HB 493

1	A bill to be entitled
2	An act relating to licensure of nursing homes and related
3	health care facilities; amending s. 400.021, F.S.;
4	providing a definition; amending s. 400.023, F.S.;
5	providing a condition for actions brought on behalf of
6	nursing home residents under a certain alternative theory
7	of recovery; creating s. 400.0232, F.S.; prohibiting
8	certain actions or admissions from being admitted as
9	evidence in liability actions under certain circumstances;
10	amending s. 400.0237, F.S.; requiring an evidentiary
11	hearing to determine the basis for punitive damages;
12	amending s. 400.23, F.S.; providing conditions under which
13	a facility is not liable for failure to provide adequate
14	staffing; prohibiting records relating to state licensure
15	inspection reports from introduction in a civil proceeding
16	against a facility; permitting a person who provides
17	certain information to a state licensure inspector to
18	provide certain testimony; providing for construction;
19	amending s. 415.102, F.S.; providing a definition;
20	providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Subsections (4) through (18) of section
25	400.021, Florida Statutes, are renumbered as subsections (5)
26	through (19), respectively, and a new subsection (4) is added to
27	that section to read:
28	400.021  Definitions.--When used in this part, unless the
29	context otherwise requires, the term:
30	(4)  "Benevolent gesture" means any action, conduct,
31	statement, or gesture that conveys a sense of apology,
32	condolence, explanation, compassion, or commiseration emanating
33	from humane impulses.
34	Section 2.  Subsection (1) of section 400.023, Florida
35	Statutes, is amended to read:
36	400.023  Civil enforcement.--
37	(1)  Any resident whose rights as specified in this part
38	are violated shall have a cause of action. The action may be
39	brought by the resident or his or her guardian, by a person or
40	organization acting on behalf of a resident with the consent of
41	the resident or his or her guardian, or by the personal
42	representative of the estate of a deceased resident regardless
43	of the cause of death. If the action alleges a claim for the
44	resident's rights or for negligence that caused the death of the
45	resident, the claimant shall be required to elect either
46	survival damages pursuant to s. 46.021 or wrongful death damages
47	pursuant to s. 768.21. If the action alleges a claim for the
48	resident's rights or for negligence that did not cause the death
49	of the resident, the personal representative of the estate may
50	recover damages for the negligence that caused injury to the
51	resident. The action may be brought in any court of competent
52	jurisdiction to enforce such rights and to recover actual and
53	punitive damages for any violation of the rights of a resident
54	or for negligence. Any resident who prevails in seeking
55	injunctive relief or a claim for an administrative remedy is
56	entitled to recover the costs of the action, and a reasonable
57	attorney's fee assessed against the defendant not to exceed
58	$25,000. Fees shall be awarded solely for the injunctive or
59	administrative relief and not for any claim or action for
60	damages whether such claim or action is brought together with a
61	request for an injunction or administrative relief or as a
62	separate action, except as provided under s. 768.79 or the
63	Florida Rules of Civil Procedure. Sections 400.023-400.0238
64	provide the exclusive remedy for a cause of action for recovery
65	of damages for the personal injury or death of a nursing home
66	resident arising out of negligence or a violation of rights
67	specified in s. 400.022. This section does not preclude theories
68	of recovery not arising out of negligence or s. 400.022 which
69	are available to a resident or to the agency. The provisions of
70	chapter 766 do not apply to any cause of action brought under
71	ss. 400.023-400.0238. This section precludes a cause of action
72	under s. 415.1111 as an alternative theory of recovery against
73	any person unless he or she is a perpetrator as defined in s.
74	415.102.
75	Section 3.  Section 400.0232, Florida Statutes, is created
76	to read:
77	400.0232  Benevolent gesture or admission of fault.--Any
78	benevolent gesture or admission of fault made prior to the
79	commencement of a liability action or mediation brought under
80	this part by an officer, employee, health care provider, or
81	agent of a nursing home to a resident, or a relative or
82	representative of a resident, regarding the resident's
83	discomfort, pain, suffering, injury, or death, regardless of the
84	cause, including, but not limited to, the unanticipated outcome
85	of any treatment, consultation, care, or service or omission of
86	any treatment, consultation, care, or service provided by the
87	nursing home facility or its employees, agents, or contractors,
88	is inadmissible as evidence of liability or as evidence of an
89	admission against interest.
90	Section 4.  Subsections (1) and (4) of section 400.0237,
91	Florida Statutes, are amended to read:
92	400.0237  Punitive damages; pleading; burden of proof.--
93	(1)  In any action for damages brought under this part, no
94	claim for punitive damages shall be permitted unless there is a
95	reasonable showing by admissible evidence in the record that has
96	been or proffered by the parties claimant which would provide a
97	reasonable basis for recovery of such damages applying the
98	standards set forth in this section. The claimant may move to
99	amend her or his complaint to assert a claim for punitive
100	damages as allowed by the rules of civil procedure. The rules of
101	civil procedure shall be liberally construed so as to allow the
102	claimant discovery of evidence which appears reasonably
103	calculated to lead to admissible evidence on the issue of
104	punitive damages. The trial judge shall conduct an evidentiary
105	hearing and weigh the admissible evidence proffered by all
106	parties to ensure that there is a reasonable basis for the
107	recovery of punitive damages. No discovery of financial worth
108	shall proceed until after the pleading concerning punitive
109	damages is permitted.
110	(4)  The plaintiff must establish to the at trial judge, by
111	clear and convincing evidence, its entitlement to assert a claim
112	for an award of punitive damages and must establish at trial, by
113	clear and convincing evidence, its entitlement to an award of
114	punitive damages. The "greater weight of the evidence" burden of
115	proof applies to a determination of the amount of damages.
116	Section 5.  Subsections (11) and (12) are added to section
117	400.23, Florida Statutes, to read:
118	400.23  Rules; evaluation and deficiencies; licensure
119	status.--
120	(11)  In any criminal, regulatory, or civil action arising
121	under this chapter, a facility that demonstrates compliance,
122	through its filings with the agency, with the minimum staffing
123	requirements as set forth in this section and rules adopted by
124	the agency pursuant to this section is not liable for failure to
125	provide adequate staffing.
126	(12)  The records generated pursuant to state licensure
127	inspection reports are not subject to introduction in a civil
128	proceeding against a facility. A person who participates in the
129	state licensure inspection process may not be permitted or
130	required to testify in any such civil proceeding as to any
131	findings, recommendations, evaluations, opinions, or other
132	actions pursuant to the state licensure inspection process. A
133	person who provides information to a state licensure inspector
134	may not be prevented from testifying as to matters within his or
135	her knowledge, but he or she may not be asked about his or her
136	participation in the state licensure inspection process. Nothing
137	in this section shall be construed to mean that information,
138	documents, or records otherwise available and obtained from
139	original sources are immune from use in any such civil action
140	merely because they were presented during the state licensure
141	inspection process.
142	Section 6.  Subsections (17) through (27) of section
143	415.102, Florida Statutes, are renumbered as subsections (18)
144	through (28), respectively, and a new subsection (17) is added
145	to that section to read:
146	415.102  Definitions of terms used in ss. 415.101-
147	415.113.--As used in ss. 415.101-415.113, the term:
148	(17)  "Perpetrator" means a person who has been found
149	guilty of abuse, neglect, or exploitation of a vulnerable adult
150	through administrative or criminal proceedings.
151	Section 7.  This act shall take effect July 1, 2009.

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