HB 661

A bill to be entitled
2An act relating to nursing home litigation reform;
3amending s. 400.023, F.S.; specifying conditions under
4which a nursing home resident has a cause of action
5against a licensee or management company; requiring the
6trial judge to conduct an evidentiary hearing before a
7claimant can assert a claim against certain interested
8parties; providing a timeframe for a claimant to elect
9survival damages or wrongful death damages; providing a
10limitation on recovery; amending s. 400.0237, F.S.;
11requiring evidence of the basis for punitive damages;
12requiring the trial judge to conduct an evidentiary
13hearing before a claimant can assert a claim for punitive
14damages; permitting a licensee or management company to be
15held liable for punitive damages under certain
16circumstances; providing criteria for awarding of punitive
17damages in a case of vicarious liability of certain
18entities; amending s. 400.0238, F.S.; providing additional
19conditions for settlements involving claims for punitive
20damages; amending s. 400.23, F.S.; providing limitations
21for admissibility of survey and licensure reports and the
22presentation of testimony or other evidence of staffing
23deficiencies; providing applicability; providing an
24effective date.
26Be It Enacted by the Legislature of the State of Florida:
28     Section 1.  Section 400.023, Florida Statutes, is amended
29to read:
30     400.023  Civil enforcement.-
31     (1)  Any resident who alleges negligence or a violation of
32whose rights as specified in this part has are violated shall
33have a cause of action against the licensee or its management
34company, as specifically identified in the application for
35nursing home licensure, and its direct caregiver employees.
36Sections 400.023-400.0238 provide the exclusive remedy against a
37licensee or management company for a cause of action for
38recovery of damages for the personal injury or death of a
39nursing home resident arising out of negligence or a violation
40of residents' rights specified in s. 400.022.
41     (2)  A cause of action may not be asserted individually
42against an employee, officer, director, owner, including any
43designated as having a "controlling interest" on the application
44for nursing home licensure, or agent of a licensee or management
45company under this part unless, following an evidentiary
46hearing, the court determines there is sufficient evidence in
47the record or proffered by the claimant that establishes a
48reasonable basis for a finding that:
49     (a)  The officer, director, owner, or agent breached,
50failed to perform, or acted outside the scope of duties as an
51officer, director, owner, or agent; and
52     (b)  The breach, failure to perform, or conduct outside the
53scope of duties is a legal cause of actual loss, injury, death,
54or damage to the resident.
55     (3)  If an action is brought by or on behalf of a resident
56under this part, a cause of action under s. 415.111 may not be
57asserted against an employee, officer, director, owner, or agent
58of a licensee or management company.
59     (4)  The action may be brought by the resident or his or
60her guardian, by a person or organization acting on behalf of a
61resident with the consent of the resident or his or her
62guardian, or by the personal representative of the estate of a
63deceased resident regardless of the cause of death. If the
64action alleges a claim for the resident's rights or for
65negligence that caused the death of the resident, the claimant
66shall be required to elect, at the end of discovery but not
67later than 60 days before trial, either survival damages
68pursuant to s. 46.021 or wrongful death damages pursuant to s.
69768.21. In any claim for wrongful death brought under this
70section, noneconomic damages may not exceed a total of $250,000,
71regardless of the number of claimants or defendants.
72     (5)  If the action alleges a claim for the resident's
73rights or for negligence that did not cause the death of the
74resident, the personal representative of the estate may recover
75damages for the negligence that caused injury to the resident.
76The action may be brought in any court of competent jurisdiction
77to enforce such rights and to recover actual and punitive
78damages for any violation of the rights of a resident or for
80     (6)  Any resident who prevails in seeking injunctive relief
81or a claim for an administrative remedy may is entitled to
82recover the costs of the action, and a reasonable attorney's fee
83assessed against the defendant not to exceed $25,000. Fees shall
84be awarded solely for the injunctive or administrative relief
85and not for any claim or action for damages whether such claim
86or action is brought together with a request for an injunction
87or administrative relief or as a separate action, except as
88provided under s. 768.79 or the Florida Rules of Civil
89Procedure. Sections 400.023-400.0238 provide the exclusive
90remedy for a cause of action for recovery of damages for the
91personal injury or death of a nursing home resident arising out
92of negligence or a violation of rights specified in s. 400.022.
93This section does not preclude theories of recovery not arising
94out of negligence or s. 400.022 which are available to a
95resident or to the agency. The provisions of Chapter 766 does do
96not apply to any cause of action brought under ss. 400.023-
98     (7)(2)  In any claim brought under pursuant to this part
99alleging a violation of resident's rights or negligence causing
100injury to or the death of a resident, the claimant has shall
101have the burden of proving, by a preponderance of the evidence,
103     (a)  The defendant breached the applicable standard of
104care; 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
107loss, injury, death, or damage to the resident; and
108     (d)  The resident sustained loss, injury, death, or damage
109as a result of the breach.
110     (8)  Nothing in this part shall be interpreted to create
111strict liability. A violation of the rights set forth in s.
112400.022 or in any other standard or guidelines specified in this
113part or in any applicable administrative standard or guidelines
114of this state or a federal regulatory agency shall be evidence
115of negligence but shall not be considered negligence per se.
116     (9)(3)  In any claim brought pursuant to this section, a
117licensee, person, or entity shall have a duty to exercise
118reasonable care. Reasonable care is that degree of care which a
119reasonably careful licensee, person, or entity would use under
120like circumstances.
121     (10)(4)  In any claim for resident's rights violation or
122negligence by a nurse licensed under part I of chapter 464, such
123nurse shall have the duty to exercise care consistent with the
124prevailing professional standard of care for a nurse. The
125prevailing professional standard of care for a nurse shall be
126that level of care, skill, and treatment which, in light of all
127relevant surrounding circumstances, is recognized as acceptable
128and appropriate by reasonably prudent similar nurses.
129     (11)(5)  A licensee shall not be liable for the medical
130negligence of any physician rendering care or treatment to the
131resident except for the administrative services of a medical
132director as required in this part. Nothing in this subsection
133shall be construed to protect a licensee, person, or entity from
134liability for failure to provide a resident with appropriate
135observation, assessment, nursing diagnosis, planning,
136intervention, and evaluation of care by nursing staff.
137     (12)(6)  The resident or the resident's legal
138representative shall serve a copy of any complaint alleging in
139whole or in part a violation of any rights specified in this
140part to the Agency for Health Care Administration at the time of
141filing the initial complaint with the clerk of the court for the
142county in which the action is pursued. The requirement of
143providing a copy of the complaint to the agency does not impair
144the resident's legal rights or ability to seek relief for his or
145her claim.
146     (13)(7)  An action under this part for a violation of
147rights or negligence recognized herein is not a claim for
148medical malpractice, and the provisions of s. 768.21(8) does do
149not apply to a claim alleging death of the resident.
150     Section 2.  Subsections (1), (2), and (3) of section
151400.0237, 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
154no claim for punitive damages may not be brought shall be
155permitted unless there is a reasonable showing of admissible by
156evidence that has been in the record or proffered by the parties
157and provides claimant which would provide a reasonable basis for
158recovery of such damages when the criteria set forth in this
159section are applied. The claimant may move to amend her or his
160complaint to assert a claim for punitive damages as allowed by
161the rules of civil procedure. The trial judge shall conduct an
162evidentiary hearing and weigh the admissible evidence proffered
163by all parties to ensure that there is a reasonable basis to
164believe that the claimant, at trial, will be able to demonstrate
165by clear and convincing evidence that the recovery of such
166damages is warranted. The rules of civil procedure shall be
167liberally construed so as to allow the claimant discovery of
168evidence which appears reasonably calculated to lead to
169admissible evidence on the issue of punitive damages. No A
170discovery of financial worth may not shall proceed until after
171the pleading on concerning punitive damages is approved
173     (2)  A defendant, including the licensee or management
174company against whom punitive damages is sought, may be held
175liable for punitive damages only if the trier of fact, based on
176clear and convincing evidence, finds that a specific individual
177or corporate defendant actively and knowingly participated in
178intentional misconduct or engaged in conduct that constituted
179gross negligence and contributed to the loss, damages, or injury
180suffered by the claimant the defendant was personally guilty of
181intentional misconduct or gross negligence. As used in this
182section, the term:
183     (a)  "Intentional misconduct" means that the defendant
184against whom punitive damages are sought had actual knowledge of
185the wrongfulness of the conduct and the high probability that
186injury or damage to the claimant would result and, despite that
187knowledge, intentionally pursued that course of conduct,
188resulting in injury or damage.
189     (b)  "Gross negligence" means that the defendant's conduct
190was so reckless or wanting in care that it constituted a
191conscious disregard or indifference to the life, safety, or
192rights of persons exposed to such conduct.
193     (3)  In the case of vicarious liability of an employer,
194principal, corporation, or other legal entity, punitive damages
195may not be imposed for the conduct of an employee or agent
196unless only if the conduct of a specifically identified the
197employee or agent meets the criteria specified in subsection (2)
198and an officer, director, or manager of the actual employer,
199corporation, or legal entity condoned, ratified, or consented to
200the specific conduct as alleged in subsection (2). A state or
201federal survey report of nursing facilities may not be used to
202establish an entitlement to punitive damages under this
204     (a)  The employer, principal, corporation, or other legal
205entity actively and knowingly participated in such conduct;
206     (b)  The officers, directors, or managers of the employer,
207principal, corporation, or other legal entity condoned,
208ratified, or consented to such conduct; or
209     (c)  The employer, principal, corporation, or other legal
210entity engaged in conduct that constituted gross negligence and
211that contributed to the loss, damages, or injury suffered by the
213     Section 3.  Subsections (2) and (4) of section 400.0238,
214Florida Statutes, are amended to read:
215     400.0238  Punitive damages; limitation.-
216     (2)  The claimant's attorney's fees, if payable from the
217judgment, are, to the extent that the fees are based on the
218punitive damages, calculated based on the claimant's share of
219final judgment for punitive damages. This subsection does not
220limit the payment of attorney's fees based upon an award of
221damages other than punitive damages.
222     (4)  Notwithstanding any other law to the contrary, if a
223claimant has received a final judgment for the amount of
224punitive damages or there is a settlement of a case in which
225claimant was granted leave to amend his or her complaint to add
226a claim for punitive damages, the punitive award awarded
227pursuant to this section shall be equally divided, before any
228distribution to the claimant's counsel for fees or costs,
229between the claimant and the Quality of Long-Term Care Facility
230Improvement Trust Fund, in accordance with the following
232     (a)  In the event of a judgment, the clerk of the court
233shall transmit a copy of the jury verdict to the Chief Financial
234Officer by certified mail. In the final judgment, the court
235shall order the percentages of the award, payable as provided
236herein. In the event of a settlement, the parties shall transmit
237by certified mail to the Chief Financial Officer a statement of
238the proportionate share due to the Quality of Long-Term Care
239Facility Improvement Trust Fund.
240     (b)  A settlement agreement entered into between the
241original parties to the action after a verdict has been returned
242must provide a proportionate share payable to the Quality of
243Long-Term Care Facility Improvement Trust Fund specified herein.
244For purposes of this paragraph, a proportionate share is a 50-
245percent share of that percentage of the settlement amount which
246the punitive damages portion of the verdict bore to the total of
247the compensatory and punitive damages in the verdict.
248     (c)  For a settlement agreement entered into between the
249parties to the action, at any time after a claimant is permitted
250by the court to amend the agreement to add a count for punitive
251damages, but before a final judgment on the issue, 50 percent of
252the total settlement amount shall be the punitive award. The
253punitive award shall be equally divided, before any distribution
254to the claimant's counsel for fees or costs, between the
255claimant and the Quality of Long-Term Care Facility Improvement
256Trust Fund. The amount of the punitive award and the allocation
257of that award provided for in this subsection may not be altered
258in any way by agreement of the parties after the claimant has
259been granted leave to amend his or her complaint to include a
260claim for punitive damages.
261     (d)  Settlement of a claim before a verdict by a defendant
262in which a claimant was permitted at any time to amend the claim
263to add a count for punitive damages is not an admission of
264liability for conduct described in subsection (2) and is not
265governed by this section.
266     (e)(c)  The Department of Financial Services shall collect
267or cause to be collected all payments due the state under this
268section. Such payments are made to the Chief Financial Officer
269and deposited in the appropriate fund specified in this
271     (f)(d)  If the full amount of punitive damages awarded
272cannot be collected, the claimant and the other recipient
273designated pursuant to this subsection are each entitled to a
274proportionate share of the punitive damages collected.
275     Section 4.  Paragraph (d) is added to subsection (3) and
276paragraph (e) is added to subsection (8) of section 400.23,
277Florida Statutes, to read:
278     400.23  Rules; evaluation and deficiencies; licensure
280     (3)
281     (d)  In any action brought under ss. 400.023-400.0238, if
282the licensee demonstrates compliance with the minimum staffing
283requirements under this part, the licensee is entitled to a
284presumption that appropriate staffing was provided and the
285claimant may not be permitted to present any testimony or other
286evidence of understaffing. The testimony or other evidence is
287only permissible for days on which it can be demonstrated that
288the licensee was not in compliance with the minimum staffing
289requirements under this part. Evidence that the licensee was
290staffed by an insufficient number of nursing assistants or
291licensed nurses may not be qualified or admitted on behalf of a
292resident who makes a claim, unless the licensee received a class
293I, class II, or uncorrected class III deficiency for failure to
294comply with the minimum staffing requirements under this part
295and the claimant resident was identified by the agency as having
296suffered actual harm because of that failure.
297     (8)  The agency shall adopt rules pursuant to this part and
298part II of chapter 408 to provide that, when the criteria
299established under subsection (2) are not met, such deficiencies
300shall be classified according to the nature and the scope of the
301deficiency. The scope shall be cited as isolated, patterned, or
302widespread. An isolated deficiency is a deficiency affecting one
303or a very limited number of residents, or involving one or a
304very limited number of staff, or a situation that occurred only
305occasionally or in a very limited number of locations. A
306patterned deficiency is a deficiency where more than a very
307limited number of residents are affected, or more than a very
308limited number of staff are involved, or the situation has
309occurred in several locations, or the same resident or residents
310have been affected by repeated occurrences of the same deficient
311practice but the effect of the deficient practice is not found
312to be pervasive throughout the facility. A widespread deficiency
313is a deficiency in which the problems causing the deficiency are
314pervasive in the facility or represent systemic failure that has
315affected or has the potential to affect a large portion of the
316facility's residents. The agency shall indicate the
317classification on the face of the notice of deficiencies as
319     (e)  A deficiency identified by the agency in a nursing
320home survey is not admissible for any purpose in an action under
321ss. 400.023-400.0238. However, a survey deficiency citing a
322resident on whose behalf the action is brought may be introduced
323as evidence of negligence if the agency has determined that the
324resident sustained actual harm as a result thereof. If a
325claimant in an action under ss. 400.023-400.0238 was a member of
326a survey resident roster or otherwise was the subject of any
327survey by the agency and the agency did not allege or determine
328that any deficiency occurred with respect to that claimant
329during that survey, the licensee may introduce the absence of a
330deficiency citation to refute an allegation of neglect or
331noncompliance with regulatory standards.
332     Section 5.  This act shall take effect July 1, 2011, and
333shall apply to all causes of action that accrue on or after that

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