Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1676
       
       
       
       
       
       
                                Barcode 188004                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                                       .                                
                                       .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Budget (Thrasher) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. (1) The Legislature finds that:
    6         (a) Access to high-quality, comprehensive, and affordable
    7  health care for all persons in this state is a necessary state
    8  goal and teaching hospitals play an essential role in providing
    9  that access.
   10         (b)Graduate medical education, provided by nonprofit
   11  independent colleges and universities located and chartered in
   12  this state which own or operate medical schools, helps provide
   13  the comprehensive specialty training needed by medical school
   14  graduates to develop and refine the skills essential to the
   15  provision of high-quality health care for state residents. Much
   16  of that education and training is provided in teaching hospitals
   17  under the direct supervision of medical faculty who provide
   18  guidance, training, and oversight and serve as role models to
   19  their students.
   20         (c)A large proportion of medical care is provided in
   21  teaching hospitals that serve as safety nets for many indigent
   22  and underserved patients who otherwise might not receive the
   23  medical help they need. Resident physician training that takes
   24  place in such hospitals provides much of the care provided to
   25  this population. Medical faculty, supervising such training and
   26  care, are a vital link between educating and training resident
   27  physicians and ensuring the provision of quality care for
   28  indigent and underserved residents. Physicians who assume this
   29  role are often called upon to juggle the demands of patient
   30  care, teaching, research, health policy, and budgetary issues
   31  related to the programs they administer.
   32         (d) While teaching hospitals are afforded state sovereign
   33  immunity protections under s. 768.28, Florida Statutes, the
   34  nonprofit independent colleges and universities located and
   35  chartered in this state which own or operate medical schools and
   36  which enter into affiliation agreements or contracts with the
   37  teaching hospitals to provide patient services are not afforded
   38  the same sovereign immunity protections. The employees or agents
   39  of such nonprofit independent colleges and universities,
   40  therefore, do not have the same level of protection against
   41  liability claims as the employees and agents of teaching
   42  hospitals providing the same patient services to the same
   43  patients.
   44         (e) Nonprofit colleges and universities located and
   45  chartered in this state which own or operate medical schools and
   46  their employees and agents, which are not covered by the state’s
   47  sovereign immunity protections, are disproportionately affected
   48  by claims arising out of alleged medical malpractice and other
   49  allegedly negligent acts. Given the recent growth in medical
   50  schools and medical education programs and ongoing efforts to
   51  support, strengthen, and increase physician residency training
   52  positions and medical faculty in both existing and newly
   53  designated teaching hospitals, this exposure and the consequent
   54  disparity in liability exposure will continue to increase. The
   55  vulnerability of these colleges and universities to claims of
   56  medical malpractice will only add to the current physician
   57  workforce crisis in this state and can be alleviated only
   58  through legislative action.
   59         (f)Ensuring that the employees and agents of nonprofit
   60  independent colleges and universities located and chartered in
   61  this state which own or operated medical schools are able to
   62  continue to treat patients, provide graduate medical education,
   63  supervise medical students, engage in research, and provide
   64  administrative support and services in teaching hospitals is an
   65  overwhelming public necessity.
   66         (2)The Legislature intends that:
   67         (a)Employees and agents of nonprofit independent colleges
   68  and universities located and chartered in this state which own
   69  or operate medical schools who provide patient services as
   70  agents of a teaching hospital be immune from lawsuits in the
   71  same manner and to the same extent as employees and agents of
   72  teaching hospitals in this state under existing law, and that
   73  such colleges and universities and their employees and agents
   74  not be held personally liable in tort or named as a party
   75  defendant in an action while providing patient services in a
   76  teaching hospital, unless such services are provided in bad
   77  faith, with malicious purpose, or in a manner exhibiting wanton
   78  and willful disregard of human rights, safety, or property.
   79         (b)Nonprofit independent private colleges and universities
   80  located and chartered in this state which own or operate medical
   81  schools and which permit their employees or agents to provide
   82  patient services in teaching hospitals pursuant to an
   83  affiliation agreement or other contract be afforded sovereign
   84  immunity protections under s. 768.28, Florida Statutes.
   85         (3) The Legislature declares that there is an overwhelming
   86  public necessity for extending the state’s sovereign immunity to
   87  nonprofit independent colleges and universities located and
   88  chartered in this state which own or operate medical schools and
   89  provide patient services in teaching hospitals, and to their
   90  employees and agents, and that there is no alternative method of
   91  meeting such public necessity.
   92         (4) The terms “employee or agent,” “patient services,” and
   93  “teaching hospital” as used in this section have the same
   94  meaning as defined in s. 768.28, Florida Statutes, as amended by
   95  this act.
   96         Section 2. Subsection (11) of section 766.1115, Florida
   97  Statutes, is amended to read:
   98         766.1115 Health care providers; creation of agency
   99  relationship with governmental contractors.—
  100         (11) APPLICABILITY.—This section applies to incidents
  101  occurring on or after April 17, 1992. This section does not:
  102         (a) Apply to any health care contract entered into by the
  103  Department of Corrections which is subject to s. 768.28(10)(a).
  104         (b) Apply to any affiliation agreement or other contract
  105  that is subject to s. 768.28(10)(f). Nothing in this section in
  106  any way reduces or limits
  107         (c) Reduce or limit the rights of the state or any of its
  108  agencies or subdivisions to any benefit currently provided under
  109  s. 768.28.
  110         Section 3. Paragraph (b) of subsection (9) of section
  111  768.28, Florida Statutes, is amended, and paragraph (f) is added
  112  to subsection (10) of that section, to read:
  113         768.28 Waiver of sovereign immunity in tort actions;
  114  recovery limits; limitation on attorney fees; statute of
  115  limitations; exclusions; indemnification; risk management
  116  programs.—
  117         (9)
  118         (b) As used in this subsection, the term:
  119         1. “Employee” includes any volunteer firefighter.
  120         2. “Officer, employee, or agent” includes, but is not
  121  limited to, any health care provider when providing services
  122  pursuant to s. 766.1115;, any member of the Florida Health
  123  Services Corps, as defined in s. 381.0302, who provides
  124  uncompensated care to medically indigent persons referred by the
  125  Department of Health; any nonprofit independent college or
  126  university located and chartered in this state which owns or
  127  operates an accredited medical school, and its employees or
  128  agents, when providing patient services pursuant to paragraph
  129  (10)(f);, and any public defender or her or his employee or
  130  agent, including, among others, an assistant public defender and
  131  an investigator.
  132         (10)
  133         (f)For purposes of this section, any nonprofit independent
  134  college or university located and chartered in this state which
  135  owns or operates an accredited medical school, or any of its
  136  employees or agents, and which has agreed in an affiliation
  137  agreement or other contract to provide, or permit its employees
  138  or agents to provide, patient services as agents of a teaching
  139  hospital, is considered an agent of the teaching hospital while
  140  acting within the scope of and pursuant to guidelines
  141  established in the contract. To the extent allowed by law, the
  142  contract must provide for the indemnification of the state, up
  143  to the limits set out in this chapter, by the agent for any
  144  liability incurred which was caused by the negligence of the
  145  college or university or its employees or agents. The contract
  146  must also provide that those limited portions of the college,
  147  university, or medical school which are directly providing
  148  services pursuant to the contract and which are considered an
  149  agent of the teaching hospital for purposes of this section are
  150  deemed to be acting on behalf of a public agency as defined in
  151  s. 119.011(2).
  152         1.For purposes of this paragraph, the term:
  153         a.“Employee or agent” means an officer, employee, agent,
  154  or servant of a nonprofit independent college or university
  155  located and chartered in this state which owns or operates an
  156  accredited medical school, including, but not limited to, the
  157  faculty of the medical school, any health care practitioner or
  158  licensee as defined in s. 456.001 for which the college or
  159  university is vicariously liable, and the staff or
  160  administrators of the medical school.
  161         b.“Patient services” mean:
  162         (I)Comprehensive health care services as defined in s.
  163  641.19, including any related administrative service, provided
  164  to patients in a teaching hospital or in a health care facility
  165  that is a part of a nonprofit independent college or university
  166  located and chartered in this state which owns or operates an
  167  accredited medical school pursuant to an affiliation agreement
  168  or other contract with a teaching hospital;
  169         (II)Training and supervision of interns, residents, and
  170  fellows providing patient services in a teaching hospital or in
  171  a health care facility that is a part of a nonprofit independent
  172  college or university located and chartered in this state which
  173  owns or operates an accredited medical school pursuant to an
  174  affiliation agreement or other contract with a teaching
  175  hospital;
  176         (III)Participation in medical research protocols; or
  177         (IV)Training and supervision of medical students in a
  178  teaching hospital or in a health care facility owned by a
  179  nonprofit college or university that owns or operates an
  180  accredited medical school pursuant to an affiliation agreement
  181  or other contract with a teaching hospital.
  182         c. “Teaching hospital” means a teaching hospital as defined
  183  in s. 408.07 which is owned or operated by the state, a county
  184  or municipality, a public health trust, a special taxing
  185  district, a governmental entity having health care
  186  responsibilities, or a not-for-profit entity that operates such
  187  facility as an agent of the state, or a political subdivision of
  188  the state, under a lease or other contract.
  189         2.The teaching hospital or the medical school, or its
  190  employees or agents, must provide notice to each patient, or the
  191  patient’s legal representative, that the college or university
  192  that owns or operates the medical school and the employees or
  193  agents of that college or university are acting as agents of the
  194  teaching hospital and that the exclusive remedy for injury or
  195  damage suffered as the result of any act or omission of the
  196  teaching hospital, the college or university that owns or
  197  operates the medical school, or the employees or agents of the
  198  college or university, while acting within the scope of duties
  199  pursuant to the affiliation agreement or other contract with a
  200  teaching hospital, is by commencement of an action pursuant to
  201  the provisions of this section. This notice requirement may be
  202  met by posting the notice in a place conspicuous to all persons.
  203         3.This paragraph does not designate any employee providing
  204  contracted patient services in a teaching hospital as an
  205  employee or agent of the state for purposes of chapter 440.
  206         Section 4. This act shall take effect upon becoming a law,
  207  and applies to all claims accruing on or after that date.
  208  
  209  ================= T I T L E  A M E N D M E N T ================
  210         And the title is amended as follows:
  211         Delete everything before the enacting clause
  212  and insert:
  213                        A bill to be entitled                      
  214         An act relating to sovereign immunity; providing
  215         legislative findings and intent; amending s. 766.1115,
  216         F.S.; providing that specified provisions relating to
  217         sovereign immunity for health care providers do not
  218         apply to certain affiliation agreements or contracts
  219         to provide certain comprehensive health care services;
  220         amending s. 768.28, F.S.; expanding the definition of
  221         the term “officer, employee, or agent” for purposes of
  222         provisions expanding sovereign immunity to include
  223         certain colleges and universities when providing
  224         patient services; providing that certain colleges and
  225         universities that own or operate a medical school or
  226         any of its employees or agents providing patient
  227         services pursuant to a contract with a teaching
  228         hospital are agents of the state and are immune from
  229         certain liability for torts; requiring the contract to
  230         provide for indemnification; providing that the
  231         portion of the not-for-profit entity deemed to be an
  232         agent of the state for purpose of indemnity is also an
  233         agency of the state for purpose of public-records
  234         laws; providing definitions; requiring that each
  235         patient, or the patient’s legal representative,
  236         receive notice regarding the patient’s exclusive
  237         remedy for injury or damage suffered; providing that
  238         an employee providing patient services is not an
  239         employee or agent of the state for purposes of
  240         workers’ compensation; providing for application;
  241         providing an effective date.