Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. CS for SB 670
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/19/2014           .                                

    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 400.023, Florida Statutes, is amended to
    6  read:
    7         400.023 Civil enforcement.—
    8         (1) An exclusive cause of action for negligence or a
    9  violation of residents’ Any resident whose rights as specified
   10  under in this part which alleges direct or vicarious liability
   11  for the personal injury or death of a nursing home resident
   12  arising from such negligence or violation of rights and which
   13  seeks damages for such injury or death may be brought only
   14  against the licensee, the licensee’s management or consulting
   15  company, the licensee’s managing employees, and any direct
   16  caregivers, whether employees or contractors are violated shall
   17  have a cause of action. A passive investor is not liable under
   18  this section. An action against any other individual or entity
   19  may be brought only pursuant to subsection (3).
   20         (a) The action may be brought by the resident or his or her
   21  guardian, by a person or organization acting on behalf of a
   22  resident with the consent of the resident or his or her
   23  guardian, or by the personal representative of the estate of a
   24  deceased resident regardless of the cause of death.
   25         (b) If the action alleges a claim for the resident’s rights
   26  or for negligence that caused the death of the resident, the
   27  claimant shall, after the verdict, but before the judgment is
   28  entered, be required to elect either survival damages pursuant
   29  to s. 46.021 or wrongful death damages pursuant to s. 768.21. If
   30  the action alleges a claim for the resident’s rights or for
   31  negligence that did not cause the death of the resident, the
   32  personal representative of the estate may recover damages for
   33  the negligence that caused injury to the resident.
   34         (c) The action may be brought in any court of competent
   35  jurisdiction to enforce such rights and to recover actual and
   36  punitive damages for the any violation of the rights of a
   37  resident or for negligence.
   38         (d)A Any resident who prevails in seeking injunctive
   39  relief or a claim for an administrative remedy is entitled to
   40  recover the costs of the action, and a reasonable attorney fees
   41  attorney’s fee assessed against the defendant of up to not to
   42  exceed $25,000. Fees shall be awarded solely for the injunctive
   43  or administrative relief and not for any claim or action for
   44  damages whether such claim or action is brought together with a
   45  request for an injunction or administrative relief or as a
   46  separate action, except as provided under s. 768.79 or the
   47  Florida Rules of Civil Procedure. Sections 400.023-400.0238
   48  provide the exclusive remedy for a cause of action for recovery
   49  of damages for the personal injury or death of a nursing home
   50  resident arising out of negligence or a violation of rights
   51  specified in s. 400.022.
   52         (e) This section does not preclude theories of recovery not
   53  arising out of negligence or s. 400.022 which are available to a
   54  resident or to the agency. The provisions of Chapter 766 does do
   55  not apply to a any cause of action brought under ss. 400.023
   56  400.0238.
   57         (2) As used in this section, the term:
   58         (a) “Licensee” means an individual, corporation,
   59  partnership, firm, association, governmental entity, or other
   60  entity that is issued a permit, registration, certificate, or
   61  license by the agency, and that is legally responsible for all
   62  aspects of the operation of the nursing home facility.
   63         (b) “Management or consulting company” means an individual
   64  or entity who contracts with, or receives a fee from, a licensee
   65  to provide any of the following services for a nursing home
   66  facility:
   67         1. Hiring or firing of the administrator or director of
   68  nursing;
   69         2. Controlling or having control over the staffing levels
   70  at the facility;
   71         3. Having control over the budget of the facility; or
   72         4. Implementing and enforcing the policies and procedures
   73  of the facility.
   74         (c) “Passive investor” means an individual or entity that
   75  has an interest in a facility but does not participate in the
   76  decisionmaking or operations of the facility.
   77         (3) A cause of action may not be asserted against an
   78  individual or entity other than the licensee, the licensee’s
   79  management or consulting company, the licensee’s managing
   80  employees, and any direct caregivers, whether employees or
   81  contractors, unless, after a motion for leave to amend hearing,
   82  the court or an arbitration panel determines that there is
   83  sufficient evidence in the record or proffered by the claimant
   84  to establish a reasonable showing that:
   85         (a) The individual or entity owed a duty of reasonable care
   86  to the resident and that the individual or entity breached that
   87  duty; and
   88         (b) The breach of that duty is a legal cause of loss,
   89  injury, death, or damage to the resident.
   91  For purposes of this subsection, if, in a proposed amended
   92  pleading, it is asserted that such cause of action arose out of
   93  the conduct, transaction, or occurrence set forth or attempted
   94  to be set forth in the original pleading, the proposed amendment
   95  relates back to the original pleading.
   96         (4)(2) In a any claim brought pursuant to this part
   97  alleging a violation of residents’ resident’s rights or
   98  negligence causing injury to or the death of a resident, the
   99  claimant has shall have the burden of proving, by a
  100  preponderance of the evidence, that:
  101         (a) The defendant owed a duty to the resident;
  102         (b) The defendant breached the duty to the resident;
  103         (c) The breach of the duty is a legal cause of loss,
  104  injury, death, or damage to the resident; and
  105         (d) The resident sustained loss, injury, death, or damage
  106  as a result of the breach.
  108  Nothing in This part does not shall be interpreted to create
  109  strict liability. A violation of the rights set forth in s.
  110  400.022, or in any other standard or guidelines specified in
  111  this part, or in any applicable administrative standard or
  112  guidelines of this state or a federal regulatory agency is shall
  113  be evidence of negligence but is shall not be considered
  114  negligence per se.
  115         (5)(3) In a any claim brought pursuant to this section, a
  116  licensee, individual person, or entity has shall have a duty to
  117  exercise reasonable care. Reasonable care is that degree of care
  118  which a reasonably careful licensee, individual person, or
  119  entity would use under like circumstances.
  120         (6)(4) In a any claim for a residents’ resident’s rights
  121  violation or negligence by a nurse licensed under part I of
  122  chapter 464, such nurse has shall have the duty to exercise care
  123  consistent with the prevailing professional standard of care for
  124  a nurse. The prevailing professional standard of care for a
  125  nurse is shall be that level of care, skill, and treatment
  126  which, in light of all relevant surrounding circumstances, is
  127  recognized as acceptable and appropriate by reasonably prudent
  128  similar nurses.
  129         (7)(5) A licensee is shall not be liable for the medical
  130  negligence of a any physician rendering care or treatment to the
  131  resident except for the administrative services of a medical
  132  director as required under in this part. Nothing in This
  133  subsection does not shall be construed to protect a licensee,
  134  individual person, or entity from liability for failure to
  135  provide a resident with appropriate observation, assessment,
  136  nursing diagnosis, planning, intervention, and evaluation of
  137  care by nursing staff.
  138         (8)(6) The resident or the resident’s legal representative
  139  shall serve a copy of a any complaint alleging in whole or in
  140  part a violation of any rights specified in this part to the
  141  agency for Health Care Administration at the time of filing the
  142  initial complaint with the clerk of the court for the county in
  143  which the action is pursued. The requirement of providing a copy
  144  of the complaint to the agency does not impair the resident’s
  145  legal rights or ability to seek relief for his or her claim.
  146         (9)(7) An action under this part for a violation of rights
  147  or negligence recognized herein is not a claim for medical
  148  malpractice, and the provisions of s. 768.21(8) does do not
  149  apply to a claim alleging death of the resident.
  150         Section 2. Section 400.0237, Florida Statutes, is amended
  151  to read:
  152         400.0237 Punitive damages; pleading; burden of proof.—
  153         (1) A In any action for damages brought under this part, no
  154  claim for punitive damages may not be brought under this part
  155  shall be permitted unless there is a reasonable showing by
  156  admissible evidence that has been submitted by the parties that
  157  provides in the record or proffered by the claimant which would
  158  provide a reasonable basis for recovery of such damages when the
  159  criteria in this section are applied.
  160         (a) The claimant may move to amend her or his complaint to
  161  assert a claim for punitive damages as allowed by the rules of
  162  civil procedure in accordance with evidentiary requirements set
  163  forth in this section.
  164         (b) The court shall conduct a hearing to determine whether
  165  there is sufficient admissible evidence submitted by the parties
  166  to ensure that there is a reasonable basis to believe that the
  167  claimant, at trial, will be able to demonstrate by clear and
  168  convincing evidence that the recovery of such damages is
  169  warranted under a claim for direct liability as specified in
  170  subsection (2) or under a claim for vicarious liability as
  171  specified in subsection (3).
  172         (c) The rules of civil procedure shall be liberally
  173  construed so as to allow the claimant discovery of evidence
  174  which appears reasonably calculated to lead to admissible
  175  evidence on the issue of punitive damages. No Discovery of
  176  financial worth may not shall proceed until after the pleading
  177  on concerning punitive damages is approved by the court
  178  permitted.
  179         (2) A defendant may be held liable for punitive damages
  180  only if the trier of fact, by based on clear and convincing
  181  evidence, finds that a specific person or corporate defendant
  182  actively and knowingly participated in intentional misconduct or
  183  engaged in conduct that constitutes gross negligence and
  184  contributed to the loss, damages, or injury suffered by the
  185  claimant the defendant was personally guilty of intentional
  186  misconduct or gross negligence. As used in this section, the
  187  term:
  188         (a) “Intentional misconduct” means that the defendant
  189  against whom punitive damages are sought had actual knowledge of
  190  the wrongfulness of the conduct and the high probability that
  191  injury or damage to the claimant would result and, despite that
  192  knowledge, intentionally pursued that course of conduct,
  193  resulting in injury or damage.
  194         (b) “Gross negligence” means that a the defendant’s conduct
  195  was so reckless or wanting in care that it constituted a
  196  conscious disregard or indifference to the life, safety, or
  197  rights of persons exposed to such conduct.
  198         (3) In the case of vicarious liability of an individual,
  199  employer, principal, corporation, or other legal entity,
  200  punitive damages may not be imposed for the conduct of an
  201  employee or agent unless only if the conduct of the employee or
  202  agent meets the criteria specified in subsection (2) and an
  203  officer, director, or manager of the actual employer,
  204  corporation, or legal entity condoned, ratified, or consented to
  205  the specific conduct as provided in subsection (2):
  206         (a) The employer, principal, corporation, or other legal
  207  entity actively and knowingly participated in such conduct;
  208         (b) The officers, directors, or managers of the employer,
  209  principal, corporation, or other legal entity condoned,
  210  ratified, or consented to such conduct; or
  211         (c) The employer, principal, corporation, or other legal
  212  entity engaged in conduct that constituted gross negligence and
  213  that contributed to the loss, damages, or injury suffered by the
  214  claimant.
  215         (4) The plaintiff shall must establish at trial, by clear
  216  and convincing evidence, its entitlement to an award of punitive
  217  damages. The “greater weight of the evidence” burden of proof
  218  applies to a determination of the amount of damages.
  219         (5) This section is remedial in nature and shall take
  220  effect upon becoming a law.
  221         Section 3. Section 400.024, Florida Statutes, is created to
  222  read:
  223         400.024 Failure to satisfy a judgment or settlement
  224  agreement.—
  225         (1) Upon the entry by a Florida court of an adverse final
  226  judgment against a licensee as defined in s. 400.023(2) which
  227  arises from an award pursuant to s. 400.023, including an
  228  arbitration award, for a claim of negligence or a violation of
  229  residents’ rights, in contract or tort, or from noncompliance
  230  with the terms of a settlement agreement as determined by a
  231  court or arbitration panel, which arises from a claim pursuant
  232  to s. 400.023, the licensee shall pay the judgment creditor the
  233  entire amount of the judgment, award, or settlement and all
  234  accrued interest within 60 days after the date such judgment,
  235  award, or settlement becomes final and subject to execution
  236  unless otherwise mutually agreed to in writing by the parties.
  237  Failure to make such payment shall result in additional grounds
  238  that may be used by the agency for revoking a license or for
  239  denying a renewal application or a related party change of
  240  ownership application as provided in this section.
  241         (2) The agency is deemed notified of an unsatisfied
  242  judgment or settlement under subsection (1) when a certified
  243  copy of the judgment and a certified copy of a valid judgment
  244  lien certificate, filed in accordance with ss. 55.202 and
  245  55.203, are served to the agency by process server or received
  246  by certified mail, return receipt requested. Within 60 days
  247  after receiving such documents, the agency shall notify the
  248  licensee by certified mail, return receipt requested, that it is
  249  subject to disciplinary action unless, within 30 days after the
  250  date of mailing the notice, the licensee:
  251         (a) Shows proof that the unsatisfied judgment or settlement
  252  has been paid in the amount specified;
  253         (b) Shows proof of the existence of a payment plan mutually
  254  agreed upon by the parties in writing;
  255         (c) Furnishes the agency with a copy of a timely filed
  256  notice of appeal;
  257         (d) Furnishes the agency with a copy of a court order
  258  staying execution of the final judgment; or
  259         (e) Shows proof by submitting an order from a court or
  260  arbitration panel that is overseeing any action seeking
  261  indemnification from an insurance carrier or other party that
  262  the licensee believes is required to pay the award.
  263         (3) If the agency is placed on notice pursuant to
  264  subsection (2) and proof pursuant to subsection (2) is not
  265  provided by the licensee, the agency shall issue an emergency
  266  order pursuant to s. 120.60 declaring that the facility lacks
  267  financial ability to operate and a notice of intent to revoke or
  268  deny a license.
  269         (4) If, after the agency is placed on notice pursuant to
  270  subsection (2) and:
  271         (a) The license is subject to renewal, the agency may deny
  272  the license renewal unless compliance with this section is
  273  achieved; and
  274         (b) A change of ownership application for the facility at
  275  issue is submitted by the licensee, by a person or entity
  276  identified as having a controlling interest in the licensee, or
  277  by a related party, the agency shall deny the change of
  278  ownership application unless compliance with this section is
  279  achieved.
  280         Section 4. Section 400.145, Florida Statutes, is amended to
  281  read:
  282         (Substantial rewording of section. See
  283         s. 400.145, F.S., for present text.)
  284         400.145 Copies of records of care and treatment of
  285  resident.—
  286         (1) Upon receipt of a written request that complies with
  287  the federal Health Insurance Portability and Accountability Act
  288  of 1996 (HIPAA) and this section, a nursing home facility shall
  289  furnish to a competent resident, or to a representative of that
  290  resident who is authorized to make requests for the resident’s
  291  records under HIPAA or subsection (2), copies of the resident’s
  292  paper and electronic records that are in possession of the
  293  facility. Such records must include any medical records and
  294  records concerning the care and treatment of the resident
  295  performed by the facility, except for progress notes and
  296  consultation report sections of a psychiatric nature. The
  297  facility shall provide the requested records within 14 working
  298  days after receipt of a request relating to a current resident
  299  or within 30 working days after receipt of a request relating to
  300  a former resident.
  301         (2) Requests for a deceased resident’s medical records
  302  under this section may be made by:
  303         (a) A person appointed by a court to act as the personal
  304  representative, executor, administrator, curator, or temporary
  305  administrator of the deceased resident’s estate;
  306         (b) If a judicial appointment has not been made as provided
  307  in paragraph (a), a person designated by the resident to act as
  308  his or her personal representative in a last will that is self
  309  proved under s. 732.503; or
  310         (c) If no judicial appointment has been made as provided in
  311  paragraph (a) or no person has been designated by the resident
  312  in a last will as provided in paragraph (b), only the following
  313  individuals:
  314         1. A surviving spouse.
  315         2. If there is no surviving spouse, a surviving child of
  316  the resident.
  317         3. If there is no surviving spouse or child, a parent of
  318  the resident.
  319         (3) All requests for a deceased resident’s records made by
  320  a person authorized under:
  321         (a) Paragraph (2)(a) must include a copy of the letter of
  322  administration and a copy of the court order appointing such
  323  person as the representative of the resident’s estate.
  324         (b) Paragraph (2)(b) must include a copy of the self-proved
  325  last will designating the person as the resident’s
  326  representative.
  327         (c) Paragraph (2)(c) must be accompanied by a letter from
  328  the person’s attorney verifying the person’s relationship to the
  329  resident and the absence of a court-appointed representative and
  330  self-proved last will.
  331         (4) A nursing home facility may charge a reasonable fee for
  332  the copying of resident records. Such fee may not exceed $1 per
  333  page for the first 25 pages and 25 cents per page for each
  334  additional page. The facility shall allow a person who is
  335  authorized to act on behalf of the resident to examine the
  336  original records, microfilms, or other suitable reproductions of
  337  the records in its possession upon any reasonable terms imposed
  338  by the facility to ensure that the records are not damaged,
  339  destroyed, or altered.
  340         (5) If a nursing home facility determines that disclosure
  341  of the records to the resident would be detrimental to the
  342  physical or mental health of the resident, the facility may
  343  refuse to furnish the record directly to the resident; however,
  344  upon such refusal, the resident’s records shall, upon written
  345  request by the resident, be furnished to any other medical
  346  provider designated by the resident.
  347         (6) A nursing home facility that in good faith and in
  348  reliance upon this section releases copies of records shall be
  349  indemnified by the party who requested the records pursuant to
  350  subsection (2) for any damages resulting from such release, and
  351  may not be found to have violated any criminal or civil laws,
  352  and is not civilly liable to the resident, the resident’s
  353  estate, or any other person for any damages resulting from such
  354  release.
  355         (7) A nursing home facility is not required to provide
  356  copies of a resident’s records requested pursuant to this
  357  section more than once per month, except that copies of
  358  physician reports in the resident’s records must be provided as
  359  often as necessary to allow the effective monitoring of the
  360  resident’s condition.
  361         (8) A nursing home facility may not be cited by the agency
  362  through the survey process for any alleged or actual
  363  noncompliance with any of the requirements of this section.
  364         (9) This section does not limit any right to obtain records
  365  by subpoena or other court process.
  366         Section 5. The amendments to ss. 400.023 and 400.0237,
  367  Florida Statutes, made by this act apply to causes of action
  368  accruing on or after the effective date of this act.
  369         Section 6. This act shall take effect upon becoming a law.
  371  ================= T I T L E  A M E N D M E N T ================
  372  And the title is amended as follows:
  373         Delete everything before the enacting clause
  374  and insert:
  375                        A bill to be entitled                      
  376         An act relating to nursing home litigation; amending
  377         s. 400.023, F.S.; specifying that a cause of action
  378         for negligence or violation of residents’ rights
  379         alleging direct or vicarious liability for the injury
  380         or death of a nursing home resident may be brought
  381         against a licensee, its management or consulting
  382         company, its managing employees, and any direct
  383         caregiver employees or contractors; providing that a
  384         cause of action may not be asserted against other
  385         individuals or entities except under certain
  386         circumstances; revising related judicial procedures;
  387         defining terms; amending s. 400.0237, F.S.; providing
  388         that a claim for punitive damages may not be brought
  389         unless there is a showing of evidence that provides a
  390         reasonable basis for recovery of such damages when
  391         certain criteria are applied; requiring the court to
  392         conduct a hearing to determine whether there is
  393         sufficient evidence to demonstrate that the recovery
  394         of punitive damages is warranted; requiring the trier
  395         of fact to find that a specific person or corporate
  396         defendant participated in or engaged in conduct that
  397         constituted gross negligence and contributed to the
  398         damages or injury suffered by the claimant before a
  399         defendant may be held liable for punitive damages;
  400         requiring an officer, director, or manager of the
  401         employer, corporation, or legal entity to condone,
  402         ratify, or consent to specified conduct before holding
  403         such person or entity vicariously liable for punitive
  404         damages; creating s. 400.024, F.S.; authorizing the
  405         Agency for Health Care Administration to revoke the
  406         license or deny a license renewal or change of
  407         ownership application of a nursing home facility that
  408         fails to pay a judgment or settlement agreement;
  409         providing for notification to the agency of such
  410         failure and for agency notification to the licensee of
  411         disciplinary action; providing licensee grounds for
  412         overcoming failure to pay; authorizing the agency to
  413         issue an emergency order and notice of intent to
  414         revoke or deny a license; authorizing the agency to
  415         deny a license renewal and requiring the agency to
  416         deny a change of ownership; amending s. 400.145, F.S.;
  417         revising procedures for obtaining the records of a
  418         resident; specifying which records may be obtained and
  419         who may obtain them; providing immunity from liability
  420         to a facility that provides such records in good
  421         faith; providing that the agency may not cite a
  422         facility that does not meet these records
  423         requirements; providing applicability; providing an
  424         effective date.