Bill Text: FL S0238 | 2024 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Claims Against Assisted Living Facilities
Spectrum: Bipartisan Bill
Status: (Failed) 2024-03-08 - Died in Rules [S0238 Detail]
Download: Florida-2024-S0238-Introduced.html
Bill Title: Claims Against Assisted Living Facilities
Spectrum: Bipartisan Bill
Status: (Failed) 2024-03-08 - Died in Rules [S0238 Detail]
Download: Florida-2024-S0238-Introduced.html
Florida Senate - 2024 SB 238 By Senator Burton 12-00319-24 2024238__ 1 A bill to be entitled 2 An act relating to claims against assisted living 3 facilities; amending s. 429.29, F.S.; defining terms; 4 providing requirements for the bringing of an 5 exclusive cause of action for residents’ rights 6 violations or negligence against specified 7 individuals; providing certain individuals with 8 immunity from liability for such claims; providing 9 exceptions; amending s. 429.297, F.S.; revising 10 requirements for recovery of certain damages and 11 liability for such damages; revising definitions; 12 deleting obsolete language; providing applicability; 13 providing an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17 Section 1. Section 429.29, Florida Statutes, is amended to 18 read: 19 429.29 Civil actions to enforce rights.— 20 (1) As used in this section, the term: 21 (a) “Licensee” means an individual, corporation, 22 partnership, firm, association, governmental entity, or other 23 entity that is issued a permit, registration, certificate, or 24 license by the agency and is legally responsible for all aspects 25 of the operation of the facility. 26 (b) “Management or consulting company” means an individual 27 or entity that contracts with, or receives a fee from, a 28 licensee to provide any of the following services for a 29 facility: 30 1. Hiring or firing the administrator or director of 31 nursing; 32 2. Controlling or having control over staffing levels; 33 3. Controlling or having control over the budget; or 34 4. Implementing and enforcing policies and procedures. 35 (c)“Passive investor” means an individual or entity that 36 has an interest in a facility but does not participate in the 37 decisionmaking or operations of the facility. 38 (2) An exclusive cause of action for a residents’Any39person or resident whoserights violation or for negligence as 40 specified underinthis part which alleges direct or vicarious 41 liability for the personal injury or death of a resident arising 42 from such rights violation or negligence and which seeks damages 43 for such injury or death may be brought only against the 44 licensee, the licensee’s management or consulting company, the 45 licensee’s managing employees, or any direct caregivers, whether 46 employees or contractors. A passive investor is not liable under 47 this section. An action against any other individual or entity 48 may be brought only pursuant to subsection (3)are violated49shall have a cause of action. 50 (a) The action may be brought by the resident or his or her 51 guardian, or by an individuala personor organization acting on 52 behalf of a resident with the consent of the resident or his or 53 her guardian, or by the personal representative of the estate of 54 a deceased resident regardless of the cause of death. 55 (b) If the action alleges a claim for a residents’the56resident’srights violation or for negligence that caused the 57 death of the resident, the claimant, after the verdict, but 58 before the judgment is entered, mustshallbe required toelect 59eithersurvival damages pursuant to s. 46.021 or wrongful death 60 damages pursuant to s. 768.21. If the action alleges a claim for 61 a residents’the resident’srights violation or for negligence 62 that did not cause the death of the resident, the personal 63 representative of the estate may recover damages for the 64 negligence that caused injury to the resident. 65 (c) The action may be brought in any court of competent 66 jurisdiction to enforce such rights and to recover actual 67damages,and punitive damages for the residents’ rights 68 violationof the rights of a residentor negligence. 69 (d) AAnyresident who prevails in seeking injunctive 70 relief ora claim foran administrative remedy is entitled to 71 recover the costs of the action andareasonable attorney fees 72attorney’s feeassessed against the defendant of upnotto 73exceed$25,000. Such attorney fees mustshallbe awarded solely 74 for the injunctive or administrative relief and not for any 75 claim or action for damages whether such claim or action is 76 broughttogetherwith a request for an injunction or 77 administrative relief or as a separate action, except as 78 provided under s. 768.79 or the Florida Rules of Civil 79 Procedure.Sections 429.29-429.298 provide the exclusive remedy80for a cause of action for recovery of damages for the personal81injury or death of a resident arising out of negligence or a82violation of rights specified in s. 429.28.83 (e) This section does not preclude theories of recovery not 84 arising out of negligence or s. 429.28 which are available to a 85 resident or to the agency.The provisions ofChapter 766 doesdo86 not apply to any cause of action brought under ss. 429.29 87 429.298. 88 (3) A cause of action for a residents’ rights violation or 89 for negligence may not be asserted against an individual or 90 entity other than the licensee, the licensee’s management or 91 consulting company, the licensee’s managing employees, and any 92 direct caregivers, whether employees or contractors, unless, 93 after a motion for leave to amend hearing, the court or an 94 arbitration panel determines that there is sufficient evidence 95 in the record or proffered by the claimant to establish a 96 reasonable showing that: 97 (a) The individual or entity owed a duty of reasonable care 98 to the resident and breached that duty; and 99 (b) The breach of that duty is a legal cause of loss, 100 injury, death, or damage to the resident. 101 102 For purposes of this subsection, if it is asserted in a proposed 103 amended pleading that such cause of action arose out of the 104 conduct, transaction, or occurrence set forth or attempted to be 105 set forth in the original pleading, the proposed amendment 106 relates back to the original pleading. 107 (4)(2)In any claim brought pursuant to this part alleging 108 a violation of residents’resident’srights or negligence 109 causing injury to or the death of a resident, the claimant has 110shall havethe burden of proving, by a preponderance of the 111 evidence, that: 112 (a) The defendant owed a duty to the resident; 113 (b) The defendant breached the duty to the resident; 114 (c) The breach of the duty is a legal cause of loss, 115 injury, death, or damage to the resident; and 116 (d) The resident sustained loss, injury, death, or damage 117 as a result of the breach. 118 119Nothing inThis part does notshall be interpreted tocreate 120 strict liability. A violation of the rights providedset forth121 in s. 429.28 or in any other standard or guidelines specified in 122 this part or in any applicable administrative standard or 123 guidelines of this state or a federal regulatory agency may 124shallbe evidence of negligence but isshallnotbeconsidered 125 negligence per se. 126 (5)(3)In aanyclaim brought pursuant to this section, a 127 licensee, individualperson, or entity hasshall havea duty to 128 exercise reasonable care. Reasonable care is that degree of care 129 which a reasonably careful licensee, individualperson, or 130 entity would use under like circumstances. 131 (6)(4)In aanyclaim for a residents’resident’srights 132 violation or for negligence by a nurse licensed under part I of 133 chapter 464, such nurse hasshall havethe duty to exercise care 134 consistent with the prevailing professional standard of care for 135 a nurse. The prevailing professional standard of care for a 136 nurse isshall bethat level of care, skill, and treatment 137 which, in light of all relevant surrounding circumstances, is 138 recognized as acceptable and appropriate by reasonably prudent 139 similar nurses. 140 (7)(5)Discovery of financial information for the purpose 141 of determining the value of punitive damages may not be 142 conductedhadunless the plaintiff shows the court by proffer or 143 evidence in the record that a reasonable basis exists to support 144 a claim for punitive damages. 145 (8)(6)In addition to any other standards for punitive 146 damages, any award of punitive damages must be reasonable in 147 light of the actual harm suffered by the resident and the 148 egregiousness of the conduct that caused the actual harm to the 149 resident. 150 (9)(7)The resident or the resident’s legal representative 151 shall serve a copy of aanycomplaint alleging in whole or in 152 part a violation of any rights specified in this part to the 153 agencyfor Health Care Administrationat the time of filing the 154 initial complaint with the clerk of the court for the county in 155 which the action is pursued. The requirement of providing a copy 156 of the complaint to the agency does not impair the resident’s 157 legal rights or ability to seek relief for his or her claim. 158 Section 2. Section 429.297, Florida Statutes, is amended to 159 read: 160 429.297 Punitive damages; pleading; burden of proof.— 161 (1) AIn any action for damages brought under this part, no162 claim for punitive damages may not be brought under this part 163shall be permittedunless there is areasonableshowing by 164 admissible evidence submitted by the parties which providesin165the record or proffered by the claimant which would providea 166 reasonable basis for recovery of such damages pursuant to this 167 section. 168 (a) The claimant may move to amend her or his complaint to 169 assert a claim for punitive damages as allowed by the rules of 170 civil procedure in accordance with evidentiary requirements 171 provided in this section. 172 (b) The court shall conduct a hearing to determine whether 173 there is sufficient admissible evidence submitted by the parties 174 to ensure that there is a reasonable basis to believe that the 175 claimant, at trial, will be able to demonstrate by clear and 176 convincing evidence that the recovery of such damages is 177 warranted under a claim for direct liability as specified in 178 subsection (2) or under a claim for vicarious liability as 179 specified in subsection (3). 180 (c) The rules of civil procedure mustshallbe liberally 181 construed so as to allow the claimant discovery of evidence 182 which appears reasonably calculated to lead to admissible 183 evidence on the issue of punitive damages.NoDiscovery of 184 financial worth may notshallproceed untilafterthe pleading 185 concerning punitive damages is approved by the courtpermitted. 186 (2) A defendant may be held liable for punitive damages 187 only if the trier of fact, bybased onclear and convincing 188 evidence, finds that a specific individual or corporate 189 defendant actively and knowingly participated in intentional 190 misconduct or actively and knowingly engaged in conduct that 191 constitutes gross negligence and contributed to the loss, 192 damages, or injury suffered by the claimantthe defendant was193personally guilty of intentional misconduct or gross negligence. 194 As used in this section, the term: 195 (b)(a)“Intentional misconduct” means that the defendant 196 against whom punitive damages are sought had actual knowledge of 197 the wrongfulness of the conduct and the high probability that 198 injury or damage to the claimant would result and, despite that 199 knowledge, intentionally pursued that course of conduct, 200 resulting in injury or damage. 201 (a)(b)“Gross negligence” means that the defendant’s 202 conduct was so reckless or wanting in care that it constituted a 203 conscious disregard or indifference to the life, safety, or 204 rights of individualspersonsexposed to such conduct. 205 (3) In the case of vicarious liability of an individual, 206 employer, principal, corporation, or other legal entity, 207 punitive damages may not be imposed for the conduct of an 208 employee or agent unlessonly ifthe conduct of the employee or 209 agent meets the criteria specified in subsection (2) and an 210 officer, director, or manager of the actual employer, 211 corporation, or legal entity condoned, ratified, or consented to 212 the specific conduct as provided in subsection (2):213(a) The employer, principal, corporation, or other legal214entity actively and knowingly participated in such conduct;215(b) The officers, directors, or managers of the employer,216principal, corporation, or other legal entity condoned,217ratified, or consented to such conduct; or218(c) The employer, principal, corporation, or other legal219entity engaged in conduct that constituted gross negligence and220that contributed to the loss, damages, or injury suffered by the221claimant. 222 (4) The plaintiff must establish at trial, by clear and 223 convincing evidence, its entitlement to an award of punitive 224 damages. The “greater weight of the evidence” burden of proof 225 applies to a determination of the amount of damages. 226(5) This section is remedial in nature and shall take227effect upon becoming a law.228 Section 3. The amendments to ss. 429.29 and 429.297, 229 Florida Statutes, made by this act apply to causes of action 230 that accrue on or after July 1, 2024. 231 Section 4. This act shall take effect July 1, 2024.