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The Florida Statutes

The 2000 Florida Statutes

Title XXIX
Chapter 400
Nursing Homes And Related Health Care Facilities
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Section 400.023, Florida Statutes 2000

400.023  Civil enforcement.--

(1)  Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation. 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 when the cause of death resulted from the deprivation or infringement of the decedent's rights. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages, unless the court finds that the plaintiff has acted in bad faith, with malicious purpose, and that there was a complete absence of a justiciable issue of either law or fact. Prevailing defendants may be entitled to recover reasonable attorney's fees pursuant to s. 57.105. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency.

(2)  Attorneys' fees shall be based on the following criteria:

(a)  The time and labor required;

(b)  The novelty and difficulty of the questions;

(c)  The skill requisite to perform the legal service properly;

(d)  The preclusion of other employment by the attorney due to the acceptance of the case;

(e)  The customary fee;

(f)  Whether the fee is fixed or contingent;

(g)  The amount involved or the results obtained;

(h)  The experience, reputation, and ability of the attorneys;

(i)  The costs expended to prosecute the claim;

(j)  The type of fee arrangement between the attorney and the client;

(k)  Whether the relevant market requires a contingency fee multiplier to obtain competent counsel;

(l)  Whether the attorney was able to mitigate the risk of nonpayment in any way.

(3)  A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the services of a medical director as required in this part. Nothing in this subsection shall be construed to protect a licensee from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.

(4)  Claimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to 1s. 400.022(1)(k) which resulted in personal injury to or the death of a resident shall conduct an investigation which shall include a review by a licensed physician or registered nurse familiar with the standard of nursing care for nursing home residents pursuant to this part. Any complaint alleging such a deprivation or infringement shall be accompanied by a verified statement from the reviewer that there exists reason to believe that a deprivation or infringement occurred during the resident's stay at the nursing home. Such opinion shall be based on records or other information available at the time that suit is filed. Failure to provide records in accordance with the requirements of this chapter shall waive the requirement of the verified statement.

(5)  For the purpose of this section, punitive damages may be awarded for conduct which is willful, wanton, gross or flagrant, reckless, or consciously indifferent to the rights of the resident.

(6)  To recover attorney's fees under this section, the following conditions precedent must be met:

(a)  Within 120 days after the filing of a responsive pleading or defensive motion to a complaint brought under this section and before trial, the parties or their designated representatives shall meet in mediation to discuss the issues of liability and damages in accordance with this paragraph for the purpose of an early resolution of the matter.

1.  Within 60 days after the filing of the responsive pleading or defensive motion, the parties shall:

a.  Agree on a mediator. If the parties cannot agree on a mediator, the defendant shall immediately notify the court, which shall appoint a mediator within 10 days after such notice.

b.  Set a date for mediation.

c.  Prepare an order for the court that identifies the mediator, the scheduled date of the mediation, and other terms of the mediation. Absent any disagreement between the parties, the court may issue the order for the mediation submitted by the parties without a hearing.

2.  The mediation must be concluded within 120 days after the filing of a responsive pleading or defensive motion. The date may be extended only by agreement of all parties subject to mediation under this subsection.

3.  The mediation shall be conducted in the following manner:

a.  Each party shall ensure that all persons necessary for complete settlement authority are present at the mediation.

b.  Each party shall mediate in good faith.

4.  All aspects of the mediation which are not specifically established by this subsection must be conducted according to the rules of practice and procedure adopted by the Supreme Court of this state.

(b)  If the parties do not settle the case pursuant to mediation, the last offer of the defendant made at mediation shall be recorded by the mediator in a written report that states the amount of the offer, the date the offer was made in writing, and the date the offer was rejected. If the matter subsequently proceeds to trial under this section and the plaintiff prevails but is awarded an amount in damages, exclusive of attorney's fees, which is equal to or less than the last offer made by the defendant at mediation, the plaintiff is not entitled to recover any attorney's fees.

(c)  This subsection applies only to claims for liability and damages and does not apply to actions for injunctive relief.

(d)  This subsection applies to all causes of action that accrue on or after October 1, 1999.

(7)  Discovery of financial information for the purpose of determining the value of punitive damages may not be had unless the plaintiff shows the court by proffer or evidence in the record that a reasonable basis exists to support a claim for punitive damages.

(8)  In addition to any other standards for punitive damages, any award of punitive damages must be reasonable in light of the actual harm suffered by the resident and the egregiousness of the conduct that caused the actual harm to the resident.

History.--ss. 3, 18, ch. 80-186; s. 2, ch. 81-318; ss. 6, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 1, ch. 86-79; s. 30, ch. 93-177; ss. 4, 49, ch. 93-217; s. 765, ch. 95-148; s. 30, ch. 99-225.

1Note.--The cite to s. 400.022(1)(k) may be intended to reference s. 400.022(1)(l). The right to adequate and appropriate health care is provided in s. 400.022(1)(l). Paragraph (1)(k) covers the right to refuse medication or treatment. The right to adequate and appropriate health care was provided in s. 400.022(1)(g) prior to the 1993 regular session of the Legislature. In the 1993 session, C.S. for C.S. for H.B. 2203 amended both ss. 400.022 and 400.023. The bill moved the language in s. 400.022(1)(g) to paragraph (1)(k). House Amendment 8 to C.S. for C.S. for H.B. 2203 amended s. 400.023, adding subsection (4) referencing "[c]laimants alleging a deprivation or infringement of adequate and appropriate health care pursuant to s. 400.022(1)(g)"; Amendment 1 to Amendment 8 corrected the reference to "400.022(1)(k)." See Journal of the House of Representatives 1993, pp. 849-850. Later in the process, Senate Amendment 1 added a new paragraph (1)(k) to s. 400.022 (see Journal of the Senate 1993, p. 1017); the reference to s. 400.022(1)(k) in s. 400.023(4) was not updated to conform.