CODING: Words stricken are deletions; words underlined are additions.House Bill 0589
Florida House of Representatives - 1997 HB 589
By Representatives Melvin, Wise and Goode
1 A bill to be entitled
2 An act relating to nursing homes; amending s.
3 400.023, F.S.; specifying and limiting persons
4 who may bring an action to enforce the rights
5 of a resident; deleting authority for recovery
6 of attorney's fees and costs; restricting
7 liability for a physician's medical negligence
8 to services rendered by a medical director
9 acting in that capacity; specifying experience
10 required by a physician or nurse who provides a
11 statement verifying deprivation or infringement
12 of adequate and appropriate health care;
13 providing conditions for waiver of the verified
14 statement requirement when the nursing home
15 fails to provide records; revising conditions
16 for award of punitive damages and limiting the
17 amount of such awards; providing the claimant's
18 burden of proving an injury was caused by the
19 nursing home; providing a statute of
20 limitation; specifying information required to
21 be included in the complaint and providing for
22 amendments thereto; prohibiting certain
23 discovery or introduction of other evidence;
24 providing for dismissal of complaints;
25 providing for effect of an unintentional lack
26 of documentation that at service was provided;
27 providing an effective date.
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29 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Section 400.023, Florida Statutes, is
2 amended to read:
3 400.023 Civil enforcement.--
4 (1)(a) Any resident whose rights as specified in this
5 part are deprived or infringed upon shall have a cause of
6 action against any licensee responsible for the violation.
7 The action may be brought only by the resident or his or her
8 guardian, by the state ombudsman council a person or
9 organization acting on behalf of a resident with the consent
10 of the resident or his or her guardian, or by the personal
11 representative of the estate of a deceased resident when the
12 cause of death resulted from the deprivation or infringement
13 of the decedent's rights, notwithstanding any other survival
14 statute to the contrary.
15 (b) The action may be brought in any court of
16 competent jurisdiction to enforce such rights and to recover
17 actual, but not nominal, damages directly caused by and
18 punitive damages for any deprivation or infringement on the
19 rights of a resident. Any plaintiff who prevails in any such
20 action may be entitled to recover reasonable attorney's fees,
21 costs of the action, and damages, unless the court finds that
22 the plaintiff has acted in bad faith, with malicious purpose,
23 and that there was a complete absence of a justiciable issue
24 of either law or fact. Prevailing defendants may be entitled
25 to recover reasonable attorney's fees pursuant to s. 57.105.
26 The remedies provided in this section are in addition to and
27 cumulative with other legal and administrative remedies
28 available to a resident and to the agency.
29 (2) Attorneys' fees shall be based on the following
30 criteria:
31 (a) The time and labor required;
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Florida House of Representatives - 1997 HB 589
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1 (b) The novelty and difficulty of the questions;
2 (c) The skill requisite to perform the legal service
3 properly;
4 (d) The preclusion of other employment by the attorney
5 due to the acceptance of the case;
6 (e) The customary fee;
7 (f) Whether the fee is fixed or contingent;
8 (g) The amount involved or the results obtained;
9 (h) The experience, reputation, and ability of the
10 attorneys;
11 (i) The costs expended to prosecute the claim;
12 (j) The type of fee arrangement between the attorney
13 and the client;
14 (k) Whether the relevant market requires a contingency
15 fee multiplier to obtain competent counsel;
16 (l) Whether the attorney was able to mitigate the risk
17 of nonpayment in any way.
18 (2)(3) A licensee shall not be liable for the medical
19 negligence of any physician rendering care or treatment to the
20 resident except for the services of a medical director, acting
21 in the capacity of medical director and not as a private
22 physician, as required in this part. Nothing in this
23 subsection shall be construed to protect a licensee from
24 liability for failure to provide a resident with appropriate
25 observation, assessment, nursing diagnosis, planning,
26 intervention, and evaluation of care by nursing staff.
27 (3)(4) Claimants alleging a deprivation or
28 infringement of adequate and appropriate health care pursuant
29 to s. 400.022(1)(k) which resulted in personal injury to or
30 the death of a resident shall conduct an investigation which
31 shall include a review by a licensed physician or registered
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1 nurse familiar with the standard of nursing care for nursing
2 home residents pursuant to this part. Such physician or nurse
3 shall have a minimum of 5 years' experience within the last 10
4 years as a medical director or nurse in a facility licensed as
5 a nursing home by this part. Any complaint alleging such a
6 deprivation or infringement shall be accompanied by a verified
7 statement from such physician or nurse the reviewer that there
8 exists reason to believe that a deprivation or infringement
9 occurred during the resident's stay at the nursing home. Such
10 opinion shall be based on records or other information
11 available at the time that suit is filed. Failure of the
12 nursing home to provide records in accordance with the
13 requirements of this chapter after reasonable notice and the
14 receipt of a properly executed records release shall waive the
15 requirement of the verified statement.
16 (4)(5) For the purpose of this section, punitive
17 damages may be awarded for intentional misconduct conduct
18 which is a willful, wanton, gross, or flagrant violation of,
19 reckless, or consciously indifferent to the rights of the
20 resident. Notwithstanding any other provision of law, the
21 amount of punitive damages awarded shall not exceed three
22 times the amount of actual damages recovered.
23 (5) The existence of an injury shall not create any
24 inference or presumption of negligence against a licensee.
25 The claimant must maintain the burden of proving that an
26 injury was proximately caused by the licensee.
27 (6) Actions brought under this chapter shall be
28 considered medical malpractice actions for statute of
29 limitation purposes.
30 (7) The plaintiff shall include in the complaint filed
31 in the action a detailed specification and factual description
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1 of each act and omission alleged by plaintiff to render the
2 licensee liable to the plaintiff. The plaintiff shall timely
3 amend his or her complaint upon determination of new or
4 different acts or omissions upon which his or her claim is
5 based. However, any such amendment must be made at least 90
6 days before trial. The plaintiff shall be prohibited from
7 conducting discovery with regard to any other act or omission
8 or from introducing at trial evidence of any other act or
9 omission. Any complaint which fails to include such detailed
10 specification and factual description of each act and omission
11 shall be subject to dismissal for failure to state a claim
12 upon which relief can be granted.
13 (8) In cases brought under this chapter, unintentional
14 lack of documentation that a service was provided by a
15 licensee shall not create a presumption that the service was
16 not rendered. A plaintiff shall not prevail in an action
17 brought under this chapter if the sole basis for the action is
18 the unintentional lack of documentation.
19 Section 2. This act shall take effect October 1, 1997.
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2 HOUSE SUMMARY
3
Specifies and limits the persons who may bring actions to
4 enforce the rights of a nursing home resident. Deletes
authority for recovery of attorney's fees and costs.
5 Restricts the nursing home's liability for a physician's
medical negligence to services rendered by a medical
6 director acting in that capacity. Specifies the
experience required by a physician or registered nurse
7 who provides a statement verifying that there is reason
to believe deprivation or infringement of adequate and
8 appropriate health care occurred. Permits waiver of
requirement for such statement for failure of the nursing
9 home to provide records, provided the nursing home
received reasonable notice and a properly executed
10 release to provide records. Revises conditions for award
of punitive damages. Limits amount of such damages to
11 three times the amount of actual damages recovered.
Provides the claimant's burden of proving that an injury
12 was caused by the nursing home. Provides that the statute
of limitations for actions against nursing home is that
13 for medical malpractice actions. Specifies the
information required to be included in a complaint,
14 provides for amendments thereto, and provides for
dismissal of complaints that fail to include the required
15 information. Prohibits discovery or the introduction of
other evidence. Provides that the unintentional lack of
16 documentation that a service was provided by a nursing
home does not create a presumption that the service was
17 not rendered.
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