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
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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:
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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
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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
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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.
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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
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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
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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,
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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.