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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. 28 29 Be It Enacted by the Legislature of the State of Florida: 30 31 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 589 556-136-97 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; 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 589 556-136-97 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 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 589 556-136-97 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 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 589 556-136-97 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. 20 21 22 23 24 25 26 27 28 29 30 31 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 589 556-136-97 1 ***************************************** 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. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 6