Amendment
Bill No. CS/CS/HB 119

Amendment No. 397883

CHAMBER ACTION
Senate		House
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1	Representative Gaetz offered the following:
2
3	Amendment (with title amendment)
4	Between lines 4170 and 4171, insert:
5	Section 104.  Section 400.023, Florida Statutes, is amended
6	to read:
7	400.023  Civil enforcement.-
8	(1)  Any resident who alleges negligence or a violation of
9	whose rights as specified in this part has are violated shall
10	have a cause of action against the licensee or its management
11	company, as specifically identified in the application for
12	nursing home licensure, and its direct caregiver employees.
13	Sections 400.023-400.0238 provide the exclusive remedy against a
14	licensee or management company for a cause of action for
15	recovery of damages for the personal injury or death of a
16	nursing home resident arising out of negligence or a violation
17	of residents' rights specified in s. 400.022.
18	(2)  A cause of action may not be asserted individually
19	against an officer, director, owner, including any designated as
20	having a "controlling interest" on the application for nursing
21	home licensure, or agent of a licensee or management company
22	under this part unless, following an evidentiary hearing, the
23	court determines there is sufficient evidence in the record or
24	proffered by the claimant that establishes a reasonable basis
25	for a finding that:
26	(a)  The officer, director, owner, or agent breached,
27	failed to perform, or acted outside the scope of duties as an
28	officer, director, owner, or agent; and
29	(b)  The breach, failure to perform, or conduct outside the
30	scope of duties is a legal cause of actual loss, injury, death,
31	or damage to the resident.
32	(3)  In any claim for wrongful death brought under this
33	section, noneconomic damages may not exceed $300,000 per
34	resident, regardless of the number of claimants or defendants.
35	The action may be brought by the resident or his or her
36	guardian, by a person or organization acting on behalf of a
37	resident with the consent of the resident or his or her
38	guardian, or by the personal representative of the estate of a
39	deceased resident regardless of the cause of death. If the
40	action alleges a claim for the resident's rights or for
41	negligence that caused the death of the resident, the claimant
42	shall be required to elect either survival damages pursuant to
43	s. 46.021 or wrongful death damages pursuant to s. 768.21.
44	(4)  If the action alleges a claim for the resident's
45	rights or for negligence that did not cause the death of the
46	resident, the personal representative of the estate may recover
47	damages for the negligence that caused injury to the resident.
48	The action may be brought in any court of competent jurisdiction
49	to enforce such rights and to recover actual and punitive
50	damages for any violation of the rights of a resident or for
51	negligence.
52	(5)  Any resident who prevails in seeking injunctive relief
53	or a claim for an administrative remedy may is entitled to
54	recover the costs of the action, and a reasonable attorney's fee
55	assessed against the defendant not to exceed $25,000. Fees shall
56	be awarded solely for the injunctive or administrative relief
57	and not for any claim or action for damages whether such claim
58	or action is brought together with a request for an injunction
59	or administrative relief or as a separate action, except as
60	provided under s. 768.79 or the Florida Rules of Civil
61	Procedure. Sections 400.023-400.0238 provide the exclusive
62	remedy for a cause of action for recovery of damages for the
63	personal injury or death of a nursing home resident arising out
64	of negligence or a violation of rights specified in s. 400.022.
65	This section does not preclude theories of recovery not arising
66	out of negligence or s. 400.022 which are available to a
67	resident or to the agency. The provisions of Chapter 766 does do
68	not apply to any cause of action brought under ss. 400.023-
69	400.0238.
70	(6)(2)  In any claim brought under pursuant to this part
71	alleging a violation of resident's rights or negligence causing
72	injury to or the death of a resident, the claimant has shall
73	have the burden of proving, by a preponderance of the evidence,
74	that:
75	(a)  The defendant breached the applicable standard of
76	care; and owed a duty to the resident;
77	(b)  The defendant breached the duty to the resident;
78	(b)(c)  The breach of the duty is a legal cause of actual
79	loss, injury, death, or damage to the resident; and
80	(d)  The resident sustained loss, injury, death, or damage
81	as a result of the breach.
82	(7)  Nothing in this part shall be interpreted to create
83	strict liability. A violation of the rights set forth in s.
84	400.022 or in any other standard or guidelines specified in this
85	part or in any applicable administrative standard or guidelines
86	of this state or a federal regulatory agency shall be evidence
87	of negligence but shall not be considered negligence per se.
88	(8)(3)  In any claim brought pursuant to this section, a
89	licensee, person, or entity shall have a duty to exercise
90	reasonable care. Reasonable care is that degree of care which a
91	reasonably careful licensee, person, or entity would use under
92	like circumstances.
93	(9)(4)  In any claim for resident's rights violation or
94	negligence by a nurse licensed under part I of chapter 464, such
95	nurse shall have the duty to exercise care consistent with the
96	prevailing professional standard of care for a nurse. The
97	prevailing professional standard of care for a nurse shall be
98	that level of care, skill, and treatment which, in light of all
99	relevant surrounding circumstances, is recognized as acceptable
100	and appropriate by reasonably prudent similar nurses.
101	(10)(5)  A licensee shall not be liable for the medical
102	negligence of any physician rendering care or treatment to the
103	resident except for the administrative services of a medical
104	director as required in this part. Nothing in this subsection
105	shall be construed to protect a licensee, person, or entity from
106	liability for failure to provide a resident with appropriate
107	observation, assessment, nursing diagnosis, planning,
108	intervention, and evaluation of care by nursing staff.
109	(11)(6)  The resident or the resident's legal
110	representative shall serve a copy of any complaint alleging in
111	whole or in part a violation of any rights specified in this
112	part to the Agency for Health Care Administration at the time of
113	filing the initial complaint with the clerk of the court for the
114	county in which the action is pursued. The requirement of
115	providing a copy of the complaint to the agency does not impair
116	the resident's legal rights or ability to seek relief for his or
117	her claim.
118	(12)(7)  An action under this part for a violation of
119	rights or negligence recognized herein is not a claim for
120	medical malpractice, and the provisions of s. 768.21(8) does do
121	not apply to a claim alleging death of the resident.
122	Section 105.  Subsections (1), (2), and (3) of section
123	400.0237, Florida Statutes, are amended to read:
124	400.0237  Punitive damages; pleading; burden of proof.-
125	(1)  In any action for damages brought under this part, a
126	no claim for punitive damages may not be brought shall be
127	permitted unless there is a reasonable showing of admissible by
128	evidence that has been in the record or proffered by the parties
129	and provides claimant which would provide a reasonable basis for
130	recovery of such damages when the criteria set forth in this
131	section are applied. The claimant may move to amend her or his
132	complaint to assert a claim for punitive damages as allowed by
133	the rules of civil procedure. The trial judge shall conduct an
134	evidentiary hearing and weigh the admissible evidence proffered
135	by all parties to ensure that there is a reasonable basis to
136	believe that the claimant, at trial, will be able to demonstrate
137	by clear and convincing evidence that the recovery of such
138	damages is warranted. The rules of civil procedure shall be
139	liberally construed so as to allow the claimant discovery of
140	evidence which appears reasonably calculated to lead to
141	admissible evidence on the issue of punitive damages. No A
142	discovery of financial worth may not shall proceed until after
143	the pleading on concerning punitive damages is approved
144	permitted.
145	(2)  A defendant, including the licensee or management
146	company against whom punitive damages is sought, may be held
147	liable for punitive damages only if the trier of fact, based on
148	clear and convincing evidence, finds that a specific individual
149	or corporate defendant actively and knowingly participated in
150	intentional misconduct or engaged in conduct that constituted
151	gross negligence and contributed to the loss, damages, or injury
152	suffered by the claimant the defendant was personally guilty of
153	intentional misconduct or gross negligence. As used in this
154	section, the term:
155	(a)  "Intentional misconduct" means that the defendant
156	against whom punitive damages are sought had actual knowledge of
157	the wrongfulness of the conduct and the high probability that
158	injury or damage to the claimant would result and, despite that
159	knowledge, intentionally pursued that course of conduct,
160	resulting in injury or damage.
161	(b)  "Gross negligence" means that the defendant's conduct
162	was so reckless or wanting in care that it constituted a
163	conscious disregard or indifference to the life, safety, or
164	rights of persons exposed to such conduct.
165	(3)  In the case of vicarious liability of an employer,
166	principal, corporation, or other legal entity, punitive damages
167	may not be imposed for the conduct of an employee or agent
168	unless only if the conduct of a specifically identified the
169	employee or agent meets the criteria specified in subsection (2)
170	and an officer, director, or manager of the actual employer,
171	corporation, or legal entity condoned, ratified, or consented to
172	the specific conduct as alleged in subsection (2).:
173	(a)  The employer, principal, corporation, or other legal
174	entity actively and knowingly participated in such conduct;
175	(b)  The officers, directors, or managers of the employer,
176	principal, corporation, or other legal entity condoned,
177	ratified, or consented to such conduct; or
178	(c)  The employer, principal, corporation, or other legal
179	entity engaged in conduct that constituted gross negligence and
180	that contributed to the loss, damages, or injury suffered by the
181	claimant.
182	Section 106.  If any provision of this act or its
183	application to any person or circumstance is held invalid, the
184	invalidity does not affect other provisions or applications of
185	this act which can be given effect without the invalid provision
186	or application, and to this end the provisions of this act are
187	severable.
188	Section 107.  This act shall take effect July 1, 2011, and
189	shall apply to all causes of action that accrue on or after that
190	date.
191
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193	T I T L E  A M E N D M E N T
194	Remove line 311 and insert:
195	are not intended to be reset by this act; amending s.
196	400.023, F.S.; specifying conditions under which a nursing
197	home resident has a cause of action against a licensee or
198	management company; requiring the trial judge to conduct
199	an evidentiary hearing before a claimant can assert a
200	claim against certain interested parties; providing a
201	limitation on recovery; amending s. 400.0237, F.S.;
202	requiring evidence of the basis for punitive damages;
203	requiring the trial judge to conduct an evidentiary
204	hearing before a claimant can assert a claim for punitive
205	damages; permitting a licensee or management company to be
206	held liable for punitive damages under certain
207	circumstances; providing criteria for awarding of punitive
208	damages in a case of vicarious liability of certain
209	entities; providing applicability; providing for
210	severability; providing an

CODING: Words stricken are deletions; words underlined are additions.