Florida Senate - 2009 SB 988
By Senator Fasano
11-01037-09 2009988__
1 A bill to be entitled
2 An act relating to nursing homes; amending s. 400.023,
3 F.S.; providing that a civil cause of action for the
4 abuse, neglect, or exploitation of a vulnerable adult
5 under ch. 415, F.S, is precluded if an action for
6 violation of resident rights is brought under part II
7 of ch. 400, F.S.; providing an exception for a
8 perpetrator; amending s. 400.0237, F.S.; requiring a
9 showing of admissible evidence and an evidentiary
10 hearing before a claim for punitive damages can be
11 brought; amending s. 400.191, F.S.; prohibiting agency
12 inspection records from being used in a civil action
13 against a facility; prohibiting persons who
14 participate in a licensure inspection process from
15 testifying about that participation; amending s.
16 400.23, F.S.; prohibiting a facility from being held
17 liable for failure to provide adequate staffing if the
18 facility has demonstrated compliance with staffing
19 requirements to the agency; amending s. 415.102, F.S.;
20 defining the term “perpetrator”; providing an
21 effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Subsection (1) of section 400.023, Florida
26 Statutes, is amended to read:
27 400.023 Civil enforcement.—
28 (1) Any resident whose rights as specified in this part are
29 violated shall have a cause of action, which. The action may be
30 brought by the resident or the resident's his or her guardian,
31 by a person or organization acting on behalf of a resident with
32 the consent of the resident or his or her guardian, or by the
33 personal representative of the estate of a deceased resident,
34 regardless of the cause of death. If the action alleges a claim
35 for the resident's rights or for negligence that caused the
36 death of the resident, the claimant must shall be required to
37 elect either survival damages pursuant to s. 46.021 or wrongful
38 death damages pursuant to s. 768.21. If the action alleges a
39 claim for the resident's rights or for negligence that did not
40 cause the death of the resident, the personal representative of
41 the estate may recover damages for the negligence that caused
42 injury to the resident. The action may be brought in any court
43 of competent jurisdiction to enforce such rights and to recover
44 actual and punitive damages for any violation of the rights of a
45 resident or for negligence. A Any resident who prevails in
46 seeking injunctive relief or a claim for an administrative
47 remedy is entitled to recover the costs of the action, and a
48 reasonable attorney's fee assessed against the defendant, not to
49 exceed $25,000. Fees shall be awarded solely for the injunctive
50 or administrative relief and not for any claim or action for
51 damages whether such claim or action is brought together with a
52 request for an injunction or administrative relief or as a
53 separate action, except as provided under s. 768.79 or the
54 Florida Rules of Civil Procedure. Sections 400.023-400.0238
55 provide the exclusive remedy for a cause of action for recovery
56 of damages for the personal injury or death of a nursing home
57 resident arising out of negligence or a violation of rights
58 specified in s. 400.022 and preclude a cause of action under s.
59 415.1111 as an alternative theory of recovery unless the person
60 is a perpetrator as defined in s. 415.102. This section does not
61 preclude theories of recovery not arising out of negligence or
62 s. 400.022 which are available to a resident or to the agency.
63 The provisions of chapter 766 do not apply to any cause of
64 action brought under ss. 400.023-400.0238.
65 Section 2. Subsections (1) and (4) of section 400.0237,
66 Florida Statutes, are amended to read:
67 400.0237 Punitive damages; pleading; burden of proof.—
68 (1) In any action for damages brought under this part, a no
69 claim for punitive damages may not be brought shall be permitted
70 unless there is a reasonable showing of admissible by evidence,
71 which has been in the record or proffered by the parties, to
72 claimant which would provide a reasonable basis for recovery of
73 such damages when applying the criteria set forth in this
74 section. The claimant may move to amend her or his complaint to
75 assert a claim for punitive damages pursuant to as allowed by
76 the rules of civil procedure. The rules of civil procedure shall
77 be liberally construed so as to allow the claimant discovery of
78 evidence which appears reasonably calculated to lead to
79 admissible evidence on the issue of punitive damages. The trial
80 judge shall conduct an evidentiary hearing and weigh the
81 admissible evidence proffered by all parties to ensure that
82 there is a reasonable basis for the recovery of punitive
83 damages. No Discovery of financial worth may not shall proceed
84 until after the pleading on concerning punitive damages is
85 approved permitted.
86 (4) The plaintiff must demonstrate to the trial judge by
87 clear and convincing evidence an entitlement to assert a claim
88 for punitive damages, and establish at trial, by clear and
89 convincing evidence, an its entitlement to an award of punitive
90 damages. The “greater weight of the evidence” burden of proof
91 applies to a determination of the amount of damages.
92 Section 3. Present subsection (6) of section 400.191,
93 Florida Statutes, is renumbered as subsection (7), and a new
94 subsection (6) is added to that section, to read:
95 400.191 Availability, distribution, and posting of reports
96 and records.—
97 (6) Records generated pursuant to the agency's licensure
98 inspection process are not subject to introduction in any civil
99 proceeding against a facility. In addition, a person who
100 participates in the licensure inspection process may not testify
101 in any civil proceeding as to any findings, recommendations,
102 evaluations, opinions, or other actions pursuant to the
103 licensure inspection process. A person who provides information
104 to a licensure inspector may testify as to matters within his or
105 her knowledge but may not be asked about his or her
106 participation in the licensure inspection process. This section
107 may not be construed to mean that information, documents, or
108 records otherwise available and obtained from original sources
109 are immune from use in a civil action merely because they were
110 presented during the licensure inspection process.
111 Section 4. Subsection (11) is added to section 400.23,
112 Florida Statutes, to read:
113 400.23 Rules; evaluation and deficiencies; licensure
114 status.—
115 (11) In any administrative, civil, or criminal action
116 brought under this chapter, a facility that demonstrates,
117 through its filings with the agency, compliance with the minimum
118 staffing requirements set forth in this section and rules
119 adopted pursuant to this section, may not be held liable for
120 failure to provide adequate staffing.
121 Section 5. Present subsections (17) through (27) of section
122 415.102, Florida Statutes, are renumbered as subsections (18)
123 through (28), respectively, and a new subsection (17) is added
124 to that section, to read:
125 415.102 Definitions of terms used in ss. 415.101-415.113.
126 As used in ss. 415.101-415.113, the term:
127 (17) “Perpetrator” means a person who has been found guilty
128 of abuse, neglect, or exploitation of a vulnerable adult in an
129 administrative or criminal proceeding.
130 Section 6. This act shall take effect July 1, 2009.