Florida Senate - 2024                        COMMITTEE AMENDMENT
       Bill No. SB 238
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/29/2024           .                                

       The Committee on Judiciary (Burton) recommended the following:
    1         Senate Amendment
    3         Delete lines 26 - 91
    4  and insert:
    5         (b)“Management company or active participant” means an
    6  individual or entity that contracts or receives a fee to provide
    7  any of the following services for a facility:
    8         1.Hiring or firing the administrator or director of
    9  nursing;
   10         2.Controlling or having control over staffing levels at
   11  the facility;
   12         3.Having control over the budget of the facility;
   13         4.Implementing and enforcing the policies and procedures
   14  of the facility; or
   15         5.Receiving and controlling a line of credit, loan, or
   16  other credit instrument that is used either in whole or in part
   17  by, or for the benefit of, the subject facility where a resident
   18  resides or resided during the subject residency.
   19         (c)“Passive investor” means an individual or entity that
   20  has an interest in a facility but does not participate in the
   21  decisionmaking or operations of the facility.
   22         (2)An exclusive cause of action for a residents’ Any
   23  person or resident whose rights violation or for negligence as
   24  specified under in this part which alleges direct or vicarious
   25  liability for the personal injury or death of a resident arising
   26  from such rights violation or negligence and which seeks damages
   27  for such injury or death may be brought only against the
   28  licensee, the licensee’s management company or active
   29  participant, the licensee’s managing employees, or any direct
   30  caregivers, whether employees or contractors. A passive investor
   31  is not liable under this section. An action against any other
   32  individual or entity may be brought only pursuant to subsection
   33  (3) are violated shall have a cause of action.
   34         (a) The action may be brought by the resident or his or her
   35  guardian, or by an individual a person or organization acting on
   36  behalf of a resident with the consent of the resident or his or
   37  her guardian, or by the personal representative of the estate of
   38  a deceased resident regardless of the cause of death.
   39         (b) If the action alleges a claim for a residents’ the
   40  resident’s rights violation or for negligence that caused the
   41  death of the resident, the claimant, after the verdict, but
   42  before the judgment is entered, must shall be required to elect
   43  either survival damages pursuant to s. 46.021 or wrongful death
   44  damages pursuant to s. 768.21. If the action alleges a claim for
   45  a residents’ the resident’s rights violation or for negligence
   46  that did not cause the death of the resident, the personal
   47  representative of the estate may recover damages for the
   48  negligence that caused injury to the resident.
   49         (c) The action may be brought in any court of competent
   50  jurisdiction to enforce such rights and to recover actual
   51  damages, and punitive damages for the residents’ rights
   52  violation of the rights of a resident or negligence.
   53         (d)A Any resident who prevails in seeking injunctive
   54  relief or a claim for an administrative remedy is entitled to
   55  recover the costs of the action and a reasonable attorney fees
   56  attorney’s fee assessed against the defendant of up not to
   57  exceed $25,000. Such attorney fees must shall be awarded solely
   58  for the injunctive or administrative relief and not for any
   59  claim or action for damages whether such claim or action is
   60  brought together with a request for an injunction or
   61  administrative relief or as a separate action, except as
   62  provided under s. 768.79 or the Florida Rules of Civil
   63  Procedure. Sections 429.29-429.298 provide the exclusive remedy
   64  for a cause of action for recovery of damages for the personal
   65  injury or death of a resident arising out of negligence or a
   66  violation of rights specified in s. 429.28.
   67         (e) This section does not preclude theories of recovery not
   68  arising out of negligence or s. 429.28 which are available to a
   69  resident or to the agency. The provisions of Chapter 766 does do
   70  not apply to any cause of action brought under ss. 429.29
   71  429.298.
   72         (3) A cause of action for a residents’ rights violation or
   73  for negligence may not be asserted against an individual or
   74  entity other than the licensee, the licensee’s management
   75  company or active participant, the licensee’s managing
   76  employees, and any