HOUSE AMENDMENT
                                                  Bill No. HB 1879
    Amendment No. 01b (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Council for Ready Infrastructure offered the following:
12  
13         Amendment (with title amendment) 
14         On page 14, line 16 through page 38, line 16
15  remove from the bill:  all of said lines
16  
17  and insert in lieu thereof:  
18         Section 4.  Effective July 1, 2001, and applying to
19  causes of action accruing on or after that date, section
20  400.023, Florida Statutes, is amended to read:
21         400.023  Civil enforcement.--
22         (1)  Any resident whose rights as specified in this
23  part are violated deprived or infringed upon shall have a
24  cause of action for long-term care facility negligence against
25  any licensee responsible for the violation. The action may be
26  brought by the resident or his or her guardian, by a person or
27  organization acting on behalf of a resident with the consent
28  of the resident or his or her guardian, or by the personal
29  representative of the estate of a deceased resident regardless
30  of the cause of death. If the action alleges a claim for the
31  resident's rights or for negligence that caused the death of
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    File original & 9 copies    04/23/01                          
    hgr0003                     08:23 am         01879-ric -132133

HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 the resident, the claimant shall be required to elect either 2 survival damages pursuant to s. 46.021 or wrongful death 3 damages pursuant to s. 768.21 when the cause of death resulted 4 from the deprivation or infringement of the decedent's rights. 5 If the action alleges a claim for the resident's rights or for 6 negligence that did not cause the death of the resident, the 7 personal representative of the estate may recover damages for 8 the negligence that caused injury to the resident. The action 9 may be brought in any court of competent jurisdiction to 10 enforce such rights and to recover actual and punitive damages 11 for any violation of deprivation or infringement on the rights 12 of a resident or for negligence. Any resident who prevails in 13 seeking injunctive relief or a claim for an administrative 14 remedy is entitled to recover the costs of the action, and a 15 reasonable attorney's fee assessed against the defendant not 16 to exceed $25,000. Fees shall be awarded solely for the 17 injunctive or administrative relief and not for any claim or 18 action for damages whether such claim or action is brought 19 together with a request for an injunction or administrative 20 relief or as a separate action, except as provided under s. 21 768.79 or the Florida Rules of Civil Procedure. Any plaintiff 22 who prevails in any such action may be entitled to recover 23 reasonable attorney's fees, costs of the action, and damages, 24 unless the court finds that the plaintiff has acted in bad 25 faith, with malicious purpose, and that there was a complete 26 absence of a justiciable issue of either law or fact. 27 Prevailing defendants may be entitled to recover reasonable 28 attorney's fees pursuant to s. 57.105. The remedies provided 29 in this section are in addition to and cumulative with other 30 legal and administrative remedies available to a resident and 31 to the agency. Sections 400.023-400.0238 provide the 2 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 exclusive remedy for a cause of action for recovery of damages 2 for the personal injury or death of a nursing home resident 3 arising out of negligence or violation of rights specified in 4 s. 400.022. This section shall not be construed as precluding 5 theories of recovery not arising out of negligence or s. 6 400.022 that are available to a resident or to the agency. 7 The provisions of chapter 766 do not apply to any cause of 8 action brought under ss. 400.023-400.0238. 9 (2) In any claim for long-term care facility 10 negligence causing injury to or the death of a resident, the 11 claimant shall have the burden of proving, by a preponderance 12 of the evidence, that: 13 (a) The defendant owed a duty to the resident; 14 (b) The defendant breached the duty to the resident; 15 (c) The breach of the duty is a legal cause of loss, 16 injury, death or damage to the resident; and 17 (d) The resident sustained loss, injury, death or 18 damage as a result of the breach. 19 20 Nothing in this part shall be interpreted to create strict 21 liability. A violation of the rights set forth in s. 400.022 22 or in any other standard or guidelines specified in this part 23 or in any applicable administrative standard or guidelines of 24 this state or a federal regulatory agency shall be evidence of 25 negligence but shall not be considered negligence per se. 26 (2) Attorneys' fees shall be based on the following 27 criteria: 28 (a) The time and labor required; 29 (b) The novelty and difficulty of the questions; 30 (c) The skill requisite to perform the legal service 31 properly; 3 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 (d) The preclusion of other employment by the attorney 2 due to the acceptance of the case; 3 (e) The customary fee; 4 (f) Whether the fee is fixed or contingent; 5 (g) The amount involved or the results obtained; 6 (h) The experience, reputation, and ability of the 7 attorneys; 8 (i) The costs expended to prosecute the claim; 9 (j) The type of fee arrangement between the attorney 10 and the client; 11 (k) Whether the relevant market requires a contingency 12 fee multiplier to obtain competent counsel; 13 (l) Whether the attorney was able to mitigate the risk 14 of nonpayment in any way. 15 (3) In any claim for long-term care facility 16 negligence, a licensee, person or entity shall have a duty to 17 exercise reasonable care. Reasonable care is that degree of 18 care which a reasonably careful licensee, person or entity 19 would use under like circumstances. 20 (4) In any claim for long-term care facility 21 negligence, a nurse licensed under part I of chapter 464 shall 22 have the duty to exercise care consistent with the prevailing 23 professional standard of care for a nurse. The prevailing 24 professional standard of care for a nurse shall be that level 25 of care, skill, and treatment which, in light of all relevant 26 surrounding circumstances is recognized as acceptable and 27 appropriate by reasonably prudent similar nurses. 28 (5)(3) A licensee, person, or entity shall not be 29 liable for the medical negligence of any physician rendering 30 care or treatment to the resident except for the 31 administrative services of a medical director as required in 4 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 this part. Nothing in this subsection shall be construed to 2 protect a licensee, person, or entity from liability for 3 failure to provide a resident with appropriate observation, 4 assessment, nursing diagnosis, planning, intervention, and 5 evaluation of care by nursing staff. 6 (6) the resident or their legal representative shall 7 serve a copy of any complaint, alleging in whole or in part, 8 the violation of any rights specified in this part to the 9 Agency for Health Care Administration at the time of filing 10 the initial complaint with the Clerk of the Court for the 11 county in which the action is pursued. 12 (4) Claimants alleging a deprivation or infringement 13 of adequate and appropriate health care pursuant to s. 14 400.022(1)(k) which resulted in personal injury to or the 15 death of a resident shall conduct an investigation which shall 16 include a review by a licensed physician or registered nurse 17 familiar with the standard of nursing care for nursing home 18 residents pursuant to this part. Any complaint alleging such 19 a deprivation or infringement shall be accompanied by a 20 verified statement from the reviewer that there exists reason 21 to believe that a deprivation or infringement occurred during 22 the resident's stay at the nursing home. Such opinion shall 23 be based on records or other information available at the time 24 that suit is filed. Failure to provide records in accordance 25 with the requirements of this chapter shall waive the 26 requirement of the verified statement. 27 (5) For the purpose of this section, punitive damages 28 may be awarded for conduct which is willful, wanton, gross or 29 flagrant, reckless, or consciously indifferent to the rights 30 of the resident. 31 (6) To recover attorney's fees under this section, the 5 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 following conditions precedent must be met: 2 (a) Within 120 days after the filing of a responsive 3 pleading or defensive motion to a complaint brought under this 4 section and before trial, the parties or their designated 5 representatives shall meet in mediation to discuss the issues 6 of liability and damages in accordance with this paragraph for 7 the purpose of an early resolution of the matter. 8 1. Within 60 days after the filing of the responsive 9 pleading or defensive motion, the parties shall: 10 a. Agree on a mediator. If the parties cannot agree on 11 a mediator, the defendant shall immediately notify the court, 12 which shall appoint a mediator within 10 days after such 13 notice. 14 b. Set a date for mediation. 15 c. Prepare an order for the court that identifies the 16 mediator, the scheduled date of the mediation, and other terms 17 of the mediation. Absent any disagreement between the parties, 18 the court may issue the order for the mediation submitted by 19 the parties without a hearing. 20 2. The mediation must be concluded within 120 days 21 after the filing of a responsive pleading or defensive motion. 22 The date may be extended only by agreement of all parties 23 subject to mediation under this subsection. 24 3. The mediation shall be conducted in the following 25 manner: 26 a. Each party shall ensure that all persons necessary 27 for complete settlement authority are present at the 28 mediation. 29 b. Each party shall mediate in good faith. 30 4. All aspects of the mediation which are not 31 specifically established by this subsection must be conducted 6 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 according to the rules of practice and procedure adopted by 2 the Supreme Court of this state. 3 (b) If the parties do not settle the case pursuant to 4 mediation, the last offer of the defendant made at mediation 5 shall be recorded by the mediator in a written report that 6 states the amount of the offer, the date the offer was made in 7 writing, and the date the offer was rejected. If the matter 8 subsequently proceeds to trial under this section and the 9 plaintiff prevails but is awarded an amount in damages, 10 exclusive of attorney's fees, which is equal to or less than 11 the last offer made by the defendant at mediation, the 12 plaintiff is not entitled to recover any attorney's fees. 13 (c) This subsection applies only to claims for 14 liability and damages and does not apply to actions for 15 injunctive relief. 16 (d) This subsection applies to all causes of action 17 that accrue on or after October 1, 1999. 18 (7) Discovery of financial information for the purpose 19 of determining the value of punitive damages may not be had 20 unless the plaintiff shows the court by proffer or evidence in 21 the record that a reasonable basis exists to support a claim 22 for punitive damages. 23 (8) In addition to any other standards for punitive 24 damages, any award of punitive damages must be reasonable in 25 light of the actual harm suffered by the resident and the 26 egregiousness of the conduct that caused the actual harm to 27 the resident. 28 Section 5. Effective July 1, 2001, and applying to 29 causes of action accruing on or after that date, section 30 400.0233, Florida Statutes, is created to read: 31 400.0233 Presuit notice; investigation; notification 7 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 of violation of resident's rights or alleged negligence; 2 claims evaluation procedure; informal discovery; review.-- 3 (1) As used in this section, the term: 4 (a) "Claim for long-term care facility negligence" 5 means a negligence claim alleging injury to or the death of a 6 resident arising out of an asserted violation of the rights of 7 a resident under s. 400.022 or an asserted deviation from the 8 applicable standard of care. 9 (b) "Insurer" means any self-insurer authorized under 10 s. 627.357, liability insurance carrier, Joint Underwriting 11 Association, or any uninsured prospective defendant. 12 (2) Prior to filing a claim for long-term care 13 facility negligence, a claimant alleging injury to or the 14 death of a resident shall notify each prospective defendant by 15 certified mail, return receipt requested, of an asserted 16 violation of a resident's rights provided in s. 400.022 or 17 deviation from the standard of care. Such notification shall 18 include an identification of the rights the prospective 19 defendant has violated and the negligence alleged to have 20 caused the incident or incidents and a brief description of 21 the injuries sustained by the resident which are reasonably 22 identifiable at the time of notice. The notice shall contain a 23 certificate of counsel that counsel's reasonable investigation 24 gave rise to a good-faith belief that grounds exist for an 25 action against each prospective defendant. 26 (3)(a) No suit may be filed for a period of 75 days 27 after notice is mailed to any prospective defendant. During 28 the 75-day period, the prospective defendants or their 29 insurers shall conduct an evaluation of the claim to determine 30 the liability of each defendant and to evaluate the damages of 31 the claimants. Each defendant or insurer of the defendant 8 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 shall have a procedure for the prompt evaluation of claims 2 during the 75-day period. The procedure shall include one or 3 more of the following: 4 1. Internal review by a duly qualified facility risk 5 manager or claims adjuster; 6 2. Internal review by counsel for each prospective 7 defendant; 8 3. A quality assurance committee authorized under any 9 applicable state or federal statutes or regulations; 10 4. Any other similar procedure that fairly and 11 promptly evaluates the claims. 12 13 Each defendant or insurer of the defendant shall evaluate the 14 claim in good faith. 15 (b) At or before the end of the 75 days, the defendant 16 or insurer of the defendant shall provide the claimant with a 17 written response: 18 1. Rejecting the claim; or 19 2. Making a settlement offer. 20 (c) The response shall be delivered to the claimant if 21 not represented by counsel or to the claimant's attorney, by 22 certified mail, return receipt requested. Failure of the 23 prospective defendant or insurer of the defendant to reply to 24 the notice within 75 days after receipt shall be deemed a 25 rejection of the claim for purposes of this section. 26 (4) The notification of a claim for long-term care 27 facility negligence shall be served within the applicable 28 statute of limitations period; however, during the 75-day 29 period, the statute of limitations is tolled as to all 30 prospective defendants. Upon stipulation by the parties, the 31 75-day period may be extended and the statute of limitations 9 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 is tolled during any such extension. Upon receiving written 2 notice by certified mail, return receipt requested, of 3 termination of negotiations in an extended period, the 4 claimant shall have 60 days or the remainder of the period of 5 the statute of limitations, whichever is greater, within which 6 to file suit. 7 (5) No statement, discussion, written document, 8 report, or other work product generated by presuit claims 9 evaluation procedures under this section is discoverable or 10 admissible in any civil action for any purpose by the opposing 11 party. All participants, including, but not limited to, 12 physicians, investigators, witnesses, and employees or 13 associates of the defendant, are immune from civil liability 14 arising from participation in the presuit claims evaluation 15 procedure. Any licensed physician or registered nurse may be 16 retained by either party to provide an opinion regarding the 17 reasonable basis of the claim. The presuit opinions of the 18 expert are not discoverable or admissible in any civil action 19 for any purpose by the opposing party. 20 (6) Upon receipt by a prospective defendant of a 21 notice of claim, the parties shall make discoverable 22 information available without formal discovery as provided in 23 subsection (7). 24 (7) Informal discovery may be used by a party to 25 obtain unsworn statements and the production of documents or 26 things as follows: 27 (a) Unsworn statements.--Any party may require other 28 parties to appear for the taking of an unsworn statement. 29 Such statements may be used only for the purpose of claims 30 evaluation and are not discoverable or admissible in any civil 31 action for any purpose by any party. A party seeking to take 10 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 the unsworn statement of any party must give reasonable notice 2 in writing to all parties. The notice must state the time and 3 place for taking the statement and the name and address of the 4 party to be examined. Unless otherwise impractical, the 5 examination of any party must be done at the same time by all 6 other parties. Any party may be represented by counsel at the 7 taking of an unsworn statement. An unsworn statement may be 8 recorded electronically, stenographically, or on videotape. 9 The taking of unsworn statements is subject to the provisions 10 of the Florida Rules of Civil Procedure and may be terminated 11 for abuses. 12 (b) Documents or things.--Any party may request 13 discovery of relevant documents or things. The documents or 14 things must be produced, at the expense of the requesting 15 party, within 20 days after the date of receipt of the 16 request. A party is required to produce relevant and 17 discoverable documents or things within that party's 18 possession or control, if in good faith it can reasonably be 19 done within the timeframe of the claims evaluation process. 20 (8) Each request for and notice concerning informal 21 discovery pursuant to this section must be in writing, and a 22 copy thereof must be sent to all parties. Such a request or 23 notice must bear a certificate of service identifying the name 24 and address of the person to whom the request or notice is 25 served, the date of the request or notice, and the manner of 26 service thereof. 27 (9) If a prospective defendant makes a written 28 settlement offer, the claimant shall have 15 days from the 29 date of receipt to accept the offer. An offer shall be deemed 30 rejected unless accepted by delivery of a written notice of 31 acceptance. 11 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 (10) To the extent not inconsistent with this part, 2 the provisions of the Florida Mediation Code, Florida Rules of 3 Civil Procedure, shall be applicable to such proceedings. 4 (11) Within 30 days after the claimant's receipt of 5 the defendant's response to the claim, the parties or their 6 designated representatives shall meet in mediation to discuss 7 the issues of liability and damages in accordance with the 8 mediation rules of practice and procedures adopted by the 9 Supreme Court. Upon stipulation of the parties, this 30-day 10 period may be extended and the statute of limitations is 11 tolled during the mediation and any such extension. At the 12 conclusion of mediation the claimant shall have 60 days or the 13 remainder of the period of the statute of limitations, 14 whichever is greater, within which to file suit. 15 Section 6. Effective July 1, 2001, and applying to 16 causes of action accruing on or after that date, section 17 400.0234, Florida Statutes, is created to read: 18 400.0234 Availability of facility records for 19 investigation of resident's rights violations and defenses; 20 penalty.-- 21 (1) Failure to provide complete copies of a resident's 22 records including, but not limited to, all medical records and 23 the resident's chart, within the control or possession of the 24 facility in accordance with s. 400.145 shall constitute 25 evidence of failure of that party to comply with good-faith 26 discovery requirements and shall waive the good-faith 27 certificate and presuit notice requirements under this part by 28 the requesting party. 29 (2) No facility shall be held liable for any civil 30 damages as a result of complying with this section. 31 Section 7. Effective July 1, 2001, and applying to 12 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 causes of action accruing on or after that date, section 2 400.0235, Florida Statutes, is created to read: 3 400.0235 Certain provisions not applicable to claims 4 for long-term care facility negligence.--A claim for long-term 5 care facility negligence is not a claim for medical 6 malpractice, and the provisions of s. 768.21(8) do not apply 7 to a claim alleging death of the resident. 8 Section 8. Effective July 1, 2001, section 400.0236, 9 Florida Statutes, is created to read: 10 400.0236 Statute of limitations.-- 11 (1) Any claim for long-term care facility negligence 12 shall be commenced within 2 years from the time the incident 13 giving rise to the action occurred or within 2 years from the 14 time the incident is discovered or should have been discovered 15 with the exercise of due diligence; however, in no event shall 16 the action be commenced later than 4 years from the date of 17 the incident or occurrence out of which the cause of action 18 accrued. 19 (2) In those actions covered by this subsection in 20 which it can be shown that fraudulent concealment or 21 intentional misrepresentation of fact prevented the discovery 22 of the injury, the period of limitations is extended forward 2 23 years from the time that the injury is discovered with the 24 exercise of due diligence, but in no event for more than 6 25 years from the date the incident giving rise to the injury 26 occurred. 27 (3) This section shall apply to causes of action that 28 have accrued prior to the effective date of this section; 29 however, any such cause of action that would not have been 30 barred under prior law may be brought within the time allowed 31 by prior law or within 2 years after the effective date of 13 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 this section, whichever is earlier, and will be barred 2 thereafter. In actions where it can be shown that fraudulent 3 concealment or intentional misrepresentation of fact prevented 4 the discovery of the injury, the period of limitations is 5 extended forward 2 years from the time that the injury is 6 discovered with the exercise of due diligence but in no event 7 more than 4 years from the effective date of this section. 8 Section 9. Section 400.0237, Florida Statutes, is 9 created to read: 10 400.0237 Punitive damages; pleading; burden of 11 proof.-- 12 (1) In any claim for long-term care facility 13 negligence, no claim for punitive damages shall be permitted 14 unless there is a reasonable showing by evidence in the record 15 or proffered by the claimant which would provide a reasonable 16 basis for recovery of such damages. The claimant may move to 17 amend her or his complaint to assert a claim for punitive 18 damages as allowed by the rules of civil procedure. The rules 19 of civil procedure shall be liberally construed so as to allow 20 the claimant discovery of evidence which appears reasonably 21 calculated to lead to admissible evidence on the issue of 22 punitive damages. No discovery of financial worth shall 23 proceed until after the pleading concerning punitive damages 24 is permitted. 25 (2) A defendant may be held liable for punitive 26 damages only if the trier of fact, based on clear and 27 convincing evidence, finds that the defendant was personally 28 guilty of intentional misconduct or gross negligence. As used 29 in this section, the term: 30 (a) "Intentional misconduct" means that the defendant 31 had actual knowledge of the wrongfulness of the conduct and 14 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 the high probability that injury or damage to the claimant 2 would result and, despite that knowledge, intentionally 3 pursued that course of conduct, resulting in injury or damage. 4 (b) "Gross negligence" means that the defendant's 5 conduct was so reckless or wanting in care that it constituted 6 a conscious disregard or indifference to the life, safety, or 7 rights of persons exposed to such conduct. 8 (3) In the case of an employer, principal, 9 corporation, or other legal entity, punitive damages may be 10 imposed for the conduct of an employee or agent only if the 11 conduct of the employee or agent meets the criteria specified 12 in subsection (2) and: 13 (a) The employer, principal, corporation, or other 14 legal entity actively and knowingly participated in such 15 conduct; 16 (b) The officers, directors, or managers of the 17 employer, principal, corporation, or other legal entity 18 knowingly condoned, ratified, or consented to such conduct; or 19 (c) The employer, principal, corporation, or other 20 legal entity engaged in conduct that constituted gross 21 negligence and that contributed to the loss, damages, or 22 injury suffered by the claimant. 23 (4) The plaintiff must establish at trial, by clear 24 and convincing evidence, its entitlement to an award of 25 punitive damages. The "greater weight of the evidence" burden 26 of proof applies to a determination of the amount of damages. 27 (5) This section is remedial in nature and shall take 28 effect upon becoming a law. 29 Section 10. Section 400.0238, Florida Statutes, is 30 created to read: 31 400.0238 Punitive damages; limitation.-- 15 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 (1)(a) Except as provided in paragraph (b), an award 2 of punitive damages may not exceed the greater of: 3 1. Three times the amount of compensatory damages 4 awarded to each claimant entitled thereto, consistent with the 5 remaining provisions of this section; or 6 2. The sum of $1 million. 7 (b) Where the fact finder determines beyond a 8 reasonable doubt that at the time of injury the wrongful 9 conduct proven under this section was motivated primarily by 10 unreasonable financial gain and determines that the 11 unreasonably dangerous nature of the conduct, together with 12 the high likelihood of injury resulting from the conduct, was 13 actually known by the managing agent, director, officer, or 14 other person responsible for making policy decisions on behalf 15 of the defendant, or at the time of injury the defendant had a 16 specific intent to harm the claimant and the finder of fact 17 determines by clear and convincing evidence that the 18 defendant's conduct did in fact harm the claimant, there shall 19 be no cap on punitive damages. 20 (c) This subsection is not intended to prohibit an 21 appropriate court from exercising its jurisdiction under s. 22 768.74 in determining the reasonableness of an award of 23 punitive damages that is less than three times the amount of 24 compensatory damages. 25 (2) The claimant's attorney's fees, if payable from 26 the judgment, are, to the extent that the fees are based on 27 the punitive damages, calculated based on the final judgment 28 for punitive damages. This subsection does not limit the 29 payment of attorney's fees based upon an award of damages 30 other than punitive damages. 31 (3) The jury may neither be instructed nor informed as 16 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 to the provisions of this section. 2 (4) This section is remedial in nature and shall take 3 effect upon becoming a law. 4 Section 11. Subsection (1) and paragraph (a) of 5 subsection (2) of section 768.735, Florida Statutes, are 6 amended and subsection (3) is added to that section to read: 7 768.735 Punitive damages; exceptions; limitation.-- 8 (1) Sections 768.72(2)-(4), 768.725, and 768.73 do not 9 apply to any civil action based upon child abuse, abuse of the 10 elderly under chapter 415, or abuse of the developmentally 11 disabled or any civil action arising under chapter 400. Such 12 actions are governed by applicable statutes and controlling 13 judicial precedent. This section does not apply to claims for 14 long-term care facility negligence. 15 (2)(a) In any civil action based upon child abuse, 16 abuse of the elderly under chapter 415, or abuse of the 17 developmentally disabled, or actions arising under chapter 400 18 and involving the award of punitive damages, the judgment for 19 the total amount of punitive damages awarded to a claimant may 20 not exceed three times the amount of compensatory damages 21 awarded to each person entitled thereto by the trier of fact, 22 except as provided in paragraph (b). This subsection does not 23 apply to any class action. 24 (3) This section is remedial in nature and shall take 25 effect upon becoming a law. 26 Section 12. Section 415.1111, Florida Statutes, is 27 amended to read: 28 415.1111 Civil actions.--A vulnerable adult who has 29 been abused, neglected, or exploited as specified in this 30 chapter has a cause of action against any perpetrator and may 31 recover actual and punitive damages for such abuse, neglect, 17 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 or exploitation. The action may be brought by the vulnerable 2 adult, or that person's guardian, by a person or organization 3 acting on behalf of the vulnerable adult with the consent of 4 that person or that person's guardian, or by the personal 5 representative of the estate of a deceased victim without 6 regard to whether the cause of death resulted from the abuse, 7 neglect, or exploitation. The action may be brought in any 8 court of competent jurisdiction to enforce such action and to 9 recover actual and punitive damages for any deprivation of or 10 infringement on the rights of a vulnerable adult. A party who 11 prevails in any such action may be entitled to recover 12 reasonable attorney's fees, costs of the action, and damages. 13 The remedies provided in this section are in addition to and 14 cumulative with other legal and administrative remedies 15 available to a vulnerable adult. Notwithstanding the 16 foregoing, any civil action for damages against any licensee 17 or entity who establishes, controls, conducts, manages, or 18 operates a facility licensed under part II of chapter 400 19 relating to its operation of the licensed facility shall be 20 brought as a claim for long-term care facility negligence, or 21 against any licensee or entity who establishes, controls, 22 conducts, manages, or operates a facility licensed under part 23 III of chapter 400 relating to its operation of the licensed 24 facility shall be brought as a claim for long-term care 25 facility negligence. Such licensee or entity shall not be 26 vicariously liable for the acts or omissions of its employees 27 or agents or any other third party in an action brought under 28 this section. 29 30 31 18 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 ================ T I T L E A M E N D M E N T =============== 2 And the title is amended as follows: 3 On page 1, line 16 through page 3, line 11 4 remove from the title of the bill: all of said lines 5 6 and insert in lieu thereof: 7 providing penalties; amending s. 400.023, F.S.; 8 providing for election of survival damages, 9 wrongful death damages, or recovery for 10 negligence; providing for attorney's fees for 11 injunctive relief or administrative remedy; 12 providing that ch. 766, F.S., does not apply to 13 actions under this section; providing burden of 14 proof; providing that a violation of a right is 15 not negligence per se; prescribing the duty of 16 care; prescribing a nurse's duty of care; 17 eliminating presuit provisions; eliminating the 18 requirement for presuit mediation; requiring a 19 copy of complaint to be served on Agency; 20 creating s. 400.0233, F.S; providing for 21 presuit notice; prohibiting the filing of suit 22 for a specified time; requiring a response to 23 the notice; tolling the statute of limitations; 24 limiting discovery of presuit investigation 25 documents; limiting liability of presuit 26 investigation participants; authorizing the 27 obtaining of opinions from a nurse or doctor; 28 authorizing the obtaining of unsworn 29 statements; authorizing discovery of relevant 30 documents; prescribing the time for acceptance 31 of settlement offers; requiring mediation; 19 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 prescribing the time to file suit; creating s. 2 400.0234, F.S.; requiring the availability of 3 facility records for presuit investigation; 4 specifying the records to be made available; 5 specifying what constitutes evidence of failure 6 to make records available in good faith; 7 specifying the consequences of such failure; 8 creating s. 400.0235, F.S.; providing that the 9 provisions of s. 768.21(8), F.S., do not apply 10 to actions under part II of ch. 400, F.S.; 11 creating s. 400.0236, F.S.; providing a statute 12 of limitations; providing a statute of 13 limitations when there is fraudulent 14 concealment or intentional misrepresentation of 15 fact; providing for application of the statute 16 of limitation to accrued actions; creating s. 17 400.0237, F.S.; requiring evidence of the basis 18 for punitive damages; prohibiting discovery 19 relating to financial worth; providing for 20 proof of punitive damages; defining the terms 21 "intentional misconduct" and "gross 22 negligence"; prescribing criteria governing 23 employers' liability for punitive damages; 24 providing for the remedial nature of 25 provisions; creating s. 400.0238, F.S.; 26 prescribing limits on the amount of punitive 27 damages; providing for the calculation of 28 attorney's fees; amending s. 768.735, F.S.; 29 providing that the section is inapplicable to 30 actions brought under ch. 400, F.S.; amending 31 s. 415.1111, F.S.; limiting actions against 20 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. 01b (for drafter's use only) 1 nursing homes and assisted living facilities; 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 21 File original & 9 copies 04/23/01 hgr0003 08:23 am 01879-ric -132133