CS/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 limitation on recovery; amending s.
9400.0237, F.S.; requiring evidence of the basis for
10punitive damages; requiring the trial judge to conduct an
11evidentiary hearing before a claimant can assert a claim
12for punitive damages; permitting a licensee or management
13company to be held liable for punitive damages under
14certain circumstances; providing criteria for awarding of
15punitive damages in a case of vicarious liability of
16certain entities; providing applicability; providing for
17severability; providing an effective date.
19Be It Enacted by the Legislature of the State of Florida:
21     Section 1.  Section 400.023, Florida Statutes, is amended
22to read:
23     400.023  Civil enforcement.-
24     (1)  Any resident who alleges negligence or a violation of
25whose rights as specified in this part has are violated shall
26have a cause of action against the licensee or its management
27company, as specifically identified in the application for
28nursing home licensure, and its direct caregiver employees.
29Sections 400.023-400.0238 provide the exclusive remedy against a
30licensee or management company for a cause of action for
31recovery of damages for the personal injury or death of a
32nursing home resident arising out of negligence or a violation
33of residents' rights specified in s. 400.022.
34     (2)  A cause of action may not be asserted individually
35against an officer, director, owner, including any designated as
36having a "controlling interest" on the application for nursing
37home licensure, or agent of a licensee or management company
38under this part unless, following an evidentiary hearing, the
39court determines there is sufficient evidence in the record or
40proffered by the claimant that establishes a reasonable basis
41for a finding that:
42     (a)  The officer, director, owner, or agent breached,
43failed to perform, or acted outside the scope of duties as an
44officer, director, owner, or agent; and
45     (b)  The breach, failure to perform, or conduct outside the
46scope of duties is a legal cause of actual loss, injury, death,
47or damage to the resident.
48     (3)  In any claim for wrongful death brought under this
49section, noneconomic damages may not exceed $300,000 per
50resident, regardless of the number of claimants or defendants.
51The action may be brought by the resident or his or her
52guardian, by a person or organization acting on behalf of a
53resident with the consent of the resident or his or her
54guardian, or by the personal representative of the estate of a
55deceased resident regardless of the cause of death. If the
56action alleges a claim for the resident's rights or for
57negligence that caused the death of the resident, the claimant
58shall be required to elect either survival damages pursuant to
59s. 46.021 or wrongful death damages pursuant to s. 768.21.
60     (4)  If the action alleges a claim for the resident's
61rights or for negligence that did not cause the death of the
62resident, the personal representative of the estate may recover
63damages for the negligence that caused injury to the resident.
64The action may be brought in any court of competent jurisdiction
65to enforce such rights and to recover actual and punitive
66damages for any violation of the rights of a resident or for
68     (5)  Any resident who prevails in seeking injunctive relief
69or a claim for an administrative remedy may is entitled to
70recover the costs of the action, and a reasonable attorney's fee
71assessed against the defendant not to exceed $25,000. Fees shall
72be awarded solely for the injunctive or administrative relief
73and not for any claim or action for damages whether such claim
74or action is brought together with a request for an injunction
75or administrative relief or as a separate action, except as
76provided under s. 768.79 or the Florida Rules of Civil
77Procedure. Sections 400.023-400.0238 provide the exclusive
78remedy for a cause of action for recovery of damages for the
79personal injury or death of a nursing home resident arising out
80of negligence or a violation of rights specified in s. 400.022.
81This section does not preclude theories of recovery not arising
82out of negligence or s. 400.022 which are available to a
83resident or to the agency. The provisions of Chapter 766 does do
84not apply to any cause of action brought under ss. 400.023-
86     (6)(2)  In any claim brought under pursuant to this part
87alleging a violation of resident's rights or negligence causing
88injury to or the death of a resident, the claimant has shall
89have the burden of proving, by a preponderance of the evidence,
91     (a)  The defendant breached the applicable standard of
92care; and owed a duty to the resident;
93     (b)  The defendant breached the duty to the resident;
94     (b)(c)  The breach of the duty is a legal cause of actual
95loss, injury, death, or damage to the resident; and
96     (d)  The resident sustained loss, injury, death, or damage
97as a result of the breach.
98     (7)  Nothing in this part shall be interpreted to create
99strict liability. A violation of the rights set forth in s.
100400.022 or in any other standard or guidelines specified in this
101part or in any applicable administrative standard or guidelines
102of this state or a federal regulatory agency shall be evidence
103of negligence but shall not be considered negligence per se.
104     (8)(3)  In any claim brought pursuant to this section, a
105licensee, person, or entity shall have a duty to exercise
106reasonable care. Reasonable care is that degree of care which a
107reasonably careful licensee, person, or entity would use under
108like circumstances.
109     (9)(4)  In any claim for resident's rights violation or
110negligence by a nurse licensed under part I of chapter 464, such
111nurse shall have the duty to exercise care consistent with the
112prevailing professional standard of care for a nurse. The
113prevailing professional standard of care for a nurse shall be
114that level of care, skill, and treatment which, in light of all
115relevant surrounding circumstances, is recognized as acceptable
116and appropriate by reasonably prudent similar nurses.
117     (10)(5)  A licensee shall not be liable for the medical
118negligence of any physician rendering care or treatment to the
119resident except for the administrative services of a medical
120director as required in this part. Nothing in this subsection
121shall be construed to protect a licensee, person, or entity from
122liability for failure to provide a resident with appropriate
123observation, assessment, nursing diagnosis, planning,
124intervention, and evaluation of care by nursing staff.
125     (11)(6)  The resident or the resident's legal
126representative shall serve a copy of any complaint alleging in
127whole or in part a violation of any rights specified in this
128part to the Agency for Health Care Administration at the time of
129filing the initial complaint with the clerk of the court for the
130county in which the action is pursued. The requirement of
131providing a copy of the complaint to the agency does not impair
132the resident's legal rights or ability to seek relief for his or
133her claim.
134     (12)(7)  An action under this part for a violation of
135rights or negligence recognized herein is not a claim for
136medical malpractice, and the provisions of s. 768.21(8) does do
137not apply to a claim alleging death of the resident.
138     Section 2.  Subsections (1), (2), and (3) of section
139400.0237, Florida Statutes, are amended to read:
140     400.0237  Punitive damages; pleading; burden of proof.-
141     (1)  In any action for damages brought under this part, a
142no claim for punitive damages may not be brought shall be
143permitted unless there is a reasonable showing of admissible by
144evidence that has been in the record or proffered by the parties
145and provides claimant which would provide a reasonable basis for
146recovery of such damages when the criteria set forth in this
147section are applied. The claimant may move to amend her or his
148complaint to assert a claim for punitive damages as allowed by
149the rules of civil procedure. The trial judge shall conduct an
150evidentiary hearing and weigh the admissible evidence proffered
151by all parties to ensure that there is a reasonable basis to
152believe that the claimant, at trial, will be able to demonstrate
153by clear and convincing evidence that the recovery of such
154damages is warranted. The rules of civil procedure shall be
155liberally construed so as to allow the claimant discovery of
156evidence which appears reasonably calculated to lead to
157admissible evidence on the issue of punitive damages. No A
158discovery of financial worth may not shall proceed until after
159the pleading on concerning punitive damages is approved
161     (2)  A defendant, including the licensee or management
162company against whom punitive damages is sought, may be held
163liable for punitive damages only if the trier of fact, based on
164clear and convincing evidence, finds that a specific individual
165or corporate defendant actively and knowingly participated in
166intentional misconduct or engaged in conduct that constituted
167gross negligence and contributed to the loss, damages, or injury
168suffered by the claimant the defendant was personally guilty of
169intentional misconduct or gross negligence. As used in this
170section, the term:
171     (a)  "Intentional misconduct" means that the defendant
172against whom punitive damages are sought had actual knowledge of
173the wrongfulness of the conduct and the high probability that
174injury or damage to the claimant would result and, despite that
175knowledge, intentionally pursued that course of conduct,
176resulting in injury or damage.
177     (b)  "Gross negligence" means that the defendant's conduct
178was so reckless or wanting in care that it constituted a
179conscious disregard or indifference to the life, safety, or
180rights of persons exposed to such conduct.
181     (3)  In the case of vicarious liability of an employer,
182principal, corporation, or other legal entity, punitive damages
183may not be imposed for the conduct of an employee or agent
184unless only if the conduct of a specifically identified the
185employee or agent meets the criteria specified in subsection (2)
186and an officer, director, or manager of the actual employer,
187corporation, or legal entity condoned, ratified, or consented to
188the specific conduct as alleged in subsection (2).:
189     (a)  The employer, principal, corporation, or other legal
190entity actively and knowingly participated in such conduct;
191     (b)  The officers, directors, or managers of the employer,
192principal, corporation, or other legal entity condoned,
193ratified, or consented to such conduct; or
194     (c)  The employer, principal, corporation, or other legal
195entity engaged in conduct that constituted gross negligence and
196that contributed to the loss, damages, or injury suffered by the
198     Section 3.  If any provision of this act or its application
199to any person or circumstance is held invalid, the invalidity
200does not affect other provisions or applications of this act
201which can be given effect without the invalid provision or
202application, and to this end the provisions of this act are
204     Section 4.  This act shall take effect July 1, 2011, and
205shall apply to all causes of action that accrue on or after that

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