Senate Bill sb2064

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    Florida Senate - 2002                                  SB 2064

    By Senator Geller





    29-1043-02

  1                      A bill to be entitled

  2         An act relating to health care providers;

  3         amending s. 456.041, F.S.; specifying medical

  4         liability actions with respect to which the

  5         Department of Health must maintain information

  6         on certain licensees; amending ss. 458.331,

  7         459.015, F.S.; revising the definition of the

  8         term "repeated malpractice" for purposes of

  9         disciplinary action against physicians and

10         osteopaths; increasing the monetary limits of

11         claims against certain health care providers

12         which result in investigation; amending s.

13         627.912, F.S.; requiring certain professional

14         liability claims to be reported by insurers to

15         the Department of Insurance; requiring certain

16         of those claims to be investigated by the

17         Department of Health; providing an effective

18         date.

19

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

21

22         Section 1.  Subsection (4) of section 456.041, Florida

23  Statutes, is amended to read:

24         456.041  Practitioner profile; creation.--

25         (4)  The Department of Health shall include, with

26  respect to a practitioner licensed under chapter 458 or

27  chapter 459, a statement of how the practitioner has elected

28  to comply with the financial responsibility requirements of s.

29  458.320 or s. 459.0085. The department shall include, with

30  respect to practitioners subject to s. 456.048, a statement of

31  how the practitioner has elected to comply with the financial

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    Florida Senate - 2002                                  SB 2064
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  1  responsibility requirements of that section. The department

  2  shall include, with respect to practitioners licensed under

  3  chapter 458, chapter 459, or chapter 461, information relating

  4  to medical liability actions within the previous 7 years which

  5  resulted in a verdict in favor of the plaintiff and medical

  6  liability actions which have has been reported under s.

  7  456.049 or s. 627.912 within the previous 7 10 years for any

  8  paid claim that exceeds $50,000 $5,000. Such claims

  9  information shall be reported in the context of comparing an

10  individual practitioner's claims to the experience of other

11  practitioners within the same specialty, or profession if the

12  practitioner is not a specialist, to the extent such

13  information is available to the Department of Health. If

14  information relating to a liability action is included in a

15  practitioner's practitioner profile, the profile must also

16  include the following statement: "Settlement of a claim may

17  occur for a variety of reasons that do not necessarily reflect

18  negatively on the professional competence or conduct of the

19  practitioner.  A payment in settlement of a medical

20  malpractice action or claim should not be construed as

21  creating a presumption that medical malpractice has occurred."

22         Section 2.  Paragraph (t) of subsection (1) and

23  subsection (6) of section 458.331, Florida Statutes, are

24  amended to read:

25         458.331  Grounds for disciplinary action; action by the

26  board and department.--

27         (1)  The following acts constitute grounds for denial

28  of a license or disciplinary action, as specified in s.

29  456.072(2):

30         (t)  Gross or repeated malpractice or the failure to

31  practice medicine with that level of care, skill, and

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  1  treatment which is recognized by a reasonably prudent similar

  2  physician as being acceptable under similar conditions and

  3  circumstances.  The board shall give great weight to the

  4  provisions of s. 766.102 when enforcing this paragraph.  As

  5  used in this paragraph, "repeated malpractice" includes, but

  6  is not limited to, three or more claims for medical

  7  malpractice within the previous 5-year period resulting in

  8  indemnities being paid in excess of $50,000 $25,000 each to

  9  the claimant in a judgment or settlement and which incidents

10  involved negligent conduct by the physician. As used in this

11  paragraph, "gross malpractice" or "the failure to practice

12  medicine with that level of care, skill, and treatment which

13  is recognized by a reasonably prudent similar physician as

14  being acceptable under similar conditions and circumstances,"

15  shall not be construed so as to require more than one

16  instance, event, or act.  Nothing in this paragraph shall be

17  construed to require that a physician be incompetent to

18  practice medicine in order to be disciplined pursuant to this

19  paragraph.

20         (6)  Upon the department's receipt from an insurer or

21  self-insurer of a report of a closed claim against a physician

22  pursuant to s. 627.912 or from a health care practitioner of a

23  report pursuant to s. 456.049, or upon the receipt from a

24  claimant of a presuit notice against a physician pursuant to

25  s. 766.106, the department shall review each report and

26  determine whether it potentially involved conduct by a

27  licensee that is subject to disciplinary action, in which case

28  the provisions of s. 456.073 shall apply. However, if it is

29  reported that a physician has had three or more claims with

30  indemnities exceeding $50,000 $25,000 each within the previous

31  5-year period, the department shall investigate the

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  1  occurrences upon which the claims were based and determine

  2  whether if action by the department against the physician is

  3  warranted.

  4         Section 3.  Paragraph (x) of subsection (1) and

  5  subsection (6) of section 459.015, Florida Statutes, are

  6  amended to read:

  7         459.015  Grounds for disciplinary action; action by the

  8  board and department.--

  9         (1)  The following acts constitute grounds for denial

10  of a license or disciplinary action, as specified in s.

11  456.072(2):

12         (x)  Gross or repeated malpractice or the failure to

13  practice osteopathic medicine with that level of care, skill,

14  and treatment which is recognized by a reasonably prudent

15  similar osteopathic physician as being acceptable under

16  similar conditions and circumstances. The board shall give

17  great weight to the provisions of s. 766.102 when enforcing

18  this paragraph. As used in this paragraph, "repeated

19  malpractice" includes, but is not limited to, three or more

20  claims for medical malpractice within the previous 5-year

21  period resulting in indemnities being paid in excess of

22  $50,000 $25,000 each to the claimant in a judgment or

23  settlement and which incidents involved negligent conduct by

24  the osteopathic physician. As used in this paragraph, "gross

25  malpractice" or "the failure to practice osteopathic medicine

26  with that level of care, skill, and treatment which is

27  recognized by a reasonably prudent similar osteopathic

28  physician as being acceptable under similar conditions and

29  circumstances" shall not be construed so as to require more

30  than one instance, event, or act. Nothing in this paragraph

31  shall be construed to require that an osteopathic physician be

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  1  incompetent to practice osteopathic medicine in order to be

  2  disciplined pursuant to this paragraph.  A recommended order

  3  by an administrative law judge or a final order of the board

  4  finding a violation under this paragraph shall specify whether

  5  the licensee was found to have committed "gross malpractice,"

  6  "repeated malpractice," or "failure to practice osteopathic

  7  medicine with that level of care, skill, and treatment which

  8  is recognized as being acceptable under similar conditions and

  9  circumstances," or any combination thereof, and any

10  publication by the board shall so specify.

11         (6)  Upon the department's receipt from an insurer or

12  self-insurer of a report of a closed claim against an

13  osteopathic physician pursuant to s. 627.912 or from a health

14  care practitioner of a report pursuant to s. 456.049, or upon

15  the receipt from a claimant of a presuit notice against an

16  osteopathic physician pursuant to s. 766.106, the department

17  shall review each report and determine whether it potentially

18  involved conduct by a licensee that is subject to disciplinary

19  action, in which case the provisions of s. 456.073 shall

20  apply.  However, if it is reported that an osteopathic

21  physician has had three or more claims with indemnities

22  exceeding $50,000 $25,000 each within the previous 5-year

23  period, the department shall investigate the occurrences upon

24  which the claims were based and determine if action by the

25  department against the osteopathic physician is warranted.

26         Section 4.  Subsection (1) of section 627.912, Florida

27  Statutes, is amended to read:

28         627.912  Professional liability claims and actions;

29  reports by insurers.--

30         (1)  Each self-insurer authorized under s. 627.357 and

31  each insurer or joint underwriting association providing

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  1  professional liability insurance to a practitioner of medicine

  2  licensed under chapter 458, to a practitioner of osteopathic

  3  medicine licensed under chapter 459, to a podiatric physician

  4  licensed under chapter 461, to a dentist licensed under

  5  chapter 466, to a hospital licensed under chapter 395, to a

  6  crisis stabilization unit licensed under part IV of chapter

  7  394, to a health maintenance organization certificated under

  8  part I of chapter 641, to clinics included in chapter 390, to

  9  an ambulatory surgical center as defined in s. 395.002, or to

10  a member of The Florida Bar shall report in duplicate to the

11  Department of Insurance any claim or action for damages for

12  personal injuries claimed to have been caused by error,

13  omission, or negligence in the performance of such insured's

14  professional services or based on a claimed performance of

15  professional services without consent, if the claim resulted

16  in:

17         (a)  A final judgment in any amount.

18         (b)  A settlement in any amount.

19

20  Reports shall be filed with the Department of Insurance.

21  department and, If the insured party is licensed under chapter

22  458, chapter 459, chapter 461, or chapter 466 and the final

23  judgment or settlement amount exceeded $50,000, the report

24  must also be filed with the Department of Health, no later

25  than 30 days following the occurrence of any event listed in

26  this subsection paragraph (a) or paragraph (b). The Department

27  of Health shall review each report and determine whether any

28  of the incidents that resulted in the claim potentially

29  involved conduct by the licensee that is subject to

30  disciplinary action, in which case the provisions of s.

31  456.073 shall apply. The Department of Health, as part of the

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  1  annual report required by s. 456.026, shall publish annual

  2  statistics, without identifying licensees, on the reports it

  3  receives, including final action taken on such reports by the

  4  Department of Health or the appropriate regulatory board.

  5         Section 5.  This act shall take effect July 1, 2002.

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  8                          SENATE SUMMARY

  9    Revises provisions relating to recordkeeping and
      reporting of professional liability claims against
10    certain health care professionals. Revises provisions
      governing disciplinary actions. (See bill for details.)
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