2014 Legislature                            CS for CS for SB 670
    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 a 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 or contractors; providing that a
   10         cause of action may not be asserted against other
   11         individuals or entities except under certain
   12         circumstances; revising related judicial procedures;
   13         defining terms; amending s. 400.0237, F.S.; providing
   14         that a claim for punitive damages may not be brought
   15         unless there is a showing of evidence that provides a
   16         reasonable basis for recovery of such damages when
   17         certain criteria are applied; requiring the court to
   18         conduct a hearing to determine whether there is
   19         sufficient evidence to demonstrate that the recovery
   20         of punitive damages is warranted; requiring the trier
   21         of fact to find that a specific person or corporate
   22         defendant participated in or engaged in conduct that
   23         constituted gross negligence and contributed to the
   24         damages or injury suffered by the claimant before a
   25         defendant may be held liable for punitive damages;
   26         requiring an officer, director, or manager of the
   27         employer, corporation, or legal entity to condone,
   28         ratify, or consent to 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 revoke the
   32         license or deny a license renewal or change of
   33         ownership application of a nursing home facility that
   34         fails to pay a judgment or settlement agreement;
   35         providing for notification to the agency of such
   36         failure and for agency notification to the licensee of
   37         disciplinary action; providing licensee grounds for
   38         overcoming failure to pay; authorizing the agency to
   39         issue an emergency order and notice of intent to
   40         revoke or deny a license; authorizing the agency to
   41         deny a license renewal and requiring the agency to
   42         deny a change of ownership; amending s. 400.145, F.S.;
   43         revising procedures for obtaining the records of a
   44         resident; specifying which records may be obtained and
   45         who may obtain them; providing immunity from liability
   46         to a facility that provides such records in good
   47         faith; providing that the agency may not cite a
   48         facility that does not meet these records
   49         requirements; providing applicability; providing an
   50         effective date.
   52  Be It Enacted by the Legislature of the State of Florida:
   54         Section 1. Section 400.023, Florida Statutes, is amended to
   55  read:
   56         400.023 Civil enforcement.—
   57         (1) An exclusive cause of action for negligence or a
   58  violation of residents’ Any resident whose rights as specified
   59  under in this part which alleges direct or vicarious liability
   60  for the personal injury or death of a nursing home resident
   61  arising from such negligence or violation of rights and which
   62  seeks damages for such injury or death may be brought only
   63  against the licensee, the licensee’s management or consulting
   64  company, the licensee’s managing employees, and any direct
   65  caregivers, whether employees or contractors are violated shall
   66  have a cause of action. A passive investor is not liable under
   67  this section. An action against any other individual or entity
   68  may be brought only pursuant to subsection (3).
   69         (a) The action may be brought by the resident or his or her
   70  guardian, by a person or organization acting on behalf of a
   71  resident with the consent of the resident or his or her
   72  guardian, or by the personal representative of the estate of a
   73  deceased resident regardless of the cause of death.
   74         (b) If the action alleges a claim for the resident’s rights
   75  or for negligence that caused the death of the resident, the
   76  claimant shall, after the verdict, but before the judgment is
   77  entered, be required to elect either survival damages pursuant
   78  to s. 46.021 or wrongful death damages pursuant to s. 768.21. If
   79  the action alleges a claim for the resident’s rights or for
   80  negligence that did not cause the death of the resident, the
   81  personal representative of the estate may recover damages for
   82  the negligence that caused injury to the resident.
   83         (c) The action may be brought in any court of competent
   84  jurisdiction to enforce such rights and to recover actual and
   85  punitive damages for the any violation of the rights of a
   86  resident or for negligence.
   87         (d)A Any resident who prevails in seeking injunctive
   88  relief or a claim for an administrative remedy is entitled to
   89  recover the costs of the action, and a reasonable attorney fees
   90  attorney’s fee assessed against the defendant of up to not to
   91  exceed $25,000. Fees shall be awarded solely for the injunctive
   92  or administrative relief and not for any claim or action for
   93  damages whether such claim or action is brought together with a
   94  request for an injunction or administrative relief or as a
   95  separate action, except as provided under s. 768.79 or the
   96  Florida Rules of Civil Procedure. Sections 400.023-400.0238
   97  provide the exclusive remedy for a cause of action for recovery
   98  of damages for the personal injury or death of a nursing home
   99  resident arising out of negligence or a violation of rights
  100  specified in s. 400.022.
  101         (e) This section does not preclude theories of recovery not
  102  arising out of negligence or s. 400.022 which are available to a
  103  resident or to the agency. The provisions of Chapter 766 does do
  104  not apply to a any cause of action brought under ss. 400.023
  105  400.0238.
  106         (2) As used in this section, the term:
  107         (a) “Licensee” means an individual, corporation,
  108  partnership, firm, association, governmental entity, or other
  109  entity that is issued a permit, registration, certificate, or
  110  license by the agency, and that is legally responsible for all
  111  aspects of the operation of the nursing home facility.
  112         (b) “Management or consulting company” means an individual
  113  or entity who contracts with, or receives a fee from, a licensee
  114  to provide any of the following services for a nursing home
  115  facility:
  116         1. Hiring or firing of the administrator or director of
  117  nursing;
  118         2. Controlling or having control over the staffing levels
  119  at the facility;
  120         3. Having control over the budget of the facility; or
  121         4. Implementing and enforcing the policies and procedures
  122  of the facility.
  123         (c) “Passive investor” means an individual or entity that
  124  has an interest in a facility but does not participate in the
  125  decisionmaking or operations of the facility.
  126         (3) A cause of action may not be asserted against an
  127  individual or entity other than the licensee, the licensee’s
  128  management or consulting company, the licensee’s managing
  129  employees, and any direct caregivers, whether employees or
  130  contractors, unless, after a motion for leave to amend hearing,
  131  the court or an arbitration panel determines that there is
  132  sufficient evidence in the record or proffered by the claimant
  133  to establish a reasonable showing that:
  134         (a) The individual or entity owed a duty of reasonable care
  135  to the resident and that the individual or entity breached that
  136  duty; and
  137         (b) The breach of that duty is a legal cause of loss,
  138  injury, death, or damage to the resident.
  140  For purposes of this subsection, if, in a proposed amended
  141  pleading, it is asserted that such cause of action arose out of
  142  the conduct, transaction, or occurrence set forth or attempted
  143  to be set forth in the original pleading, the proposed amendment
  144  relates back to the original pleading.
  145         (4)(2) In a any claim brought pursuant to this part
  146  alleging a violation of residents’ resident’s rights or
  147  negligence causing injury to or the death of a resident, the
  148  claimant has shall have the burden of proving, by a
  149  preponderance of the evidence, that:
  150         (a) The defendant owed a duty to the resident;
  151         (b) The defendant breached the duty to the resident;
  152         (c) The breach of the duty is a legal cause of loss,
  153  injury, death, or damage to the resident; and
  154         (d) The resident sustained loss, injury, death, or damage
  155  as a result of the breach.
  157  Nothing in This part does not shall be interpreted to create
  158  strict liability. A violation of the rights set forth in s.
  159  400.022, or in any other standard or guidelines specified in
  160  this part, or in any applicable administrative standard or
  161  guidelines of this state or a federal regulatory agency is shall
  162  be evidence of negligence but is shall not be considered
  163  negligence per se.
  164         (5)(3) In a any claim brought pursuant to this section, a
  165  licensee, individual person, or entity has shall have a duty to
  166  exercise reasonable care. Reasonable care is that degree of care
  167  which a reasonably careful licensee, individual person, or
  168  entity would use under like circumstances.
  169         (6)(4) In a any claim for a residents’ resident’s rights
  170  violation or negligence by a nurse licensed under part I of
  171  chapter 464, such nurse has shall have the duty to exercise care
  172  consistent with the prevailing professional standard of care for
  173  a nurse. The prevailing professional standard of care for a
  174  nurse is shall be that level of care, skill, and treatment
  175  which, in light of all relevant surrounding circumstances, is
  176  recognized as acceptable and appropriate by reasonably prudent
  177  similar nurses.
  178         (7)(5) A licensee is shall not be liable for the medical
  179  negligence of a any physician rendering care or treatment to the
  180  resident except for the administrative services of a medical
  181  director as required under in this part. Nothing in This
  182  subsection does not shall be construed to protect a licensee,
  183  individual person, or entity from liability for failure to
  184  provide a resident with appropriate observation, assessment,
  185  nursing diagnosis, planning, intervention, and evaluation of
  186  care by nursing staff.
  187         (8)(6) The resident or the resident’s legal representative
  188  shall serve a copy of a any complaint alleging in whole or in
  189  part a violation of any rights specified in this part to the
  190  agency for Health Care Administration at the time of filing the
  191  initial complaint with the clerk of the court for the county in
  192  which the action is pursued. The requirement of providing a copy
  193  of the complaint to the agency does not impair the resident’s
  194  legal rights or ability to seek relief for his or her claim.
  195         (9)(7) An action under this part for a violation of rights
  196  or negligence recognized herein is not a claim for medical
  197  malpractice, and the provisions of s. 768.21(8) does do not
  198  apply to a claim alleging death of the resident.
  199         Section 2. Section 400.0237, Florida Statutes, is amended
  200  to read:
  201         400.0237 Punitive damages; pleading; burden of proof.—
  202         (1) A In any action for damages brought under this part, no
  203  claim for punitive damages may not be brought under this part
  204  shall be permitted unless there is a reasonable showing by
  205  admissible evidence that has been submitted by the parties that
  206  provides in the record or proffered by the claimant which would
  207  provide a reasonable basis for recovery of such damages when the
  208  criteria in this section are applied.
  209         (a) The claimant may move to amend her or his complaint to
  210  assert a claim for punitive damages as allowed by the rules of
  211  civil procedure in accordance with evidentiary requirements set
  212  forth in this section.
  213         (b) The court shall conduct a hearing to determine whether
  214  there is sufficient admissible evidence submitted by the parties
  215  to ensure that there is a reasonable basis to believe that the
  216  claimant, at trial, will be able to demonstrate by clear and
  217  convincing evidence that the recovery of such damages is
  218  warranted under a claim for direct liability as specified in
  219  subsection (2) or under a claim for vicarious liability as
  220  specified in subsection (3).
  221         (c) The rules of civil procedure shall be liberally
  222  construed so as to allow the claimant discovery of evidence
  223  which appears reasonably calculated to lead to admissible
  224  evidence on the issue of punitive damages. No Discovery of
  225  financial worth may not shall proceed until after the pleading
  226  on concerning punitive damages is approved by the court
  227  permitted.
  228         (2) A defendant may be held liable for punitive damages
  229  only if the trier of fact, by based on clear and convincing
  230  evidence, finds that a specific person or corporate defendant
  231  actively and knowingly participated in intentional misconduct or
  232  engaged in conduct that constitutes gross negligence and
  233  contributed to the loss, damages, or injury suffered by the
  234  claimant the defendant was personally guilty of intentional
  235  misconduct or gross negligence. As used in this section, the
  236  term:
  237         (a) “Intentional misconduct” means that the defendant
  238  against whom punitive damages are sought had actual knowledge of
  239  the wrongfulness of the conduct and the high probability that
  240  injury or damage to the claimant would result and, despite that
  241  knowledge, intentionally pursued that course of conduct,
  242  resulting in injury or damage.
  243         (b) “Gross negligence” means that a the defendant’s conduct
  244  was so reckless or wanting in care that it constituted a
  245  conscious disregard or indifference to the life, safety, or
  246  rights of persons exposed to such conduct.
  247         (3) In the case of vicarious liability of an individual,
  248  employer, principal, corporation, or other legal entity,
  249  punitive damages may not be imposed for the conduct of an
  250  employee or agent unless only if the conduct of the employee or
  251  agent meets the criteria specified in subsection (2) and an
  252  officer, director, or manager of the actual employer,
  253  corporation, or legal entity condoned, ratified, or consented to
  254  the specific conduct as provided in subsection (2):
  255         (a) The employer, principal, corporation, or other legal
  256  entity actively and knowingly participated in such conduct;
  257         (b) The officers, directors, or managers of the employer,
  258  principal, corporation, or other legal entity condoned,
  259  ratified, or consented to such conduct; or
  260         (c) The employer, principal, corporation, or other legal
  261  entity engaged in conduct that constituted gross negligence and
  262  that contributed to the loss, damages, or injury suffered by the
  263  claimant.
  264         (4) The plaintiff shall must establish at trial, by clear
  265  and convincing evidence, its entitlement to an award of punitive
  266  damages. The “greater weight of the evidence” burden of proof
  267  applies to a determination of the amount of damages.
  268         (5) This section is remedial in nature and shall take
  269  effect upon becoming a law.
  270         Section 3. Section 400.024, Florida Statutes, is created to
  271  read:
  272         400.024 Failure to satisfy a judgment or settlement
  273  agreement.—
  274         (1) Upon the entry by a Florida court of an adverse final
  275  judgment against a licensee as defined in s. 400.023(2) which
  276  arises from an award pursuant to s. 400.023, including an
  277  arbitration award, for a claim of negligence or a violation of
  278  residents’ rights, in contract or tort, or from noncompliance
  279  with the terms of a settlement agreement as determined by a
  280  court or arbitration panel, which arises from a claim pursuant
  281  to s. 400.023, the licensee shall pay the judgment creditor the
  282  entire amount of the judgment, award, or settlement and all
  283  accrued interest within 60 days after the date such judgment,
  284  award, or settlement becomes final and subject to execution
  285  unless otherwise mutually agreed to in writing by the parties.
  286  Failure to make such payment shall result in additional grounds
  287  that may be used by the agency for revoking a license or for
  288  denying a renewal application or a related party change of
  289  ownership application as provided in this section.
  290         (2) The agency is deemed notified of an unsatisfied
  291  judgment or settlement under subsection (1) when a certified
  292  copy of the judgment and a certified copy of a valid judgment
  293  lien certificate, filed in accordance with ss. 55.202 and
  294  55.203, are served to the agency by process server or received
  295  by certified mail, return receipt requested. Within 60 days
  296  after receiving such documents, the agency shall notify the
  297  licensee by certified mail, return receipt requested, that it is
  298  subject to disciplinary action unless, within 30 days after the
  299  date of mailing the notice, the licensee:
  300         (a) Shows proof that the unsatisfied judgment or settlement
  301  has been paid in the amount specified;
  302         (b) Shows proof of the existence of a payment plan mutually
  303  agreed upon by the parties in writing;
  304         (c) Furnishes the agency with a copy of a timely filed
  305  notice of appeal;
  306         (d) Furnishes the agency with a copy of a court order
  307  staying execution of the final judgment; or
  308         (e) Shows proof by submitting an order from a court or
  309  arbitration panel that is overseeing any action seeking
  310  indemnification from an insurance carrier or other party that
  311  the licensee believes is required to pay the award.
  312         (3) If the agency is placed on notice pursuant to
  313  subsection (2) and proof pursuant to subsection (2) is not
  314  provided by the licensee, the agency shall issue an emergency
  315  order pursuant to s. 120.60 declaring that the facility lacks
  316  financial ability to operate and a notice of intent to revoke or
  317  deny a license.
  318         (4) If, after the agency is placed on notice pursuant to
  319  subsection (2) and:
  320         (a) The license is subject to renewal, the agency may deny
  321  the license renewal unless compliance with this section is
  322  achieved; and
  323         (b) A change of ownership application for the facility at
  324  issue is submitted by the licensee, by a person or entity
  325  identified as having a controlling interest in the licensee, or
  326  by a related party, the agency shall deny the change of
  327  ownership application unless compliance with this section is
  328  achieved.
  329         Section 4. Section 400.145, Florida Statutes, is amended to
  330  read:
  331         (Substantial rewording of section. See
  332         s. 400.145, F.S., for present text.)
  333         400.145 Copies of records of care and treatment of
  334  resident.—
  335         (1) Upon receipt of a written request that complies with
  336  the federal Health Insurance Portability and Accountability Act
  337  of 1996 (HIPAA) and this section, a nursing home facility shall
  338  furnish to a competent resident, or to a representative of that
  339  resident who is authorized to make requests for the resident’s
  340  records under HIPAA or subsection (2), copies of the resident’s
  341  paper and electronic records that are in possession of the
  342  facility. Such records must include any medical records and
  343  records concerning the care and treatment of the resident
  344  performed by the facility, except for progress notes and
  345  consultation report sections of a psychiatric nature. The
  346  facility shall provide the requested records within 14 working
  347  days after receipt of a request relating to a current resident
  348  or within 30 working days after receipt of a request relating to
  349  a former resident.
  350         (2) Requests for a deceased resident’s medical records
  351  under this section may be made by:
  352         (a) A person appointed by a court to act as the personal
  353  representative, executor, administrator, curator, or temporary
  354  administrator of the deceased resident’s estate;
  355         (b) If a judicial appointment has not been made as provided
  356  in paragraph (a), a person designated by the resident to act as
  357  his or her personal representative in a last will that is self
  358  proved under s. 732.503; or
  359         (c) If no judicial appointment has been made as provided in
  360  paragraph (a) or no person has been designated by the resident
  361  in a last will as provided in paragraph (b), only the following
  362  individuals:
  363         1. A surviving spouse.
  364         2. If there is no surviving spouse, a surviving child of
  365  the resident.
  366         3. If there is no surviving spouse or child, a parent of
  367  the resident.
  368         (3) All requests for a deceased resident’s records made by
  369  a person authorized under:
  370         (a) Paragraph (2)(a) must include a copy of the letter of
  371  administration and a copy of the court order appointing such
  372  person as the representative of the resident’s estate.
  373         (b) Paragraph (2)(b) must include a copy of the self-proved
  374  last will designating the person as the resident’s
  375  representative.
  376         (c) Paragraph (2)(c) must be accompanied by a letter from
  377  the person’s attorney verifying the person’s relationship to the
  378  resident and the absence of a court-appointed representative and
  379  self-proved last will.
  380         (4) A nursing home facility may charge a reasonable fee for
  381  the copying of resident records. Such fee may not exceed $1 per
  382  page for the first 25 pages and 25 cents per page for each
  383  additional page. The facility shall allow a person who is
  384  authorized to act on behalf of the resident to examine the
  385  original records, microfilms, or other suitable reproductions of
  386  the records in its possession upon any reasonable terms imposed
  387  by the facility to ensure that the records are not damaged,
  388  destroyed, or altered.
  389         (5) If a nursing home facility determines that disclosure
  390  of the records to the resident would be detrimental to the
  391  physical or mental health of the resident, the facility may
  392  refuse to furnish the record directly to the resident; however,
  393  upon such refusal, the resident’s records shall, upon written
  394  request by the resident, be furnished to any other medical
  395  provider designated by the resident.
  396         (6) A nursing home facility that in good faith and in
  397  reliance upon this section releases copies of records shall be
  398  indemnified by the party who requested the records pursuant to
  399  subsection (2) for any damages resulting from such release, and
  400  may not be found to have violated any criminal or civil laws,
  401  and is not civilly liable to the resident, the resident’s
  402  estate, or any other person for any damages resulting from such
  403  release.
  404         (7) A nursing home facility is not required to provide
  405  copies of a resident’s records requested pursuant to this
  406  section more than once per month, except that copies of
  407  physician reports in the resident’s records must be provided as
  408  often as necessary to allow the effective monitoring of the
  409  resident’s condition.
  410         (8) A nursing home facility may not be cited by the agency
  411  through the survey process for any alleged or actual
  412  noncompliance with any of the requirements of this section.
  413         (9) This section does not limit any right to obtain records
  414  by subpoena or other court process.
  415         Section 5. The amendments to ss. 400.023 and 400.0237,
  416  Florida Statutes, made by this act apply to causes of action
  417  accruing on or after the effective date of this act.
  418         Section 6. This act shall take effect upon becoming a law.