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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
A bill to be entitled 1
An act relating to claims against long -term care 2
facilities; amending s. 400.023, F.S.; providing 3
requirements for admissible evidence for specified 4
claims; providing requirements for an individual to 5
provide expert opinions; prohibiting an expert witness 6
from testifying on a contingency fee basis; amending 7
ss. 400.0233 and 429.293, F.S.; providing requirements 8
for corroboration of reasonable grounds to initiate a 9
claim as to each prospective defendant for residents' 10
rights violation or alleged negligence; removing a 11
provision authorizing a licensed physician or nurse to 12
be retained for specified purposes; repealing ss. 13
400.0235 and 429.295, F.S., relating to specified 14
actions not being claims for medical malpractice; 15
amending ss. 400.0236 and 429.296, F.S.; removing 16
provisions providing applicability of certain 17
limitations; amending s. 429.29, F.S.; providing 18
requirements for an exclusive cause of action for 19
residents' rights violation or negligence to be 20
brought against specified individuals; providing 21
definitions; prohibiting such action from being 22
asserted against certain individuals or entities under 23
certain circumstances; providing exceptions; providing 24
requirements for admissible evidence for specified 25
HB 1029 2023
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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
claims; providing requirements for an individual to 26
provide expert opinions; prohibiting an expert witness 27
from testifying on a contingency fee basis; providing 28
immunity from liability for certain individuals; 29
providing that such actions are not claims for medical 30
negligence; amending s. 429.294, F.S.; pro viding 31
requirements for residents' records; prohibiting a 32
facility from being cited by the Agency for Health 33
Care Administration under certain circumstances; 34
providing construction; amending s. 429.297, F.S.; 35
revising requirements for recovery of certain d amages 36
and liability of such damages; removing an obsolete 37
date; creating s. 429.299, F.S.; providing 38
requirements for a licensee to satisfy a judgment or 39
settlement agreement; providing applicability; making 40
technical changes; providing an effective date. 41
42
Be It Enacted by the Legislature of the State of Florida: 43
44
Section 1. Subsections (5), (6), (7), (8), and (9) of 45
section 400.023, Florida Statutes, are renumbered as subsections 46
(6), (7), (8), (14), and (15), respectively, subsection (4) and 47
present subsection (9) are amended, and new subsections (5) and 48
(9) and subsections (10) through (13) are added to that section, 49
to read: 50
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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
400.023 Civil enforcement. — 51
(4) In a claim brought pursuant to this part alleging a 52
violation of residents' rights or negligence causing injury to 53
or the death of a resident, the claimant has the burden of 54
proving, by a preponderance of the evidence, that: 55
(a) The defendant owed a duty to the resident; 56
(b) The defendant breached the duty to the resident; 57
(c) The breach of the duty is a legal cause of loss, 58
injury, death, or damage to the resident; and 59
(d) The resident sustained loss, injury, death, or damage 60
as a result of the breach. 61
62
This part does not create strict liability. A violation of the 63
rights provided set forth in s. 400.022, in any other standard 64
or guidelines specified in this part, or in any applicable 65
administrative standard or guidelines of this state or a federal 66
regulatory agency may be is evidence of negligence but is not 67
considered negligence pe r se. 68
(5) Notwithstanding this section, evidence of a violation 69
described in subsection (4), including licensure inspections 70
and surveys, cited deficiencies, plans of correction, or 71
sanctions imposed by the agency, is admissible as evidence in a 72
claim under this part only if the evidence relates to a 73
material violation of the standards or guidelines specified in 74
this part or an applicable administrative standard or guideline 75
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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
relating to: 76
(a) The alleged occurrence and the particular individual 77
whose injury or death is the basis for the claim; or 78
(b) A finding by the agency that directly involves 79
substantially similar conduct that occurred at the nursing home 80
facility within a period of 12 months before the date of the 81
alleged occurrence that is the basis for the claim. 82
(9) An individual may provide an expert opinion on the 83
appropriate degree of reasonable care that a reasonably careful 84
licensee, individual, or entity would use under like 85
circumstances in operating a nursing home facility as to 86
administrative and other nonclinical issues if the individual 87
has substantial knowledge in operating a nursing home facility 88
in the state by virtue of his or her training and experience 89
during the 3 years immediately preceding the date of the alleged 90
occurrence that is the basis for the claim. 91
(10) An individual who holds an active and valid health 92
care professional license issued by the Department of Health may 93
provide an expert opinion concerning the prevailing professional 94
standard of care that a reasonabl y prudent similar health care 95
professional would use under the relevant surrounding 96
circumstances. The expert witness must have devoted professional 97
time during the 3 years immediately preceding the date of the 98
alleged occurrence that is the basis for the claim to: 99
(a) The active clinical practice of, or active clinical 100
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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
consultation with respect to, the care and treatment of patients 101
residing in a nursing home facility; 102
(b) The instruction of students or active work in an 103
accredited health professional school or accredited residency 104
or clinical research program with respect to the care and 105
treatment of patients residing in a nursing home facility; or 106
(c) The active clinical practice of, or active clinical 107
consultation with respect to, the care and trea tment of 108
patients who are 65 years of age or older. 109
(11) A physician licensed under chapter 458 or chapter 459 110
who qualifies to provide an expert opinion under subsection 111
(10) and who, by reason of active clinical practice or 112
instruction of students, has knowledge of the applicable 113
standard of care for physicians or other medical support staff, 114
may give expert testimony in a negligence action with respect 115
to the professional standard of care of such physicians or 116
other medical support staff. 117
(12) A nurse licensed to practice professional nursing 118
under chapter 464 who qualifies to provide an expert opinion 119
under subsection (10) and who, by reason of active clinical 120
practice or instruction of students, has knowledge of the 121
applicable standard of care for n urses or other medical support 122
staff, may give expert testimony in a negligence action with 123
respect to the professional standard of care of such nurses or 124
other medical support staff. 125
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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
(13) An expert witness may not testify on a contingency 126
fee basis. 127
(15)(9) An action under this part for a violation of the 128
rights or negligence recognized herein is not a claim for 129
medical negligence; however, malpractice, and s. 768.21(8) 130
applies does not apply to a claim alleging death of a the 131
resident. 132
Section 2. Subsections (1), (2), (4), and (5) of section 133
400.0233, Florida Statutes, are amended to read: 134
400.0233 Presuit notice; investigation; notification of 135
violation of residents' resident's rights or alleged negligence; 136
claims evaluation procedure; informal discovery; review; 137
settlement offer; mediation. — 138
(1) As used in ss. 400.023-400.0238 this section, the 139
term: 140
(a) "Claim for residents' resident's rights violation or 141
negligence" means a negligence claim alleging injury to or the 142
death of a resident ari sing out of an asserted violation of the 143
rights of a resident under s. 400.022 or an asserted deviation 144
from the applicable standard of care. 145
(b) "Insurer" means any self -insurer authorized under s. 146
627.357, liability insurance carrier, joint underwritin g 147
association, or uninsured prospective defendant. 148
(2) Before Prior to filing a claim for residents' rights a 149
violation of a resident's rights or a claim for negligence, a 150
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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
claimant alleging injury to or the death of a resident shall 151
notify each prospecti ve defendant by certified mail, return 152
receipt requested, of an asserted violation of a resident's 153
rights provided in s. 400.022 or deviation from the standard of 154
care. Such notification shall include an identification of the 155
rights the prospective defenda nt has violated and the negligence 156
alleged to have caused the incident or incidents and a brief 157
description of the injuries sustained by the resident which are 158
reasonably identifiable at the time of notice. The notice shall 159
contain a certificate of counsel that counsel's reasonable 160
investigation gave rise to a good faith belief that grounds 161
exist for an action against each prospective defendant. 162
Corroboration of reasonable grounds to initiate a claim as to 163
each prospective defendant for residents' rights vi olation or 164
negligence shall be provided by the claimant's submission of a 165
written expert opinion from an individual qualified as an expert 166
pursuant to s. 400.023 at the time the notice of intent to file 167
a claim is mailed, which stated opinion must corrobor ate 168
reasonable grounds to support the claim. 169
(4) The notification of a violation of residents' a 170
resident's rights or alleged negligence shall be served within 171
the applicable statute of limitations period; however, during 172
the 75-day period, the statute of limitations is tolled as to 173
all prospective defendants. Upon stipulation by the parties, the 174
75-day period may be extended and the statute of limitations is 175
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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
tolled during any such extension. Upon receiving written notice 176
by certified mail, return receipt requested, of termination of 177
negotiations in an extended period, the claimant shall have 60 178
days or the remainder of the period of the statute of 179
limitations, whichever is greater, within which to file suit. 180
(5) A No statement, discussion, written document, report, 181
or other work product generated by presuit claims evaluation 182
procedures under this section is not discoverable or admissible 183
in any civil action for any purpose by the opposing party. All 184
participants, including, but not limited to, physicians, 185
investigators, witnesses, and employees or associates of the 186
defendant, are immune from civil liability ari sing from 187
participation in the presuit claims evaluation procedure. Any 188
licensed physician or registered nurse may be retained by either 189
party to provide an opinion regarding the reasonable basis of 190
the claim. The presuit opinions of the expert are not 191
discoverable or admissible in any civil action for any purpose 192
by the opposing party. 193
Section 3. Section 400.0235, Florida Statutes, is 194
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
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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
any such cause of action that would not have been barred under 201
prior law may be brought within the time allowed by pr ior 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 in jury, 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 St atutes, 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 223
her guardian, or by an individual a person or organization 224
acting on behalf of a resident with the consent of the resident 225
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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
or his or her guardian, or by the personal representative of the 226
estate of 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 a ction 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
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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
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 256
not arising out of negligence or s. 429.28 which are available 257
to a resident or to the agency. The provisions of Chapter 766 258
does do not apply to any cause of action brought under ss. 259
429.29-429.298. An action against any other individual or entity 260
may be 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 recei ves 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; o r 275
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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 cause of action for residents' rights 281
violation or negligence may not be asserted against an 282
individual or entity other than the licensee, the licensee's 283
management or consulting company, the licensee's managing 284
employees, and any direct caregive rs, whether employees or 285
contractors, unless, after a motion for leave to amend hearing, 286
the court or an arbitration panel determines that there is 287
sufficient evidence in the record or proffered by the claimant 288
to establish a reasonable showing that: 289
(a) The individual or entity owed a duty of reasonable 290
care to the resident and the individual or entity breached that 291
duty; and 292
(b) The breach of that duty is a legal cause of loss, 293
injury, death, or damage to the resident. 294
295
For purposes of this subsection , if, in a proposed amended 296
pleading, it is asserted that such cause of action arose out of 297
the conduct, transaction, or occurrence set forth or attempted 298
to be set forth in the original pleading, the proposed amendment 299
relates back to the original pleadin g. 300
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(4)(2) In any claim brought pursuant to this part alleging 301
a violation of residents' resident's rights or negligence 302
causing injury to or the death of a resident, the claimant has 303
shall have the burden of proving, by a preponderance of the 304
evidence, that: 305
(a) The defendant owed a duty to the resident; 306
(b) The defendant breached the duty to the resident; 307
(c) The breach of the duty is a legal cause of loss, 308
injury, death, or damage to the resident; and 309
(d) The resident sustained loss, injury, dea th, or damage 310
as a result of the breach. 311
312
Nothing in This part does not shall be interpreted to create 313
strict liability. A violation of the rights provided set forth 314
in s. 429.28 or in any other standard or guidelines specified in 315
this part or in any appli cable administrative standard or 316
guidelines of this state or a federal regulatory agency may 317
shall be evidence of negligence but is shall not be considered 318
negligence per se. 319
(5) Notwithstanding this section, evidence of a violation 320
described in subsection (4), including licensure inspections 321
and surveys, cited deficiencies, plans of correction, or 322
sanctions imposed by the agency, is admissible as evidence in a 323
claim under this part only if the evidence relates to a 324
material violation of the standards or guidelines specified in 325
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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
this part or an applicable administrative standard or guideline 326
relating to: 327
(a) The alleged occurrence and the particular individual 328
whose injury or death is the basis for the claim; or 329
(b) A finding by the agency that directly involves 330
substantially similar conduct that occurred at the assisted 331
living facility within a period of 12 months before the date of 332
the alleged occurrence that is the basis f or the claim. 333
(6)(3) In a any claim brought pursuant to this section, a 334
licensee, individual person, or entity has shall have a duty to 335
exercise reasonable care. Reasonable care is that degree of care 336
which a reasonably careful licensee, individual person, or 337
entity would use under like circumstances. 338
(7)(4) In a any claim for residents' resident's rights 339
violation or negligence by a nurse licensed under part I of 340
chapter 464, such nurse has shall have the duty to exercise care 341
consistent with the prevailing professional standard of care for 342
a nurse. The prevailing professional standard of care for a 343
nurse is shall be that level of care, skill, and treatment 344
which, in light of all relevant surrounding c ircumstances, is 345
recognized as acceptable and appropriate by reasonably prudent 346
similar nurses. 347
(8)(5) Discovery of financial information for the purpose 348
of determining the value of punitive damages may not be had 349
unless the plaintiff shows the court by proffer or evidence in 350
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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
the record that a reasonable basis exists to support a claim for 351
punitive damages. 352
(9) An individual may provide an expert opinion on the 353
appropriate degree of reasonable care that a reasonably careful 354
licensee, individual, or enti ty would use under like 355
circumstances in operating an assisted living facility as to 356
administrative and other nonclinical issues if the individual 357
has substantial knowledge in operating an assisted living 358
facility in the state by virtue of his or her train ing and 359
experience during the 3 years immediately preceding the date of 360
the alleged occurrence that is the basis for the claim. 361
(10) An individual who holds an active and valid health 362
care professional license issued by the Department of Health may 363
provide an expert opinion concerning the prevailing professional 364
standard of care that a reasonably prudent similar health care 365
professional would use under the relevant surrounding 366
circumstances. The expert witness must have devoted professional 367
time during the 3 years immediately preceding the date of the 368
alleged occurrence that is the basis for the claim to: 369
(a) The active clinical practice of, or active clinical 370
consultation with respect to, the care and treatment of patients 371
residing in an assisted living facility; 372
(b) The instruction of students or active work in an 373
accredited health professional school or accredited residency 374
or clinical research program with respect to the care and 375
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treatment of patients residing in an assisted living facility; 376
or 377
(c) The active clinical practice of, or active clinical 378
consultation with respect to, the care and treatment of 379
patients who are 65 years of age or older. 380
(11) A physician licensed under chapter 458 or chapter 459 381
who qualifies to provide an expert opinion under subsection 382
(10) and who, by reason of active clinical practice or 383
instruction of students, has knowledge of the applicable 384
standard of care for physicians or other medical support staff, 385
may give expert testimony in a negligence action with respect 386
to the professional standard of care of such physicians or 387
other medical support staff. 388
(12) A nurse licensed to practice professional nursing 389
under chapter 464 who qualifies to provide an expert opinion 390
under subsection (10) and who, by reason of active clinical 391
practice or instruction of students, has knowledge of the 392
applicable standard of care for nurses or other medical support 393
staff, may give expert testimony in a negligence action with 394
respect to the professional standard of care of such nurses or 395
other medical support staff. 396
(13) An expert witness may not testify on a contingency 397
fee basis. 398
(14)(6) In addition to any other standards for punitive 399
damages, any award of punitive damages must be reasonable in 400
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light of the actual harm suffered by th e resident and the 401
egregiousness of the conduct that caused the actual harm to the 402
resident. 403
(15)(7) The resident or the resident's legal 404
representative shall serve a copy of a any complaint alleging in 405
whole or in part a violation of any rights specifie d in this 406
part to the agency for Health Care Administration at the time of 407
filing the initial complaint with the clerk of the court for the 408
county in which the action is pursued. The requirement of 409
providing a copy of the complaint to the agency does not i mpair 410
the resident's legal rights or ability to seek relief for his or 411
her claim. 412
(16) A passive investor is not liable under this section. 413
(17) An exclusive cause of action for residents' rights 414
violation or negligence as specified under this part is not a 415
claim for medical negligence; however, s. 768.21(8) applies to a 416
claim alleging death of a resident. 417
Section 6. Subsections (1) and (2), paragraph (a) of 418
subsection (3), and subsection (5) of section 429.293, Florida 419
Statutes, are amended to read : 420
429.293 Presuit notice; investigation; notification of a 421
claim for violation of residents' rights violation or alleged 422
negligence; claims evaluation procedure; informal discovery; 423
review; settlement offer; mediation. — 424
(1) As used in ss. 429.29-429.299 this section, the term: 425
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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
(a) "Claim for residents' rights violation or negligence" 426
means a negligence claim alleging injury to or the death of a 427
resident arising out of an asserted violation of the rights of a 428
resident under s. 429.28 or an asserted dev iation from the 429
applicable standard of care. 430
(b) "Insurer" means any self -insurer authorized under s. 431
627.357, liability insurance carrier, joint underwriting 432
association, or uninsured prospective defendant. 433
(2) Before Prior to filing a claim for residents' rights a 434
violation of a resident's rights or a claim for negligence, a 435
claimant alleging injury to or the death of a resident shall 436
notify each prospective defendant by certified mail, return 437
receipt requested, of an asserted violation of a resident' s 438
rights provided in s. 429.28 or deviation from the standard of 439
care. Such notification shall include an identification of the 440
rights the prospective defendant has violated and the negligence 441
alleged to have caused the incident or incidents and a brief 442
description of the injuries sustained by the resident which are 443
reasonably identifiable at the time of notice. The notice shall 444
contain a certificate of counsel that counsel's reasonable 445
investigation gave rise to a good faith belief that grounds 446
exist for an action against each prospective defendant. 447
Corroboration of reasonable grounds to initiate a claim as to 448
each prospective defendant for residents' rights violation or 449
negligence shall be provided by the claimant's submission of a 450
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written expert opinion f rom an individual qualified as an expert 451
pursuant to s. 400.023 at the time the notice of intent to file 452
a claim is mailed, which stated opinion must corroborate 453
reasonable grounds to support the claim. 454
(3)(a) A No suit may not be filed for a period of 75 days 455
after notice is mailed to any prospective defendant. During the 456
75-day period, the prospective defendants or their insurers 457
shall conduct an evaluation of the claim to determine the 458
liability of each defendant and to evalu ate the damages of the 459
claimants. Each defendant or insurer of the defendant shall have 460
a procedure for the prompt evaluation of claims during the 75 -461
day period. The procedure shall include one or more of the 462
following: 463
1. Internal review by a duly quali fied facility risk 464
manager or claims adjuster; 465
2. Internal review by counsel for each prospective 466
defendant; 467
3. A quality assurance committee authorized under any 468
applicable state or federal statutes or regulations; or 469
4. Any other similar procedure that fairly and promptly 470
evaluates the claims. 471
472
Each defendant or insurer of the defendant shall evaluate the 473
claim in good faith. 474
(5) A No statement, discussion, written document, report, 475
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or other work product generated by presuit claims evaluation 476
procedures under this section is not discoverable or admissible 477
in any civil action for any purpose by the opposing party. All 478
participants, including, but not limited to, physicians, 479
investigators, witnesses, and employees or associates of the 480
defendant, are immune from civil liability arising from 481
participation in the presuit claims evaluation procedure. Any 482
licensed physician or registered nurse may be retained by either 483
party to provide an opinion regarding the reasonable basis of 484
the claim. The presuit opinions of the expert are not 485
discoverable or admissible in any civil action for any purpose 486
by the opposing party. 487
Section 7. Section 429.294, Florida Statutes, is amended 488
to read: 489
429.294 Availability of facility records for investiga tion 490
of residents' resident's rights violations and defenses; 491
penalty.— 492
(1) Failure to provide complete copies of a resident's 493
records, including, but not limited to, all medical records and 494
the resident's chart, within the control or possession of the 495
facility in accordance with s. 400.145, shall constitute 496
evidence of failure of that party to comply with good faith 497
discovery requirements and shall waive the good faith 498
certificate and presuit notice requirements under this part by 499
the requesting party. 500
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(2) A No facility may not shall be held liable for any 501
civil damages as a result of complying with this section. 502
(3) Upon receipt of a written request that complies with 503
the federal Health Insurance Portability and Accountability Act 504
of 1996 (HIPAA) and this section, a facility shall furnish to a 505
competent resident, or to a representative of that resident who 506
is authorized to make requests for the resident's records under 507
HIPAA or subsection (4), copies of the resident's paper and 508
electronic records in t he facility's possession. Such records 509
must include any medical records and records concerning the care 510
and treatment of the resident performed by the facility, except 511
for progress notes and consultation report sections of a 512
psychiatric nature. The facilit y shall provide the requested 513
records within 14 working days after receipt of a request 514
relating to a current resident or within 30 working days after 515
receipt of a request relating to a former resident. 516
(4) Requests for a deceased resident's medical reco rds 517
under this section may be made by: 518
(a) An individual appointed by a court to act as the 519
personal representative, executor, administrator, curator, or 520
temporary administrator of the deceased resident's estate; 521
(b) If a judicial appointment has not b een made as 522
provided in paragraph (a), an individual designated by the 523
resident to act as his or her personal representative in a last 524
will that is self-proved under s. 732.503; or 525
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(c) If a judicial appointment has not been made as 526
provided in paragraph (a) or an individual has not been 527
designated by the resident in a last will as provided in 528
paragraph (b), only the following individuals: 529
1. A surviving spouse of the resident. 530
2. If there is no surviving spouse, a surviving child of 531
the resident. 532
3. If there is no surviving spouse or surviving child, a 533
parent of the resident. 534
(5) All requests for a deceased resident's records made by 535
an individual authorized under: 536
(a) Paragraph (4)(a) must include a copy of the letter of 537
administration and a cop y of the court order appointing such 538
individual as the personal representative of the deceased 539
resident's estate. 540
(b) Paragraph (4)(b) must include a copy of the self -541
proved last will designating such individual as the personal 542
representative of the dece ased resident's estate. 543
(c) Paragraph (4)(c) must be accompanied by a letter from 544
such individual's attorney verifying such individual's 545
relationship to the resident and the absence of a court -546
appointed representative and self -proved last will. 547
(6) A facility may charge a reasonable fee for the copying 548
of resident records. Such fee may not exceed $1 per page for the 549
first 25 pages and 25 cents per page for each additional page. 550
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The facility shall allow an individual who is authorized to act 551
on behalf of the resident to examine the original records, 552
microfilms, or other suitable reproductions of the records in 553
its possession upon any reasonable terms imposed by the facility 554
to ensure that the records are not damaged, destroyed, or 555
altered. 556
(7) If a facility determines that disclosure of the 557
records to the resident would be detrimental to the physical or 558
mental health of the resident, the facility may refuse to 559
furnish the records directly to the resident; however, upon such 560
refusal, the resident's record s shall, upon written request by 561
the resident, be furnished to any other medical provider 562
designated by the resident. 563
(8) A facility that in good faith and in reliance upon 564
this section releases copies of records shall be indemnified by 565
the party who requested the records pursuant to subsection (2) 566
for any damages resulting from such release, may not be found to 567
have violated any criminal or civil laws, and is not civilly 568
liable to the resident, the resident's estate, or any other 569
individual for any damag es resulting from such release. 570
(9) A facility is not required to provide copies of a 571
resident's records requested pursuant to this section more than 572
once per month, except that copies of physician reports in the 573
resident's records must be provided as of ten as necessary to 574
allow the effective monitoring of the resident's condition. 575
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(10) A facility may not be cited by the agency through the 576
survey process for any alleged or actual noncompliance with any 577
of the requirements of this section. 578
(11) This section does not limit any right to obtain 579
records by subpoena or other court process. 580
Section 8. Section 429.295, Florida Statutes, is repealed. 581
Section 9. Subsection (3) of section 429.296, Florida 582
Statutes, is amended to read: 583
429.296 Statute of limitations.— 584
(3) This section shall apply to causes of action that have 585
accrued prior to the effective date of this section; however, 586
any such cause of action that would not have been barred under 587
prior law may be brought within the time allowed by p rior law or 588
within 2 years after the effective date of this section, 589
whichever is earlier, and will be barred thereafter. In actions 590
where it can be shown that fraudulent concealment or intentional 591
misrepresentation of fact prevented the discovery of the i njury, 592
the period of limitations is extended forward 2 years from the 593
time that the injury is discovered with the exercise of due 594
diligence, but in no event more than 4 years from the effective 595
date of this section. 596
Section 10. Section 429.297, Florida Statutes, is amended 597
to read: 598
429.297 Punitive damages; pleading; burden of proof. — 599
(1) A In any action for damages brought under this part, 600
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no claim for punitive damages may not be brought under this part 601
shall be permitted unless there is a reasonable showing by 602
admissible evidence that has been submitted by the parties that 603
provides in the record or proffered by the claimant which would 604
provide a reasonable basis for recovery of such damages pursuant 605
to this section. 606
(a) The claimant may move to a mend her or his complaint to 607
assert a claim for punitive damages as allowed by the rules of 608
civil procedure in accordance with evidentiary requirements 609
provided in this section . 610
(b) The court shall conduct a hearing to determine whether 611
there is sufficient admissible evidence submitted by the parties 612
to ensure that there is a reasonable basis to believe that the 613
claimant, at trial, will be able to demonstrate by clear and 614
convincing evidence that the recovery of such damages is 615
warranted under a claim for direct liability as specified in 616
subsection (2) or under a claim for vicarious liability as 617
specified in subsection (3). 618
(c) The rules of civil procedure shall be liberally 619
construed so as to allow the claimant discovery of evidence 620
which appears reason ably calculated to lead to admissible 621
evidence on the issue of punitive damages. No Discovery of 622
financial worth may not shall proceed until after the pleading 623
concerning punitive damages is approved by the court permitted. 624
(2) A defendant may be held liable for punitive damages 625
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only if the trier of fact, by based on clear and convincing 626
evidence, finds that a specific individual or corporate 627
defendant actively and knowingly participated in intentional 628
misconduct or actively and knowingly engaged in conduct that 629
constitutes gross negligence and contributed to the loss, 630
damages, or injury suffered by the claimant the defendant was 631
personally guilty of intentional misconduct or gross negligence . 632
As used in this section, the ter m: 633
(a)(b) "Gross negligence" means that the defendant's 634
conduct was so reckless or wanting in care that it constituted a 635
conscious disregard or indifference to the life, safety, or 636
rights of individuals persons exposed to such conduct. 637
(b)(a) "Intentional misconduct" means that the defendant 638
against whom punitive damages are sought had actual knowledge of 639
the wrongfulness of the conduct and the high probability that 640
injury or damage to the claimant would result and, despite that 641
knowledge, intentionally pursued that course of conduct, 642
resulting in injury or damage. 643
(3) In the case of vicarious liability of an individual, 644
employer, principal, corporation, or other legal entity, 645
punitive damages may not be imposed for the conduct of an 646
employee or agent unless only if the conduct of the employee or 647
agent meets the criteria specified in subsection (2) and an 648
officer, director, or manager of the actual employer, 649
corporation, or legal entity actively and knowingly participated 650
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in or engaged in the specific c onduct as provided in subsection 651
(2): 652
(a) The employer, principal, corporation, or other legal 653
entity actively and knowingly participated in such conduct; 654
(b) The officers, directors, or managers of the employer, 655
principal, corporation, or other legal entity condoned, 656
ratified, or consented to such conduct; or 657
(c) The employer, principal, corporation, or other legal 658
entity engaged in conduct that constituted gross negligence and 659
that contributed to the loss, damages, or injury suffered by the 660
claimant. 661
(4) The plaintiff shall must establish at trial, by clear 662
and convincing evidence, its entitlement to an award of punitive 663
damages. The "greater weight of the evidence" burden of proof 664
applies to a determination of the amount of damages. 665
(5) This section is remedial in nature and shall take 666
effect upon becoming a law. 667
Section 11. Section 429.299, Florida Statutes, is created 668
to read: 669
429.299 Failure to satisfy a judgment or settlement 670
agreement.— 671
(1) Upon the entry by a Florida court of an adv erse final 672
judgment against a licensee as defined in s. 429.29(2), which 673
arises from an award pursuant to s. 429.29, including an 674
arbitration award, for a claim for residents' rights violation 675
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or negligence, in contract or tort, or from noncompliance with 676
the terms of a settlement agreement as determined by a court or 677
arbitration panel which arises from a claim pursuant to s. 678
429.29, the licensee shall pay the judgment creditor the entire 679
amount of the judgment, award, or settlement and all accrued 680
interest within 60 days after the date such judgment, award, or 681
settlement becomes final and subject to execution unless 682
otherwise mutually agreed to in writing by the parties. Failure 683
to make such payment shall result in additional grounds that may 684
be used by the agency for revoking a license or for denying a 685
renewal application or a related party change of ownership 686
application as provided in this section. 687
(2) The agency is deemed notified of an unsatisfied 688
judgment or settlement under subsection (1) when a cer tified 689
copy of the judgment and a certified copy of a valid judgment 690
lien certificate, filed in accordance with ss. 55.202 and 691
55.203, are served to the agency by process server or received 692
by certified mail, return receipt requested. Within 60 days 693
after receiving such documents, the agency shall notify the 694
licensee by certified mail, return receipt requested, that it is 695
subject to disciplinary action unless, within 30 days after the 696
date of mailing the notice, the licensee: 697
(a) Shows proof that the unsa tisfied judgment or 698
settlement has been paid in the amount specified; 699
(b) Shows proof of the existence of a payment plan 700
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mutually agreed upon by the parties in writing; 701
(c) Furnishes the agency with a copy of a timely filed 702
notice of appeal; 703
(d) Furnishes the agency with a copy of a court order 704
staying execution of the final judgment; or 705
(e) Shows proof by submitting an order from a court or 706
arbitration panel that is overseeing any action seeking 707
indemnification from an insurance carrier or other pa rty that 708
the licensee believes is required to pay the award. 709
(3) If the agency is placed on notice pursuant to 710
subsection (2) and proof pursuant to subsection (2) is not 711
provided by the licensee, the agency shall issue an emergency 712
order pursuant to s. 120.60 declaring that the facility lacks 713
the financial ability to operate and a notice of intent to 714
revoke or deny a license. 715
(4) After the agency is placed on notice pursuant to 716
subsection (2), the following applies: 717
(a) If the license is subject to r enewal, the agency may 718
deny the license renewal unless compliance with this section is 719
achieved; and 720
(b) If a change of ownership application for the facility 721
at issue is submitted by the licensee, by an individual or 722
entity identified as having a contro lling interest in the 723
licensee, or by a related party, the agency shall deny the 724
change of ownership application unless compliance with this 725
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section is achieved. 726
Section 12. The amendments to all sections made by this 727
act shall apply to causes of actio n that accrue on or after July 728
1, 2023. 729
Section 13. This act shall take effect July 1, 2023. 730