SB 238 — Claims Against Assisted Living Facilities

Florida Senate - 2024 CS for SB 238 By Senatorthe BurtonCommittee 12-00319-24on 2024238__Judiciary; A bill to be entitled An act relating to claims against assisted living facilities;

and Senator Burton 590-02612-24 2024238c1 A bill to be entitled An act relating to claims against assisted living facilities;

(b) “Management company or consultingactive company”participant” means an individual or entity that contracts with, or receives a fee from, a licensee to provide any of the following services for a facility:

Page1. 1 of 8 CODING:

Hiring or firing the administrator or director of Page 1 of 9 CODING:

Florida Senate - 2024 CS for SB 238 12-00319-24590-02612-24 2024238__2024238c1 1.nursing;

Hiring or firing the administrator or director of nursing;

Controlling or having control over staffing levels;levels at the facility;

ControllingHaving or having control over the budget;budget of the facility;

or 4.

Implementing and enforcing the policies and procedures.procedures of the facility;

(c)“Passive investor” means an individual or entity5. that has an interest in a facility but does not participate in the decisionmaking or operations of the facility.

(2)Receiving Anand exclusivecontrolling cause of action for a residents’line Anyof personcredit, loan, or residentother whosecredit rightsinstrument violationthat oris forused negligenceeither asin specifiedwhole underor in this part whichby, alleges direct or vicarious liability for the personalbenefit injuryof, orthe deathsubject offacility where a resident arisingresides from such rights violation or negligenceresided andduring which seeks damages for such injury or death may be brought only against the licensee,subject theresidency. licensee’s management or consulting company, the licensee’s managing employees, or any direct caregivers, whether employees or contractors.

(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.

(2) An exclusive cause of action for a residents’ Any person or resident whose rights violation or for negligence as specified under in this part which alleges direct or vicarious liability for the personal injury or death of a resident arising from such rights violation or negligence and which seeks damages for such injury or death may be brought only against the licensee, the licensee’s management company or active participant, the licensee’s managing employees, or any direct caregivers, whether employees or contractors.

(a) The action may be brought by the resident or his or her guardian, or by an individual 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 aPage deceased2 resident regardless of the9 causeCODING: of death.

(b) If the action alleges a claim for a residents’ the resident’s rights violation or for negligence that caused the death of the resident, the claimant, after the verdict, but before the judgment is entered, must shall be required to elect Page 2 of 8 CODING:

Florida Senate - 2024 CS for SB 238 12-00319-24590-02612-24 2024238__2024238c1 eithera survivaldeceased damagesresident pursuantregardless toof s.the cause of death.

(b) If the action alleges a claim for a residents’ the resident’s rights violation or for negligence that caused the death of the resident, the claimant, after the verdict, but before the judgment is entered, must shall be required to elect either survival damages pursuant to s.

(e)Page This3 section does not preclude theories of recovery9 notCODING: arising out of negligence or s.

Words stricken are deletions;

words underlined are additions.

Florida Senate - 2024 CS for SB 238 590-02612-24 2024238c1 (e) This section does not preclude theories of recovery not arising out of negligence or s.

Page(3) 3A cause of 8action CODING:for a residents’ rights violation or for negligence may not be asserted against an individual or entity other than the licensee, the licensee’s management company or active participant, 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:

Words stricken are deletions;

words underlined are additions.

Florida Senate - 2024 SB 238 12-00319-24 2024238__ (3) A cause of action for a residents’ rights violation or for negligence 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)Page The4 defendantof owed9 aCODING: 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 Page 4 of 8 CODING:

Florida Senate - 2024 CS for SB 238 12-00319-24590-02612-24 2024238__2024238c1 as(a) The defendant owed a resultduty ofto the breach.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.

(7)(5) Discovery of financial information for the purpose ofPage determining5 the value of punitive9 damagesCODING: may not be conducted 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)(6) In addition to any other standards for punitive Page 5 of 8 CODING:

Florida Senate - 2024 CS for SB 238 12-00319-24590-02612-24 2024238__2024238c1 damages,of anydetermining awardthe value of punitive damages mustmay not be reasonableconducted inhad lightunless of the actualplaintiff harmshows suffered by the residentcourt andby theproffer egregiousnessor ofevidence in the conductrecord that causeda thereasonable actualbasis harmexists to thesupport resident.a claim for punitive damages.

(8)(6) 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.

(a) The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civilPage procedure6 inof accordance9 withCODING: evidentiary requirements provided in this section.