Bill Text: FL S0670 | 2014 | Regular Session | Enrolled
Bill Title: Nursing Home Litigation
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Passed) 2014-06-13 - Chapter No. 2014-83 [S0670 Detail]
Download: Florida-2014-S0670-Enrolled.html
ENROLLED 2014 Legislature CS for CS for SB 670 2014670er 1 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. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 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 whoserights as specified 59 underinthis 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 contractorsare violated shall66havea 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 toelecteithersurvival 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 theanyviolation of the rights of a 86 resident or for negligence. 87 (d) AAnyresident who prevails in seeking injunctive 88 relief ora claim foran administrative remedy is entitled to 89 recover the costs of the action, andareasonable attorney fees 90attorney’sfeeassessed against the defendant of up tonot to91exceed$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 broughttogetherwith 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 400.023-400.023897provide the exclusive remedy for a cause of action for recovery98of damages for the personal injury or death of a nursing home99resident arising out of negligence or a violation of rights100specified 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 ofChapter 766 doesdo104 not apply to aanycause 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. 139 140 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 aanyclaim brought pursuant to this part 146 alleging a violation of residents’resident’srights or 147 negligence causing injury to or the death of a resident, the 148 claimant hasshall havethe 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. 156 157Nothing inThis part does notshall be interpreted tocreate 158 strict liability. A violation of the rights set forth in s. 159 400.022,orin 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 isshall162beevidence of negligence but isshallnotbeconsidered 163 negligence per se. 164 (5)(3)In aanyclaim brought pursuant to this section, a 165 licensee, individualperson, or entity hasshall havea duty to 166 exercise reasonable care. Reasonable care is that degree of care 167 which a reasonably careful licensee, individualperson, or 168 entity would use under like circumstances. 169 (6)(4)In aanyclaim for a residents’resident’srights 170 violation or negligence by a nurse licensed under part I of 171 chapter 464, such nurse hasshall havethe 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 isshall bethat 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 isshallnotbeliable for the medical 179 negligence of aanyphysician rendering care or treatment to the 180 resident except for the administrative services of a medical 181 director as required underinthis part.Nothing inThis 182 subsection does notshall be construed toprotect a licensee, 183 individualperson, 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 aanycomplaint alleging in whole or in 189 part a violation of any rights specified in this part to the 190 agencyfor Health Care Administrationat 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, andthe provisions ofs. 768.21(8) doesdonot 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) AInanyactionfor damagesbrought under this part,no203 claim for punitive damages may not be brought under this part 204shall be permittedunless there is areasonableshowing by 205 admissible evidence that has been submitted by the parties that 206 providesin the record or proffered by the claimant which would207providea 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.NoDiscovery of 225 financial worth may notshallproceed untilafterthe pleading 226 onconcerningpunitive damages is approved by the court 227permitted. 228 (2) A defendant may be held liable for punitive damages 229 only if the trier of fact, bybased onclear 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 claimantthe defendant was personally guilty of intentional235misconduct 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 athedefendant’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 unlessonly ifthe 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 legal256entity actively and knowingly participated in such conduct;257(b) The officers, directors, or managers of the employer,258principal, corporation, or other legal entity condoned,259ratified, or consented to such conduct; or260(c) The employer, principal, corporation, or other legal261entity engaged in conduct that constituted gross negligence and262that contributed to the loss, damages, or injury suffered by the263claimant. 264 (4) The plaintiff shallmustestablish 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 take269effect 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.