Bill Summary – FastDemocracy

       Florida Senate - 2023                                    SB 1304
       
       
        
       By Senator Burton
       
       
       
       
       
       12-00993A-23                                          20231304__
                      A bill to be entitled                      
       An act relating to claims against long-term care
       facilities; amending s. 400.023, F.S.; providing
       requirements for admissible evidence for specified
       claims; authorizing certain individuals to provide
       certain expert opinions relating to such claims if
       they meet specified criteria; prohibiting an expert
       witness from testifying on a contingency fee basis;
       amending ss. 400.0233 and 429.293, F.S.; providing
       requirements for corroboration of reasonable grounds
       to initiate a claim for residents’ rights violation or
       negligence as to each prospective defendant; deleting
       a provision authorizing a licensed physician or
       registered nurse to be retained for specified
       purposes; repealing ss. 400.0235 and 429.295, F.S.,
       relating to specified actions not being applicable to
       claims for medical malpractice; amending ss. 400.0236
       and 429.296, F.S.; deleting provisions providing
       applicability of certain limitations; amending s.
       429.29, F.S.; providing requirements for an exclusive
       cause of action for residents’ rights violations or
       negligence to be brought against specified
       individuals; providing definitions; prohibiting such
       action from being asserted against certain individuals
       or entities under certain circumstances; providing
       exceptions; providing requirements for admissible
       evidence for specified claims; providing requirements
       for an individual to provide expert opinions;
       prohibiting an expert witness from testifying on a
       contingency fee basis; providing immunity from
       liability for certain individuals; providing that such
       actions are not claims for medical negligence;
       amending s. 429.294, F.S.; providing requirements for
       residents’ records; prohibiting a facility from being
       cited by the Agency for Health Care Administration
       under certain circumstances; providing construction;
       amending s. 429.297, F.S.; revising requirements for
       recovery of certain damages and liability for such
       damages; deleting obsolete language; creating s.
       429.299, F.S.; providing requirements for a licensee
       to satisfy a judgment or settlement agreement;
       providing applicability; providing an effective date.
        
Be It Enacted by the Legislature of the State of Florida:

       Section 1. Present subsections (5), (6), (7), (8), and (9)
of section 400.023, Florida Statutes, are redesignated as
subsections (6), (7), (8), (14), and (15), respectively, new
subsections (5) and (9) and subsections (10) through (13) are
added to that section, and subsection (4) and present subsection
(9) of that section are amended, to read:
       400.023 Civil enforcement.—
       (4) In a claim brought pursuant to this part alleging a
violation of residents’ rights or negligence causing injury to
or the death of a resident, the claimant has the burden of
proving, by a preponderance of the evidence, that:
       (a) The defendant owed a duty to the resident;
       (b) The defendant breached the duty to the resident;
       (c) The breach of the duty is a legal cause of loss,
injury, death, or damage to the resident; and
       (d) The resident sustained loss, injury, death, or damage
as a result of the breach.

This part does not create strict liability. A violation of the
rights provided set forth in s. 400.022, in any other standard
or guidelines specified in this part, or in any applicable
administrative standard or guidelines of this state or a federal
regulatory agency may be is evidence of negligence but is not
considered negligence per se.
       (5) Notwithstanding this section, evidence of a violation
described in subsection (4), including licensure inspections and
surveys, cited deficiencies, plans of correction, or sanctions
imposed by the agency, is admissible as evidence in a claim
under this part only if the evidence relates to a material
violation of the standards or guidelines specified in this part
or an applicable administrative standard or guideline relating
to:
       (a) The alleged occurrence and the particular individual
whose injury or death is the basis for the claim; or
       (b) A finding by the agency which directly involves
substantially similar conduct that occurred at the nursing home
facility within a period of 12 months before the date of the
alleged occurrence that is the basis for the claim.
       (9) An individual may provide an expert opinion on the
appropriate degree of reasonable care that a reasonably careful
licensee, individual, or entity would use under like
circumstances in operating a nursing home facility as to
administrative and other nonclinical issues if the individual
has substantial knowledge in regard to operating a nursing home
facility in the state by virtue of his or her training and
experience during the 3 years immediately preceding the date of
the alleged occurrence that is the basis for the claim.
       (10) An individual who holds an active and valid health
care professional license issued by the Department of Health may
provide an expert opinion concerning the prevailing professional
standard of care that a reasonably prudent similar health care
professional would use under the relevant surrounding
circumstances. The expert witness must have devoted professional
time during the 3 years immediately preceding the date of the
alleged occurrence that is the basis for the claim to:
       (a) The active clinical practice of, or active clinical
consultation with respect to, the care and treatment of patients
residing in a nursing home facility;
       (b) The instruction of students or active work in an
accredited health professional school or accredited residency or
clinical research program with respect to the care and treatment
of patients residing in a nursing home facility; or
       (c) The active clinical practice of, or active clinical
consultation with respect to, the care and treatment of patients
who are 65 years of age or older.
       (11) A physician licensed under chapter 458 or chapter 459
who qualifies to provide an expert opinion under subsection (10)
and who, by reason of active clinical practice or instruction of
students, has knowledge of the applicable standard of care for
physicians or other medical support staff, may give expert
testimony in a negligence action with respect to the
professional standard of care of such physicians or other
medical support staff.
       (12) A nurse licensed to practice professional nursing
under chapter 464 who qualifies to provide an expert opinion
under subsection (10) and who, by reason of active clinical
practice or instruction of students, has knowledge of the
applicable standard of care for nurses or other medical support
staff, may give expert testimony in a negligence action with
respect to the professional standard of care of such nurses or
other medical support staff.
       (13) An expert witness may not testify on a contingency fee
basis.
       (15)(9) An action under this part for a violation of the
rights or negligence recognized herein is not a claim for
medical negligence; however, malpractice, and s. 768.21(8)
applies does not apply to a claim alleging death of a the
resident.
       Section 2. Subsections (1), (2), (4), and (5) of section
400.0233, Florida Statutes, are amended to read:
       400.0233 Presuit notice; investigation; notification of
violation of residents’ resident’s rights or alleged negligence;
claims evaluation procedure; informal discovery; review;
settlement offer; mediation.—
       (1) As used in ss. 400.023-400.0238 this section, the term:
       (a) “Claim for residents’ resident’s rights violation or
negligence” means a negligence claim alleging injury to or the
death of a resident arising out of an asserted violation of the
rights of a resident under s. 400.022 or an asserted deviation
from the applicable standard of care.
       (b) “Insurer” means any self-insurer authorized under s.
627.357, liability insurance carrier, joint underwriting
association, or uninsured prospective defendant.
       (2) Before Prior to filing a claim for residents’ rights a
violation of a resident’s rights or a claim for negligence, a
claimant alleging injury to or the death of a resident shall
notify each prospective defendant by certified mail, return
receipt requested, of an asserted violation of a resident’s
rights provided in s. 400.022 or deviation from the standard of
care. Such notification shall include an identification of the
rights the prospective defendant has violated and the negligence
alleged to have caused the incident or incidents and a brief
description of the injuries sustained by the resident which are
reasonably identifiable at the time of notice. The notice shall
contain a certificate of counsel that counsel’s reasonable
investigation gave rise to a good faith belief that grounds
exist for an action against each prospective defendant.
Corroboration of reasonable grounds to initiate a claim for
residents’ rights violation or negligence as to each prospective
defendant shall be provided by the claimant’s submission of a
written expert opinion from an individual qualified as an expert
pursuant to s. 400.023 at the time the notice of intent to file
a claim is mailed, which stated opinion must corroborate
reasonable grounds to support the claim.
       (4) The notification of a violation of residents’ a
resident’s rights or alleged negligence shall be served within
the applicable statute of limitations period; however, during
the 75-day period, the statute of limitations is tolled as to
all prospective defendants. Upon stipulation by the parties, the
75-day period may be extended and the statute of limitations is
tolled during any such extension. Upon receiving written notice
by certified mail, return receipt requested, of termination of
negotiations in an extended period, the claimant shall have 60
days or the remainder of the period of the statute of
limitations, whichever is greater, within which to file suit.
       (5) A No statement, discussion, written document, report,
or other work product generated by presuit claims evaluation
procedures under this section is not discoverable or admissible
in any civil action for any purpose by the opposing party. All
participants, including, but not limited to, physicians,
investigators, witnesses, and employees or associates of the
defendant, are immune from civil liability arising from
participation in the presuit claims evaluation procedure. Any
licensed physician or registered nurse may be retained by either
party to provide an opinion regarding the reasonable basis of
the claim. The presuit opinions of the expert are not
discoverable or admissible in any civil action for any purpose
by the opposing party.
       Section 3. Section 400.0235, Florida Statutes, is repealed.
       Section 4. Subsection (3) of section 400.0236, Florida
Statutes, is amended to read:
       400.0236 Statute of limitations.—
       (3) This section shall apply to causes of action that have
accrued prior to the effective date of this section; however,
any such cause of action that would not have been barred under
prior law may be brought within the time allowed by prior law or
within 2 years after the effective date of this section,
whichever is earlier, and will be barred thereafter. In actions
where it can be shown that fraudulent concealment or intentional
misrepresentation of fact prevented the discovery of the injury,
the period of limitations is extended forward 2 years from the
time that the injury is discovered with the exercise of due
diligence, but in no event more than 4 years from the effective
date of this section.
       Section 5. Section 429.29, Florida Statutes, is amended to
read:
       429.29 Civil actions to enforce rights.—
       (1) An exclusive cause of action for residents’ Any person
or resident whose rights violation or negligence as specified
under in this part which alleges direct or vicarious liability
for the personal injury or death of a resident arising from such
rights violation or negligence and which seeks damages for such
injury or death may be brought only against the licensee, the
licensee’s management or consulting company, the licensee’s
managing employees, and any direct caregivers, whether employees
or contractors are violated shall have a cause of action.
       (a) The action may be brought by the resident or his or her
guardian, or by an individual a person or organization acting on
behalf of a resident with the consent of the resident or his or
her guardian, or by the personal representative of the estate of
a deceased resident regardless of the cause of death.
       (b) If the action alleges a claim for residents’ the
resident’s rights violation or for negligence that caused the
death of the resident, the claimant shall, after the verdict,
but before the judgment is entered, be required to elect either
survival damages pursuant to s. 46.021 or wrongful death damages
pursuant to s. 768.21. If the action alleges a claim for
residents’ the resident’s rights violation or for negligence
that did not cause the death of the resident, the personal
representative of the estate may recover damages for the
negligence that caused injury to the resident.
       (c) The action may be brought in any court of competent
jurisdiction to enforce such rights and to recover actual
damages, and punitive damages for violation of the rights of a
resident or negligence.
       (d) A Any resident who prevails in seeking injunctive
relief or a claim for an administrative remedy is entitled to
recover the costs of the action and a reasonable attorney fees
attorney’s fee assessed against the defendant of up to not to
exceed $25,000. Such attorney fees shall be awarded solely for
the injunctive or administrative relief and not for any claim or
action for damages whether such claim or action is brought
together with a request for an injunction or administrative
relief or as a separate action, except as provided under s.
768.79 or the Florida Rules of Civil Procedure. Sections 429.29
429.298 provide the exclusive remedy for a cause of action for
recovery of damages for the personal injury or death of a
resident arising out of negligence or a violation of rights
specified in s. 429.28.
       (e) This section does not preclude theories of recovery not
arising out of negligence or s. 429.28 which are available to a
resident or to the agency. The provisions of Chapter 766 does do
not apply to any cause of action brought under ss. 429.29
429.298. An action against any other individual or entity may be
brought only pursuant to subsection (3).
       (2) As used in this section, the term:
       (a) “Licensee” means an individual, corporation,
partnership, firm, association, governmental entity, or other
entity that is issued a permit, registration, certificate, or
license by the agency and is legally responsible for all aspects
of the operation of the facility.
       (b) “Management or consulting company” means an individual
or entity that contracts with, or receives a fee from, a
licensee to provide any of the following services for a
facility:
       1. Hiring or firing the administrator;
       2. Controlling or having control over the staffing levels
at the facility;
       3. Having control over the budget of the facility; or
       4. Implementing and enforcing the policies and procedures
of the facility.
       (c)“Passive investor” means an individual or entity that
has an interest in a facility but does not participate in the
decisionmaking or operations of the facility.
       (3) An exclusive cause of action for residents’ rights
violation or negligence may not be asserted against an
individual or entity other than the licensee, the lice