Senate Bill 1258c1
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Florida Senate - 1999 CS for SB 1258
By the Committee on Judiciary and Senator Sebesta
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1 A bill to be entitled
2 An act relating to expert witnesses in medical
3 negligence actions; amending s. 766.102, F.S.;
4 providing requirements for expert witness
5 testimony in actions based on medical
6 negligence; amending s. 766.106, F.S.;
7 requiring claimants to provide a list of
8 treating physicians; providing for presuit
9 unsworn statements of physicians; providing for
10 unsworn statements after service of a complaint
11 upon a defendant physician; amending s.
12 455.667, F.S.; allowing unsworn statements for
13 good cause shown; amending s. 766.207, F.S.;
14 revising provisions relating to voluntary
15 binding arbitration of medical malpractice
16 claims; providing for the effect of an offer to
17 submit to voluntary binding arbitration with
18 respect to allegations contained in the
19 claimant's notice of intent letter; providing
20 for the application of this section; providing
21 an effective date.
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23 Be It Enacted by the Legislature of the State of Florida:
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25 Section 1. Section 766.102, Florida Statutes, 1998
26 Supplement, is amended to read:
27 766.102 Medical negligence; standards of recovery.--
28 (1) In any action for recovery of damages based on the
29 death or personal injury of any person in which it is alleged
30 that such death or injury resulted from the negligence of a
31 health care provider as defined in s. 768.50(2)(b), the
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1 claimant shall have the burden of proving by the greater
2 weight of evidence that the alleged actions of the health care
3 provider represented a breach of the prevailing professional
4 standard of care for that health care provider. The
5 prevailing professional standard of care for a given health
6 care provider shall be that level of care, skill, and
7 treatment which, in light of all relevant surrounding
8 circumstances, is recognized as acceptable and appropriate by
9 reasonably prudent similar health care providers.
10 (2) A person may not give expert testimony concerning
11 the prevailing professional standard of care unless that
12 person is a licensed health care provider and meets the
13 following criteria:
14 (a) If the party against whom or on whose behalf the
15 testimony is offered is a specialist, the expert witness must:
16 1. Specialize in the same specialty as the party
17 against whom or on whose behalf the testimony is offered; or
18 2. Specialize in a similar specialty that includes the
19 evaluation, diagnosis, or treatment of the medical condition
20 that is the subject of the complaint and have prior experience
21 treating similar patients.
22 (b) During the 3 years immediately preceding the date
23 of the occurrence that is the basis for the action, the expert
24 witness must have devoted professional time to:
25 1. The active clinical practice of, or consulting with
26 respect to, the same or similar health profession as the
27 health care provider against whom or on whose behalf the
28 testimony is offered and, if that health care provider is a
29 specialist, the active clinical practice of, or consulting
30 with respect to, the same specialty or a similar specialty
31 that includes the evaluation, diagnosis, or treatment of the
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1 medical condition that is the subject of the action and have
2 prior experience treating similar patients;
3 2. The instruction of students in an accredited health
4 professional school or accredited residency program in the
5 same or similar health profession in which the health care
6 provider against whom or on whose behalf the testimony is
7 offered, and if that health care provider is a specialist, an
8 accredited health professional school or accredited residency
9 or clinical research program in the same or similar specialty;
10 or
11 3. A clinical research program that is affiliated with
12 an accredited medical school or teaching hospital and that is
13 in the same or similar health profession as the health care
14 provider against whom or on whose behalf the testimony is
15 offered and, if that health care provider is a specialist, a
16 clinical research program that is affiliated with an
17 accredited health professional school or accredited residency
18 or clinical research program in the same or similar specialty.
19 (3) Notwithstanding subsection (2), if the health care
20 provider against whom or on whose behalf the testimony is
21 offered is a general practitioner, the expert witness, during
22 the 3 years immediately preceding the date of the occurrence
23 that is the basis for the action, must have devoted his or her
24 professional time to:
25 (a) Active clinical practice or consultation as a
26 general practitioner;
27 (b) Instruction of students in an accredited health
28 professional school or accredited residency program in the
29 general practice of medicine; or
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1 (c) A clinical research program that is affiliated
2 with an accredited medical school or teaching hospital and
3 that is in the general practice of medicine.
4 (4) Notwithstanding subsection (2), a physician
5 licensed under chapter 458 or chapter 459 who qualifies as an
6 expert under the section and who by reason of active clinical
7 practice or instruction of students has knowledge of the
8 applicable standard of care for nurses, nurse practitioners,
9 certified registered nurse anesthetists, certified registered
10 nurse midwives, physician assistants, or other medical support
11 staff may give expert testimony in a medical malpractice
12 action with respect to the standard of care of such medical
13 support staff.
14 (5) In an action alleging medical malpractice, an
15 expert witness may not testify on a contingency fee basis.
16 (6) This section does not limit the power of the trial
17 court to disqualify or qualify an expert witness on grounds
18 other than the qualifications in this section.
19 (7) Notwithstanding subsection (2), in a medical
20 malpractice action against a hospital or other health care or
21 medical facility, a person may give expert testimony on the
22 appropriate standard of care as to administrative and other
23 nonclinical issues if the person has substantial knowledge, by
24 virtue of his or her training and experience, concerning the
25 standard of care among hospitals, or health care or medical
26 facilities of the same type as the hospital, health facility,
27 or medical facility whose actions or inactions are the subject
28 of this testimony and which are located in the same or similar
29 communities at the time of the alleged act giving rise to the
30 cause of action.
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1 (2)(a) If the health care provider whose negligence is
2 claimed to have created the cause of action is not certified
3 by the appropriate American board as being a specialist, is
4 not trained and experienced in a medical specialty, or does
5 not hold himself or herself out as a specialist, a "similar
6 health care provider" is one who:
7 1. Is licensed by the appropriate regulatory agency of
8 this state;
9 2. Is trained and experienced in the same discipline
10 or school of practice; and
11 3. Practices in the same or similar medical community.
12 (b) If the health care provider whose negligence is
13 claimed to have created the cause of action is certified by
14 the appropriate American board as a specialist, is trained and
15 experienced in a medical specialty, or holds himself or
16 herself out as a specialist, a "similar health care provider"
17 is one who:
18 1. Is trained and experienced in the same specialty;
19 and
20 2. Is certified by the appropriate American board in
21 the same specialty.
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23 However, if any health care provider described in this
24 paragraph is providing treatment or diagnosis for a condition
25 which is not within his or her specialty, a specialist trained
26 in the treatment or diagnosis for that condition shall be
27 considered a "similar health care provider."
28 (c) The purpose of this subsection is to establish a
29 relative standard of care for various categories and
30 classifications of health care providers. Any health care
31 provider may testify as an expert in any action if he or she:
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1 1. Is a similar health care provider pursuant to
2 paragraph (a) or paragraph (b); or
3 2. Is not a similar health care provider pursuant to
4 paragraph (a) or paragraph (b) but, to the satisfaction of the
5 court, possesses sufficient training, experience, and
6 knowledge as a result of practice or teaching in the specialty
7 of the defendant or practice or teaching in a related field of
8 medicine, so as to be able to provide such expert testimony as
9 to the prevailing professional standard of care in a given
10 field of medicine. Such training, experience, or knowledge
11 must be as a result of the active involvement in the practice
12 or teaching of medicine within the 5-year period before the
13 incident giving rise to the claim.
14 (8)(3)(a) If the injury is claimed to have resulted
15 from the negligent affirmative medical intervention of the
16 health care provider, the claimant must, in order to prove a
17 breach of the prevailing professional standard of care, show
18 that the injury was not within the necessary or reasonably
19 foreseeable results of the surgical, medicinal, or diagnostic
20 procedure constituting the medical intervention, if the
21 intervention from which the injury is alleged to have resulted
22 was carried out in accordance with the prevailing professional
23 standard of care by a reasonably prudent similar health care
24 provider.
25 (b) The provisions of this subsection shall apply only
26 when the medical intervention was undertaken with the informed
27 consent of the patient in compliance with the provisions of s.
28 766.103.
29 (9)(4) The existence of a medical injury shall not
30 create any inference or presumption of negligence against a
31 health care provider, and the claimant must maintain the
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1 burden of proving that an injury was proximately caused by a
2 breach of the prevailing professional standard of care by the
3 health care provider. However, the discovery of the presence
4 of a foreign body, such as a sponge, clamp, forceps, surgical
5 needle, or other paraphernalia commonly used in surgical,
6 examination, or diagnostic procedures, shall be prima facie
7 evidence of negligence on the part of the health care
8 provider.
9 (10)(5) The Legislature is cognizant of the changing
10 trends and techniques for the delivery of health care in this
11 state and the discretion that is inherent in the diagnosis,
12 care, and treatment of patients by different health care
13 providers. The failure of a health care provider to order,
14 perform, or administer supplemental diagnostic tests shall not
15 be actionable if the health care provider acted in good faith
16 and with due regard for the prevailing professional standard
17 of care.
18 (11)(a)(6)(a) In any action for damages involving a
19 claim of negligence against a physician licensed under chapter
20 458, osteopathic physician licensed under chapter 459,
21 podiatric physician licensed under chapter 461, or
22 chiropractic physician licensed under chapter 460 providing
23 emergency medical services in a hospital emergency department,
24 the court shall admit expert medical testimony only from
25 physicians, osteopathic physicians, podiatric physicians, and
26 chiropractic physicians who have had substantial professional
27 experience within the preceding 5 years while assigned to
28 provide emergency medical services in a hospital emergency
29 department.
30 (b) For the purposes of this subsection:
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1 1. The term "emergency medical services" means those
2 medical services required for the immediate diagnosis and
3 treatment of medical conditions which, if not immediately
4 diagnosed and treated, could lead to serious physical or
5 mental disability or death.
6 2. "Substantial professional experience" shall be
7 determined by the custom and practice of the manner in which
8 emergency medical coverage is provided in hospital emergency
9 departments in the same or similar localities where the
10 alleged negligence occurred.
11 (12) However, if any health care providers described
12 in subsection (2), subsection (3), or subsection (4) are
13 providing treatment or diagnosis for a condition that is not
14 within his or her specialty, a specialist trained in the
15 treatment or diagnosis for that condition shall be considered
16 a "similar health care provider."
17 Section 2. Effective October 1, 1999, and applicable
18 to notices of intent to litigate sent on or after that date,
19 subsection (2) and paragraph (a) of subsection (7) of section
20 766.106, Florida Statutes, 1998 Supplement, are amended to
21 read:
22 766.106 Notice before filing action for medical
23 malpractice; presuit screening period; offers for admission of
24 liability and for arbitration; informal discovery; review.--
25 (2) After completion of presuit investigation pursuant
26 to s. 766.203 and prior to filing a claim for medical
27 malpractice, a claimant shall notify each prospective
28 defendant and, if any prospective defendant is a health care
29 provider licensed under chapter 458, chapter 459, chapter 460,
30 chapter 461, or chapter 466, the Department of Health by
31 certified mail, return receipt requested, of intent to
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1 initiate litigation for medical malpractice. Notice to each
2 prospective defendant must include a list of all known health
3 care providers seen by the claimant subsequent to the alleged
4 act of malpractice for the injuries complained of and those
5 known health care providers seen by the claimant for related
6 conditions during the 5-year period prior to the alleged act
7 of malpractice. Notice to the Department of Health must
8 include the full name and address of the claimant; the full
9 names and any known addresses of any health care providers
10 licensed under chapter 458, chapter 459, chapter 460, chapter
11 461, or chapter 466 who are prospective defendants identified
12 at the time; the date and a summary of the occurrence giving
13 rise to the claim; and a description of the injury to the
14 claimant. The requirement for notice to the Department of
15 Health does not impair the claimant's legal rights or ability
16 to seek relief for his or her claim, and the notice provided
17 to the department is not discoverable or admissible in any
18 civil or administrative action. The Department of Health shall
19 review each incident and determine whether it involved conduct
20 by a licensee which is potentially subject to disciplinary
21 action, in which case the provisions of s. 455.621 apply.
22 (7) Informal discovery may be used by a party to
23 obtain unsworn statements, the production of documents or
24 things, and physical and mental examinations, as follows:
25 (a) Unsworn statements.--Any party may require other
26 parties and the claimant's treating physicians listed in the
27 claimant's notice to initiate litigation for medical
28 malpractice to appear for the taking of an unsworn statement.
29 Such statements may be used only for the purpose of presuit
30 screening and are not discoverable or admissible in any civil
31 action for any purpose by any party. A party desiring to take
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1 the unsworn statement of any party must give reasonable notice
2 in writing to all parties. The notice must state the time and
3 place for taking the statement and the name and address of the
4 party to be examined. Unless otherwise impractical, the
5 examination of any party must be done at the same time by all
6 other parties. Any party may be represented by counsel at the
7 taking of an unsworn statement. An unsworn statement may be
8 recorded electronically, stenographically, or on videotape.
9 The taking of unsworn statements is subject to the provisions
10 of the Florida Rules of Civil Procedure and may be terminated
11 for abuses. Further, as to the taking of unsworn statements of
12 the claimant's treating physicians, the scope of such inquiry
13 shall be limited to opinions formulated by the treating
14 physicians with respect to the issues of liability and damages
15 set forth in the claimant's notice of intent letter. If a
16 prospective defendant did not take an unsworn statement of a
17 claimant's treating medical physicians as set forth in the
18 claimant's notice to initiate a claim for medical malpractice,
19 an unsworn statement may be taken after suit has been filed,
20 but no later than 90 days from the date of service of the
21 complaint on the defendant. However, in no event may a
22 prospective defendant take more than one unsworn statement of
23 a treating physician. Unsworn statements taken after suit has
24 been filed are inadmissible in the civil action for any
25 purpose by any party. This section does not prohibit the
26 taking of an unsworn statement of a treating physician
27 subsequent to the filing of the civil action upon good cause
28 being shown that the name of any treating physician was not
29 provided in the claimant's notice to initiate a claim for
30 medical malpractice.
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1 Section 3. Effective October 1, 1999, and applicable
2 to notices of intent to litigate sent on or after that date,
3 subsection (5) of section 455.667, Florida Statutes, 1998
4 Supplement, is amended to read:
5 455.667 Ownership and control of patient records;
6 report or copies of records to be furnished.--
7 (5) Except as otherwise provided in this section and
8 in s. 440.13(4)(c), such records may not be furnished to, and
9 the medical condition of a patient may not be discussed with,
10 any person other than the patient or the patient's legal
11 representative or other health care practitioners and
12 providers involved in the care or treatment of the patient,
13 except upon written authorization of the patient. However,
14 such records may be furnished without written authorization
15 under the following circumstances:
16 (a) To any person, firm, or corporation that has
17 procured or furnished such examination or treatment with the
18 patient's consent.
19 (b) When compulsory physical examination is made
20 pursuant to Rule 1.360, Florida Rules of Civil Procedure, in
21 which case copies of the medical records shall be furnished to
22 both the defendant and the plaintiff.
23 (c) In any civil or criminal action, unless otherwise
24 prohibited by law, upon the issuance of a subpoena from a
25 court of competent jurisdiction and proper notice to the
26 patient or the patient's legal representative by the party
27 seeking such records.
28 (d) For statistical and scientific research, provided
29 the information is abstracted in such a way as to protect the
30 identity of the patient or provided written permission is
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1 received from the patient or the patient's legal
2 representative.
3 (e) For purposes of taking an unsworn statement
4 pursuant to s. 766.106(7)(a).
5 Section 4. Effective upon this act's becoming a law,
6 subsections (2) and (3) of section 766.207, Florida Statutes,
7 are amended to read:
8 766.207 Voluntary binding arbitration of medical
9 negligence claims.--
10 (2) Upon the completion of presuit investigation with
11 preliminary reasonable grounds for a medical negligence claim
12 intact, the parties may elect to have damages determined by an
13 arbitration panel. Defendants offering to submit to
14 arbitration pursuant to this section and in conjunction with
15 s. 766.106 shall be deemed to have admitted both liability and
16 causation with respect to the allegations contained in the
17 claimant's notice of intent letter. Such election may be
18 initiated by either party by serving a request for voluntary
19 binding arbitration of damages within 90 days after receipt
20 service of the claimant's notice of intent to initiate
21 litigation upon the defendant. The evidentiary standards for
22 voluntary binding arbitration of medical negligence claims
23 shall be as provided in ss. 120.569(2)(e) and 120.57(1)(c).
24 (3) Upon receipt of a party's request for such
25 arbitration, the opposing party may accept the offer of
26 voluntary binding arbitration within 30 days. However, in no
27 event shall the defendant be required to respond to the
28 request for arbitration sooner than 90 days after service of
29 the notice of intent to initiate litigation under s. 766.106.
30 Such acceptance within the time period provided by this
31 subsection shall be a binding commitment to comply with the
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1 decision of the arbitration panel. The liability of any
2 insurer shall be subject to any applicable insurance policy
3 limits. A claimant's acceptance of an offer to arbitrate shall
4 not bar the claimant from pursuing an action against
5 defendants who do not offer or agree to arbitration under this
6 section.
7 Section 5. The amendments made by this act to section
8 766.207(2) and (3), Florida Statutes, are remedial in nature
9 and shall apply to all civil actions pending on October 1,
10 1999, in which the trial or retrial of the action has not
11 commenced.
12 Section 6. This act shall take effect October 1, 1999,
13 and shall apply to causes of action accruing on or after that
14 date.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 SB 1258
3
4 Deletes from subsection (1) of s. 766.102, F.S., the
definitional reference of health care provider contained in s.
5 408.701(13), F.S., and inserts the existing reference to s.
768.50(2)(b), F.S.
6
Changes the requirement for a similar specialist to testify as
7 an expert so that the similar specialist must specialize in a
similar specialty that includes the evaluation, diagnosis, or
8 treatment of the medical condition that is the subject of the
complaint.
9
Changes the time period within which the expert who is a
10 specialist or similar specialist must have devoted
professional time to the active clinical practice, instruction
11 of students or clinical research to 3 years immediately
preceding the date of the occurrence that is the basis for the
12 action and deletes the requirement that the amount of such
professional time spent in such activity be at least 40%.
13
Adds consulting to the activity the expert specialist, similar
14 specialist or general practitioner could have engaged in
during the 3 years immediately preceding the date of the
15 occurrence that is the basis for the action.
16 Changes the time period within which the expert who is a
general practitioner must have devoted professional time to
17 the active clinical practice, instruction of students or
clinical research to 3 years immediately preceding the date of
18 the occurrence that is the basis for the action and deletes
the requirement that the amount of such professional time
19 spent in such activity be a majority of the time.
20 Clarifies that this section does not limit the power of the
trial court to qualify or disqualify an expert on grounds
21 other than the qualifications of this section.
22 Adds a subsection which states that a health care provider who
provides treatment or diagnosis for a condition which is not
23 within his or her speciality will be subject to having a
specialist who is trained in the treatment or diagnosis for
24 that condition considered as a similar health care provider
for expert witness purposes.
25
Revises the effective date so that it becomes effective on
26 October 1, 1999, and applies to causes of action accruing on
or after that date.
27
Amends subsection (2) of s. 766.106, F.S., to require a
28 claimant in a medical malpractice claim to include in the
notice of intent to initiate litigation a list of all known
29 health care providers seen by the claimant subsequent to
alleged act of malpractice and those known health care
30 providers seen by the claimant for related conditions during
the five year period prior to the alleged act of malpractice.
31 The effective date is October 1, 1999, and applies to notices
of intent to litigate sent on or after that date.
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1 Amends subsection (7)(a) of s. 766.106, F.S., to include the
claimant's treating physicians listed in the claimant's notice
2 of intent to initiate litigation as persons who may be
required to have their unsworn statements taken for the
3 purposes of presuit screening. The scope of the inquiry is
limited to opinions formulated by the treating physicians
4 about the issues of liability and damages stated in the
claimant's notice of intent. Provides conditions and
5 limitations for such unsworn statements. The effective date is
October 1, 1999, and applies to notices of intent to litigate
6 sent on or after that date.
7 Amends subsection (5)(e) of s. 455.667, F.S., to allow
furnishing of a patient's medical records without written
8 authorization from the patient or the patient's legal
representative for purposes of taking an unsworn statement
9 pursuant to the presuit screening provisions of s.
766.106(7)(a), F.S. The effective date is October 1, 1999, and
10 applies to notices of intent to litigate sent on or after that
date.
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Amends subsections (2) and (3) of s. 766.207, F.S. Subsection
12 (2) is amended to clarify that defendants offering to submit
to arbitration pursuant to this section and in conjunction
13 with s. 766.106, F.S., shall be deemed to have admitted both
liability and causation with respect to the allegations
14 contained in the claimant's notice of intent letter. Changes
the triggering event for either party to request arbitration
15 to the receipt of the claimant's notice of intent to initiate
litigation. Subsection (3) is amended to specify that a
16 claimant's acceptance of an offer to arbitrate shall not bar
the claimant from pursuing a cause of action against
17 non-arbitrating defendants. Provides an effective date of
October 1, 1999, and applies to all civil actions pending on
18 that date in which the trial or retrial of the action has not
commenced.
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