Florida Senate - 2014                                     SB 670
       
       
        
       By Senator Thrasher
       
       
       
       
       
       6-00672-14                                             2014670__
    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         or entities; providing exceptions; amending s.
   15         400.0237, F.S.; providing that a claim for punitive
   16         damages may not be brought unless there is a showing
   17         of admissible evidence submitted by the parties which
   18         provides a reasonable basis for recovery of punitive
   19         damages when certain criteria are applied; requiring
   20         the court to conduct a hearing to determine whether
   21         there is sufficient admissible evidence to ensure that
   22         there is a reasonable basis to believe that the
   23         claimant will be able to demonstrate by clear and
   24         convincing evidence that the recovery of punitive
   25         damages is warranted; requiring the trier of fact to
   26         find by clear and convincing evidence that a specific
   27         person 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 a defendant may be held liable
   32         for punitive damages; requiring an officer, director,
   33         or manager of the employer, corporation, or legal
   34         entity to condone, ratify, or consent to certain
   35         specified conduct before holding the licensee
   36         vicariously liable for punitive damages; providing an
   37         effective date.
   38          
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Section 400.023, Florida Statutes, is amended to
   42  read:
   43         400.023 Civil enforcement.—
   44         (1) A Any resident who alleges negligence or a violation of
   45  whose rights as specified under in this part has are violated
   46  shall have a cause of action against the licensee or its
   47  management company, as specifically identified in the nursing
   48  home’s application for licensure, and the licensee’s direct
   49  caregiver employees.
   50         (a) Sections 400.023-400.0238 provide the exclusive remedy
   51  against a licensee or its management company for a cause of
   52  action for the recovery of damages for the personal injury or
   53  death of a nursing home resident arising out of negligence or a
   54  violation of residents’ rights specified in s. 400.022. The
   55  action may be brought by the resident or his or her guardian, by
   56  a person or organization acting on behalf of a resident with the
   57  consent of the resident or his or her guardian, or by the
   58  personal representative of the estate of a deceased resident
   59  regardless of the cause of death.
   60         (b) If the action alleges a violation of residents’ claim
   61  for the resident’s rights or for negligence that caused the
   62  death of the resident, the claimant shall be required to elect
   63  either survival damages pursuant to s. 46.021 or wrongful death
   64  damages pursuant to s. 768.21. If the action alleges a violation
   65  of residents’ claim for the resident’s rights or for negligence
   66  that did not cause the death of the resident, the personal
   67  representative of the estate may recover damages for the
   68  negligence that caused injury to the resident.
   69         (c) The action may be brought in any court of competent
   70  jurisdiction to enforce such rights and to recover actual and
   71  punitive damages for the any violation of the rights of a
   72  resident or for negligence.
   73         (d) Any resident who prevails in seeking injunctive relief
   74  or a claim for an administrative remedy is entitled to recover
   75  the costs of the action, and a reasonable attorney attorney’s
   76  fee assessed against the defendant of up to not to exceed
   77  $25,000. Fees shall be awarded solely for the injunctive or
   78  administrative relief and not for any claim or action for
   79  damages whether such claim or action is brought together with a
   80  request for an injunction or administrative relief or as a
   81  separate action, except as provided under s. 768.79 or the
   82  Florida Rules of Civil Procedure. Sections 400.023-400.0238
   83  provide the exclusive remedy for a cause of action for recovery
   84  of damages for the personal injury or death of a nursing home
   85  resident arising out of negligence or a violation of rights
   86  specified in s. 400.022.
   87         (e) This section does not preclude theories of recovery not
   88  arising out of negligence or s. 400.022 which are available to a
   89  resident or to the agency. The provisions of Chapter 766 does do
   90  not apply to a any cause of action brought under ss. 400.023
   91  400.0238.
   92         (2) A cause of action may not be asserted against a person
   93  or entity other than those identified in subsection (1) unless,
   94  following an evidentiary hearing at which such person or entity
   95  has been given sufficient notice and an opportunity to defend,
   96  the court determines there is sufficient evidence in the record
   97  or proffered by the claimant to establish a reasonable basis for
   98  finding that:
   99         (a) The person or entity owed a specific legal duty to the
  100  resident and the person or entity breached that duty; and
  101         (b) The breach of that duty is the legal cause of actual
  102  loss, injury, damage, or death to the resident.
  103         (3)(2) In a any claim brought pursuant to this part
  104  alleging a violation of residents’ resident’s rights or
  105  negligence causing injury to or the death of a resident, the
  106  claimant has shall have the burden of proving, by a
  107  preponderance of the evidence, that:
  108         (a) The defendant owed a duty to the resident;
  109         (b) The defendant breached the duty to the resident;
  110         (c) The breach of the duty is a legal cause of loss,
  111  injury, death, or damage to the resident; and
  112         (d) The resident sustained loss, injury, death, or damage
  113  as a result of the breach.
  114  
  115  Nothing in This part does not shall be interpreted to create
  116  strict liability. A violation of the rights set forth in s.
  117  400.022, or in any other standard or guidelines specified in
  118  this part, or in any applicable administrative standard or
  119  guidelines of this state or a federal regulatory agency is shall
  120  be evidence of negligence but is shall not be considered
  121  negligence per se.
  122         (4)(3) In a any claim brought pursuant to this section, a
  123  licensee, person, or entity has shall have a duty to exercise
  124  reasonable care. Reasonable care is that degree of care which a
  125  reasonably careful licensee, person, or entity would use under
  126  like circumstances.
  127         (5)(4) In a any claim for a residents’ resident’s rights
  128  violation or negligence by a nurse licensed under part I of
  129  chapter 464, such nurse has shall have the duty to exercise care
  130  consistent with the prevailing professional standard of care for
  131  a nurse. The prevailing professional standard of care for a
  132  nurse is shall be that level of care, skill, and treatment
  133  which, in light of all relevant surrounding circumstances, is
  134  recognized as acceptable and appropriate by reasonably prudent
  135  similar nurses.
  136         (6)(5) A licensee is shall not be liable for the medical
  137  negligence of any physician rendering care or treatment to the
  138  resident except for the administrative services of a medical
  139  director as required under in this part. Nothing in This
  140  subsection does not shall be construed to protect a licensee,
  141  person, or entity from liability for failure to provide a
  142  resident with appropriate observation, assessment, nursing
  143  diagnosis, planning, intervention, and evaluation of care by
  144  nursing staff.
  145         (7)(6) The resident or the resident’s legal representative
  146  shall serve a copy of a any complaint alleging in whole or in
  147  part a violation of any rights specified in this part to the
  148  agency for Health Care Administration at the time of filing the
  149  initial complaint with the clerk of the court for the county in
  150  which the action is pursued. The requirement of providing a copy
  151  of the complaint to the agency does not impair the resident’s
  152  legal rights or ability to seek relief for his or her claim.
  153         (8)(7) An action under this part for a violation of rights
  154  or negligence recognized herein is not a claim for medical
  155  malpractice, and the provisions of s. 768.21(8) does do not
  156  apply to a claim alleging death of the resident.
  157         Section 2. Section 400.0237, Florida Statutes, is amended
  158  to read:
  159         400.0237 Punitive damages; pleading; burden of proof.—
  160         (1) A In any action for damages brought under this part, no
  161  claim for punitive damages may not be brought under this part
  162  shall be permitted unless there is a reasonable showing of
  163  admissible by evidence submitted in the record or proffered by
  164  the parties which provides claimant which would provide a
  165  reasonable basis for recovery of such damages when the criteria
  166  in this section are applied.
  167         (a) The claimant may move to amend her or his complaint to
  168  assert a claim for punitive damages as allowed by the rules of
  169  civil procedure in accordance with evidentiary requirements set
  170  forth in this section.
  171         (b) The court shall conduct a hearing to determine whether
  172  there is sufficient admissible evidence submitted by the parties
  173  to ensure that there is a reasonable basis to believe that the
  174  claimant, at trial, will be able to demonstrate by clear and
  175  convincing evidence that the recovery of such damages is
  176  warranted.
  177         (c)A The rules of civil procedure shall be liberally
  178  construed so as to allow the claimant discovery of evidence
  179  which appears reasonably calculated to lead to admissible
  180  evidence on the issue of punitive damages. No discovery of
  181  financial worth may not shall proceed until after the pleading
  182  on concerning punitive damages is approved by the court
  183  permitted.
  184         (2) A defendant may be held liable for punitive damages
  185  only if the trier of fact, by based on clear and convincing
  186  evidence, finds that a specific person or corporate defendant
  187  actively and knowingly participated in intentional misconduct or
  188  engaged in conduct that constitutes gross negligence and
  189  contributed to the loss, damages, or injury suffered by the
  190  claimant the defendant was personally guilty of intentional
  191  misconduct or gross negligence. As used in this section, the
  192  term:
  193         (a) “Intentional misconduct” means that the defendant
  194  against whom punitive damages are sought had actual knowledge of
  195  the wrongfulness of the conduct and the high probability that
  196  injury or damage to the claimant would result and, despite that
  197  knowledge, intentionally pursued that course of conduct,
  198  resulting in injury or damage.
  199         (b) “Gross negligence” means that the defendant’s conduct
  200  was so reckless or wanting in care that it constituted a
  201  conscious disregard or indifference to the life, safety, or
  202  rights of persons exposed to such conduct.
  203         (3) In the case of vicarious liability of an employer,
  204  principal, corporation, or other legal entity, punitive damages
  205  may not be imposed for the conduct of an employee or agent
  206  unless only if the conduct of a specifically identified the
  207  employee or agent meets the criteria specified in subsection (2)
  208  and an officer, director, or manager of the actual employer,
  209  corporation, or legal entity condoned, ratified, or consented to
  210  the specific conduct as provided in subsection (2). A state or
  211  federal survey report of nursing facilities may not be used to
  212  establish an entitlement to punitive damages under this section:
  213         (a) The employer, principal, corporation, or other legal
  214  entity actively and knowingly participated in such conduct;
  215         (b) The officers, directors, or managers of the employer,
  216  principal, corporation, or other legal entity condoned,
  217  ratified, or consented to such conduct; or
  218         (c) The employer, principal, corporation, or other legal
  219  entity engaged in conduct that constituted gross negligence and
  220  that contributed to the loss, damages, or injury suffered by the
  221  claimant.
  222         (4) The plaintiff shall must establish at trial, by clear
  223  and convincing evidence, its entitlement to an award of punitive
  224  damages. The “greater weight of the evidence” burden of proof
  225  applies to a determination of the amount of damages.
  226         (5) This section is remedial in nature and takes shall take
  227  effect upon becoming a law.
  228         Section 3. This act shall take effect upon becoming a law.