SENATE AMENDMENT
    Bill No. HB 67-E
    Amendment No. ___   Barcode 404384
                            CHAMBER ACTION
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       05/13/2002 08:42 AM         .                    
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11  Senator Smith moved the following amendment:
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13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
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16  and insert:  
17         Section 1.  Subsection (2) of section 766.112, Florida
18  Statutes, is amended to read:
19         766.112  Comparative fault.--
20         (2)  In an action for damages for personal injury or
21  wrongful death arising out of medical malpractice, whether in
22  contract or tort, when an apportionment of damages pursuant to
23  s. 768.81 is attributed to a the board of trustees of a state
24  university Regents, the court shall enter judgment against the
25  board of trustees Regents on the basis of the board's such
26  party's percentage of fault and not on the basis of the
27  doctrine of joint and several liability. The sole remedy
28  available to a claimant to collect a judgment or settlement
29  against a board of trustees damages, subject to the provisions
30  of this subsection, against the Board of Regents shall be
31  pursuant to s. 768.28.
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SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 Section 2. Subsections (1) and (2) of section 768.28, 2 Florida Statutes, are amended to read: 3 768.28 Waiver of sovereign immunity in tort actions; 4 recovery limits; limitation on attorney fees; statute of 5 limitations; exclusions; indemnification; risk management 6 programs.-- 7 (1) In accordance with s. 13, Art. X of the State 8 Constitution, the state, for itself and for its agencies or 9 subdivisions, hereby waives sovereign immunity for liability 10 for torts, but only to the extent specified in this act. 11 Actions at law against the state or any of its agencies or 12 subdivisions to recover damages in tort for money damages 13 against the state or its agencies or subdivisions for injury 14 or loss of property, personal injury, or death caused by the 15 negligent or wrongful act or omission of any employee of the 16 agency or subdivision while acting within the scope of the 17 employee's office or employment under circumstances in which 18 the state or such agency or subdivision, if a private person, 19 would be liable to the claimant, in accordance with the 20 general laws of this state, may be prosecuted subject to the 21 limitations specified in this act. Any such action may be 22 brought in the county where the property in litigation is 23 located or, if the affected agency or subdivision has an 24 office in such county for the transaction of its customary 25 business, where the cause of action accrued. However, any such 26 action against a state university board of trustees shall be 27 brought in the county in which that university's main campus 28 is located or in the county in which the cause of action 29 accrued if the university maintains therein a substantial 30 presence for the transaction of its customary business. 31 (2) As used in this act, "state agencies or 2 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 subdivisions" include the executive departments, the 2 Legislature, the judicial branch (including public defenders), 3 and the independent establishments of the state, including 4 state university boards of trustees; counties and 5 municipalities; and corporations primarily acting as 6 instrumentalities or agencies of the state, counties, or 7 municipalities, including the Spaceport Florida Authority. 8 Section 3. Subsection (5) of section 626.852, Florida 9 Statutes, is amended to read: 10 626.852 Scope of this part.-- 11 (5) This part does not apply to any employee or agent 12 of a state university the board of trustees Regents providing 13 services in support of any self-insurance program created 14 under s. 240.213 or s. 1004.24 adopted by such Board of 15 Regents. 16 Section 4. The amendments to sections 766.112(2) and 17 768.28(1) and (2) shall apply to causes of action arising on 18 or after January 7, 2003. 19 Section 5. Subsections (9) and (10) are added to 20 section 766.302, Florida Statutes, to read: 21 766.302 Definitions; ss. 766.301-766.316.--As used in 22 ss. 766.301-766.316, the term: 23 (9) "Family member" means a father, mother, or legal 24 guardian. 25 (10) "Family residential or custodial care" means care 26 normally rendered by trained professional attendants which is 27 beyond the scope of child care duties, but which is provided 28 by family members. Family members who provide nonprofessional 29 residential or custodial care may not be compensated under 30 this act for care that falls within the scope of child care 31 duties and other services normally and gratuitously provided 3 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 by family members. Family residential or custodial care shall 2 be performed only at the direction and control of a physician 3 when such care is medically necessary. Reasonable charges for 4 expenses for family residential or custodial care provided by 5 a family member shall be determined as follows: 6 (a) If the family member is not employed, the per-hour 7 value equals the federal minimum hourly wage. 8 (b) If the family member is employed and elects to 9 leave that employment to provide such care, the per-hour value 10 of that care shall equal the rates established by Medicaid for 11 private-duty services provided by a home health aide. A family 12 member or a combination of family members providing care in 13 accordance with this definition may not be compensated for 14 more than a total of 10 hours per day. Family care is in lieu 15 of professional residential or custodial care, and no 16 professional residential or custodial care may be awarded for 17 the period of time during the day that family care is being 18 provided. 19 (c) The award of family residential or custodial care 20 as defined in this section shall not be included in the 21 current estimates for purposes of s. 766.314(9)(c). 22 Section 6. Paragraph (a) of subsection (1) of section 23 766.31, Florida Statutes, is amended to read: 24 766.31 Administrative law judge awards for 25 birth-related neurological injuries; notice of award.-- 26 (1) Upon determining that an infant has sustained a 27 birth-related neurological injury and that obstetrical 28 services were delivered by a participating physician at the 29 birth, the administrative law judge shall make an award 30 providing compensation for the following items relative to 31 such injury: 4 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 (a) Actual expenses for medically necessary and 2 reasonable medical and hospital, habilitative and training, 3 family residential or custodial care, professional 4 residential, and custodial care and service, for medically 5 necessary drugs, special equipment, and facilities, and for 6 related travel. However, such expenses shall not include: 7 1. Expenses for items or services that the infant has 8 received, or is entitled to receive, under the laws of any 9 state or the Federal Government, except to the extent such 10 exclusion may be prohibited by federal law. 11 2. Expenses for items or services that the infant has 12 received, or is contractually entitled to receive, from any 13 prepaid health plan, health maintenance organization, or other 14 private insuring entity. 15 3. Expenses for which the infant has received 16 reimbursement, or for which the infant is entitled to receive 17 reimbursement, under the laws of any state or the Federal 18 Government, except to the extent such exclusion may be 19 prohibited by federal law. 20 4. Expenses for which the infant has received 21 reimbursement, or for which the infant is contractually 22 entitled to receive reimbursement, pursuant to the provisions 23 of any health or sickness insurance policy or other private 24 insurance program. 25 26 Expenses included under this paragraph shall be limited to 27 reasonable charges prevailing in the same community for 28 similar treatment of injured persons when such treatment is 29 paid for by the injured person. 30 Section 7. Paragraph (c) of subsection (4) of section 31 766.314, Florida Statutes, is amended to read: 5 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 766.314 Assessments; plan of operation.-- 2 (4) The following persons and entities shall pay into 3 the association an initial assessment in accordance with the 4 plan of operation: 5 (c) On or before December 1, 1988, each physician 6 licensed pursuant to chapter 458 or chapter 459 who wishes to 7 participate in the Florida Birth-Related Neurological Injury 8 Compensation Plan and who otherwise qualifies as a 9 participating physician under ss. 766.301-766.316 shall pay an 10 initial assessment of $5,000. However, if the physician is 11 either a resident physician, assistant resident physician, or 12 intern in an approved postgraduate training program, as 13 defined by the Board of Medicine or the Board of Osteopathic 14 Medicine by rule, and is supervised in accordance with program 15 requirements established by the Accreditation Council for 16 Graduate Medical Education or the American Osteopathic 17 Association by a physician who is participating in the plan, 18 such resident physician, assistant resident physician, or 19 intern is deemed to be a participating physician without the 20 payment of the assessment. Participating physicians also 21 include any employee of the Board of Regents who has paid the 22 assessment required by this paragraph and paragraph (5)(a), 23 and any certified nurse midwife supervised by such employee. 24 Participating physicians include any certified nurse midwife 25 who has paid 50 percent of the physician assessment required 26 by this paragraph and paragraph (5)(a) and who is supervised 27 by a participating physician who has paid the assessment 28 required by this paragraph and paragraph (5)(a). Supervision 29 for nurse midwives shall require that the supervising 30 physician will be easily available and have a prearranged plan 31 of treatment for specified patient problems which the 6 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 supervised certified nurse midwife or physician may carry out 2 in the absence of any complicating features. Any physician 3 who elects to participate in such plan on or after January 1, 4 1989, who was not a participating physician at the time of 5 such election to participate and who otherwise qualifies as a 6 participating physician under ss. 766.301-766.316 shall pay an 7 additional initial assessment equal to the most recent 8 assessment made pursuant to this paragraph, paragraph (5)(a), 9 or paragraph (7)(b). 10 Section 8. If any law that is amended by this act was 11 also amended by a law enacted at the 2002 Regular Session of 12 the Legislature, such laws shall be construed as if they had 13 been enacted at the same session of the Legislature, and full 14 effect should be given to each if that is possible. 15 Section 9. This act, except for this section and 16 sections 5, 6, 7, and 8, which shall take effect upon becoming 17 a law, shall take effect January 7, 2003. 18 19 20 ================ T I T L E A M E N D M E N T =============== 21 And the title is amended as follows: 22 Delete everything before the enacting clause 23 24 and insert: 25 A bill to be entitled 26 An act relating to liability; amending s. 27 762.112, F.S.; prescribing applicability of 28 provisions relating to comparative fault to 29 boards of trustees; amending s. 768.28, F.S.; 30 providing venue in actions brought against 31 boards of trustees; providing applicability of 7 3:50 PM 05/08/02 h0067Ec-05e0s.seg1
SENATE AMENDMENT Bill No. HB 67-E Amendment No. ___ Barcode 404384 1 provisions relating to waiver of sovereign 2 immunity to boards of trustees; amending s. 3 626.852, F.S.; providing inapplicability of 4 provisions relating to insurance adjusters to 5 employees and agents of a board of trustees; 6 amending s. 766.302, F.S.; defining the terms 7 "family member" and "family residential or 8 custodial care"; amending s. 766.31, F.S.; 9 authorizing compensation awards for 10 professional or family residential or custodial 11 care; amending s. 766.314, F.S.; revising 12 requirements for assessments used for certain 13 supervised personnel; providing for 14 construction of laws enacted at the 2002 15 Regular Session in relation to this act; 16 providing effective dates. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 8 3:50 PM 05/08/02 h0067Ec-05e0s.seg1