HOUSE AMENDMENT
Bill No. HB 1879
Amendment No. ___ (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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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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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
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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
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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.
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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
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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.
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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.
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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
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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;
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