Florida Senate - 2011                             CS for SB 1396
       By the Committee on Health Regulation; and Senator Bogdanoff
       588-04467-11                                          20111396c1
    1                        A bill to be entitled                      
    2         An act relating to nursing homes; amending s. 400.023,
    3         F.S.; requiring the trial judge to conduct an
    4         evidentiary hearing to determine the sufficiency of
    5         evidence for claims against certain persons relating
    6         to a nursing home; limiting noneconomic damages in a
    7         wrongful death action against the nursing home;
    8         amending s. 400.0237, F.S.; revising provisions
    9         relating to punitive damages against a nursing home;
   10         authorizing a defendant to proffer admissible evidence
   11         to refute a claimant’s proffer of evidence for
   12         punitive damages; requiring the trial judge to conduct
   13         an evidentiary hearing and the plaintiff to
   14         demonstrate that a reasonable basis exists for the
   15         recovery of punitive damages; prohibiting discovery of
   16         the defendant’s financial worth until the judge
   17         approves the pleading on punitive damages; revising
   18         definitions; providing an effective date.
   20  Be It Enacted by the Legislature of the State of Florida:
   22         Section 1. Section 400.023, Florida Statutes, is reordered
   23  and amended to read:
   24         400.023 Civil enforcement.—
   25         (1) A Any resident who alleges negligence or a violation of
   26  whose rights as specified in this part has are violated shall
   27  have a cause of action against the licensee or its management
   28  company, as identified in the state application for nursing home
   29  licensure. However, the cause of action may not be asserted
   30  individually against an officer, director, owner, including an
   31  owner designated as having a controlling interest on the state
   32  application for nursing home licensure, or agent of a licensee
   33  or management company unless, following an evidentiary hearing,
   34  the court determines there is sufficient evidence in the record
   35  or proffered by the claimant which establishes a reasonable
   36  basis for finding that the person or entity breached, failed to
   37  perform, or acted outside the scope of duties as an officer,
   38  director, owner, or agent, and that the breach, failure to
   39  perform, or action outside the scope of duties is a legal cause
   40  of actual loss, injury, death, or damage to the resident.
   41         (2) The action may be brought by the resident or his or her
   42  guardian, by a person or organization acting on behalf of a
   43  resident with the consent of the resident or his or her
   44  guardian, or by the personal representative of the estate of a
   45  deceased resident regardless of the cause of death.
   46         (5) If the action alleges a claim for the resident’s rights
   47  or for negligence that:
   48         (a) Caused the death of the resident, the claimant must
   49  shall be required to elect either survival damages pursuant to
   50  s. 46.021 or wrongful death damages pursuant to s. 768.21. If
   51  the claimant elects wrongful death damages, total noneconomic
   52  damages may not exceed $300,000, regardless of the number of
   53  claimants.
   54         (b)If the action alleges a claim for the resident’s rights
   55  or for negligence that Did not cause the death of the resident,
   56  the personal representative of the estate may recover damages
   57  for the negligence that caused injury to the resident.
   58         (3) The action may be brought in any court of competent
   59  jurisdiction to enforce such rights and to recover actual and
   60  punitive damages for any violation of the rights of a resident
   61  or for negligence.
   62         (10) Any resident who prevails in seeking injunctive relief
   63  or a claim for an administrative remedy may is entitled to
   64  recover the costs of the action, and a reasonable attorney’s fee
   65  assessed against the defendant not to exceed $25,000. Fees shall
   66  be awarded solely for the injunctive or administrative relief
   67  and not for any claim or action for damages whether such claim
   68  or action is brought together with a request for an injunction
   69  or administrative relief or as a separate action, except as
   70  provided under s. 768.79 or the Florida Rules of Civil
   71  Procedure. Sections 400.023-400.0238 provide the exclusive
   72  remedy for a cause of action for recovery of damages for the
   73  personal injury or death of a nursing home resident arising out
   74  of negligence or a violation of rights specified in s. 400.022.
   75  This section does not preclude theories of recovery not arising
   76  out of negligence or s. 400.022 which are available to a
   77  resident or to the agency. The provisions of chapter 766 do not
   78  apply to any cause of action brought under ss. 400.023-400.0238.
   79         (6)(2)If the In any claim brought pursuant to this part
   80  alleges alleging a violation of resident’s rights or negligence
   81  causing injury to or the death of a resident, the claimant shall
   82  have the burden of proving, by a preponderance of the evidence,
   83  that:
   84         (a) The defendant owed a duty to the resident;
   85         (b) The defendant breached the duty to the resident;
   86         (c) The breach of the duty is a legal cause of loss,
   87  injury, death, or damage to the resident; and
   88         (d) The resident sustained loss, injury, death, or damage
   89  as a result of the breach.
   90         (12) Nothing in This part does not shall be interpreted to
   91  create strict liability. A violation of the rights set forth in
   92  s. 400.022 or in any other standard or guidelines specified in
   93  this part or in any applicable administrative standard or
   94  guidelines of this state or a federal regulatory agency is shall
   95  be evidence of negligence but may shall not be considered
   96  negligence per se.
   97         (7)(3) In any claim brought pursuant to this section, a
   98  licensee, person, or entity has shall have a duty to exercise
   99  reasonable care. Reasonable care is that degree of care which a
  100  reasonably careful licensee, person, or entity would use under
  101  like circumstances.
  102         (9)(4) In any claim for resident’s rights violation or
  103  negligence by a nurse licensed under part I of chapter 464, such
  104  nurse has a shall have the duty to exercise care consistent with
  105  the prevailing professional standard of care for a nurse. The
  106  prevailing professional standard of care for a nurse is shall be
  107  that level of care, skill, and treatment which, in light of all
  108  relevant surrounding circumstances, is recognized as acceptable
  109  and appropriate by reasonably prudent similar nurses.
  110         (8)(5) A licensee is shall not be liable for the medical
  111  negligence of any physician rendering care or treatment to the
  112  resident except for the administrative services of a medical
  113  director as required in this part. Nothing in This subsection
  114  does not shall be construed to protect a licensee, person, or
  115  entity from liability for failure to provide a resident with
  116  appropriate observation, assessment, nursing diagnosis,
  117  planning, intervention, and evaluation of care by nursing staff.
  118         (4)(6) The resident or the resident’s legal representative
  119  shall serve a copy of any complaint alleging in whole or in part
  120  a violation of any rights specified in this part to the agency
  121  for Health Care Administration at the time of filing the initial
  122  complaint with the clerk of the court for the county in which
  123  the action is pursued. The requirement of Providing a copy of
  124  the complaint to the agency does not impair the resident’s legal
  125  rights or ability to seek relief for his or her claim.
  126         (11)(7) An action under this part for a violation of rights
  127  or negligence recognized herein is not a claim for medical
  128  malpractice, and the provisions of s. 768.21(8) do not apply to
  129  a claim alleging death of the resident.
  130         Section 2. Subsections (1), (2), and (3) of section
  131  400.0237, Florida Statutes, are amended to read:
  132         400.0237 Punitive damages; pleading; burden of proof.—
  133         (1) In any action for damages brought under this part, a no
  134  claim for punitive damages is not shall be permitted unless,
  135  based on admissible there is a reasonable showing by evidence in
  136  the record or proffered by the claimant, which would provide a
  137  reasonable basis for recovery of such damages is demonstrated
  138  upon applying the criteria set forth in this section. The
  139  defendant may proffer admissible evidence to refute the
  140  claimant’s proffer of evidence to recover punitive damages. The
  141  trial judge shall conduct an evidentiary hearing and weigh the
  142  admissible evidence proffered by the claimant and the defendant
  143  to ensure that there is a reasonable basis to believe that the
  144  claimant, at trial, will be able to demonstrate by clear and
  145  convincing evidence that the recovery of such damages is
  146  warranted. The claimant may move to amend her or his complaint
  147  to assert a claim for punitive damages as allowed by the rules
  148  of civil procedure. The rules of civil procedure shall be
  149  liberally construed so as to allow the claimant discovery of
  150  evidence which appears reasonably calculated to lead to
  151  admissible evidence on the issue of punitive damages. No
  152  Discovery of financial worth may not shall proceed until after
  153  the trial judge approves the pleading on concerning punitive
  154  damages is permitted.
  155         (2) A defendant, including the licensee or management
  156  company, against whom punitive damages is sought, may be held
  157  liable for punitive damages only if the trier of fact, based on
  158  clear and convincing evidence, finds that a specific individual
  159  or corporate defendant actively and knowingly participated in
  160  intentional misconduct, or engaged in conduct that constituted
  161  gross negligence, and that conduct contributed to the loss,
  162  damages, or injury suffered by the claimant the defendant was
  163  personally guilty of intentional misconduct or gross negligence.
  164  As used in this section, the term:
  165         (a) “Intentional misconduct” means that the defendant
  166  against whom a claim for punitive damages is sought had actual
  167  knowledge of the wrongfulness of the conduct and the high
  168  probability that injury or damage to the claimant would result
  169  and, despite that knowledge, intentionally pursued that course
  170  of conduct, resulting in injury or damage.
  171         (b) “Gross negligence” means that the defendant’s conduct
  172  was so reckless or wanting in care that it constituted a
  173  conscious disregard or indifference to the life, safety, or
  174  rights of persons exposed to such conduct.
  175         (3) In the case of vicarious liability of an employer,
  176  principal, corporation, or other legal entity, punitive damages
  177  may not be imposed for the conduct of an identified employee or
  178  agent unless only if the conduct of the employee or agent meets
  179  the criteria specified in subsection (2) and officers,
  180  directors, or managers of the actual employer corporation or
  181  legal entity condoned, ratified, or consented to the specific
  182  conduct as alleged by the claimant in subsection (2).:
  183         (a) The employer, principal, corporation, or other legal
  184  entity actively and knowingly participated in such conduct;
  185         (b) The officers, directors, or managers of the employer,
  186  principal, corporation, or other legal entity condoned,
  187  ratified, or consented to such conduct; or
  188         (c) The employer, principal, corporation, or other legal
  189  entity engaged in conduct that constituted gross negligence and
  190  that contributed to the loss, damages, or injury suffered by the
  191  claimant.
  192         Section 3. This act shall take effect July 1, 2011.