Florida Senate - 2014                                    SB 1128
       
       
        
       By Senator Richter
       
       
       
       
       
       23-00729B-14                                          20141128__
    1                        A bill to be entitled                      
    2         An act relating to damages in negligence actions;
    3         creating s. 768.755, F.S.; providing that a claimant
    4         in certain negligence actions may recover damages for
    5         the cost of medical or health care services only if
    6         such services are medically necessary; providing a
    7         methodology to calculate an award of damages for the
    8         cost of such medical or health care services;
    9         specifying evidence that is admissible and
   10         inadmissible in determining the award of damages;
   11         requiring an alternative calculation of damages if
   12         certain insurers file a lien or subrogation claim in
   13         the action; prohibiting the use of a finding of
   14         medical necessity for certain purposes; providing
   15         applicability; providing a directive to the Division
   16         of Law Revision and Information; providing an
   17         effective date.
   18          
   19  Be It Enacted by the Legislature of the State of Florida:
   20  
   21         Section 1. Section 768.755, Florida Statutes, is created to
   22  read:
   23         768.755 Damages recoverable for cost of medical or health
   24  care services; evidence of amount of damages; applicability.—
   25         (1) In any personal injury or wrongful death action to
   26  which this part applies, damages for the cost of medical or
   27  health care services provided to a claimant may be recovered
   28  only for medical or health care services that are determined, by
   29  a preponderance of the evidence, to be medically necessary. A
   30  defendant is not liable for damages arising from or related to
   31  the rendering of medical or health care services determined to
   32  be medically unnecessary. The award of damages shall be
   33  calculated as follows:
   34         (a) For such medical or health care services provided to
   35  the claimant which are paid for by the claimant and for which an
   36  outstanding balance is not due the provider, the actual amount
   37  remitted to the provider is the maximum amount recoverable. Any
   38  difference between the amount originally billed by the provider
   39  and the actual amount remitted to the provider is not
   40  recoverable or admissible into evidence.
   41         (b) For such medical or health care services provided to
   42  the claimant which are paid for by a governmental or commercial
   43  insurance payor and for which an outstanding balance is not due
   44  the provider, other than a copay or deductible owed by the
   45  claimant, the actual amount remitted to the provider by the
   46  governmental or commercial insurance payor and any copay or
   47  deductible owed by the claimant is the maximum amount
   48  recoverable. Any difference between the amount originally billed
   49  by the provider and the actual amount remitted to the provider
   50  or due from the claimant for a copay or deductible is not
   51  recoverable or admissible into evidence.
   52         (c) For such medical or health care services provided to
   53  the claimant for which an outstanding balance is claimed to be
   54  due the provider, the parties may introduce into evidence:
   55         1. The usual and customary charges of providers in the same
   56  geographic area for identical or substantially similar medical
   57  or health care services;
   58         2. Amounts billed by the provider for the services provided
   59  to the claimant, including those amounts billed under an
   60  agreement between the provider and the claimant or the
   61  claimant’s representative;
   62         3. Amounts the provider received in compensation, if any,
   63  for the sale of the agreement between the provider and the
   64  claimant or the claimant’s representative under which the
   65  medical or health care services were provided to the claimant;
   66  and
   67         4. Other relevant evidence.
   68         (2) Individual contracts between providers and licensed
   69  commercial insurers or licensed health maintenance
   70  organizations, other than those applicable to the claimant, are
   71  not subject to discovery or disclosure in any action under this
   72  part, nor is such information admissible into evidence in any
   73  action to which this section applies. This subsection also
   74  applies to any lien or subrogation claim asserted for the cost
   75  of medical or health care services in the action, except for a
   76  lien or subrogation claim described in subsection (3).
   77         (3) Notwithstanding any provision of this section to the
   78  contrary, if Medicaid, Medicare, or a payor regulated under the
   79  Florida Insurance Code has covered or is covering the cost of a
   80  claimant’s medical or health care services and has given notice
   81  of assertion of a lien or subrogation claim for past medical
   82  expenses in the action, the amount of the lien or subrogation
   83  claim, in addition to the amount of any copayments or
   84  deductibles paid or payable by the claimant, is the maximum
   85  amount recoverable and admissible into evidence with respect to
   86  the covered services.
   87         (4) This section applies only to those actions for personal
   88  injury or wrongful death to which this part applies arising on
   89  or after the effective date of this act and has no other
   90  application or effect regarding compensation paid to providers
   91  of medical or health care services. A determination as to
   92  medical necessity under this section may not be used by any
   93  person in an effort or action to recoup or recover payment made
   94  by a payor to a provider for medical or health care services or
   95  in any malpractice, disciplinary, or regulatory action or other
   96  proceeding against the provider.
   97         Section 2. The Division of Law Revision and Information is
   98  directed to replace the phrase “the effective date of this act”
   99  wherever it occurs in s. 768.755, Florida Statutes, with the
  100  date this act becomes a law.
  101         Section 3. This act shall take effect upon becoming a law.