Florida Senate - 2014                              CS for SB 670
       By the Committee on Health Policy; and Senator Thrasher
       588-01866-14                                           2014670c1
    1                        A bill to be entitled                      
    2         An act relating to nursing home litigation; amending
    3         s. 400.023, F.S.; specifying that a cause of action
    4         for negligence or violation of residents’ rights
    5         alleging direct or vicarious liability for the injury
    6         or death of nursing home resident may be brought
    7         against a licensee, its management or consulting
    8         company, its managing employees, and any direct
    9         caregiver employees; providing that a cause of action
   10         may not be asserted against other individuals or
   11         entities except under certain circumstances; revising
   12         related judicial procedures; defining terms; amending
   13         s. 400.0237, F.S.; providing that a claim for punitive
   14         damages may not be brought unless there is a showing
   15         of evidence that provides a reasonable basis for
   16         recovery of such damages when certain criteria are
   17         applied; requiring the court to conduct a hearing to
   18         determine whether there is sufficient evidence to
   19         demonstrate that the recovery of punitive damages is
   20         warranted; requiring the trier of fact to find that a
   21         specific person or corporate defendant participated in
   22         or engaged in conduct that constituted gross
   23         negligence and contributed to the damages or injury
   24         suffered by the claimant before a defendant may be
   25         held liable for punitive damages; requiring an
   26         officer, director, or manager of the employer,
   27         corporation, or legal entity to condone, ratify, or
   28         consent to certain specified conduct before holding
   29         such person or entity vicariously liable for punitive
   30         damages; creating s. 400.024, F.S.; authorizing the
   31         Agency for Health Care Administration to suspend the
   32         license of a nursing home facility that fails to pay a
   33         judgment or settlement agreement; providing
   34         exceptions; providing agency procedures for
   35         suspension; prohibiting certain parties from applying
   36         for a license for an affected facility; amending s.
   37         400.145, F.S.; revising procedures for obtaining the
   38         records of a resident; specifying which records may be
   39         obtained and who may obtain them; providing immunity
   40         from liability to a facility that provides such
   41         records in good faith; providing that the agency may
   42         not cite a facility that does not meet these records
   43         requirements; providing applicability; providing an
   44         effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. Section 400.023, Florida Statutes, is amended to
   49  read:
   50         400.023 Civil enforcement.—
   51         (1) An exclusive cause of action for negligence or a
   52  violation of residents’ Any resident whose rights as specified
   53  under in this part which alleges direct or vicarious liability
   54  for the personal injury or death of a nursing home resident
   55  arising from such negligence or violation of rights and which
   56  seeks damages for such injury or death may be brought against
   57  the licensee, the licensee’s management or consulting company,
   58  the licensee’s managing employees, and any direct caregivers,
   59  whether employees or contractors are violated shall have a cause
   60  of action. A passive investor is not liable under this section.
   61  An action against any other individual or entity may be brought
   62  only pursuant to subsection (3).
   63         (a) The action may be brought by the resident or his or her
   64  guardian, by a person or organization acting on behalf of a
   65  resident with the consent of the resident or his or her
   66  guardian, or by the personal representative of the estate of a
   67  deceased resident regardless of the cause of death.
   68         (b) If the action alleges a claim for the resident’s rights
   69  or for negligence that caused the death of the resident, the
   70  claimant shall, after the verdict, but before the judgment is
   71  entered, be required to elect either survival damages pursuant
   72  to s. 46.021 or wrongful death damages pursuant to s. 768.21. If
   73  the action alleges a claim for the resident’s rights or for
   74  negligence that did not cause the death of the resident, the
   75  personal representative of the estate may recover damages for
   76  the negligence that caused injury to the resident.
   77         (c) The action may be brought in any court of competent
   78  jurisdiction to enforce such rights and to recover actual and
   79  punitive damages for the any violation of the rights of a
   80  resident or for negligence.
   81         (d)A Any resident who prevails in seeking injunctive
   82  relief or a claim for an administrative remedy is entitled to
   83  recover the costs of the action, and a reasonable attorney
   84  attorney’s fee assessed against the defendant of up to not to
   85  exceed $25,000. Fees shall be awarded solely for the injunctive
   86  or administrative relief and not for any claim or action for
   87  damages whether such claim or action is brought together with a
   88  request for an injunction or administrative relief or as a
   89  separate action, except as provided under s. 768.79 or the
   90  Florida Rules of Civil Procedure. Sections 400.023-400.0238
   91  provide the exclusive remedy for a cause of action for recovery
   92  of damages for the personal injury or death of a nursing home
   93  resident arising out of negligence or a violation of rights
   94  specified in s. 400.022.
   95         (e) This section does not preclude theories of recovery not
   96  arising out of negligence or s. 400.022 which are available to a
   97  resident or to the agency. The provisions of Chapter 766 does do
   98  not apply to a any cause of action brought under ss. 400.023
   99  400.0238.
  100         (2) As used in this section, the term:
  101         (a) “Licensee” means an individual, corporation,
  102  partnership, firm, association, governmental entity, or other
  103  entity that is issued a permit, registration, certificate, or
  104  license by the agency, and that is legally responsible for all
  105  aspects of the operation of the nursing home facility.
  106         (b) “Management or consulting company” means an individual
  107  or entity who contracts with, or receives a fee from a licensee
  108  to provide any of the following services for a nursing home
  109  facility:
  110         1. Hiring or firing of the administrator or director of
  111  nursing;
  112         2. Controlling or having control over the staffing levels
  113  at the facility;
  114         3. Having control over the budget of the facility; or
  115         4. Implementing and enforcing the policies and procedures
  116  of the facility.
  117         (c) “Passive investor” means an individual or entity that
  118  does not participate in the decisionmaking or operations of a
  119  facility.
  120         (3) A cause of action may not be asserted against an
  121  individual or entity, other than the licensee, the licensee’s
  122  management or consulting company, the licensee’s managing
  123  employees, and any direct caregivers, whether employees or
  124  contractors, unless, after a motion for leave to amend hearing,
  125  the court or an arbitration panel determines that there is
  126  sufficient evidence in the record or proffered by the claimant
  127  to establish a reasonable showing that:
  128         (a) The individual or entity owed a duty of reasonable care
  129  to the resident and the individual or entity breached that duty;
  130  and
  131         (b) The breach of that duty is a legal cause of loss,
  132  injury, or damage to or death of the resident.
  134  For purposes of this subsection, if, in a proposed amended
  135  pleading, it is asserted that such cause of action arose out of
  136  the conduct, transaction, or occurrence set forth or attempted
  137  to be set forth in the original pleading, the proposed amendment
  138  relates back to the original pleading.
  139         (4)(2) In a any claim brought pursuant to this part
  140  alleging a violation of residents’ resident’s rights or
  141  negligence causing injury to or the death of a resident, the
  142  claimant has shall have the burden of proving, by a
  143  preponderance of the evidence, that:
  144         (a) The defendant owed a duty to the resident;
  145         (b) The defendant breached the duty to the resident;
  146         (c) The breach of the duty is a legal cause of loss,
  147  injury, death, or damage to the resident; and
  148         (d) The resident sustained loss, injury, death, or damage
  149  as a result of the breach.
  151  Nothing in This part does not shall be interpreted to create
  152  strict liability. A violation of the rights set forth in s.
  153  400.022, or in any other standard or guidelines specified in
  154  this part, or in any applicable administrative standard or
  155  guidelines of this state or a federal regulatory agency is shall
  156  be evidence of negligence but is shall not be considered
  157  negligence per se.
  158         (5)(3) In a any claim brought pursuant to this section, a
  159  licensee, individual person, or entity has shall have a duty to
  160  exercise reasonable care. Reasonable care is that degree of care
  161  which a reasonably careful licensee, individual person, or
  162  entity would use under like circumstances.
  163         (6)(4) In a any claim for a residents’ resident’s rights
  164  violation or negligence by a nurse licensed under part I of
  165  chapter 464, such nurse has shall have the duty to exercise care
  166  consistent with the prevailing professional standard of care for
  167  a nurse. The prevailing professional standard of care for a
  168  nurse is shall be that level of care, skill, and treatment
  169  which, in light of all relevant surrounding circumstances, is
  170  recognized as acceptable and appropriate by reasonably prudent
  171  similar nurses.
  172         (7)(5) A licensee is shall not be liable for the medical
  173  negligence of a any physician rendering care or treatment to the
  174  resident except for the administrative services of a medical
  175  director as required under in this part. Nothing in This
  176  subsection does not shall be construed to protect a licensee,
  177  individual person, or entity from liability for failure to
  178  provide a resident with appropriate observation, assessment,
  179  nursing diagnosis, planning, intervention, and evaluation of
  180  care by nursing staff.
  181         (8)(6) The resident or the resident’s legal representative
  182  shall serve a copy of a any complaint alleging in whole or in
  183  part a violation of any rights specified in this part to the
  184  agency for Health Care Administration at the time of filing the
  185  initial complaint with the clerk of the court for the county in
  186  which the action is pursued. The requirement of providing a copy
  187  of the complaint to the agency does not impair the resident’s
  188  legal rights or ability to seek relief for his or her claim.
  189         (9)(7) An action under this part for a violation of rights
  190  or negligence recognized herein is not a claim for medical
  191  malpractice, and the provisions of s. 768.21(8) does do not
  192  apply to a claim alleging death of the resident.
  193         Section 2. Section 400.0237, Florida Statutes, is amended
  194  to read:
  195         400.0237 Punitive damages; pleading; burden of proof.—
  196         (1) A In any action for damages brought under this part, no
  197  claim for punitive damages may not be brought under this part
  198  shall be permitted unless there is a reasonable showing by
  199  admissible evidence in the record or proffered by the parties
  200  which provides claimant which would provide a reasonable basis
  201  for recovery of such damages when the criteria in this section
  202  are applied.
  203         (a) The claimant may move to amend her or his complaint to
  204  assert a claim for punitive damages as allowed by the rules of
  205  civil procedure in accordance with evidentiary requirements set
  206  forth in this section.
  207         (b) The court shall conduct a hearing to determine whether
  208  there is sufficient admissible evidence submitted by the parties
  209  to ensure that there is a reasonable basis to believe that the
  210  claimant, at trial, will be able to demonstrate by clear and
  211  convincing evidence that the recovery of such damages is
  212  warranted under a claim for direct liability as specified in
  213  subsection (2), or a claim for vicarious liability as specified
  214  in subsection (3).
  215         (c) The rules of civil procedure shall be liberally
  216  construed so as to allow the claimant discovery of evidence
  217  which appears reasonably calculated to lead to admissible
  218  evidence on the issue of punitive damages. No Discovery of
  219  financial worth may not shall proceed until after the pleading
  220  on concerning punitive damages is approved by the court
  221  permitted.
  222         (2) A defendant may be held liable for punitive damages
  223  only if the trier of fact, by based on clear and convincing
  224  evidence, finds that a specific person or corporate defendant
  225  actively and knowingly participated in intentional misconduct or
  226  engaged in conduct that constitutes gross negligence and
  227  contributed to the loss, damages, or injury suffered by the
  228  claimant the defendant was personally guilty of intentional
  229  misconduct or gross negligence. As used in this section, the
  230  term:
  231         (a) “Intentional misconduct” means that the defendant
  232  against whom punitive damages are sought had actual knowledge of
  233  the wrongfulness of the conduct and the high probability that
  234  injury or damage to the claimant would result and, despite that
  235  knowledge, intentionally pursued that course of conduct,
  236  resulting in injury or damage.
  237         (b) “Gross negligence” means that a the defendant’s conduct
  238  was so reckless or wanting in care that it constituted a
  239  conscious disregard or indifference to the life, safety, or
  240  rights of persons exposed to such conduct.
  241         (3) In the case of vicarious liability of an individual,
  242  employer, principal, corporation, or other legal entity,
  243  punitive damages may not be imposed for the conduct of an
  244  employee or agent unless only if the conduct of the employee or
  245  agent meets the criteria specified in subsection (2) and an
  246  officer, director, or manager of the actual employer,
  247  corporation, or legal entity condoned, ratified, or consented to
  248  the specific conduct as provided in subsection (2):
  249         (a) The employer, principal, corporation, or other legal
  250  entity actively and knowingly participated in such conduct;
  251         (b) The officers, directors, or managers of the employer,
  252  principal, corporation, or other legal entity condoned,
  253  ratified, or consented to such conduct; or
  254         (c) The employer, principal, corporation, or other legal
  255  entity engaged in conduct that constituted gross negligence and
  256  that contributed to the loss, damages, or injury suffered by the
  257  claimant.
  258         (4) The plaintiff shall must establish at trial, by clear
  259  and convincing evidence, its entitlement to an award of punitive
  260  damages. The “greater weight of the evidence” burden of proof
  261  applies to a determination of the amount of damages.
  262         (5) This section is remedial in nature and shall take
  263  effect upon becoming a law.
  264         Section 3. Section 400.024, Florida Statutes, is created to
  265  read:
  266         400.024 Failure to satisfy a judgment or settlement
  267  agreement.—
  268         (1) Upon the entry of an adverse final judgment arising
  269  from an award, including an arbitration award, from a claim of
  270  negligence or violation of residents rights, in contract or
  271  tort, or from noncompliance with the terms of a settlement
  272  agreement arising from a claim pursuant to s. 400.023, as
  273  determined by a court or arbitration panel, the licensee, as
  274  defined in s. 400.023(2), shall pay the judgment creditor the
  275  entire amount of the judgment and all accrued interest within 60
  276  days after the date such judgment becomes final and subject to
  277  execution, unless otherwise mutually agreed to in writing by the
  278  parties. Failure to pay shall provide grounds for the agency to
  279  suspend a nursing home facility license, deny a license renewal
  280  application, or deny a change of ownership application as
  281  provided in this section.
  282         (2) Upon notification of the existence of an unsatisfied
  283  judgment or settlement pursuant to subsection (1), the agency
  284  shall notify the licensee by certified mail that it is subject
  285  to disciplinary action unless, within 30 days after receipt of
  286  the notification, the licensee:
  287         (a)Provides proof that the unsatisfied judgment or
  288  settlement has been paid in the amount specified;
  289         (b)Provides proof of the existence of a payment plan
  290  mutually agreed upon by the parties in writing;
  291         (c)Furnishes the agency with a copy of a timely filed
  292  notice of appeal;
  293         (d) Furnishes the agency with a copy of a court order
  294  staying execution of the final judgment; or
  295         (e)Provides written proof from a court or an arbitration
  296  panel overseeing the action that it is seeking indemnification
  297  from an insurance carrier or any other party that it believes is
  298  required to pay the award.
  299         (3)If, after 30 days, the licensee fails to demonstrate
  300  compliance in accordance with subsection (2), the agency shall
  301  issue an emergency order finding that the nursing home facility
  302  lacks financial ability to operate and that the agency is in the
  303  process of suspending the facility’s license.
  304         (4) Following or during the period of suspension, an
  305  individual or entity identified as having a controlling interest
  306  in the facility whose license is being suspended, as identified
  307  on the facility’s licensee application, may not file an
  308  application for licensure of the facility at issue. Further, if
  309  a judgment at trial or arbitration occurs, the agency may not
  310  approve a change of ownership application to a related party
  311  until the requirements of subsection (1) or subsection (2) are
  312  met.
  313         Section 4. Section 400.145, Florida Statutes, is amended to
  314  read:
  315         (Substantial rewording of section. See
  316         s. 400.145, F.S., for present text.)
  317         400.145 Copies of records of care and treatment of
  318  resident.—
  319         (1) Upon receipt of a written request that complies with
  320  the federal Health Insurance Portability and Accountability Act
  321  of 1996 (HIPAA) and this section, a nursing home facility shall
  322  furnish to a competent resident or to a representative of that
  323  resident who is authorized to make requests for the resident’s
  324  records under HIPAA or subsection (2) copies of the resident’s
  325  paper and electronic records that are in possession of the
  326  facility. Such records must include any medical records and
  327  records concerning the care and treatment of the resident
  328  performed by the facility, except for progress notes and
  329  consultation report sections of a psychiatric nature. The
  330  facility shall provide the requested records within 14 working
  331  days after receipt of a request relating to a current resident
  332  or within 30 working days after receipt of a request relating to
  333  a former resident.
  334         (2) Requests for a deceased resident’s medical records
  335  under this section may be made by:
  336         (a) Any person appointed by a court to act as the personal
  337  representative, executor, administrator, or temporary
  338  administrator of the deceased resident’s estate.
  339         (b) If a judicial appointment has not been made as provided
  340  in paragraph (a), any person designated by the resident to act
  341  as his or her representative in a legally valid will; or
  342         (c) If there is no judicially appointed representative or
  343  person designated by the resident in a valid will, by only the
  344  following individuals:
  345         1. A surviving spouse;
  346         2. If there is no surviving spouse, a surviving child of
  347  the resident;
  348         3. If there is no surviving spouse or child, a parent of
  349  the resident.
  350         (3) All requests for a deceased resident’s records made by
  351  a person authorized under:
  352         (a) Paragraph (2)(a) must include a copy of the court order
  353  appointing such person as the representative of the resident’s
  354  estate.
  355         (b) Paragraph (2)(b) must include a copy of the will
  356  designating the person as the resident’s representative.
  357         (c) Paragraph (2)(c) must be accompanied by a letter from
  358  the person’s attorney verifying the person’s relationship to the
  359  resident and the absence of a court-appointed representative and
  360  will.
  361         (4) A nursing home facility may charge a reasonable fee for
  362  the copying of resident records. Such fee may not exceed $1 per
  363  page for the first 25 pages and 25 cents per page for each
  364  additional page. The facility shall allow a person who is
  365  authorized to act on behalf of the resident to examine the
  366  original records, microfilms, or other suitable reproductions of
  367  the records in its possession upon any reasonable terms imposed
  368  by the facility to ensure that the records are not damaged,
  369  destroyed, or altered.
  370         (5) If a nursing home facility determines that disclosure
  371  of the records to the resident would be detrimental to the
  372  physical or mental health of the resident, the facility may
  373  refuse to furnish the record; however, upon such refusal, the
  374  resident’s record shall, upon written request by the resident,
  375  be furnished to any other medical provider designated by the
  376  resident.
  377         (6) A nursing home facility that in good faith and in
  378  reliance upon this section releases copies of records shall be
  379  indemnified by the requesting party, and may not be found to
  380  have violated any criminal or civil laws, and is not civilly
  381  liable to the resident, the resident’s estate, or any other
  382  person for any damages resulting from such release.
  383         (7) A nursing home facility is not required to provide
  384  copies of a resident’s records requested pursuant to this
  385  section more than once per month, except that copies of
  386  physician reports in the resident’s records must be provided as
  387  often as necessary to allow the effective monitoring of the
  388  resident’s condition.
  389         (8) A nursing home facility may not be cited by the agency
  390  through the survey process for any alleged or actual
  391  noncompliance with any of the requirements of this section.
  392         Section 5. The amendments to ss. 400.023 and 400.0237 made
  393  by this act apply to causes of action accruing on or after the
  394  effective date of this act.
  395         Section 6. This act shall take effect upon becoming a law.