Florida Senate - 2024                              CS for SB 238
       By the Committee on Judiciary; and Senator Burton
       590-02612-24                                           2024238c1
    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 company or active participant” means an
   27  individual or entity that contracts or receives a fee to provide
   28  any of the following services for a facility:
   29         1.Hiring or firing the administrator or director of
   30  nursing;
   31         2.Controlling or having control over staffing levels at
   32  the facility;
   33         3.Having control over the budget of the facility;
   34         4.Implementing and enforcing the policies and procedures
   35  of the facility; or
   36         5.Receiving and controlling a line of credit, loan, or
   37  other credit instrument that is used either in whole or in part
   38  by, or for the benefit of, the subject facility where a resident
   39  resides or resided during the subject residency.
   40         (c)“Passive investor” means an individual or entity that
   41  has an interest in a facility but does not participate in the
   42  decisionmaking or operations of the facility.
   43         (2)An exclusive cause of action for a residents’ Any
   44  person or resident whose rights violation or for negligence as
   45  specified under in this part which alleges direct or vicarious
   46  liability for the personal injury or death of a resident arising
   47  from such rights violation or negligence and which seeks damages
   48  for such injury or death may be brought only against the
   49  licensee, the licensee’s management company or active
   50  participant, the licensee’s managing employees, or any direct
   51  caregivers, whether employees or contractors. A passive investor
   52  is not liable under this section. An action against any other
   53  individual or entity may be brought only pursuant to subsection
   54  (3) are violated shall have a cause of action.
   55         (a) The action may be brought by the resident or his or her
   56  guardian, or by an individual a person or organization acting on
   57  behalf of a resident with the consent of the resident or his or
   58  her guardian, or by the personal representative of the estate of
   59  a deceased resident regardless of the cause of death.
   60         (b) If the action alleges a claim for a residents’ the
   61  resident’s rights violation or for negligence that caused the
   62  death of the resident, the claimant, after the verdict, but
   63  before the judgment is entered, must shall be required to elect
   64  either survival damages pursuant to s. 46.021 or wrongful death
   65  damages pursuant to s. 768.21. If the action alleges a claim for
   66  a residents’ the resident’s rights violation or for negligence
   67  that did not cause the death of the resident, the personal
   68  representative of the estate may recover damages for the
   69  negligence that caused injury to the resident.
   70         (c) The action may be brought in any court of competent
   71  jurisdiction to enforce such rights and to recover actual
   72  damages, and punitive damages for the residents’ rights
   73  violation of the rights of a resident or negligence.
   74         (d)A Any resident who prevails in seeking injunctive
   75  relief or a claim for an administrative remedy is entitled to
   76  recover the costs of the action and a reasonable attorney fees
   77  attorney’s fee assessed against the defendant of up not to
   78  exceed $25,000. Such attorney fees must shall be awarded solely
   79  for the injunctive or administrative relief and not for any
   80  claim or action for damages whether such claim or action is
   81  brought together with a request for an injunction or
   82  administrative relief or as a separate action, except as
   83  provided under s. 768.79 or the Florida Rules of Civil
   84  Procedure. Sections 429.29-429.298 provide the exclusive remedy
   85  for a cause of action for recovery of damages for the personal
   86  injury or death of a resident arising out of negligence or a
   87  violation of rights specified in s. 429.28.
   88         (e) This section does not preclude theories of recovery not
   89  arising out of negligence or s. 429.28 which are available to a
   90  resident or to the agency. The provisions of Chapter 766 does do
   91  not apply to any cause of action brought under ss. 429.29
   92  429.298.
   93         (3) A cause of action for a residents’ rights violation or
   94  for negligence may not be asserted against an individual or
   95  entity other than the licensee, the licensee’s management
   96  company or active participant, the licensee’s managing
   97  employees, and any direct caregivers, whether employees or
   98  contractors, unless, after a motion for leave to amend hearing,
   99  the court or an arbitration panel determines that there is
  100  sufficient evidence in the record or proffered by the claimant
  101  to establish a reasonable showing that:
  102         (a) The individual or entity owed a duty of reasonable care
  103  to the resident and breached that duty; and
  104         (b) The breach of that duty is a legal cause of loss,
  105  injury, death, or damage to the resident.
  107  For purposes of this subsection, if it is asserted in a proposed
  108  amended pleading that such cause of action arose out of the
  109  conduct, transaction, or occurrence set forth or attempted to be
  110  set forth in the original pleading, the proposed amendment
  111  relates back to the original pleading.
  112         (4)(2) In any claim brought pursuant to this part alleging
  113  a violation of residents’ resident’s rights or negligence
  114  causing injury to or the death of a resident, the claimant has
  115  shall have the burden of proving, by a preponderance of the
  116  evidence, that:
  117         (a) The defendant owed a duty to the resident;
  118         (b) The defendant breached the duty to the resident;
  119         (c) The breach of the duty is a legal cause of loss,
  120  injury, death, or damage to the resident; and
  121         (d) The resident sustained loss, injury, death, or damage
  122  as a result of the breach.
  124  Nothing in This part does not shall be interpreted to create
  125  strict liability. A violation of the rights provided set forth
  126  in s. 429.28 or in any other standard or guidelines specified in
  127  this part or in any applicable administrative standard or
  128  guidelines of this state or a federal regulatory agency may
  129  shall be evidence of negligence but is shall not be considered
  130  negligence per se.
  131         (5)(3) In a any claim brought pursuant to this section, a
  132  licensee, individual person, or entity has shall have a duty to
  133  exercise reasonable care. Reasonable care is that degree of care
  134  which a reasonably careful licensee, individual person, or
  135  entity would use under like circumstances.
  136         (6)(4) In a any claim for a residents’ resident’s rights
  137  violation or for negligence by a nurse licensed under part I of
  138  chapter 464, such nurse has shall have the duty to exercise care
  139  consistent with the prevailing professional standard of care for
  140  a nurse. The prevailing professional standard of care for a
  141  nurse is shall be that level of care, skill, and treatment
  142  which, in light of all relevant surrounding circumstances, is
  143  recognized as acceptable and appropriate by reasonably prudent
  144  similar nurses.
  145         (7)(5) Discovery of financial information for the purpose
  146  of determining the value of punitive damages may not be
  147  conducted had unless the plaintiff shows the court by proffer or
  148  evidence in the record that a reasonable basis exists to support
  149  a claim for punitive damages.
  150         (8)(6) In addition to any other standards for punitive
  151  damages, any award of punitive damages must be reasonable in
  152  light of the actual harm suffered by the resident and the
  153  egregiousness of the conduct that caused the actual harm to the
  154  resident.
  155         (9)(7) The resident or the resident’s legal representative
  156  shall serve a copy of a any complaint alleging in whole or in
  157  part a violation of any rights specified in this part to the
  158  agency for Health Care Administration at the time of filing the
  159  initial complaint with the clerk of the court for the county in
  160  which the action is pursued. The requirement of providing a copy
  161  of the complaint to the agency does not impair the resident’s
  162  legal rights or ability to seek relief for his or her claim.
  163         Section 2. Section 429.297, Florida Statutes, is amended to
  164  read:
  165         429.297 Punitive damages; pleading; burden of proof.—
  166         (1) A In any action for damages brought under this part, no
  167  claim for punitive damages may not be brought under this part
  168  shall be permitted unless there is a reasonable showing by
  169  admissible evidence submitted by the parties which provides in
  170  the record or proffered by the claimant which would provide a
  171  reasonable basis for recovery of such damages pursuant to this
  172  section.
  173         (a) The claimant may move to amend her or his complaint to
  174  assert a claim for punitive damages as allowed by the rules of
  175  civil procedure in accordance with evidentiary requirements
  176  provided in this section.
  177         (b)The court shall conduct a hearing to determine whether
  178  there is sufficient admissible evidence submitted by the parties
  179  to ensure that there is a reasonable basis to believe that the
  180  claimant, at trial, will be able to demonstrate by clear and
  181  convincing evidence that the recovery of such damages is
  182  warranted under a claim for direct liability as specified in
  183  subsection (2) or under a claim for vicarious liability as
  184  specified in subsection (3).
  185         (c) The rules of civil procedure must shall be liberally
  186  construed so as to allow the claimant discovery of evidence
  187  which appears reasonably calculated to lead to admissible
  188  evidence on the issue of punitive damages. No Discovery of
  189  financial worth may not shall proceed until after the pleading
  190  concerning punitive damages is approved by the court permitted.
  191         (2) A defendant may be held liable for punitive damages
  192  only if the trier of fact, by based on clear and convincing
  193  evidence, finds that a specific individual or corporate
  194  defendant actively and knowingly participated in intentional
  195  misconduct or actively and knowingly engaged in conduct that
  196  constitutes gross negligence and contributed to the loss,
  197  damages, or injury suffered by the claimant the defendant was
  198  personally guilty of intentional misconduct or gross negligence.
  199  As used in this section, the term:
  200         (b)(a) “Intentional misconduct” means that the defendant
  201  against whom punitive damages are sought had actual knowledge of
  202  the wrongfulness of the conduct and the high probability that
  203  injury or damage to the claimant would result and, despite that
  204  knowledge, intentionally pursued that course of conduct,
  205  resulting in injury or damage.
  206         (a)(b) “Gross negligence” means that the defendant’s
  207  conduct was so reckless or wanting in care that it constituted a
  208  conscious disregard or indifference to the life, safety, or
  209  rights of individuals persons exposed to such conduct.
  210         (3) In the case of vicarious liability of an individual,
  211  employer, principal, corporation, or other legal entity,
  212  punitive damages may not be imposed for the conduct of an
  213  employee or agent unless only if the conduct of the employee or
  214  agent meets the criteria specified in subsection (2) and an
  215  officer, director, or manager of the actual employer,
  216  corporation, or legal entity condoned, ratified, or consented to
  217  the specific conduct as provided in subsection (2):
  218         (a) The employer, principal, corporation, or other legal
  219  entity actively and knowingly participated in such conduct;
  220         (b) The officers, directors, or managers of the employer,
  221  principal, corporation, or other legal entity condoned,
  222  ratified, or consented to such conduct; or
  223         (c) The employer, principal, corporation, or other legal
  224  entity engaged in conduct that constituted gross negligence and
  225  that contributed to the loss, damages, or injury suffered by the
  226  claimant.
  227         (4) The plaintiff must establish at trial, by clear and
  228  convincing evidence, its entitlement to an award of punitive
  229  damages. The “greater weight of the evidence” burden of proof
  230  applies to a determination of the amount of damages.
  231         (5) This section is remedial in nature and shall take
  232  effect upon becoming a law.
  233         Section 3. The amendments to ss. 429.29 and 429.297,
  234  Florida Statutes, made by this act apply to causes of action
  235  that accrue on or after July 1, 2024.
  236         Section 4. This act shall take effect July 1, 2024.