Senate Bill 0808c1

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    Florida Senate - 2000                            CS for SB 808

    By the Committee on Judiciary and Senators Sebesta and
    Kirkpatrick




    308-1835-00

  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; providing an effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

16

17         Section 1.  Section 766.102, Florida Statutes, is

18  amended to read:

19         766.102  Medical negligence; standards of recovery.--

20         (1)  In any action for recovery of damages based on the

21  death or personal injury of any person in which it is alleged

22  that such death or injury resulted from the negligence of a

23  health care provider as defined in s. 768.50(2)(b), the

24  claimant shall have the burden of proving by the greater

25  weight of evidence that the alleged actions of the health care

26  provider represented a breach of the prevailing professional

27  standard of care for that health care provider.  The

28  prevailing professional standard of care for a given health

29  care provider shall be that level of care, skill, and

30  treatment which, in light of all relevant surrounding

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  1  circumstances, is recognized as acceptable and appropriate by

  2  reasonably prudent similar health care providers.

  3         (2)  A person may not give expert testimony concerning

  4  the prevailing professional standard of care unless that

  5  person is a licensed health care provider and meets the

  6  following criteria:

  7         (a)  If the party against whom or on whose behalf the

  8  testimony is offered is a specialist, the expert witness must:

  9         1.  Specialize in the same specialty as the party

10  against whom or on whose behalf the testimony is offered; or

11         2.  Specialize in a similar specialty that includes the

12  evaluation, diagnosis, or treatment of the medical condition

13  that is the subject of the complaint and have prior experience

14  treating similar patients.

15         (b)  During the 3 years immediately preceding the date

16  of the occurrence that is the basis for the action, the expert

17  witness must have devoted professional time to:

18         1.  The active clinical practice of, or consulting with

19  respect to, the same or similar health profession as the

20  health care provider against whom or on whose behalf the

21  testimony is offered and, if that health care provider is a

22  specialist, the active clinical practice of, or consulting

23  with respect to, the same specialty or a similar specialty

24  that includes the evaluation, diagnosis, or treatment of the

25  medical condition that is the subject of the action and have

26  prior experience treating similar patients;

27         2.  The instruction of students in an accredited health

28  professional school or accredited residency program in the

29  same or similar health profession in which the health care

30  provider against whom or on whose behalf the testimony is

31  offered, and if that health care provider is a specialist, an

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  1  accredited health professional school or accredited residency

  2  or clinical research program in the same or similar specialty;

  3  or

  4         3.  A clinical research program that is affiliated with

  5  an accredited medical school or teaching hospital and that is

  6  in the same or similar health profession as the health care

  7  provider against whom or on whose behalf the testimony is

  8  offered and, if that health care provider is a specialist, a

  9  clinical research program that is affiliated with an

10  accredited health professional school or accredited residency

11  or clinical research program in the same or similar specialty.

12         (3)  Notwithstanding subsection (2), if the health care

13  provider against whom or on whose behalf the testimony is

14  offered is a general practitioner, the expert witness, during

15  the 3 years immediately preceding the date of the occurrence

16  that is the basis for the action, must have devoted his or her

17  professional time to:

18         (a)  Active clinical practice or consultation as a

19  general practitioner;

20         (b)  Instruction of students in an accredited health

21  professional school or accredited residency program in the

22  general practice of medicine; or

23         (c)  A clinical research program that is affiliated

24  with an accredited medical school or teaching hospital and

25  that is in the general practice of medicine.

26         (4)  Notwithstanding subsection (2), a physician

27  licensed under chapter 458 or chapter 459 who qualifies as an

28  expert under the section and who by reason of active clinical

29  practice or instruction of students has knowledge of the

30  applicable standard of care for nurses, nurse practitioners,

31  certified registered nurse anesthetists, certified registered

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  1  nurse midwives, physician assistants, or other medical support

  2  staff may give expert testimony in a medical malpractice

  3  action with respect to the standard of care of such medical

  4  support staff.

  5         (5)  In an action alleging medical malpractice, an

  6  expert witness may not testify on a contingency fee basis.

  7         (6)  This section does not limit the power of the trial

  8  court to disqualify or qualify an expert witness on grounds

  9  other than the qualifications in this section.

10         (7)  Notwithstanding subsection (2), in a medical

11  malpractice action against a hospital or other health care or

12  medical facility, a person may give expert testimony on the

13  appropriate standard of care as to administrative and other

14  nonclinical issues if the person has substantial knowledge, by

15  virtue of his or her training and experience, concerning the

16  standard of care among hospitals, or health care or medical

17  facilities of the same type as the hospital, health facility,

18  or medical facility whose actions or inactions are the subject

19  of this testimony and which are located in the same or similar

20  communities at the time of the alleged act giving rise to the

21  cause of action.

22         (2)(a)  If the health care provider whose negligence is

23  claimed to have created the cause of action is not certified

24  by the appropriate American board as being a specialist, is

25  not trained and experienced in a medical specialty, or does

26  not hold himself or herself out as a specialist, a "similar

27  health care provider" is one who:

28         1.  Is licensed by the appropriate regulatory agency of

29  this state;

30         2.  Is trained and experienced in the same discipline

31  or school of practice; and

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  1         3.  Practices in the same or similar medical community.

  2         (b)  If the health care provider whose negligence is

  3  claimed to have created the cause of action is certified by

  4  the appropriate American board as a specialist, is trained and

  5  experienced in a medical specialty, or holds himself or

  6  herself out as a specialist, a "similar health care provider"

  7  is one who:

  8         1.  Is trained and experienced in the same specialty;

  9  and

10         2.  Is certified by the appropriate American board in

11  the same specialty.

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13  However, if any health care provider described in this

14  paragraph is providing treatment or diagnosis for a condition

15  which is not within his or her specialty, a specialist trained

16  in the treatment or diagnosis for that condition shall be

17  considered a "similar health care provider."

18         (c)  The purpose of this subsection is to establish a

19  relative standard of care for various categories and

20  classifications of health care providers.  Any health care

21  provider may testify as an expert in any action if he or she:

22         1.  Is a similar health care provider pursuant to

23  paragraph (a) or paragraph (b); or

24         2.  Is not a similar health care provider pursuant to

25  paragraph (a) or paragraph (b) but, to the satisfaction of the

26  court, possesses sufficient training, experience, and

27  knowledge as a result of practice or teaching in the specialty

28  of the defendant or practice or teaching in a related field of

29  medicine, so as to be able to provide such expert testimony as

30  to the prevailing professional standard of care in a given

31  field of medicine.  Such training, experience, or knowledge

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    Florida Senate - 2000                            CS for SB 808
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  1  must be as a result of the active involvement in the practice

  2  or teaching of medicine within the 5-year period before the

  3  incident giving rise to the claim.

  4         (8)(3)(a)  If the injury is claimed to have resulted

  5  from the negligent affirmative medical intervention of the

  6  health care provider, the claimant must, in order to prove a

  7  breach of the prevailing professional standard of care, show

  8  that the injury was not within the necessary or reasonably

  9  foreseeable results of the surgical, medicinal, or diagnostic

10  procedure constituting the medical intervention, if the

11  intervention from which the injury is alleged to have resulted

12  was carried out in accordance with the prevailing professional

13  standard of care by a reasonably prudent similar health care

14  provider.

15         (b)  The provisions of this subsection shall apply only

16  when the medical intervention was undertaken with the informed

17  consent of the patient in compliance with the provisions of s.

18  766.103.

19         (9)(4)  The existence of a medical injury shall not

20  create any inference or presumption of negligence against a

21  health care provider, and the claimant must maintain the

22  burden of proving that an injury was proximately caused by a

23  breach of the prevailing professional standard of care by the

24  health care provider. However, the discovery of the presence

25  of a foreign body, such as a sponge, clamp, forceps, surgical

26  needle, or other paraphernalia commonly used in surgical,

27  examination, or diagnostic procedures, shall be prima facie

28  evidence of negligence on the part of the health care

29  provider.

30         (10)(5)  The Legislature is cognizant of the changing

31  trends and techniques for the delivery of health care in this

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  1  state and the discretion that is inherent in the diagnosis,

  2  care, and treatment of patients by different health care

  3  providers.  The failure of a health care provider to order,

  4  perform, or administer supplemental diagnostic tests shall not

  5  be actionable if the health care provider acted in good faith

  6  and with due regard for the prevailing professional standard

  7  of care.

  8         (11)(a)(6)(a)  In any action for damages involving a

  9  claim of negligence against a physician licensed under chapter

10  458, osteopathic physician licensed under chapter 459,

11  podiatric physician licensed under chapter 461, or

12  chiropractic physician licensed under chapter 460 providing

13  emergency medical services in a hospital emergency department,

14  the court shall admit expert medical testimony only from

15  physicians, osteopathic physicians, podiatric physicians, and

16  chiropractic physicians who have had substantial professional

17  experience within the preceding 5 years while assigned to

18  provide emergency medical services in a hospital emergency

19  department.

20         (b)  For the purposes of this subsection:

21         1.  The term "emergency medical services" means those

22  medical services required for the immediate diagnosis and

23  treatment of medical conditions which, if not immediately

24  diagnosed and treated, could lead to serious physical or

25  mental disability or death.

26         2.  "Substantial professional experience" shall be

27  determined by the custom and practice of the manner in which

28  emergency medical coverage is provided in hospital emergency

29  departments in the same or similar localities where the

30  alleged negligence occurred.

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  1         (12)  However, if any health care providers described

  2  in subsection (2), subsection (3), or subsection (4) are

  3  providing treatment or diagnosis for a condition that is not

  4  within his or her specialty, a specialist trained in the

  5  treatment or diagnosis for that condition shall be considered

  6  a "similar health care provider."

  7         Section 2.  Effective October 1, 2000, and applicable

  8  to notices of intent to litigate sent on or after that date,

  9  subsection (2) and paragraph (a) of subsection (7) of section

10  766.106, Florida Statutes, are amended to read:

11         766.106  Notice before filing action for medical

12  malpractice; presuit screening period; offers for admission of

13  liability and for arbitration; informal discovery; review.--

14         (2)  After completion of presuit investigation pursuant

15  to s. 766.203 and prior to filing a claim for medical

16  malpractice, a claimant shall notify each prospective

17  defendant and, if any prospective defendant is a health care

18  provider licensed under chapter 458, chapter 459, chapter 460,

19  chapter 461, or chapter 466, the Department of Health by

20  certified mail, return receipt requested, of intent to

21  initiate litigation for medical malpractice. Notice to each

22  prospective defendant must include a list of all known health

23  care providers seen by the claimant subsequent to the alleged

24  act of malpractice for the injuries complained of and those

25  known health care providers seen by the claimant for related

26  conditions during the 5-year period prior to the alleged act

27  of malpractice. Notice to the Department of Health must

28  include the full name and address of the claimant; the full

29  names and any known addresses of any health care providers

30  licensed under chapter 458, chapter 459, chapter 460, chapter

31  461, or chapter 466 who are prospective defendants identified

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  1  at the time; the date and a summary of the occurrence giving

  2  rise to the claim; and a description of the injury to the

  3  claimant. The requirement for notice to the Department of

  4  Health does not impair the claimant's legal rights or ability

  5  to seek relief for his or her claim, and the notice provided

  6  to the department is not discoverable or admissible in any

  7  civil or administrative action. The Department of Health shall

  8  review each incident and determine whether it involved conduct

  9  by a licensee which is potentially subject to disciplinary

10  action, in which case the provisions of s. 455.621 apply.

11         (7)  Informal discovery may be used by a party to

12  obtain unsworn statements, the production of documents or

13  things, and physical and mental examinations, as follows:

14         (a)  Unsworn statements.--Any party may require other

15  parties and the claimant's treating physicians listed in the

16  claimant's notice to initiate litigation for medical

17  malpractice to appear for the taking of an unsworn statement.

18  Such statements may be used only for the purpose of presuit

19  screening and are not discoverable or admissible in any civil

20  action for any purpose by any party.  A party desiring to take

21  the unsworn statement of any party or treating physician must

22  give reasonable notice in writing to all parties.  The notice

23  must state the time and place for taking the statement and the

24  name and address of the party or treating physician to be

25  examined.  Unless otherwise impractical, the examination of

26  any party or treating physician must be done at the same time

27  by all other parties.  Any party or treating physician may be

28  represented by counsel at the taking of an unsworn statement.

29  An unsworn statement may be recorded electronically,

30  stenographically, or on videotape.  The taking of unsworn

31  statements is subject to the provisions of the Florida Rules

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  1  of Civil Procedure and may be terminated for abuses. Further,

  2  as to the taking of unsworn statements of the claimant's

  3  treating physicians, the scope of such inquiry shall be

  4  limited to opinions formulated by the treating physicians with

  5  respect to the issues of liability and damages set forth in

  6  the claimant's notice of intent letter. If a prospective

  7  defendant did not take an unsworn statement of a claimant's

  8  treating medical physicians as set forth in the claimant's

  9  notice to initiate a claim for medical malpractice, an unsworn

10  statement may be taken after suit has been filed, but no later

11  than 90 days from the date of service of the complaint on the

12  defendant. However, in no event may a prospective defendant

13  take more than one unsworn statement of a treating physician.

14  Unsworn statements taken after suit has been filed are

15  inadmissible in the civil action for any purpose by any party.

16  This section does not prohibit the taking of an unsworn

17  statement of a treating physician subsequent to the filing of

18  the civil action upon good cause being shown that the name of

19  any treating physician was not provided in the claimant's

20  notice to initiate a claim for medical malpractice.

21         Section 3.  Effective October 1, 2000, and applicable

22  to notices of intent to litigate sent on or after that date,

23  subsection (5) of section 455.667, Florida Statutes, is

24  amended to read:

25         455.667  Ownership and control of patient records;

26  report or copies of records to be furnished.--

27         (5)  Except as otherwise provided in this section and

28  in s. 440.13(4)(c), such records may not be furnished to, and

29  the medical condition of a patient may not be discussed with,

30  any person other than the patient or the patient's legal

31  representative or other health care practitioners and

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  1  providers involved in the care or treatment of the patient,

  2  except upon written authorization of the patient. However,

  3  such records may be furnished without written authorization

  4  under the following circumstances:

  5         (a)  To any person, firm, or corporation that has

  6  procured or furnished such examination or treatment with the

  7  patient's consent.

  8         (b)  When compulsory physical examination is made

  9  pursuant to Rule 1.360, Florida Rules of Civil Procedure, in

10  which case copies of the medical records shall be furnished to

11  both the defendant and the plaintiff.

12         (c)  In any civil or criminal action, unless otherwise

13  prohibited by law, upon the issuance of a subpoena from a

14  court of competent jurisdiction and proper notice to the

15  patient or the patient's legal representative by the party

16  seeking such records.

17         (d)  For statistical and scientific research, provided

18  the information is abstracted in such a way as to protect the

19  identity of the patient or provided written permission is

20  received from the patient or the patient's legal

21  representative.

22         (e)  For purposes of taking an unsworn statement

23  pursuant to s. 766.106(7)(a).

24         Section 4.  This act shall take effect October 1, 2000,

25  and shall apply to causes of action accruing on or after that

26  date.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 808

  3

  4  Changes the time period within which the expert who is a
    specialist or similar specialist must have devoted
  5  professional time to the active clinical practice, instruction
    of students or clinical research to three years immediately
  6  preceding the the date of the occurrence that is the basis for
    the action.
  7
    Adds consulting to the activity the expert specialist, similar
  8  specialist or general practitioner could have engaged in
    during the three years immediately preceding the date of the
  9  occurrence that is the basis for the action.

10  Changes the time period within which the expert who is a
    general practitioner must have devoted professional time to
11  the active clinical practice, instruction of students or
    clinical research to three years immediately preceding the
12  state of the occurrence that is the basis for the action.

13  Adds a provision that this section does not limit the power of
    the trial court to qualify or disqualify an expert on grounds
14  other than the qualifications in this section.

15  Revises the effective date so that it becomes effective on
    October 1, 2000, and applies to causes of action accruing on
16  or after that date.

17  Amends subsection (2) of s. 766.106, F.S., to require a
    claimant in a medical malpractice claim to include in the
18  notice of intent to initiate litigation a list of all known
    health care providers seen by the claimant subsequent to the
19  alleged act of malpractice and those known health care
    providers seen by the claimant for related conditions during
20  the five year period prior to the alleged act of malpractice.
    The effective date is October 1, 2000, and applies to notices
21  of intent to litigate sent on or after that date.

22  Amends subsection (7)(a) of s. 766.106, F.S., to include the
    claimant's treating physician listed in the claimant's notice
23  of intent to initiate litigation as persons who may be
    required to have their unsworn statements taken for the
24  purpose of presuit screening. The scope of inquiry is limited
    to opinions formulated by the treating physicians about the
25  issues of liability and damages stated in the claimant's
    notice of intent. Provides conditions and limitations for such
26  unsworn statements. The effective date is October 1, 2000, and
    applies to notices of intent to litigate sent on or after that
27  date.

28  Amends subsection (5)(e) of s. 455.667, F.S., to allow
    furnishing of patient's medical records without written
29  authorization from the patient or the patient's legal
    representative for purposes of taking an unsworn statement
30  pursuant to the presuit screening provisions of s.
    766.106(7)(a), F.S. The effective date is October 1, 2000, and
31  applies to notices of intent to litigate sent on or after that
    date.
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