Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 670
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/18/2014           .                                

    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 against
   14  the licensee, the licensee’s management or consulting company,
   15  the licensee’s managing employees, and any direct caregivers,
   16  whether employees or contractors are violated shall have a cause
   17  of action. A passive investor is not liable under this section.
   18  An action against any other individual or entity may be brought
   19  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
   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  does not participate in the decisionmaking or operations of a
   76  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 the individual or entity breached that duty;
   87  and
   88         (b) The breach of that duty is a legal cause of loss,
   89  injury, or damage to or death of 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 in the record or proffered by the parties
  157  which provides claimant which would provide a reasonable basis
  158  for recovery of such damages when the criteria in this section
  159  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 a claim for vicarious liability as specified
  171  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 of an adverse final judgment arising
  226  from an award, including an arbitration award, from a claim of
  227  negligence or violation of residents rights, in contract or
  228  tort, or from noncompliance with the terms of a settlement
  229  agreement arising from a claim pursuant to s. 400.023, as
  230  determined by a court or arbitration panel, the licensee, as
  231  defined in s. 400.023(2), shall pay the judgment creditor the
  232  entire amount of the judgment and all accrued interest within 60
  233  days after the date such judgment becomes final and subject to
  234  execution, unless otherwise mutually agreed to in writing by the
  235  parties. Failure to pay shall provide grounds for the agency to
  236  suspend a nursing home facility license, deny a license renewal
  237  application, or deny a change of ownership application as
  238  provided in this section.
  239         (2) Upon notification of the existence of an unsatisfied
  240  judgment or settlement pursuant to subsection (1), the agency
  241  shall notify the licensee by certified mail that it is subject
  242  to disciplinary action unless, within 30 days after receipt of
  243  the notification, the licensee:
  244         (a)Provides proof that the unsatisfied judgment or
  245  settlement has been paid in the amount specified;
  246         (b)Provides proof of the existence of a payment plan
  247  mutually agreed upon by the parties in writing;
  248         (c)Furnishes the agency with a copy of a timely filed
  249  notice of appeal;
  250         (d) Furnishes the agency with a copy of a court order
  251  staying execution of the final judgment; or
  252         (e)Provides written proof from a court or an arbitration
  253  panel overseeing the action that it is seeking indemnification
  254  from an insurance carrier or any other party that it believes is
  255  required to pay the award.
  256         (3)If, after 30 days, the licensee fails to demonstrate
  257  compliance in accordance with subsection (2), the agency shall
  258  issue an emergency order finding that the nursing home facility
  259  lacks financial ability to operate and that the agency is in the
  260  process of suspending the facility’s license.
  261         (4) Following or during the period of suspension, an
  262  individual or entity identified as having a controlling interest
  263  in the facility whose license is being suspended, as identified
  264  on the facility’s licensee application, may not file an
  265  application for licensure of the facility at issue. Further, if
  266  a judgment at trial or arbitration occurs, the agency may not
  267  approve a change of ownership application to a related party
  268  until the requirements of subsection (1) or subsection (2) are
  269  met.
  270         Section 4. Section 400.145, Florida Statutes, is amended to
  271  read:
  272         (Substantial rewording of section. See
  273         s. 400.145, F.S., for present text.)
  274         400.145 Copies of records of care and treatment of
  275  resident.—
  276         (1) Upon receipt of a written request that complies with
  277  the federal Health Insurance Portability and Accountability Act
  278  of 1996 (HIPAA) and this section, a nursing home facility shall
  279  furnish to a competent resident or to a representative of that
  280  resident who is authorized to make requests for the resident’s
  281  records under HIPAA or subsection (2) copies of the resident’s
  282  paper and electronic records that are in possession of the
  283  facility. Such records must include any medical records and
  284  records concerning the care and treatment of the resident
  285  performed by the facility, except for progress notes and
  286  consultation report sections of a psychiatric nature. The
  287  facility shall provide the requested records within 14 working
  288  days after receipt of a request relating to a current resident
  289  or within 30 working days after receipt of a request relating to
  290  a former resident.
  291         (2) Requests for a deceased resident’s medical records
  292  under this section may be made by:
  293         (a) Any person appointed by a court to act as the personal
  294  representative, executor, administrator, or temporary
  295  administrator of the deceased resident’s estate.
  296         (b) If a judicial appointment has not been made as provided
  297  in paragraph (a), any person designated by the resident to act
  298  as his or her representative in a legally valid will; or
  299         (c) If there is no judicially appointed representative or
  300  person designated by the resident in a valid will, by only the
  301  following individuals:
  302         1. A surviving spouse;
  303         2. If there is no surviving spouse, a surviving child of
  304  the resident;
  305         3. If there is no surviving spouse or child, a parent of
  306  the resident.
  307         (3) All requests for a deceased resident’s records made by
  308  a person authorized under:
  309         (a) Paragraph (2)(a) must include a copy of the court order
  310  appointing such person as the representative of the resident’s
  311  estate.
  312         (b) Paragraph (2)(b) must include a copy of the will
  313  designating the person as the resident’s representative.
  314         (c) Paragraph (2)(c) must be accompanied by a letter from
  315  the person’s attorney verifying the person’s relationship to the
  316  resident and the absence of a court-appointed representative and
  317  will.
  318         (4) A nursing home facility may charge a reasonable fee for
  319  the copying of resident records. Such fee may not exceed $1 per
  320  page for the first 25 pages and 25 cents per page for each
  321  additional page. The facility shall allow a person who is
  322  authorized to act on behalf of the resident to examine the
  323  original records, microfilms, or other suitable reproductions of
  324  the records in its possession upon any reasonable terms imposed
  325  by the facility to ensure that the records are not damaged,
  326  destroyed, or altered.
  327         (5) If a nursing home facility determines that disclosure
  328  of the records to the resident would be detrimental to the
  329  physical or mental health of the resident, the facility may
  330  refuse to furnish the record; however, upon such refusal, the
  331  resident’s record shall, upon written request by the resident,
  332  be furnished to any other medical provider designated by the
  333  resident.
  334         (6) A nursing home facility that in good faith and in
  335  reliance upon this section releases copies of records shall be
  336  indemnified by the requesting party, and may not be found to
  337  have violated any criminal or civil laws, and is not civilly
  338  liable to the resident, the resident’s estate, or any other
  339  person for any damages resulting from such release.
  340         (7) A nursing home facility is not required to provide
  341  copies of a resident’s records requested pursuant to this
  342  section more than once per month, except that copies of
  343  physician reports in the resident’s records must be provided as
  344  often as necessary to allow the effective monitoring of the
  345  resident’s condition.
  346         (8) A nursing home facility may not be cited by the agency
  347  through the survey process for any alleged or actual
  348  noncompliance with any of the requirements of this section.
  349         Section 5. The amendments to ss. 400.023 and 400.0237 made
  350  by this act apply to causes of action accruing on or after the
  351  effective date of this act.
  352  Section 6. This act shall take effect upon becoming a law.
  354  ================= T I T L E  A M E N D M E N T ================
  355  And the title is amended as follows:
  356         Delete everything before the enacting clause
  357  and insert:
  358                        A bill to be entitled                      
  359         An act relating to nursing home litigation; amending
  360         s. 400.023, F.S.; specifying that a cause of action
  361         for negligence or violation of residents’ rights
  362         alleging direct or vicarious liability for the injury
  363         or death of nursing home resident may be brought
  364         against a licensee, its management or consulting
  365         company, its managing employees, and any direct
  366         caregiver employees; providing that a cause of action
  367         may not be asserted against other individuals or
  368         entities except under certain circumstances; revising
  369         related judicial procedures; defining terms; amending
  370         s. 400.0237, F.S.; providing that a claim for punitive
  371         damages may not be brought unless there is a showing
  372         of evidence that provides a reasonable basis for
  373         recovery of such damages when certain criteria are
  374         applied; requiring the court to conduct a hearing to
  375         determine whether there is sufficient evidence to
  376         demonstrate that the recovery of punitive damages is
  377         warranted; requiring the trier of fact to find that a
  378         specific person or corporate defendant participated in
  379         or engaged in conduct that constituted gross
  380         negligence and contributed to the damages or injury
  381         suffered by the claimant before a defendant may be
  382         held liable for punitive damages; requiring an
  383         officer, director, or manager of the employer,
  384         corporation, or legal entity to condone, ratify, or
  385         consent to certain specified conduct before holding
  386         such person or entity vicariously liable for punitive
  387         damages; creating s. 400.024, F.S.; authorizing the
  388         Agency for Health Care Administration to suspend the
  389         license of a nursing home facility that fails to pay a
  390         judgment or settlement agreement; providing
  391         exceptions; providing agency procedures for
  392         suspension; prohibiting certain parties from applying
  393         for a license for an affected facility; amending s.
  394         400.145, F.S.; revising procedures for obtaining the
  395         records of a resident; specifying which records may be
  396         obtained and who may obtain them; providing immunity
  397         from liability to a facility that provides such
  398         records in good faith; providing that the agency may
  399         not cite a facility that does not meet these records
  400         requirements; providing applicability; providing an
  401         effective date.