Florida Senate - 2014 COMMITTEE AMENDMENT
Bill No. CS for SB 670
Ì437100_Î437100
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/19/2014 .
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1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 400.023, Florida Statutes, is amended to
6 read:
7 400.023 Civil enforcement.—
8 (1) An exclusive cause of action for negligence or a
9 violation of residents’ Any resident whose rights as specified
10 under in this part which alleges direct or vicarious liability
11 for the personal injury or death of a nursing home resident
12 arising from such negligence or violation of rights and which
13 seeks damages for such injury or death may be brought only
14 against the licensee, the licensee’s management or consulting
15 company, the licensee’s managing employees, and any direct
16 caregivers, whether employees or contractors are violated shall
17 have a cause of action. A passive investor is not liable under
18 this section. An action against any other individual or entity
19 may be brought only pursuant to subsection (3).
20 (a) The action may be brought by the resident or his or her
21 guardian, by a person or organization acting on behalf of a
22 resident with the consent of the resident or his or her
23 guardian, or by the personal representative of the estate of a
24 deceased resident regardless of the cause of death.
25 (b) If the action alleges a claim for the resident’s rights
26 or for negligence that caused the death of the resident, the
27 claimant shall, after the verdict, but before the judgment is
28 entered, be required to elect either survival damages pursuant
29 to s. 46.021 or wrongful death damages pursuant to s. 768.21. If
30 the action alleges a claim for the resident’s rights or for
31 negligence that did not cause the death of the resident, the
32 personal representative of the estate may recover damages for
33 the negligence that caused injury to the resident.
34 (c) The action may be brought in any court of competent
35 jurisdiction to enforce such rights and to recover actual and
36 punitive damages for the any violation of the rights of a
37 resident or for negligence.
38 (d) A Any resident who prevails in seeking injunctive
39 relief or a claim for an administrative remedy is entitled to
40 recover the costs of the action, and a reasonable attorney fees
41 attorney’s fee assessed against the defendant of up to not to
42 exceed $25,000. Fees shall be awarded solely for the injunctive
43 or administrative relief and not for any claim or action for
44 damages whether such claim or action is brought together with a
45 request for an injunction or administrative relief or as a
46 separate action, except as provided under s. 768.79 or the
47 Florida Rules of Civil Procedure. Sections 400.023-400.0238
48 provide the exclusive remedy for a cause of action for recovery
49 of damages for the personal injury or death of a nursing home
50 resident arising out of negligence or a violation of rights
51 specified in s. 400.022.
52 (e) This section does not preclude theories of recovery not
53 arising out of negligence or s. 400.022 which are available to a
54 resident or to the agency. The provisions of Chapter 766 does do
55 not apply to a any cause of action brought under ss. 400.023
56 400.0238.
57 (2) As used in this section, the term:
58 (a) “Licensee” means an individual, corporation,
59 partnership, firm, association, governmental entity, or other
60 entity that is issued a permit, registration, certificate, or
61 license by the agency, and that is legally responsible for all
62 aspects of the operation of the nursing home facility.
63 (b) “Management or consulting company” means an individual
64 or entity who contracts with, or receives a fee from, a licensee
65 to provide any of the following services for a nursing home
66 facility:
67 1. Hiring or firing of the administrator or director of
68 nursing;
69 2. Controlling or having control over the staffing levels
70 at the facility;
71 3. Having control over the budget of the facility; or
72 4. Implementing and enforcing the policies and procedures
73 of the facility.
74 (c) “Passive investor” means an individual or entity that
75 has an interest in a facility but does not participate in the
76 decisionmaking or operations of the facility.
77 (3) A cause of action may not be asserted against an
78 individual or entity other than the licensee, the licensee’s
79 management or consulting company, the licensee’s managing
80 employees, and any direct caregivers, whether employees or
81 contractors, unless, after a motion for leave to amend hearing,
82 the court or an arbitration panel determines that there is
83 sufficient evidence in the record or proffered by the claimant
84 to establish a reasonable showing that:
85 (a) The individual or entity owed a duty of reasonable care
86 to the resident and that the individual or entity breached that
87 duty; and
88 (b) The breach of that duty is a legal cause of loss,
89 injury, death, or damage to the resident.
90
91 For purposes of this subsection, if, in a proposed amended
92 pleading, it is asserted that such cause of action arose out of
93 the conduct, transaction, or occurrence set forth or attempted
94 to be set forth in the original pleading, the proposed amendment
95 relates back to the original pleading.
96 (4)(2) In a any claim brought pursuant to this part
97 alleging a violation of residents’ resident’s rights or
98 negligence causing injury to or the death of a resident, the
99 claimant has shall have the burden of proving, by a
100 preponderance of the evidence, that:
101 (a) The defendant owed a duty to the resident;
102 (b) The defendant breached the duty to the resident;
103 (c) The breach of the duty is a legal cause of loss,
104 injury, death, or damage to the resident; and
105 (d) The resident sustained loss, injury, death, or damage
106 as a result of the breach.
107
108 Nothing in This part does not shall be interpreted to create
109 strict liability. A violation of the rights set forth in s.
110 400.022, or in any other standard or guidelines specified in
111 this part, or in any applicable administrative standard or
112 guidelines of this state or a federal regulatory agency is shall
113 be evidence of negligence but is shall not be considered
114 negligence per se.
115 (5)(3) In a any claim brought pursuant to this section, a
116 licensee, individual person, or entity has shall have a duty to
117 exercise reasonable care. Reasonable care is that degree of care
118 which a reasonably careful licensee, individual person, or
119 entity would use under like circumstances.
120 (6)(4) In a any claim for a residents’ resident’s rights
121 violation or negligence by a nurse licensed under part I of
122 chapter 464, such nurse has shall have the duty to exercise care
123 consistent with the prevailing professional standard of care for
124 a nurse. The prevailing professional standard of care for a
125 nurse is shall be that level of care, skill, and treatment
126 which, in light of all relevant surrounding circumstances, is
127 recognized as acceptable and appropriate by reasonably prudent
128 similar nurses.
129 (7)(5) A licensee is shall not be liable for the medical
130 negligence of a any physician rendering care or treatment to the
131 resident except for the administrative services of a medical
132 director as required under in this part. Nothing in This
133 subsection does not shall be construed to protect a licensee,
134 individual person, or entity from liability for failure to
135 provide a resident with appropriate observation, assessment,
136 nursing diagnosis, planning, intervention, and evaluation of
137 care by nursing staff.
138 (8)(6) The resident or the resident’s legal representative
139 shall serve a copy of a any complaint alleging in whole or in
140 part a violation of any rights specified in this part to the
141 agency for Health Care Administration at the time of filing the
142 initial complaint with the clerk of the court for the county in
143 which the action is pursued. The requirement of providing a copy
144 of the complaint to the agency does not impair the resident’s
145 legal rights or ability to seek relief for his or her claim.
146 (9)(7) An action under this part for a violation of rights
147 or negligence recognized herein is not a claim for medical
148 malpractice, and the provisions of s. 768.21(8) does do not
149 apply to a claim alleging death of the resident.
150 Section 2. Section 400.0237, Florida Statutes, is amended
151 to read:
152 400.0237 Punitive damages; pleading; burden of proof.—
153 (1) A In any action for damages brought under this part, no
154 claim for punitive damages may not be brought under this part
155 shall be permitted unless there is a reasonable showing by
156 admissible evidence that has been submitted by the parties that
157 provides in the record or proffered by the claimant which would
158 provide a reasonable basis for recovery of such damages when the
159 criteria in this section are applied.
160 (a) The claimant may move to amend her or his complaint to
161 assert a claim for punitive damages as allowed by the rules of
162 civil procedure in accordance with evidentiary requirements set
163 forth in this section.
164 (b) The court shall conduct a hearing to determine whether
165 there is sufficient admissible evidence submitted by the parties
166 to ensure that there is a reasonable basis to believe that the
167 claimant, at trial, will be able to demonstrate by clear and
168 convincing evidence that the recovery of such damages is
169 warranted under a claim for direct liability as specified in
170 subsection (2) or under a claim for vicarious liability as
171 specified in subsection (3).
172 (c) The rules of civil procedure shall be liberally
173 construed so as to allow the claimant discovery of evidence
174 which appears reasonably calculated to lead to admissible
175 evidence on the issue of punitive damages. No Discovery of
176 financial worth may not shall proceed until after the pleading
177 on concerning punitive damages is approved by the court
178 permitted.
179 (2) A defendant may be held liable for punitive damages
180 only if the trier of fact, by based on clear and convincing
181 evidence, finds that a specific person or corporate defendant
182 actively and knowingly participated in intentional misconduct or
183 engaged in conduct that constitutes gross negligence and
184 contributed to the loss, damages, or injury suffered by the
185 claimant the defendant was personally guilty of intentional
186 misconduct or gross negligence. As used in this section, the
187 term:
188 (a) “Intentional misconduct” means that the defendant
189 against whom punitive damages are sought had actual knowledge of
190 the wrongfulness of the conduct and the high probability that
191 injury or damage to the claimant would result and, despite that
192 knowledge, intentionally pursued that course of conduct,
193 resulting in injury or damage.
194 (b) “Gross negligence” means that a the defendant’s conduct
195 was so reckless or wanting in care that it constituted a
196 conscious disregard or indifference to the life, safety, or
197 rights of persons exposed to such conduct.
198 (3) In the case of vicarious liability of an individual,
199 employer, principal, corporation, or other legal entity,
200 punitive damages may not be imposed for the conduct of an
201 employee or agent unless only if the conduct of the employee or
202 agent meets the criteria specified in subsection (2) and an
203 officer, director, or manager of the actual employer,
204 corporation, or legal entity condoned, ratified, or consented to
205 the specific conduct as provided in subsection (2):
206 (a) The employer, principal, corporation, or other legal
207 entity actively and knowingly participated in such conduct;
208 (b) The officers, directors, or managers of the employer,
209 principal, corporation, or other legal entity condoned,
210 ratified, or consented to such conduct; or
211 (c) The employer, principal, corporation, or other legal
212 entity engaged in conduct that constituted gross negligence and
213 that contributed to the loss, damages, or injury suffered by the
214 claimant.
215 (4) The plaintiff shall must establish at trial, by clear
216 and convincing evidence, its entitlement to an award of punitive
217 damages. The “greater weight of the evidence” burden of proof
218 applies to a determination of the amount of damages.
219 (5) This section is remedial in nature and shall take
220 effect upon becoming a law.
221 Section 3. Section 400.024, Florida Statutes, is created to
222 read:
223 400.024 Failure to satisfy a judgment or settlement
224 agreement.—
225 (1) Upon the entry by a Florida court of an adverse final
226 judgment against a licensee as defined in s. 400.023(2) which
227 arises from an award pursuant to s. 400.023, including an
228 arbitration award, for a claim of negligence or a violation of
229 residents’ rights, in contract or tort, or from noncompliance
230 with the terms of a settlement agreement as determined by a
231 court or arbitration panel, which arises from a claim pursuant
232 to s. 400.023, the licensee shall pay the judgment creditor the
233 entire amount of the judgment, award, or settlement and all
234 accrued interest within 60 days after the date such judgment,
235 award, or settlement becomes final and subject to execution
236 unless otherwise mutually agreed to in writing by the parties.
237 Failure to make such payment shall result in additional grounds
238 that may be used by the agency for revoking a license or for
239 denying a renewal application or a related party change of
240 ownership application as provided in this section.
241 (2) The agency is deemed notified of an unsatisfied
242 judgment or settlement under subsection (1) when a certified
243 copy of the judgment and a certified copy of a valid judgment
244 lien certificate, filed in accordance with ss. 55.202 and
245 55.203, are served to the agency by process server or received
246 by certified mail, return receipt requested. Within 60 days
247 after receiving such documents, the agency shall notify the
248 licensee by certified mail, return receipt requested, that it is
249 subject to disciplinary action unless, within 30 days after the
250 date of mailing the notice, the licensee:
251 (a) Shows proof that the unsatisfied judgment or settlement
252 has been paid in the amount specified;
253 (b) Shows proof of the existence of a payment plan mutually
254 agreed upon by the parties in writing;
255 (c) Furnishes the agency with a copy of a timely filed
256 notice of appeal;
257 (d) Furnishes the agency with a copy of a court order
258 staying execution of the final judgment; or
259 (e) Shows proof by submitting an order from a court or
260 arbitration panel that is overseeing any action seeking
261 indemnification from an insurance carrier or other party that
262 the licensee believes is required to pay the award.
263 (3) If the agency is placed on notice pursuant to
264 subsection (2) and proof pursuant to subsection (2) is not
265 provided by the licensee, the agency shall issue an emergency
266 order pursuant to s. 120.60 declaring that the facility lacks
267 financial ability to operate and a notice of intent to revoke or
268 deny a license.
269 (4) If, after the agency is placed on notice pursuant to
270 subsection (2) and:
271 (a) The license is subject to renewal, the agency may deny
272 the license renewal unless compliance with this section is
273 achieved; and
274 (b) A change of ownership application for the facility at
275 issue is submitted by the licensee, by a person or entity
276 identified as having a controlling interest in the licensee, or
277 by a related party, the agency shall deny the change of
278 ownership application unless compliance with this section is
279 achieved.
280 Section 4. Section 400.145, Florida Statutes, is amended to
281 read:
282 (Substantial rewording of section. See
283 s. 400.145, F.S., for present text.)
284 400.145 Copies of records of care and treatment of
285 resident.—
286 (1) Upon receipt of a written request that complies with
287 the federal Health Insurance Portability and Accountability Act
288 of 1996 (HIPAA) and this section, a nursing home facility shall
289 furnish to a competent resident, or to a representative of that
290 resident who is authorized to make requests for the resident’s
291 records under HIPAA or subsection (2), copies of the resident’s
292 paper and electronic records that are in possession of the
293 facility. Such records must include any medical records and
294 records concerning the care and treatment of the resident
295 performed by the facility, except for progress notes and
296 consultation report sections of a psychiatric nature. The
297 facility shall provide the requested records within 14 working
298 days after receipt of a request relating to a current resident
299 or within 30 working days after receipt of a request relating to
300 a former resident.
301 (2) Requests for a deceased resident’s medical records
302 under this section may be made by:
303 (a) A person appointed by a court to act as the personal
304 representative, executor, administrator, curator, or temporary
305 administrator of the deceased resident’s estate;
306 (b) If a judicial appointment has not been made as provided
307 in paragraph (a), a person designated by the resident to act as
308 his or her personal representative in a last will that is self
309 proved under s. 732.503; or
310 (c) If no judicial appointment has been made as provided in
311 paragraph (a) or no person has been designated by the resident
312 in a last will as provided in paragraph (b), only the following
313 individuals:
314 1. A surviving spouse.
315 2. If there is no surviving spouse, a surviving child of
316 the resident.
317 3. If there is no surviving spouse or child, a parent of
318 the resident.
319 (3) All requests for a deceased resident’s records made by
320 a person authorized under:
321 (a) Paragraph (2)(a) must include a copy of the letter of
322 administration and a copy of the court order appointing such
323 person as the representative of the resident’s estate.
324 (b) Paragraph (2)(b) must include a copy of the self-proved
325 last will designating the person as the resident’s
326 representative.
327 (c) Paragraph (2)(c) must be accompanied by a letter from
328 the person’s attorney verifying the person’s relationship to the
329 resident and the absence of a court-appointed representative and
330 self-proved last will.
331 (4) A nursing home facility may charge a reasonable fee for
332 the copying of resident records. Such fee may not exceed $1 per
333 page for the first 25 pages and 25 cents per page for each
334 additional page. The facility shall allow a person who is
335 authorized to act on behalf of the resident to examine the
336 original records, microfilms, or other suitable reproductions of
337 the records in its possession upon any reasonable terms imposed
338 by the facility to ensure that the records are not damaged,
339 destroyed, or altered.
340 (5) If a nursing home facility determines that disclosure
341 of the records to the resident would be detrimental to the
342 physical or mental health of the resident, the facility may
343 refuse to furnish the record directly to the resident; however,
344 upon such refusal, the resident’s records shall, upon written
345 request by the resident, be furnished to any other medical
346 provider designated by the resident.
347 (6) A nursing home facility that in good faith and in
348 reliance upon this section releases copies of records shall be
349 indemnified by the party who requested the records pursuant to
350 subsection (2) for any damages resulting from such release, and
351 may not be found to have violated any criminal or civil laws,
352 and is not civilly liable to the resident, the resident’s
353 estate, or any other person for any damages resulting from such
354 release.
355 (7) A nursing home facility is not required to provide
356 copies of a resident’s records requested pursuant to this
357 section more than once per month, except that copies of
358 physician reports in the resident’s records must be provided as
359 often as necessary to allow the effective monitoring of the
360 resident’s condition.
361 (8) A nursing home facility may not be cited by the agency
362 through the survey process for any alleged or actual
363 noncompliance with any of the requirements of this section.
364 (9) This section does not limit any right to obtain records
365 by subpoena or other court process.
366 Section 5. The amendments to ss. 400.023 and 400.0237,
367 Florida Statutes, made by this act apply to causes of action
368 accruing on or after the effective date of this act.
369 Section 6. This act shall take effect upon becoming a law.
370
371 ================= T I T L E A M E N D M E N T ================
372 And the title is amended as follows:
373 Delete everything before the enacting clause
374 and insert:
375 A bill to be entitled
376 An act relating to nursing home litigation; amending
377 s. 400.023, F.S.; specifying that a cause of action
378 for negligence or violation of residents’ rights
379 alleging direct or vicarious liability for the injury
380 or death of a nursing home resident may be brought
381 against a licensee, its management or consulting
382 company, its managing employees, and any direct
383 caregiver employees or contractors; providing that a
384 cause of action may not be asserted against other
385 individuals or entities except under certain
386 circumstances; revising related judicial procedures;
387 defining terms; amending s. 400.0237, F.S.; providing
388 that a claim for punitive damages may not be brought
389 unless there is a showing of evidence that provides a
390 reasonable basis for recovery of such damages when
391 certain criteria are applied; requiring the court to
392 conduct a hearing to determine whether there is
393 sufficient evidence to demonstrate that the recovery
394 of punitive damages is warranted; requiring the trier
395 of fact to find that a specific person or corporate
396 defendant participated in or engaged in conduct that
397 constituted gross negligence and contributed to the
398 damages or injury suffered by the claimant before a
399 defendant may be held liable for punitive damages;
400 requiring an officer, director, or manager of the
401 employer, corporation, or legal entity to condone,
402 ratify, or consent to specified conduct before holding
403 such person or entity vicariously liable for punitive
404 damages; creating s. 400.024, F.S.; authorizing the
405 Agency for Health Care Administration to revoke the
406 license or deny a license renewal or change of
407 ownership application of a nursing home facility that
408 fails to pay a judgment or settlement agreement;
409 providing for notification to the agency of such
410 failure and for agency notification to the licensee of
411 disciplinary action; providing licensee grounds for
412 overcoming failure to pay; authorizing the agency to
413 issue an emergency order and notice of intent to
414 revoke or deny a license; authorizing the agency to
415 deny a license renewal and requiring the agency to
416 deny a change of ownership; amending s. 400.145, F.S.;
417 revising procedures for obtaining the records of a
418 resident; specifying which records may be obtained and
419 who may obtain them; providing immunity from liability
420 to a facility that provides such records in good
421 faith; providing that the agency may not cite a
422 facility that does not meet these records
423 requirements; providing applicability; providing an
424 effective date.