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House Bill 1643

Florida House of Representatives - 1997 HB 1643 By Representatives Villalobos, Stafford and Edwards 1 A bill to be entitled 2 An act relating to health care; amending ss. 3 458.320 and 459.0085, F.S.; requiring 4 maintenance of financial responsibility as a 5 condition of licensure of physicians and 6 osteopathic physicians; providing for payment 7 of any outstanding judgments or settlements 8 pending at the time a physician or osteopathic 9 physician is suspended by the Department of 10 Health; repealing an alternative method of 11 providing financial responsibility; correcting 12 cross references; amending s. 455.245, F.S.; 13 requiring the department to issue an emergency 14 order suspending the license of a physician or 15 osteopathic physician who the agency has 16 probable cause to believe has violated s. 17 458.320 or s. 459.0085, F.S.; providing 18 applicability; providing an effective date. 19 20 Be It Enacted by the Legislature of the State of Florida: 21 22 Section 1. Section 458.320, Florida Statutes, 1996 23 Supplement, is amended to read: 24 458.320 Financial responsibility.-- 25 (1) As a condition of licensing and maintaining an 26 active license, and prior to the issuance or renewal of an 27 active license or reactivation of an inactive license for the 28 practice of medicine, an applicant or licensee must shall by 29 one of the following methods demonstrate to the satisfaction 30 of the board and the department financial responsibility to 31 pay claims and costs ancillary thereto arising out of the 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 rendering of, or the failure to render, medical care or 2 services: 3 (a) Establishing and maintaining an escrow account 4 consisting of cash or assets eligible for deposit in 5 accordance with s. 625.52 in the per claim amounts specified 6 in paragraph (b). 7 (b) Obtaining and maintaining professional liability 8 coverage for the current year and for each of the prior years 9 that the applicant or licensee has been in the active practice 10 of medicine, up to a maximum of 4 prior years, in an amount 11 not less than $100,000 per claim, with a minimum annual 12 aggregate of not less than $300,000, from an authorized 13 insurer as defined under s. 624.09, from a surplus lines 14 insurer as defined under s. 626.914(2), from a risk retention 15 group as defined under s. 627.942, from the Joint Underwriting 16 Association established under s. 627.351(4), or through a plan 17 of self-insurance as provided in s. 627.357. 18 (c) Obtaining and maintaining an unexpired, 19 irrevocable letter of credit, established pursuant to chapter 20 675, for the current year and for each of the prior years that 21 the applicant or licensee has been in the active practice of 22 medicine, up to a maximum of 4 prior years, in an amount not 23 less than $100,000 per claim, with a minimum aggregate 24 availability of credit of not less than $300,000. The letter 25 of credit must shall be payable to the physician as 26 beneficiary upon presentment of a final judgment indicating 27 liability and awarding damages to be paid by the physician or 28 upon presentment of a settlement agreement signed by all 29 parties to such agreement when such final judgment or 30 settlement is a result of a claim arising out of the rendering 31 of, or the failure to render, medical care and services. The 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 Such letter of credit must shall be nonassignable and 2 nontransferable. The Such letter of credit must shall be 3 issued by any bank or savings association organized and 4 existing under the laws of this state or any bank or savings 5 association organized under the laws of the United States that 6 has its principal place of business in this state or has a 7 branch office that which is authorized under the laws of this 8 state or of the United States to receive deposits in this 9 state. 10 (2) Physicians who perform surgery in an ambulatory 11 surgical center licensed under chapter 395 and, as a 12 continuing condition of hospital staff privileges, physicians 13 who have with staff privileges must shall also be required to 14 establish financial responsibility by one of the following 15 methods: 16 (a) Establishing and maintaining an escrow account 17 consisting of cash or assets eligible for deposit in 18 accordance with s. 625.52 in the per claim amounts specified 19 in paragraph (b). 20 (b) Obtaining and maintaining professional liability 21 coverage for the current year and for each of the prior years 22 that the applicant or licensee has been in the active practice 23 of medicine, up to a maximum of 4 prior years, in an amount 24 not less than $250,000 per claim, with a minimum annual 25 aggregate of not less than $750,000 from an authorized insurer 26 as defined under s. 624.09, from a surplus lines insurer as 27 defined under s. 626.914(2), from a risk retention group as 28 defined under s. 627.942, from the Joint Underwriting 29 Association established under s. 627.351(4), through a plan of 30 self-insurance as provided in s. 627.357, or through a plan of 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 self-insurance that which meets the conditions specified for 2 satisfying financial responsibility in s. 766.110. 3 (c) Obtaining and maintaining an unexpired irrevocable 4 letter of credit, established pursuant to chapter 675, for the 5 current year and for each of the prior years that the 6 applicant or licensee has been in the active practice of 7 medicine, up to a maximum of 4 prior years, in an amount not 8 less than $250,000 per claim, with a minimum aggregate 9 availability of credit of not less than $750,000. The letter 10 of credit must shall be payable to the physician as 11 beneficiary upon presentment of a final judgment indicating 12 liability and awarding damages to be paid by the physician or 13 upon presentment of a settlement agreement signed by all 14 parties to such agreement when such final judgment or 15 settlement is a result of a claim arising out of the rendering 16 of, or the failure to render, medical care and services. The 17 Such letter of credit must shall be nonassignable and 18 nontransferable. The Such letter of credit must shall be 19 issued by any bank or savings association organized and 20 existing under the laws of this state or any bank or savings 21 association organized under the laws of the United States that 22 has its principal place of business in this state or has a 23 branch office that which is authorized under the laws of this 24 state or of the United States to receive deposits in this 25 state. 26 27 This subsection shall be inclusive of the coverage in 28 subsection (1). 29 (3)(a) The financial responsibility requirements of 30 subsections (1) and (2) shall apply to claims for incidents 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 that occur on or after January 1, 1987, or the initial date of 2 licensure in this state, whichever is later. 3 (b) Meeting the financial responsibility requirements 4 of this section or the criteria for any exemption from such 5 requirements must shall be established at the time of issuance 6 or renewal of a license on or after January 1, 1987. 7 (c) Any person may, at any time, submit to the 8 department a request for an advisory opinion regarding such 9 person's qualifications for exemption. 10 (4)(a) Each insurer, self-insurer, risk retention 11 group, or Joint Underwriting Association must shall promptly 12 notify the department of cancellation or nonrenewal of 13 insurance required by this section. Unless the physician 14 demonstrates that he is otherwise in compliance with the 15 requirements of this section, the department shall suspend the 16 license of the physician pursuant to ss. 120.569 and 120.57 17 and notify all health care facilities licensed under chapter 18 395 of such action. Any suspension under this subsection 19 remains shall remain in effect until the physician 20 demonstrates compliance with the requirements of this section. 21 If any judgments or settlements are pending at the time of 22 suspension, those judgments or settlements must be paid in 23 accordance with this section unless otherwise mutually agreed 24 to in writing by the parties. This paragraph does not abrogate 25 a judgment debtor's obligation to satisfy the entire amount of 26 any judgment, except that a license suspended under paragraph 27 (5)(g) shall not be reinstated until the physician 28 demonstrates compliance with the requirements of that 29 provision. 30 (b) If financial responsibility requirements are met 31 by maintaining an escrow account or letter of credit as 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 provided in this section, upon the entry of an adverse final 2 judgment arising from a medical malpractice arbitration award, 3 from a claim of medical malpractice either in contract or 4 tort, or from noncompliance with the terms of a settlement 5 agreement arising from a claim of medical malpractice either 6 in contract or tort, the licensee must shall pay the entire 7 amount of the judgment together with all accrued interest, or 8 the amount maintained in the escrow account or provided in the 9 letter of credit as required by this section, whichever is 10 less, within 60 days after the date the such judgment became 11 final and subject to execution, unless otherwise mutually 12 agreed to in writing by the parties. If timely payment is not 13 made by the physician, the department shall suspend the 14 license of the physician pursuant to procedures set forth in 15 subparagraphs (5)(g)2., 3., and 4. Nothing in This paragraph 16 does not shall abrogate a judgment debtor's obligation to 17 satisfy the entire amount of any judgment. 18 (5) The requirements of subsections (1), (2), and (3) 19 do shall not apply to: 20 (a) Any person licensed under this chapter who 21 practices medicine exclusively as an officer, employee, or 22 agent of the Federal Government or of the state or its 23 agencies or its subdivisions. For the purposes of this 24 subsection, an agent of the state, its agencies, or its 25 subdivisions is a person who is eligible for coverage under 26 any self-insurance or insurance program authorized by the 27 provisions of s. 768.28(15)(14). 28 (b) Any person whose license has become inactive under 29 this chapter and who is not practicing medicine in this state. 30 Any person applying for reactivation of a license must show 31 either that such licensee maintained tail insurance coverage 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 that which provided liability coverage for incidents that 2 occurred on or after January 1, 1987, or the initial date of 3 licensure in this state, whichever is later, and incidents 4 that occurred before the date on which the license became 5 inactive; or such licensee must submit an affidavit stating 6 that such licensee has no unsatisfied medical malpractice 7 judgments or settlements at the time of application for 8 reactivation. 9 (c) Any person holding a limited license pursuant to 10 s. 458.317 and practicing under the scope of such limited 11 license. 12 (d) Any person licensed or certified under this 13 chapter who practices only in conjunction with his teaching 14 duties at an accredited medical school or in its main teaching 15 hospitals. Such person may engage in the practice of medicine 16 to the extent that such practice is incidental to and a 17 necessary part of duties in connection with the teaching 18 position in the medical school. 19 (e) Any person holding an active license under this 20 chapter who is not practicing medicine in this state. If such 21 person initiates or resumes any practice of medicine in this 22 state, he must notify the department of such activity and 23 fulfill the financial responsibility requirements of this 24 section before resuming the practice of medicine in this 25 state. 26 (f) Any person holding an active license under this 27 chapter who meets all of the following criteria: 28 1. The licensee has held an active license to practice 29 in this state or another state or some combination thereof for 30 more than 15 years. 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 2. The licensee has either retired from the practice 2 of medicine or maintains a part-time practice of no more than 3 1,000 patient contact hours per year. 4 3. The licensee has had no more than two claims for 5 medical malpractice resulting in an indemnity exceeding 6 $10,000 within the previous 5-year period. 7 4. The licensee has not been convicted of, or pled 8 guilty or nolo contendere to, any criminal violation specified 9 in this chapter or the medical practice act of any other 10 state. 11 5. The licensee has not been subject within the last 12 10 years of practice to license revocation or suspension for 13 any period of time; probation for a period of 3 years or 14 longer; or a fine of $500 or more for a violation of this 15 chapter or the medical practice act of another jurisdiction. 16 The regulatory agency's acceptance of a physician's 17 relinquishment of a license, stipulation, consent order, or 18 other settlement, offered in response to or in anticipation of 19 the filing of administrative charges against the physician's 20 license, constitutes shall be construed as action against the 21 physician's license for the purposes of this paragraph. 22 6. The licensee has submitted a form supplying 23 necessary information as required by the department and an 24 affidavit affirming compliance with the provisions of this 25 paragraph. 26 7. The licensee must shall submit biennially to the 27 department certification stating compliance with the 28 provisions of this paragraph. The licensee must shall, upon 29 request, demonstrate to the department information verifying 30 compliance with this paragraph. 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 A licensee who meets the requirements of this paragraph must 2 shall be required either to post notice in the form of a sign 3 prominently displayed in the reception area and clearly 4 noticeable by all patients or provide a written statement to 5 any person to whom medical services are being provided. The 6 Such sign or statement must shall state that: Under Florida 7 law, physicians are generally required to carry medical 8 malpractice insurance or otherwise demonstrate financial 9 responsibility to cover potential claims for medical 10 malpractice. However, certain part-time physicians who meet 11 state requirements are exempt from the financial 12 responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND 13 HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This 14 notice is provided pursuant to Florida law. 15 (g) Any person holding an active license under this 16 chapter who agrees to meet all of the following criteria: 17 1. Upon the entry of an adverse final judgment arising 18 from a medical malpractice arbitration award, from a claim of 19 medical malpractice either in contract or tort, or from 20 noncompliance with the terms of a settlement agreement arising 21 from a claim of medical malpractice either in contract or 22 tort, the licensee shall pay the judgment creditor the lesser 23 of the entire amount of the judgment with all accrued interest 24 or either $100,000, if the physician is licensed pursuant to 25 this chapter but does not maintain hospital staff privileges, 26 or $250,000, if the physician is licensed pursuant to this 27 chapter and maintains hospital staff privileges, within 60 28 days after the date such judgment became final and subject to 29 execution, unless otherwise mutually agreed to in writing by 30 the parties. Such adverse final judgment shall include any 31 cross-claim, counterclaim, or claim for indemnity or 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 contribution arising from the claim of medical malpractice. 2 Upon notification of the existence of an unsatisfied judgment 3 or payment pursuant to this subparagraph, the department shall 4 notify the licensee by certified mail that he shall be subject 5 to disciplinary action unless, within 30 days from the date of 6 mailing, he either: 7 a. Shows proof that the unsatisfied judgment has been 8 paid in the amount specified in this subparagraph; or 9 b. Furnishes the department with a copy of a timely 10 filed notice of appeal and either: 11 (I) A copy of a supersedeas bond properly posted in 12 the amount required by law; or 13 (II) An order from a court of competent jurisdiction 14 staying execution on the final judgment pending disposition of 15 the appeal. 16 2. Upon the next meeting of the probable cause panel 17 of the board following 30 days after the date of mailing the 18 notice of disciplinary action to the licensee, the panel shall 19 make a determination of whether probable cause exists to take 20 disciplinary action against the licensee pursuant to 21 subparagraph 1. 22 3. If the board determines that the factual 23 requirements of subparagraph 1. are met, it shall take 24 disciplinary action as it deems appropriate against the 25 licensee. Such disciplinary action shall include, at a 26 minimum, probation of the license with the restriction that 27 the licensee must make payments to the judgment creditor on a 28 schedule determined by the board to be reasonable and within 29 the financial capability of the physician. Notwithstanding any 30 other disciplinary penalty imposed, the disciplinary penalty 31 may include suspension of the license for a period not to 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 exceed 5 years. In the event that an agreement to satisfy a 2 judgment has been met, the board shall remove any restriction 3 on the license. 4 4. The licensee has completed a form supplying 5 necessary information as required by the department. 6 7 A licensee who meets the requirements of this paragraph shall 8 be required to either post notice in the form of a sign 9 prominently displayed in the reception area and clearly 10 noticeable by all patients or provide a written statement to 11 any person to whom medical services are being provided. Such 12 sign or statement shall state that: Under Florida law, 13 physicians are generally required to carry medical malpractice 14 insurance or otherwise demonstrate financial responsibility to 15 cover potential claims for medical malpractice. YOUR DOCTOR 16 HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This 17 is permitted under Florida law subject to certain conditions. 18 Florida law imposes penalties against noninsured physicians 19 who fail to satisfy adverse judgments arising from claims of 20 medical malpractice. This notice is provided pursuant to 21 Florida law. 22 (6) Any deceptive, untrue, or fraudulent 23 representation by the licensee with respect to any provision 24 of this section shall result in permanent disqualification 25 from any exemption to mandated financial responsibility as 26 provided in this section and shall constitute grounds for 27 disciplinary action as specified in s. 458.331. 28 (7) Any licensee who relies on any exemption from the 29 financial responsibility requirement must shall notify the 30 department, in writing, of any change of circumstance 31 regarding his qualifications for the such exemption and must 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 shall demonstrate that he is in compliance with the 2 requirements of this section. 3 (8) The board shall adopt rules to implement the 4 provisions of this section. 5 Section 2. Section 459.0085, Florida Statutes, 1996 6 Supplement, is amended to read: 7 459.0085 Financial responsibility.-- 8 (1) As a condition of licensing and maintaining an 9 active license, and prior to the issuance or renewal of an 10 active license or reactivation of an inactive license for the 11 practice of osteopathic medicine, an applicant or licensee 12 must shall by one of the following methods demonstrate to the 13 satisfaction of the board and the department financial 14 responsibility to pay claims and costs ancillary thereto 15 arising out of the rendering of, or the failure to render, 16 medical care or services: 17 (a) Establishing and maintaining an escrow account 18 consisting of cash or assets eligible for deposit in 19 accordance with s. 625.52 in the per-claim amounts specified 20 in paragraph (b). 21 (b) Obtaining and maintaining professional liability 22 coverage for the current year and for each of the prior years 23 that the applicant or licensee has been in the active practice 24 of medicine, up to a maximum of 4 prior years, in an amount 25 not less than $100,000 per claim, with a minimum annual 26 aggregate of not less than $300,000, from an authorized 27 insurer as defined under s. 624.09, from a surplus lines 28 insurer as defined under s. 626.914(2), from a risk retention 29 group as defined under s. 627.942, from the Joint Underwriting 30 Association established under s. 627.351(4), or through a plan 31 of self-insurance as provided in s. 627.357. 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 (c) Obtaining and maintaining an unexpired, 2 irrevocable letter of credit, established pursuant to chapter 3 675, for the current year and for each of the prior years that 4 the applicant or licensee has been in the active practice of 5 medicine, up to a maximum of 4 prior years, in an amount not 6 less than $100,000 per claim, with a minimum aggregate 7 availability of credit of not less than $300,000. The letter 8 of credit must shall be payable to the osteopathic physician 9 as beneficiary upon presentment of a final judgment indicating 10 liability and awarding damages to be paid by the osteopathic 11 physician or upon presentment of a settlement agreement signed 12 by all parties to such agreement when such final judgment or 13 settlement is a result of a claim arising out of the rendering 14 of, or the failure to render, medical care and services. The 15 Such letter of credit must shall be nonassignable and 16 nontransferable. The Such letter of credit must shall be 17 issued by any bank or savings association organized and 18 existing under the laws of this state or any bank or savings 19 association organized under the laws of the United States that 20 has its principal place of business in this state or has a 21 branch office that which is authorized under the laws of this 22 state or of the United States to receive deposits in this 23 state. 24 (2) Osteopaths who perform surgery in an ambulatory 25 surgical center licensed under chapter 395 and, as a 26 continuing condition of hospital staff privileges, osteopathic 27 physicians who have with staff privileges must shall also be 28 required to establish financial responsibility by one of the 29 following methods: 30 (a) Establishing and maintaining an escrow account 31 consisting of cash or assets eligible for deposit in 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 accordance with s. 625.52 in the per-claim amounts specified 2 in paragraph (b). 3 (b) Obtaining and maintaining professional liability 4 coverage for the current year and for each of the prior years 5 that the applicant or licensee has been in the active practice 6 of medicine, up to a maximum of 4 prior years, in an amount 7 not less than $250,000 per claim, with a minimum annual 8 aggregate of not less than $750,000 from an authorized insurer 9 as defined under s. 624.09, from a surplus lines insurer as 10 defined under s. 626.914(2), from a risk retention group as 11 defined under s. 627.942, from the Joint Underwriting 12 Association established under s. 627.351(4), through a plan of 13 self-insurance as provided in s. 627.357, or through a plan of 14 self-insurance that which meets the conditions specified for 15 satisfying financial responsibility in s. 766.110. 16 (c) Obtaining and maintaining an unexpired, 17 irrevocable letter of credit, established pursuant to chapter 18 675, for the current year and for each of the prior years that 19 the applicant or licensee has been in the active practice of 20 medicine, up to a maximum of 4 prior years, in an amount not 21 less than $250,000 per claim, with a minimum aggregate 22 availability of credit of not less than $750,000. The letter 23 of credit must shall be payable to the osteopathic physician 24 as beneficiary upon presentment of a final judgment indicating 25 liability and awarding damages to be paid by the osteopathic 26 physician or upon presentment of a settlement agreement signed 27 by all parties to such agreement when such final judgment or 28 settlement is a result of a claim arising out of the rendering 29 of, or the failure to render, medical care and services. The 30 Such letter of credit must shall be nonassignable and 31 nontransferable. The Such letter of credit must shall be 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 issued by any bank or savings association organized and 2 existing under the laws of this state or any bank or savings 3 association organized under the laws of the United States that 4 has its principal place of business in this state or has a 5 branch office that which is authorized under the laws of this 6 state or of the United States to receive deposits in this 7 state. 8 9 This subsection shall be inclusive of the coverage in 10 subsection (1). 11 (3)(a) The financial responsibility requirements of 12 subsections (1) and (2) shall apply to claims for incidents 13 that occur on or after January 1, 1987, or the initial date of 14 licensure in this state, whichever is later. 15 (b) Meeting the financial responsibility requirements 16 of this section or the criteria for any exemption from such 17 requirements must shall be established at the time of issuance 18 or renewal of a license on or after January 1, 1987. 19 (c) Any person may, at any time, submit to the 20 department a request for an advisory opinion regarding such 21 person's qualifications for exemption. 22 (4)(a) Each insurer, self-insurer, risk retention 23 group, or joint underwriting association must shall promptly 24 notify the department of cancellation or nonrenewal of 25 insurance required by this section. Unless the osteopathic 26 physician demonstrates that he is otherwise in compliance with 27 the requirements of this section, the department shall suspend 28 the license of the osteopathic physician pursuant to ss. 29 120.569 and 120.57 and notify all health care facilities 30 licensed under chapter 395, part IV of chapter 394, or part I 31 of chapter 641 of such action. Any suspension under this 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 subsection remains shall remain in effect until the 2 osteopathic physician demonstrates compliance with the 3 requirements of this section. If any judgments or settlements 4 are pending at the time of suspension, those judgments or 5 settlements must be paid in accordance with this section 6 unless otherwise mutually agreed to in writing by the parties. 7 This paragraph does not abrogate a judgment debtor's 8 obligation to satisfy the entire amount of any judgment except 9 that a license suspended under paragraph (5)(g) shall not be 10 reinstated until the osteopathic physician demonstrates 11 compliance with the requirements of that provision. 12 (b) If financial responsibility requirements are met 13 by maintaining an escrow account or letter of credit as 14 provided in this section, upon the entry of an adverse final 15 judgment arising from a medical malpractice arbitration award, 16 from a claim of medical malpractice either in contract or 17 tort, or from noncompliance with the terms of a settlement 18 agreement arising from a claim of medical malpractice either 19 in contract or tort, the licensee must shall pay the entire 20 amount of the judgment together with all accrued interest or 21 the amount maintained in the escrow account or provided in the 22 letter of credit as required by this section, whichever is 23 less, within 60 days after the date such judgment became final 24 and subject to execution, unless otherwise mutually agreed to 25 in writing by the parties. If timely payment is not made by 26 the osteopathic physician, the department shall suspend the 27 license of the osteopathic physician pursuant to procedures 28 set forth in subparagraphs (5)(g)2., 3., and 4. Nothing in 29 This paragraph does not shall abrogate a judgment debtor's 30 obligation to satisfy the entire amount of any judgment. 31 16 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 (5) The requirements of subsections (1), (2), and (3) 2 do shall not apply to: 3 (a) Any person licensed under this chapter who 4 practices medicine exclusively as an officer, employee, or 5 agent of the Federal Government or of the state or its 6 agencies or its subdivisions. For the purposes of this 7 subsection, an agent of the state, its agencies, and 8 subdivisions is a person who is eligible for coverage under 9 any self-insurance or insurance program authorized by the 10 provisions of s. 768.28(15)(14). 11 (b) Any person whose license has become inactive under 12 this chapter and who is not practicing medicine in this state. 13 Any person applying for reactivation of a license must show 14 either that such licensee maintained tail insurance coverage 15 that which provided liability coverage for incidents that 16 occurred on or after January 1, 1987, or the initial date of 17 licensure in this state, whichever is later, and incidents 18 that occurred before the date on which the license became 19 inactive; or such licensee must submit an affidavit stating 20 that such licensee has no unsatisfied medical malpractice 21 judgments or settlements at the time of application for 22 reactivation. 23 (c) Any person holding a limited license pursuant to 24 s. 459.0075 and practicing under the scope of such limited 25 license. 26 (d) Any person licensed or certified under this 27 chapter who practices only in conjunction with his teaching 28 duties at a college of osteopathic medicine. Such person may 29 engage in the practice of osteopathic medicine to the extent 30 that such practice is incidental to and a necessary part of 31 17 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 duties in connection with the teaching position in the college 2 of osteopathic medicine. 3 (e) Any person holding an active license under this 4 chapter who is not practicing osteopathic medicine in this 5 state. If such person initiates or resumes any practice of 6 osteopathic medicine in this state, he must notify the 7 department of such activity and fulfill the financial 8 responsibility requirements of this section before resuming 9 the practice of osteopathic medicine in this state. 10 (f) Any person holding an active license under this 11 chapter who meets all of the following criteria: 12 1. The licensee has held an active license to practice 13 in this state or another state or some combination thereof for 14 more than 15 years. 15 2. The licensee has either retired from the practice 16 of osteopathic medicine or maintains a part-time practice of 17 osteopathic medicine of no more than 1,000 patient contact 18 hours per year. 19 3. The licensee has had no more than two claims for 20 medical malpractice resulting in an indemnity exceeding 21 $10,000 within the previous 5-year period. 22 4. The licensee has not been convicted of, or pled 23 guilty or nolo contendere to, any criminal violation specified 24 in this chapter or the practice act of any other state. 25 5. The licensee has not been subject within the last 26 10 years of practice to license revocation or suspension for 27 any period of time, probation for a period of 3 years or 28 longer, or a fine of $500 or more for a violation of this 29 chapter or the medical practice act of another jurisdiction. 30 The regulatory agency's acceptance of an osteopathic 31 physician's relinquishment of a license, stipulation, consent 18 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 order, or other settlement, offered in response to or in 2 anticipation of the filing of administrative charges against 3 the osteopathic physician's license, constitutes shall be 4 construed as action against the physician's license for the 5 purposes of this paragraph. 6 6. The licensee has submitted a form supplying 7 necessary information as required by the department and an 8 affidavit affirming compliance with the provisions of this 9 paragraph. 10 7. The licensee must shall submit biennially to the 11 department a certification stating compliance with the 12 provisions of this paragraph. The licensee must shall, upon 13 request, demonstrate to the department information verifying 14 compliance with this paragraph. 15 16 A licensee who meets the requirements of this paragraph must 17 shall be required either to post notice in the form of a sign 18 prominently displayed in the reception area and clearly 19 noticeable by all patients or to provide a written statement 20 to any person to whom medical services are being provided. The 21 Such sign or statement must shall state that: Under Florida 22 law, osteopathic physicians are generally required to carry 23 medical malpractice insurance or otherwise demonstrate 24 financial responsibility to cover potential claims for medical 25 malpractice. However, certain part-time osteopathic physicians 26 who meet state requirements are exempt from the financial 27 responsibility law. YOUR OSTEOPATHIC PHYSICIAN MEETS THESE 28 REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE 29 INSURANCE. This notice is provided pursuant to Florida law. 30 (g) Any person holding an active license under this 31 chapter who agrees to meet all of the following criteria: 19 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 1. Upon the entry of an adverse final judgment arising 2 from a medical malpractice arbitration award, from a claim of 3 medical malpractice either in contract or tort, or from 4 noncompliance with the terms of a settlement agreement arising 5 from a claim of medical malpractice either in contract or 6 tort, the licensee shall pay the judgment creditor the lesser 7 of the entire amount of the judgment with all accrued interest 8 or either $100,000, if the osteopathic physician is licensed 9 pursuant to this chapter but does not maintain hospital staff 10 privileges, or $250,000, if the osteopathic physician is 11 licensed pursuant to this chapter and maintains hospital staff 12 privileges, within 60 days after the date such judgment became 13 final and subject to execution, unless otherwise mutually 14 agreed to in writing by the parties. Such adverse final 15 judgment shall include any cross-claim, counterclaim, or claim 16 for indemnity or contribution arising from the claim of 17 medical malpractice. Upon notification of the existence of an 18 unsatisfied judgment or payment pursuant to this subparagraph, 19 the department shall notify the licensee by certified mail 20 that he shall be subject to disciplinary action unless, within 21 30 days from the date of mailing, he either: 22 a. Shows proof that the unsatisfied judgment has been 23 paid in the amount specified in this subparagraph; or 24 b. Furnishes the department with a copy of a timely 25 filed notice of appeal and either: 26 (I) A copy of a supersedeas bond properly posted in 27 the amount required by law; or 28 (II) An order from a court of competent jurisdiction 29 staying execution on the final judgment, pending disposition 30 of the appeal. 31 20 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 2. Upon the next meeting of the probable cause panel 2 of the board following 30 days after the date of mailing the 3 notice of disciplinary action to the licensee, the panel shall 4 make a determination of whether probable cause exists to take 5 disciplinary action against the licensee pursuant to 6 subparagraph 1. 7 3. If the board determines that the factual 8 requirements of subparagraph 1. are met, it shall take 9 disciplinary action as it deems appropriate against the 10 licensee. Such disciplinary action shall include, at a 11 minimum, probation of the license with the restriction that 12 the licensee must make payments to the judgment creditor on a 13 schedule determined by the board to be reasonable and within 14 the financial capability of the osteopathic physician. 15 Notwithstanding any other disciplinary penalty imposed, the 16 disciplinary penalty may include suspension of the license for 17 a period not to exceed 5 years. In the event that an 18 agreement to satisfy a judgment has been met, the board shall 19 remove any restriction on the license. 20 4. The licensee has completed a form supplying 21 necessary information as required by the department. 22 23 A licensee who meets the requirements of this paragraph shall 24 be required to either post notice in the form of a sign 25 prominently displayed in the reception area and clearly 26 noticeable by all patients or provide a written statement to 27 any person to whom medical services are being provided. Such 28 sign or statement shall state that: Under Florida law, 29 osteopathic physicians are generally required to carry medical 30 malpractice insurance or otherwise demonstrate financial 31 responsibility to cover potential claims for medical 21 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO 2 CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under 3 Florida law subject to certain conditions. Florida law 4 imposes strict penalties against noninsured osteopathic 5 physicians who fail to satisfy adverse judgments arising from 6 claims of medical malpractice. This notice is provided 7 pursuant to Florida law. 8 (6) Any deceptive, untrue, or fraudulent 9 representation by the licensee with respect to any provision 10 of this section shall result in permanent disqualification 11 from any exemption to mandated financial responsibility as 12 provided in this section and shall constitute grounds for 13 disciplinary action as specified in s. 459.015. 14 (7) Any licensee who relies on any exemption from the 15 financial responsibility requirement must shall notify the 16 department in writing of any change of circumstance regarding 17 his qualifications for the such exemption and must shall 18 demonstrate that he is in compliance with the requirements of 19 this section. 20 (8) If a physician is either a resident physician, 21 assistant resident physician, or intern in an approved 22 postgraduate training program, as defined by the board's 23 rules, and is supervised by a physician who is participating 24 in the Florida Birth-Related Neurological Injury Compensation 25 Plan, such resident physician, assistant resident physician, 26 or intern is deemed to be a participating physician without 27 the payment of the assessment set forth in s. 766.314(4). 28 (9) The board shall adopt rules to implement the 29 provisions of this section. 30 Section 3. Subsection (3) is added to section 455.245, 31 Florida Statutes, to read: 22 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1643 509-142B-97 1 455.245 Certain health care practitioners; immediate 2 suspension of license.-- 3 (3) The Department of Health shall issue an emergency 4 order suspending the license of any physician licensed under 5 chapter 458 or any osteopathic physician licensed under 6 chapter 459 who the department has probable cause to believe 7 is in violation of the provisions of s. 458.320 or s. 8 459.0085. 9 Section 4. This act shall take effect January 1, 1998, 10 and shall apply to claims accruing on or after that date. 11 12 ***************************************** 13 HOUSE SUMMARY 14 Requires physicians and osteopathic physicians to 15 maintain financial responsibility as a condition of licensure. Requires physicians and osteopathic physicians 16 to pay outstanding judgments or settlements pending at the time their license is suspended by the Department of 17 Health. Repeals an alternative method available to physicians and osteopathic physicians to provide 18 financial responsibility. Requires the department to issue an emergency order suspending the license of a 19 physician or osteopathic physician when the agency has probable cause to believe such person has violated s. 20 458.320 or s. 459.0085, F.S. 21 22 23 24 25 26 27 28 29 30 31 23