Florida Senate - 2013 SB 1384
By Senator Galvano
26-01020A-13 20131384__
1 A bill to be entitled
2 An act relating to nursing home litigation; amending
3 s. 400.023, F.S.; providing that a nursing home
4 resident who alleges negligence or a violation of
5 residents’ rights has a cause of action against the
6 nursing home licensee or its management company and
7 the licensee’s direct caregiver employees; declaring
8 that ss. 400.023-400.0238, F.S., provide the exclusive
9 remedy against a nursing home licensee or its
10 management company for a cause of action for recovery
11 of damages arising out of negligence or a violation of
12 residents’ rights; providing that a cause of action
13 may not be asserted against certain specified persons;
14 providing exceptions; amending s. 400.0237, F.S.;
15 providing that a claim for punitive damages may not be
16 brought unless there is a showing of admissible
17 evidence proffered by the parties which provides a
18 reasonable basis for recovery of punitive damages when
19 certain criteria are applied; requiring the court to
20 conduct a hearing to determine whether there is
21 sufficient admissible evidence to ensure that there is
22 a reasonable basis to believe that the claimant will
23 be able to demonstrate by clear and convincing
24 evidence that the recovery of punitive damages is
25 appropriate; requiring the trier of fact to find by
26 clear and convincing evidence that a specific person
27 or corporate defendant actively and knowingly
28 participated in intentional misconduct or engaged in
29 conduct that constituted gross negligence and
30 contributed to the loss, damages, or injury suffered
31 by the claimant before punitive damages may be
32 awarded; requiring an officer, director, or manager of
33 the employer, corporation, or legal entity to condone,
34 ratify, or consent to certain specified conduct before
35 holding the licensee vicariously liable for punitive
36 damages; providing an effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40 Section 1. Section 400.023, Florida Statutes, is amended to
41 read:
42 400.023 Civil enforcement.—
43 (1) Any resident who alleges negligence or a violation of
44 whose rights as specified in this part has are violated shall
45 have a cause of action against the licensee or its management
46 company, as specifically identified in the application for
47 nursing home licensure, and the licensee’s direct caregiver
48 employees.
49 (a) Sections 400.023-400.0238 provide the exclusive remedy
50 against a licensee or its management company for a cause of
51 action for recovery of damages for the personal injury or death
52 of a nursing home resident arising out of negligence or a
53 violation of residents’ rights specified in s. 400.022. The
54 action may be brought by the resident or his or her guardian, by
55 a person or organization acting on behalf of a resident with the
56 consent of the resident or his or her guardian, or by the
57 personal representative of the estate of a deceased resident
58 regardless of the cause of death.
59 (b) If the action alleges a claim for the resident’s rights
60 or for negligence that caused the death of the resident, the
61 claimant shall be required to elect either survival damages
62 pursuant to s. 46.021 or wrongful death damages pursuant to s.
63 768.21. If the action alleges a claim for the resident’s rights
64 or for negligence that did not cause the death of the resident,
65 the personal representative of the estate may recover damages
66 for the negligence that caused injury to the resident.
67 (c) The action may be brought in any court of competent
68 jurisdiction to enforce such rights and to recover actual and
69 punitive damages for any violation of the rights of a resident
70 or for negligence.
71 (d) Any resident who prevails in seeking injunctive relief
72 or a claim for an administrative remedy is entitled to recover
73 the costs of the action, and a reasonable attorney attorney’s
74 fee assessed against the defendant not to exceed $25,000. Fees
75 shall be awarded solely for the injunctive or administrative
76 relief and not for any claim or action for damages whether such
77 claim or action is brought together with a request for an
78 injunction or administrative relief or as a separate action,
79 except as provided under s. 768.79 or the Florida Rules of Civil
80 Procedure. Sections 400.023-400.0238 provide the exclusive
81 remedy for a cause of action for recovery of damages for the
82 personal injury or death of a nursing home resident arising out
83 of negligence or a violation of rights specified in s. 400.022.
84 (e) This section does not preclude theories of recovery not
85 arising out of negligence or s. 400.022 which are available to a
86 resident or to the agency. The provisions of chapter 766 do not
87 apply to any cause of action brought under ss. 400.023-400.0238.
88 (2) A cause of action may not be asserted against a person
89 or entity other than those identified in subsection (1) unless,
90 following an evidentiary hearing at which the person or entity
91 other than those identified in subsection (1) has been given
92 sufficient notice and an opportunity to defend, the court
93 determines there is sufficient evidence in the record or
94 proffered by the claimant to establish a reasonable basis for a
95 finding that:
96 (a) The person or entity owed a specific legal duty to the
97 resident, and the person or entity breached that duty; and
98 (b) The breach of that duty is the legal cause of actual
99 loss, injury, damage, or death to the resident.
100 (3)(2) In a any claim brought pursuant to this part
101 alleging a violation of resident’s rights or negligence causing
102 injury to or the death of a resident, the claimant has shall
103 have the burden of proving, by a preponderance of the evidence,
104 that:
105 (a) The defendant owed a duty to the resident;
106 (b) The defendant breached the duty to the resident;
107 (c) The breach of the duty is a legal cause of loss,
108 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
112 Nothing in This part does not shall be interpreted to create
113 strict liability. A violation of the rights set forth in s.
114 400.022, or in any other standard or guidelines specified in
115 this part, or in any applicable administrative standard or
116 guidelines of this state or a federal regulatory agency is shall
117 be evidence of negligence but is shall not be considered
118 negligence per se.
119 (4)(3) In a any claim brought pursuant to this section, a
120 licensee, person, or entity has shall have a duty to exercise
121 reasonable care. Reasonable care is that degree of care which a
122 reasonably careful licensee, person, or entity would use under
123 like circumstances.
124 (5)(4) In a any claim for resident’s rights violation or
125 negligence by a nurse licensed under part I of chapter 464, such
126 nurse has shall have the duty to exercise care consistent with
127 the prevailing professional standard of care for a nurse. The
128 prevailing professional standard of care for a nurse is shall be
129 that level of care, skill, and treatment which, in light of all
130 relevant surrounding circumstances, is recognized as acceptable
131 and appropriate by reasonably prudent similar nurses.
132 (6)(5) A licensee is shall not be liable for the medical
133 negligence of any physician rendering care or treatment to the
134 resident except for the administrative services of a medical
135 director as required in this part. Nothing in This subsection
136 does not shall be construed to protect a licensee, person, or
137 entity from liability for failure to provide a resident with
138 appropriate observation, assessment, nursing diagnosis,
139 planning, intervention, and evaluation of care by nursing staff.
140 (7)(6) The resident or the resident’s legal representative
141 shall serve a copy of any complaint alleging in whole or in part
142 a violation of any rights specified in this part to the Agency
143 for Health Care Administration at the time of filing the initial
144 complaint with the clerk of the court for the county in which
145 the action is pursued. The requirement of providing a copy of
146 the complaint to the agency does not impair the resident’s legal
147 rights or ability to seek relief for his or her claim.
148 (8)(7) An action under this part for a violation of rights
149 or negligence recognized herein is not a claim for medical
150 malpractice, and the provisions of s. 768.21(8) do not apply to
151 a claim alleging death of the resident.
152 Section 2. Section 400.0237, Florida Statutes, is amended
153 to read:
154 400.0237 Punitive damages; pleading; burden of proof.—
155 (1)(a) In any action for damages brought under this part, a
156 no claim for punitive damages may not be brought shall be
157 permitted unless there is a reasonable showing of admissible by
158 evidence that has been submitted in the record or proffered by
159 the parties and provides claimant which would provide a
160 reasonable basis for recovery of such damages when the criteria
161 in this section are applied. The claimant may move to amend her
162 or his complaint to assert a claim for punitive damages as
163 allowed by the rules of civil procedure in accordance with
164 evidentiary requirements set forth in this section.
165 (b) The court shall conduct a hearing to determine whether
166 there is sufficient admissible evidence submitted by the parties
167 to ensure that there is a reasonable basis to believe that the
168 claimant, at trial, will be able to demonstrate by clear and
169 convincing evidence that the recovery of such damages is
170 warranted. A The rules of civil procedure shall be liberally
171 construed so as to allow the claimant discovery of evidence
172 which appears reasonably calculated to lead to admissible
173 evidence on the issue of punitive damages. No discovery of
174 financial worth may not shall proceed until after the pleading
175 on concerning punitive damages is approved by the court
176 permitted.
177 (2) A defendant may be held liable for punitive damages
178 only if the trier of fact, by based on clear and convincing
179 evidence, finds that a specific person or corporate defendant
180 actively and knowingly participated in intentional misconduct or
181 engaged in conduct that constitutes gross negligence and
182 contributed to the loss, damages, or injury suffered by the
183 claimant the defendant was personally guilty of intentional
184 misconduct or gross negligence. As used in this section, the
185 term:
186 (a) “Intentional misconduct” means that the defendant
187 against whom punitive damages are sought had actual knowledge of
188 the wrongfulness of the conduct and the high probability that
189 injury or damage to the claimant would result and, despite that
190 knowledge, intentionally pursued that course of conduct,
191 resulting in injury or damage.
192 (b) “Gross negligence” means that the defendant’s conduct
193 was so reckless or wanting in care that it constituted a
194 conscious disregard or indifference to the life, safety, or
195 rights of persons exposed to such conduct.
196 (3) In the case of vicarious liability of an employer,
197 principal, corporation, or other legal entity, punitive damages
198 may not be imposed for the conduct of an employee or agent
199 unless only if the conduct of a specifically identified the
200 employee or agent meets the criteria specified in subsection (2)
201 and an officer, director, or manager of the actual employer,
202 corporation, or legal entity condoned, ratified, or consented to
203 the specific conduct as alleged in subsection (2). A state or
204 federal survey report of nursing facilities may not be used to
205 establish an entitlement to punitive damages under this section:
206 (a) The employer, principal, corporation, or other legal
207 entity actively and knowingly participated in such conduct;
208 (b) The officers, directors, or managers of the employer,
209 principal, corporation, or other legal entity condoned,
210 ratified, or consented to such conduct; or
211 (c) The employer, principal, corporation, or other legal
212 entity engaged in conduct that constituted gross negligence and
213 that contributed to the loss, damages, or injury suffered by the
214 claimant.
215 (4) The plaintiff shall must establish at trial, by clear
216 and convincing evidence, its entitlement to an award of punitive
217 damages. The “greater weight of the evidence” burden of proof
218 applies to a determination of the amount of damages.
219 (5) This section is remedial in nature and takes shall take
220 effect upon becoming a law.
221 Section 3. This act shall take effect upon becoming a law.