HB 1329 2003
1	A bill to be entitled
2	An act relating to medical malpractice; creating s.
3	766.116, F.S., the "Access to Emergency Medical Services
4	and Care Act"; providing legislative findings and intent;
5	defining terms; providing requirements for contracts
6	between providers of emergency services and care and
7	governmental contractors for the purpose of providing
8	emergency services and care; requiring hospitals that
9	enter into such contracts to provide notice of the agency
10	relationship with the governmental contractor; requiring a
11	quality assurance program; requiring the Division of Risk
12	Management of the Department of Insurance to compile an
13	annual report and submit it to the Legislature; providing
14	for malpractice litigation costs; providing liability
15	limits; providing for rulemaking; providing applicability;
16	amending s. 766.102, F.S.; replacing the term "emergency
17	medical services" with the term "emergency medical
18	services and care" and defining the new term; amending s.
19	766.203, F.S.; providing requirements pertaining to a
20	presuit investigation of medical negligence claims
21	involving emergency medical services and care; amending s.
22	768.13, F.S., the "Good Samaritan Act"; providing immunity
23	from civil damages for providers of emergency medical
24	services and care; defining terms; providing limitations
25	on such immunity; providing for severability; providing
26	applicability; providing an effective date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1. Section 766.116, Florida Statutes, is created
31	to read:
32	766.116 Emergency medical services and care providers;
33	creation of agency relationship with governmental contractors.--
34	(1) POPULAR NAME.--This section may be known by the
35	popular name the "Access to Emergency Medical Services and Care
36	Act."
37	(2) FINDINGS AND INTENT.--The Legislature finds and
38	declares it to be of vital importance that emergency medical
39	services and care be provided by hospitals, physicians, and
40	emergency medical services providers to every person in need of
41	such care. The Legislature finds that providers of emergency
42	medical services and care are critical elements in responding to
43	disasters and emergencies that might affect our local
44	communities, state, and country. The Legislature recognizes the
45	importance of maintaining a viable system of providing for the
46	emergency medical needs of this state's residents and visitors.
47	The Legislature and the Federal Government have required such
48	providers of emergency medical services and care to provide
49	emergency medical services and care to all persons who present
50	themselves at hospitals in search of such care. The Legislature
51	has further mandated that emergency medical services providers
52	may not deny prehospital emergency medical treatment or
53	transport to persons who have or are likely to have an emergency
54	medical condition. These governmental requirements have
55	essentially provided a unilateral obligation for providers of
56	emergency medical services and care to provide services to all
57	persons seeking emergency care without ensuring payment or other
58	consideration for the provision of such care. Accordingly, the
59	Legislature recognizes that providers of emergency medical
60	services and care provide a significant amount of uncompensated
61	emergency medical care in furtherance of such governmental
62	interests. The Legislature finds that a significant proportion
63	of the residents of this state who are uninsured or are
64	recipients of Medicaid or Medicare are unable to obtain needed
65	health care because health care providers fear the increased
66	risk of medical malpractice liability. The Legislature finds
67	that, in order to obtain medical care, such patients, therefore,
68	are frequently forced to seek care from providers of emergency
69	medical services and care. The Legislature finds that providers
70	of emergency medical services and care in this state have
71	reported having significant problems with both availability and
72	affordability of professional liability coverage. The
73	Legislature finds that premiums for medical malpractice
74	liability insurance have increased dramatically and a number of
75	insurers have ceased providing medical malpractice coverage for
76	emergency medical services and care in this state. This results
77	in a functional unavailability of malpractice insurance for some
78	providers of emergency medical services and care. The
79	Legislature further finds that certain specialist physicians
80	have resigned from serving on hospital staffs or have otherwise
81	declined to provide on-call coverage to hospital emergency
82	departments due to their perception that treating such emergency
83	department patients increases the physicians' exposure to
84	liability for medical malpractice. It is the intent of the
85	Legislature that hospitals, emergency medical services
86	providers, and physicians be able to ensure that patients who
87	might need emergency medical services treatment or
88	transportation or who seek emergency medical services and care
89	from hospitals have access to such needed services.
90	(3) DEFINITIONS.--As used in this section, the term:
91	(a) "Contract" means an agreement executed in compliance
92	with this section between a provider of emergency medical
93	services and care and a governmental contractor. This contract
94	must allow the provider of emergency medical services and care
95	to provide such services and care as an agent of the
96	governmental contractor. The contract must state that services
97	will be provided for each patient who requests prehospital
98	treatment or transportation under the applicable local protocols
99	and for each patient to whom emergency medical services and care
100	are provided when such services and care are requested as
101	provided in s. 395.1041(3)(a).
102	(b) "Department" means the Department of Health.
103	(c) "Emergency medical services and care" means medical
104	screening, examination, and evaluation by a physician, or, to
105	the extent permitted by applicable law, by other appropriate
106	personnel under the supervision of a physician, to determine if
107	an emergency medical condition exists and, if it does, the care,
108	treatment, or surgery related to that emergency medical
109	condition which is provided by a physician or other provider of
110	emergency medical services and care until the patient is
111	discharged from the hospital. The term "emergency medical
112	services and care" also includes prehospital treatment and
113	transport and medically necessary interhospital transfers by
114	providers of emergency medical services who are licensed under
115	chapter 401 as provided in ss. 401.45 and 395.1041. The term
116	also includes all services provided by emergency physicians in a
117	hospital setting, services related to the emergency medical
118	condition which are provided by on-call physicians in response
119	to calls from the emergency department, and care provided by
120	other health care professionals handling emergency care in a
121	hospital or emergency medical services setting.
122	(d) "Governmental contractor" means the department, a
123	county health department, a special taxing district that has
124	health care responsibilities, a hospital owned and operated by a
125	governmental entity, a municipality, a county, or a political
126	subdivision.
127	(e) "Provider of emergency medical services and care"
128	means:
129	1. An emergency medical services provider licensed under
130	chapter 401.
131	2. A hospital licensed under chapter 395.
132	3. A physician or physician assistant licensed under
133	chapter 458.
134	4. An osteopathic physician or osteopathic physician
135	assistant licensed under chapter 459.
136	5. A chiropractic physician licensed under chapter 460.
137	6. A podiatric physician licensed under chapter 461.
138	7. An emergency medical technician or paramedic certified
139	under chapter 401.
140	8. A registered nurse, nurse midwife, licensed practical
141	nurse, or advanced registered nurse practitioner licensed or
142	registered under part I of chapter 464.
143	9. A midwife licensed under chapter 467.
144	10. A health care professional association and its
145	employees or a corporate medical group and its employees.
146	11. Any other health care professional practitioner,
147	provider, or facility that is under contract with a governmental
148	contractor, including, but not limited to, a student or medical
149	resident who is enrolled in an accredited program that prepares
150	the student for licensure or certification in any one of the
151	professions listed in subparagraphs 3.-9.
152	(4) CONTRACT REQUIREMENTS.--A provider of emergency
153	medical services and care which executes a contract with a
154	governmental contractor to deliver emergency medical services
155	and care after June 30, 2003, as an agent of the governmental
156	contractor is an agent for purposes of s. 768.28(9) while acting
157	within the scope of its duties under the contract. A provider of
158	emergency medical services and care which is under contract with
159	the state or with a governmental contractor may not be named as
160	a defendant in any action arising out of emergency medical
161	services or care, transport, or treatment provided after June
162	30, 2003, pursuant to a contract entered into under this
163	section. The contract must provide that:
164	(a) The governmental contractor retains the right of
165	dismissal or termination of any provider of emergency medical
166	services and care which is delivering services under the
167	contract.
168	(b) The governmental contractor has access to the patient
169	records of any provider of emergency medical services and care
170	under the contract.
171	(c) The provider of emergency medical services and care
172	shall report adverse incidents and information on treatment
173	outcomes to the state as required by state law. Such incidents
174	must also be reported to the governmental contractor if required
175	by the contract. Reporting requirements imposed under this
176	paragraph may not be construed to waive confidentiality as
177	otherwise provided by state or federal law.
178	(d) Providers of emergency medical services and care must
179	accept all patients who request such services in the manner
180	provided in s. 395.1041(3)(a) or s. 401.45.
181	(e) The provider is subject to supervision and regular
182	inspection by the governmental contractor.
183
184	A governmental contractor that is also a health care provider
185	need not enter into a contract under this section with respect
186	to the health care services delivered by its employees or
187	agents. The provisions of this section which apply to the
188	governmental contractor also apply to the employees or agents of
189	the governmental contractor.
190	(5) NOTICE OF AGENCY RELATIONSHIP.--Each hospital that has
191	a contract under this section shall place conspicuously in the
192	emergency services area a sign providing notice that the
193	hospital is a provider of emergency medical services and care,
194	that its employees and agents are agents of the governmental
195	contractor, and that the exclusive remedy for injury or damages
196	suffered as the result of any act or omission of the provider or
197	of any employee or agent thereof acting within the scope of its
198	duties under the contract is by commencement of an action under
199	s. 768.28. With respect to an emergency medical services
200	provider, such notice must be given in a manner provided under
201	the contract with the governmental contractor.
202	(6) QUALITY ASSURANCE PROGRAM.--The governmental
203	contractor shall establish or require a quality assurance
204	program to monitor services delivered under any contract with a
205	provider of emergency medical services and care under this
206	section.
207	(7) RISK MANAGEMENT REPORT.--The Division of Risk
208	Management of the Department of Insurance annually shall compile
209	a report of all claims statistics for all entities participating
210	in the risk management program administered by the division,
211	which must include the number and total of all claims pending
212	and paid and the defense and handling costs associated with all
213	claims brought against contract providers under this section.
214	The division shall forward this report to the department and
215	shall include it in the annual report submitted to the
216	Legislature under this section.
217	(8) MALPRACTICE LITIGATION COSTS.--In the absence of a
218	specific contractual provision, providers of emergency medical
219	services and care and governmental contractors are responsible
220	for their own costs and attorney's fees for malpractice
221	litigation arising out of health care services delivered under
222	this section. Responsibility for the payment of such costs may
223	be addressed specifically in the contract between the provider
224	of emergency medical services and care and the governmental
225	contractor.
226	(9) LIMITS ON LIABILITY.--Solely for the purposes of this
227	section, the liability limits of the state and its agencies and
228	subdivisions shall be as provided in s. 768.28(5) for tort
229	claims, except that the state or its agencies or subdivisions
230	are not liable for a claim or a judgment by any one person which
231	exceeds the sum of $200,000 or for any claim or judgment, or
232	portions thereof, which, when totaled with all other claims or
233	judgments paid by the state or its agencies or subdivisions
234	arising out of the same incident or occurrence, exceeds the sum
235	of $400,000. This section does not modify liability limits
236	provided in s. 768.28(5) for the state or for its agencies and
237	subdivisions that possessed sovereign immunity before July 1,
238	2003.
239	(10) RULES.--The department may adopt rules for
240	administering this section in a manner consistent with its
241	purpose to provide and facilitate access to emergency medical
242	services and care and to maintain health care quality.
243	(11) APPLICABILITY.--This section applies to incidents
244	that occur on or after July 1, 2003. This section does not
245	reduce or limit the rights of the state or of any of its
246	agencies or subdivisions to any benefit provided under s. 768.28
247	on that date.
248	Section 2. Subsection (6) of section 766.102, Florida
249	Statutes, is amended to read:
250	766.102 Medical negligence; standards of recovery.--
251	(6)(a) In any action for damages involving a claim of
252	negligence against a physician licensed under chapter 458,
253	osteopathic physician licensed under chapter 459, podiatric
254	physician licensed under chapter 461, or chiropractic physician
255	licensed under chapter 460 providing emergency medical services
256	in a hospital emergency department, the court shall admit expert
257	medical testimony only from physicians, osteopathic physicians,
258	podiatric physicians, and chiropractic physicians who have had
259	substantial professional experience within the preceding 5 years
260	while assigned to provide emergency medical services and carein
261	a hospital emergency department.
262	(b) For the purposes of this subsection:
263	1. The term "emergency medical services and care" means
264	medical screening, examination, and evaluation by a physician,
265	or, to the extent permitted by applicable law, by other
266	appropriate personnel under the supervision of a physician, to
267	determine if an emergency medical condition exists and, if it
268	does, the care, treatment, or surgery by a physician which is
269	necessary to relieve or eliminate the emergency medical
270	conditionthose medical services required for the immediate
271	diagnosis and treatment of medical conditions which, if not
272	immediately diagnosed and treated, could lead to serious
273	physical or mental disability or death.
274	2. "Substantial professional experience" shall be
275	determined by the custom and practice of the manner in which
276	emergency medical coverage is provided in hospital emergency
277	departments in the same or similar localities where the alleged
278	negligence occurred.
279	Section 3. Section 766.203, Florida Statutes, is amended
280	to read:
281	766.203 Presuit investigation of medical negligence claims
282	and defenses by prospective parties.--
283	(1) Presuit investigation of medical negligence claims and
284	defenses pursuant to this section and ss. 766.204-766.206
285	appliesshall applyto all medical negligence, including dental
286	negligence, claims, and defenses. This includesshall include:
287	(a) Rights of action under s. 768.19 and defenses thereto.
288	(b) Rights of action involving the state or its agencies
289	or subdivisions, or the officers, employees, or agents thereof,
290	pursuant to s. 768.28 and defenses thereto.
291	(2) Prior to issuing notification of intent to initiate
292	medical malpractice litigation pursuant to s. 766.106, the
293	claimant shall conduct an investigation to ascertain that there
294	are reasonable grounds to believe that:
295	(a) Any named defendant in the litigation was negligent in
296	the care or treatment of the claimant; and
297	(b) Such negligence resulted in injury to the claimant.
298
299	Corroboration of reasonable grounds to initiate medical
300	negligence litigation mustshallbe provided by the claimant's
301	submission of a verified written medical expert opinion from a
302	medical expert as defined in s. 766.202(5) and, with respect to
303	claims involving emergency medical services and care as defined
304	in s. 766.102, from an expert who has the qualifications
305	required under s. 766.102, at the time the notice of intent to
306	initiate litigation is mailed, which statement mustshall
307	corroborate reasonable grounds to support the claim of medical
308	negligence.
309	(3) Prior to issuing its response to the claimant's notice
310	of intent to initiate litigation, during the time period for
311	response authorized pursuant to s. 766.106, the defendant or the
312	defendant's insurer or self-insurer shall conduct an
313	investigation to ascertain whether there are reasonable grounds
314	to believe that:
315	(a) The defendant was negligent in the care or treatment
316	of the claimant; and
317	(b) Such negligence resulted in injury to the claimant.
318
319	Corroboration of lack of reasonable grounds for medical
320	negligence litigation mustshallbe provided with any response
321	rejecting the claim by the defendant's submission of a verified
322	written medical expert opinion from a medical expert as defined
323	in s. 766.202(5) and, with respect to claims involving emergency
324	medical services and care as defined in s. 766.102, from an
325	expert who has the qualifications required under s. 766.102, at
326	the time the response rejecting the claim is mailed, which
327	statement mustshallcorroborate reasonable grounds for lack of
328	negligent injury sufficient to support the response denying
329	negligent injury.
330	(4) The medical expert opinions required by this section
331	mustshallspecify whether any previous opinion by the same
332	medical expert has been disqualified and, if so,the name of the
333	court and the case number in which the ruling was issued.
334	Section 4. Section 768.13, Florida Statutes, is amended to
335	read:
336	(Substantial rewording of section. See
337	s. 768.13, F.S., for present text.)
338	768.13 Good Samaritan Act; immunity from civil
339	liability.--
340	(1) This act may be cited as the "Good Samaritan Act."
341	(2)(a) Any provider of emergency medical services and care
342	which in good faith renders emergency medical services and care
343	may not be held liable for any civil damages as a result of such
344	services and care unless such damages result from providing or
345	failing to provide medical care or treatment under circumstances
346	demonstrating intentional wrongdoing and intent to detrimentally
347	affect the life or health of another.
348	(b) The immunity provided by this subsection does not
349	apply to damages resulting from any act or omission in providing
350	medical care or treatment which:
351	1. Does not constitute emergency medical services and
352	care;
353	2. Occurs after the patient is discharged from the
354	hospital and is capable of receiving medical treatment as a
355	nonemergency patient unless surgery is required as a result of
356	the emergency within a reasonable time after the patient has
357	been discharged from the hospital, in which case the immunity
358	provided by this paragraph applies to any act or omission in
359	providing medical care or treatment which occurs before the
360	stabilization of the patient following the surgery; or
361	3. Is unrelated to the original emergency medical
362	condition.
363	(c) As used in this subsection, the term:
364	1. "Emergency medical services and care" means medical
365	screening, examination, and evaluation by a physician, or, to
366	the extent permitted by applicable law, by other appropriate
367	personnel under the supervision of a physician, to determine if
368	an emergency medical condition exists and, if it does, the care,
369	treatment, or surgery related to that emergency medical
370	condition which is provided by a physician or other provider of
371	emergency medical services and care until the patient is
372	discharged from the hospital. The term "emergency medical
373	services and care" also includes prehospital treatment and
374	transport and medically necessary interhospital transfers by
375	providers of emergency medical services who are licensed under
376	chapter 401 as provided in ss. 401.45 and 395.1041. The term
377	also includes all services provided by emergency physicians in a
378	hospital setting, services related to the emergency medical
379	condition which are provided by on-call physicians in response
380	to calls from the emergency department, and care provided by
381	other health care professionals handling emergency care in a
382	hospital or emergency medical services setting.
383	2. "Provider of emergency medical services and care"
384	means:
385	a. An emergency medical services provider licensed under
386	chapter 401.
387	b. A hospital licensed under chapter 395.
388	c. A physician or physician assistant licensed under
389	chapter 458.
390	d. An osteopathic physician or osteopathic physician
391	assistant licensed under chapter 459.
392	e. A chiropractic physician licensed under chapter 460.
393	f. A podiatric physician licensed under chapter 461.
394	g. An emergency medical technician or paramedic certified
395	under chapter 401.
396	h. A registered nurse, nurse midwife, licensed practical
397	nurse, or advanced registered nurse practitioner licensed or
398	registered under part I of chapter 464.
399	i. A midwife licensed under chapter 467.
400	j. A health care professional association and its
401	employees or a corporate medical group and its employees.
402	k. Any other health care professional practitioner,
403	provider, or facility that is under contract with a governmental
404	contractor, including, but not limited to, a student or medical
405	resident who is enrolled in an accredited program that prepares
406	the student for licensure or certification in any one of the
407	professions listed in subparagraphs c.-i.
408	3. "Intentional wrongdoing," as it applies to a given
409	health care provider rendering emergency medical services and
410	care, means conduct that a health care provider knew, at the
411	time he or she rendered the services, would result in injury
412	affecting the life or health of another.
413	Section 5. If any provision of this act or its application
414	to any person or circumstance is held invalid, the invalidity
415	does not affect other provisions or applications of this act
416	which can be given effect without the invalid provision or
417	application, and to this end the provisions of this act are
418	severable.
419	Section 6. This act shall take effect July 1, 2003, and
420	applies to any cause of action filed after June 30, 2003.