Florida 2023 Regular Session

Florida House Bill H1029 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
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3	3	HB 1029 2023
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7	7	CODING: Words stricken are deletions; words underlined are additions.
8	8	hb1029-00
9	9	Page 1 of 30
10	10	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
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12	12
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14	14	A bill to be entitled 1
15	15	An act relating to claims against long -term care 2
16	16	facilities; amending s. 400.023, F.S.; providing 3
17	17	requirements for admissible evidence for specified 4
18	18	claims; providing requirements for an individual to 5
19	19	provide expert opinions; prohibiting an expert witness 6
20	20	from testifying on a contingency fee basis; amending 7
21	21	ss. 400.0233 and 429.293, F.S.; providing requirements 8
22	22	for corroboration of reasonable grounds to initiate a 9
23	23	claim as to each prospective defendant for residents' 10
24	24	rights violation or alleged negligence; removing a 11
25	25	provision authorizing a licensed physician or nurse to 12
26	26	be retained for specified purposes; repealing ss. 13
27	27	400.0235 and 429.295, F.S., relating to specified 14
28	28	actions not being claims for medical malpractice; 15
29	29	amending ss. 400.0236 and 429.296, F.S.; removing 16
30	30	provisions providing applicability of certain 17
31	31	limitations; amending s. 429.29, F.S.; providing 18
32	32	requirements for an exclusive cause of action for 19
33	33	residents' rights violation or negligence to be 20
34	34	brought against specified individuals; providing 21
35	35	definitions; prohibiting such action from being 22
36	36	asserted against certain individuals or entities under 23
37	37	certain circumstances; providing exceptions; providing 24
38	38	requirements for admissible evidence for specified 25
39	39
40	40	HB 1029 2023
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42	42
43	43
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45	45	hb1029-00
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47	47	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
48	48
49	49
50	50
51	51	claims; providing requirements for an individual to 26
52	52	provide expert opinions; prohibiting an expert witness 27
53	53	from testifying on a contingency fee basis; providing 28
54	54	immunity from liability for certain individuals; 29
55	55	providing that such actions are not claims for medical 30
56	56	negligence; amending s. 429.294, F.S.; pro viding 31
57	57	requirements for residents' records; prohibiting a 32
58	58	facility from being cited by the Agency for Health 33
59	59	Care Administration under certain circumstances; 34
60	60	providing construction; amending s. 429.297, F.S.; 35
61	61	revising requirements for recovery of certain d amages 36
62	62	and liability of such damages; removing an obsolete 37
63	63	date; creating s. 429.299, F.S.; providing 38
64	64	requirements for a licensee to satisfy a judgment or 39
65	65	settlement agreement; providing applicability; making 40
66	66	technical changes; providing an effective date. 41
67	67	42
68	68	Be It Enacted by the Legislature of the State of Florida: 43
69	69	44
70	70	Section 1. Subsections (5), (6), (7), (8), and (9) of 45
71	71	section 400.023, Florida Statutes, are renumbered as subsections 46
72	72	(6), (7), (8), (14), and (15), respectively, subsection (4) and 47
73	73	present subsection (9) are amended, and new subsections (5) and 48
74	74	(9) and subsections (10) through (13) are added to that section, 49
75	75	to read: 50
76	76
77	77	HB 1029 2023
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79	79
80	80
81	81	CODING: Words stricken are deletions; words underlined are additions.
82	82	hb1029-00
83	83	Page 3 of 30
84	84	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
85	85
86	86
87	87
88	88	400.023 Civil enforcement. — 51
89	89	(4) In a claim brought pursuant to this part alleging a 52
90	90	violation of residents' rights or negligence causing injury to 53
91	91	or the death of a resident, the claimant has the burden of 54
92	92	proving, by a preponderance of the evidence, that: 55
93	93	(a) The defendant owed a duty to the resident; 56
94	94	(b) The defendant breached the duty to the resident; 57
95	95	(c) The breach of the duty is a legal cause of loss, 58
96	96	injury, death, or damage to the resident; and 59
97	97	(d) The resident sustained loss, injury, death, or damage 60
98	98	as a result of the breach. 61
99	99	62
100	100	This part does not create strict liability. A violation of the 63
101	101	rights provided set forth in s. 400.022, in any other standard 64
102	102	or guidelines specified in this part, or in any applicable 65
103	103	administrative standard or guidelines of this state or a federal 66
104	104	regulatory agency may be is evidence of negligence but is not 67
105	105	considered negligence pe r se. 68
106	106	(5) Notwithstanding this section, evidence of a violation 69
107	107	described in subsection (4), including licensure inspections 70
108	108	and surveys, cited deficiencies, plans of correction, or 71
109	109	sanctions imposed by the agency, is admissible as evidence in a 72
110	110	claim under this part only if the evidence relates to a 73
111	111	material violation of the standards or guidelines specified in 74
112	112	this part or an applicable administrative standard or guideline 75
113	113
114	114	HB 1029 2023
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118	118	CODING: Words stricken are deletions; words underlined are additions.
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121	121	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
122	122
123	123
124	124
125	125	relating to: 76
126	126	(a) The alleged occurrence and the particular individual 77
127	127	whose injury or death is the basis for the claim; or 78
128	128	(b) A finding by the agency that directly involves 79
129	129	substantially similar conduct that occurred at the nursing home 80
130	130	facility within a period of 12 months before the date of the 81
131	131	alleged occurrence that is the basis for the claim. 82
132	132	(9) An individual may provide an expert opinion on the 83
133	133	appropriate degree of reasonable care that a reasonably careful 84
134	134	licensee, individual, or entity would use under like 85
135	135	circumstances in operating a nursing home facility as to 86
136	136	administrative and other nonclinical issues if the individual 87
137	137	has substantial knowledge in operating a nursing home facility 88
138	138	in the state by virtue of his or her training and experience 89
139	139	during the 3 years immediately preceding the date of the alleged 90
140	140	occurrence that is the basis for the claim. 91
141	141	(10) An individual who holds an active and valid health 92
142	142	care professional license issued by the Department of Health may 93
143	143	provide an expert opinion concerning the prevailing professional 94
144	144	standard of care that a reasonabl y prudent similar health care 95
145	145	professional would use under the relevant surrounding 96
146	146	circumstances. The expert witness must have devoted professional 97
147	147	time during the 3 years immediately preceding the date of the 98
148	148	alleged occurrence that is the basis for the claim to: 99
149	149	(a) The active clinical practice of, or active clinical 100
150	150
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155	155	CODING: Words stricken are deletions; words underlined are additions.
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158	158	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
159	159
160	160
161	161
162	162	consultation with respect to, the care and treatment of patients 101
163	163	residing in a nursing home facility; 102
164	164	(b) The instruction of students or active work in an 103
165	165	accredited health professional school or accredited residency 104
166	166	or clinical research program with respect to the care and 105
167	167	treatment of patients residing in a nursing home facility; or 106
168	168	(c) The active clinical practice of, or active clinical 107
169	169	consultation with respect to, the care and trea tment of 108
170	170	patients who are 65 years of age or older. 109
171	171	(11) A physician licensed under chapter 458 or chapter 459 110
172	172	who qualifies to provide an expert opinion under subsection 111
173	173	(10) and who, by reason of active clinical practice or 112
174	174	instruction of students, has knowledge of the applicable 113
175	175	standard of care for physicians or other medical support staff, 114
176	176	may give expert testimony in a negligence action with respect 115
177	177	to the professional standard of care of such physicians or 116
178	178	other medical support staff. 117
179	179	(12) A nurse licensed to practice professional nursing 118
180	180	under chapter 464 who qualifies to provide an expert opinion 119
181	181	under subsection (10) and who, by reason of active clinical 120
182	182	practice or instruction of students, has knowledge of the 121
183	183	applicable standard of care for n urses or other medical support 122
184	184	staff, may give expert testimony in a negligence action with 123
185	185	respect to the professional standard of care of such nurses or 124
186	186	other medical support staff. 125
187	187
188	188	HB 1029 2023
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190	190
191	191
192	192	CODING: Words stricken are deletions; words underlined are additions.
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195	195	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
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197	197
198	198
199	199	(13) An expert witness may not testify on a contingency 126
200	200	fee basis. 127
201	201	(15)(9) An action under this part for a violation of the 128
202	202	rights or negligence recognized herein is not a claim for 129
203	203	medical negligence; however, malpractice, and s. 768.21(8) 130
204	204	applies does not apply to a claim alleging death of a the 131
205	205	resident. 132
206	206	Section 2. Subsections (1), (2), (4), and (5) of section 133
207	207	400.0233, Florida Statutes, are amended to read: 134
208	208	400.0233 Presuit notice; investigation; notification of 135
209	209	violation of residents' resident's rights or alleged negligence; 136
210	210	claims evaluation procedure; informal discovery; review; 137
211	211	settlement offer; mediation. — 138
212	212	(1) As used in ss. 400.023-400.0238 this section, the 139
213	213	term: 140
214	214	(a) "Claim for residents' resident's rights violation or 141
215	215	negligence" means a negligence claim alleging injury to or the 142
216	216	death of a resident ari sing out of an asserted violation of the 143
217	217	rights of a resident under s. 400.022 or an asserted deviation 144
218	218	from the applicable standard of care. 145
219	219	(b) "Insurer" means any self -insurer authorized under s. 146
220	220	627.357, liability insurance carrier, joint underwritin g 147
221	221	association, or uninsured prospective defendant. 148
222	222	(2) Before Prior to filing a claim for residents' rights a 149
223	223	violation of a resident's rights or a claim for negligence, a 150
224	224
225	225	HB 1029 2023
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229	229	CODING: Words stricken are deletions; words underlined are additions.
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232	232	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
233	233
234	234
235	235
236	236	claimant alleging injury to or the death of a resident shall 151
237	237	notify each prospecti ve defendant by certified mail, return 152
238	238	receipt requested, of an asserted violation of a resident's 153
239	239	rights provided in s. 400.022 or deviation from the standard of 154
240	240	care. Such notification shall include an identification of the 155
241	241	rights the prospective defenda nt has violated and the negligence 156
242	242	alleged to have caused the incident or incidents and a brief 157
243	243	description of the injuries sustained by the resident which are 158
244	244	reasonably identifiable at the time of notice. The notice shall 159
245	245	contain a certificate of counsel that counsel's reasonable 160
246	246	investigation gave rise to a good faith belief that grounds 161
247	247	exist for an action against each prospective defendant. 162
248	248	Corroboration of reasonable grounds to initiate a claim as to 163
249	249	each prospective defendant for residents' rights vi olation or 164
250	250	negligence shall be provided by the claimant's submission of a 165
251	251	written expert opinion from an individual qualified as an expert 166
252	252	pursuant to s. 400.023 at the time the notice of intent to file 167
253	253	a claim is mailed, which stated opinion must corrobor ate 168
254	254	reasonable grounds to support the claim. 169
255	255	(4) The notification of a violation of residents' a 170
256	256	resident's rights or alleged negligence shall be served within 171
257	257	the applicable statute of limitations period; however, during 172
258	258	the 75-day period, the statute of limitations is tolled as to 173
259	259	all prospective defendants. Upon stipulation by the parties, the 174
260	260	75-day period may be extended and the statute of limitations is 175
261	261
262	262	HB 1029 2023
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266	266	CODING: Words stricken are deletions; words underlined are additions.
267	267	hb1029-00
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269	269	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
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271	271
272	272
273	273	tolled during any such extension. Upon receiving written notice 176
274	274	by certified mail, return receipt requested, of termination of 177
275	275	negotiations in an extended period, the claimant shall have 60 178
276	276	days or the remainder of the period of the statute of 179
277	277	limitations, whichever is greater, within which to file suit. 180
278	278	(5) A No statement, discussion, written document, report, 181
279	279	or other work product generated by presuit claims evaluation 182
280	280	procedures under this section is not discoverable or admissible 183
281	281	in any civil action for any purpose by the opposing party. All 184
282	282	participants, including, but not limited to, physicians, 185
283	283	investigators, witnesses, and employees or associates of the 186
284	284	defendant, are immune from civil liability ari sing from 187
285	285	participation in the presuit claims evaluation procedure. Any 188
286	286	licensed physician or registered nurse may be retained by either 189
287	287	party to provide an opinion regarding the reasonable basis of 190
288	288	the claim. The presuit opinions of the expert are not 191
289	289	discoverable or admissible in any civil action for any purpose 192
290	290	by the opposing party. 193
291	291	Section 3. Section 400.0235, Florida Statutes, is 194
292	292	repealed. 195
293	293	Section 4. Subsection (3) of section 400.0236, Florida 196
294	294	Statutes, is amended to read: 197
295	295	400.0236 Statute of limitations.— 198
296	296	(3) This section shall apply to causes of action that have 199
297	297	accrued prior to the effective date of this section; however, 200
298	298
299	299	HB 1029 2023
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306	306	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
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308	308
309	309
310	310	any such cause of action that would not have been barred under 201
311	311	prior law may be brought within the time allowed by pr ior law or 202
312	312	within 2 years after the effective date of this section, 203
313	313	whichever is earlier, and will be barred thereafter. In actions 204
314	314	where it can be shown that fraudulent concealment or intentional 205
315	315	misrepresentation of fact prevented the discovery of the in jury, 206
316	316	the period of limitations is extended forward 2 years from the 207
317	317	time that the injury is discovered with the exercise of due 208
318	318	diligence, but in no event more than 4 years from the effective 209
319	319	date of this section. 210
320	320	Section 5. Section 429.29, Florida St atutes, is amended to 211
321	321	read: 212
322	322	429.29 Civil actions to enforce rights. — 213
323	323	(1) An exclusive cause of action for residents' Any person 214
324	324	or resident whose rights violation or negligence as specified 215
325	325	under in this part which alleges direct or vicarious liability 216
326	326	for the personal injury or death of a resident arising from such 217
327	327	rights violation or negligence and which seeks damages for such 218
328	328	injury or death may be brought only against the licensee, the 219
329	329	licensee's management or consulting company, the licensee's 220
330	330	managing employees, and any direct caregivers, whether employees 221
331	331	or contractors are violated shall have a cause of action . 222
332	332	(a) The action may be brought by the resident or his or 223
333	333	her guardian, or by an individual a person or organization 224
334	334	acting on behalf of a resident with the consent of the resident 225
335	335
336	336	HB 1029 2023
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340	340	CODING: Words stricken are deletions; words underlined are additions.
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343	343	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
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345	345
346	346
347	347	or his or her guardian, or by the personal representative of the 226
348	348	estate of a deceased resident regardless of the cause of death. 227
349	349	(b) If the action alleges a claim for residents' the 228
350	350	resident's rights violation or for negligence that caused the 229
351	351	death of the resident, the claimant shall , after the verdict, 230
352	352	but before the judgment is entered, be required to elect either 231
353	353	survival damages pursuant to s. 46.021 or wrongful death damages 232
354	354	pursuant to s. 768.21. If the a ction alleges a claim for 233
355	355	residents' the resident's rights violation or for negligence 234
356	356	that did not cause the death of the resident, the personal 235
357	357	representative of the estate may recover damages for the 236
358	358	negligence that caused injury to the resident. 237
359	359	(c) The action may be brought in any court of competent 238
360	360	jurisdiction to enforce such rights and to recover actual 239
361	361	damages, and punitive damages for violation of the rights of a 240
362	362	resident or negligence. 241
363	363	(d) A Any resident who prevails in seeking injunctive 242
364	364	relief or a claim for an administrative remedy is entitled to 243
365	365	recover the costs of the action and a reasonable attorney fees 244
366	366	attorney's fee assessed against the defendant of up to not to 245
367	367	exceed $25,000. Such attorney fees shall be awarded solely for 246
368	368	the injunctive or administrative relief and not for any claim or 247
369	369	action for damages whether such claim or action is brought 248
370	370	together with a request for an injunction or administrative 249
371	371	relief or as a separate action, except as provided under s. 250
372	372
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380	380	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
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382	382
383	383
384	384	768.79 or the Florida Rules of Civil Procedure. Sections 429.29-251
385	385	429.298 provide the exclusive remedy for a cause of action for 252
386	386	recovery of damages for the personal injury or death of a 253
387	387	resident arising out of negligence or a violation of rights 254
388	388	specified in s. 429.28. 255
389	389	(e) This section does not preclude theories of recovery 256
390	390	not arising out of negligence or s. 429.28 which are available 257
391	391	to a resident or to the agency. The provisions of Chapter 766 258
392	392	does do not apply to any cause of action brought under ss. 259
393	393	429.29-429.298. An action against any other individual or entity 260
394	394	may be brought only pursuant to subsection (3). 261
395	395	(2) As used in this section, the term: 262
396	396	(a) "Licensee" means an individual, corporation, 263
397	397	partnership, firm, association, governmental entity, or other 264
398	398	entity that is issued a permit, registration, certificate, or 265
399	399	license by the agency and is legally responsible for all aspects 266
400	400	of the operation of the facility. 267
401	401	(b) "Management or consulting company" means an individual 268
402	402	or entity that contracts with, or recei ves a fee from, a 269
403	403	licensee to provide any of the following services for a 270
404	404	facility: 271
405	405	1. Hiring or firing the administrator; 272
406	406	2. Controlling or having control over the staffing levels 273
407	407	at the facility; 274
408	408	3. Having control over the budget of the facility; o r 275
409	409
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417	417	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
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421	421	4. Implementing and enforcing the policies and procedures 276
422	422	of the facility. 277
423	423	(c) "Passive investor" means an individual or entity that 278
424	424	has an interest in a facility but does not participate in the 279
425	425	decisionmaking or operations of the facility. 280
426	426	(3) An exclusive cause of action for residents' rights 281
427	427	violation or negligence may not be asserted against an 282
428	428	individual or entity other than the licensee, the licensee's 283
429	429	management or consulting company, the licensee's managing 284
430	430	employees, and any direct caregive rs, whether employees or 285
431	431	contractors, unless, after a motion for leave to amend hearing, 286
432	432	the court or an arbitration panel determines that there is 287
433	433	sufficient evidence in the record or proffered by the claimant 288
434	434	to establish a reasonable showing that: 289
435	435	(a) The individual or entity owed a duty of reasonable 290
436	436	care to the resident and the individual or entity breached that 291
437	437	duty; and 292
438	438	(b) The breach of that duty is a legal cause of loss, 293
439	439	injury, death, or damage to the resident. 294
440	440	295
441	441	For purposes of this subsection , if, in a proposed amended 296
442	442	pleading, it is asserted that such cause of action arose out of 297
443	443	the conduct, transaction, or occurrence set forth or attempted 298
444	444	to be set forth in the original pleading, the proposed amendment 299
445	445	relates back to the original pleadin g. 300
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454	454	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
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457	457
458	458	(4)(2) In any claim brought pursuant to this part alleging 301
459	459	a violation of residents' resident's rights or negligence 302
460	460	causing injury to or the death of a resident, the claimant has 303
461	461	shall have the burden of proving, by a preponderance of the 304
462	462	evidence, that: 305
463	463	(a) The defendant owed a duty to the resident; 306
464	464	(b) The defendant breached the duty to the resident; 307
465	465	(c) The breach of the duty is a legal cause of loss, 308
466	466	injury, death, or damage to the resident; and 309
467	467	(d) The resident sustained loss, injury, dea th, or damage 310
468	468	as a result of the breach. 311
469	469	312
470	470	Nothing in This part does not shall be interpreted to create 313
471	471	strict liability. A violation of the rights provided set forth 314
472	472	in s. 429.28 or in any other standard or guidelines specified in 315
473	473	this part or in any appli cable administrative standard or 316
474	474	guidelines of this state or a federal regulatory agency may 317
475	475	shall be evidence of negligence but is shall not be considered 318
476	476	negligence per se. 319
477	477	(5) Notwithstanding this section, evidence of a violation 320
478	478	described in subsection (4), including licensure inspections 321
479	479	and surveys, cited deficiencies, plans of correction, or 322
480	480	sanctions imposed by the agency, is admissible as evidence in a 323
481	481	claim under this part only if the evidence relates to a 324
482	482	material violation of the standards or guidelines specified in 325
483	483
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488	488	CODING: Words stricken are deletions; words underlined are additions.
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491	491	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
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493	493
494	494
495	495	this part or an applicable administrative standard or guideline 326
496	496	relating to: 327
497	497	(a) The alleged occurrence and the particular individual 328
498	498	whose injury or death is the basis for the claim; or 329
499	499	(b) A finding by the agency that directly involves 330
500	500	substantially similar conduct that occurred at the assisted 331
501	501	living facility within a period of 12 months before the date of 332
502	502	the alleged occurrence that is the basis f or the claim. 333
503	503	(6)(3) In a any claim brought pursuant to this section, a 334
504	504	licensee, individual person, or entity has shall have a duty to 335
505	505	exercise reasonable care. Reasonable care is that degree of care 336
506	506	which a reasonably careful licensee, individual person, or 337
507	507	entity would use under like circumstances. 338
508	508	(7)(4) In a any claim for residents' resident's rights 339
509	509	violation or negligence by a nurse licensed under part I of 340
510	510	chapter 464, such nurse has shall have the duty to exercise care 341
511	511	consistent with the prevailing professional standard of care for 342
512	512	a nurse. The prevailing professional standard of care for a 343
513	513	nurse is shall be that level of care, skill, and treatment 344
514	514	which, in light of all relevant surrounding c ircumstances, is 345
515	515	recognized as acceptable and appropriate by reasonably prudent 346
516	516	similar nurses. 347
517	517	(8)(5) Discovery of financial information for the purpose 348
518	518	of determining the value of punitive damages may not be had 349
519	519	unless the plaintiff shows the court by proffer or evidence in 350
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528	528	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
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530	530
531	531
532	532	the record that a reasonable basis exists to support a claim for 351
533	533	punitive damages. 352
534	534	(9) An individual may provide an expert opinion on the 353
535	535	appropriate degree of reasonable care that a reasonably careful 354
536	536	licensee, individual, or enti ty would use under like 355
537	537	circumstances in operating an assisted living facility as to 356
538	538	administrative and other nonclinical issues if the individual 357
539	539	has substantial knowledge in operating an assisted living 358
540	540	facility in the state by virtue of his or her train ing and 359
541	541	experience during the 3 years immediately preceding the date of 360
542	542	the alleged occurrence that is the basis for the claim. 361
543	543	(10) An individual who holds an active and valid health 362
544	544	care professional license issued by the Department of Health may 363
545	545	provide an expert opinion concerning the prevailing professional 364
546	546	standard of care that a reasonably prudent similar health care 365
547	547	professional would use under the relevant surrounding 366
548	548	circumstances. The expert witness must have devoted professional 367
549	549	time during the 3 years immediately preceding the date of the 368
550	550	alleged occurrence that is the basis for the claim to: 369
551	551	(a) The active clinical practice of, or active clinical 370
552	552	consultation with respect to, the care and treatment of patients 371
553	553	residing in an assisted living facility; 372
554	554	(b) The instruction of students or active work in an 373
555	555	accredited health professional school or accredited residency 374
556	556	or clinical research program with respect to the care and 375
557	557
558	558	HB 1029 2023
559	559
560	560
561	561
562	562	CODING: Words stricken are deletions; words underlined are additions.
563	563	hb1029-00
564	564	Page 16 of 30
565	565	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
566	566
567	567
568	568
569	569	treatment of patients residing in an assisted living facility; 376
570	570	or 377
571	571	(c) The active clinical practice of, or active clinical 378
572	572	consultation with respect to, the care and treatment of 379
573	573	patients who are 65 years of age or older. 380
574	574	(11) A physician licensed under chapter 458 or chapter 459 381
575	575	who qualifies to provide an expert opinion under subsection 382
576	576	(10) and who, by reason of active clinical practice or 383
577	577	instruction of students, has knowledge of the applicable 384
578	578	standard of care for physicians or other medical support staff, 385
579	579	may give expert testimony in a negligence action with respect 386
580	580	to the professional standard of care of such physicians or 387
581	581	other medical support staff. 388
582	582	(12) A nurse licensed to practice professional nursing 389
583	583	under chapter 464 who qualifies to provide an expert opinion 390
584	584	under subsection (10) and who, by reason of active clinical 391
585	585	practice or instruction of students, has knowledge of the 392
586	586	applicable standard of care for nurses or other medical support 393
587	587	staff, may give expert testimony in a negligence action with 394
588	588	respect to the professional standard of care of such nurses or 395
589	589	other medical support staff. 396
590	590	(13) An expert witness may not testify on a contingency 397
591	591	fee basis. 398
592	592	(14)(6) In addition to any other standards for punitive 399
593	593	damages, any award of punitive damages must be reasonable in 400
594	594
595	595	HB 1029 2023
596	596
597	597
598	598
599	599	CODING: Words stricken are deletions; words underlined are additions.
600	600	hb1029-00
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602	602	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
603	603
604	604
605	605
606	606	light of the actual harm suffered by th e resident and the 401
607	607	egregiousness of the conduct that caused the actual harm to the 402
608	608	resident. 403
609	609	(15)(7) The resident or the resident's legal 404
610	610	representative shall serve a copy of a any complaint alleging in 405
611	611	whole or in part a violation of any rights specifie d in this 406
612	612	part to the agency for Health Care Administration at the time of 407
613	613	filing the initial complaint with the clerk of the court for the 408
614	614	county in which the action is pursued. The requirement of 409
615	615	providing a copy of the complaint to the agency does not i mpair 410
616	616	the resident's legal rights or ability to seek relief for his or 411
617	617	her claim. 412
618	618	(16) A passive investor is not liable under this section. 413
619	619	(17) An exclusive cause of action for residents' rights 414
620	620	violation or negligence as specified under this part is not a 415
621	621	claim for medical negligence; however, s. 768.21(8) applies to a 416
622	622	claim alleging death of a resident. 417
623	623	Section 6. Subsections (1) and (2), paragraph (a) of 418
624	624	subsection (3), and subsection (5) of section 429.293, Florida 419
625	625	Statutes, are amended to read : 420
626	626	429.293 Presuit notice; investigation; notification of a 421
627	627	claim for violation of residents' rights violation or alleged 422
628	628	negligence; claims evaluation procedure; informal discovery; 423
629	629	review; settlement offer; mediation. — 424
630	630	(1) As used in ss. 429.29-429.299 this section, the term: 425
631	631
632	632	HB 1029 2023
633	633
634	634
635	635
636	636	CODING: Words stricken are deletions; words underlined are additions.
637	637	hb1029-00
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639	639	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
640	640
641	641
642	642
643	643	(a) "Claim for residents' rights violation or negligence" 426
644	644	means a negligence claim alleging injury to or the death of a 427
645	645	resident arising out of an asserted violation of the rights of a 428
646	646	resident under s. 429.28 or an asserted dev iation from the 429
647	647	applicable standard of care. 430
648	648	(b) "Insurer" means any self -insurer authorized under s. 431
649	649	627.357, liability insurance carrier, joint underwriting 432
650	650	association, or uninsured prospective defendant. 433
651	651	(2) Before Prior to filing a claim for residents' rights a 434
652	652	violation of a resident's rights or a claim for negligence, a 435
653	653	claimant alleging injury to or the death of a resident shall 436
654	654	notify each prospective defendant by certified mail, return 437
655	655	receipt requested, of an asserted violation of a resident' s 438
656	656	rights provided in s. 429.28 or deviation from the standard of 439
657	657	care. Such notification shall include an identification of the 440
658	658	rights the prospective defendant has violated and the negligence 441
659	659	alleged to have caused the incident or incidents and a brief 442
660	660	description of the injuries sustained by the resident which are 443
661	661	reasonably identifiable at the time of notice. The notice shall 444
662	662	contain a certificate of counsel that counsel's reasonable 445
663	663	investigation gave rise to a good faith belief that grounds 446
664	664	exist for an action against each prospective defendant. 447
665	665	Corroboration of reasonable grounds to initiate a claim as to 448
666	666	each prospective defendant for residents' rights violation or 449
667	667	negligence shall be provided by the claimant's submission of a 450
668	668
669	669	HB 1029 2023
670	670
671	671
672	672
673	673	CODING: Words stricken are deletions; words underlined are additions.
674	674	hb1029-00
675	675	Page 19 of 30
676	676	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
677	677
678	678
679	679
680	680	written expert opinion f rom an individual qualified as an expert 451
681	681	pursuant to s. 400.023 at the time the notice of intent to file 452
682	682	a claim is mailed, which stated opinion must corroborate 453
683	683	reasonable grounds to support the claim. 454
684	684	(3)(a) A No suit may not be filed for a period of 75 days 455
685	685	after notice is mailed to any prospective defendant. During the 456
686	686	75-day period, the prospective defendants or their insurers 457
687	687	shall conduct an evaluation of the claim to determine the 458
688	688	liability of each defendant and to evalu ate the damages of the 459
689	689	claimants. Each defendant or insurer of the defendant shall have 460
690	690	a procedure for the prompt evaluation of claims during the 75 -461
691	691	day period. The procedure shall include one or more of the 462
692	692	following: 463
693	693	1. Internal review by a duly quali fied facility risk 464
694	694	manager or claims adjuster; 465
695	695	2. Internal review by counsel for each prospective 466
696	696	defendant; 467
697	697	3. A quality assurance committee authorized under any 468
698	698	applicable state or federal statutes or regulations; or 469
699	699	4. Any other similar procedure that fairly and promptly 470
700	700	evaluates the claims. 471
701	701	472
702	702	Each defendant or insurer of the defendant shall evaluate the 473
703	703	claim in good faith. 474
704	704	(5) A No statement, discussion, written document, report, 475
705	705
706	706	HB 1029 2023
707	707
708	708
709	709
710	710	CODING: Words stricken are deletions; words underlined are additions.
711	711	hb1029-00
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713	713	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
714	714
715	715
716	716
717	717	or other work product generated by presuit claims evaluation 476
718	718	procedures under this section is not discoverable or admissible 477
719	719	in any civil action for any purpose by the opposing party. All 478
720	720	participants, including, but not limited to, physicians, 479
721	721	investigators, witnesses, and employees or associates of the 480
722	722	defendant, are immune from civil liability arising from 481
723	723	participation in the presuit claims evaluation procedure. Any 482
724	724	licensed physician or registered nurse may be retained by either 483
725	725	party to provide an opinion regarding the reasonable basis of 484
726	726	the claim. The presuit opinions of the expert are not 485
727	727	discoverable or admissible in any civil action for any purpose 486
728	728	by the opposing party. 487
729	729	Section 7. Section 429.294, Florida Statutes, is amended 488
730	730	to read: 489
731	731	429.294 Availability of facility records for investiga tion 490
732	732	of residents' resident's rights violations and defenses; 491
733	733	penalty.— 492
734	734	(1) Failure to provide complete copies of a resident's 493
735	735	records, including, but not limited to, all medical records and 494
736	736	the resident's chart, within the control or possession of the 495
737	737	facility in accordance with s. 400.145, shall constitute 496
738	738	evidence of failure of that party to comply with good faith 497
739	739	discovery requirements and shall waive the good faith 498
740	740	certificate and presuit notice requirements under this part by 499
741	741	the requesting party. 500
742	742
743	743	HB 1029 2023
744	744
745	745
746	746
747	747	CODING: Words stricken are deletions; words underlined are additions.
748	748	hb1029-00
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750	750	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
751	751
752	752
753	753
754	754	(2) A No facility may not shall be held liable for any 501
755	755	civil damages as a result of complying with this section. 502
756	756	(3) Upon receipt of a written request that complies with 503
757	757	the federal Health Insurance Portability and Accountability Act 504
758	758	of 1996 (HIPAA) and this section, a facility shall furnish to a 505
759	759	competent resident, or to a representative of that resident who 506
760	760	is authorized to make requests for the resident's records under 507
761	761	HIPAA or subsection (4), copies of the resident's paper and 508
762	762	electronic records in t he facility's possession. Such records 509
763	763	must include any medical records and records concerning the care 510
764	764	and treatment of the resident performed by the facility, except 511
765	765	for progress notes and consultation report sections of a 512
766	766	psychiatric nature. The facilit y shall provide the requested 513
767	767	records within 14 working days after receipt of a request 514
768	768	relating to a current resident or within 30 working days after 515
769	769	receipt of a request relating to a former resident. 516
770	770	(4) Requests for a deceased resident's medical reco rds 517
771	771	under this section may be made by: 518
772	772	(a) An individual appointed by a court to act as the 519
773	773	personal representative, executor, administrator, curator, or 520
774	774	temporary administrator of the deceased resident's estate; 521
775	775	(b) If a judicial appointment has not b een made as 522
776	776	provided in paragraph (a), an individual designated by the 523
777	777	resident to act as his or her personal representative in a last 524
778	778	will that is self-proved under s. 732.503; or 525
779	779
780	780	HB 1029 2023
781	781
782	782
783	783
784	784	CODING: Words stricken are deletions; words underlined are additions.
785	785	hb1029-00
786	786	Page 22 of 30
787	787	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
788	788
789	789
790	790
791	791	(c) If a judicial appointment has not been made as 526
792	792	provided in paragraph (a) or an individual has not been 527
793	793	designated by the resident in a last will as provided in 528
794	794	paragraph (b), only the following individuals: 529
795	795	1. A surviving spouse of the resident. 530
796	796	2. If there is no surviving spouse, a surviving child of 531
797	797	the resident. 532
798	798	3. If there is no surviving spouse or surviving child, a 533
799	799	parent of the resident. 534
800	800	(5) All requests for a deceased resident's records made by 535
801	801	an individual authorized under: 536
802	802	(a) Paragraph (4)(a) must include a copy of the letter of 537
803	803	administration and a cop y of the court order appointing such 538
804	804	individual as the personal representative of the deceased 539
805	805	resident's estate. 540
806	806	(b) Paragraph (4)(b) must include a copy of the self -541
807	807	proved last will designating such individual as the personal 542
808	808	representative of the dece ased resident's estate. 543
809	809	(c) Paragraph (4)(c) must be accompanied by a letter from 544
810	810	such individual's attorney verifying such individual's 545
811	811	relationship to the resident and the absence of a court -546
812	812	appointed representative and self -proved last will. 547
813	813	(6) A facility may charge a reasonable fee for the copying 548
814	814	of resident records. Such fee may not exceed $1 per page for the 549
815	815	first 25 pages and 25 cents per page for each additional page. 550
816	816
817	817	HB 1029 2023
818	818
819	819
820	820
821	821	CODING: Words stricken are deletions; words underlined are additions.
822	822	hb1029-00
823	823	Page 23 of 30
824	824	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
825	825
826	826
827	827
828	828	The facility shall allow an individual who is authorized to act 551
829	829	on behalf of the resident to examine the original records, 552
830	830	microfilms, or other suitable reproductions of the records in 553
831	831	its possession upon any reasonable terms imposed by the facility 554
832	832	to ensure that the records are not damaged, destroyed, or 555
833	833	altered. 556
834	834	(7) If a facility determines that disclosure of the 557
835	835	records to the resident would be detrimental to the physical or 558
836	836	mental health of the resident, the facility may refuse to 559
837	837	furnish the records directly to the resident; however, upon such 560
838	838	refusal, the resident's record s shall, upon written request by 561
839	839	the resident, be furnished to any other medical provider 562
840	840	designated by the resident. 563
841	841	(8) A facility that in good faith and in reliance upon 564
842	842	this section releases copies of records shall be indemnified by 565
843	843	the party who requested the records pursuant to subsection (2) 566
844	844	for any damages resulting from such release, may not be found to 567
845	845	have violated any criminal or civil laws, and is not civilly 568
846	846	liable to the resident, the resident's estate, or any other 569
847	847	individual for any damag es resulting from such release. 570
848	848	(9) A facility is not required to provide copies of a 571
849	849	resident's records requested pursuant to this section more than 572
850	850	once per month, except that copies of physician reports in the 573
851	851	resident's records must be provided as of ten as necessary to 574
852	852	allow the effective monitoring of the resident's condition. 575
853	853
854	854	HB 1029 2023
855	855
856	856
857	857
858	858	CODING: Words stricken are deletions; words underlined are additions.
859	859	hb1029-00
860	860	Page 24 of 30
861	861	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
862	862
863	863
864	864
865	865	(10) A facility may not be cited by the agency through the 576
866	866	survey process for any alleged or actual noncompliance with any 577
867	867	of the requirements of this section. 578
868	868	(11) This section does not limit any right to obtain 579
869	869	records by subpoena or other court process. 580
870	870	Section 8. Section 429.295, Florida Statutes, is repealed. 581
871	871	Section 9. Subsection (3) of section 429.296, Florida 582
872	872	Statutes, is amended to read: 583
873	873	429.296 Statute of limitations.— 584
874	874	(3) This section shall apply to causes of action that have 585
875	875	accrued prior to the effective date of this section; however, 586
876	876	any such cause of action that would not have been barred under 587
877	877	prior law may be brought within the time allowed by p rior law or 588
878	878	within 2 years after the effective date of this section, 589
879	879	whichever is earlier, and will be barred thereafter. In actions 590
880	880	where it can be shown that fraudulent concealment or intentional 591
881	881	misrepresentation of fact prevented the discovery of the i njury, 592
882	882	the period of limitations is extended forward 2 years from the 593
883	883	time that the injury is discovered with the exercise of due 594
884	884	diligence, but in no event more than 4 years from the effective 595
885	885	date of this section. 596
886	886	Section 10. Section 429.297, Florida Statutes, is amended 597
887	887	to read: 598
888	888	429.297 Punitive damages; pleading; burden of proof. — 599
889	889	(1) A In any action for damages brought under this part, 600
890	890
891	891	HB 1029 2023
892	892
893	893
894	894
895	895	CODING: Words stricken are deletions; words underlined are additions.
896	896	hb1029-00
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898	898	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
899	899
900	900
901	901
902	902	no claim for punitive damages may not be brought under this part 601
903	903	shall be permitted unless there is a reasonable showing by 602
904	904	admissible evidence that has been submitted by the parties that 603
905	905	provides in the record or proffered by the claimant which would 604
906	906	provide a reasonable basis for recovery of such damages pursuant 605
907	907	to this section. 606
908	908	(a) The claimant may move to a mend her or his complaint to 607
909	909	assert a claim for punitive damages as allowed by the rules of 608
910	910	civil procedure in accordance with evidentiary requirements 609
911	911	provided in this section . 610
912	912	(b) The court shall conduct a hearing to determine whether 611
913	913	there is sufficient admissible evidence submitted by the parties 612
914	914	to ensure that there is a reasonable basis to believe that the 613
915	915	claimant, at trial, will be able to demonstrate by clear and 614
916	916	convincing evidence that the recovery of such damages is 615
917	917	warranted under a claim for direct liability as specified in 616
918	918	subsection (2) or under a claim for vicarious liability as 617
919	919	specified in subsection (3). 618
920	920	(c) The rules of civil procedure shall be liberally 619
921	921	construed so as to allow the claimant discovery of evidence 620
922	922	which appears reason ably calculated to lead to admissible 621
923	923	evidence on the issue of punitive damages. No Discovery of 622
924	924	financial worth may not shall proceed until after the pleading 623
925	925	concerning punitive damages is approved by the court permitted. 624
926	926	(2) A defendant may be held liable for punitive damages 625
927	927
928	928	HB 1029 2023
929	929
930	930
931	931
932	932	CODING: Words stricken are deletions; words underlined are additions.
933	933	hb1029-00
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935	935	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
936	936
937	937
938	938
939	939	only if the trier of fact, by based on clear and convincing 626
940	940	evidence, finds that a specific individual or corporate 627
941	941	defendant actively and knowingly participated in intentional 628
942	942	misconduct or actively and knowingly engaged in conduct that 629
943	943	constitutes gross negligence and contributed to the loss, 630
944	944	damages, or injury suffered by the claimant the defendant was 631
945	945	personally guilty of intentional misconduct or gross negligence . 632
946	946	As used in this section, the ter m: 633
947	947	(a)(b) "Gross negligence" means that the defendant's 634
948	948	conduct was so reckless or wanting in care that it constituted a 635
949	949	conscious disregard or indifference to the life, safety, or 636
950	950	rights of individuals persons exposed to such conduct. 637
951	951	(b)(a) "Intentional misconduct" means that the defendant 638
952	952	against whom punitive damages are sought had actual knowledge of 639
953	953	the wrongfulness of the conduct and the high probability that 640
954	954	injury or damage to the claimant would result and, despite that 641
955	955	knowledge, intentionally pursued that course of conduct, 642
956	956	resulting in injury or damage. 643
957	957	(3) In the case of vicarious liability of an individual, 644
958	958	employer, principal, corporation, or other legal entity, 645
959	959	punitive damages may not be imposed for the conduct of an 646
960	960	employee or agent unless only if the conduct of the employee or 647
961	961	agent meets the criteria specified in subsection (2) and an 648
962	962	officer, director, or manager of the actual employer, 649
963	963	corporation, or legal entity actively and knowingly participated 650
964	964
965	965	HB 1029 2023
966	966
967	967
968	968
969	969	CODING: Words stricken are deletions; words underlined are additions.
970	970	hb1029-00
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972	972	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
973	973
974	974
975	975
976	976	in or engaged in the specific c onduct as provided in subsection 651
977	977	(2): 652
978	978	(a) The employer, principal, corporation, or other legal 653
979	979	entity actively and knowingly participated in such conduct; 654
980	980	(b) The officers, directors, or managers of the employer, 655
981	981	principal, corporation, or other legal entity condoned, 656
982	982	ratified, or consented to such conduct; or 657
983	983	(c) The employer, principal, corporation, or other legal 658
984	984	entity engaged in conduct that constituted gross negligence and 659
985	985	that contributed to the loss, damages, or injury suffered by the 660
986	986	claimant. 661
987	987	(4) The plaintiff shall must establish at trial, by clear 662
988	988	and convincing evidence, its entitlement to an award of punitive 663
989	989	damages. The "greater weight of the evidence" burden of proof 664
990	990	applies to a determination of the amount of damages. 665
991	991	(5) This section is remedial in nature and shall take 666
992	992	effect upon becoming a law. 667
993	993	Section 11. Section 429.299, Florida Statutes, is created 668
994	994	to read: 669
995	995	429.299 Failure to satisfy a judgment or settlement 670
996	996	agreement.— 671
997	997	(1) Upon the entry by a Florida court of an adv erse final 672
998	998	judgment against a licensee as defined in s. 429.29(2), which 673
999	999	arises from an award pursuant to s. 429.29, including an 674
1000	1000	arbitration award, for a claim for residents' rights violation 675
1001	1001
1002	1002	HB 1029 2023
1003	1003
1004	1004
1005	1005
1006	1006	CODING: Words stricken are deletions; words underlined are additions.
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1009	1009	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
1010	1010
1011	1011
1012	1012
1013	1013	or negligence, in contract or tort, or from noncompliance with 676
1014	1014	the terms of a settlement agreement as determined by a court or 677
1015	1015	arbitration panel which arises from a claim pursuant to s. 678
1016	1016	429.29, the licensee shall pay the judgment creditor the entire 679
1017	1017	amount of the judgment, award, or settlement and all accrued 680
1018	1018	interest within 60 days after the date such judgment, award, or 681
1019	1019	settlement becomes final and subject to execution unless 682
1020	1020	otherwise mutually agreed to in writing by the parties. Failure 683
1021	1021	to make such payment shall result in additional grounds that may 684
1022	1022	be used by the agency for revoking a license or for denying a 685
1023	1023	renewal application or a related party change of ownership 686
1024	1024	application as provided in this section. 687
1025	1025	(2) The agency is deemed notified of an unsatisfied 688
1026	1026	judgment or settlement under subsection (1) when a cer tified 689
1027	1027	copy of the judgment and a certified copy of a valid judgment 690
1028	1028	lien certificate, filed in accordance with ss. 55.202 and 691
1029	1029	55.203, are served to the agency by process server or received 692
1030	1030	by certified mail, return receipt requested. Within 60 days 693
1031	1031	after receiving such documents, the agency shall notify the 694
1032	1032	licensee by certified mail, return receipt requested, that it is 695
1033	1033	subject to disciplinary action unless, within 30 days after the 696
1034	1034	date of mailing the notice, the licensee: 697
1035	1035	(a) Shows proof that the unsa tisfied judgment or 698
1036	1036	settlement has been paid in the amount specified; 699
1037	1037	(b) Shows proof of the existence of a payment plan 700
1038	1038
1039	1039	HB 1029 2023
1040	1040
1041	1041
1042	1042
1043	1043	CODING: Words stricken are deletions; words underlined are additions.
1044	1044	hb1029-00
1045	1045	Page 29 of 30
1046	1046	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
1047	1047
1048	1048
1049	1049
1050	1050	mutually agreed upon by the parties in writing; 701
1051	1051	(c) Furnishes the agency with a copy of a timely filed 702
1052	1052	notice of appeal; 703
1053	1053	(d) Furnishes the agency with a copy of a court order 704
1054	1054	staying execution of the final judgment; or 705
1055	1055	(e) Shows proof by submitting an order from a court or 706
1056	1056	arbitration panel that is overseeing any action seeking 707
1057	1057	indemnification from an insurance carrier or other pa rty that 708
1058	1058	the licensee believes is required to pay the award. 709
1059	1059	(3) If the agency is placed on notice pursuant to 710
1060	1060	subsection (2) and proof pursuant to subsection (2) is not 711
1061	1061	provided by the licensee, the agency shall issue an emergency 712
1062	1062	order pursuant to s. 120.60 declaring that the facility lacks 713
1063	1063	the financial ability to operate and a notice of intent to 714
1064	1064	revoke or deny a license. 715
1065	1065	(4) After the agency is placed on notice pursuant to 716
1066	1066	subsection (2), the following applies: 717
1067	1067	(a) If the license is subject to r enewal, the agency may 718
1068	1068	deny the license renewal unless compliance with this section is 719
1069	1069	achieved; and 720
1070	1070	(b) If a change of ownership application for the facility 721
1071	1071	at issue is submitted by the licensee, by an individual or 722
1072	1072	entity identified as having a contro lling interest in the 723
1073	1073	licensee, or by a related party, the agency shall deny the 724
1074	1074	change of ownership application unless compliance with this 725
1075	1075
1076	1076	HB 1029 2023
1077	1077
1078	1078
1079	1079
1080	1080	CODING: Words stricken are deletions; words underlined are additions.
1081	1081	hb1029-00
1082	1082	Page 30 of 30
1083	1083	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
1084	1084
1085	1085
1086	1086
1087	1087	section is achieved. 726
1088	1088	Section 12. The amendments to all sections made by this 727
1089	1089	act shall apply to causes of actio n that accrue on or after July 728
1090	1090	1, 2023. 729
1091	1091	Section 13. This act shall take effect July 1, 2023. 730