Florida Senate - 2024                                     SB 238
       By Senator Burton
       12-00319-24                                            2024238__
    1                        A bill to be entitled                      
    2         An act relating to claims against assisted living
    3         facilities; amending s. 429.29, F.S.; defining terms;
    4         providing requirements for the bringing of an
    5         exclusive cause of action for residents’ rights
    6         violations or negligence against specified
    7         individuals; providing certain individuals with
    8         immunity from liability for such claims; providing
    9         exceptions; amending s. 429.297, F.S.; revising
   10         requirements for recovery of certain damages and
   11         liability for such damages; revising definitions;
   12         deleting obsolete language; providing applicability;
   13         providing an effective date.
   15  Be It Enacted by the Legislature of the State of Florida:
   17         Section 1. Section 429.29, Florida Statutes, is amended to
   18  read:
   19         429.29 Civil actions to enforce rights.—
   20         (1) As used in this section, the term:
   21         (a)“Licensee” means an individual, corporation,
   22  partnership, firm, association, governmental entity, or other
   23  entity that is issued a permit, registration, certificate, or
   24  license by the agency and is legally responsible for all aspects
   25  of the operation of the facility.
   26         (b)“Management or consulting company” means an individual
   27  or entity that contracts with, or receives a fee from, a
   28  licensee to provide any of the following services for a
   29  facility:
   30         1.Hiring or firing the administrator or director of
   31  nursing;
   32         2.Controlling or having control over staffing levels;
   33         3.Controlling or having control over the budget; or
   34         4.Implementing and enforcing policies and procedures.
   35         (c)“Passive investor” means an individual or entity that
   36  has an interest in a facility but does not participate in the
   37  decisionmaking or operations of the facility.
   38         (2)An exclusive cause of action for a residents’ Any
   39  person or resident whose rights violation or for negligence as
   40  specified under in this part which alleges direct or vicarious
   41  liability for the personal injury or death of a resident arising
   42  from such rights violation or negligence and which seeks damages
   43  for such injury or death may be brought only against the
   44  licensee, the licensee’s management or consulting company, the
   45  licensee’s managing employees, or any direct caregivers, whether
   46  employees or contractors. A passive investor is not liable under
   47  this section. An action against any other individual or entity
   48  may be brought only pursuant to subsection (3) are violated
   49  shall have a cause of action.
   50         (a) The action may be brought by the resident or his or her
   51  guardian, or by an individual a person or organization acting on
   52  behalf of a resident with the consent of the resident or his or
   53  her guardian, or by the personal representative of the estate of
   54  a deceased resident regardless of the cause of death.
   55         (b) If the action alleges a claim for a residents’ the
   56  resident’s rights violation or for negligence that caused the
   57  death of the resident, the claimant, after the verdict, but
   58  before the judgment is entered, must shall be required to elect
   59  either survival damages pursuant to s. 46.021 or wrongful death
   60  damages pursuant to s. 768.21. If the action alleges a claim for
   61  a residents’ the resident’s rights violation or for negligence
   62  that did not cause the death of the resident, the personal
   63  representative of the estate may recover damages for the
   64  negligence that caused injury to the resident.
   65         (c) The action may be brought in any court of competent
   66  jurisdiction to enforce such rights and to recover actual
   67  damages, and punitive damages for the residents’ rights
   68  violation of the rights of a resident or negligence.
   69         (d)A Any resident who prevails in seeking injunctive
   70  relief or a claim for an administrative remedy is entitled to
   71  recover the costs of the action and a reasonable attorney fees
   72  attorney’s fee assessed against the defendant of up not to
   73  exceed $25,000. Such attorney fees must shall be awarded solely
   74  for the injunctive or administrative relief and not for any
   75  claim or action for damages whether such claim or action is
   76  brought together with a request for an injunction or
   77  administrative relief or as a separate action, except as
   78  provided under s. 768.79 or the Florida Rules of Civil
   79  Procedure. Sections 429.29-429.298 provide the exclusive remedy
   80  for a cause of action for recovery of damages for the personal
   81  injury or death of a resident arising out of negligence or a
   82  violation of rights specified in s. 429.28.
   83         (e) This section does not preclude theories of recovery not
   84  arising out of negligence or s. 429.28 which are available to a
   85  resident or to the agency. The provisions of Chapter 766 does do
   86  not apply to any cause of action brought under ss. 429.29
   87  429.298.
   88         (3) A cause of action for a residents’ rights violation or
   89  for negligence may not be asserted against an individual or
   90  entity other than the licensee, the licensee’s management or
   91  consulting company, the licensee’s managing employees, and any
   92  direct caregivers, whether employees or contractors, unless,
   93  after a motion for leave to amend hearing, the court or an
   94  arbitration panel determines that there is sufficient evidence
   95  in the record or proffered by the claimant to establish a
   96  reasonable showing that:
   97         (a) The individual or entity owed a duty of reasonable care
   98  to the resident and breached that duty; and
   99         (b) The breach of that duty is a legal cause of loss,
  100  injury, death, or damage to the resident.
  102  For purposes of this subsection, if it is asserted in a proposed
  103  amended pleading that such cause of action arose out of the
  104  conduct, transaction, or occurrence set forth or attempted to be
  105  set forth in the original pleading, the proposed amendment
  106  relates back to the original pleading.
  107         (4)(2) In any claim brought pursuant to this part alleging
  108  a violation of residents’ resident’s rights or negligence
  109  causing injury to or the death of a resident, the claimant has
  110  shall have the burden of proving, by a preponderance of the
  111  evidence, that:
  112         (a) The defendant owed a duty to the resident;
  113         (b) The defendant breached the duty to the resident;
  114         (c) The breach of the duty is a legal cause of loss,
  115  injury, death, or damage to the resident; and
  116         (d) The resident sustained loss, injury, death, or damage
  117  as a result of the breach.
  119  Nothing in This part does not shall be interpreted to create
  120  strict liability. A violation of the rights provided set forth
  121  in s. 429.28 or in any other standard or guidelines specified in
  122  this part or in any applicable administrative standard or
  123  guidelines of this state or a federal regulatory agency may
  124  shall be evidence of negligence but is shall not be considered
  125  negligence per se.
  126         (5)(3) In a any claim brought pursuant to this section, a
  127  licensee, individual person, or entity has shall have a duty to
  128  exercise reasonable care. Reasonable care is that degree of care
  129  which a reasonably careful licensee, individual person, or
  130  entity would use under like circumstances.
  131         (6)(4) In a any claim for a residents’ resident’s rights
  132  violation or for negligence by a nurse licensed under part I of
  133  chapter 464, such nurse has shall have the duty to exercise care
  134  consistent with the prevailing professional standard of care for
  135  a nurse. The prevailing professional standard of care for a
  136  nurse is shall be that level of care, skill, and treatment
  137  which, in light of all relevant surrounding circumstances, is
  138  recognized as acceptable and appropriate by reasonably prudent
  139  similar nurses.
  140         (7)(5) Discovery of financial information for the purpose
  141  of determining the value of punitive damages may not be
  142  conducted had unless the plaintiff shows the court by proffer or
  143  evidence in the record that a reasonable basis exists to support
  144  a claim for punitive damages.
  145         (8)(6) In addition to any other standards for punitive
  146  damages, any award of punitive damages must be reasonable in
  147  light of the actual harm suffered by the resident and the
  148  egregiousness of the conduct that caused the actual harm to the
  149  resident.
  150         (9)(7) The resident or the resident’s legal representative
  151  shall serve a copy of a any complaint alleging in whole or in
  152  part a violation of any rights specified in this part to the
  153  agency for Health Care Administration at the time of filing the
  154  initial complaint with the clerk of the court for the county in
  155  which the action is pursued. The requirement of providing a copy
  156  of the complaint to the agency does not impair the resident’s
  157  legal rights or ability to seek relief for his or her claim.
  158         Section 2. Section 429.297, Florida Statutes, is amended to
  159  read:
  160         429.297 Punitive damages; pleading; burden of proof.—
  161         (1) A In any action for damages brought under this part, no
  162  claim for punitive damages may not be brought under this part
  163  shall be permitted unless there is a reasonable showing by
  164  admissible evidence submitted by the parties which provides in
  165  the record or proffered by the claimant which would provide a
  166  reasonable basis for recovery of such damages pursuant to this
  167  section.
  168         (a) The claimant may move to amend her or his complaint to
  169  assert a claim for punitive damages as allowed by the rules of
  170  civil procedure in accordance with evidentiary requirements
  171  provided in this section.
  172         (b)The court shall conduct a hearing to determine whether
  173  there is sufficient admissible evidence submitted by the parties
  174  to ensure that there is a reasonable basis to believe that the
  175  claimant, at trial, will be able to demonstrate by clear and
  176  convincing evidence that the recovery of such damages is
  177  warranted under a claim for direct liability as specified in
  178  subsection (2) or under a claim for vicarious liability as
  179  specified in subsection (3).
  180         (c) The rules of civil procedure must shall be liberally
  181  construed so as to allow the claimant discovery of evidence
  182  which appears reasonably calculated to lead to admissible
  183  evidence on the issue of punitive damages. No Discovery of
  184  financial worth may not shall proceed until after the pleading
  185  concerning punitive damages is approved by the court permitted.
  186         (2) A defendant may be held liable for punitive damages
  187  only if the trier of fact, by based on clear and convincing
  188  evidence, finds that a specific individual or corporate
  189  defendant actively and knowingly participated in intentional
  190  misconduct or actively and knowingly engaged in conduct that
  191  constitutes gross negligence and contributed to the loss,
  192  damages, or injury suffered by the claimant the defendant was
  193  personally guilty of intentional misconduct or gross negligence.
  194  As used in this section, the term:
  195         (b)(a) “Intentional misconduct” means that the defendant
  196  against whom punitive damages are sought had actual knowledge of
  197  the wrongfulness of the conduct and the high probability that
  198  injury or damage to the claimant would result and, despite that
  199  knowledge, intentionally pursued that course of conduct,
  200  resulting in injury or damage.
  201         (a)(b) “Gross negligence” means that the defendant’s
  202  conduct was so reckless or wanting in care that it constituted a
  203  conscious disregard or indifference to the life, safety, or
  204  rights of individuals persons exposed to such conduct.
  205         (3) In the case of vicarious liability of an individual,
  206  employer, principal, corporation, or other legal entity,
  207  punitive damages may not be imposed for the conduct of an
  208  employee or agent unless only if the conduct of the employee or
  209  agent meets the criteria specified in subsection (2) and an
  210  officer, director, or manager of the actual employer,
  211  corporation, or legal entity condoned, ratified, or consented to
  212  the specific conduct as provided in subsection (2):
  213         (a) The employer, principal, corporation, or other legal
  214  entity actively and knowingly participated in such conduct;
  215         (b) The officers, directors, or managers of the employer,
  216  principal, corporation, or other legal entity condoned,
  217  ratified, or consented to such conduct; or
  218         (c) The employer, principal, corporation, or other legal
  219  entity engaged in conduct that constituted gross negligence and
  220  that contributed to the loss, damages, or injury suffered by the
  221  claimant.
  222         (4) The plaintiff must establish at trial, by clear and
  223  convincing evidence, its entitlement to an award of punitive
  224  damages. The “greater weight of the evidence” burden of proof
  225  applies to a determination of the amount of damages.
  226         (5) This section is remedial in nature and shall take
  227  effect upon becoming a law.
  228         Section 3. The amendments to ss. 429.29 and 429.297,
  229  Florida Statutes, made by this act apply to causes of action
  230  that accrue on or after July 1, 2024.
  231         Section 4. This act shall take effect July 1, 2024.