House Bill 2185e1
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HB 2185, First Engrossed
1 A bill to be entitled
2 An act relating to medical negligence actions;
3 amending s. 766.102, F.S.; providing
4 requirements for expert witness testimony in
5 actions based on medical negligence; providing
6 a definition; amending s. 766.106, F.S.;
7 providing requirements with respect to notice
8 before filing action for medical malpractice;
9 regulating unsworn statements of treating
10 physicians; amending s. 766.207, F.S.; revising
11 language with respect to voluntary binding
12 arbitration of medical malpractice claims;
13 providing for the effect of an offer to submit
14 to voluntary binding arbitration with respect
15 to allegations contained in the claimant's
16 notice of intent letter; amending section
17 455.651; providing for treble damages and
18 attorney fees for improper disclosure of
19 confidential information; amending s. 455.667,
20 F.S.; permitting unsworn statements of treating
21 physicians without written authorization;
22 providing effective dates.
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24 Be It Enacted by the Legislature of the State of Florida:
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26 Section 1. Section 766.102, Florida Statutes, 1998
27 Supplement, is amended to read:
28 766.102 Medical negligence; standards of recovery.--
29 (1) In any action for recovery of damages based on the
30 death or personal injury of any person in which it is alleged
31 that such death or injury resulted from the negligence of a
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HB 2185, First Engrossed
1 health care provider as defined in s. 768.50(2)(b), the
2 claimant shall have the burden of proving by the greater
3 weight of evidence that the alleged actions of the health care
4 provider represented a breach of the prevailing professional
5 standard of care for that health care provider. The
6 prevailing professional standard of care for a given health
7 care provider shall be that level of care, skill, and
8 treatment which, in light of all relevant surrounding
9 circumstances, is recognized as acceptable and appropriate by
10 reasonably prudent similar health care providers.
11 (2) A person may not give expert testimony concerning
12 the prevailing professional standard of care unless that
13 person is a licensed health care provider and meets the
14 following criteria:
15 (a) If the party against whom or on whose behalf the
16 testimony is offered is a specialist, the expert witness must:
17 1. Specialize in the same specialty as the party
18 against whom or on whose behalf the testimony is offered; or
19 2. Specialize in a similar specialty that includes the
20 evaluation, diagnosis, or treatment of the medical condition
21 that is the subject of the complaint and have prior experience
22 treating similar patients.
23 (b) During the 3 years immediately preceding the date
24 of the occurrence that is the basis for the action, the expert
25 witness must have devoted professional time to:
26 1. The active clinical practice or consulting of the
27 same or similar health profession as the health care provider
28 against whom or on whose behalf the testimony is offered and,
29 if that health care provider is a specialist, the active
30 clinical practice or consulting of the same specialty or a
31 similar specialty that includes the evaluation, diagnosis, or
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HB 2185, First Engrossed
1 treatment of the medical condition or procedure that is the
2 subject of the action and have prior experience treating
3 similar patients;
4 2. The instruction of students in an accredited health
5 professional school or accredited residency program in the
6 same or similar health profession as the health care provider
7 against whom or on whose behalf the testimony is offered, and
8 if that health care provider is a specialist, an accredited
9 health professional school or accredited residency or clinical
10 research program in the same or similar specialty; 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 consulting 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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HB 2185, First Engrossed
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 negligence action
12 with respect to the standard of care of such medical support
13 staff.
14 (5) In an action alleging medical negligence, 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 qualification in this section.
19 (7) Notwithstanding subsection (2), in a medical
20 negligence 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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HB 2185, First Engrossed
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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HB 2185, First Engrossed
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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HB 2185, First Engrossed
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)(6)(a) In any action for damages involving a claim
19 of negligence against a physician licensed under chapter 458,
20 osteopathic physician licensed under chapter 459, podiatric
21 physician licensed under chapter 461, or chiropractic
22 physician licensed under chapter 460 providing emergency
23 medical services in a hospital emergency department, the court
24 shall admit expert medical testimony only from physicians,
25 osteopathic physicians, podiatric physicians, and chiropractic
26 physicians who have had substantial professional experience
27 within the preceding 5 years while assigned to provide
28 emergency medical services in a hospital emergency department.
29 (b) For the purposes of this subsection:
30 1. The term "emergency medical services" means those
31 medical services required for the immediate diagnosis and
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HB 2185, First Engrossed
1 treatment of medical conditions which, if not immediately
2 diagnosed and treated, could lead to serious physical or
3 mental disability or death.
4 2. "Substantial professional experience" shall be
5 determined by the custom and practice of the manner in which
6 emergency medical coverage is provided in hospital emergency
7 departments in the same or similar localities where the
8 alleged negligence occurred.
9 (12) However, if any health care provider described in
10 subsection (2), subsection (3), or subsection (4) is providing
11 treatment or diagnosis for a condition which is not within his
12 or her specialty, a specialist trained in the treatment or
13 diagnosis for that condition shall be considered a "similar
14 health care provider."
15 Section 2. (1) Subsection (2) and paragraph (a) of
16 subsection (7) of section 766.106, Florida Statutes, 1998
17 Supplement, are amended to read:
18 766.106 Notice before filing action for medical
19 malpractice; presuit screening period; offers for admission of
20 liability and for arbitration; informal discovery; review.--
21 (2) After completion of presuit investigation pursuant
22 to s. 766.203 and prior to filing a claim for medical
23 malpractice, a claimant shall notify each prospective
24 defendant and, if any prospective defendant is a health care
25 provider licensed under chapter 458, chapter 459, chapter 460,
26 chapter 461, or chapter 466, the Department of Health by
27 certified mail, return receipt requested, of intent to
28 initiate litigation for medical malpractice. Notice to each
29 prospective defendant must include a list of all known health
30 care providers seen by the claimant subsequent to the alleged
31 act of malpractice for the injuries complained of and those
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HB 2185, First Engrossed
1 known health care providers seen by the claimant for related
2 conditions during the 5-year period prior to the alleged act
3 of malpractice. Notice to the Department of Health must
4 include the full name and address of the claimant; the full
5 names and any known addresses of any health care providers
6 licensed under chapter 458, chapter 459, chapter 460, chapter
7 461, or chapter 466 who are prospective defendants identified
8 at the time; the date and a summary of the occurrence giving
9 rise to the claim; and a description of the injury to the
10 claimant. The requirement for notice to the Department of
11 Health does not impair the claimant's legal rights or ability
12 to seek relief for his or her claim, and the notice provided
13 to the department is not discoverable or admissible in any
14 civil or administrative action. The Department of Health shall
15 review each incident and determine whether it involved conduct
16 by a licensee which is potentially subject to disciplinary
17 action, in which case the provisions of s. 455.621 apply.
18 (7) Informal discovery may be used by a party to
19 obtain unsworn statements, the production of documents or
20 things, and physical and mental examinations, as follows:
21 (a) Unsworn statements.--Any party may require other
22 parties and the claimant's treating physicians listed in the
23 claimant's notice to initiate litigation for medical
24 malpractice to appear for the taking of an unsworn statement.
25 Such statements may be used only for the purpose of presuit
26 screening and are not discoverable or admissible in any civil
27 action for any purpose by any party. A party desiring to take
28 the unsworn statement of any party must give reasonable notice
29 in writing to all parties. The notice must state the time and
30 place for taking the statement and the name and address of the
31 party to be examined. Unless otherwise impractical, the
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HB 2185, First Engrossed
1 examination of any party must be done at the same time by all
2 other parties. Any party may be represented by counsel at the
3 taking of an unsworn statement. An unsworn statement may be
4 recorded electronically, stenographically, or on videotape.
5 The taking of unsworn statements is subject to the provisions
6 of the Florida Rules of Civil Procedure and may be terminated
7 for abuses. Further, as to the taking of unsworn statements of
8 the claimant's treating physicians, the scope of such inquiry
9 shall be limited to opinions formulated by the treating
10 physicians with respect to the issues of liability and damages
11 set forth in the claimant's notice of intent letter. In the
12 event that a prospective defendant did not take an unsworn
13 statement of a claimant's treating medical physicians as set
14 forth in the claimant's notice to initiate a claim for medical
15 malpractice, then an unsworn statement may be taken after suit
16 has been filed, but no later than 90 days from the date of
17 service of the complaint on the defendant. However, in no
18 event shall a prospective defendant take more than one unsworn
19 statement of a treating physician. Unsworn statements taken
20 after suit has been filed are not admissible in the civil
21 action for any purpose by any party. Nothing in this section
22 shall prohibit the taking of an unsworn statement of a
23 treating physician subsequent to the filing of the civil
24 action upon good cause shown that the name of any treating
25 physician was not provided in the claimant's notice to
26 initiate a claim for medical malpractice.
27 (2) This section shall apply to all notices of intent
28 to litigate sent on or after October 1, 1999.
29 Section 3. (1) Effective upon this act becoming a
30 law, subsections (2) and (3) of section 766.207, Florida
31 Statutes, are amended to read:
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HB 2185, First Engrossed
1 766.207 Voluntary binding arbitration of medical
2 negligence claims.--
3 (2) Upon the completion of presuit investigation with
4 preliminary reasonable grounds for a medical negligence claim
5 intact, the parties may elect to have damages determined by an
6 arbitration panel. Defendants offering to submit to
7 arbitration pursuant to this section and in conjunction with
8 s. 766.106 shall be deemed to have admitted both liability and
9 causation with respect to the allegations contained in the
10 claimant's notice of intent letter. Such election may be
11 initiated by either party by serving a request for voluntary
12 binding arbitration of damages within 90 days after receipt
13 service of the claimant's notice of intent to initiate
14 litigation upon the defendant. The evidentiary standards for
15 voluntary binding arbitration of medical negligence claims
16 shall be as provided in ss. 120.569(2)(e) and 120.57(1)(c).
17 (3) Upon receipt of a party's request for such
18 arbitration, the opposing party may accept the offer of
19 voluntary binding arbitration within 30 days. However, in no
20 event shall the defendant be required to respond to the
21 request for arbitration sooner than 90 days after service of
22 the notice of intent to initiate litigation under s. 766.106.
23 Such acceptance within the time period provided by this
24 subsection shall be a binding commitment to comply with the
25 decision of the arbitration panel. The liability of any
26 insurer shall be subject to any applicable insurance policy
27 limits. A claimant's acceptance of an offer to arbitrate shall
28 not bar the claimant from pursuing a cause of action against
29 defendants who do not offer or agree to arbitration under this
30 section.
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HB 2185, First Engrossed
1 (2) The provisions of this section are remedial in
2 nature and shall apply to all civil actions pending on or
3 after the effective date of this section.
4 Section 4. Subsection (3) is added to section 455.651,
5 Florida Statutes, 1998 Supplement, to read:
6 455.651 Disclosure of confidential information.--
7 (1) No officer, employee, or person under contract
8 with the department, or any board therein, or any subject of
9 an investigation shall convey knowledge or information to any
10 person who is not lawfully entitled to such knowledge or
11 information about any public meeting or public record, which
12 at the time such knowledge or information is conveyed is
13 exempt from the provisions of s. 119.01, s. 119.07(1), or s.
14 286.011.
15 (2) Any person who willfully violates any provision of
16 this section is guilty of a misdemeanor of the first degree,
17 punishable as provided in s. 775.082 or s. 775.083, and may be
18 subject to discipline pursuant to s. 455.624, and, if
19 applicable, shall be removed from office, employment, or the
20 contractual relationship.
21 (3) Any person injured as a result of a violation of
22 this section shall have a civil cause of action for treble
23 damages, reasonable attorney fees and costs.
24 Section 5. (1) Paragraph (e) is added to subsection
25 (5) of section 455.667, Florida Statutes, 1998 Supplement, to
26 read:
27 455.667 Ownership and control of patient records;
28 report or copies of records to be furnished.--
29 (5) Except as otherwise provided in this section and
30 in s. 440.13(4)(c), such records may not be furnished to, and
31 the medical condition of a patient may not be discussed with,
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HB 2185, First Engrossed
1 any person other than the patient or the patient's legal
2 representative or other health care practitioners and
3 providers involved in the care or treatment of the patient,
4 except upon written authorization of the patient. However,
5 such records may be furnished without written authorization
6 under the following circumstances:
7 (e) For purposes of taking an unsworn statement
8 pursuant to s. 766.106(7)(a).
9 (2) This section shall apply to all notices of intent
10 to litigate sent on or after October 1, 1999.
11 Section 6. Except as provided herein, this act shall
12 take effect on October 1, 1999, and shall apply to causes of
13 action accruing on or after said date.
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