Florida Senate - 2013 SB 1134
By Senator Hays
11-01059-13 20131134__
1 A bill to be entitled
2 An act relating to compensation for personal injury or
3 wrongful death arising from a medical injury; amending
4 s. 456.013, F.S.; requiring the Department of Health
5 or certain boards thereof to require the completion of
6 a course relating to communication of medical errors;
7 providing a directive to the Division of Law Revision
8 and Information; creating s. 766.401, F.S.; providing
9 a short title; creating s. 766.402, F.S.; providing
10 definitions; creating s. 766.403, F.S.; providing
11 legislative findings and intent; specifying that
12 certain provisions are an exclusive remedy for
13 personal injury or wrongful death; providing for early
14 offer of settlement; creating s. 766.404, F.S.;
15 creating the Patient Compensation System; providing
16 for a board; providing for membership, meetings, and
17 certain compensation; providing for specific staff,
18 offices, committees, and panels and the powers and
19 duties thereof; prohibiting certain conflicts of
20 interest; authorizing rulemaking; creating s. 766.405,
21 F.S.; providing a process for filing applications;
22 providing for notice to providers and insurers;
23 providing an application filing period; creating s.
24 766.406, F.S.; providing for disposition, support, and
25 review of applications; providing for a determination
26 of compensation upon a prima facie claim of a medical
27 injury having been made; providing that compensation
28 for an application shall be offset by any past and
29 future collateral source payments; providing for
30 determinations of malpractice for purposes of a
31 specified constitutional provision; providing for
32 notice of applications determined to constitute a
33 medical injury for purposes of professional
34 discipline; providing for payment of compensation
35 awards; creating s. 766.407, F.S.; providing for
36 review of awards by an administrative law judge;
37 providing for appellate review; creating s. 766.408,
38 F.S.; requiring annual contributions from specified
39 providers to provide administrative expenses;
40 providing maximum contribution rates; specifying
41 payment dates; providing for disciplinary proceedings
42 for failure to pay; providing for deposit of funds;
43 authorizing providers to opt out of participation;
44 providing requirements for such an election; creating
45 s. 766.409, F.S.; requiring notice to patients of
46 provider participation in the Patient Compensation
47 System; creating s. 766.410, F.S.; requiring an annual
48 report to the Governor and Legislature; providing
49 retroactive application; providing severability;
50 providing an effective date.
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Subsection (7) of section 456.013, Florida
55 Statutes, is amended to read:
56 456.013 Department; general licensing provisions.—
57 (7) The boards, or the department when there is no board,
58 shall require the completion of a 2-hour course relating to
59 prevention and communication of medical errors as part of the
60 licensure and renewal process. The 2-hour course shall count
61 towards the total number of continuing education hours required
62 for the profession. The course shall be approved by the board or
63 department, as appropriate, and shall include a study of root
64 cause analysis, error reduction and prevention, and patient
65 safety, and communication of medical errors to patients and
66 their families. In addition, the course approved by the Board of
67 Medicine and the Board of Osteopathic Medicine shall include
68 information relating to the five most misdiagnosed conditions
69 during the previous biennium, as determined by the board. If the
70 course is being offered by a facility licensed pursuant to
71 chapter 395 for its employees, the board may approve up to 1
72 hour of the 2-hour course to be specifically related to error
73 reduction and prevention methods used in that facility.
74 Section 2. The Division of Law Revision and Information is
75 directed to designate sections 766.101 through 766.1185 of
76 chapter 766, Florida Statutes, as part I of that chapter,
77 entitled “Litigation Procedures”; sections 766.201 through
78 766.212 as part II of that chapter, entitled “Voluntary Binding
79 Arbitration”; sections 766.301 through 766.316 as part III of
80 that chapter, entitled “Birth-Related Neurological Injuries”;
81 and sections 766.401 through 766.410, as created by this act, as
82 part IV of that chapter, entitled “Patient Compensation System.”
83 Section 3. Section 766.401, Florida Statutes, is created to
84 read:
85 766.401 Short title.—This part may be cited as the “Patient
86 Injury Act.”
87 Section 4. Section 766.402, Florida Statutes, is created to
88 read:
89 766.402 Definitions.—As used in this part, the term:
90 (1) “Applicant” means a person who files an application
91 under this part requesting the investigation of an alleged
92 occurrence of a medical injury.
93 (2) “Application” means a request for investigation by the
94 Patient Compensation System of an alleged occurrence of a
95 medical injury.
96 (3) “Board” means the Patient Compensation Board as created
97 in s. 766.404.
98 (4) “Collateral source” means any payment made to the
99 applicant, or made on his or her behalf, by or pursuant to:
100 (a) The federal Social Security Act; any federal, state, or
101 local income disability act; or any other public program
102 providing medical expenses, disability payments, or other
103 similar benefits, except as prohibited by federal law.
104 (b) Any health, sickness, or income disability insurance;
105 any automobile accident insurance that provides health benefits
106 or income disability coverage; and any other similar insurance
107 benefits, except life insurance benefits available to the
108 applicant, whether purchased by the applicant or provided by
109 others.
110 (c) Any contract or agreement of any group, organization,
111 partnership, or corporation to provide, pay for, or reimburse
112 the costs of hospital, medical, dental, or other health care
113 services.
114 (d) Any contractual or voluntary wage continuation plan
115 provided by employers or by any other system intended to provide
116 wages during a period of disability.
117 (5) “Committee” means, as the context requires, the Medical
118 Review Committee or the Compensation Committee.
119 (6) “Compensation schedule” means a schedule of damages for
120 medical injuries.
121 (7) “Department” means the Department of Health.
122 (8) “Independent medical review panel” or “panel” means a
123 multidisciplinary panel convened by the chief medical officer to
124 review each application.
125 (9)(a) “Medical injury” means a personal injury or wrongful
126 death due to medical treatment, including a missed diagnosis,
127 which injury or death could have been avoided:
128 1. For care provided by an individual participating
129 provider, under the care of an experienced specialist provider
130 practicing in the same field of care under the same or similar
131 circumstances or, for a general practitioner provider, an
132 experienced general practitioner provider practicing under the
133 same or similar circumstances; or
134 2. For care provided by a participating provider in a
135 system of care, if such care is rendered within an optimal
136 system of care under the same or similar circumstances.
137 (b) A medical injury only includes consideration of an
138 alternate course of treatment if the injury or death could have
139 been avoided through a different but equally effective manner of
140 treatment for the underlying condition. In addition, a medical
141 injury only includes consideration of information that would
142 have been known to an experienced specialist or readily
143 available to an optimal system of care at the time of the
144 medical treatment.
145 (c) For purposes of this subsection, the term “medical
146 injury” does not include an injury or wrongful death caused by a
147 product defect in a drug or device as defined in s. 499.003.
148 (10) “Office” means, as the context requires, the Office of
149 Compensation, the Office of Medical Review, or the Office of
150 Quality Improvement.
151 (11) “Panelist” means a hospital administrator; a person
152 licensed under chapter 458, chapter 459, chapter 460, part I of
153 chapter 464, or chapter 466; or any other person involved in the
154 management of a health care facility deemed by the board to be
155 appropriate.
156 (12) “Participating provider” means a provider who, at the
157 time of the medical injury, had paid the contribution required
158 for participation in the Patient Compensation System for the
159 year in which the medical injury occurred.
160 (13) “Patient Compensation System” means the organization
161 created in s. 766.404.
162 (14) “Provider” means a birth center licensed under chapter
163 383; a facility licensed under chapter 390, chapter 395, or
164 chapter 400; a home health agency or nurse registry licensed
165 under part III of chapter 400; a health care services pool
166 registered under part IX of chapter 400; a person licensed under
167 s. 401.27, chapter 457, chapter 458, chapter 459, chapter 460,
168 chapter 461, chapter 462, chapter 463, chapter 464, chapter 465,
169 chapter 466, chapter 467, part I, part II, part III, part IV,
170 part V, part X, part XIII, or part XIV of chapter 468, chapter
171 478, part III of chapter 483, or chapter 486; a clinical
172 laboratory licensed under part I of chapter 483; a multiphasic
173 health testing center licensed under part II of chapter 483; a
174 health maintenance organization certificated under part I of
175 chapter 641; a blood bank; a plasma center; an industrial
176 clinic; a renal dialysis facility; or a professional
177 association, partnership, corporation, joint venture, or other
178 association pertaining to the professional activity of health
179 care providers.
180 Section 5. Section 766.403, Florida Statutes, is created to
181 read:
182 766.403 Legislative findings and intent; exclusive remedy;
183 early offers.—
184 (1) LEGISLATIVE FINDINGS.—The Legislature finds that:
185 (a) The lack of legal representation, and, thus,
186 compensation, for the vast majority of patients with legitimate
187 injuries is creating an access to courts crisis.
188 (b) Seeking compensation through medical malpractice
189 litigation is a costly and protracted process, such that legal
190 counsel may only afford to finance a small number of legitimate
191 claims.
192 (c) Even for patients who are able to obtain legal
193 representation, the delay in obtaining compensation averages 5
194 years, creating a significant hardship for patients and their
195 caregivers who often need access to immediate care and
196 compensation.
197 (d) Because of continued exposure to liability, an
198 overwhelming majority of physicians practice defensive medicine
199 by ordering unnecessary tests and procedures, increasing the
200 cost of health care for individuals covered by public and
201 private health insurance coverage and exposing patients to
202 unnecessary clinical risks.
203 (e) A significant percentage of physicians retire from
204 practice as a result of the cost and risk of medical liability
205 in this state.
206 (f) Recruiting physicians to practice in this state and
207 ensuring that current physicians continue to practice in this
208 state is an overwhelming public necessity.
209 (2) LEGISLATIVE INTENT.—The Legislature intends:
210 (a) To create an alternative to medical malpractice
211 litigation whereby patients are fairly and expeditiously
212 compensated for avoidable medical injuries. As provided in this
213 part, this alternative is intended to significantly reduce the
214 practice of defensive medicine, thereby reducing health care
215 costs, increasing the number of physicians practicing in this
216 state, and providing patients fair and timely compensation
217 without the expense and delay of the court system. The
218 Legislature intends that this part apply to all health care
219 facilities and health care practitioners who are either insured
220 or self-insured against claims for medical malpractice.
221 (b) That an application filed under this part not
222 constitute a claim for medical malpractice, any action on such
223 an application not constitute a judgment or adjudication for
224 medical malpractice, and, therefore, professional liability
225 carriers not be obligated to report such applications or actions
226 on such applications to the National Practitioner Data Bank.
227 (c) That the definition of the term “medical injury” be
228 construed to encompass a broader range of personal injuries as
229 compared to a negligence standard, such that a greater number of
230 applications qualify for compensation under this part as
231 compared to claims filed under a negligence standard.
232 (d) That, because the Patient Compensation System has the
233 primary duty to determine the validity and compensation of each
234 application, an insurer not be subject to a statutory or common
235 law bad faith cause of action relating to an application filed
236 under this part.
237 (3) EXCLUSIVE REMEDY.—Except as provided in part III, the
238 rights and remedies granted by this part due to a personal
239 injury or wrongful death exclude all other rights and remedies
240 of the applicant and his or her personal representative,
241 parents, dependents, and next of kin, at common law or as
242 provided in general law, against any participating provider
243 directly involved in providing the medical treatment resulting
244 in such injury or death, arising out of or related to a medical
245 negligence claim, whether in tort or in contract, with respect
246 to such injury. Notwithstanding any other law, this part applies
247 exclusively to applications submitted under this part. An
248 applicant whose injury is excluded from coverage under this part
249 may file a claim for recovery of damages in accordance with part
250 I.
251 (4) EARLY OFFER.—This part does not prohibit a self-insured
252 provider or an insurer from providing an early offer of
253 settlement in satisfaction of a medical injury. A person who
254 accepts a settlement offer may not file an application under
255 this part for the same medical injury. In addition, if an
256 application has been filed before the offer of settlement, the
257 acceptance of the settlement offer by the applicant shall result
258 in the withdrawal of the application.
259 Section 6. Section 766.404, Florida Statutes, is created to
260 read:
261 766.404 Patient Compensation System; board; committees.—
262 (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation
263 System is created and shall be administratively housed within
264 the department. The Patient Compensation System is a separate
265 budget entity that shall be responsible for its administrative
266 functions and is not subject to control, supervision, or
267 direction by the department in any manner. The Patient
268 Compensation System shall administer this part.
269 (2) PATIENT COMPENSATION BOARD.—The Patient Compensation
270 Board is established to govern the Patient Compensation System.
271 (a) Members.—The board shall be composed of 11 members who
272 represent the medical, legal, patient, and business communities
273 from diverse geographic areas throughout the state. Members of
274 the board shall be appointed as follows:
275 1. Five members shall be appointed by, and serve at the
276 pleasure of, the Governor, one of whom shall be an allopathic or
277 osteopathic physician who actively practices in this state, one
278 of whom shall be an executive in the business community, one of
279 whom shall be a hospital administrator, one of whom shall be a
280 certified public accountant who actively practices in this
281 state, and one of whom shall be a member of The Florida Bar.
282 2. Three members shall be appointed by, and serve at the
283 pleasure of, the President of the Senate, one of whom shall be
284 an allopathic or osteopathic physician who actively practices in
285 this state and one of whom shall be a patient advocate.
286 3. Three members shall be appointed by, and serve at the
287 pleasure of, the Speaker of the House of Representatives, one of
288 whom shall be an allopathic or osteopathic physician who
289 actively practices in this state and one of whom shall be a
290 patient advocate.
291 (b) Terms of appointment.—Each member shall be appointed
292 for a 4-year term. For the purpose of providing staggered terms,
293 of the initial appointments, the five members appointed by the
294 Governor shall be appointed to 2-year terms and the remaining
295 six members shall be appointed to 3-year terms. If a vacancy
296 occurs on the board before the expiration of a term, the
297 original appointing authority shall appoint a successor to serve
298 the unexpired portion of the term.
299 (c) Chair and vice chair.—The board shall annually elect
300 from its membership one member to serve as chair of the board
301 and one member to serve as vice chair.
302 (d) Meetings.—The first meeting of the board shall be held
303 no later than August 1, 2013. Thereafter, the board shall meet
304 at least quarterly upon the call of the chair. A majority of the
305 board members constitutes a quorum. Meetings may be held by
306 teleconference, web conference, or other electronic means.
307 (e) Compensation.—Members of the board shall serve without
308 compensation but may be reimbursed for per diem and travel
309 expenses for required attendance at board meetings in accordance
310 with s. 112.061.
311 (f) Powers and duties of the board.—The board shall have
312 the following powers and duties:
313 1. Ensuring the operation of the Patient Compensation
314 System in accordance with applicable federal and state laws,
315 rules, and regulations.
316 2. Entering into contracts as necessary to administer this
317 part.
318 3. Employing an executive director and other staff as
319 necessary to perform the functions of the Patient Compensation
320 System, except that the Governor shall appoint the initial
321 executive director.
322 4. Approving the hiring of a chief compensation officer and
323 chief medical officer, as recommended by the executive director.
324 5. Approving a schedule of compensation for medical
325 injuries, as recommended by the Compensation Committee.
326 6. Approving medical review panelists as recommended by the
327 Medical Review Committee.
328 7. Approving an annual budget.
329 8. Annually approving provider contribution amounts.
330 (g) Powers and duties of staff.—The executive director
331 shall oversee the operation of the Patient Compensation System
332 in accordance with this part. The following staff shall report
333 directly to and serve at the pleasure of the executive director:
334 1. Advocacy director.—The advocacy director shall ensure
335 that each applicant is provided high-quality individual
336 assistance throughout the process, from initial filing to
337 disposition of the application. The advocacy director shall
338 assist each applicant in determining whether to retain an
339 attorney, which assistance shall include an explanation of
340 possible fee arrangements and the advantages and disadvantages
341 of retaining an attorney. If the applicant seeks to file an
342 application without an attorney, the advocacy director shall
343 assist the applicant in filing the application. In addition, the
344 advocacy director shall regularly provide status reports to the
345 applicant regarding his or her application.
346 2. Chief compensation officer.—The chief compensation
347 officer shall manage the Office of Compensation. The chief
348 compensation officer shall recommend to the Compensation
349 Committee a compensation schedule for each type of medical
350 injury. The chief compensation officer may not be a licensed
351 physician or an attorney.
352 3. Chief financial officer.—The chief financial officer
353 shall be responsible for overseeing the financial operations of
354 the Patient Compensation System, including the annual
355 development of a budget.
356 4. Chief legal officer.—The chief legal officer shall
357 represent the Patient Compensation System in all contested
358 applications, oversee the operation of the Patient Compensation
359 System to ensure compliance with established procedures, and
360 ensure adherence to all applicable federal and state laws,
361 rules, and regulations.
362 5. Chief medical officer.—The chief medical officer shall
363 be a physician licensed under chapter 458 or chapter 459 and
364 shall manage the Office of Medical Review. The chief medical
365 officer shall recommend to the Medical Review Committee a
366 qualified list of multidisciplinary panelists for independent
367 medical review panels. In addition, the chief medical officer
368 shall convene independent medical review panels as necessary to
369 review applications.
370 6. Chief quality officer.—The chief quality officer shall
371 manage the Office of Quality Improvement.
372 (3) OFFICES.—The following offices are established within
373 the Patient Compensation System:
374 (a) Office of Medical Review.—The Office of Medical Review
375 shall evaluate and, as necessary, investigate all applications
376 in accordance with this part. For the purpose of an
377 investigation of an application, the office shall have the power
378 to administer oaths, take depositions, issue subpoenas, compel
379 the attendance of witnesses and the production of papers,
380 documents, and other evidence, and obtain patient records
381 pursuant to the applicant’s release of protected health
382 information.
383 (b) Office of Compensation.—The Office of Compensation
384 shall allocate compensation for each application in accordance
385 with the compensation schedule.
386 (c) Office of Quality Improvement.—The Office of Quality
387 Improvement shall regularly review application data to conduct
388 root-cause analyses and develop and disseminate best practices
389 based on such reviews. In addition, the office shall capture and
390 record safety-related data obtained during an investigation
391 conducted by the Office of Medical Review, including the cause
392 of, the factors contributing to, and any interventions that may
393 have prevented the medical injury.
394 (4) COMMITTEES.—The board shall create a Medical Review
395 Committee and a Compensation Committee. The board may create
396 additional committees as necessary to assist in the performance
397 of its duties and responsibilities.
398 (a) Members.—Each committee shall be composed of three
399 board members chosen by a majority vote of the board.
400 1. The Medical Review Committee shall be composed of two
401 physicians and a board member who is not an attorney. The board
402 shall designate a physician committee member as chair of the
403 committee.
404 2. The Compensation Committee shall be composed of a
405 certified public accountant and two board members who are not
406 physicians or attorneys. The certified public accountant shall
407 serve as chair of the committee.
408 (b) Terms of appointment.—Members of each committee shall
409 serve 2-year terms concurrent with their respective terms as
410 board members. If a vacancy occurs on a committee, the board
411 shall appoint a successor to serve the unexpired portion of the
412 term. A committee member who is removed or resigns from the
413 board shall be removed from the committee.
414 (c) Chair and vice chair.—The board shall annually
415 designate a chair and vice chair of each committee.
416 (d) Meetings.—Each committee shall meet at least quarterly
417 or at the specific direction of the board. Meetings may be held
418 by teleconference, web conference, or other electronic means.
419 (e) Compensation.—Members of the committees shall serve
420 without compensation but may be reimbursed for per diem and
421 travel expenses for required attendance at committee meetings in
422 accordance with s. 112.061.
423 (f) Powers and duties.—
424 1. The Medical Review Committee shall recommend to the
425 board a comprehensive, multidisciplinary list of panelists who
426 shall serve on the independent medical review panels as needed.
427 2. The Compensation Committee shall, in consultation with
428 the chief compensation officer, recommend to the board:
429 a. A compensation schedule, formulated such that the
430 aggregate cost of medical malpractice and the aggregate of
431 provider contributions are equal to or less than the prior
432 fiscal year’s aggregate cost of medical malpractice. In
433 addition, damage payments for each injury shall be no less than
434 the average indemnity payment reported by the Physician Insurers
435 Association of America or its successor organization for similar
436 medical injuries with similar severity. Thereafter, the
437 committee shall annually review the compensation schedule and,
438 if necessary, recommend a revised schedule, such that a
439 projected increase in the upcoming fiscal year’s aggregate cost
440 of medical malpractice, including insured and self-insured
441 providers, does not exceed the percentage change from the prior
442 year in the medical care component of the Consumer Price Index
443 for All Urban Consumers.
444 b. Guidelines for the payment of compensation awards
445 through periodic payments.
446 c. Guidelines for the apportionment of compensation among
447 multiple providers, which guidelines shall be based on the
448 historical apportionment among multiple providers for similar
449 injuries with similar severity.
450 (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
451 officer shall convene an independent medical review panel to
452 evaluate each application to determine whether a medical injury
453 occurred. Each panel shall be composed of an odd number of at
454 least three panelists chosen from the list of panelists
455 recommended by the Medical Review Committee and approved by the
456 board and shall convene upon the call of the chief medical
457 officer. Each panelist shall be paid a stipend as determined by
458 the board for his or her service on the panel. In order to
459 expedite the review of applications, the chief medical officer
460 may, whenever practicable, group related applications together
461 for consideration by a single panel.
462 (6) CONFLICTS OF INTEREST.—A board member, panelist, or
463 employee of the Patient Compensation System may not engage in
464 any conduct that constitutes a conflict of interest. For
465 purposes of this subsection, the term “conflict of interest”
466 means a situation in which the private interest of a board
467 member, panelist, or employee could influence his or her
468 judgment in the performance of his or her duties under this
469 part. A board member, panelist, or employee shall immediately
470 disclose in writing the presence of a conflict of interest when
471 the board member, panelist, or employee knows or should
472 reasonably have known that the factual circumstances surrounding
473 a particular application constitute or constituted a conflict of
474 interest. A board member, panelist, or employee who violates
475 this subsection is subject to disciplinary action as determined
476 by the board. A conflict of interest includes, but is not
477 limited to:
478 (a) Any conduct that would lead a reasonable person having
479 knowledge of all of the circumstances to conclude that a board
480 member, panelist, or employee is biased against or in favor of
481 an applicant.
482 (b) Participation in any application in which the board
483 member, panelist, or employee, or the parent, spouse, or child
484 of a board member, panelist, or employee, has a financial
485 interest.
486 (7) RULEMAKING.—The board shall adopt rules to implement
487 and administer this part, including rules addressing:
488 (a) The application process, including forms necessary to
489 collect relevant information from applicants.
490 (b) Disciplinary procedures for a board member, panelist,
491 or employee who violates the conflict of interest provisions of
492 this part.
493 (c) Stipends paid to panelists for their service on an
494 independent medical review panel, which stipends may be scaled
495 in accordance with the relative scarcity of the provider’s
496 specialty, if applicable.
497 (d) Payment of compensation awards through periodic
498 payments and the apportionment of compensation among multiple
499 providers, as recommended by the Compensation Committee.
500 (e) The opt-out process for providers who do not want to
501 participate in the Patient Compensation System.
502 Section 7. Section 766.405, Florida Statutes, is created to
503 read:
504 766.405 Filing of applications.—
505 (1) CONTENT.—In order to obtain compensation for a medical
506 injury, an applicant, or his or her legal representative, shall
507 file an application with the Patient Compensation System. The
508 application shall include the following:
509 (a) The name and address of the applicant or his or her
510 representative and the basis of the representation.
511 (b) The name and address of any participating provider who
512 provided medical treatment allegedly resulting in the medical
513 injury.
514 (c) A brief statement of the facts and circumstances
515 surrounding the medical injury that gave rise to the
516 application.
517 (d) An authorization for release to the Office of Medical
518 Review of all protected health information that is potentially
519 relevant to the application.
520 (e) Any other information that the applicant believes will
521 be beneficial to the investigatory process, including the names
522 of potential witnesses.
523 (f) Documentation of any applicable private or governmental
524 source of services or reimbursement relative to the medical
525 injury.
526 (2) INCOMPLETE APPLICATIONS.—If an application is not
527 complete, the Patient Compensation System shall, within 30 days
528 after the receipt of the initial application, notify the
529 applicant in writing of any errors or omissions. An applicant
530 shall have 30 days after receipt of the notice in which to
531 correct the errors or omissions in the initial application.
532 (3) TIME LIMITATION ON APPLICATIONS.—An application shall
533 be filed within the time periods specified in s. 95.11(4) for
534 medical malpractice actions.
535 (4) SUPPLEMENTAL INFORMATION.—After the filing of an
536 application, the applicant may supplement the initial
537 application with additional information that the applicant
538 believes may be beneficial in the resolution of the application.
539 (5) LEGAL COUNSEL.—This part does not prohibit an applicant
540 or participating provider from retaining an attorney to
541 represent the applicant or participating provider in the review
542 and resolution of an application.
543 Section 8. Section 766.406, Florida Statutes, is created to
544 read:
545 766.406 Disposition of applications.—
546 (1) INITIAL MEDICAL REVIEW.—Individuals with relevant
547 clinical expertise in the Office of Medical Review shall, within
548 10 days after the receipt of a completed application, determine
549 whether the application, prima facie, constitutes a medical
550 injury.
551 (a) If the Office of Medical Review determines that the
552 application, prima facie, constitutes a medical injury, the
553 office shall immediately notify, by registered or certified
554 mail, each participating provider named in the application and,
555 for participating providers that are not self-insured, the
556 insurer that provides coverage for the provider. The
557 notification shall inform the participating provider that he or
558 she may support the application to expedite the processing of
559 the application. A participating provider shall have 15 days
560 after the receipt of notification of an application to support
561 the application. If the participating provider supports the
562 application, the Office of Medical Review shall review the
563 application in accordance with subsection (2).
564 (b) If the Office of Medical Review determines that the
565 application does not, prima facie, constitute a medical injury,
566 the office shall send a rejection letter to the applicant by
567 registered or certified mail informing the applicant of his or
568 her right of appeal. The applicant shall have 15 days after the
569 receipt of the letter in which to appeal the determination of
570 the office pursuant to s. 766.407.
571 (2) EXPEDITED MEDICAL REVIEW.—An application that is
572 supported by a participating provider in accordance with
573 subsection (1) shall be reviewed by individuals with relevant
574 clinical expertise in the Office of Medical Review within 30
575 days after notification of the participating provider’s support
576 of the application to determine the validity of the application.
577 If the Office of Medical Review finds that the application is
578 valid, the Office of Compensation shall determine an award of
579 compensation in accordance with subsection (4). If the Office of
580 Medical Review finds that the application is not valid, the
581 office shall immediately notify the applicant of the rejection
582 of the application and, in the case of fraud, shall immediately
583 notify relevant law enforcement authorities.
584 (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
585 determines that the application, prima facie, constitutes a
586 medical injury and the participating provider does not elect to
587 support the application, the office shall complete a thorough
588 investigation of the application within 60 days after the
589 determination by the office. The investigation shall be
590 conducted by a multidisciplinary team with relevant clinical
591 expertise and shall include a thorough investigation of all
592 available documentation, witnesses, and other information.
593 Within 15 days after the completion of the investigation, the
594 chief medical officer shall allow the applicant and the
595 participating provider to access records, statements, and other
596 information obtained in the course of its investigation, in
597 accordance with relevant state and federal laws. Within 30 days
598 after the completion of the investigation, the chief medical
599 officer shall convene an independent medical review panel to
600 determine whether the application constitutes a medical injury.
601 The independent medical review panel shall have access to all
602 redacted information obtained by the office in the course of its
603 investigation of the application and shall make a written
604 determination within 10 days after the convening of the panel,
605 which written determination shall be immediately provided to the
606 applicant and the participating provider. The standard of review
607 shall be a preponderance of the evidence.
608 (a) If the independent medical review panel determines that
609 the application constitutes a medical injury, the Office of
610 Medical Review shall immediately notify the participating
611 provider by registered or certified mail of the right to appeal
612 the determination of the panel. The participating provider shall
613 have 15 days after the receipt of the letter in which to appeal
614 the determination of the panel pursuant to s. 766.407.
615 (b) If the independent medical review panel determines that
616 the application does not constitute a medical injury, the Office
617 of Medical Review shall immediately notify the applicant by
618 registered or certified mail of the right to appeal the
619 determination of the panel. The applicant shall have 15 days
620 after the receipt of the letter to appeal the determination of
621 the panel pursuant to s. 766.407.
622 (4) COMPENSATION REVIEW.—If an independent medical review
623 panel finds that an application constitutes a medical injury
624 under subsection (3) and all appeals of that finding have been
625 exhausted by the participating provider pursuant to s. 766.407,
626 the Office of Compensation shall, within 30 days after either
627 the finding of the panel or the exhaustion of all appeals of
628 that finding, whichever occurs later, make a written
629 determination of an award of compensation in accordance with the
630 compensation schedule and the findings of the panel. The office
631 shall notify the applicant and the participating provider by
632 registered or certified mail of the amount of compensation and
633 shall also explain to the applicant the process to appeal the
634 determination of the office. The applicant shall have 15 days
635 after the receipt of the letter to appeal the determination of
636 the office pursuant to s. 766.407.
637 (5) LIMITATION ON COMPENSATION.—Compensation for each
638 application shall be offset by any past and future collateral
639 source payments. In addition, compensation may be paid by
640 periodic payments as determined by the Office of Compensation in
641 accordance with rules adopted by the board.
642 (6) PAYMENT OF COMPENSATION.—Within 14 days after either
643 the acceptance of compensation by the applicant or the
644 conclusion of all appeals pursuant to s. 766.407, the
645 participating provider, or for a participating provider who has
646 insurance coverage, the insurer, shall remit the compensation
647 award to the Patient Compensation System, which shall
648 immediately provide compensation to the applicant in accordance
649 with the final compensation award. Beginning 45 days after the
650 acceptance of compensation by the applicant or the conclusion of
651 all appeals pursuant to s. 766.407, whichever occurs later, an
652 unpaid award shall begin to accrue interest at the rate of 18
653 percent per year.
654 (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of
655 s. 26, Art. X of the State Constitution, a physician who is the
656 subject of an application under this part must be found to have
657 committed medical malpractice only upon a specific finding of
658 the Board of Medicine or Board of Osteopathic Medicine, as
659 applicable, in accordance with s. 456.50.
660 (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
661 System shall provide the department with electronic access to
662 applications for which a medical injury was determined to exist,
663 related to persons licensed under chapter 458, chapter 459,
664 chapter 460, part I of chapter 464, or chapter 466, where the
665 provider represents an imminent risk of harm to the public. The
666 department shall review such applications to determine whether
667 any of the incidents that resulted in the application
668 potentially involved conduct by the licensee that is subject to
669 disciplinary action, in which case s. 456.073 applies.
670 Section 9. Section 766.407, Florida Statutes, is created to
671 read:
672 766.407 Review by administrative law judge; appellate
673 review; extensions of time.—
674 (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative
675 law judge shall hear and determine appeals filed pursuant to s.
676 766.406 and shall exercise the full power and authority granted
677 to him or her in chapter 120, as necessary, to carry out the
678 purposes of that section. The administrative law judge shall be
679 limited in his or her review to determining whether the Office
680 of Medical Review, the independent medical review panel, or the
681 Office of Compensation, as appropriate, has faithfully followed
682 the requirements of this part and rules adopted thereunder in
683 reviewing applications. If the administrative law judge
684 determines that such requirements were not followed in reviewing
685 an application, he or she shall require the chief medical
686 officer to either reconvene the original panel or convene a new
687 panel, or require the Office of Compensation to redetermine the
688 compensation amount, in accordance with the determination of the
689 judge.
690 (2) APPELLATE REVIEW.—A determination by an administrative
691 law judge under this section regarding the award or denial of
692 compensation under this part shall be conclusive and binding as
693 to all questions of fact and shall be provided to the applicant
694 and the participating provider. An applicant may appeal the
695 award or denial of compensation to the district court of appeal.
696 Appeals shall be filed in accordance with rules of procedure
697 adopted by the Supreme Court for review of such orders.
698 (3) EXTENSIONS OF TIME.—Upon a written petition by either
699 the applicant or the participating provider, an administrative
700 law judge may grant, for good cause, an extension of any of the
701 time periods specified in this part.
702 Section 10. Section 766.408, Florida Statutes, is created
703 to read:
704 766.408 Expenses of administration; opt out.—
705 (1) The board shall annually determine a contribution that
706 shall be paid by each provider, unless the provider opts out of
707 participation in the Patient Compensation System pursuant to
708 subsection (6). The contribution amount shall be determined by
709 January 1 of each year and shall be based on the anticipated
710 expenses of the administration of this part for the next state
711 fiscal year.
712 (2) The contribution rate may not exceed the following
713 amounts:
714 (a) For an individual licensed under s. 401.27, a
715 chiropractic assistant licensed under chapter 460, or an
716 individual licensed under chapter 461, chapter 462, chapter 463,
717 chapter 464 with the exception of a certified registered nurse
718 anesthetist, chapter 465, chapter 466, chapter 467, part I, part
719 II, part III, part IV, part V, part X, part XIII, or part XIV of
720 chapter 468, chapter 478, part III of chapter 483, or chapter
721 486, $100 per licensee.
722 (b) For an anesthesiology assistant or physician assistant
723 licensed under chapter 458 or chapter 459 or a certified
724 registered nurse anesthetist certified under part I of chapter
725 464, $250 per licensee.
726 (c) For a physician licensed under chapter 458, chapter
727 459, or chapter 460, $600 per licensee. The contribution for the
728 initial fiscal year shall be $500 per licensee.
729 (d) For a facility licensed under part II of chapter 400,
730 $100 per bed.
731 (e) For a facility licensed under chapter 395, $200 per
732 bed. The contribution for the initial fiscal year shall be $100
733 per bed.
734 (f) For any other provider not otherwise described in this
735 subsection, $2,500 per registrant or licensee.
736 (3) The contribution determined under this section shall be
737 payable by each participating provider upon notice delivered on
738 or after July 1 of the next state fiscal year. Each
739 participating provider shall pay the contribution amount within
740 30 days after the date the notice is delivered to the provider.
741 If a provider fails to pay the contribution determined under
742 this section within 30 days after such notice, the board shall
743 notify the provider by certified or registered mail that the
744 provider’s license shall be subject to revocation if the
745 contribution is not paid within 60 days after the date of the
746 original notice.
747 (4) A provider that has not opted out of participation
748 pursuant to subsection (6) who fails to pay the contribution
749 amount determined under this section within 60 days after
750 receipt of the original notice shall be subject to a licensure
751 revocation action by the department, the Agency for Health Care
752 Administration, or the relevant regulatory board, as applicable.
753 (5) All amounts collected under this section shall be paid
754 into the Patient Compensation Trust Fund established in s.
755 766.4105.
756 (6) A provider may elect to opt out of participation in the
757 Patient Compensation System. The election to opt out must be
758 made in writing no later than 15 days before the due date of the
759 contribution required under this section. A provider who opts
760 out may subsequently elect to participate by paying the
761 appropriate contribution amount for the current fiscal year.
762 Section 11. Section 766.409, Florida Statutes, is created
763 to read:
764 766.409 Notice to patients of participation in the Patient
765 Compensation System.—
766 (1) Each participating provider shall provide notice to
767 patients that the provider is participating in the Patient
768 Compensation System. Such notice shall be provided on a form
769 furnished by the Patient Compensation System and shall include a
770 concise explanation of a patient’s rights and benefits under the
771 system.
772 (2) Notice is not required to be given to a patient when
773 the patient has an emergency medical condition as defined in s.
774 395.002(8)(b) or when notice is not practicable.
775 Section 12. Section 766.410, Florida Statutes, is created
776 to read:
777 766.410 Annual report.—The board shall annually, by October
778 1, submit to the Governor, the President of the Senate, and the
779 Speaker of the House of Representatives a report that describes
780 the filing and disposition of applications in the preceding
781 fiscal year. The report shall include, in the aggregate, the
782 number of applications, the disposition of such applications,
783 and the compensation awarded.
784 Section 13. This act applies to medical incidents for which
785 a notice of intent to initiate litigation has not been mailed
786 before July 1, 2013.
787 Section 14. If any provision of this act or its application
788 to any person or circumstance is held invalid, the invalidity
789 does not affect other provisions or applications of the act
790 which may be given effect without the invalid provision or
791 application, and to this end the provisions of this act are
792 severable.
793 Section 15. This act shall take effect July 1, 2013.