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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 civil actions involving assisted 2
living facilities; amending s. 429.29, F.S.; providing 3
definitions; providing requirements for an exclusive 4
cause of action for residents' rights violations or 5
negligence to be brought against specified 6
individuals; providing immunity from liability for 7
certain individuals; prohibiting such action from 8
being asserted against certain individuals or entities 9
under certain circumstances; providing exceptions; 10
amending s. 429.297, F.S.; revising requirements for 11
recovery of certain damages and liability for such 12
damages; revising definitions; deleting obsolete 13
language; providing applicability; providing an 14
effective date. 15
16
Be It Enacted by the Legislature of the State of Florida: 17
18
Section 1. Section 429.29, Florida Statutes, is amended to 19
read: 20
429.29 Civil actions to enforce rights. — 21
(1) As used in this section, the term: 22
(a) "Licensee" means an indivi dual, corporation, 23
partnership, firm, association, governmental entity, or other 24
entity that is issued a permit, registration, certificate, or 25
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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
license by the agency and is legally responsible for all aspects 26
of the operation of the facility. 27
(b) "Management company or active participant" means an 28
individual or entity that contracts or receives a fee to provide 29
any of the following services for a facility: 30
1. Hiring or firing the administrator or director of 31
nursing; 32
2. Controlling or having control ov er staffing levels at 33
the facility; 34
3. Having control over the budget of the facility; 35
4. Implementing and enforcing the policies and procedures 36
of the facility; or 37
5. Receiving and controlling a line of credit, loan, or 38
other credit instrument that is used either in whole or in part 39
by, or for the benefit of, the subject facility where a resident 40
resides or resided during the subject residency. 41
(c) "Passive investor" means an individual or entity that 42
has an interest in a facility but does not part icipate in the 43
decisionmaking or operations of the facility. 44
(2) An exclusive cause of action for a residents' Any 45
person or resident whose rights violation or for negligence as 46
specified under in this part which alleges direct or vicarious 47
liability for the personal injury or death of a resident arising 48
from such rights violation or negligence and which seeks damages 49
for such injury or death may be brought only against the 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
licensee, the licensee's management company or active 51
participant, the licensee's managing employees, or any direct 52
caregivers, whether employees or contractors. A passive investor 53
is not liable under this section. An action against any other 54
individual or entity may be brought only pursuant to subsection 55
(3) are violated shall have a c ause of action. 56
(a) The action may be brought by the resident or his or 57
her guardian, or by an individual a person or organization 58
acting on behalf of a resident with the consent of the resident 59
or his or her guardian, or by the personal representative of the 60
estate of a deceased resident regardless of the cause of death. 61
(b) If the action alleges a claim for a residents' the 62
resident's rights violation or for negligence that caused the 63
death of the resident, the claimant must, after the verdict, but 64
before the judgment is entered, shall be required to elect 65
either survival damages pursuant to s. 46.021 or wrongful death 66
damages pursuant to s. 768.21. If the action alleges a claim for 67
a residents' the resident's rights violation or for negligence 68
that did not cause the death of the resident, the personal 69
representative of the estate may recover damages for the 70
negligence that caused injury to the resident. 71
(c) The action may be brought in any co urt of competent 72
jurisdiction to enforce such rights and to recover actual 73
damages, and punitive damages for the residents' rights 74
violation of the rights of a resident or negligence. 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
(d) A Any resident who prevails in seeking injunctive 76
relief or a claim for an administrative remedy is entitled to 77
recover the costs of the action and a reasonable attorney fees 78
attorney's fee assessed against the defendant of up to not to 79
exceed $25,000. Such attorney fees must shall be awarded solely 80
for the injunctive or administrative relief and not for any 81
claim or action for damages whether such claim or action is 82
brought together with a request for an injunction or 83
administrative relief or as a separate action, except as 84
provided under s. 768.79 o r the Florida Rules of Civil 85
Procedure. Sections 429.29-429.298 provide the exclusive remedy 86
for a cause of action for recovery of damages for the personal 87
injury or death of a resident arising out of negligence or a 88
violation of rights specified in s. 429 .28. 89
(e) This section does not preclude theories of recovery 90
not arising out of negligence or s. 429.28 which are available 91
to a resident or to the agency. The provisions of Chapter 766 92
does do not apply to any cause of action brought under ss. 93
429.29-429.298. 94
(3) A cause of action for a residents' rights violation or 95
for negligence may not be asserted against an individual or 96
entity other than the licensee, the licensee's management 97
company or active participant, the licensee's managing 98
employees, or any direct caregivers, whether employees or 99
contractors, unless, after a motion for leave to amend hearing, 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
the court or an arbitration panel determines that there is 101
sufficient evidence in the record or proffered by the claimant 102
to establish a reasonable showing that: 103
(a) The individual or entity owed a duty of reasonable 104
care to the resident and breached that duty; and 105
(b) The breach of that duty is a legal cause of loss, 106
injury, death, or damage to the resident. 107
108
For purposes of this subsection, if i t is asserted in a proposed 109
amended pleading that such cause of action arose out of the 110
conduct, transaction, or occurrence set forth or attempted to be 111
set forth in the original pleading, the proposed amendment 112
relates back to the original pleading. 113
(4)(2) In any claim brought pursuant to this part alleging 114
a violation of residents' resident's rights or negligence 115
causing injury to or the death of a resident, the claimant has 116
shall have the burden of proving, by a preponderance of the 117
evidence, that: 118
(a) The defendant owed a duty to the resident; 119
(b) The defendant breached the duty to the resident; 120
(c) The breach of the duty is a legal cause of loss, 121
injury, death, or damage to the resident; and 122
(d) The resident sustained loss, injury, death, or d amage 123
as a result of the breach. 124
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
Nothing in This part does not shall be interpreted to create 126
strict liability. A violation of the rights provided set forth 127
in s. 429.28 or in any other standard or guidelines specified in 128
this part or in any applicable ad ministrative standard or 129
guidelines of this state or a federal regulatory agency may 130
shall be evidence of negligence but is shall not be considered 131
negligence per se. 132
(5)(3) In a any claim brought pursuant to this section, a 133
licensee, individual person, or entity has shall have a duty to 134
exercise reasonable care. Reasonable care is that degree of care 135
which a reasonably careful licensee, individual person, or 136
entity would use under like circumstances. 137
(6)(4) In a any claim for a residents' resident's rights 138
violation or for negligence by a nurse licensed under part I of 139
chapter 464, such nurse has shall have the duty to exercise care 140
consistent with the prevailing professional standard of care for 141
a nurse. The prevailing professional standard of care for a 142
nurse is shall be that level of care, skill, and treatment 143
which, in light of all relevant surrounding circumstances, is 144
recognized as acceptable and appropriate by reasonably prudent 145
similar nurses. 146
(7)(5) Discovery of financial information for th e purpose 147
of determining the value of punitive damages may not be 148
conducted had unless the plaintiff shows the court by proffer or 149
evidence in the record that a reasonable basis exists to support 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
a claim for punitive damages. 151
(8)(6) In addition to any ot her standards for punitive 152
damages, any award of punitive damages must be reasonable in 153
light of the actual harm suffered by the resident and the 154
egregiousness of the conduct that caused the actual harm to the 155
resident. 156
(9)(7) The resident or the residen t's legal representative 157
shall serve a copy of a any complaint alleging in whole or in 158
part a violation of any rights specified in this part to the 159
agency for Health Care Administration at the time of filing the 160
initial complaint with the clerk of the cour t for the county in 161
which the action is pursued. The requirement of providing a copy 162
of the complaint to the agency does not impair the resident's 163
legal rights or ability to seek relief for his or her claim. 164
Section 2. Section 429.297, Florida Statutes , is amended 165
to read: 166
429.297 Punitive damages; pleading; burden of proof. — 167
(1) A In any action for damages brought under this part, 168
no claim for punitive damages may not be brought under this part 169
shall be permitted unless there is a reasonable showing by 170
admissible evidence submitted by the parties which provides in 171
the record or proffered by the claimant which would provide a 172
reasonable basis for recovery of such damages pursuant to this 173
section. 174
(a) The claimant may move to amend her or his compla int to 175
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assert a claim for punitive damages as allowed by the rules of 176
civil procedure in accordance with evidentiary requirements 177
provided in this section . 178
(b) The court shall conduct a hearing to determine whether 179
there is sufficient admissible evidence submitted by the parties 180
to ensure that there is a reasonable basis to believe that the 181
claimant, at trial, will be able to demonstrate by clear and 182
convincing evidence that the recovery of such damages is 183
warranted under a claim for direct liability as s pecified in 184
subsection (2) or under a claim for vicarious liability as 185
specified in subsection (3). 186
(c) The rules of civil procedure must shall be liberally 187
construed so as to allow the claimant discovery of evidence 188
which appears reasonably calculated t o lead to admissible 189
evidence on the issue of punitive damages. No Discovery of 190
financial worth may not shall proceed until after the pleading 191
concerning punitive damages is approved by the court permitted. 192
(2) A defendant may be held liable for punitive damages 193
only if the trier of fact, by based on clear and convincing 194
evidence, finds that a specific individual or corporate 195
defendant actively and knowingly participated in intentional 196
misconduct or actively and knowingly engaged in conduct that 197
constitutes gross negligence and contributed to the loss, 198
damages, or injury suffered by the claimant the defendant was 199
personally guilty of intentional misconduct or gross negligence . 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
As used in this section, the term: 201
(a)(b) "Gross negligence" means that the defendant's 202
conduct was so reckless or wanting in care that it constituted a 203
conscious disregard or indifference to the life, safety, or 204
rights of individuals persons exposed to such conduct. 205
(b)(a) "Intentional misconduct" means that the defendant 206
against whom punitive damages are sought had actual knowledge of 207
the wrongfulness of the conduct and the high probability that 208
injury or damage to the claimant would result and, despite that 209
knowledge, intentionally pursued that course of conduct, 210
resulting in injury or damage. 211
(3) In the case of vicarious liability of an individual, 212
employer, principal, corporation, or other legal entity, 213
punitive damages may not be imposed for the conduct of an 214
employee or agent unless only if the conduct of the employee or 215
agent meets the criteria specified in subsection (2) and an 216
officer, director, or manager of the actual employer, 217
corporation, or legal entity condoned, ratified, or consented to 218
the specific conduct as provided in subsection (2). : 219
(a) The employer, principal, corporation, or other legal 220
entity actively and knowingly participated in such conduct; 221
(b) The officers, directors, or managers of the employer, 222
principal, corporation, or other legal entit y condoned, 223
ratified, or consented to such conduct; or 224
(c) The employer, principal, corporation, or other legal 225
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entity engaged in conduct that constituted gross negligence and 226
that contributed to the loss, damages, or injury suffered by the 227
claimant. 228
(4) The plaintiff must establish at trial, by clear and 229
convincing evidence, its entitlement to an award of punitive 230
damages. The "greater weight of the evidence" burden of proof 231
applies to a determination of the amount of damages. 232
(5) This section is rem edial in nature and shall take 233
effect upon becoming a law. 234
Section 3. The amendments to ss. 429.29 and 429.297, 235
Florida Statutes, made by this act apply to causes of action 236
that accrue on or after July 1, 2024. 237
Section 4. This act shall take effect July 1, 2024. 238