HB 661

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 the
6	trial judge to conduct an evidentiary hearing before a
7	claimant can assert a claim against certain interested
8	parties; providing a timeframe for a claimant to elect
9	survival damages or wrongful death damages; providing a
10	limitation on recovery; amending s. 400.0237, F.S.;
11	requiring evidence of the basis for punitive damages;
12	requiring the trial judge to conduct an evidentiary
13	hearing before a claimant can assert a claim for punitive
14	damages; permitting a licensee or management company to be
15	held liable for punitive damages under certain
16	circumstances; providing criteria for awarding of punitive
17	damages in a case of vicarious liability of certain
18	entities; amending s. 400.0238, F.S.; providing additional
19	conditions for settlements involving claims for punitive
20	damages; amending s. 400.23, F.S.; providing limitations
21	for admissibility of survey and licensure reports and the
22	presentation of testimony or other evidence of staffing
23	deficiencies; providing applicability; providing an
24	effective date.
25
26	Be It Enacted by the Legislature of the State of Florida:
27
28	Section 1.  Section 400.023, Florida Statutes, is amended
29	to 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,
50	failed to perform, or acted outside the scope of duties as an
51	officer, 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
60	her 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
73	rights or for negligence that did not cause the death of the
74	resident, the personal representative of the estate may recover
75	damages for the negligence that caused injury to the resident.
76	The action may be brought in any court of competent jurisdiction
77	to enforce such rights and to recover actual and punitive
78	damages for any violation of the rights of a resident or for
79	negligence.
80	(6)  Any resident who prevails in seeking injunctive relief
81	or a claim for an administrative remedy may is entitled to
82	recover the costs of the action, and a reasonable attorney's fee
83	assessed against the defendant not to exceed $25,000. Fees shall
84	be awarded solely for the injunctive or administrative relief
85	and not for any claim or action for damages whether such claim
86	or action is brought together with a request for an injunction
87	or administrative relief or as a separate action, except as
88	provided under s. 768.79 or the Florida Rules of Civil
89	Procedure. Sections 400.023-400.0238 provide the exclusive
90	remedy for a cause of action for recovery of damages for the
91	personal injury or death of a nursing home resident arising out
92	of negligence or a violation of rights specified in s. 400.022.
93	This section does not preclude theories of recovery not arising
94	out of negligence or s. 400.022 which are available to a
95	resident or to the agency. The provisions of Chapter 766 does do
96	not apply to any cause of action brought under ss. 400.023-
97	400.0238.
98	(7)(2)  In any claim brought under pursuant to this part
99	alleging a violation of resident's rights or negligence causing
100	injury to or the death of a resident, the claimant has shall
101	have the burden of proving, by a preponderance of the evidence,
102	that:
103	(a)  The defendant breached the applicable standard of
104	care; and owed a duty to the resident;
105	(b)  The defendant breached the duty to the resident;
106	(b)(c)  The breach of the duty is a legal cause of actual
107	loss, injury, death, or damage to the resident; and
108	(d)  The resident sustained loss, injury, death, or damage
109	as a result of the breach.
110	(8)  Nothing in this part shall be interpreted to create
111	strict liability. A violation of the rights set forth in s.
112	400.022 or in any other standard or guidelines specified in this
113	part or in any applicable administrative standard or guidelines
114	of this state or a federal regulatory agency shall be evidence
115	of negligence but shall not be considered negligence per se.
116	(9)(3)  In any claim brought pursuant to this section, a
117	licensee, person, or entity shall have a duty to exercise
118	reasonable care. Reasonable care is that degree of care which a
119	reasonably careful licensee, person, or entity would use under
120	like circumstances.
121	(10)(4)  In any claim for resident's rights violation or
122	negligence by a nurse licensed under part I of chapter 464, such
123	nurse shall have the duty to exercise care consistent with the
124	prevailing professional standard of care for a nurse. The
125	prevailing professional standard of care for a nurse shall be
126	that level of care, skill, and treatment which, in light of all
127	relevant surrounding circumstances, is recognized as acceptable
128	and appropriate by reasonably prudent similar nurses.
129	(11)(5)  A licensee shall not be liable for the medical
130	negligence of any physician rendering care or treatment to the
131	resident except for the administrative services of a medical
132	director as required in this part. Nothing in this subsection
133	shall be construed to protect a licensee, person, or entity from
134	liability for failure to provide a resident with appropriate
135	observation, assessment, nursing diagnosis, planning,
136	intervention, and evaluation of care by nursing staff.
137	(12)(6)  The resident or the resident's legal
138	representative shall serve a copy of any complaint alleging in
139	whole or in part a violation of any rights specified in this
140	part to the Agency for Health Care Administration at the time of
141	filing the initial complaint with the clerk of the court for the
142	county in which the action is pursued. The requirement of
143	providing a copy of the complaint to the agency does not impair
144	the resident's legal rights or ability to seek relief for his or
145	her claim.
146	(13)(7)  An action under this part for a violation of
147	rights or negligence recognized herein is not a claim for
148	medical malpractice, and the provisions of s. 768.21(8) does do
149	not apply to a claim alleging death of the resident.
150	Section 2.  Subsections (1), (2), and (3) of section
151	400.0237, Florida Statutes, are amended to read:
152	400.0237  Punitive damages; pleading; burden of proof.-
153	(1)  In any action for damages brought under this part, a
154	no claim for punitive damages may not be brought shall be
155	permitted unless there is a reasonable showing of admissible by
156	evidence that has been in the record or proffered by the parties
157	and provides claimant which would provide a reasonable basis for
158	recovery of such damages when the criteria set forth in this
159	section are applied. The claimant may move to amend her or his
160	complaint to assert a claim for punitive damages as allowed by
161	the rules of civil procedure. The trial judge shall conduct an
162	evidentiary hearing and weigh the admissible evidence proffered
163	by all parties to ensure that there is a reasonable basis to
164	believe that the claimant, at trial, will be able to demonstrate
165	by clear and convincing evidence that the recovery of such
166	damages is warranted. The rules of civil procedure shall be
167	liberally construed so as to allow the claimant discovery of
168	evidence which appears reasonably calculated to lead to
169	admissible evidence on the issue of punitive damages. No A
170	discovery of financial worth may not shall proceed until after
171	the pleading on concerning punitive damages is approved
172	permitted.
173	(2)  A defendant, including the licensee or management
174	company against whom punitive damages is sought, may be held
175	liable for punitive damages only if the trier of fact, based on
176	clear and convincing evidence, finds that a specific individual
177	or corporate defendant actively and knowingly participated in
178	intentional misconduct or engaged in conduct that constituted
179	gross negligence and contributed to the loss, damages, or injury
180	suffered by the claimant the defendant was personally guilty of
181	intentional misconduct or gross negligence. As used in this
182	section, the term:
183	(a)  "Intentional misconduct" means that the defendant
184	against whom punitive damages are sought had actual knowledge of
185	the wrongfulness of the conduct and the high probability that
186	injury or damage to the claimant would result and, despite that
187	knowledge, intentionally pursued that course of conduct,
188	resulting in injury or damage.
189	(b)  "Gross negligence" means that the defendant's conduct
190	was so reckless or wanting in care that it constituted a
191	conscious disregard or indifference to the life, safety, or
192	rights of persons exposed to such conduct.
193	(3)  In the case of vicarious liability of an employer,
194	principal, corporation, or other legal entity, punitive damages
195	may not be imposed for the conduct of an employee or agent
196	unless only if the conduct of a specifically identified the
197	employee or agent meets the criteria specified in subsection (2)
198	and an officer, director, or manager of the actual employer,
199	corporation, or legal entity condoned, ratified, or consented to
200	the specific conduct as alleged in subsection (2). A state or
201	federal survey report of nursing facilities may not be used to
202	establish an entitlement to punitive damages under this
203	section.:
204	(a)  The employer, principal, corporation, or other legal
205	entity actively and knowingly participated in such conduct;
206	(b)  The officers, directors, or managers of the employer,
207	principal, corporation, or other legal entity condoned,
208	ratified, or consented to such conduct; or
209	(c)  The employer, principal, corporation, or other legal
210	entity engaged in conduct that constituted gross negligence and
211	that contributed to the loss, damages, or injury suffered by the
212	claimant.
213	Section 3.  Subsections (2) and (4) of section 400.0238,
214	Florida Statutes, are amended to read:
215	400.0238  Punitive damages; limitation.-
216	(2)  The claimant's attorney's fees, if payable from the
217	judgment, are, to the extent that the fees are based on the
218	punitive damages, calculated based on the claimant's share of
219	final judgment for punitive damages. This subsection does not
220	limit the payment of attorney's fees based upon an award of
221	damages other than punitive damages.
222	(4)  Notwithstanding any other law to the contrary, if a
223	claimant has received a final judgment for the amount of
224	punitive damages or there is a settlement of a case in which
225	claimant was granted leave to amend his or her complaint to add
226	a claim for punitive damages, the punitive award awarded
227	pursuant to this section shall be equally divided, before any
228	distribution to the claimant's counsel for fees or costs,
229	between the claimant and the Quality of Long-Term Care Facility
230	Improvement Trust Fund, in accordance with the following
231	provisions:
232	(a)  In the event of a judgment, the clerk of the court
233	shall transmit a copy of the jury verdict to the Chief Financial
234	Officer by certified mail. In the final judgment, the court
235	shall order the percentages of the award, payable as provided
236	herein. In the event of a settlement, the parties shall transmit
237	by certified mail to the Chief Financial Officer a statement of
238	the proportionate share due to the Quality of Long-Term Care
239	Facility Improvement Trust Fund.
240	(b)  A settlement agreement entered into between the
241	original parties to the action after a verdict has been returned
242	must provide a proportionate share payable to the Quality of
243	Long-Term Care Facility Improvement Trust Fund specified herein.
244	For purposes of this paragraph, a proportionate share is a 50-
245	percent share of that percentage of the settlement amount which
246	the punitive damages portion of the verdict bore to the total of
247	the compensatory and punitive damages in the verdict.
248	(c)  For a settlement agreement entered into between the
249	parties to the action, at any time after a claimant is permitted
250	by the court to amend the agreement to add a count for punitive
251	damages, but before a final judgment on the issue, 50 percent of
252	the total settlement amount shall be the punitive award. The
253	punitive award shall be equally divided, before any distribution
254	to the claimant's counsel for fees or costs, between the
255	claimant and the Quality of Long-Term Care Facility Improvement
256	Trust Fund. The amount of the punitive award and the allocation
257	of that award provided for in this subsection may not be altered
258	in any way by agreement of the parties after the claimant has
259	been granted leave to amend his or her complaint to include a
260	claim for punitive damages.
261	(d)  Settlement of a claim before a verdict by a defendant
262	in which a claimant was permitted at any time to amend the claim
263	to add a count for punitive damages is not an admission of
264	liability for conduct described in subsection (2) and is not
265	governed by this section.
266	(e)(c)  The Department of Financial Services shall collect
267	or cause to be collected all payments due the state under this
268	section. Such payments are made to the Chief Financial Officer
269	and deposited in the appropriate fund specified in this
270	subsection.
271	(f)(d)  If the full amount of punitive damages awarded
272	cannot be collected, the claimant and the other recipient
273	designated pursuant to this subsection are each entitled to a
274	proportionate share of the punitive damages collected.
275	Section 4.  Paragraph (d) is added to subsection (3) and
276	paragraph (e) is added to subsection (8) of section 400.23,
277	Florida Statutes, to read:
278	400.23  Rules; evaluation and deficiencies; licensure
279	status.-
280	(3)
281	(d)  In any action brought under ss. 400.023-400.0238, if
282	the licensee demonstrates compliance with the minimum staffing
283	requirements under this part, the licensee is entitled to a
284	presumption that appropriate staffing was provided and the
285	claimant may not be permitted to present any testimony or other
286	evidence of understaffing. The testimony or other evidence is
287	only permissible for days on which it can be demonstrated that
288	the licensee was not in compliance with the minimum staffing
289	requirements under this part. Evidence that the licensee was
290	staffed by an insufficient number of nursing assistants or
291	licensed nurses may not be qualified or admitted on behalf of a
292	resident who makes a claim, unless the licensee received a class
293	I, class II, or uncorrected class III deficiency for failure to
294	comply with the minimum staffing requirements under this part
295	and the claimant resident was identified by the agency as having
296	suffered actual harm because of that failure.
297	(8)  The agency shall adopt rules pursuant to this part and
298	part II of chapter 408 to provide that, when the criteria
299	established under subsection (2) are not met, such deficiencies
300	shall be classified according to the nature and the scope of the
301	deficiency. The scope shall be cited as isolated, patterned, or
302	widespread. An isolated deficiency is a deficiency affecting one
303	or a very limited number of residents, or involving one or a
304	very limited number of staff, or a situation that occurred only
305	occasionally or in a very limited number of locations. A
306	patterned deficiency is a deficiency where more than a very
307	limited number of residents are affected, or more than a very
308	limited number of staff are involved, or the situation has
309	occurred in several locations, or the same resident or residents
310	have been affected by repeated occurrences of the same deficient
311	practice but the effect of the deficient practice is not found
312	to be pervasive throughout the facility. A widespread deficiency
313	is a deficiency in which the problems causing the deficiency are
314	pervasive in the facility or represent systemic failure that has
315	affected or has the potential to affect a large portion of the
316	facility's residents. The agency shall indicate the
317	classification on the face of the notice of deficiencies as
318	follows:
319	(e)  A deficiency identified by the agency in a nursing
320	home survey is not admissible for any purpose in an action under
321	ss. 400.023-400.0238. However, a survey deficiency citing a
322	resident on whose behalf the action is brought may be introduced
323	as evidence of negligence if the agency has determined that the
324	resident sustained actual harm as a result thereof. If a
325	claimant in an action under ss. 400.023-400.0238 was a member of
326	a survey resident roster or otherwise was the subject of any
327	survey by the agency and the agency did not allege or determine
328	that any deficiency occurred with respect to that claimant
329	during that survey, the licensee may introduce the absence of a
330	deficiency citation to refute an allegation of neglect or
331	noncompliance with regulatory standards.
332	Section 5.  This act shall take effect July 1, 2011, and
333	shall apply to all causes of action that accrue on or after that
334	date.

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