Florida Senate - 2023 SB 1304



By Senator Burton





12-00993A-23 20231304__
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; authorizing certain individuals to provide
6 certain expert opinions relating to such claims if
7 they meet specified criteria; prohibiting an expert
8 witness from testifying on a contingency fee basis;
9 amending ss. 400.0233 and 429.293, F.S.; providing
10 requirements for corroboration of reasonable grounds
11 to initiate a claim for residents’ rights violation or
12 negligence as to each prospective defendant; deleting
13 a provision authorizing a licensed physician or
14 registered nurse to be retained for specified
15 purposes; repealing ss. 400.0235 and 429.295, F.S.,
16 relating to specified actions not being applicable to
17 claims for medical malpractice; amending ss. 400.0236
18 and 429.296, F.S.; deleting provisions providing
19 applicability of certain limitations; amending s.
20 429.29, F.S.; providing requirements for an exclusive
21 cause of action for residents’ rights violations or
22 negligence to be brought against specified
23 individuals; providing definitions; prohibiting such
24 action from being asserted against certain individuals
25 or entities under certain circumstances; providing
26 exceptions; providing requirements for admissible
27 evidence for specified claims; providing requirements
28 for an individual to provide expert opinions;
29 prohibiting an expert witness from testifying on a
30 contingency fee basis; providing immunity from
31 liability for certain individuals; providing that such
32 actions are not claims for medical negligence;
33 amending s. 429.294, F.S.; providing requirements for
34 residents’ records; prohibiting a facility from being
35 cited by the Agency for Health Care Administration
36 under certain circumstances; providing construction;
37 amending s. 429.297, F.S.; revising requirements for
38 recovery of certain damages and liability for such
39 damages; deleting obsolete language; creating s.
40 429.299, F.S.; providing requirements for a licensee
41 to satisfy a judgment or settlement agreement;
42 providing applicability; providing an effective date.
43
44 Be It Enacted by the Legislature of the State of Florida:
45
46 Section 1. Present subsections (5), (6), (7), (8), and (9)
47 of section 400.023, Florida Statutes, are redesignated as
48 subsections (6), (7), (8), (14), and (15), respectively, new
49 subsections (5) and (9) and subsections (10) through (13) are
50 added to that section, and subsection (4) and present subsection
51 (9) of that section are amended, to read:
52 400.023 Civil enforcement.—
53 (4) In a claim brought pursuant to this part alleging a
54 violation of residents’ rights or negligence causing injury to
55 or the death of a resident, the claimant has the burden of
56 proving, by a preponderance of the evidence, that:
57 (a) The defendant owed a duty to the resident;
58 (b) The defendant breached the duty to the resident;
59 (c) The breach of the duty is a legal cause of loss,
60 injury, death, or damage to the resident; and
61 (d) The resident sustained loss, injury, death, or damage
62 as a result of the breach.
63
64 This part does not create strict liability. A violation of the
65 rights provided set forth in s. 400.022, in any other standard
66 or guidelines specified in this part, or in any applicable
67 administrative standard or guidelines of this state or a federal
68 regulatory agency may be is evidence of negligence but is not
69 considered negligence per se.
70 (5) Notwithstanding this section, evidence of a violation
71 described in subsection (4), including licensure inspections and
72 surveys, cited deficiencies, plans of correction, or sanctions
73 imposed by the agency, is admissible as evidence in a claim
74 under this part only if the evidence relates to a material
75 violation of the standards or guidelines specified in this part
76 or an applicable administrative standard or guideline relating
77 to:
78 (a) The alleged occurrence and the particular individual
79 whose injury or death is the basis for the claim; or
80 (b) A finding by the agency which directly involves
81 substantially similar conduct that occurred at the nursing home
82 facility within a period of 12 months before the date of the
83 alleged occurrence that is the basis for the claim.
84 (9) An individual may provide an expert opinion on the
85 appropriate degree of reasonable care that a reasonably careful
86 licensee, individual, or entity would use under like
87 circumstances in operating a nursing home facility as to
88 administrative and other nonclinical issues if the individual
89 has substantial knowledge in regard to operating a nursing home
90 facility in the state by virtue of his or her training and
91 experience during the 3 years immediately preceding the date of
92 the alleged occurrence that is the basis for the claim.
93 (10) An individual who holds an active and valid health
94 care professional license issued by the Department of Health may
95 provide an expert opinion concerning the prevailing professional
96 standard of care that a reasonably prudent similar health care
97 professional would use under the relevant surrounding
98 circumstances. The expert witness must have devoted professional
99 time during the 3 years immediately preceding the date of the
100 alleged occurrence that is the basis for the claim to:
101 (a) The active clinical practice of, or active clinical
102 consultation with respect to, the care and treatment of patients
103 residing in a nursing home facility;
104 (b) The instruction of students or active work in an
105 accredited health professional school or accredited residency or
106 clinical research program with respect to the care and treatment
107 of patients residing in a nursing home facility; or
108 (c) The active clinical practice of, or active clinical
109 consultation with respect to, the care and treatment of patients
110 who are 65 years of age or older.
111 (11) A physician licensed under chapter 458 or chapter 459
112 who qualifies to provide an expert opinion under subsection (10)
113 and who, by reason of active clinical practice or instruction of
114 students, has knowledge of the applicable standard of care for
115 physicians or other medical support staff, may give expert
116 testimony in a negligence action with respect to the
117 professional standard of care of such physicians or other
118 medical support staff.
119 (12) A nurse licensed to practice professional nursing
120 under chapter 464 who qualifies to provide an expert opinion
121 under subsection (10) and who, by reason of active clinical
122 practice or instruction of students, has knowledge of the
123 applicable standard of care for nurses or other medical support
124 staff, may give expert testimony in a negligence action with
125 respect to the professional standard of care of such nurses or
126 other medical support staff.
127 (13) An expert witness may not testify on a contingency fee
128 basis.
129 (15)(9) An action under this part for a violation of the
130 rights or negligence recognized herein is not a claim for
131 medical negligence; however, malpractice, and s. 768.21(8)
132 applies does not apply to a claim alleging death of a the
133 resident.
134 Section 2. Subsections (1), (2), (4), and (5) of section
135 400.0233, Florida Statutes, are amended to read:
136 400.0233 Presuit notice; investigation; notification of
137 violation of residents’ resident’s rights or alleged negligence;
138 claims evaluation procedure; informal discovery; review;
139 settlement offer; mediation.—
140 (1) As used in ss. 400.023-400.0238 this section, the 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 underwriting
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
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 for
164 residents’ rights violation or negligence as to each prospective
165 defendant 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 corroborate
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
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 repealed.
195 Section 4. Subsection (3) of section 400.0236, Florida
196 Statutes, is amended to read:
197 400.0236 Statute of limitations.—
198 (3) This section shall apply to causes of action that have
199 accrued prior to the effective date of this section; however,
200 any such cause of action that would not have been barred under
201 prior law may be brought within the time allowed by prior law or
202 within 2 years after the effective date of this section,
203 whichever is earlier, and will be barred thereafter. In actions
204 where it can be shown that fraudulent concealment or intentional
205 misrepresentation of fact prevented the discovery of the injury,
206 the period of limitations is extended forward 2 years from the
207 time that the injury is discovered with the exercise of due
208 diligence, but in no event more than 4 years from the effective
209 date of this section.
210 Section 5. Section 429.29, Florida Statutes, is amended to
211 read:
212 429.29 Civil actions to enforce rights.—
213 (1) An exclusive cause of action for residents’ Any person
214 or resident whose rights violation or negligence as specified
215 under in this part which alleges direct or vicarious liability
216 for the personal injury or death of a resident arising from such
217 rights violation or negligence and which seeks damages for such
218 injury or death may be brought only against the licensee, the
219 licensee’s management or consulting company, the licensee’s
220 managing employees, and any direct caregivers, whether employees
221 or contractors are violated shall have a cause of action.
222 (a) The action may be brought by the resident or his or her
223 guardian, or by an individual a person or organization acting on
224 behalf of a resident with the consent of the resident or his or
225 her guardian, or by the personal representative of the estate of
226 a deceased resident regardless of the cause of death.
227 (b) If the action alleges a claim for residents’ the
228 resident’s rights violation or for negligence that caused the
229 death of the resident, the claimant shall, after the verdict,
230 but before the judgment is entered, be required to elect either
231 survival damages pursuant to s. 46.021 or wrongful death damages
232 pursuant to s. 768.21. If the action alleges a claim for
233 residents’ the resident’s rights violation or for negligence
234 that did not cause the death of the resident, the personal
235 representative of the estate may recover damages for the
236 negligence that caused injury to the resident.
237 (c) The action may be brought in any court of competent
238 jurisdiction to enforce such rights and to recover actual
239 damages, and punitive damages for violation of the rights of a
240 resident or negligence.
241 (d) A Any resident who prevails in seeking injunctive
242 relief or a claim for an administrative remedy is entitled to
243 recover the costs of the action and a reasonable attorney fees
244 attorney’s fee assessed against the defendant of up to not to
245 exceed $25,000. Such attorney fees shall be awarded solely for
246 the injunctive or administrative relief and not for any claim or
247 action for damages whether such claim or action is brought
248 together with a request for an injunction or administrative
249 relief or as a separate action, except as provided under s.
250 768.79 or the Florida Rules of Civil Procedure. Sections 429.29
251 429.298 provide the exclusive remedy for a cause of action for
252 recovery of damages for the personal injury or death of a
253 resident arising out of negligence or a violation of rights
254 specified in s. 429.28.
255 (e) This section does not preclude theories of recovery not
256 arising out of negligence or s. 429.28 which are available to a
257 resident or to the agency. The provisions of Chapter 766 does do
258 not apply to any cause of action brought under ss. 429.29
259 429.298. An action against any other individual or entity may be
260 brought only pursuant to subsection (3).
261 (2) As used in this section, the term:
262 (a) “Licensee” means an individual, corporation,
263 partnership, firm, association, governmental entity, or other
264 entity that is issued a permit, registration, certificate, or
265 license by the agency and is legally responsible for all aspects
266 of the operation of the facility.
267 (b) “Management or consulting company” means an individual
268 or entity that contracts with, or receives a fee from, a
269 licensee to provide any of the following services for a
270 facility:
271 1. Hiring or firing the administrator;
272 2. Controlling or having control over the staffing levels
273 at the facility;
274 3. Having control over the budget of the facility; or
275 4. Implementing and enforcing the policies and procedures
276 of the facility.
277 (c)“Passive investor” means an individual or entity that
278 has an interest in a facility but does not participate in the
279 decisionmaking or operations of the facility.
280 (3) An exclusive cau