parties; providing a timeframe for a
    9         claimant to elect survival damages or wrongful death
   10         damages; providing a limitation on recovery; amending
   11         s. 400.0237, F.S.; requiring evidence of the basis for
   12         punitive damages; requiring the trial judge to conduct
   13         an evidentiary hearing before a claimant can assert a
   14         claim for punitive damages; permitting a licensee or
   15         management company to be held liable for punitive
   16         damages under certain circumstances; providing
   17         criteria for awarding of punitive damages in a case of
   18         vicarious liability of certain entities; amending s.
   19         400.0238, F.S.; providing additional conditions for
   20         settlements involving claims for punitive damages;
   21         amending s. 400.23, F.S.; providing limitations for
   22         admissibility of survey and licensure reports and the
   23         presentation of testimony or other evidence of
   24         staffing deficiencies; providing an effective date.
   26  Be It Enacted by the Legislature of the State of Florida:
   28         Section 1. Section 400.023, Florida Statutes, is amended to
   29  read:
   30         400.023 Civil enforcement.—
   31         (1) Any resident who alleges negligence or a violation of
   32  whose rights as specified in this part has are violated shall
   33  have a cause of action against the licensee or its management
   34  company, as specifically identified in the application for
   35  nursing home licensure, and its direct caregiver employees.
   36  Sections 400.023-400.0238 provide the exclusive remedy against a
   37  licensee or management company for a cause of action for
   38  recovery of damages for the personal injury or death of a
   39  nursing home resident arising out of negligence or a violation
   40  of residents’ rights specified in s. 400.022.
   41         (2) A cause of action may not be asserted individually
   42  against an employee, officer, director, owner, including any
   43  designated as having a “controlling interest” on the application
   44  for nursing home licensure, or agent of a licensee or management
   45  company under this part unless, following an evidentiary
   46  hearing, the court determines there is sufficient evidence in
   47  the record or proffered by the claimant that establishes a
   48  reasonable basis for a finding that:
   49         (a) The officer, director, owner, or agent breached, failed
   50  to perform, or acted outside the scope of duties as an officer,
   51  director, owner, or agent; and
   52         (b) The breach, failure to perform, or conduct outside the
   53  scope of duties is a legal cause of actual loss, injury, death,
   54  or damage to the resident.
   55         (3) If an action is brought by or on behalf of a resident
   56  under this part, a cause of action under s. 415.111 may not be
   57  asserted against an employee, officer, director, owner, or agent
   58  of a licensee or management company.
   59         (4) The action may be brought by the resident or his or her
   60  guardian, by a person or organization acting on behalf of a
   61  resident with the consent of the resident or his or her
   62  guardian, or by the personal representative of the estate of a
   63  deceased resident regardless of the cause of death. If the
   64  action alleges a claim for the resident’s rights or for
   65  negligence that caused the death of the resident, the claimant
   66  shall be required to elect, at the end of discovery but not
   67  later than 60 days before trial, either survival damages
   68  pursuant to s. 46.021 or wrongful death damages pursuant to s.
   69  768.21. In any claim for wrongful death brought under this
   70  section, noneconomic damages may not exceed a total of $250,000,
   71  regardless of the number of claimants or defendants.
   72         (5) If the action alleges a claim for the resident’s rights
   73  or for negligence that did not cause the death of the resident,
   74  the personal representative of the estate may recover damages
   75  for the negligence that caused injury to the resident. The
   76  action may be brought in any court of competent jurisdiction to
   77  enforce such rights and to recover actual and punitive damages
   78  for any violation of the rights of a resident or for negligence.
   79         (6) Any resident who prevails in seeking injunctive relief
   80  or a claim for an administrative remedy may is entitled to
   81  recover the costs of the action, and a reasonable attorney’s fee
   82  assessed against the defendant not to exceed $25,000. Fees shall
   83  be awarded solely for the injunctive or administrative relief
   84  and not for any claim or action for damages whether such claim
   85  or action is brought together with a request for an injunction
   86  or administrative relief or as a separate action, except as
   87  provided under s. 768.79 or the Florida Rules of Civil
   88  Procedure. Sections 400.023-400.0238 provide the exclusive
   89  remedy for a cause of action for recovery of damages for the
   90  personal injury or death of a nursing home resident arising out
   91  of negligence or a violation of rights specified in s. 400.022.
   92  This section does not preclude theories of recovery not arising
   93  out of negligence or s. 400.022 which are available to a
   94  resident or to the agency. The provisions of Chapter 766 does do
   95  not apply to any cause of action brought under ss. 400.023
   96  400.0238.
   97         (7)(2) In any claim brought under pursuant to this part
   98  alleging a violation of resident’s rights or negligence causing
   99  injury to or the death of a resident, the claimant has shall
  100  have the burden of proving, by a preponderance of the evidence,
  101  that:
  102         (a) The defendant breached the applicable standard of care;
  103  and owed a duty to the resident;
  104         (b) The defendant breached the duty to the resident;
  105         (b)(c) The breach of the duty is a legal cause of actual
  106  loss, injury, death, or damage to the resident; and
  107         (d) The resident sustained loss, injury, death, or damage
  108  as a result of the breach.
  109         (8) Nothing in this part shall be interpreted to create
  110  strict liability. A violation of the rights set forth in s.
  111  400.022 or in any other standard or guidelines specified in this
  112  part or in any applicable administrative standard or guidelines
  113  of this state or a federal regulatory agency shall be evidence
  114  of negligence but shall not be considered negligence per se.
  115         (9)(3) In any claim brought pursuant to this section, a
  116  licensee, person, or entity shall have a duty to exercise
  117  reasonable care. Reasonable care is that degree of care which a
  118  reasonably careful licensee, person, or entity would use under
  119  like circumstances.
  120         (10)(4) In any claim for resident’s rights violation or
  121  negligence by a nurse licensed under part I of chapter 464, such
  122  nurse shall have the duty to exercise care consistent with the
  123  prevailing professional standard of care for a nurse. The
  124  prevailing professional standard of care for a nurse shall be
  125  that level of care, skill, and treatment which, in light of all
  126  relevant surrounding circumstances, is recognized as acceptable
  127  and appropriate by reasonably prudent similar nurses.
  128         (11)(5) A licensee shall not be liable for the medical
  129  negligence of any physician rendering care or treatment to the
  130  resident except for the administrative services of a medical
  131  director as required in this part. Nothing in this subsection
  132  shall be construed to protect a licensee, person, or entity from
  133  liability for failure to provide a resident with appropriate
  134  observation, assessment, nursing diagnosis, planning,
  135  intervention, and evaluation of care by nursing staff.
  136         (12)(6) The resident or the resident’s legal representative
  137  shall serve a copy of any complaint alleging in whole or in part
  138  a violation of any rights specified in this part to the Agency
  139  for Health Care Administration at the time of filing the initial
  140  complaint with the clerk of the court for the county in which
  141  the action is pursued. The requirement of providing a copy of
  142  the complaint to the agency does not impair the resident’s legal
  143  rights or ability to seek relief for his or her claim.
  144         (13)(7) An action under this part for a violation of rights
  145  or negligence recognized herein is not a claim for medical
  146  malpractice, and the provisions of s. 768.21(8) does do not
  147  apply to a claim alleging death of the resident.
  148         Section 2. Subsections (1), (2), and (3) of section
  149  400.0237, Florida Statutes, are amended to read:
  150         400.0237 Punitive damages; pleading; burden of proof.—
  151         (1) In any action for damages brought under this part, a no
  152  claim for punitive damages may not be brought shall be permitted
  153  unless there is a reasonable showing of admissible by evidence
  154  that has been in the record or proffered by the parties and
  155  provides claimant which would provide a reasonable basis for
  156  recovery of such damages when the criteria set forth in this
  157  section are applied. The claimant may move to amend her or his
  158  complaint to assert a claim for punitive damages as allowed by
  159  the rules of civil procedure. The trial judge shall conduct an
  160  evidentiary hearing and weigh the admissible evidence proffered
  161  by all parties to ensure that there is a reasonable basis to
  162  believe that the claimant, at trial, will be able to demonstrate
  163  by clear and convincing evidence that the recovery of such
  164  damages is warranted. The rules of civil procedure shall be
  165  liberally construed so as to allow the claimant discovery of
  166  evidence which appears reasonably calculated to lead to
  167  admissible evidence on the issue of punitive damages. No A
  168  discovery of financial worth shall not proceed until after the
  169  pleading on concerning punitive damages is approved permitted.
  170         (2) A defendant, including the licensee or management
  171  company against whom punitive damages is sought, may be held
  172  liable for punitive damages only if the trier of fact, based on
  173  clear and convincing evidence, finds that a specific individual
  174  or corporate defendant actively and knowingly participated in
  175  intentional misconduct or engaged in conduct that constituted
  176  gross negligence and contributed to the loss, damages, or injury
  177  suffered by the claimant the defendant was personally guilty of
  178  intentional misconduct or gross negligence. As used in this
  179  section, the term:
  180         (a) “Intentional misconduct” means that the defendant
  181  against whom punitive damages are sought had actual knowledge of
  182  the wrongfulness of the conduct and the high probability that
  183  injury or damage to the claimant would result and, despite that
  184  knowledge, intentionally pursued that course of conduct,
  185  resulting in injury or damage.
  186         (b) “Gross negligence” means that the defendant’s conduct
  187  was so reckless or wanting in care that it constituted a
  188  conscious disregard or indifference to the life, safety, or
  189  rights of persons exposed to such conduct.
  190         (3) In the case of vicarious liability of an employer,
  191  principal, corporation, or other legal entity, punitive damages
  192  may not be imposed for the conduct of an employee or agent
  193  unless only if the conduct of a specifically identified the
  194  employee or agent meets the criteria specified in subsection (2)
  195  and an officer, director, or manager of the actual employer,
  196  corporation, or legal entity condoned, ratified, or consented to
  197  the specific conduct as alleged in subsection (2). A state or
  198  federal survey report of nursing facilities may not be used to
  199  establish an entitlement to punitive damages under this
  200  section.:
  201         (a) The employer, principal, corporation, or other legal
  202  entity actively and knowingly participated in such conduct;
  203         (b) The officers, directors, or managers of the employer,
  204  principal, corporation, or other legal entity condoned,
  205  ratified, or consented to such conduct; or
  206         (c) The employer, principal, corporation, or other legal
  207  entity engaged in conduct that constituted gross negligence and
  208  that contributed to the loss, damages, or injury suffered by the
  209  claimant.
  210         Section 3. Subsections (2) and (4) of section 400.0238,
  211  Florida Statutes, are amended to read:
  212         400.0238 Punitive damages; limitation.—
  213         (2) The claimant’s attorney’s fees, if payable from the
  214  judgment, are, to the extent that the fees are based on the
  215  punitive damages, calculated based on the claimant’s share of
  216  final judgment for punitive damages. This subsection does not
  217  limit the payment of attorney’s fees based upon an award of
  218  damages other than punitive damages.
  219         (4) Notwithstanding any other law to the contrary, if a
  220  claimant has received a final judgment for the amount of
  221  punitive damages or there is a settlement of a case in which the
  222  claimant was granted leave to amend his or her complaint to add
  223  a claim for punitive damages, the punitive award awarded
  224  pursuant to this section shall be equally divided, before any
  225  distribution to the claimant’s counsel for fees or costs,
  226  between the claimant and the Quality of Long-Term Care Facility
  227  Improvement Trust Fund, in accordance with the following
  228  provisions:
  229         (a) In the event of a judgment, the clerk of the court
  230  shall transmit a copy of the jury verdict to the Chief Financial
  231  Officer by certified mail. In the final judgment, the court
  232  shall order the percentages of the award, payable as provided
  233  herein. In the event of a settlement, the parties shall transmit
  234  by certified mail to the Chief Financial Officer a statement of
  235  the proportionate share due to the Quality of Long-Term Care
  236  Facility Improvement Trust Fund.
  237         (b) A settlement agreement entered into between the
  238  original parties to the action after a verdict has been returned
  239  must provide a proportionate share payable to the Quality of
  240  Long-Term Care Facility Improvement Trust Fund specified herein.
  241  For purposes of this paragraph, a proportionate share is a 50
  242  percent share of that percentage of the settlement amount which
  243  the punitive damages portion of the verdict bore to the total of
  244  the compensatory and punitive damages in the verdict.
  245         (c) For a settlement agreement entered into between the
  246  parties to the action, at any time after a claimant is permitted
  247  by the court to amend the agreement to add a count for punitive
  248  damages, but before a final judgment on the issue, 50 percent of
  249  the total settlement amount shall be the punitive award. The
  250  punitive award shall be equally divided, before any distribution
  251  to the claimant’s counsel for fees or costs, between the
  252  claimant and the Quality of Long-Term Care Facility Improvement
  253  Trust Fund. The amount of the punitive award and the allocation
  254  of that award provided for in this subsection may not be altered
  255  in any way by agreement of the parties after the claimant has
  256  been granted leave to amend his or her complaint to include a
  257  claim for punitive damages.
  258         (d) Settlement of a claim before a verdict by a defendant
  259  in which a claimant was permitted at any time to amend the claim
  260  to add a count for punitive damages is not an admission of
  261  liability for conduct described in subsection (2) and is not
  262  governed by this section.
  263         (e)(c) The Department of Financial Services shall collect
  264  or cause to be collected all payments due the state under this
  265  section. Such payments are made to the Chief Financial Officer
  266  and deposited in the appropriate fund specified in this
  267  subsection.
  268         (f)(d) If the full amount of punitive damages awarded
  269  cannot be collected, the claimant and the other recipient
  270  designated pursuant to this subsection are each entitled to a
  271  proportionate share of the punitive damages collected.
  272         Section 4. Paragraph (d) is added to subsection (3) and
  273  paragraph (e) is added to subsection (8) of section 400.23,
  274  Florida Statutes, to read:
  275         400.23 Rules; evaluation and deficiencies; licensure
  276  status.—
  277         (3)
  278         (d) In any action brought under ss. 400.023400.0238, if
  279  the licensee demonstrates compliance with the minimum staffing
  280  requirements under this part, the licensee is entitled to a
  281  presumption that appropriate staffing was provided and the
  282  claimant may not be permitted to present any testimony or other
  283  evidence of understaffing. The testimony or other evidence is
  284  only permissible for days on which it can be demonstrated that
  285  the licensee was not in compliance with the minimum staffing
  286  requirements under this part. Evidence that the licensee was
  287  staffed by an insufficient number of nursing assistants or
  288  licensed nurses may not be qualified or admitted on behalf of a
  289  resident who makes a claim, unless the licensee received a class
  290  I, class II, or uncorrected class III deficiency for failure to
  291  comply with the minimum staffing requirements under this part
  292  and the claimant resident was identified by the agency as having
  293  suffered actual harm because of that failure.
  294         (8) The agency shall adopt rules pursuant to this part and
  295  part II of chapter 408 to provide that, when the criteria
  296  established under subsection (2) are not met, such deficiencies
  297  shall be classified according to the nature and the scope of the
  298  deficiency. The scope shall be cited as isolated, patterned, or
  299  widespread. An isolated deficiency is a deficiency affecting one
  300  or a very limited number of residents, or involving one or a
  301  very limited number of staff, or a situation that occurred only
  302  occasionally or in a very limited number of locations. A
  303  patterned deficiency is a deficiency where more than a very
  304  limited number of residents are affected, or more than a very
  305  limited number of staff are involved, or the situation has
  306  occurred in several locations, or the same resident or residents
  307  have been affected by repeated occurrences of the same deficient
  308  practice but the effect of the deficient practice is not found
  309  to be pervasive throughout the facility. A widespread deficiency
  310  is a deficiency in which the problems causing the deficiency are
  311  pervasive in the facility or represent systemic failure that has
  312  affected or has the potential to affect a large portion of the
  313  facility’s residents. The agency shall indicate the
  314  classification on the face of the notice of deficiencies as
  315  follows:
  316         (e) A deficiency identified by the agency in a nursing home
  317  survey is not admissible for any purpose in an action under ss.
  318  400.023400.0238. However:
  319         1. A survey deficiency citing a resident on whose behalf
  320  the action is brought may be introduced as evidence of
  321  negligence if the agency has determined that the resident
  322  sustained actual harm as a result thereof; or
  323         2. A survey deficiency may be introduced after an
  324  evidentiary hearing to determine its relevance, if the
  325  deficiency is:
  326         a. Found to have caused actual harm to residents and was
  327  widespread; or
  328         b. Determined by the agency to be an uncorrected pattern of
  329  activity related to the injury sustained by the claimant.
  331  If a claimant in an action under ss. 400.023-400.0238 was a
  332  member of a survey resident roster or otherwise was the subject
  333  of any survey by the agency and the agency did not allege or
  334  determine that any deficiency occurred with respect to that
  335  claimant during that survey, the licensee may introduce the
  336  absence of a deficiency citation to refute an allegation of
  337  neglect or noncompliance with regulatory standards.
  338         Section 5. This act shall take effect July 1, 2011.