House Bill hb0947

    Florida House of Representatives - 2001                 HB 947

        By Representative Seiler






  1                      A bill to be entitled

  2         An act relating to medical malpractice presuit

  3         investigations; amending s. 766.104, F.S.;

  4         authorizing the release of certain records

  5         relating to medical care and treatment of a

  6         decedent upon the request of certain persons;

  7         providing exemption from liability and

  8         discipline for health care practitioners

  9         complying in good faith; providing an effective

10         date.

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

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14         Section 1.  Section 766.104, Florida Statutes, is

15  amended to read:

16         766.104  Pleading in medical negligence cases; claim

17  for punitive damages; authorization for release of records for

18  investigation.--

19         (1)  No action shall be filed for personal injury or

20  wrongful death arising out of medical negligence, whether in

21  tort or in contract, unless the attorney filing the action has

22  made a reasonable investigation as permitted by the

23  circumstances to determine that there are grounds for a good

24  faith belief that there has been negligence in the care or

25  treatment of the claimant.  The complaint or initial pleading

26  shall contain a certificate of counsel that such reasonable

27  investigation gave rise to a good faith belief that grounds

28  exist for an action against each named defendant.  For

29  purposes of this section, good faith may be shown to exist if

30  the claimant or his or her counsel has received a written

31  opinion, which shall not be subject to discovery by an

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    Florida House of Representatives - 2001                 HB 947

    794-104-01






  1  opposing party, of an expert as defined in s. 766.102 that

  2  there appears to be evidence of medical negligence.  If the

  3  court determines that such certificate of counsel was not made

  4  in good faith and that no justiciable issue was presented

  5  against a health care provider that fully cooperated in

  6  providing informal discovery, the court shall award attorney's

  7  fees and taxable costs against claimant's counsel, and shall

  8  submit the matter to The Florida Bar for disciplinary review

  9  of the attorney.

10         (2)  Upon petition to the clerk of the court where the

11  suit will be filed and payment to the clerk of a filing fee,

12  not to exceed $25, established by the chief judge, an

13  automatic 90-day extension of the statute of limitations shall

14  be granted to allow the reasonable investigation required by

15  subsection (1).  This period shall be in addition to other

16  tolling periods. No court order is required for the extension

17  to be effective.  The provisions of this subsection shall not

18  be deemed to revive a cause of action on which the statute of

19  limitations has run.

20         (3)  For purposes of conducting the investigation

21  required by this section, and notwithstanding any other

22  provision of law to the contrary, subsequent to the death of a

23  person and prior to the administration of such person's

24  estate, copies of all medical reports and records, including

25  bills, films, and other records relating to the care and

26  treatment of such person that are in the possession of a

27  health care practitioner as defined in s. 456.001 shall be

28  made available, upon request, to the spouse, parent, child who

29  has reached maturity, guardian, surrogate, proxy, or attorney

30  in fact of the deceased or any of the foregoing persons. A

31  health care practitioner complying in good faith with the

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    Florida House of Representatives - 2001                 HB 947

    794-104-01






  1  provisions of this subsection shall not be held liable for

  2  civil damages attributable to the disclosure of such records

  3  or be subject to any disciplinary action based on such

  4  disclosure.

  5         Section 2.  This act shall take effect upon becoming a

  6  law.

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  9                          HOUSE SUMMARY

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      Authorizes, with respect to medical malpractice presuit
11    investigations, the release of records relating to
      medical care and treatment of a decedent that are in the
12    possession of a health care practitioner to, and upon the
      request of, the spouse, parent, child who has reached
13    maturity, guardian, surrogate, proxy, or attorney in fact
      of the deceased or any of the foregoing persons. Provides
14    for exemption from liability and discipline for health
      care practitioners complying in good faith.
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