HOUSE AMENDMENT
                                                  Bill No. HB 1879
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Council for Healthy Communities offered the following:
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13         Substitute Amendment for Amendment (724613) (with title
14  amendment) 
15         On page 83, line 27 through page 97, line 3
16  remove from the bill:  all said lines
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18  and insert in lieu thereof:  
19         Section 31.  Effective July 1, 2001, and applicable to
20  causes of action accruing on or after that date, section
21  400.429, Florida Statutes, is amended to read:
22         400.429  Civil actions to enforce rights.--
23         (1)  Any person or resident whose rights as specified
24  in this part are violated shall have the right to pursue an
25  administrative remedy or injunctive relief a cause of action
26  against any facility owner, administrator, or staff
27  responsible for the violation.  The action may be brought by
28  the resident or his or her guardian, or by a person or
29  organization acting on behalf of a resident with the consent
30  of the resident or his or her guardian, or by the personal
31  representative of the estate of a deceased resident when the
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    File original & 9 copies    04/23/01                          
    hhr0003                     09:45 pm         01879-hcc -650653

HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 cause of death resulted from a violation of the decedent's 2 rights, to enforce such rights. The action may be brought in 3 any court of competent jurisdiction to enforce such rights and 4 to recover actual damages, and punitive damages when 5 malicious, wanton, or willful disregard of the rights of 6 others can be shown. Any plaintiff who prevails in any such 7 action may be entitled to recover reasonable attorney's fees 8 and , costs of the action, and damages, unless the court finds 9 that the plaintiff has acted in bad faith, with malicious 10 purpose, and that there was a complete absence of a 11 justiciable issue of either law or fact. A prevailing 12 defendant may be entitled to recover reasonable attorney's 13 fees pursuant to s. 57.105. The remedies provided in this 14 section are in addition to and cumulative with other legal and 15 administrative remedies available to a resident or to the 16 agency. 17 (2) Notwithstanding the remedies provided in (1), a 18 resident, his or her guardian, or the personal representative 19 of the estate of a deceased resident shall have a cause of 20 action for recovery of damages for personal injury or death 21 against a licensee which may be brought based upon negligence, 22 breach of contract or any other applicable statute not 23 included in chapter 400. Such a claim shall be governed by the 24 following: 25 (a) In any claim for negligence, the claimant has the 26 burden of proving by a preponderance of the evidence that: 27 1. Each defendant had an established duty to the 28 resident; 29 2. Each defendant breached that duty; 30 3. The breach of that duty is the proximate cause of 31 the personal injury to, or the death of, the resident; and 2 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 4. The proximate cause of the personal injury or death 2 resulted in damages. 3 (b) For purposes of (a), a licensee breaches its 4 established duty to the resident when it fails to provide a 5 standard of care that a reasonably prudent licensed assisted 6 living facility would have provided to the resident under 7 similar circumstances. 8 (c) Sections 768.16-768.26 apply to a claim in which 9 the resident has died as a result of the facility's breach of 10 an established duty to the resident. In addition to any other 11 damages, the personal representative may recover on behalf of 12 the estate pursuant to ss. 768.16-768.26. The personal 13 representative may also recover on behalf of the estate 14 noneconomic damages for the resident's pain and suffering from 15 the time of injury until the time of death. 16 (d) An action for damages must be commenced within 2 17 years after the date on which the incident giving rise to the 18 action occurred or within 2 years after the date on which the 19 incident is discovered, or should have been discovered with 20 the exercise of due diligence. However, the action may not be 21 commenced later than 4 years after the date of the incident or 22 occurrence out of which the cause of action accrued. In any 23 action covered by this subsection in which it is shown that 24 fraud, concealment, or intentional misrepresentation of fact 25 prevented the discovery of the injury, the period of 26 limitation is extended forward 2 years from the time that the 27 injury is discovered, or should have been discovered with the 28 exercise of due diligence, but such period may not in any 29 event exceed 7 years after the date that the incident giving 30 rise to the injury occurred. 31 (3) In any civil action brought against any facility 3 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 owner, adminsitrator, or staff in which punitive damages are 2 sought, the following provisions shall apply: (2) To recover 3 attorney's fees under this section, the following conditions 4 precedent must be met: 5 (a) Within 120 days after the filing of a responsive 6 pleading or defensive motion to a complaint brought under this 7 section and before trial, the parties or their designated 8 representatives shall meet in mediation to discuss the issues 9 of liability and damages in accordance with this paragraph for 10 the purpose of an early resolution of the matter. 11 1. Within 60 days after the filing of the responsive 12 pleading or defensive motion, the parties shall: 13 a. Agree on a mediator. If the parties cannot agree on 14 a mediator, the defendant shall immediately notify the court, 15 which shall appoint a mediator within 10 days after such 16 notice. 17 b. Set a date for mediation. 18 c. Prepare an order for the court that identifies the 19 mediator, the scheduled date of the mediation, and other terms 20 of the mediation. Absent any disagreement between the parties, 21 the court may issue the order for the mediation submitted by 22 the parties without a hearing. 23 2. The mediation must be concluded within 120 days 24 after the filing of a responsive pleading or defensive motion. 25 The date may be extended only by agreement of all parties 26 subject to mediation under this subsection. 27 3. The mediation shall be conducted in the following 28 manner: 29 a. Each party shall ensure that all persons necessary 30 for complete settlement authority are present at the 31 mediation. 4 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 b. Each party shall mediate in good faith. 2 4. All aspects of the mediation which are not 3 specifically established by this subsection must be conducted 4 according to the rules of practice and procedure adopted by 5 the Supreme Court of this state. 6 (b) If the parties do not settle the case pursuant to 7 mediation, the last offer of the defendant made at mediation 8 shall be recorded by the mediator in a written report that 9 states the amount of the offer, the date the offer was made in 10 writing, and the date the offer was rejected. If the matter 11 subsequently proceeds to trial under this section and the 12 plaintiff prevails but is awarded an amount in damages, 13 exclusive of attorney's fees, which is equal to or less than 14 the last offer made by the defendant at mediation, the 15 plaintiff is not entitled to recover any attorney's fees. 16 (c) This subsection applies only to claims for 17 liability and damages and does not apply to actions for 18 injunctive relief. 19 (d) This subsection applies to all causes of action 20 that accrue on or after October 1, 1999. 21 (a) (3) Discovery of financial information for the 22 purpose of determining the value of punitive damages may not 23 be had unless the plaintiff shows the court by proffer or 24 evidence in the record that a reasonable basis exists to 25 support a claim for punitive damages. 26 (b) (4) In addition to any other standards for 27 punitive damages, any award of punitive damages must be 28 reasonable in light of the actual harm suffered by the 29 resident and the egregiousness of the conduct that caused the 30 actual harm to the resident. 31 (c) The plaintiff may recover punitive damages when 5 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 malicious, wanton, reckless or willful disregard of the rights 2 of others can be shown. 3 (d) Notwithstanding any other law to the contrary, 4 punitive damages may not exceed three times the amount of 5 compensatory damages awarded to each person entitled thereto 6 by the trier of fact and the amount shall be equally divided 7 between the claimant and the Quality of Long-Term Care 8 Facility Improvement Trust Fund, in accordance with the 9 following provisions: 10 1. The clerk of the court shall transmit a copy of the 11 jury verdict to the State Treasurer by certified mail. In the 12 final judgment the court shall order the percentages of the 13 award, payable as provided herein. 14 2. A settlement agreement entered into between the 15 original parties to the action after a verdict has been 16 returned must provide a proportionate share payable to the 17 Quality of Long-Term Care Facility Improvement Trust Fund 18 specified herein. For purposes of this paragraph, a 19 proportionate share is a 50-percent share of that percentage 20 of the settlement amount which the punitive damages portion of 21 the verdict bore to the total of the compensatory and punitive 22 damages in the verdict. 23 3. The Department of Banking and Finance shall collect 24 or cause to be collected all payments due the state under this 25 section. Such payments are made to the Comptroller and 26 deposited in the appropriate fund specified in this 27 subsection. 28 4. If the full amount of punitive damages awarded 29 cannot be collected, the claimant and the other recipient 30 designated pursuant to this subsection are each entitled to a 31 proportionate share of the punitive damages collected. 6 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (for drafter's use only) 1 5. Claimant's attorney's fees, if payable from the 2 judgment, are, to the extent that they are based on the 3 punitive damages, calculated based only on the portion of the 4 judgment payable to the claimant as provided in this 5 subsection. Nothing herein limits the payment of attorney's 6 fees based upon the award of damages other than punitive 7 damages. 8 (e) The limitations contained in (d) may be exceeded 9 if the claimant demonstrates to the court by clear and 10 convincing evidence that the conduct found by the trier of 11 fact for which punitive damages were awarded amounted to 12 intentional misconduct as defined in s. 768.72(2)(a). Any 13 amount above the limitations in (d) allowed by the court shall 14 be divided as directed therein. 15 Section 32. Subsection (3) of section 400.4275, 16 Florida Statutes, is amended to read: 17 400.4275 Business practice; personnel records; 18 liability insurance.--The assisted living facility shall be 19 administered on a sound financial basis that is consistent 20 with good business practices. 21 (3) The administrator or owner of a facility shall 22 maintain liability insurance coverage that is in force at all 23 times. If for any reason the facility is unable to comply with 24 this requirement, it shall immediately notify the agency. The 25 agency may, upon the showing of good cause and subject to an 26 agency approved corrective action plan, grant a temporary 27 waiver from the requirement for liability insurance not to 28 exceed twelve months. 29 30 31 7 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653
HOUSE AMENDMENT Bill No. HB 1879 Amendment No. ___ (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, lines 16-18 4 remove from the title of the bill: all said lines 5 6 and insert in lieu thereof: 7 providing penalties; amending s. 400.023, F.S.; 8 providing for civil actions to enforce nursing 9 home rights; 10 and on page 2, line 8, remove "and 400.430" 11 and on page 5, line 28 after the semicolon insert: 12 amending s. 400.429, F.S., providing procedures for civil 13 causes of action and seeking punitive damages; amending s. 14 400.4275, F.S.; providing for temporary waiver from insurance 15 requirements; 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 8 File original & 9 copies 04/23/01 hhr0003 09:45 pm 01879-hcc -650653