CS/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 for a
21	rebuttable presumption in certain actions brought against
22	a licensee; providing limitations for admissibility of
23	survey and licensure reports and the presentation of
24	testimony or other evidence of staffing deficiencies;
25	providing applicability; providing an effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Section 400.023, Florida Statutes, is amended
30	to read:
31	400.023  Civil enforcement.-
32	(1)  Any resident who alleges negligence or a violation of
33	whose rights as specified in this part has are violated shall
34	have a cause of action against the licensee or its management
35	company, as specifically identified in the application for
36	nursing home licensure, and its direct caregiver employees.
37	Sections 400.023-400.0238 provide the exclusive remedy against a
38	licensee or management company for a cause of action for
39	recovery of damages for the personal injury or death of a
40	nursing home resident arising out of negligence or a violation
41	of residents' rights specified in s. 400.022.
42	(2)  A cause of action may not be asserted individually
43	against an officer, director, owner, including any designated as
44	having a "controlling interest" on the application for nursing
45	home licensure, or agent of a licensee or management company
46	under this part unless, following an evidentiary hearing, the
47	court determines there is sufficient evidence in the record or
48	proffered by the claimant that establishes a reasonable basis
49	for a finding that:
50	(a)  The officer, director, owner, or agent breached,
51	failed to perform, or acted outside the scope of duties as an
52	officer, director, owner, or agent; and
53	(b)  The breach, failure to perform, or conduct outside the
54	scope of duties is a legal cause of actual loss, injury, death,
55	or damage to the resident.
56	(3)  If an action is brought by or on behalf of a resident
57	under this part, a cause of action under s. 415.1111 may not be
58	asserted against an employee, officer, director, owner, or agent
59	of a licensee or management company.
60	(4)  The action may be brought by the resident or his or
61	her guardian, by a person or organization acting on behalf of a
62	resident with the consent of the resident or his or her
63	guardian, or by the personal representative of the estate of a
64	deceased resident regardless of the cause of death. If the
65	action alleges a claim for the resident's rights or for
66	negligence that caused the death of the resident, the claimant
67	shall be required to elect, at the end of discovery but not
68	later than 60 days before trial, either survival damages
69	pursuant to s. 46.021 or wrongful death damages pursuant to s.
70	768.21. In any claim for wrongful death brought under this
71	section, noneconomic damages may not exceed $250,000 per
72	resident, regardless of the number of claimants or defendants.
73	(5)  If the action alleges a claim for the resident's
74	rights or for negligence that did not cause the death of the
75	resident, the personal representative of the estate may recover
76	damages for the negligence that caused injury to the resident.
77	The action may be brought in any court of competent jurisdiction
78	to enforce such rights and to recover actual and punitive
79	damages for any violation of the rights of a resident or for
80	negligence.
81	(6)  Any resident who prevails in seeking injunctive relief
82	or a claim for an administrative remedy may is entitled to
83	recover the costs of the action, and a reasonable attorney's fee
84	assessed against the defendant not to exceed $25,000. Fees shall
85	be awarded solely for the injunctive or administrative relief
86	and not for any claim or action for damages whether such claim
87	or action is brought together with a request for an injunction
88	or administrative relief or as a separate action, except as
89	provided under s. 768.79 or the Florida Rules of Civil
90	Procedure. Sections 400.023-400.0238 provide the exclusive
91	remedy for a cause of action for recovery of damages for the
92	personal injury or death of a nursing home resident arising out
93	of negligence or a violation of rights specified in s. 400.022.
94	This section does not preclude theories of recovery not arising
95	out of negligence or s. 400.022 which are available to a
96	resident or to the agency. The provisions of Chapter 766 does do
97	not apply to any cause of action brought under ss. 400.023-
98	400.0238.
99	(7)(2)  In any claim brought under pursuant to this part
100	alleging a violation of resident's rights or negligence causing
101	injury to or the death of a resident, the claimant has shall
102	have the burden of proving, by a preponderance of the evidence,
103	that:
104	(a)  The defendant breached the applicable standard of
105	care; and owed a duty to the resident;
106	(b)  The defendant breached the duty to the resident;
107	(b)(c)  The breach of the duty is a legal cause of actual
108	loss, injury, death, or damage to the resident; and
109	(d)  The resident sustained loss, injury, death, or damage
110	as a result of the breach.
111	(8)  Nothing in this part shall be interpreted to create
112	strict liability. A violation of the rights set forth in s.
113	400.022 or in any other standard or guidelines specified in this
114	part or in any applicable administrative standard or guidelines
115	of this state or a federal regulatory agency shall be evidence
116	of negligence but shall not be considered negligence per se.
117	(9)(3)  In any claim brought pursuant to this section, a
118	licensee, person, or entity shall have a duty to exercise
119	reasonable care. Reasonable care is that degree of care which a
120	reasonably careful licensee, person, or entity would use under
121	like circumstances.
122	(10)(4)  In any claim for resident's rights violation or
123	negligence by a nurse licensed under part I of chapter 464, such
124	nurse shall have the duty to exercise care consistent with the
125	prevailing professional standard of care for a nurse. The
126	prevailing professional standard of care for a nurse shall be
127	that level of care, skill, and treatment which, in light of all
128	relevant surrounding circumstances, is recognized as acceptable
129	and appropriate by reasonably prudent similar nurses.
130	(11)(5)  A licensee shall not be liable for the medical
131	negligence of any physician rendering care or treatment to the
132	resident except for the administrative services of a medical
133	director as required in this part. Nothing in this subsection
134	shall be construed to protect a licensee, person, or entity from
135	liability for failure to provide a resident with appropriate
136	observation, assessment, nursing diagnosis, planning,
137	intervention, and evaluation of care by nursing staff.
138	(12)(6)  The resident or the resident's legal
139	representative shall serve a copy of any complaint alleging in
140	whole or in part a violation of any rights specified in this
141	part to the Agency for Health Care Administration at the time of
142	filing the initial complaint with the clerk of the court for the
143	county in which the action is pursued. The requirement of
144	providing a copy of the complaint to the agency does not impair
145	the resident's legal rights or ability to seek relief for his or
146	her claim.
147	(13)(7)  An action under this part for a violation of
148	rights or negligence recognized herein is not a claim for
149	medical malpractice, and the provisions of s. 768.21(8) does do
150	not apply to a claim alleging death of the resident.
151	Section 2.  Subsections (1), (2), and (3) of section
152	400.0237, Florida Statutes, are amended to read:
153	400.0237  Punitive damages; pleading; burden of proof.-
154	(1)  In any action for damages brought under this part, a
155	no claim for punitive damages may not be brought shall be
156	permitted unless there is a reasonable showing of admissible by
157	evidence that has been in the record or proffered by the parties
158	and provides claimant which would provide a reasonable basis for
159	recovery of such damages when the criteria set forth in this
160	section are applied. The claimant may move to amend her or his
161	complaint to assert a claim for punitive damages as allowed by
162	the rules of civil procedure. The trial judge shall conduct an
163	evidentiary hearing and weigh the admissible evidence proffered
164	by all parties to ensure that there is a reasonable basis to
165	believe that the claimant, at trial, will be able to demonstrate
166	by clear and convincing evidence that the recovery of such
167	damages is warranted. The rules of civil procedure shall be
168	liberally construed so as to allow the claimant discovery of
169	evidence which appears reasonably calculated to lead to
170	admissible evidence on the issue of punitive damages. No A
171	discovery of financial worth may not shall proceed until after
172	the pleading on concerning punitive damages is approved
173	permitted.
174	(2)  A defendant, including the licensee or management
175	company against whom punitive damages is sought, may be held
176	liable for punitive damages only if the trier of fact, based on
177	clear and convincing evidence, finds that a specific individual
178	or corporate defendant actively and knowingly participated in
179	intentional misconduct or engaged in conduct that constituted
180	gross negligence and contributed to the loss, damages, or injury
181	suffered by the claimant the defendant was personally guilty of
182	intentional misconduct or gross negligence. As used in this
183	section, the term:
184	(a)  "Intentional misconduct" means that the defendant
185	against whom punitive damages are sought had actual knowledge of
186	the wrongfulness of the conduct and the high probability that
187	injury or damage to the claimant would result and, despite that
188	knowledge, intentionally pursued that course of conduct,
189	resulting in injury or damage.
190	(b)  "Gross negligence" means that the defendant's conduct
191	was so reckless or wanting in care that it constituted a
192	conscious disregard or indifference to the life, safety, or
193	rights of persons exposed to such conduct.
194	(3)  In the case of vicarious liability of an employer,
195	principal, corporation, or other legal entity, punitive damages
196	may not be imposed for the conduct of an employee or agent
197	unless only if the conduct of a specifically identified the
198	employee or agent meets the criteria specified in subsection (2)
199	and an officer, director, or manager of the actual employer,
200	corporation, or legal entity condoned, ratified, or consented to
201	the specific conduct as alleged in subsection (2). A state or
202	federal survey report of nursing facilities may not be used to
203	establish an entitlement to punitive damages under this
204	section.:
205	(a)  The employer, principal, corporation, or other legal
206	entity actively and knowingly participated in such conduct;
207	(b)  The officers, directors, or managers of the employer,
208	principal, corporation, or other legal entity condoned,
209	ratified, or consented to such conduct; or
210	(c)  The employer, principal, corporation, or other legal
211	entity engaged in conduct that constituted gross negligence and
212	that contributed to the loss, damages, or injury suffered by the
213	claimant.
214	Section 3.  Subsections (2) and (4) of section 400.0238,
215	Florida Statutes, are amended to read:
216	400.0238  Punitive damages; limitation.-
217	(2)  The claimant's attorney's fees, if payable from the
218	judgment, are, to the extent that the fees are based on the
219	punitive damages, calculated based on the claimant's share of
220	final judgment for punitive damages. This subsection does not
221	limit the payment of attorney's fees based upon an award of
222	damages other than punitive damages.
223	(4)  Notwithstanding any other law to the contrary, if a
224	claimant has received a final judgment for the amount of
225	punitive damages or there is a settlement of a case in which the
226	claimant was granted leave to amend his or her complaint to add
227	a claim for punitive damages, the punitive award awarded
228	pursuant to this section shall be equally divided, before any
229	distribution to the claimant's counsel for fees or costs,
230	between the claimant and the Quality of Long-Term Care Facility
231	Improvement Trust Fund, in accordance with the following
232	provisions:
233	(a)  In the event of a judgment, the clerk of the court
234	shall transmit a copy of the jury verdict to the Chief Financial
235	Officer by certified mail. In the final judgment, the court
236	shall order the percentages of the award, payable as provided
237	herein. In the event of a settlement, the parties shall transmit
238	by certified mail to the Chief Financial Officer a statement of
239	the proportionate share due to the Quality of Long-Term Care
240	Facility Improvement Trust Fund.
241	(b)  A settlement agreement entered into between the
242	original parties to the action after a verdict has been returned
243	must provide a proportionate share payable to the Quality of
244	Long-Term Care Facility Improvement Trust Fund specified herein.
245	For purposes of this paragraph, a proportionate share is a 50-
246	percent share of that percentage of the settlement amount which
247	the punitive damages portion of the verdict bore to the total of
248	the compensatory and punitive damages in the verdict.
249	(c)  For a settlement agreement entered into between the
250	parties to the action, at any time after a claimant is permitted
251	by the court to amend the complaint to add a count for punitive
252	damages, but before a final judgment on the issue, 50 percent of
253	the total settlement amount shall be the punitive award. The
254	punitive award shall be equally divided, before any distribution
255	to the claimant's counsel for fees or costs, between the
256	claimant and the Quality of Long-Term Care Facility Improvement
257	Trust Fund. The amount of the punitive award and the allocation
258	of that award provided for in this subsection may not be altered
259	in any way by agreement of the parties after the claimant has
260	been granted leave to amend his or her complaint to include a
261	claim for punitive damages.
262	(d)  Settlement of a claim before a verdict by a defendant
263	in which a claimant was permitted at any time to amend the claim
264	to add a count for punitive damages is not an admission or
265	finding of liability for conduct described in subsection (2).
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	rebuttable presumption that appropriate staffing was provided.
285	(8)  The agency shall adopt rules pursuant to this part and
286	part II of chapter 408 to provide that, when the criteria
287	established under subsection (2) are not met, such deficiencies
288	shall be classified according to the nature and the scope of the
289	deficiency. The scope shall be cited as isolated, patterned, or
290	widespread. An isolated deficiency is a deficiency affecting one
291	or a very limited number of residents, or involving one or a
292	very limited number of staff, or a situation that occurred only
293	occasionally or in a very limited number of locations. A
294	patterned deficiency is a deficiency where more than a very
295	limited number of residents are affected, or more than a very
296	limited number of staff are involved, or the situation has
297	occurred in several locations, or the same resident or residents
298	have been affected by repeated occurrences of the same deficient
299	practice but the effect of the deficient practice is not found
300	to be pervasive throughout the facility. A widespread deficiency
301	is a deficiency in which the problems causing the deficiency are
302	pervasive in the facility or represent systemic failure that has
303	affected or has the potential to affect a large portion of the
304	facility's residents. The agency shall indicate the
305	classification on the face of the notice of deficiencies as
306	follows:
307	(e)  A deficiency identified by the agency in a nursing
308	home survey is not admissible for any purpose in an action under
309	ss. 400.023-400.0238. However, a survey deficiency citing a
310	resident on whose behalf the action is brought may be introduced
311	as evidence of negligence if the agency has determined that the
312	resident sustained actual harm as a result thereof. If a
313	claimant in an action under ss. 400.023-400.0238 was a member of
314	a survey resident roster or otherwise was the subject of any
315	survey by the agency and the agency did not allege or determine
316	that any deficiency occurred with respect to that claimant
317	during that survey, the licensee may introduce the absence of a
318	deficiency citation to refute an allegation of neglect or
319	noncompliance with regulatory standards.
320	Section 5.  This act shall take effect July 1, 2011, and
321	shall apply to all causes of action that accrue on or after that
322	date.

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