Florida Senate - 2011                                    SB 1590
       
       
       
       By Senator Hays
       
       
       
       
       20-01006-11                                           20111590__
    1                        A bill to be entitled                      
    2         An act relating to medical malpractice actions;
    3         creating ss. 458.3175 and 459.0066, F.S.; requiring
    4         the Board of Medicine and the Board of Osteopathic
    5         Medicine to issue expert witness certificates to
    6         physicians licensed outside the state; providing
    7         application and certification requirements;
    8         establishing application fees; providing for validity
    9         and use of the certification; exempting a physician
   10         issued a certificate from certain licensure and fee
   11         requirements; requiring the boards to adopt rules;
   12         amending ss. 458.331 and 459.015, F.S.; providing
   13         additional acts that constitute grounds for denial of
   14         a license or disciplinary action to which penalties
   15         apply; amending s. 627.4147, F.S.; deleting a
   16         requirement that medical malpractice insurance
   17         contracts contain a clause authorizing the insurer to
   18         make and conclude certain offers within policy limits
   19         over the insured’s veto; amending s. 766.102, F.S.;
   20         revising the length of devoted, professional time
   21         required in order for a health care provider to
   22         qualify to give expert testimony regarding the
   23         prevailing professional standard of care; requiring an
   24         expert witness in certain medical negligence actions
   25         to be licensed under ch. 458 or ch. 459, F.S., or
   26         possess an expert witness certificate under certain
   27         conditions; providing that certain medical expert
   28         testimony is not admissible unless the expert witness
   29         meets certain requirements; amending s. 766.106, F.S.;
   30         requiring claimants for medical malpractice to execute
   31         an authorization form; deleting a provision
   32         prohibiting failure to provide certain presuit notice
   33         from serving as grounds for imposing sanctions;
   34         providing that certain immunity arising from
   35         participation in the presuit screening process does
   36         not prohibit certain physicians from being subject to
   37         certain penalties; allowing prospective medical
   38         malpractice defendants to interview a claimant’s
   39         treating health care providers without notice to or
   40         the presence of the claimant or the claimant’s legal
   41         representative; authorizing prospective defendants to
   42         take unsworn statements of a claimant’s health care
   43         providers; creating s. 766.1065, F.S.; requiring that
   44         presuit notice for medical negligence claims be
   45         accompanied by an authorization for release of
   46         protected health information; providing requirements
   47         for the form of such authorization; amending s.
   48         766.206, F.S.; requiring dismissal of a medical
   49         malpractice claim and payment of certain costs if such
   50         authorization form is not completed in good faith;
   51         providing an effective date.
   52  
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Section 458.3175, Florida Statutes, is created
   56  to read:
   57         458.3175 Expert witness certificate.—
   58         (1)(a) The board shall issue a certificate authorizing a
   59  physician who holds an active and valid license to practice
   60  medicine in another state or a province of Canada to provide
   61  expert testimony in this state if the physician submits to the
   62  board a complete registration application in the format
   63  prescribed by the board, pays an application fee established by
   64  the board not to exceed $50, and has not had a previous expert
   65  witness certificate revoked by the board.
   66         (b) The board shall approve or deny an application for an
   67  expert witness certificate within 5 business days after receipt
   68  of the completed application and payment of the application fee.
   69  An application is approved by default if the board does not act
   70  upon the application within the required period. A physician
   71  must notify the board in writing of his or her intent to rely on
   72  a certificate approved by default.
   73         (c) An expert witness certificate is valid for 2 years
   74  after the date of issuance.
   75         (2) An expert witness certificate authorizes the physician
   76  to whom the certificate is issued to do only the following:
   77         (a) Provide a verified written medical expert opinion as
   78  provided in s. 766.203.
   79         (b) Provide expert testimony about the prevailing
   80  professional standard of care in connection with medical
   81  negligence litigation pending in this state against a physician
   82  licensed under this chapter or chapter 459.
   83         (3) An expert witness certificate does not authorize a
   84  physician to engage in the practice of medicine as defined in s.
   85  458.305. A physician issued a certificate under this section who
   86  does not otherwise practice medicine in this state is not
   87  required to obtain a license under this chapter or pay any
   88  license fees, including, but not limited to, a neurological
   89  injury compensation assessment.
   90         (4) The board shall adopt rules to administer this section.
   91         Section 2. Present paragraphs (oo), (pp), and (qq) of
   92  subsection (1) of section 458.331, Florida Statutes, are
   93  redesignated as paragraphs (pp), (qq), and (rr), respectively,
   94  and a new paragraph (oo) is added to that subsection, to read:
   95         458.331 Grounds for disciplinary action; action by the
   96  board and department.—
   97         (1) The following acts constitute grounds for denial of a
   98  license or disciplinary action, as specified in s. 456.072(2):
   99         (oo) Providing misleading, deceptive, or fraudulent expert
  100  witness testimony related to the practice of medicine.
  101         Section 3. Section 459.0066, Florida Statutes, is created
  102  to read:
  103         459.0066Expert witness certificate.—
  104         (1)(a) The board shall issue a certificate authorizing a
  105  physician who holds an active and valid license to practice
  106  osteopathic medicine in another state or a province of Canada to
  107  provide expert testimony in this state if the physician submits
  108  to the board a complete registration application in the format
  109  prescribed by the board, pays an application fee established by
  110  the board not to exceed $50, and has not had a previous expert
  111  witness certificate revoked by the board.
  112         (b) The board shall approve or deny an application for an
  113  expert witness certificate within 5 business days after receipt
  114  of the completed application and payment of the application fee.
  115  An application is approved by default if the board does not act
  116  upon the application within the required period. A physician
  117  must notify the board in writing of his or her intent to rely on
  118  a certificate approved by default.
  119         (c) An expert witness certificate is valid for 2 years
  120  after the date of issuance.
  121         (2) An expert witness certificate authorizes the physician
  122  to whom the certificate is issued to do only the following:
  123         (a) Provide a verified written medical expert opinion as
  124  provided in s. 766.203.
  125         (b) Provide expert testimony about the prevailing
  126  professional standard of care in connection with medical
  127  negligence litigation pending in this state against a physician
  128  licensed under chapter 458 or this chapter.
  129         (3) An expert witness certificate does not authorize a
  130  physician to engage in the practice of osteopathic medicine as
  131  defined in s. 459.003. A physician issued a certificate under
  132  this section who does not otherwise practice osteopathic
  133  medicine in this state is not required to obtain a license under
  134  this chapter or pay any license fees, including, but not limited
  135  to, a neurological injury compensation assessment.
  136         (4) The board shall adopt rules to administer this section.
  137         Section 4. Present paragraphs (qq), (rr), and (ss) of
  138  subsection (1) of section 459.015, Florida Statutes, are
  139  redesignated as paragraphs (rr), (ss), and (tt), respectively,
  140  and a new paragraph (qq) is added to that subsection, to read:
  141         459.015 Grounds for disciplinary action; action by the
  142  board and department.—
  143         (1) The following acts constitute grounds for denial of a
  144  license or disciplinary action, as specified in s. 456.072(2):
  145         (qq) Providing misleading, deceptive, or fraudulent expert
  146  witness testimony related to the practice of osteopathic
  147  medicine.
  148         Section 5. Paragraph (b) of subsection (1) of section
  149  627.4147, Florida Statutes, is amended to read:
  150         627.4147 Medical malpractice insurance contracts.—
  151         (1) In addition to any other requirements imposed by law,
  152  each self-insurance policy as authorized under s. 627.357 or s.
  153  624.462 or insurance policy providing coverage for claims
  154  arising out of the rendering of, or the failure to render,
  155  medical care or services, including those of the Florida Medical
  156  Malpractice Joint Underwriting Association, shall include:
  157         (b)1. Except as provided in subparagraph 2., a clause
  158  authorizing the insurer or self-insurer to determine, to make,
  159  and to conclude, without the permission of the insured, any
  160  offer of admission of liability and for arbitration pursuant to
  161  s. 766.106, settlement offer, or offer of judgment, if the offer
  162  is within the policy limits. It is against public policy for any
  163  insurance or self-insurance policy to contain a clause giving
  164  the insured the exclusive right to veto any offer for admission
  165  of liability and for arbitration made pursuant to s. 766.106,
  166  settlement offer, or offer of judgment, when such offer is
  167  within the policy limits. However, any offer of admission of
  168  liability, settlement offer, or offer of judgment made by an
  169  insurer or self-insurer shall be made in good faith and in the
  170  best interests of the insured.
  171         2.a. With respect to dentists licensed under chapter 466, A
  172  clause clearly stating whether or not the insured has the
  173  exclusive right to veto any offer of admission of liability and
  174  for arbitration pursuant to s. 766.106, settlement offer, or
  175  offer of judgment if the offer is within policy limits. An
  176  insurer or self-insurer may shall not make or conclude, without
  177  the permission of the insured, any offer of admission of
  178  liability and for arbitration pursuant to s. 766.106, settlement
  179  offer, or offer of judgment, if such offer is outside the policy
  180  limits. However, any offer for admission of liability and for
  181  arbitration made under s. 766.106, settlement offer, or offer of
  182  judgment made by an insurer or self-insurer shall be made in
  183  good faith and in the best interest of the insured.
  184         2.b. If the policy contains a clause stating the insured
  185  does not have the exclusive right to veto any offer or admission
  186  of liability and for arbitration made pursuant to s. 766.106,
  187  settlement offer or offer of judgment, the insurer or self
  188  insurer shall provide to the insured or the insured’s legal
  189  representative by certified mail, return receipt requested, a
  190  copy of the final offer of admission of liability and for
  191  arbitration made pursuant to s. 766.106, settlement offer or
  192  offer of judgment and at the same time such offer is provided to
  193  the claimant. A copy of any final agreement reached between the
  194  insurer and claimant shall also be provided to the insurer or
  195  his or her legal representative by certified mail, return
  196  receipt requested not more than 10 days after affecting such
  197  agreement.
  198         Section 6. Section 766.102, Florida Statutes, is amended to
  199  read:
  200         766.102 Medical negligence; standards of recovery; expert
  201  witness.—
  202         (1) In any action for recovery of damages based on the
  203  death or personal injury of any person in which it is alleged
  204  that such death or injury resulted from the negligence of a
  205  health care provider as defined in s. 766.202(4), the claimant
  206  shall have the burden of proving by the greater weight of
  207  evidence that the alleged actions of the health care provider
  208  represented a breach of the prevailing professional standard of
  209  care for that health care provider. The prevailing professional
  210  standard of care for a given health care provider shall be that
  211  level of care, skill, and treatment which, in light of all
  212  relevant surrounding circumstances, is recognized as acceptable
  213  and appropriate by reasonably prudent similar health care
  214  providers.
  215         (2)(a) If the injury is claimed to have resulted from the
  216  negligent affirmative medical intervention of the health care
  217  provider, the claimant must, in order to prove a breach of the
  218  prevailing professional standard of care, show that the injury
  219  was not within the necessary or reasonably foreseeable results
  220  of the surgical, medicinal, or diagnostic procedure constituting
  221  the medical intervention, if the intervention from which the
  222  injury is alleged to have resulted was carried out in accordance
  223  with the prevailing professional standard of care by a
  224  reasonably prudent similar health care provider.
  225         (b) The provisions of this subsection shall apply only when
  226  the medical intervention was undertaken with the informed
  227  consent of the patient in compliance with the provisions of s.
  228  766.103.
  229         (3) The existence of a medical injury shall not create any
  230  inference or presumption of negligence against a health care
  231  provider, and the claimant must maintain the burden of proving
  232  that an injury was proximately caused by a breach of the
  233  prevailing professional standard of care by the health care
  234  provider. However, the discovery of the presence of a foreign
  235  body, such as a sponge, clamp, forceps, surgical needle, or
  236  other paraphernalia commonly used in surgical, examination, or
  237  diagnostic procedures, shall be prima facie evidence of
  238  negligence on the part of the health care provider.
  239         (4) The Legislature is cognizant of the changing trends and
  240  techniques for the delivery of health care in this state and the
  241  discretion that is inherent in the diagnosis, care, and
  242  treatment of patients by different health care providers. The
  243  failure of a health care provider to order, perform, or
  244  administer supplemental diagnostic tests shall not be actionable
  245  if the health care provider acted in good faith and with due
  246  regard for the prevailing professional standard of care.
  247         (5) A person may not give expert testimony concerning the
  248  prevailing professional standard of care unless that person is a
  249  licensed health care provider and meets the following criteria:
  250         (a) If the health care provider against whom or on whose
  251  behalf the testimony is offered is a specialist, the expert
  252  witness must:
  253         1. Specialize in the same specialty as the health care
  254  provider against whom or on whose behalf the testimony is
  255  offered; or specialize in a similar specialty that includes the
  256  evaluation, diagnosis, or treatment of the medical condition
  257  that is the subject of the claim and have prior experience
  258  treating similar patients; and
  259         2. Have devoted professional time during the 2 3 years
  260  immediately preceding the date of the occurrence that is the
  261  basis for the action to:
  262         a. The active clinical practice of, or consulting with
  263  respect to, the same or similar specialty that includes the
  264  evaluation, diagnosis, or treatment of the medical condition
  265  that is the subject of the claim and have prior experience
  266  treating similar patients;
  267         b. Instruction of students in an accredited health
  268  professional school or accredited residency or clinical research
  269  program in the same or similar specialty; or
  270         c. A clinical research program that is affiliated with an
  271  accredited health professional school or accredited residency or
  272  clinical research program in the same or similar specialty.
  273         (b) If the health care provider against whom or on whose
  274  behalf the testimony is offered is a general practitioner, the
  275  expert witness must have devoted professional time during the 2
  276  5 years immediately preceding the date of the occurrence that is
  277  the basis for the action to:
  278         1. The active clinical practice or consultation as a
  279  general practitioner;
  280         2. The instruction of students in an accredited health
  281  professional school or accredited residency program in the
  282  general practice of medicine; or
  283         3. A clinical research program that is affiliated with an
  284  accredited medical school or teaching hospital and that is in
  285  the general practice of medicine.
  286         (c) If the health care provider against whom or on whose
  287  behalf the testimony is offered is a health care provider other
  288  than a specialist or a general practitioner, the expert witness
  289  must have devoted professional time during the 2 3 years
  290  immediately preceding the date of the occurrence that is the
  291  basis for the action to:
  292         1. The active clinical practice of, or consulting with
  293  respect to, the same or similar health profession as the health
  294  care provider against whom or on whose behalf the testimony is
  295  offered;
  296         2. The instruction of students in an accredited health
  297  professional school or accredited residency program in the same
  298  or similar health profession in which the health care provider
  299  against whom or on whose behalf the testimony is offered; or
  300         3. A clinical research program that is affiliated with an
  301  accredited medical school or teaching hospital and that is in
  302  the same or similar health profession as the health care
  303  provider against whom or on whose behalf the testimony is
  304  offered.
  305         (6) A physician licensed under chapter 458 or chapter 459
  306  who qualifies as an expert witness under subsection (5) and who,
  307  by reason of active clinical practice or instruction of
  308  students, has knowledge of the applicable standard of care for
  309  nurses, nurse practitioners, certified registered nurse
  310  anesthetists, certified registered nurse midwives, physician
  311  assistants, or other medical support staff may give expert
  312  testimony in a medical negligence action with respect to the
  313  standard of care of such medical support staff.
  314         (7) Notwithstanding subsection (5), in a medical negligence
  315  action against a hospital, a health care facility, or medical
  316  facility, a person may give expert testimony on the appropriate
  317  standard of care as to administrative and other nonclinical
  318  issues if the person has substantial knowledge, by virtue of his
  319  or her training and experience, concerning the standard of care
  320  among hospitals, health care facilities, or medical facilities
  321  of the same type as the hospital, health care facility, or
  322  medical facility whose acts or omissions are the subject of the
  323  testimony and which are located in the same or similar
  324  communities at the time of the alleged act giving rise to the
  325  cause of action.
  326         (8) If a health care provider described in subsection (5),
  327  subsection (6), or subsection (7) is providing evaluation,
  328  treatment, or diagnosis for a condition that is not within his
  329  or her specialty, a specialist trained in the evaluation,
  330  treatment, or diagnosis for that condition shall be considered a
  331  similar health care provider.
  332         (9)(a) In any action for damages involving a claim of
  333  negligence against a physician licensed under chapter 458,
  334  osteopathic physician licensed under chapter 459, podiatric
  335  physician licensed under chapter 461, or chiropractic physician
  336  licensed under chapter 460 providing emergency medical services
  337  in a hospital emergency department, the court shall admit expert
  338  medical testimony only from physicians, osteopathic physicians,
  339  podiatric physicians, and chiropractic physicians who have had
  340  substantial professional experience within the preceding 2 5
  341  years while assigned to provide emergency medical services in a
  342  hospital emergency department.
  343         (b) For the purposes of this subsection:
  344         1. The term “emergency medical services” means those
  345  medical services required for the immediate diagnosis and
  346  treatment of medical conditions which, if not immediately
  347  diagnosed and treated, could lead to serious physical or mental
  348  disability or death.
  349         2. “Substantial professional experience” shall be
  350  determined by the custom and practice of the manner in which
  351  emergency medical coverage is provided in hospital emergency
  352  departments in the same or similar localities where the alleged
  353  negligence occurred.
  354         (10) In any action alleging medical negligence, an expert
  355  witness may not testify on a contingency fee basis.
  356         (11) Any attorney who proffers a person as an expert
  357  witness pursuant to this section must certify that such person
  358  has not been found guilty of fraud or perjury in any
  359  jurisdiction.
  360         (12) If the party against whom or on whose behalf the
  361  expert testimony concerning the prevailing professional standard
  362  of care is offered is a physician licensed under chapter 458 or
  363  chapter 459, the expert witness must be licensed in this state
  364  under chapter 458 or chapter 459 or possess an expert witness
  365  certificate as provided in s. 458.3175 or s. 459.0066. Expert
  366  testimony is not admissible unless the expert providing such
  367  testimony is licensed by this state or possesses an expert
  368  witness certificate as provided in s. 458.3175 or s. 459.0066.
  369         (13)(12) This section does not limit the power of the trial
  370  court to disqualify or qualify an expert witness on grounds
  371  other than the qualifications in this section.
  372         Section 7.  Paragraph (a) of subsection (2), subsection
  373  (5), and paragraph (b) of subsection (6) of section 766.106,
  374  Florida Statutes, are amended to read:
  375         766.106 Notice before filing action for medical negligence;
  376  presuit screening period; offers for admission of liability and
  377  for arbitration; informal discovery; review.—
  378         (2) PRESUIT NOTICE.—
  379         (a) After completion of presuit investigation pursuant to
  380  s. 766.203(2) and prior to filing a complaint for medical
  381  negligence, a claimant shall notify each prospective defendant
  382  by certified mail, return receipt requested, of intent to
  383  initiate litigation for medical negligence. Notice to each
  384  prospective defendant must include, if available, a list of all
  385  known health care providers seen by the claimant for the
  386  injuries complained of subsequent to the alleged act of
  387  negligence, all known health care providers during the 2-year
  388  period prior to the alleged act of negligence who treated or
  389  evaluated the claimant, and copies of all of the medical records
  390  relied upon by the expert in signing the affidavit, and the
  391  executed authorization form provided in s. 766.1065. The
  392  requirement of providing the list of known health care providers
  393  may not serve as grounds for imposing sanctions for failure to
  394  provide presuit discovery.
  395         (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
  396  discussion, written document, report, or other work product
  397  generated by the presuit screening process is not discoverable
  398  or admissible in any civil action for any purpose by the
  399  opposing party. All participants, including, but not limited to,
  400  physicians, investigators, witnesses, and employees or
  401  associates of the defendant, are immune from civil liability
  402  arising from participation in the presuit screening process.
  403  This subsection does not prevent a physician licensed under
  404  chapter 458 or chapter 459 who submits a verified written expert
  405  medical opinion from being subject to denial of a license or
  406  disciplinary action under s. 458.331(1)(oo) or s.
  407  459.015(1)(qq).
  408         (6) INFORMAL DISCOVERY.—
  409         (b) Informal discovery may be used by a party to obtain
  410  unsworn statements, the production of documents or things, and
  411  physical and mental examinations, as follows:
  412         1. Unsworn statements.—Any party may require other parties
  413  to appear for the taking of an unsworn statement. Such
  414  statements may be used only for the purpose of presuit screening
  415  and are not discoverable or admissible in any civil action for
  416  any purpose by any party. A party desiring to take the unsworn
  417  statement of any party must give reasonable notice in writing to
  418  all parties. The notice must state the time and place for taking
  419  the statement and the name and address of the party to be
  420  examined. Unless otherwise impractical, the examination of any
  421  party must be done at the same time by all other parties. Any
  422  party may be represented by counsel at the taking of an unsworn
  423  statement. An unsworn statement may be recorded electronically,
  424  stenographically, or on videotape. The taking of unsworn
  425  statements is subject to the provisions of the Florida Rules of
  426  Civil Procedure and may be terminated for abuses.
  427         2. Documents or things.—Any party may request discovery of
  428  documents or things. The documents or things must be produced,
  429  at the expense of the requesting party, within 20 days after the
  430  date of receipt of the request. A party is required to produce
  431  discoverable documents or things within that party’s possession
  432  or control. Medical records shall be produced as provided in s.
  433  766.204.
  434         3. Physical and mental examinations.—A prospective
  435  defendant may require an injured claimant to appear for
  436  examination by an appropriate health care provider. The
  437  prospective defendant shall give reasonable notice in writing to
  438  all parties as to the time and place for examination. Unless
  439  otherwise impractical, a claimant is required to submit to only
  440  one examination on behalf of all potential defendants. The
  441  practicality of a single examination must be determined by the
  442  nature of the claimant’s condition, as it relates to the
  443  liability of each prospective defendant. Such examination report
  444  is available to the parties and their attorneys upon payment of
  445  the reasonable cost of reproduction and may be used only for the
  446  purpose of presuit screening. Otherwise, such examination report
  447  is confidential and exempt from the provisions of s. 119.07(1)
  448  and s. 24(a), Art. I of the State Constitution.
  449         4. Written questions.—Any party may request answers to
  450  written questions, the number of which may not exceed 30,
  451  including subparts. A response must be made within 20 days after
  452  receipt of the questions.
  453         5. Ex parte interviews of treating health care providers.—A
  454  prospective defendant or his or her legal representative shall
  455  have access to interview the claimant’s treating health care
  456  providers without notice to or the presence of the claimant or
  457  the claimant’s legal representative.
  458         6.5.Unsworn statements of treating health care providers
  459  Medical information release.—The claimant must execute a medical
  460  information release that allows A prospective defendant or his
  461  or her legal representative may to take unsworn statements of
  462  the claimant’s treating health care providers physicians. The
  463  statements must be limited to those areas that are potentially
  464  relevant to the claim of personal injury or wrongful death.
  465  Subject to the procedural requirements of subparagraph 1., a
  466  prospective defendant may take unsworn statements from a
  467  claimant’s treating physicians. Reasonable notice and
  468  opportunity to be heard must be given to the claimant or the
  469  claimant’s legal representative before taking unsworn
  470  statements. The claimant or claimant’s legal representative has
  471  the right to attend the taking of such unsworn statements.
  472         Section 8. Section 766.1065, Florida Statutes, is created
  473  to read:
  474         766.1065Authorization form for release of protected health
  475  information.—
  476         (1) Presuit notice of intent to initiate litigation for
  477  medical negligence under s. 766.106(2) must be accompanied by an
  478  authorization for release of protected health information in the
  479  form specified by this section, authorizing the disclosure of
  480  protected health information that is potentially relevant to the
  481  claim of personal injury or wrongful death. The presuit notice
  482  is void if this authorization does not accompany the presuit
  483  notice and other materials required by s. 766.106(2).
  484         (2) If the authorization required by this section is
  485  revoked, the presuit notice under s. 766.106(2) shall be deemed
  486  retroactively void from the date of issuance, and any tolling
  487  effect that the presuit notice may have had on any applicable
  488  statute-of-limitations period is retroactively rendered void.
  489         (3) The authorization required by this section shall be in
  490  the following form and shall be construed in accordance with the
  491  “Standards for Privacy of Individually Identifiable Health
  492  Information” in 45 C.F.R. parts 160 and 164:
  493  
  494         AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
  495  
  496         A. I,_(...Name of patient or authorized
  497         representative...) [hereinafter “Patient”], authorize
  498         that (...Name of health care provider to whom the
  499         presuit notice is directed...) and his/her/its
  500         insurer(s), self-insurer(s), and attorney(s) may
  501         obtain and disclose (within the parameters set out
  502         below) the protected health information described
  503         below for the following specific purposes:
  504         1. Facilitating the investigation and evaluation
  505         of the medical negligence claim described in the
  506         accompanying presuit notice; or
  507         2. Defending against any litigation arising out
  508         of the medical negligence claim made on the basis of
  509         the accompanying presuit notice.
  510         B. The health information obtained, used, or
  511         disclosed extends to, and includes, oral as well as
  512         the written information, and is described as follows:
  513         1. The health information in the custody of the
  514         following health care providers who have examined,
  515         evaluated, or treated the Patient in connection with
  516         injuries complained of after the alleged act of
  517         negligence: (List the name and current address of all
  518         health care providers). This authorization extends to
  519         any additional health care providers that may in the
  520         future evaluate, examine, or treat the Patient for the
  521         injuries complained of.
  522         2. The health information in the custody of the
  523         following health care providers who have examined,
  524         evaluated, or treated the Patient during a period
  525         commencing 2 years before the incident which is the
  526         basis of the accompanying presuit notice.
  527  
  528         (List the name and current address of such health care
  529         providers, if applicable.)
  530  
  531         C. This authorization does not apply to the
  532         following list of health care providers possessing
  533         health care information about the Patient because the
  534         Patient certifies that such health care information is
  535         not potentially relevant to the claim of personal
  536         injury or wrongful death which is the basis of the
  537         accompanying presuit notice.
  538  
  539         (List the name of each health care provider to whom
  540         this authorization does not apply and the inclusive
  541         dates of examination, evaluation, or treatment to be
  542         withheld from disclosure. If none, specify “none.”)
  543  
  544         D. The persons or class of persons to whom the
  545         Patient authorizes such health information to be
  546         disclosed, or by whom such health information is to be
  547         used, includes:
  548         1. Any health care provider providing care or
  549         treatment for the Patient.
  550         2. Any liability insurer or self-insurer
  551         providing liability insurance coverage, self
  552         insurance, or defense to any health care provider to
  553         whom presuit notice is given regarding the care and
  554         treatment of the Patient.
  555         3. Any consulting or testifying expert employed
  556         by or on behalf of (name of health care provider to
  557         whom presuit notice was given) or his/her/its
  558         insurer(s), self-insurer(s), or attorney(s) regarding
  559         the matter of the presuit notice accompanying this
  560         authorization.
  561         4. Any attorney (including secretarial, clerical,
  562         or paralegal staff) employed by or on behalf of (name
  563         of health care provider to whom presuit notice was
  564         given) regarding the matter of the presuit notice
  565         accompanying this authorization.
  566         5. Any trier of the law or facts relating to any
  567         suit filed seeking damages arising out of the medical
  568         care or treatment of the Patient.
  569         E. This authorization expires upon resolution of
  570         the claim or at the conclusion of any litigation
  571         instituted in connection with the matter of the
  572         presuit notice accompanying this authorization,
  573         whichever occurs first.
  574         F. The Patient understands that, without
  575         exception, the Patient has the right to revoke this
  576         authorization in writing. The Patient further
  577         understands that the consequence of any such
  578         revocation is that the presuit notice under s.
  579         766.106(2), Florida Statutes, is deemed retroactively
  580         void from the date of issuance, and any tolling effect
  581         that the presuit notice may have had on any applicable
  582         statute-of-limitations period is retroactively
  583         rendered void.
  584         G. The Patient understands that signing this
  585         authorization is not a condition for continued
  586         treatment, payment, enrollment, or eligibility for
  587         health plan benefits.
  588         H. The Patient understands that information used
  589         or disclosed under this authorization may be subject
  590         to additional disclosure by the recipient and may not
  591         be protected by federal HIPAA privacy regulations.
  592  
  593         Signature of Patient/Representative: ....
  594         Date: ....
  595         Name of Patient/Representative: ....
  596         Description of Representative’s Authority: ....
  597         Section 9. Subsection (2) of section 766.206, Florida
  598  Statutes, is amended to read:
  599         766.206 Presuit investigation of medical negligence claims
  600  and defenses by court.—
  601         (2) If the court finds that the notice of intent to
  602  initiate litigation mailed by the claimant does is not comply in
  603  compliance with the reasonable investigation requirements of ss.
  604  766.201-766.212, including a review of the claim and a verified
  605  written medical expert opinion by an expert witness as defined
  606  in s. 766.202, or that the authorization form accompanying the
  607  notice of intent provided for in s. 766.1065 was not completed
  608  in good faith by the claimant, the court shall dismiss the
  609  claim, and the person who mailed such notice of intent, whether
  610  the claimant or the claimant’s attorney, shall be personally
  611  liable for all attorney’s fees and costs incurred during the
  612  investigation and evaluation of the claim, including the
  613  reasonable attorney’s fees and costs of the defendant or the
  614  defendant’s insurer.
  615         Section 10. This act shall take effect July 1, 2011.