F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 1 A bill to be entitled 2 An act relating to claims against long-term care 3 facilities; amending s. 400.023, F.S.; providing 4 requirements for admissible evidence for specified 5 claims; providing requirements for an individual to 6 provide expert opinions; prohibiting an expert witness 7 from testifying on a contingency fee basis; amending 8 ss. 400.0233 and 429.293, F.S.; providing requirements 9 for corroboration of reasonable grounds to initiate a 10 claim as to each prospective defendant for residents' 11 rights violation or alleged negligence; removing a 12 provision authorizing a licensed physician or nurse to 13 be retained for specified purposes; repealing ss. 14 400.0235 and 429.295, F.S., relating to specified 15 actions not being claims for medical malpractice; 16 amending ss. 400.0236 and 429.296, F.S.; removing 17 provisions providing applicability of certain 18 limitations; amending s. 429.29, F.S.; providing 19 requirements for an exclusive cause of action for 20 residents' rights violation or negligence to be 21 brought against specified individuals; providing 22 definitions; prohibiting such action from being 23 asserted against certain individuals or entities under 24 certain circumstances; providing exceptions; providing 25 requirements for admissible evidence for specified Page 1 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 26 claims; providing requirements for an individual to 27 provide expert opinions; prohibiting an expert witness 28 from testifying on a contingency fee basis; providing 29 immunity from liability for certain individuals; 30 providing that such actions are not claims for medical 31 negligence; amending s. 429.294, F.S.; providing 32 requirements for residents' records; prohibiting a 33 facility from being cited by the Agency for Health 34 Care Administration under certain circumstances; 35 providing construction; amending s. 429.297, F.S.; 36 revising requirements for recovery of certain damages 37 and liability of such damages; removing an obsolete 38 date; creating s. 429.299, F.S.; providing 39 requirements for a licensee to satisfy a judgment or 40 settlement agreement; providing applicability; making 41 technical changes; providing an effective date. 42 43 Be It Enacted by the Legislature of the State of Florida: 44 45 Section 1. Subsections (5), (6), (7), (8), and (9) of 46 section 400.023, Florida Statutes, are renumbered as subsections 47 (6), (7), (8), (14), and (15), respectively, subsection (4) and 48 present subsection (9) are amended, and new subsections (5) and 49 (9) and subsections (10) through (13) are added to that section, 50 to read: Page 2 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 51 400.023 Civil enforcement.— 52 (4) In a claim brought pursuant to this part alleging a 53 violation of residents' rights or negligence causing injury to 54 or the death of a resident, the claimant has the burden of 55 proving, by a preponderance of the evidence, that: 56 (a) The defendant owed a duty to the resident; 57 (b) The defendant breached the duty to the resident; 58 (c) The breach of the duty is a legal cause of loss, 59 injury, death, or damage to the resident; and 60 (d) The resident sustained loss, injury, death, or damage 61 as a result of the breach. 62 63 This part does not create strict liability. A violation of the 64 rights provided set forth in s. 400.022, in any other standard 65 or guidelines specified in this part, or in any applicable 66 administrative standard or guidelines of this state or a federal 67 regulatory agency may be is evidence of negligence but is not 68 considered negligence per se. 69 (5) Notwithstanding this section, evidence of a violation 70 described in subsection (4), including licensure inspections 71 and surveys, cited deficiencies, plans of correction, or 72 sanctions imposed by the agency, is admissible as evidence in a 73 claim under this part only if the evidence relates to a 74 material violation of the standards or guidelines specified in 75 this part or an applicable administrative standard or guideline Page 3 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 76 relating to: 77 (a) The alleged occurrence and the particular individual 78 whose injury or death is the basis for the claim; or 79 (b) A finding by the agency that directly involves 80 substantially similar conduct that occurred at the nursing home 81 facility within a period of 12 months before the date of the 82 alleged occurrence that is the basis for the claim. 83 (9) An individual may provide an expert opinion on the 84 appropriate degree of reasonable care that a reasonably careful 85 licensee, individual, or entity would use under like 86 circumstances in operating a nursing home facility as to 87 administrative and other nonclinical issues if the individual 88 has substantial knowledge in operating a nursing home facility 89 in the state by virtue of his or her training and experience 90 during the 3 years immediately preceding the date of the alleged 91 occurrence that is the basis for the claim. 92 (10) An individual who holds an active and valid health 93 care professional license issued by the Department of Health may 94 provide an expert opinion concerning the prevailing professional 95 standard of care that a reasonably prudent similar health care 96 professional would use under the relevant surrounding 97 circumstances. The expert witness must have devoted professional 98 time during the 3 years immediately preceding the date of the 99 alleged occurrence that is the basis for the claim to: 100 (a) The active clinical practice of, or active clinical Page 4 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 101 consultation with respect to, the care and treatment of patients 102 residing in a nursing home facility; 103 (b) The instruction of students or active work in an 104 accredited health professional school or accredited residency 105 or clinical research program with respect to the care and 106 treatment of patients residing in a nursing home facility; or 107 (c) The active clinical practice of, or active clinical 108 consultation with respect to, the care and treatment of 109 patients who are 65 years of age or older. 110 (11) A physician licensed under chapter 458 or chapter 459 111 who qualifies to provide an expert opinion under subsection 112 (10) and who, by reason of active clinical practice or 113 instruction of students, has knowledge of the applicable 114 standard of care for physicians or other medical support staff, 115 may give expert testimony in a negligence action with respect 116 to the professional standard of care of such physicians or 117 other medical support staff. 118 (12) A nurse licensed to practice professional nursing 119 under chapter 464 who qualifies to provide an expert opinion 120 under subsection (10) and who, by reason of active clinical 121 practice or instruction of students, has knowledge of the 122 applicable standard of care for nurses or other medical support 123 staff, may give expert testimony in a negligence action with 124 respect to the professional standard of care of such nurses or 125 other medical support staff. Page 5 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 126 (13) An expert witness may not testify on a contingency 127 fee basis. 128 (15)(9) An action under this part for a violation of the 129 rights or negligence recognized herein is not a claim for 130 medical negligence; however, malpractice, and s. 768.21(8) 131 applies does not apply to a claim alleging death of a the 132 resident. 133 Section 2. Subsections (1), (2), (4), and (5) of section 134 400.0233, Florida Statutes, are amended to read: 135 400.0233 Presuit notice; investigation; notification of 136 violation of residents' resident's rights or alleged negligence; 137 claims evaluation procedure; informal discovery; review; 138 settlement offer; mediation.— 139 (1) As used in ss. 400.023-400.0238 this section, the 140 term: 141 (a) "Claim for residents' resident's rights violation or 142 negligence" means a negligence claim alleging injury to or the 143 death of a resident arising out of an asserted violation of the 144 rights of a resident under s. 400.022 or an asserted deviation 145 from the applicable standard of care. 146 (b) "Insurer" means any self-insurer authorized under s. 147 627.357, liability insurance carrier, joint underwritin g 148 association, or uninsured prospective defendant. 149 (2) Before Prior to filing a claim for residents' rights a 150 violation of a resident's rights or a claim for negligence, a Page 6 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 151 claimant alleging injury to or the death of a resident shall 152 notify each prospective defendant by certified mail, return 153 receipt requested, of an asserted violation of a resident's 154 rights provided in s. 400.022 or deviation from the standard of 155 care. Such notification shall include an identification of the 156 rights the prospective defendant has violated and the negligence 157 alleged to have caused the incident or incidents and a brief 158 description of the injuries sustained by the resident which are 159 reasonably identifiable at the time of notice. The notice shall 160 contain a certificate of counsel that counsel's reasonable 161 investigation gave rise to a good faith belief that grounds 162 exist for an action against each prospective defendant. 163 Corroboration of reasonable grounds to initiate a claim as to 164 each prospective defendant for residents' rights vi olation or 165 negligence shall be provided by the claimant's submission of a 166 written expert opinion from an individual qualified as an expert 167 pursuant to s. 400.023 at the time the notice of intent to file 168 a claim is mailed, which stated opinion must corrobor ate 169 reasonable grounds to support the claim. 170 (4) The notification of a violation of residents' a 171 resident's rights or alleged negligence shall be served within 172 the applicable statute of limitations period; however, during 173 the 75-day period, the statute of limitations is tolled as to 174 all prospective defendants. Upon stipulation by the parties, the 175 75-day period may be extended and the statute of limitations is Page 7 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 176 tolled during any such extension. Upon receiving written notice 177 by certified mail, return receipt requested, of termination of 178 negotiations in an extended period, the claimant shall have 60 179 days or the remainder of the period of the statute of 180 limitations, whichever is greater, within which to file suit. 181 (5) A No statement, discussion, written document, report, 182 or other work product generated by presuit claims evaluation 183 procedures under this section is not discoverable or admissible 184 in any civil action for any purpose by the opposing party. All 185 participants, including, but not limited to, physicians, 186 investigators, witnesses, and employees or associates of the 187 defendant, are immune from civil liability arising from 188 participation in the presuit claims evaluation procedure. Any 189 licensed physician or registered nurse may be retained by either 190 party to provide an opinion regarding the reasonable basis of 191 the claim. The presuit opinions of the expert are not 192 discoverable or admissible in any civil action for any purpose 193 by the opposing party. 194 Section 3. Section 400.0235, Florida Statutes, is 195 repealed. 196 Section 4. Subsection (3) of section 400.0236, Florida 197 Statutes, is amended to read: 198 400.0236 Statute of limitations.— 199 (3) This section shall apply to causes of action that have 200 accrued prior to the effective date of this section; however, Page 8 of 30 CODING: Words stricken are deletions; words underlined are additions. hb1029-00 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S HB 1029 2023 201 any such cause of action that would not have been barred under 202 prior law may be brought within the time allowed by prior law or 203 within 2 years after the effective date of this section, 204 whichever is earlier, and will be barred thereafter. In actions 205 where it can be shown that fraudulent concealment or intentional 206 misrepresentation of fact prevented the discovery of the injury, 207 the period of limitations is extended forward 2 years from the 208 time that the injury is discovered with the exercise of due 209 diligence, but in no event more than 4 years from the effective 210 date of this section.