CS/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 for a
21rebuttable presumption in certain actions brought against
22a licensee; providing limitations for admissibility of
23survey and licensure reports and the presentation of
24testimony or other evidence of staffing deficiencies;
25providing applicability; providing an effective date.
27Be It Enacted by the Legislature of the State of Florida:
29     Section 1.  Section 400.023, Florida Statutes, is amended
30to read:
31     400.023  Civil enforcement.-
32     (1)  Any resident who alleges negligence or a violation of
33whose rights as specified in this part has are violated shall
34have a cause of action against the licensee or its management
35company, as specifically identified in the application for
36nursing home licensure, and its direct caregiver employees.
37Sections 400.023-400.0238 provide the exclusive remedy against a
38licensee or management company for a cause of action for
39recovery of damages for the personal injury or death of a
40nursing home resident arising out of negligence or a violation
41of residents' rights specified in s. 400.022.
42     (2)  A cause of action may not be asserted individually
43against an officer, director, owner, including any designated as
44having a "controlling interest" on the application for nursing
45home licensure, or agent of a licensee or management company
46under this part unless, following an evidentiary hearing, the
47court determines there is sufficient evidence in the record or
48proffered by the claimant that establishes a reasonable basis
49for a finding that:
50     (a)  The officer, director, owner, or agent breached,
51failed to perform, or acted outside the scope of duties as an
52officer, director, owner, or agent; and
53     (b)  The breach, failure to perform, or conduct outside the
54scope of duties is a legal cause of actual loss, injury, death,
55or damage to the resident.
56     (3)  If an action is brought by or on behalf of a resident
57under this part, a cause of action under s. 415.1111 may not be
58asserted against an employee, officer, director, owner, or agent
59of a licensee or management company.
60     (4)  The action may be brought by the resident or his or
61her guardian, by a person or organization acting on behalf of a
62resident with the consent of the resident or his or her
63guardian, or by the personal representative of the estate of a
64deceased resident regardless of the cause of death. If the
65action alleges a claim for the resident's rights or for
66negligence that caused the death of the resident, the claimant
67shall be required to elect, at the end of discovery but not
68later than 60 days before trial, either survival damages
69pursuant to s. 46.021 or wrongful death damages pursuant to s.
70768.21. In any claim for wrongful death brought under this
71section, noneconomic damages may not exceed $250,000 per
72resident, regardless of the number of claimants or defendants.
73     (5)  If the action alleges a claim for the resident's
74rights or for negligence that did not cause the death of the
75resident, the personal representative of the estate may recover
76damages for the negligence that caused injury to the resident.
77The action may be brought in any court of competent jurisdiction
78to enforce such rights and to recover actual and punitive
79damages for any violation of the rights of a resident or for
81     (6)  Any resident who prevails in seeking injunctive relief
82or a claim for an administrative remedy may is entitled to
83recover the costs of the action, and a reasonable attorney's fee
84assessed against the defendant not to exceed $25,000. Fees shall
85be awarded solely for the injunctive or administrative relief
86and not for any claim or action for damages whether such claim
87or action is brought together with a request for an injunction
88or administrative relief or as a separate action, except as
89provided under s. 768.79 or the Florida Rules of Civil
90Procedure. Sections 400.023-400.0238 provide the exclusive
91remedy for a cause of action for recovery of damages for the
92personal injury or death of a nursing home resident arising out
93of negligence or a violation of rights specified in s. 400.022.
94This section does not preclude theories of recovery not arising
95out of negligence or s. 400.022 which are available to a
96resident or to the agency. The provisions of Chapter 766 does do
97not apply to any cause of action brought under ss. 400.023-
99     (7)(2)  In any claim brought under pursuant to this part
100alleging a violation of resident's rights or negligence causing
101injury to or the death of a resident, the claimant has shall
102have the burden of proving, by a preponderance of the evidence,
104     (a)  The defendant breached the applicable standard of
105care; 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
108loss, injury, death, or damage to the resident; and
109     (d)  The resident sustained loss, injury, death, or damage
110as a result of the breach.
111     (8)  Nothing in this part shall be interpreted to create
112strict liability. A violation of the rights set forth in s.
113400.022 or in any other standard or guidelines specified in this
114part or in any applicable administrative standard or guidelines
115of this state or a federal regulatory agency shall be evidence
116of negligence but shall not be considered negligence per se.
117     (9)(3)  In any claim brought pursuant to this section, a
118licensee, person, or entity shall have a duty to exercise
119reasonable care. Reasonable care is that degree of care which a
120reasonably careful licensee, person, or entity would use under
121like circumstances.
122     (10)(4)  In any claim for resident's rights violation or
123negligence by a nurse licensed under part I of chapter 464, such
124nurse shall have the duty to exercise care consistent with the
125prevailing professional standard of care for a nurse. The
126prevailing professional standard of care for a nurse shall be
127that level of care, skill, and treatment which, in light of all
128relevant surrounding circumstances, is recognized as acceptable
129and appropriate by reasonably prudent similar nurses.
130     (11)(5)  A licensee shall not be liable for the medical
131negligence of any physician rendering care or treatment to the
132resident except for the administrative services of a medical
133director as required in this part. Nothing in this subsection
134shall be construed to protect a licensee, person, or entity from
135liability for failure to provide a resident with appropriate
136observation, assessment, nursing diagnosis, planning,
137intervention, and evaluation of care by nursing staff.
138     (12)(6)  The resident or the resident's legal
139representative shall serve a copy of any complaint alleging in
140whole or in part a violation of any rights specified in this
141part to the Agency for Health Care Administration at the time of
142filing the initial complaint with the clerk of the court for the
143county in which the action is pursued. The requirement of
144providing a copy of the complaint to the agency does not impair
145the resident's legal rights or ability to seek relief for his or
146her claim.
147     (13)(7)  An action under this part for a violation of
148rights or negligence recognized herein is not a claim for
149medical malpractice, and the provisions of s. 768.21(8) does do
150not apply to a claim alleging death of the resident.
151     Section 2.  Subsections (1), (2), and (3) of section
152400.0237, 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
155no claim for punitive damages may not be brought shall be
156permitted unless there is a reasonable showing of admissible by
157evidence that has been in the record or proffered by the parties
158and provides claimant which would provide a reasonable basis for
159recovery of such damages when the criteria set forth in this
160section are applied. The claimant may move to amend her or his
161complaint to assert a claim for punitive damages as allowed by
162the rules of civil procedure. The trial judge shall conduct an
163evidentiary hearing and weigh the admissible evidence proffered
164by all parties to ensure that there is a reasonable basis to
165believe that the claimant, at trial, will be able to demonstrate
166by clear and convincing evidence that the recovery of such
167damages is warranted. The rules of civil procedure shall be
168liberally construed so as to allow the claimant discovery of
169evidence which appears reasonably calculated to lead to
170admissible evidence on the issue of punitive damages. No A
171discovery of financial worth may not shall proceed until after
172the pleading on concerning punitive damages is approved
174     (2)  A defendant, including the licensee or management
175company against whom punitive damages is sought, may be held
176liable for punitive damages only if the trier of fact, based on
177clear and convincing evidence, finds that a specific individual
178or corporate defendant actively and knowingly participated in
179intentional misconduct or engaged in conduct that constituted
180gross negligence and contributed to the loss, damages, or injury
181suffered by the claimant the defendant was personally guilty of
182intentional misconduct or gross negligence. As used in this
183section, the term:
184     (a)  "Intentional misconduct" means that the defendant
185against whom punitive damages are sought had actual knowledge of
186the wrongfulness of the conduct and the high probability that
187injury or damage to the claimant would result and, despite that
188knowledge, intentionally pursued that course of conduct,
189resulting in injury or damage.
190     (b)  "Gross negligence" means that the defendant's conduct
191was so reckless or wanting in care that it constituted a
192conscious disregard or indifference to the life, safety, or
193rights of persons exposed to such conduct.
194     (3)  In the case of vicarious liability of an employer,
195principal, corporation, or other legal entity, punitive damages
196may not be imposed for the conduct of an employee or agent
197unless only if the conduct of a specifically identified the
198employee or agent meets the criteria specified in subsection (2)
199and an officer, director, or manager of the actual employer,
200corporation, or legal entity condoned, ratified, or consented to
201the specific conduct as alleged in subsection (2). A state or
202federal survey report of nursing facilities may not be used to
203establish an entitlement to punitive damages under this
205     (a)  The employer, principal, corporation, or other legal
206entity actively and knowingly participated in such conduct;
207     (b)  The officers, directors, or managers of the employer,
208principal, corporation, or other legal entity condoned,
209ratified, or consented to such conduct; or
210     (c)  The employer, principal, corporation, or other legal
211entity engaged in conduct that constituted gross negligence and
212that contributed to the loss, damages, or injury suffered by the
214     Section 3.  Subsections (2) and (4) of section 400.0238,
215Florida Statutes, are amended to read:
216     400.0238  Punitive damages; limitation.-
217     (2)  The claimant's attorney's fees, if payable from the
218judgment, are, to the extent that the fees are based on the
219punitive damages, calculated based on the claimant's share of
220final judgment for punitive damages. This subsection does not
221limit the payment of attorney's fees based upon an award of
222damages other than punitive damages.
223     (4)  Notwithstanding any other law to the contrary, if a
224claimant has received a final judgment for the amount of
225punitive damages or there is a settlement of a case in which the
226claimant was granted leave to amend his or her complaint to add
227a claim for punitive damages, the punitive award awarded
228pursuant to this section shall be equally divided, before any
229distribution to the claimant's counsel for fees or costs,
230between the claimant and the Quality of Long-Term Care Facility
231Improvement Trust Fund, in accordance with the following
233     (a)  In the event of a judgment, the clerk of the court
234shall transmit a copy of the jury verdict to the Chief Financial
235Officer by certified mail. In the final judgment, the court
236shall order the percentages of the award, payable as provided
237herein. In the event of a settlement, the parties shall transmit
238by certified mail to the Chief Financial Officer a statement of
239the proportionate share due to the Quality of Long-Term Care
240Facility Improvement Trust Fund.
241     (b)  A settlement agreement entered into between the
242original parties to the action after a verdict has been returned
243must provide a proportionate share payable to the Quality of
244Long-Term Care Facility Improvement Trust Fund specified herein.
245For purposes of this paragraph, a proportionate share is a 50-
246percent share of that percentage of the settlement amount which
247the punitive damages portion of the verdict bore to the total of
248the compensatory and punitive damages in the verdict.
249     (c)  For a settlement agreement entered into between the
250parties to the action, at any time after a claimant is permitted
251by the court to amend the complaint to add a count for punitive
252damages, but before a final judgment on the issue, 50 percent of
253the total settlement amount shall be the punitive award. The
254punitive award shall be equally divided, before any distribution
255to the claimant's counsel for fees or costs, between the
256claimant and the Quality of Long-Term Care Facility Improvement
257Trust Fund. The amount of the punitive award and the allocation
258of that award provided for in this subsection may not be altered
259in any way by agreement of the parties after the claimant has
260been granted leave to amend his or her complaint to include a
261claim for punitive damages.
262     (d)  Settlement of a claim before a verdict by a defendant
263in which a claimant was permitted at any time to amend the claim
264to add a count for punitive damages is not an admission or
265finding of liability for conduct described in subsection (2).
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
284rebuttable presumption that appropriate staffing was provided.
285     (8)  The agency shall adopt rules pursuant to this part and
286part II of chapter 408 to provide that, when the criteria
287established under subsection (2) are not met, such deficiencies
288shall be classified according to the nature and the scope of the
289deficiency. The scope shall be cited as isolated, patterned, or
290widespread. An isolated deficiency is a deficiency affecting one
291or a very limited number of residents, or involving one or a
292very limited number of staff, or a situation that occurred only
293occasionally or in a very limited number of locations. A
294patterned deficiency is a deficiency where more than a very
295limited number of residents are affected, or more than a very
296limited number of staff are involved, or the situation has
297occurred in several locations, or the same resident or residents
298have been affected by repeated occurrences of the same deficient
299practice but the effect of the deficient practice is not found
300to be pervasive throughout the facility. A widespread deficiency
301is a deficiency in which the problems causing the deficiency are
302pervasive in the facility or represent systemic failure that has
303affected or has the potential to affect a large portion of the
304facility's residents. The agency shall indicate the
305classification on the face of the notice of deficiencies as
307     (e)  A deficiency identified by the agency in a nursing
308home survey is not admissible for any purpose in an action under
309ss. 400.023-400.0238. However, a survey deficiency citing a
310resident on whose behalf the action is brought may be introduced
311as evidence of negligence if the agency has determined that the
312resident sustained actual harm as a result thereof. If a
313claimant in an action under ss. 400.023-400.0238 was a member of
314a survey resident roster or otherwise was the subject of any
315survey by the agency and the agency did not allege or determine
316that any deficiency occurred with respect to that claimant
317during that survey, the licensee may introduce the absence of a
318deficiency citation to refute an allegation of neglect or
319noncompliance with regulatory standards.
320     Section 5.  This act shall take effect July 1, 2011, and
321shall apply to all causes of action that accrue on or after that

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