HOUSE AMENDMENT Bill No. HB 1713
1	CHAMBER ACTION
2	Senate House
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12	Representatives Ambler and Homan offered the following:
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14	Amendment (with title amendment)
15	Remove line(s) 1010-1098, and insert:
16	Section 25. Subsections (3) and (4) and paragraph (a) of
17	subsection (10) of section 766.106, Florida Statutes, are
18	amended, and subsections (13) and (14) are added to said
19	section, to read:
20	766.106 Notice before filing action for medical
21	malpractice; presuit screening period; offers for admission of
22	liability and for arbitration; informal discovery; review.--
23	(3)(a) No suit may be filed for a period of 18090days
24	after notice is mailed to any prospective defendant. During the
25	180-day90-dayperiod, the prospective defendant's insurer or
26	self-insurer shall conduct a review to determine the liability
27	of the defendant. Each insurer or self-insurer shall have a
28	procedure for the prompt investigation, review, and evaluation
29	of claims during the 180-day90-dayperiod. This procedure shall
30	include one or more of the following:
31	1. Internal review by a duly qualified claims adjuster;
32	2. Creation of a panel comprised of an attorney
33	knowledgeable in the prosecution or defense of medical
34	malpractice actions, a health care provider trained in the same
35	or similar medical specialty as the prospective defendant, and a
36	duly qualified claims adjuster;
37	3. A contractual agreement with a state or local
38	professional society of health care providers, which maintains a
39	medical review committee;
40	4. Any other similar procedure which fairly and promptly
41	evaluates the pending claim.
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43	Each insurer or self-insurer shall investigate the claim in good
44	faith, and both the claimant and prospective defendant shall
45	cooperate with the insurer in good faith. If the insurer
46	requires, a claimant shall appear before a pretrial screening
47	panel or before a medical review committee and shall submit to a
48	physical examination, if required. Unreasonable failure of any
49	party to comply with this section justifies dismissal of claims
50	or defenses. There shall be no civil liability for participation
51	in a pretrial screening procedure if done without intentional
52	fraud.
53	(b) At or before the end of the 18090days, the insurer
54	or self-insurer shall provide the claimant with a response:
55	1. Rejecting the claim;
56	2. Making a settlement offer; or
57	3. Making an offer of admission of liability and for
58	arbitration on the issue of damages. This offer may be made
59	contingent upon a limit of general damages.
60	(c) The response shall be delivered to the claimant if not
61	represented by counsel or to the claimant's attorney, by
62	certified mail, return receipt requested. Failure of the
63	prospective defendant or insurer or self-insurer to reply to the
64	notice within 18090days after receipt shall be deemed a final
65	rejection of the claim for purposes of this section.
66	(d) Within 30 days afterofreceipt of a response by a
67	prospective defendant, insurer, or self-insurer to a claimant
68	represented by an attorney, the attorney shall advise the
69	claimant in writing of the response, including:
70	1. The exact nature of the response under paragraph (b).
71	2. The exact terms of any settlement offer, or admission
72	of liability and offer of arbitration on damages.
73	3. The legal and financial consequences of acceptance or
74	rejection of any settlement offer, or admission of liability,
75	including the provisions of this section.
76	4. An evaluation of the time and likelihood of ultimate
77	success at trial on the merits of the claimant's action.
78	5. An estimation of the costs and attorney's fees of
79	proceeding through trial.
80	(4) The notice of intent to initiate litigation shall be
81	served within the time limits set forth in s. 95.11. However,
82	during the 180-day90-dayperiod, the statute of limitations is
83	tolled as to all potential defendants. Upon stipulation by the
84	parties, the 180-day90-dayperiod may be extended and the
85	statute of limitations is tolled during any such extension. Upon
86	receiving notice of termination of negotiations in an extended
87	period, the claimant shall have 60 days or the remainder of the
88	period of the statute of limitations, whichever is greater,
89	within which to file suit.
90	(10) If a prospective defendant makes an offer to admit
91	liability and for arbitration on the issue of damages, the
92	claimant has 50 days from the date of receipt of the offer to
93	accept or reject it. The claimant shall respond in writing to
94	the insurer or self-insurer by certified mail, return receipt
95	requested. If the claimant rejects the offer, he or she may then
96	file suit. Acceptance of the offer of admission of liability and
97	for arbitration waives recourse to any other remedy by the
98	parties, and the claimant's written acceptance of the offer
99	shall so state.
100	(a) If rejected, the offer to admit liability and for
101	arbitration on damages is not admissible in any subsequent
102	litigation. Upon rejection of the offer to admit liability and
103	for arbitration, the claimant has 60 days from receipt of the
104	rejection of the offer to admit liability and for arbitration,
105	60 days from the date of the declaration of impasse during
106	presuit mediation conducted pursuant to s. 766.1065,or the
107	remainder of the period of the statute of limitations, whichever
108	period is greater, in which to file suit.
109	(13) In matters relating to professional liability
110	insurance coverage for medical negligence, an insurer shall not
111	be held in bad faith for failure to timely pay its policy limits
112	if it tenders its policy limits and meets all other conditions
113	of settlement prior to the conclusion of the presuit screening
114	period provided for in this section.
115	(14) Failure to cooperate on the part of any party during
116	the presuit investigation may be grounds to strike any claim
117	made, or defense raised, by such party in suit.
118	Section 26. Section 766.1065, Florida Statutes, is created
119	to read:
120	766.1065 Mandatory staging of presuit investigation and
121	mandatory mediation.--
122	(1) Within 30 days after service of the presuit notice of
123	intent to initiate medical malpractice litigation, each party
124	shall voluntarily produce to all other parties, without being
125	requested, any and all medical, hospital, health care, and
126	employment records concerning the claimant in the disclosing
127	party’s possession, custody, or control, and the disclosing
128	party shall affirmatively certify in writing that the records
129	produced include all records in that party’s possession,
130	custody, or control or that the disclosing party has no medical,
131	hospital, health care, or employment records concerning the
132	claimant.
133	(a) Subpoenas may be issued according to the Florida Rules
134	of Civil Procedure as though suit had been filed for the limited
135	purpose of obtaining copies of medical, hospital, health care,
136	and employment records of the claimant. The party shall indicate
137	on the subpoena that it is being issued in accordance with the
138	presuit procedures of this section and shall not be required to
139	include a case number.
140	(b) Nothing in this section shall limit the ability of any
141	party to use any other available form of presuit discovery
142	available under this chapter or the Florida Rules of Civil
143	Procedure.
144	(2) Within 60 days after service of the presuit notice of
145	intent to initiate medical malpractice litigation, all parties
146	must be made available for a sworn deposition. Such deposition
147	may not be used in a civil suit for medical negligence.
148	(3) Within 120 days after service of the presuit notice of
149	intent to initiate medical malpractice litigation, each party’s
150	corroborating expert, who will otherwise be tendered as the
151	expert complying with the affidavit provisions set forth in s.
152	766.203, must be made available for a sworn deposition.
153	(a) The expenses associated with the expert’s time and
154	travel in preparing for and attending such deposition shall be
155	the responsibility of the party retaining such expert.
156	(b) An expert shall be deemed available for deposition if
157	suitable accommodations can be made for appearance of said
158	expert via real-time video technology.
159	(4) Within 180 days after service of the presuit notice of
160	intent to initiate medical malpractice litigation, all parties
161	shall attend in-person mandatory mediation in accordance with s.
162	44.102 if binding arbitration under s. 766.106 or s. 766.207 has
163	not been agreed to by the parties. The Florida Rules of Civil
164	Procedure shall apply to mediation held pursuant to this
165	section.
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168	================= T I T L E A M E N D M E N T =================
169	Remove line(s) 70-72, and insert:
170	revising provisions relating to a claimant's period to
171	file suit after rejection of a prospective defendant's
172	offer to admit liability and for arbitration on the issue
173	of damages; specifying consequences of failure to
174	cooperate on the part of any party during the presuit
175	investigation; creating s. 766.1065, F.S.; requiring
176	parties to provide certain information to parties without
177	request; authorizing the issuance of subpoenas without
178	case numbers; requiring that parties and certain experts
179	be made available for deposition; providing for mandatory
180	presuit mediation; creating s. 766.1067, F.S.; providing
181	for