(1) An exclusive cause of action for negligence or a violation of residents’ rights as specified under this part which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or violation of rights and which seeks damages for such injury or death may be brought only against the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (3).

(a) The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.

Terms Used In Florida Statutes 400.023

  • Administrator: means the licensed individual who has the general administrative charge of a facility. See Florida Statutes 400.021
  • Agency: means the Agency for Health Care Administration, which is the licensing agency under this part. See Florida Statutes 400.021
  • Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Facility: means any institution, building, residence, private home, or other place, whether operated for profit or not, including a place operated by a county or municipality, which undertakes through its ownership or management to provide for a period exceeding 24-hour nursing care, personal care, or custodial care for three or more persons not related to the owner or manager by blood or marriage, who by reason of illness, physical infirmity, or advanced age require such services, but does not include any place providing care and treatment primarily for the acutely ill. See Florida Statutes 400.021
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Nursing home facility: means any facility which provides nursing services as defined in part I of chapter 464 and which is licensed according to this part. See Florida Statutes 400.021
  • Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
  • person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
  • Verdict: The decision of a petit jury or a judge.
(b) If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall, after the verdict, but before the judgment is entered, elect survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21. If the action alleges a claim for the resident’s rights or for negligence that did not cause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident.
(c) The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for the violation of the rights of a resident or for negligence.
(d) A resident who prevails in seeking injunctive relief or an administrative remedy is entitled to recover the costs of the action, and reasonable attorney fees assessed against the defendant of up to $25,000. Fees shall be awarded solely for the injunctive or administrative relief and not for any claim or action for damages whether such claim or action is brought with a request for an injunction or administrative relief or as a separate action, except as provided under s. 768.79 or the Florida Rules of Civil Procedure.
(e) This section does not preclude theories of recovery not arising out of negligence or s. 400.022 which are available to a resident or to the agency. Chapter 766 does not apply to a cause of action brought under ss. 400.023–400.0238.
(2) As used in this section, the term:

(a) “Licensee” means an individual, corporation, partnership, firm, association, governmental entity, or other entity that is issued a permit, registration, certificate, or license by the agency and that is legally responsible for all aspects of the operation of the nursing home facility.
(b) “Management or consulting company” means an individual or entity who contracts with, or receives a fee from, a licensee to provide any of the following services for a nursing home facility:

1. Hiring or firing of the administrator or director of nursing;
2. Controlling or having control over the staffing levels at the facility;
3. Having control over the budget of the facility; or
4. Implementing and enforcing the policies and procedures of the facility.
(c) “Passive investor” means an individual or entity that has an interest in a facility but does not participate in the decisionmaking or operations of the facility.
(3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:

(a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and
(b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident.

For purposes of this subsection, if, in a proposed amended pleading, it is asserted that such cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the proposed amendment relates back to the original pleading.

(4) In a claim brought pursuant to this part alleging a violation of residents’ rights or negligence causing injury to or the death of a resident, the claimant has the burden of proving, by a preponderance of the evidence, that:

(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident;
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
(d) The resident sustained loss, injury, death, or damage as a result of the breach.

This part does not create strict liability. A violation of the rights set forth in s. 400.022, in any other standard or guidelines specified in this part, or in any applicable administrative standard or guidelines of this state or a federal regulatory agency is evidence of negligence but is not considered negligence per se.

(5) In a claim brought pursuant to this section, a licensee, individual, or entity has a duty to exercise reasonable care. Reasonable care is that degree of care which a reasonably careful licensee, individual, or entity would use under like circumstances.
(6) In a claim for a residents’ rights violation or negligence by a nurse licensed under part I of chapter 464, such nurse has the duty to exercise care consistent with the prevailing professional standard of care for a nurse. The prevailing professional standard of care for a nurse is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar nurses.
(7) A licensee is not liable for the medical negligence of a physician rendering care or treatment to the resident except for the administrative services of a medical director as required under this part. This subsection does not protect a licensee, individual, or entity from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.
(8) The resident or the resident’s legal representative shall serve a copy of a complaint alleging in whole or in part a violation of any rights specified in this part to the agency at the time of filing the initial complaint with the clerk of the court for the county in which the action is pursued. The requirement of providing a copy of the complaint to the agency does not impair the resident’s legal rights or ability to seek relief for his or her claim.
(9) An action under this part for a violation of rights or negligence recognized herein is not a claim for medical malpractice, and s. 768.21(8) does not apply to a claim alleging death of the resident.
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