Florida Senate - 2023 SB 1304 By Senator Burton 12-00993A-23 20231304__ 1 A bill to be entitled 2 An act relating to claims against long-term care 3 facilities; amending s. 400.023, F.S.; providing 4 requirements for admissible evidence for specified 5 claims; authorizing certain individuals to provide 6 certain expert opinions relating to such claims if 7 they meet specified criteria; prohibiting an expert 8 witness from testifying on a contingency fee basis; 9 amending ss. 400.0233 and 429.293, F.S.; providing 10 requirements for corroboration of reasonable grounds 11 to initiate a claim for residents rights violation or 12 negligence as to each prospective defendant; deleting 13 a provision authorizing a licensed physician or 14 registered nurse to be retained for specified 15 purposes; repealing ss. 400.0235 and 429.295, F.S., 16 relating to specified actions not being applicable to 17 claims for medical malpractice; amending ss. 400.0236 18 and 429.296, F.S.; deleting provisions providing 19 applicability of certain limitations; amending s. 20 429.29, F.S.; providing requirements for an exclusive 21 cause of action for residents rights violations or 22 negligence to be brought against specified 23 individuals; providing definitions; prohibiting such 24 action from being asserted against certain individuals 25 or entities under certain circumstances; providing 26 exceptions; providing requirements for admissible 27 evidence for specified claims; providing requirements 28 for an individual to provide expert opinions; 29 prohibiting an expert witness from testifying on a 30 contingency fee basis; providing immunity from 31 liability for certain individuals; providing that such 32 actions are not claims for medical negligence; 33 amending s. 429.294, F.S.; providing requirements for 34 residents records; prohibiting a facility from being 35 cited by the Agency for Health Care Administration 36 under certain circumstances; providing construction; 37 amending s. 429.297, F.S.; revising requirements for 38 recovery of certain damages and liability for such 39 damages; deleting obsolete language; creating s. 40 429.299, F.S.; providing requirements for a licensee 41 to satisfy a judgment or settlement agreement; 42 providing applicability; providing an effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1.Present subsections (5), (6), (7), (8), and (9) 47 of section 400.023, Florida Statutes, are redesignated as 48 subsections (6), (7), (8), (14), and (15), respectively, new 49 subsections (5) and (9) and subsections (10) through (13) are 50 added to that section, and subsection (4) and present subsection 51 (9) of that section are amended, to read: 52 400.023Civil enforcement. 53 (4)In a claim brought pursuant to this part alleging a 54 violation of residents rights or negligence causing injury to 55 or the death of a resident, the claimant has the burden of 56 proving, by a preponderance of the evidence, that: 57 (a)The defendant owed a duty to the resident; 58 (b)The defendant breached the duty to the resident; 59 (c)The breach of the duty is a legal cause of loss, 60 injury, death, or damage to the resident; and 61 (d)The resident sustained loss, injury, death, or damage 62 as a result of the breach. 63 64 This part does not create strict liability. A violation of the 65 rights provided set forth in s. 400.022, in any other standard 66 or guidelines specified in this part, or in any applicable 67 administrative standard or guidelines of this state or a federal 68 regulatory agency may be is evidence of negligence but is not 69 considered negligence per se. 70 (5)Notwithstanding this section, evidence of a violation 71 described in subsection (4), including licensure inspections and 72 surveys, cited deficiencies, plans of correction, or sanctions 73 imposed by the agency, is admissible as evidence in a claim 74 under this part only if the evidence relates to a material 75 violation of the standards or guidelines specified in this part 76 or an applicable administrative standard or guideline relating 77 to: 78 (a)The alleged occurrence and the particular individual 79 whose injury or death is the basis for the claim; or 80 (b)A finding by the agency which directly involves 81 substantially similar conduct that occurred at the nursing home 82 facility within a period of 12 months before the date of the 83 alleged occurrence that is the basis for the claim. 84 (9)An individual may provide an expert opinion on the 85 appropriate degree of reasonable care that a reasonably careful 86 licensee, individual, or entity would use under like 87 circumstances in operating a nursing home facility as to 88 administrative and other nonclinical issues if the individual 89 has substantial knowledge in regard to operating a nursing home 90 facility in the state by virtue of his or her training and 91 experience during the 3 years immediately preceding the date of 92 the alleged occurrence that is the basis for the claim. 93 (10)An individual who holds an active and valid health 94 care professional license issued by the Department of Health may 95 provide an expert opinion concerning the prevailing professional 96 standard of care that a reasonably prudent similar health care 97 professional would use under the relevant surrounding 98 circumstances. The expert witness must have devoted professional 99 time during the 3 years immediately preceding the date of the 100 alleged occurrence that is the basis for the claim to: 101 (a)The active clinical practice of, or active clinical 102 consultation with respect to, the care and treatment of patients 103 residing in a nursing home facility; 104 (b)The instruction of students or active work in an 105 accredited health professional school or accredited residency or 106 clinical research program with respect to the care and treatment 107 of patients residing in a nursing home facility; or 108 (c)The active clinical practice of, or active clinical 109 consultation with respect to, the care and treatment of patients 110 who are 65 years of age or older. 111 (11)A physician licensed under chapter 458 or chapter 459 112 who qualifies to provide an expert opinion under subsection (10) 113 and who, by reason of active clinical practice or instruction of 114 students, has knowledge of the applicable standard of care for 115 physicians or other medical support staff, may give expert 116 testimony in a negligence action with respect to the 117 professional standard of care of such physicians or other 118 medical support staff. 119 (12)A nurse licensed to practice professional nursing 120 under chapter 464 who qualifies to provide an expert opinion 121 under subsection (10) and who, by reason of active clinical 122 practice or instruction of students, has knowledge of the 123 applicable standard of care for nurses or other medical support 124 staff, may give expert testimony in a negligence action with 125 respect to the professional standard of care of such nurses or 126 other medical support staff. 127 (13)An expert witness may not testify on a contingency fee 128 basis. 129 (15)(9)An action under this part for a violation of the 130 rights or negligence recognized herein is not a claim for 131 medical negligence; however, malpractice, and s. 768.21(8) 132 applies does not apply to a claim alleging death of a the 133 resident. 134 Section 2.Subsections (1), (2), (4), and (5) of section 135 400.0233, Florida Statutes, are amended to read: 136 400.0233Presuit notice; investigation; notification of 137 violation of residents residents rights or alleged negligence; 138 claims evaluation procedure; informal discovery; review; 139 settlement offer; mediation. 140 (1)As used in ss. 400.023-400.0238 this section, the term: 141 (a)Claim for residents residents rights violation or 142 negligence means a negligence claim alleging injury to or the 143 death of a resident arising out of an asserted violation of the 144 rights of a resident under s. 400.022 or an asserted deviation 145 from the applicable standard of care. 146 (b)Insurer means any self-insurer authorized under s. 147 627.357, liability insurance carrier, joint underwriting 148 association, or uninsured prospective defendant. 149 (2)Before Prior to filing a claim for residents rights a 150 violation of a residents rights or a claim for negligence, a 151 claimant alleging injury to or the death of a resident shall 152 notify each prospective defendant by certified mail, return 153 receipt requested, of an asserted violation of a residents 154 rights provided in s. 400.022 or deviation from the standard of 155 care. Such notification shall include an identification of the 156 rights the prospective defendant has violated and the negligence 157 alleged to have caused the incident or incidents and a brief 158 description of the injuries sustained by the resident which are 159 reasonably identifiable at the time of notice. The notice shall 160 contain a certificate of counsel that counsels reasonable 161 investigation gave rise to a good faith belief that grounds 162 exist for an action against each prospective defendant. 163 Corroboration of reasonable grounds to initiate a claim for 164 residents rights violation or negligence as to each prospective 165 defendant shall be provided by the claimants submission of a 166 written expert opinion from an individual qualified as an expert 167 pursuant to s. 400.023 at the time the notice of intent to file 168 a claim is mailed, which stated opinion must corroborate 169 reasonable grounds to support the claim. 170 (4)The notification of a violation of residents a 171 residents rights or alleged negligence shall be served within 172 the applicable statute of limitations period; however, during 173 the 75-day period, the statute of limitations is tolled as to 174 all prospective defendants. Upon stipulation by the parties, the 175 75-day period may be extended and the statute of limitations is 176 tolled during any such extension. Upon receiving written notice 177 by certified mail, return receipt requested, of termination of 178 negotiations in an extended period, the claimant shall have 60 179 days or the remainder of the period of the statute of 180 limitations, whichever is greater, within which to file suit. 181 (5)A No statement, discussion, written document, report, 182 or other work product generated by presuit claims evaluation 183 procedures under this section is not discoverable or admissible 184 in any civil action for any purpose by the opposing party. All 185 participants, including, but not limited to, physicians, 186 investigators, witnesses, and employees or associates of the 187 defendant, are immune from civil liability arising from 188 participation in the presuit claims evaluation procedure. Any 189 licensed physician or registered nurse may be retained by either 190 party to provide an opinion regarding the reasonable basis of 191 the claim. The presuit opinions of the expert are not 192 discoverable or admissible in any civil action for any purpose 193 by the opposing party. 194 Section 3.Section 400.0235, Florida Statutes, is repealed. 195 Section 4.Subsection (3) of section 400.0236, Florida 196 Statutes, is amended to read: 197 400.0236Statute of limitations. 198 (3)This section shall apply to causes of action that have 199 accrued prior to the effective date of this section; however, 200 any such cause of action that would not have been barred under 201 prior law may be brought within the time allowed by prior law or 202 within 2 years after the effective date of this section, 203 whichever is earlier, and will be barred thereafter. In actions 204 where it can be shown that fraudulent concealment or intentional 205 misrepresentation of fact prevented the discovery of the injury, 206 the period of limitations is extended forward 2 years from the 207 time that the injury is discovered with the exercise of due 208 diligence, but in no event more than 4 years from the effective 209 date of this section. 210 Section 5.Section 429.29, Florida Statutes, is amended to 211 read: 212 429.29Civil 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 licensees management or consulting company, the licensees 220 managing employees, and any direct caregivers, whether employees 221 or contractors are violated shall have a cause of action. 222 (a)The action may be brought by the resident or his or her 223 guardian, or by an individual a person or organization acting on 224 behalf of a resident with the consent of the resident or his or 225 her guardian, or by the personal representative of the estate of 226 a deceased resident regardless of the cause of death. 227 (b)If the action alleges a claim for residents the 228 residents rights violation or for negligence that caused the 229 death of the resident, the claimant shall, after the verdict, 230 but before the judgment is entered, be required to elect either 231 survival damages pursuant to s. 46.021 or wrongful death damages 232 pursuant to s. 768.21. If the action alleges a claim for 233 residents the residents 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 attorneys fee assessed against the defendant of up to not to 245 exceed $25,000. Such attorney fees shall be awarded solely for 246 the injunctive or administrative relief and not for any claim or 247 action for damages whether such claim or action is brought 248 together with a request for an injunction or administrative 249 relief or as a separate action, except as provided under s. 250 768.79 or the Florida Rules of Civil Procedure. Sections 429.29 251 429.298 provide the exclusive remedy for a cause of action for 252 recovery of damages for the personal injury or death of a 253 resident arising out of negligence or a violation of rights 254 specified in s. 429.28. 255 (e)This section does not preclude theories of recovery not 256 arising out of negligence or s. 429.28 which are available to a 257 resident or to the agency. The provisions of Chapter 766 does do 258 not apply to any cause of action brought under ss. 429.29 259 429.298. An action against any other individual or entity may be 260 brought only pursuant to subsection (3). 261 (2)As used in this section, the term: 262 (a)Licensee means an individual, corporation, 263 partnership, firm, association, governmental entity, or other 264 entity that is issued a permit, registration, certificate, or 265 license by the agency and is legally responsible for all aspects 266 of the operation of the facility. 267 (b)Management or consulting company means an individual 268 or entity that contracts with, or receives a fee from, a 269 licensee to provide any of the following services for a 270 facility: 271 1.Hiring or firing the administrator; 272 2.Controlling or having control over the staffing levels 273 at the facility; 274 3.Having control over the budget of the facility; or 275 4.Implementing and enforcing the policies and procedures 276 of the facility. 277 (c)Passive investor means an individual or entity that 278 has an interest in a facility but does not participate in the 279 decisionmaking or operations of the facility. 280 (3)An exclusive 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 licensees 283 management or consulting company, the licensees managing 284 employees, and any direct caregivers, 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 care 290 to the resident and the individual or entity breached that duty; 291 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 pleading. 300 (4)(2)In any claim brought pursuant to this part alleging 301 a violation of residents residents 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, death, 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 applicable 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 and 321 surveys, cited deficiencies, plans of correction, or sanctions 322 imposed by the agency, is admissible as evidence in a claim 323 under this part only if the evidence relates to a material 324 violation of the standards or guidelines specified in this part 325 or an applicable administrative standard or guideline relating 326 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 which 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 for 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 residents 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 circumstances, 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 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 entity 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 regard to operating an assisted 358 living facility in the state by virtue of his or her training 359 and experience during the 3 years immediately preceding the date 360 of 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 or 374 clinical research program with respect to the care and treatment 375 of patients residing in an assisted living facility; or 376 (c)The active clinical practice of, or active clinical 377 consultation with respect to, the care and treatment of patients 378 who are 65 years of age or older. 379 (11)A physician licensed under chapter 458 or chapter 459 380 who qualifies to provide an expert opinion under subsection (10) 381 and who, by reason of active clinical practice or instruction of 382 students, has knowledge of the applicable standard of care for 383 physicians or other medical support staff, may give expert 384 testimony in a negligence action with respect to the 385 professional standard of care of such physicians or other 386 medical support staff. 387 (12)A nurse licensed to practice professional nursing 388 under chapter 464 who qualifies to provide an expert opinion 389 under subsection (10) and who, by reason of active clinical 390 practice or instruction of students, has knowledge of the 391 applicable standard of care for nurses or other medical support 392 staff, may give expert testimony in a negligence action with 393 respect to the professional standard of care of such nurses or 394 other medical support staff. 395 (13)An expert witness may not testify on a contingency fee 396 basis. 397 (14)(6)In addition to any other standards for punitive 398 damages, any award of punitive damages must be reasonable in 399 light of the actual harm suffered by the resident and the 400 egregiousness of the conduct that caused the actual harm to the 401 resident. 402 (15)(7)The resident or the residents legal representative 403 shall serve a copy of a any complaint alleging in whole or in 404 part a violation of any rights specified in this part to the 405 agency for Health Care Administration at the time of filing the 406 initial complaint with the clerk of the court for the county in 407 which the action is pursued. The requirement of providing a copy 408 of the complaint to the agency does not impair the residents 409 legal rights or ability to seek relief for his or her claim. 410 (16)A passive investor is not liable under this section. 411 (17)An exclusive cause of action for residents rights 412 violation or negligence as specified under this part is not a 413 claim for medical negligence; however, s. 768.21(8) applies to a 414 claim alleging death of a resident. 415 Section 6.Subsections (1) and (2), paragraph (a) of 416 subsection (3), and subsection (5) of section 429.293, Florida 417 Statutes, are amended to read: 418 429.293Presuit notice; investigation; notification of a 419 claim for violation of residents rights violation or alleged 420 negligence; claims evaluation procedure; informal discovery; 421 review; settlement offer; mediation. 422 (1)As used in ss. 429.29-429.299 this section, the term: 423 (a)Claim for residents rights violation or negligence 424 means a negligence claim alleging injury to or the death of a 425 resident arising out of an asserted violation of the rights of a 426 resident under s. 429.28 or an asserted deviation from the 427 applicable standard of care. 428 (b)Insurer means any self-insurer authorized under s. 429 627.357, liability insurance carrier, joint underwriting 430 association, or uninsured prospective defendant. 431 (2)Before Prior to filing a claim for residents rights a 432 violation of a residents rights or a claim for negligence, a 433 claimant alleging injury to or the death of a resident shall 434 notify each prospective defendant by certified mail, return 435 receipt requested, of an asserted violation of a residents 436 rights provided in s. 429.28 or deviation from the standard of 437 care. Such notification shall include an identification of the 438 rights the prospective defendant has violated and the negligence 439 alleged to have caused the incident or incidents and a brief 440 description of the injuries sustained by the resident which are 441 reasonably identifiable at the time of notice. The notice shall 442 contain a certificate of counsel that counsels reasonable 443 investigation gave rise to a good faith belief that grounds 444 exist for an action against each prospective defendant. 445 Corroboration of reasonable grounds to initiate a claim for 446 residents rights violation or negligence as to each prospective 447 defendant shall be provided by the claimants submission of a 448 written expert opinion from an individual qualified as an expert 449 pursuant to s. 400.023 at the time the notice of intent to file 450 a claim is mailed, which stated opinion must corroborate 451 reasonable grounds to support the claim. 452 (3)(a)A No suit may not be filed for a period of 75 days 453 after notice is mailed to any prospective defendant. During the 454 75-day period, the prospective defendants or their insurers 455 shall conduct an evaluation of the claim to determine the 456 liability of each defendant and to evaluate the damages of the 457 claimants. Each defendant or insurer of the defendant shall have 458 a procedure for the prompt evaluation of claims during the 75 459 day period. The procedure shall include one or more of the 460 following: 461 1.Internal review by a duly qualified facility risk 462 manager or claims adjuster; 463 2.Internal review by counsel for each prospective 464 defendant; 465 3.A quality assurance committee authorized under any 466 applicable state or federal statutes or regulations; or 467 4.Any other similar procedure that fairly and promptly 468 evaluates the claims. 469 470 Each defendant or insurer of the defendant shall evaluate the 471 claim in good faith. 472 (5)A No statement, discussion, written document, report, 473 or other work product generated by presuit claims evaluation 474 procedures under this section is not discoverable or admissible 475 in any civil action for any purpose by the opposing party. All 476 participants, including, but not limited to, physicians, 477 investigators, witnesses, and employees or associates of the 478 defendant, are immune from civil liability arising from 479 participation in the presuit claims evaluation procedure. Any 480 licensed physician or registered nurse may be retained by either 481 party to provide an opinion regarding the reasonable basis of 482 the claim. The presuit opinions of the expert are not 483 discoverable or admissible in any civil action for any purpose 484 by the opposing party. 485 Section 7.Section 429.294, Florida Statutes, is amended to 486 read: 487 429.294Availability of facility records for investigation 488 of residents residents rights violations and defenses; 489 penalty. 490 (1)Failure to provide complete copies of a residents 491 records, including, but not limited to, all medical records and 492 the residents chart, within the control or possession of the 493 facility in accordance with s. 400.145, shall constitute 494 evidence of failure of that party to comply with good faith 495 discovery requirements and shall waive the good faith 496 certificate and presuit notice requirements under this part by 497 the requesting party. 498 (2)A No facility may not shall be held liable for any 499 civil damages as a result of complying with this section. 500 (3)Upon receipt of a written request that complies with 501 the federal Health Insurance Portability and Accountability Act 502 of 1996 (HIPAA) and this section, a facility shall furnish to a 503 competent resident, or to a representative of that resident who 504 is authorized to make requests for the residents records under 505 HIPAA or subsection (4), copies of the residents paper and 506 electronic records in the facilitys possession. Such records 507 must include any medical records and records concerning the care 508 and treatment of the resident performed by the facility, except 509 for progress notes and consultation report sections of a 510 psychiatric nature. The facility shall provide the requested 511 records within 14 working days after receipt of a request 512 relating to a current resident or within 30 working days after 513 receipt of a request relating to a former resident. 514 (4)Requests for a deceased residents medical records 515 under this section may be made by: 516 (a)An individual appointed by a court to act as the 517 personal representative, executor, administrator, curator, or 518 temporary administrator of the deceased residents estate; 519 (b)If a judicial appointment has not been made as provided 520 in paragraph (a), an individual designated by the resident to 521 act as his or her personal representative in a last will that is 522 self-proved under s. 732.503; or 523 (c)If a judicial appointment has not been made as provided 524 in paragraph (a) or an individual has not been designated by the 525 resident in a last will as provided in paragraph (b), only the 526 following individuals: 527 1.A surviving spouse of the resident. 528 2.If there is no surviving spouse, a surviving child of 529 the resident. 530 3.If there is no surviving spouse or surviving child, a 531 parent of the resident. 532 (5)All requests for a deceased residents records made by 533 an individual authorized under: 534 (a)Paragraph (4)(a) must include a copy of the letter of 535 administration and a copy of the court order appointing such 536 individual as the personal representative of the deceased 537 residents estate. 538 (b)Paragraph (4)(b) must include a copy of the self-proved 539 last will designating such individual as the personal 540 representative of the deceased residents estate. 541 (c)Paragraph (4)(c) must be accompanied by a letter from 542 such individuals attorney verifying such individuals 543 relationship to the deceased resident and the absence of a 544 court-appointed personal representative and self-proved last 545 will. 546 (6)A facility may charge a reasonable fee for the copying 547 of resident records. Such fee may not exceed $1 per page for the 548 first 25 pages and 25 cents per page for each additional page. 549 The facility shall allow an individual who is authorized to act 550 on behalf of the resident to examine the original records, 551 microfilms, or other suitable reproductions of the records in 552 its possession upon any reasonable terms imposed by the facility 553 to ensure that the records are not damaged, destroyed, or 554 altered. 555 (7)If a facility determines that disclosure of the records 556 to the resident would be detrimental to the physical or mental 557 health of the resident, the facility may refuse to furnish the 558 records directly to the resident; however, upon such refusal, 559 the residents records shall, upon written request by the 560 resident, be furnished to any other medical provider designated 561 by the resident. 562 (8)A facility that in good faith and in reliance upon this 563 section releases copies of records shall be indemnified by the 564 party who requested the records pursuant to subsection (2) for 565 any damages resulting from such release, may not be found to 566 have violated any criminal or civil laws, and is not civilly 567 liable to the resident, the residents estate, or any other 568 individual for any damages resulting from such release. 569 (9)A facility is not required to provide copies of a 570 residents records requested pursuant to this section more than 571 once per month, except that copies of physician reports in the 572 residents records must be provided as often as necessary to 573 allow the effective monitoring of the residents condition. 574 (10)A facility may not be cited by the agency through the 575 survey process for any alleged or actual noncompliance with any 576 of the requirements of this section. 577 (11)This section does not limit any right to obtain 578 records by subpoena or other court process. 579 Section 8.Section 429.295, Florida Statutes, is repealed. 580 Section 9.Subsection (3) of section 429.296, Florida 581 Statutes, is amended to read: 582 429.296Statute of limitations. 583 (3)This section shall apply to causes of action that have 584 accrued prior to the effective date of this section; however, 585 any such cause of action that would not have been barred under 586 prior law may be brought within the time allowed by prior law or 587 within 2 years after the effective date of this section, 588 whichever is earlier, and will be barred thereafter. In actions 589 where it can be shown that fraudulent concealment or intentional 590 misrepresentation of fact prevented the discovery of the injury, 591 the period of limitations is extended forward 2 years from the 592 time that the injury is discovered with the exercise of due 593 diligence, but in no event more than 4 years from the effective 594 date of this section. 595 Section 10.Section 429.297, Florida Statutes, is amended 596 to read: 597 429.297Punitive damages; pleading; burden of proof. 598 (1)A In any action for damages brought under this part, no 599 claim for punitive damages may not be brought under this part 600 shall be permitted unless there is a reasonable showing by 601 admissible evidence that has been submitted by the parties which 602 provides in the record or proffered by the claimant which would 603 provide a reasonable basis for recovery of such damages pursuant 604 to this section. 605 (a)The claimant may move to amend her or his complaint to 606 assert a claim for punitive damages as allowed by the rules of 607 civil procedure in accordance with evidentiary requirements 608 provided in this section. 609 (b)The court shall conduct a hearing to determine whether 610 there is sufficient admissible evidence submitted by the parties 611 to ensure that there is a reasonable basis to believe that the 612 claimant, at trial, will be able to demonstrate by clear and 613 convincing evidence that the recovery of such damages is 614 warranted under a claim for direct liability as specified in 615 subsection (2) or under a claim for vicarious liability as 616 specified in subsection (3). 617 (c)The rules of civil procedure shall be liberally 618 construed so as to allow the claimant discovery of evidence 619 which appears reasonably calculated to lead to admissible 620 evidence on the issue of punitive damages. No Discovery of 621 financial worth may not shall proceed until after the pleading 622 concerning punitive damages is approved by the court permitted. 623 (2)A defendant may be held liable for punitive damages 624 only if the trier of fact, by based on clear and convincing 625 evidence, finds that a specific individual or corporate 626 defendant actively and knowingly participated in intentional 627 misconduct or actively and knowingly engaged in conduct that 628 constitutes gross negligence and contributed to the loss, 629 damages, or injury suffered by the claimant the defendant was 630 personally guilty of intentional misconduct or gross negligence. 631 As used in this section, the term: 632 (b)(a)Intentional misconduct means that the defendant 633 against whom punitive damages are sought had actual knowledge of 634 the wrongfulness of the conduct and the high probability that 635 injury or damage to the claimant would result and, despite that 636 knowledge, intentionally pursued that course of conduct, 637 resulting in injury or damage. 638 (a)(b)Gross negligence means that the defendants 639 conduct was so reckless or wanting in care that it constituted a 640 conscious disregard or indifference to the life, safety, or 641 rights of individuals persons exposed to such conduct. 642 (3)In the case of vicarious liability of an individual, 643 employer, principal, corporation, or other legal entity, 644 punitive damages may not be imposed for the conduct of an 645 employee or agent unless only if the conduct of the employee or 646 agent meets the criteria specified in subsection (2) and an 647 officer, director, or manager of the actual employer, 648 corporation, or legal entity actively and knowingly participated 649 in or engaged in the specific conduct as provided in subsection 650 (2): 651 (a)The employer, principal, corporation, or other legal 652 entity actively and knowingly participated in such conduct; 653 (b)The officers, directors, or managers of the employer, 654 principal, corporation, or other legal entity condoned, 655 ratified, or consented to such conduct; or 656 (c)The employer, principal, corporation, or other legal 657 entity engaged in conduct that constituted gross negligence and 658 that contributed to the loss, damages, or injury suffered by the 659 claimant. 660 (4)The plaintiff shall must establish at trial, by clear 661 and convincing evidence, its entitlement to an award of punitive 662 damages. The greater weight of the evidence burden of proof 663 applies to a determination of the amount of damages. 664 (5)This section is remedial in nature and shall take 665 effect upon becoming a law. 666 Section 11.Section 429.299, Florida Statutes, is created 667 to read: 668 429.299Failure to satisfy a judgment or settlement 669 agreement. 670 (1)Upon the entry by a court in this state of an adverse 671 final judgment against a licensee as defined in s. 429.29(2) 672 which arises from an award pursuant to s. 429.29, including an 673 arbitration award, for a claim for residents rights violation 674 or negligence, in contract or tort, or from noncompliance with 675 the terms of a settlement agreement as determined by a court or 676 arbitration panel which arises from a claim pursuant to s. 677 429.29, the licensee shall pay the judgment creditor the entire 678 amount of the judgment, award, or settlement and all accrued 679 interest within 60 days after the date such judgment, award, or 680 settlement becomes final and subject to execution unless 681 otherwise mutually agreed to in writing by the parties. Failure 682 to make such payment shall result in additional grounds that may 683 be used by the agency for revoking a license or for denying a 684 renewal application or a related party change of ownership 685 application as provided in this section. 686 (2)The agency is deemed notified of an unsatisfied 687 judgment or settlement under subsection (1) when a certified 688 copy of the judgment and a certified copy of a valid judgment 689 lien certificate, filed in accordance with ss. 55.202 and 690 55.203, are served to the agency by process server or received 691 by certified mail, return receipt requested. Within 60 days 692 after receiving such documents, the agency shall notify the 693 licensee by certified mail, return receipt requested, that it is 694 subject to disciplinary action unless, within 30 days after the 695 date of mailing the notice, the licensee: 696 (a)Shows proof that the unsatisfied judgment or settlement 697 has been paid in the amount specified; 698 (b)Shows proof of the existence of a payment plan mutually 699 agreed upon by the parties in writing; 700 (c)Furnishes the agency with a copy of a timely filed 701 notice of appeal; 702 (d)Furnishes the agency with a copy of a court order 703 staying execution of the final judgment; or 704 (e)Shows proof by submitting an order from a court or 705 arbitration panel that is overseeing any action seeking 706 indemnification from an insurance carrier or other party that 707 the licensee believes is required to pay the award. 708 (3)If the agency is placed on notice pursuant to 709 subsection (2) and proof pursuant to subsection (2) is not 710 provided by the licensee, the agency shall issue an emergency 711 order pursuant to s. 120.60 declaring that the facility lacks 712 the financial ability to operate and a notice of intent to 713 revoke or deny a license. 714 (4)After the agency is placed on notice pursuant to 715 subsection (2), the following applies: 716 (a)If the license is subject to renewal, the agency may 717 deny the license renewal unless compliance with this section is 718 achieved; and 719 (b)If a change of ownership application for the facility 720 at issue is submitted by the licensee, by an individual or 721 entity identified as having a controlling interest in the 722 licensee, or by a related party, the agency shall deny the 723 change of ownership application unless compliance with this 724 section is achieved. 725 Section 12.The amendments to all sections made by this act 726 shall apply to causes of action that accrue on or after July 1, 727 2023. 728 Section 13.This act shall take effect July 1, 2023.