HB 1713 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing
3	legislative findings; creating s. 395.1012, F.S.;
4	requiring hospitals, ambulatory surgical centers, and
5	mobile surgical facilities to establish patient safety
6	plans and committees; creating s. 395.1051, F.S.;
7	providing for notification of injuries in a hospital,
8	ambulatory surgical center, or mobile surgical facility;
9	amending s. 456.041, F.S.; requiring additional
10	information to be included in health care practitioner
11	profiles; providing for fines; revising requirements for
12	the reporting of paid liability claims; amending s.
13	456.042, F.S.; requiring health care practitioner profiles
14	to be updated within a specific time period; amending s.
15	456.049, F.S.; revising requirements for the reporting of
16	paid liability claims; amending s. 456.057, F.S.;
17	authorizing the Department of Health to utilize subpoenas
18	to obtain patient records without patients' consent under
19	certain circumstances; amending s. 456.072, F.S.;
20	authorizing the Department of Health to determine
21	administrative costs in disciplinary actions; amending s.
22	456.073, F.S.; extending the time for the Department of
23	Health to refer a request for an administrative hearing;
24	amending s. 456.077, F.S.; revising provisions relating to
25	designation of certain citation violations; amending s.
26	456.078, F.S.; revising provisions relating to designation
27	of certain mediation offenses; creating s. 456.085, F.S.;
28	providing for notification of an injury by a physician;
29	amending s. 458.307, F.S.; revising membership of the
30	Board of Medicine; amending s. 458.331, F.S.; increasing
31	the amount of paid liability claims requiring
32	investigation by the Department of Health; revising the
33	definition of "repeated malpractice" to conform; creating
34	s. 458.3311, F.S.; establishing emergency procedures for
35	disciplinary actions; amending s. 459.004, F.S.; revising
36	membership of the Board of Osteopathic Medicine; amending
37	s. 459.015, F.S.; increasing the amount of paid liability
38	claims requiring investigation by the Department of
39	Health; revising the definition of "repeated malpractice"
40	to conform; creating s. 459.0151, F.S.; establishing
41	emergency procedures for disciplinary actions; amending s.
42	461.013, F.S.; increasing the amount of paid liability
43	claims requiring investigation by the Department of
44	Health; revising the definition of "repeated malpractice"
45	to conform; amending s. 627.062, F.S.; prohibiting the
46	inclusion of payments made by insurers for bad faith
47	claims in an insurer's rate base; requiring annual rate
48	filings; amending s. 627.357, F.S.; deleting the
49	prohibition against formation of medical malpractice self-
50	insurance funds; providing requirements to form a self-
51	insurance fund; providing rulemaking authority to the
52	Financial Services Commission; creating s. 627.3575, F.S.;
53	creating the Health Care Professional Liability Insurance
54	Facility; providing purpose; providing for governance and
55	powers; providing eligibility requirements; providing for
56	premiums and assessments; providing for regulation;
57	providing applicability; specifying duties of the
58	Department of Health; providing for debt and regulation
59	thereof; amending s. 627.912, F.S.; requiring certain
60	claims information to be filed with the Office of
61	Insurance Regulation and the Department of Health;
62	providing for rulemaking by the Financial Services
63	Commission; creating s. 627.9121, F.S.; requiring certain
64	information relating to medical malpractice to be reported
65	to the Office of Insurance Regulation; providing for
66	enforcement; amending s. 766.106, F.S.; extending the time
67	period for the presuit screening period; providing
68	conditions for causes of action for bad faith against
69	insurers providing coverage for medical negligence;
70	creating s. 766.1065, F.S.; authorizing presuit mediation
71	in medical negligence cases; providing for confidentiality
72	of information; creating s. 766.1067, F.S.; providing for
73	mandatory mediation in medical negligence causes of
74	action; requiring offers of settlement and demands for
75	judgment; establishing assessments by the court; creating
76	s. 766.118, F.S.; providing a limitation on noneconomic
77	damages which can be awarded in causes of action involving
78	medical negligence; amending s. 766.202, F.S.; providing
79	requirements for medical experts; amending s. 766.203,
80	F.S.; providing for discovery and admissibility of
81	opinions and statements tendered during presuit
82	investigation; amending s. 766.207, F.S.; conforming
83	provisions to the extension in the time period for presuit
84	investigation; requiring the Department of Health to study
85	the efficacy and constitutionality of medical review
86	panels; requiring a report; amending s. 768.81, F.S.;
87	providing that a defendant's liability for damages in
88	medical negligence cases is several only; creating s.
89	1004.08, F.S.; requiring patient safety instruction for
90	certain students in public schools, colleges, and
91	universities; creating s. 1005.07, F.S.; requiring patient
92	safety instruction for certain students in nonpublic
93	schools, colleges, and universities; requiring a report by
94	the Agency for Health Care Administration regarding
95	information to be provided to health care consumers;
96	requiring a report by the Agency for Health Care
97	Administration regarding the establishment of a Patient
98	Safety Authority; specifying elements of the report;
99	repealing s. 768.21(8), F.S., relating to damages for
100	wrongful death; removing the prohibition against certain
101	parties from bringing suit for wrongful death as a result
102	of medical negligence; amending ss. 400.023, 400.0235, and
103	400.4295, F.S.; correcting cross references; providing
104	severability; providing an effective date.
105
106	Be It Enacted by the Legislature of the State of Florida:
107
108	Section 1. Findings.--
109	(1) The Legislature finds that Florida is in the midst of
110	a medical malpractice insurance crisis of unprecedented
111	magnitude.
112	(2) The Legislature finds that this crisis threatens the
113	quality and availability of health care for all Florida
114	citizens.
115	(3) The Legislature finds that the rapidly growing
116	population and the changing demographics of Florida make it
117	imperative that students continue to choose Florida as the place
118	they will receive their medical educations and practice
119	medicine.
120	(4) The Legislature finds that Florida is among the states
121	with the highest medical malpractice insurance premiums in the
122	nation.
123	(5) The Legislature finds that the cost of medical
124	malpractice insurance has increased dramatically during the past
125	decade and both the increase and the current cost are
126	substantially higher than the national average.
127	(6) The Legislature finds that the increase in medical
128	malpractice liability insurance rates is forcing physicians to
129	practice medicine without professional liability insurance, to
130	leave Florida, to not perform high-risk procedures, or to retire
131	early from the practice of medicine.
132	(7) The Legislature finds that there are certain elements
133	of damage presently recoverable that have no monetary value,
134	except on a purely arbitrary basis, while other elements of
135	damage are either easily measured on a monetary basis or reflect
136	ultimate monetary loss.
137	(8) The Governor created the Governor's Select Task Force
138	on Healthcare Professional Liability Insurance to study and make
139	recommendations to address these problems.
140	(9) The Legislature has reviewed the findings and
141	recommendations of the Governor's Select Task Force on
142	Healthcare Professional Liability Insurance.
143	(10) The Legislature finds that the Governor's Select Task
144	Force on Healthcare Professional Liability Insurance has
145	established that a medical malpractice crisis exists in the
146	State of Florida which can be alleviated by the adoption of
147	comprehensive legislatively enacted reforms.
148	(11) The Legislature finds that making high-quality health
149	care available to the citizens of this state is an overwhelming
150	public necessity.
151	(12) The Legislature finds that ensuring that physicians
152	continue to practice in Florida is an overwhelming public
153	necessity.
154	(13) The Legislature finds that ensuring the availability
155	of affordable professional liability insurance for physicians is
156	an overwhelming public necessity.
157	(14) The Legislature finds, based upon the findings and
158	recommendations of the Governor's Select Task Force on
159	Healthcare Professional Liability Insurance, the findings and
160	recommendations of various study groups throughout the nation,
161	and the experience of other states, that the overwhelming public
162	necessities of making quality health care available to the
163	citizens of this state, of ensuring that physicians continue to
164	practice in Florida, and of ensuring that those physicians have
165	the opportunity to purchase affordable professional liability
166	insurance cannot be met unless a cap on noneconomic damages in
167	an amount no higher than $250,000 is imposed.
168	(15) The Legislature finds that the high cost of medical
169	malpractice claims can be substantially alleviated by imposing a
170	limitation on noneconomic damages in medical malpractice
171	actions.
172	(16) The Legislature further finds that there is no
173	alternative measure of accomplishing such result without
174	imposing even greater limits upon the ability of persons to
175	recover damages for medical malpractice.
176	(17) The Legislature finds that the provisions of this act
177	are naturally and logically connected to each other and to the
178	purpose of making quality health care available to the citizens
179	of Florida.
180	(18) The Legislature finds that each of the provisions of
181	this act is necessary to alleviate the crisis relating to
182	medical malpractice insurance.
183	Section 2. Section 395.1012, Florida Statutes, is created
184	to read:
185	395.1012 Patient safety.--
186	(1) Each licensed facility shall adopt a patient safety
187	plan. A plan adopted to implement the requirements of 42 C.F.R.
188	s. 482.21 shall be deemed to comply with this requirement.
189	(2) Each licensed facility shall appoint a patient safety
190	officer and a patient safety committee, which shall include at
191	least one person who is neither employed by nor practicing in
192	the facility, for the purpose of promoting the health and safety
193	of patients, reviewing and evaluating the quality of patient
194	safety measures used by the facility, and assisting in the
195	implementation of the facility patient safety plan.
196	Section 3. Section 395.1051, Florida Statutes, is created
197	to read:
198	395.1051 Duty to notify patients.--Every licensed facility
199	shall inform each patient, or an individual identified pursuant
200	to s. 765.401(1), in person about unanticipated outcomes of care
201	that result in serious harm to the patient. Notification of
202	outcomes of care that result in harm to the patient under this
203	section shall not constitute an acknowledgement or admission of
204	liability, nor can it be introduced as evidence in any civil
205	lawsuit.
206	Section 4. Section 456.041, Florida Statutes, is amended
207	to read:
208	456.041 Practitioner profile; creation.--
209	(1)(a)Beginning July 1, 1999, the Department of Health
210	shall compile the information submitted pursuant to s. 456.039
211	into a practitioner profile of the applicant submitting the
212	information, except that the Department of Health may develop a
213	format to compile uniformly any information submitted under s.
214	456.039(4)(b). Beginning July 1, 2001, the Department of Health
215	may, and beginning July 1, 2004, shall,compile the information
216	submitted pursuant to s. 456.0391 into a practitioner profile of
217	the applicant submitting the information.
218	(b) Each practitioner licensed under chapter 458 or
219	chapter 459 must report to the Department of Health and the
220	Board of Medicine or the Board of Osteopathic Medicine,
221	respectively, all final disciplinary actions, sanctions by a
222	governmental agency or a facility or entity licensed under state
223	law, and claims or actions, as provided under s. 456.051, to
224	which he or she is subjected no later than 15 calendar days
225	after such action or sanction is imposed. Failure to submit the
226	requisite information within 15 calendar days in accordance with
227	this paragraph shall subject the practitioner to discipline by
228	the Board of Medicine or the Board of Osteopathic Medicine and a
229	fine of $100 for each day that the information is not submitted
230	after the expiration of the 15-day reporting period.
231	(c) Within 15 days after receiving a report under
232	paragraph (b), the department shall update the practitioner's
233	profile in accordance with the requirements of subsection (7).
234	(2) On the profile published under subsection (1), the
235	department shall indicate whetherifthe information provided
236	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
237	corroborated by a criminal history check conducted according to
238	this subsection. If the information provided under s.
239	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
240	criminal history check, the fact that the criminal history check
241	was performed need not be indicated on the profile.The
242	department, or the board having regulatory authority over the
243	practitioner acting on behalf of the department, shall
244	investigate any information received by the department or the
245	board when it has reasonable grounds to believe that the
246	practitioner has violated any law that relates to the
247	practitioner's practice.
248	(3) The Department of Health shallmayinclude in each
249	practitioner's practitioner profile that criminal information
250	that directly relates to the practitioner's ability to
251	competently practice his or her profession. The department must
252	include in each practitioner's practitioner profile the
253	following statement: "The criminal history information, if any
254	exists, may be incomplete; federal criminal history information
255	is not available to the public." The department shall provide in
256	each practitioner profile, for every final disciplinary action
257	taken against the practitioner, a narrative description, written
258	in plain English, that explains the administrative complaint
259	filed against the practitioner and the final disciplinary action
260	imposed on the practitioner. The department shall include a
261	hyperlink to each final order listed on its Internet website
262	report of dispositions of recent disciplinary actions taken
263	against practitioners.
264	(4) The Department of Health shall include, with respect
265	to a practitioner licensed under chapter 458 or chapter 459, a
266	statement of how the practitioner has elected to comply with the
267	financial responsibility requirements of s. 458.320 or s.
268	459.0085. The department shall include, with respect to
269	practitioners subject to s. 456.048, a statement of how the
270	practitioner has elected to comply with the financial
271	responsibility requirements of that section. The department
272	shall include, with respect to practitioners licensed under
273	chapter 458, chapter 459, or chapter 461, information relating
274	to liability actions which has been reported under s. 456.049 or
275	s. 627.912 within the previous 10 years for any paid claim of
276	$50,000 or morethat exceeds $5,000. Such claims information
277	shall be reported in the context of comparing an individual
278	practitioner's claims to the experience of other practitioners
279	within the same specialty, or profession if the practitioner is
280	not a specialist, to the extent such information is available to
281	the Department of Health. The department shall include a
282	hyperlink to all such comparison reports in such practitioner's
283	profile on its Internet website.If information relating to a
284	liability action is included in a practitioner's practitioner
285	profile, the profile must also include the following statement:
286	"Settlement of a claim may occur for a variety of reasons that
287	do not necessarily reflect negatively on the professional
288	competence or conduct of the practitioner. A payment in
289	settlement of a medical malpractice action or claim should not
290	be construed as creating a presumption that medical malpractice
291	has occurred."
292	(5) The Department of Health shallmay not include the
293	date of adisciplinary action taken by a licensed hospital or an
294	ambulatory surgical center, in accordance with the requirements
295	of s. 395.0193, in the practitioner profile. Any practitioner
296	disciplined under paragraph (1)(b) must report to the department
297	the date the disciplinary action was imposed. The department
298	shall state whether the action is related to professional
299	competence and whether it is related to the delivery of services
300	to a patient.
301	(6) The Department of Health may include in the
302	practitioner's practitioner profile any other information that
303	is a public record of any governmental entity and that relates
304	to a practitioner's ability to competently practice his or her
305	profession. However, the department must consult with the board
306	having regulatory authority over the practitioner before such
307	information is included in his or her profile.
308	(7) Upon the completion of a practitioner profile under
309	this section, the Department of Health shall furnish the
310	practitioner who is the subject of the profile a copy of it. The
311	practitioner has a period of 30 days in which to review the
312	profile and to correct any factual inaccuracies in it. The
313	Department of Health shall make the profile available to the
314	public at the end of the 30-day period. The department shall
315	make the profiles available to the public through the World Wide
316	Web and other commonly used means of distribution.
317	(8) The Department of Health shall provide in each profile
318	an easy-to-read explanation of any disciplinary action taken and
319	the reason the sanction or sanctions were imposed.
320	(9)(8)Making a practitioner profile available to the
321	public under this section does not constitute agency action for
322	which a hearing under s. 120.57 may be sought.
323	Section 5. Section 456.042, Florida Statutes, is amended
324	to read:
325	456.042 Practitioner profiles; update.--A practitioner
326	must submit updates of required information within 15 days after
327	the final activity that renders such information a fact.The
328	Department of Health shall update each practitioner's
329	practitioner profile periodically. An updated profile is subject
330	to the same requirements as an original profile with respect to
331	the period within which the practitioner may review the profile
332	for the purpose of correcting factual inaccuracies.
333	Section 6. Subsection (1) of section 456.049, Florida
334	Statutes, is amended, and subsection (3) is added to said
335	section, to read:
336	456.049 Health care practitioners; reports on professional
337	liability claims and actions.--
338	(1) Any practitioner of medicine licensed pursuant to the
339	provisions of chapter 458, practitioner of osteopathic medicine
340	licensed pursuant to the provisions of chapter 459, podiatric
341	physician licensed pursuant to the provisions of chapter 461, or
342	dentist licensed pursuant to the provisions of chapter 466 shall
343	report to the department any claim or action for damages for
344	personal injury alleged to have been caused by error, omission,
345	or negligence in the performance of such licensee's professional
346	services or based on a claimed performance of professional
347	services without consent if the claim was not covered by an
348	insurer required to report under s. 627.912 andthe claim
349	resulted in:
350	(a) A final judgment of $50,000 or more or, with respect
351	to a dentist licensed pursuant to chapter 466, a final judgment
352	of $25,000 or morein any amount.
353	(b) A settlement of $50,000 or more or, with respect to a
354	dentist licensed pursuant to chapter 466, a settlement of
355	$25,000 or morein any amount.
356	(c) A final disposition not resulting in payment on behalf
357	of the licensee.
358
359	Reports shall be filed with the department no later than 60 days
360	following the occurrence of any event listed in paragraph (a),
361	paragraph (b), or paragraph (c).
362	(3) The department shall forward the information collected
363	under this section to the Office of Insurance Regulation.
364	Section 7. Paragraph (a) of subsection (7) of section
365	456.057, Florida Statutes, is amended to read:
366	456.057 Ownership and control of patient records; report
367	or copies of records to be furnished.--
368	(7)(a)1. The department may obtain patient records
369	pursuant to a subpoena without written authorization from the
370	patient if the department and the probable cause panel of the
371	appropriate board, if any, find reasonable cause to believe that
372	a health care practitioner has excessively or inappropriately
373	prescribed any controlled substance specified in chapter 893 in
374	violation of this chapter or any professional practice act or
375	that a health care practitioner has practiced his or her
376	profession below that level of care, skill, and treatment
377	required as defined by this chapter or any professional practice
378	act and also find that appropriate, reasonable attempts were
379	made to obtain a patient release.
380	2. The department may obtain patient records and insurance
381	information pursuant to a subpoena without written authorization
382	from the patient if the department and the probable cause panel
383	of the appropriate board, if any, find reasonable cause to
384	believe that a health care practitioner has provided inadequate
385	medical care based on termination of insurance and also find
386	that appropriate, reasonable attempts were made to obtain a
387	patient release.
388	3. The department may obtain patient records, billing
389	records, insurance information, provider contracts, and all
390	attachments thereto pursuant to a subpoena without written
391	authorization from the patient if the department and probable
392	cause panel of the appropriate board, if any, find reasonable
393	cause to believe that a health care practitioner has submitted a
394	claim, statement, or bill using a billing code that would result
395	in payment greater in amount than would be paid using a billing
396	code that accurately describes the services performed, requested
397	payment for services that were not performed by that health care
398	practitioner, used information derived from a written report of
399	an automobile accident generated pursuant to chapter 316 to
400	solicit or obtain patients personally or through an agent
401	regardless of whether the information is derived directly from
402	the report or a summary of that report or from another person,
403	solicited patients fraudulently, received a kickback as defined
404	in s. 456.054, violated the patient brokering provisions of s.
405	817.505, or presented or caused to be presented a false or
406	fraudulent insurance claim within the meaning of s.
407	817.234(1)(a), and also find that, within the meaning of s.
408	817.234(1)(a), patient authorization cannot be obtained because
409	the patient cannot be located or is deceased, incapacitated, or
410	suspected of being a participant in the fraud or scheme, and if
411	the subpoena is issued for specific and relevant records.
412	4. Notwithstanding subparagraphs 1.-3., when the
413	department investigates a professional liability claim or
414	undertakes action pursuant to s. 456.049 or s. 627.912, the
415	department may obtain patient records pursuant to a subpoena
416	without written authorization from the patient if the patient
417	refuses to cooperate or attempts to obtain a patient release and
418	failure to obtain the patient records would be detrimental to
419	the investigation.
420	Section 8. Subsection (4) of section 456.072, Florida
421	Statutes, is amended to read:
422	456.072 Grounds for discipline; penalties; enforcement.--
423	(4) In anyaddition to any other discipline imposed
424	throughfinal order, or citation, entered on or after July 1,
425	2001, that imposes a penalty or other form of discipline
426	pursuant to this section or discipline imposed through final
427	order, or citation, entered on or after July 1, 2001,for a
428	violation of any practice act, the board, or the department when
429	there is no board, shall assess costs related to the
430	investigation and prosecution of the case, including costs
431	associated with an attorney's time. The amount of costs to be
432	assessed shall be determined by the board, or the department
433	when there is no board, following its consideration of an
434	affidavit of itemized costs and any written objections thereto.
435	In any case in whichwhere the board or the department imposesa
436	fine or assessment of costs imposed by the board or department
437	and the fine or assessmentis not paid within a reasonable time,
438	such reasonable time to be prescribed in the rules of the board,
439	or the department when there is no board, or in the order
440	assessing such fines or costs, the department or the Department
441	of Legal Affairs may contract for the collection of, or bring a
442	civil action to recover, the fine or assessment.
443	Section 9. Subsection (5) of section 456.073, Florida
444	Statutes, is amended to read:
445	456.073 Disciplinary proceedings.--Disciplinary
446	proceedings for each board shall be within the jurisdiction of
447	the department.
448	(5)(a)A formal hearing before an administrative law judge
449	from the Division of Administrative Hearings shall be held
450	pursuant to chapter 120 if there are any disputed issues of
451	material fact. The administrative law judge shall issue a
452	recommended order pursuant to chapter 120. If any party raises
453	an issue of disputed fact during an informal hearing, the
454	hearing shall be terminated and a formal hearing pursuant to
455	chapter 120 shall be held.
456	(b) Notwithstanding s. 120.569(2), the department shall
457	notify the Division of Administrative Hearings within 45 days
458	after receipt of a petition or request for a hearing that the
459	department has determined requires a formal hearing before an
460	administrative law judge.
461	Section 10. Subsections (1) and (2) of section 456.077,
462	Florida Statutes, are amended to read:
463	456.077 Authority to issue citations.--
464	(1) Notwithstanding s. 456.073, the board, or the
465	department if there is no board, shall adopt rules to permit the
466	issuance of citations. The citation shall be issued to the
467	subject and shall contain the subject's name and address, the
468	subject's license number if applicable, a brief factual
469	statement, the sections of the law allegedly violated, and the
470	penalty imposed. The citation must clearly state that the
471	subject may choose, in lieu of accepting the citation, to follow
472	the procedure under s. 456.073. If the subject disputes the
473	matter in the citation, the procedures set forth in s. 456.073
474	must be followed. However, if the subject does not dispute the
475	matter in the citation with the department within 30 days after
476	the citation is served, the citation becomes a publicfinal
477	order and does not constituteconstitutes discipline for a first
478	offense. The penalty shall be a fine or other conditions as
479	established by rule.
480	(2) The board, or the department if there is no board,
481	shall adopt rules designating violations for which a citation
482	may be issued. Such rules shall designate as citation violations
483	those violations for which there is no substantial threat to the
484	public health, safety, and welfare or no violation of standard
485	of care involving injury to a patient. Violations for which a
486	citation may be issued shall include violations of continuing
487	education requirements; failure to timely pay required fees and
488	fines; failure to comply with the requirements of ss. 381.026
489	and 381.0261 regarding the dissemination of information
490	regarding patient rights; failure to comply with advertising
491	requirements; failure to timely update practitioner profile and
492	credentialing files; failure to display signs, licenses, and
493	permits; failure to have required reference books available; and
494	all other violations that do not pose a direct and serious
495	threat to the health and safety of the patient or involve a
496	violation of standard of care that has resulted in injury to a
497	patient.
498	Section 11. Subsections (1) and (2) of section 456.078,
499	Florida Statutes, are amended to read:
500	456.078 Mediation.--
501	(1) Notwithstanding the provisions of s. 456.073, the
502	board, or the department when there is no board, shall adopt
503	rules to designate which violations of the applicable
504	professional practice act are appropriate for mediation. The
505	board, or the department when there is no board, shallmay
506	designate as mediation offenses those complaints where harm
507	caused by the licensee is economic in nature, except any act or
508	omission involving intentional misconduct,orcan be remedied by
509	the licensee, is not a standard of care violation involving any
510	type of injury to a patient, or does not result in an adverse
511	incident. For the purposes of this section, an "adverse
512	incident" means an event that results in:
513	(a) The death of a patient;
514	(b) Brain or spinal damage to a patient;
515	(c) The performance of a surgical procedure on the wrong
516	patient;
517	(d) The performance of a wrong-site surgical procedure;
518	(e) The performance of a surgical procedure that is
519	medically unnecessary or otherwise unrelated to the patient's
520	diagnosis or medical condition;
521	(f) The surgical repair of damage to a patient resulting
522	from a planned surgical procedure, which damage is not a
523	recognized specific risk as disclosed to the patient and
524	documented through the informed-consent process;
525	(g) The performance of a procedure to remove unplanned
526	foreign objects remaining from a surgical procedure; or
527	(h) The performance of any other surgical procedure that
528	breached the standard of care.
529	(2) After the department determines a complaint is legally
530	sufficient and the alleged violations are defined as mediation
531	offenses, the department or any agent of the department may
532	conduct informal mediation to resolve the complaint. If the
533	complainant and the subject of the complaint agree to a
534	resolution of a complaint within 14 days after contact by the
535	mediator, the mediator shall notify the department of the terms
536	of the resolution. The department or board shall take no
537	further action unless the complainant and the subject each fail
538	to record with the department an acknowledgment of satisfaction
539	of the terms of mediation within 60 days of the mediator's
540	notification to the department. A successful mediation shall not
541	constitute discipline.In the event the complainant and subject
542	fail to reach settlement terms or to record the required
543	acknowledgment, the department shall process the complaint
544	according to the provisions of s. 456.073.
545	Section 12. Section 456.085, Florida Statutes, is created
546	to read:
547	456.085 Duty to notify patients.--Every physician licensed
548	under chapter 458 or chapter 459 shall inform each patient, or
549	an individual identified pursuant to s. 765.401(1), in person
550	about unanticipated outcomes of care that result in serious harm
551	to the patient. Notification of outcomes of care that result in
552	harm to the patient under this section shall not constitute an
553	acknowledgement or admission of liability, nor can it be
554	introduced as evidence in any civil lawsuit.
555	Section 13. Subsections (1) and (2) of section 458.307,
556	Florida Statutes, are amended to read:
557	458.307 Board of Medicine.--
558	(1) There is created within the department the Board of
559	Medicine, composed of 1315members appointed by the Governor
560	and confirmed by the Senate.
561	(2) SixTwelvemembers of the board must be licensed
562	physicians in good standing in this state who are residents of
563	the state and who have been engaged in the active practice or
564	teaching of medicine for at least 4 years immediately preceding
565	their appointment. One of the physicians must be on the full-
566	time faculty of a medical school in this state, and one of the
567	physicians must be in private practice and on the full-time
568	staff of a statutory teaching hospital in this state as defined
569	in s. 408.07. At least one of the physicians must be a graduate
570	of a foreign medical school. The remaining seventhreemembers
571	must be residents of the state who are not, and never have been,
572	licensed health care practitioners. One member must be a health
573	care risk manager licensed under s. 395.10974. At least one
574	member of the board must be 60 years of age or older.
575	Section 14. Paragraph (t) of subsection (1) and subsection
576	(6) of section 458.331, Florida Statutes, are amended to read:
577	458.331 Grounds for disciplinary action; action by the
578	board and department.--
579	(1) The following acts constitute grounds for denial of a
580	license or disciplinary action, as specified in s. 456.072(2):
581	(t) Gross or repeated malpractice or the failure to
582	practice medicine with that level of care, skill, and treatment
583	which is recognized by a reasonably prudent similar physician as
584	being acceptable under similar conditions and circumstances. The
585	board shall give great weight to the provisions of s. 766.102
586	when enforcing this paragraph. As used in this paragraph,
587	"repeated malpractice" includes, but is not limited to, three or
588	more claims for medical malpractice within the previous 5-year
589	period resulting in indemnities being paid in excess of $50,000
590	$25,000each to the claimant in a judgment or settlement and
591	which incidents involved negligent conduct by the physician. As
592	used in this paragraph, "gross malpractice" or "the failure to
593	practice medicine with that level of care, skill, and treatment
594	which is recognized by a reasonably prudent similar physician as
595	being acceptable under similar conditions and circumstances,"
596	shall not be construed so as to require more than one instance,
597	event, or act. Nothing in this paragraph shall be construed to
598	require that a physician be incompetent to practice medicine in
599	order to be disciplined pursuant to this paragraph.
600	(6) Upon the department's receipt from an insurer or self-
601	insurer of a report of a closed claim against a physician
602	pursuant to s. 627.912 or from a health care practitioner of a
603	report pursuant to s. 456.049, or upon the receipt from a
604	claimant of a presuit notice against a physician pursuant to s.
605	766.106, the department shall review each report and determine
606	whether it potentially involved conduct by a licensee that is
607	subject to disciplinary action, in which case the provisions of
608	s. 456.073 shall apply. However, if it is reported that a
609	physician has had three or more claims with indemnities
610	exceeding $50,000$25,000each within the previous 5-year
611	period, the department shall investigate the occurrences upon
612	which the claims were based and determine if action by the
613	department against the physician is warranted.
614	Section 15. Section 458.3311, Florida Statutes, is created
615	to read:
616	458.3311 Emergency procedures for disciplinary
617	action.--Notwithstanding any other provision of law to the
618	contrary:
619	(1) Each physician must report to the Department of Health
620	any judgment for medical negligence levied against the
621	physician. The physician must make the report no later than 15
622	days after the exhaustion of the last opportunity for any party
623	to appeal the judgment or request a rehearing.
624	(2) No later than 30 days after a physician has, within a
625	60-month period, made three reports as required by subsection
626	(1), the Department of Health shall initiate an emergency
627	investigation and the Board of Medicine shall conduct an
628	emergency probable cause hearing to determine whether the
629	physician should be disciplined for a violation of s.
630	458.331(1)(t) or any other relevant provision of law.
631	Section 16. Subsection (2) of section 459.004, Florida
632	Statutes, is amended to read:
633	459.004 Board of Osteopathic Medicine.--
634	(2) ThreeFivemembers of the board must be licensed
635	osteopathic physicians in good standing in this state who are
636	residents of this state and who have been engaged in the
637	practice of osteopathic medicine for at least 4 years
638	immediately prior to their appointment. The remaining fourtwo
639	members must be citizens of the state who are not, and have
640	never been, licensed health care practitioners. At least one
641	member of the board must be 60 years of age or older.
642	Section 17. Paragraph (x) of subsection (1) and subsection
643	(6) of section 459.015, Florida Statutes, are amended to read:
644	459.015 Grounds for disciplinary action; action by the
645	board and department.--
646	(1) The following acts constitute grounds for denial of a
647	license or disciplinary action, as specified in s. 456.072(2):
648	(x) Gross or repeated malpractice or the failure to
649	practice osteopathic medicine with that level of care, skill,
650	and treatment which is recognized by a reasonably prudent
651	similar osteopathic physician as being acceptable under similar
652	conditions and circumstances. The board shall give great weight
653	to the provisions of s. 766.102 when enforcing this paragraph.
654	As used in this paragraph, "repeated malpractice" includes, but
655	is not limited to, three or more claims for medical malpractice
656	within the previous 5-year period resulting in indemnities being
657	paid in excess of $50,000$25,000each to the claimant in a
658	judgment or settlement and which incidents involved negligent
659	conduct by the osteopathic physician. As used in this paragraph,
660	"gross malpractice" or "the failure to practice osteopathic
661	medicine with that level of care, skill, and treatment which is
662	recognized by a reasonably prudent similar osteopathic physician
663	as being acceptable under similar conditions and circumstances"
664	shall not be construed so as to require more than one instance,
665	event, or act. Nothing in this paragraph shall be construed to
666	require that an osteopathic physician be incompetent to practice
667	osteopathic medicine in order to be disciplined pursuant to this
668	paragraph. A recommended order by an administrative law judge or
669	a final order of the board finding a violation under this
670	paragraph shall specify whether the licensee was found to have
671	committed "gross malpractice," "repeated malpractice," or
672	"failure to practice osteopathic medicine with that level of
673	care, skill, and treatment which is recognized as being
674	acceptable under similar conditions and circumstances," or any
675	combination thereof, and any publication by the board shall so
676	specify.
677	(6) Upon the department's receipt from an insurer or self-
678	insurer of a report of a closed claim against an osteopathic
679	physician pursuant to s. 627.912 or from a health care
680	practitioner of a report pursuant to s. 456.049, or upon the
681	receipt from a claimant of a presuit notice against an
682	osteopathic physician pursuant to s. 766.106, the department
683	shall review each report and determine whether it potentially
684	involved conduct by a licensee that is subject to disciplinary
685	action, in which case the provisions of s. 456.073 shall apply.
686	However, if it is reported that an osteopathic physician has had
687	three or more claims with indemnities exceeding $50,000$25,000
688	each within the previous 5-year period, the department shall
689	investigate the occurrences upon which the claims were based and
690	determine if action by the department against the osteopathic
691	physician is warranted.
692	Section 18. Section 459.0151, Florida Statutes, is created
693	to read:
694	459.0151 Emergency procedures for disciplinary
695	action.--Notwithstanding any other provision of law to the
696	contrary:
697	(1) Each osteopathic physician must report to the
698	Department of Health any judgment for medical negligence levied
699	against the physician. The osteopathic physician must make the
700	report no later than 15 days after the exhaustion of the last
701	opportunity for any party to appeal the judgment or request a
702	rehearing.
703	(2) No later than 30 days after an osteopathic physician
704	has, within a 60-month period, made three reports as required by
705	subsection (1), the Department of Health shall initiate an
706	emergency investigation and the Board of Osteopathic Medicine
707	shall conduct an emergency probable cause hearing to determine
708	whether the physician should be disciplined for a violation of
709	s. 459.015(1)(x) or any other relevant provision of law.
710	Section 19. Paragraph (s) of subsection (1) and paragraph
711	(a) of subsection (5) of section 461.013, Florida Statutes, are
712	amended to read:
713	461.013 Grounds for disciplinary action; action by the
714	board; investigations by department.--
715	(1) The following acts constitute grounds for denial of a
716	license or disciplinary action, as specified in s. 456.072(2):
717	(s) Gross or repeated malpractice or the failure to
718	practice podiatric medicine at a level of care, skill, and
719	treatment which is recognized by a reasonably prudent podiatric
720	physician as being acceptable under similar conditions and
721	circumstances. The board shall give great weight to the
722	standards for malpractice in s. 766.102 in interpreting this
723	section. As used in this paragraph, "repeated malpractice"
724	includes, but is not limited to, three or more claims for
725	medical malpractice within the previous 5-year period resulting
726	in indemnities being paid in excess of $50,000$10,000each to
727	the claimant in a judgment or settlement and which incidents
728	involved negligent conduct by the podiatric physicians. As used
729	in this paragraph, "gross malpractice" or "the failure to
730	practice podiatric medicine with the level of care, skill, and
731	treatment which is recognized by a reasonably prudent similar
732	podiatric physician as being acceptable under similar conditions
733	and circumstances" shall not be construed so as to require more
734	than one instance, event, or act.
735	(5)(a) Upon the department's receipt from an insurer or
736	self-insurer of a report of a closed claim against a podiatric
737	physician pursuant to s. 627.912, or upon the receipt from a
738	claimant of a presuit notice against a podiatric physician
739	pursuant to s. 766.106, the department shall review each report
740	and determine whether it potentially involved conduct by a
741	licensee that is subject to disciplinary action, in which case
742	the provisions of s. 456.073 shall apply. However, if it is
743	reported that a podiatric physician has had three or more claims
744	with indemnities exceeding $50,000$25,000each within the
745	previous 5-year period, the department shall investigate the
746	occurrences upon which the claims were based and determine if
747	action by the department against the podiatric physician is
748	warranted.
749	Section 20. Subsections (7) and (8) are added to section
750	627.062, Florida Statutes, to read:
751	627.062 Rate standards.--
752	(7) Notwithstanding any other provision of this section,
753	in matters relating to professional liability insurance coverage
754	for medical negligence, any portion of a judgment entered as a
755	result of a statutory or common-law bad faith action and any
756	portion of a judgment entered that awards punitive damages
757	against an insurer may not be included in the insurer's rate
758	base and may not be used to justify a rate or rate change. In
759	matters relating to professional liability insurance coverage
760	for medical negligence, any portion of a settlement entered as a
761	result of a statutory or common-law bad faith action identified
762	as such and any portion of a settlement wherein an insurer
763	agrees to pay specific punitive damages may not be used to
764	justify a rate or rate change. The portion of the taxable costs
765	and attorney's fees that is identified as being related to the
766	bad faith and punitive damages in these judgments and
767	settlements may not be included in the insurer's rate base and
768	may not be utilized to justify a rate or rate change.
769	(8) Each insurer writing professional liability insurance
770	coverage for medical negligence must make a rate filing under
771	this section with the Office of Insurance Regulation at least
772	once each calendar year.
773	Section 21. Subsection (10) of section 627.357, Florida
774	Statutes, is amended to read:
775	627.357 Medical malpractice self-insurance.--
776	(10)(a) An application to form a self-insurance fund under
777	this section must be filed with the Office of Insurance
778	Regulation.
779	(b) The Office of Insurance Regulation must ensure that
780	self-insurance funds remain solvent and provide insurance
781	coverage purchased by participants. The Financial Services
782	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
783	to implement this subsectionA self-insurance fund may not be
784	formed under this section after October 1, 1992.
785	Section 22. Section 627.3575, Florida Statutes, is created
786	to read:
787	627.3575 Health Care Professional Liability Insurance
788	Facility.--
789	(1) FACILITY CREATED; PURPOSE; STATUS.--There is created
790	the Health Care Professional Liability Insurance Facility. The
791	facility is intended to meet ongoing availability and
792	affordability problems relating to liability insurance for
793	health care professionals by providing an affordable, self-
794	supporting source of excess insurance coverage for those
795	professionals who are willing and able to self-insure for
796	smaller losses. The facility shall operate on a not-for-profit
797	basis. The facility is self-funding and is intended to serve a
798	public purpose but is not a state agency or program, and no
799	activity of the facility shall create any state liability.
800	(2) GOVERNANCE; POWERS.--
801	(a) The facility shall operate under a seven-member board
802	of governors consisting of the Secretary of Health, three
803	members appointed by the Governor, and three members appointed
804	by the Chief Financial Officer. The board shall be chaired by
805	the Secretary of Health. The secretary shall serve by virtue of
806	his or her office, and the other members of the board shall
807	serve terms concurrent with the term of office of the official
808	who appointed them. Any vacancy on the board shall be filled in
809	the same manner as the original appointment. Members serve at
810	the pleasure of the official who appointed them. Members are not
811	eligible for compensation for their service on the board, but
812	the facility may reimburse them for per diem and travel expenses
813	at the same levels as are provided in s. 112.061 for state
814	employees.
815	(b) The facility shall have such powers as are necessary
816	to operate as an insurer, including the power to:
817	1. Sue and be sued.
818	2. Hire such employees and retain such consultants,
819	attorneys, actuaries, and other professionals as it deems
820	appropriate.
821	3. Contract with such service providers as it deems
822	appropriate.
823	4. Maintain offices appropriate to the conduct of its
824	business.
825	5. Take such other actions as are necessary or appropriate
826	in fulfillment of its responsibilities under this section.
827	(3) COVERAGE PROVIDED.--The facility shall provide
828	liability insurance coverage for health care professionals. The
829	facility shall allow policyholders to select from policies with
830	deductibles of $25,000 per claim, $50,000 per claim, and
831	$100,000 per claim and with coverage limits of $250,000 per
832	claim and $750,000 annual aggregate and $1 million per claim and
833	$3 million annual aggregate. To the greatest extent possible,
834	the terms and conditions of the policies shall be consistent
835	with terms and conditions commonly used by professional
836	liability insurers.
837	(4) ELIGIBILITY; TERMINATION.--
838	(a) Any health care professional is eligible for coverage
839	provided by the facility if the professional at all times
840	maintains either:
841	1. An escrow account consisting of cash or assets eligible
842	for deposit under s. 625.52 in an amount equal to the deductible
843	amount of the policy; or
844	2. An unexpired, irrevocable letter of credit, established
845	pursuant to chapter 675, in an amount not less than the
846	deductible amount of the policy. The letter of credit shall be
847	payable to the health care professional as beneficiary upon
848	presentment of a final judgment indicating liability and
849	awarding damages to be paid by the physician or upon presentment
850	of a settlement agreement signed by all parties to such
851	agreement when such final judgment or settlement is a result of
852	a claim arising out of the rendering of, or the failure to
853	render, medical care and services. Such letter of credit shall
854	be nonassignable and nontransferable. Such letter of credit
855	shall be issued by any bank or savings association organized and
856	existing under the laws of this state or any bank or savings
857	association organized under the laws of the United States that
858	has its principal place of business in this state or has a
859	branch office which is authorized under the laws of this state
860	or of the United States to receive deposits in this state.
861	(b) The eligibility of a health care professional for
862	coverage terminates upon:
863	1. The failure of the professional to comply with
864	paragraph (a);
865	2. The failure of the professional to timely pay premiums
866	or assessments; or
867	3. The commission of any act of fraud in connection with
868	the policy, as determined by the board of governors.
869	(c) The board of governors, in its discretion, may
870	reinstate the eligibility of a health care professional whose
871	eligibility has terminated pursuant to paragraph (b) upon
872	determining that the professional has come back into compliance
873	with paragraph (a) or has paid the overdue premiums or
874	assessments. Eligibility may be reinstated in the case of fraud
875	only if the board determines that its initial determination of
876	fraud was in error.
877	(5) PREMIUMS; ASSESSMENTS.--
878	(a) The facility shall charge the actuarially indicated
879	premium for the coverage provided and shall retain the services
880	of consulting actuaries to prepare its rate filings. The
881	facility shall not provide dividends to policyholders, and, to
882	the extent that premiums are more than the amount required to
883	cover claims and expenses, such excess shall be retained by the
884	facility for payment of future claims. In the event of
885	dissolution of the facility, any amounts not required as a
886	reserve for outstanding claims shall be transferred to the
887	policyholders of record as of the last day of operation.
888	(b) In the event that the premiums for a particular year,
889	together with any investment income or reinsurance recoveries
890	attributable to that year, are insufficient to pay claims
891	arising out of claims accruing in that year, the facility shall
892	levy assessments against all of its policyholders in a uniform
893	percentage of premium. Each policyholder's assessment shall be
894	such percentage of the premium that policyholder paid for
895	coverage for the year to which the insufficiency is
896	attributable.
897	(c) The policyholder is personally liable for any
898	assessment. The failure to timely pay an assessment is grounds
899	for suspension or revocation of the policyholder's professional
900	license by the appropriate licensing entity.
901	(6) REGULATION; APPLICABILITY OF OTHER STATUTES.--
902	(a) The facility shall operate pursuant to a plan of
903	operation approved by order of the Office of Insurance
904	Regulation of the Financial Services Commission. The board of
905	governors may at any time adopt amendments to the plan of
906	operation and submit the amendments to the Office of Insurance
907	Regulation for approval.
908	(b) The facility is subject to regulation by the Office of
909	Insurance Regulation of the Financial Services Commission in the
910	same manner as other insurers, except that, in recognition of
911	the fact that its ability to levy assessments against its own
912	policyholders is a substitute for the protections ordinarily
913	afforded by such statutory requirements, the facility is exempt
914	from statutory requirements relating to surplus as to
915	policyholders.
916	(c) The facility is not subject to part II of chapter 631,
917	relating to the Florida Insurance Guaranty Association.
918	(7) STARTUP PROVISIONS.--
919	(a) It is the intent of the Legislature that the facility
920	begin providing coverage no later than January 1, 2004.
921	(b) The Governor and the Chief Financial Officer shall
922	make their appointments to the board of governors of the
923	facility no later than July 1, 2003. Until the board is
924	appointed, the Secretary of Health may perform ministerial acts
925	on behalf of the facility as chair of the board of governors.
926	(c) Until the facility is able to hire permanent staff and
927	enter into contracts for professional services, the office of
928	the Secretary of Health shall provide support services to the
929	facility.
930	(d) In order to provide startup funds for the facility,
931	the board of governors may incur debt or enter into agreements
932	for lines of credit, provided that the sole source of funds for
933	repayment of any debt is future premium revenues of the
934	facility. The amount of such debt or lines of credit may not
935	exceed $10 million.
936	Section 23. Subsection (1) and paragraph (n) of subsection
937	(2) of section 627.912, Florida Statutes, are amended to read:
938	627.912 Professional liability claims and actions; reports
939	by insurers.--
940	(1)(a)Each self-insurer authorized under s. 627.357 and
941	each insurer or joint underwriting association providing
942	professional liability insurance to a practitioner of medicine
943	licensed under chapter 458, to a practitioner of osteopathic
944	medicine licensed under chapter 459, to a podiatric physician
945	licensed under chapter 461, to a dentist licensed under chapter
946	466, to a hospital licensed under chapter 395, to a crisis
947	stabilization unit licensed under part IV of chapter 394, to a
948	health maintenance organization certificated under part I of
949	chapter 641, to clinics included in chapter 390, to an
950	ambulatory surgical center as defined in s. 395.002, or to a
951	member of The Florida Bar shall report in duplicate to the
952	Department of Insurance any claim or action for damages for
953	personal injuries claimed to have been caused by error,
954	omission, or negligence in the performance of such insured's
955	professional services or based on a claimed performance of
956	professional services without consent, if the claim resulted in:
957	1.(a)A final judgment in any amount.
958	2.(b)A settlement in any amount.
959
960	Reports shall be filed with the department.
961	(b) In addition to the requirements of paragraph (a), if
962	the insured party is licensed under chapter 395, chapter 458,
963	chapter 459, chapter 461, or chapter 466, the insurer shall
964	report in duplicate to the Office of Insurance Regulation any
965	other disposition of the claim, including, but not limited to, a
966	dismissal. If the insured is licensed under chapter 458, chapter
967	459, or chapter 461, any claim that resulted in a final judgment
968	or settlement in the amount of $50,000 or more shall be reported
969	to the Department of Health no later than 30 days following the
970	occurrence of that event. If the insured is licensed under
971	chapter 466, any claim that resulted in a final judgment or
972	settlement in the amount of $25,000 or more shall be reported to
973	the Department of Health no later than 30 days following the
974	occurrence of that eventand, if the insured party is licensed
975	under chapter 458, chapter 459, chapter 461, or chapter 466,
976	with the Department of Health, no later than 30 days following
977	the occurrence of any event listed in paragraph (a) or paragraph
978	(b). The Department of Health shall review each report and
979	determine whether any of the incidents that resulted in the
980	claim potentially involved conduct by the licensee that is
981	subject to disciplinary action, in which case the provisions of
982	s. 456.073 shall apply. The Department of Health, as part of the
983	annual report required by s. 456.026, shall publish annual
984	statistics, without identifying licensees, on the reports it
985	receives, including final action taken on such reports by the
986	Department of Health or the appropriate regulatory board.
987	(2) The reports required by subsection (1) shall contain:
988	(n) Any other information required by the department to
989	analyze and evaluate the nature, causes, location, cost, and
990	damages involved in professional liability cases. The Financial
991	Services Commission shall adopt by rule requirements for
992	additional information to assist the Office of Insurance
993	Regulation in its analysis and evaluation of the nature, causes,
994	location, cost, and damages involved in professional liability
995	cases reported by insurers under this section.
996	Section 24. Section 627.9121, Florida Statutes, is created
997	to read:
998	627.9121 Required reporting of claims; penalties.--Each
999	entity that makes payment under a policy of insurance, self-
1000	insurance, or otherwise in settlement, partial settlement, or
1001	satisfaction of a judgment in a medical malpractice action or
1002	claim that is required to report information to the National
1003	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
1004	the same information to the Office of Insurance Regulation. The
1005	office shall include such information in the data that it
1006	compiles under s. 627.912. The office must compile and review
1007	the data collected pursuant to this section and must assess an
1008	administrative fine on any entity that fails to fully comply
1009	with such reporting requirements.
1010	Section 25. Subsections (3) and (4) of section 766.106,
1011	Florida Statutes, are amended, and subsection (13) is added to
1012	said section, to read:
1013	766.106 Notice before filing action for medical
1014	malpractice; presuit screening period; offers for admission of
1015	liability and for arbitration; informal discovery; review.--
1016	(3)(a) No suit may be filed for a period of 15090days
1017	after notice is mailed to any prospective defendant. During the
1018	150-day90-dayperiod, the prospective defendant's insurer or
1019	self-insurer shall conduct a review to determine the liability
1020	of the defendant. Each insurer or self-insurer shall have a
1021	procedure for the prompt investigation, review, and evaluation
1022	of claims during the 150-day90-dayperiod. This procedure shall
1023	include one or more of the following:
1024	1. Internal review by a duly qualified claims adjuster;
1025	2. Creation of a panel comprised of an attorney
1026	knowledgeable in the prosecution or defense of medical
1027	malpractice actions, a health care provider trained in the same
1028	or similar medical specialty as the prospective defendant, and a
1029	duly qualified claims adjuster;
1030	3. A contractual agreement with a state or local
1031	professional society of health care providers, which maintains a
1032	medical review committee;
1033	4. Any other similar procedure which fairly and promptly
1034	evaluates the pending claim.
1035
1036	Each insurer or self-insurer shall investigate the claim in good
1037	faith, and both the claimant and prospective defendant shall
1038	cooperate with the insurer in good faith. If the insurer
1039	requires, a claimant shall appear before a pretrial screening
1040	panel or before a medical review committee and shall submit to a
1041	physical examination, if required. Unreasonable failure of any
1042	party to comply with this section justifies dismissal of claims
1043	or defenses. There shall be no civil liability for participation
1044	in a pretrial screening procedure if done without intentional
1045	fraud.
1046	(b) At or before the end of the 15090days, the insurer
1047	or self-insurer shall provide the claimant with a response:
1048	1. Rejecting the claim;
1049	2. Making a settlement offer; or
1050	3. Making an offer of admission of liability and for
1051	arbitration on the issue of damages. This offer may be made
1052	contingent upon a limit of general damages.
1053	(c) The response shall be delivered to the claimant if not
1054	represented by counsel or to the claimant's attorney, by
1055	certified mail, return receipt requested. Failure of the
1056	prospective defendant or insurer or self-insurer to reply to the
1057	notice within 15090days after receipt shall be deemed a final
1058	rejection of the claim for purposes of this section.
1059	(d) Within 30 days afterofreceipt of a response by a
1060	prospective defendant, insurer, or self-insurer to a claimant
1061	represented by an attorney, the attorney shall advise the
1062	claimant in writing of the response, including:
1063	1. The exact nature of the response under paragraph (b).
1064	2. The exact terms of any settlement offer, or admission
1065	of liability and offer of arbitration on damages.
1066	3. The legal and financial consequences of acceptance or
1067	rejection of any settlement offer, or admission of liability,
1068	including the provisions of this section.
1069	4. An evaluation of the time and likelihood of ultimate
1070	success at trial on the merits of the claimant's action.
1071	5. An estimation of the costs and attorney's fees of
1072	proceeding through trial.
1073	(4) The notice of intent to initiate litigation shall be
1074	served within the time limits set forth in s. 95.11. However,
1075	during the 150-day90-dayperiod, the statute of limitations is
1076	tolled as to all potential defendants. Upon stipulation by the
1077	parties, the 150-day90-dayperiod may be extended and the
1078	statute of limitations is tolled during any such extension. Upon
1079	receiving notice of termination of negotiations in an extended
1080	period, the claimant shall have 60 days or the remainder of the
1081	period of the statute of limitations, whichever is greater,
1082	within which to file suit.
1083	(13) In matters relating to professional liability
1084	insurance coverage for medical negligence, an insurer shall not
1085	be held in bad faith for failure to timely pay its policy limits
1086	if it tenders its policy limits and meets all other conditions
1087	of settlement prior to the conclusion of the presuit screening
1088	period provided for in this section.
1089	Section 26. Section 766.1065, Florida Statutes, is created
1090	to read:
1091	766.1065 Presuit mediation.--After the completion of
1092	presuit investigation by the parties pursuant to s. 766.203 and
1093	any informal discovery pursuant to s. 766.106, the parties or
1094	their designated representatives may submit the matter to
1095	presuit mediation to discuss the issues of liability and damages
1096	for the purpose of an early resolution of the matter. The
1097	presuit mediation shall be confidential as provided in s.
1098	44.102.
1099	Section 27. Section 766.1067, Florida Statutes, is created
1100	to read:
1101	766.1067 Mandatory mediation after suit is filed.--
1102	(1) Within 120 days after suit being filed, the parties
1103	shall conduct mandatory mediation in accordance with s. 44.102
1104	if binding arbitration under s. 766.106 or s. 766.207 has not
1105	been agreed to by the parties. The Florida Rules of Civil
1106	Procedure shall apply to mediation held pursuant to this
1107	section. During the mediation, each party shall make a demand
1108	for judgment or an offer of settlement. At the conclusion of the
1109	mediation, the mediator shall record the final demand and final
1110	offer to provide to the court upon the rendering of a judgment.
1111	(2) If a claimant who rejected the final offer of
1112	settlement made during the mediation does not obtain a judgment
1113	more favorable than the offer, the court shall assess the
1114	mediation costs and reasonable costs, expenses, and attorney's
1115	fees that were incurred after the date of mediation against such
1116	claimant. The assessment shall attach to the proceeds of the
1117	claimant attributable to any defendant whose final offer was
1118	more favorable than the judgment.
1119	(3) If the judgment obtained at trial is not more
1120	favorable to a defendant than the final demand for judgment made
1121	by the claimant to the defendant during mediation, the court
1122	shall assess against the defendant the mediation costs and
1123	reasonable costs, expenses, and attorney's fees that were
1124	incurred after the date of mediation. Prejudgment interest at
1125	the rate established in s. 55.03 from the date of the final
1126	demand shall also be assessed. The defendant and the insurer of
1127	the defendant, if any, shall be liable for the costs, fees, and
1128	interest awardable under this section.
1129	(4) The final offer and final demand made during the
1130	mediation required in this section shall be the only offer and
1131	demand considered by the court in assessing costs, expenses,
1132	attorney's fees, and prejudgment interest under this section. No
1133	subsequent offer or demand by either party shall apply in the
1134	determination of whether sanctions will be assessed by the court
1135	under this section.
1136	(5) Notwithstanding any provision of law to the contrary,
1137	ss. 45.061 and 768.79 shall not be applicable to medical
1138	negligence causes of action.
1139	Section 28. Section 766.118, Florida Statutes, is created
1140	to read:
1141	766.118 Determination of noneconomic damages.--With
1142	respect to a cause of action for personal injury or wrongful
1143	death resulting from an occurrence of medical negligence,
1144	including actions pursuant to s. 766.209, damages recoverable
1145	for noneconomic losses to compensate for pain and suffering,
1146	inconvenience, physical impairment, mental anguish,
1147	disfigurement, loss of capacity for enjoyment of life, and all
1148	other noneconomic damages shall not exceed $250,000, regardless
1149	of the number of claimants or defendants involved in the action.
1150	Section 29. Subsection (5) of section 766.202, Florida
1151	Statutes, is amended to read:
1152	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
1153	766.201-766.212, the term:
1154	(5) "Medical expert" means a person familiar with the
1155	evaluation, diagnosis, or treatment of the medical condition at
1156	issue who:
1157	(a) Isduly and regularly engaged in the practice of his
1158	or her profession,whoholds a health care professional degree
1159	from a university or college,and has had special professional
1160	training and experience;or
1161	(b) Hasone possessed ofspecial health care knowledge or
1162	skill about the subject upon which he or she is called to
1163	testify or provide an opinion.
1164
1165	Such expert shall certify that he or she has similar credentials
1166	and expertise in the area of the defendant's particular practice
1167	or specialty, if the defendant is a specialist.
1168	Section 30. Subsection (2) of section 766.203, Florida
1169	Statutes, is amended to read:
1170	766.203 Presuit investigation of medical negligence claims
1171	and defenses by prospective parties.--
1172	(2) Prior to issuing notification of intent to initiate
1173	medical malpractice litigation pursuant to s. 766.106, the
1174	claimant shall conduct an investigation to ascertain that there
1175	are reasonable grounds to believe that:
1176	(a) Any named defendant in the litigation was negligent in
1177	the care or treatment of the claimant; and
1178	(b) Such negligence resulted in injury to the claimant.
1179
1180	Corroboration of reasonable grounds to initiate medical
1181	negligence litigation shall be provided by the claimant's
1182	submission of a verified written medical expert opinion from a
1183	medical expert as defined in s. 766.202(5), at the time the
1184	notice of intent to initiate litigation is mailed, which
1185	statement shall corroborate reasonable grounds to support the
1186	claim of medical negligence. This opinion and statement are
1187	subject to discovery and are admissible in future proceedings,
1188	subject to exclusion under s. 90.403.
1189	Section 31. Subsections (2) and (3) of section 766.207,
1190	Florida Statutes, are amended to read:
1191	766.207 Voluntary binding arbitration of medical
1192	negligence claims.--
1193	(2) Upon the completion of presuit investigation with
1194	preliminary reasonable grounds for a medical negligence claim
1195	intact, the parties may elect to have damages determined by an
1196	arbitration panel. Such election may be initiated by either
1197	party by serving a request for voluntary binding arbitration of
1198	damages within 15090days after service of the claimant's
1199	notice of intent to initiate litigation upon the defendant. The
1200	evidentiary standards for voluntary binding arbitration of
1201	medical negligence claims shall be as provided in ss.
1202	120.569(2)(g) and 120.57(1)(c).
1203	(3) Upon receipt of a party's request for such
1204	arbitration, the opposing party may accept the offer of
1205	voluntary binding arbitration within 30 days. However, in no
1206	event shall the defendant be required to respond to the request
1207	for arbitration sooner than 15090days after service of the
1208	notice of intent to initiate litigation under s. 766.106. Such
1209	acceptance within the time period provided by this subsection
1210	shall be a binding commitment to comply with the decision of the
1211	arbitration panel. The liability of any insurer shall be subject
1212	to any applicable insurance policy limits.
1213	Section 32. (1) The Department of Health shall study and
1214	report to the Legislature as to whether medical review panels
1215	should be included as part of the presuit process in medical
1216	malpractice litigation. Medical review panels review a medical
1217	malpractice case during the presuit process and make judgments
1218	on the merits of the case based on established standards of care
1219	with the intent of reducing the number of frivolous claims. The
1220	panel's report could be used as admissible evidence at trial or
1221	for other purposes. The department's report should address:
1222	(a) Historical use of medical review panels and similar
1223	pretrial programs in this state, including the mediation panels
1224	created by chapter 75-9, Laws of Florida.
1225	(b) Constitutional issues relating to the use of medical
1226	review panels.
1227	(c) The use of medical review panels or similar programs
1228	in other states.
1229	(d) Whether medical review panels or similar panels should
1230	be created for use during the presuit process.
1231	(e) Other recommendations and information that the
1232	department deems appropriate.
1233	(2) If the department finds that medical review panels or
1234	a similar structure should be created in this state, it shall
1235	include draft legislation to implement its recommendations in
1236	its report.
1237	(3) The department shall submit its report to the Speaker
1238	of the House of Representatives and the President of the Senate
1239	no later than December 31, 2003.
1240	Section 33. Subsection (5) of section 768.81, Florida
1241	Statutes, is amended to read:
1242	768.81 Comparative fault.--
1243	(5) Notwithstanding anything in law to the contrary, in an
1244	action for damages for personal injury or wrongful death arising
1245	out of medical malpractice, whether in contract or tort, when an
1246	apportionment of damages pursuant to this section is attributed
1247	to a teaching hospital as defined in s. 408.07,the court shall
1248	enter judgment against the teaching hospital on the basis of
1249	eachsuchparty's percentage of fault and not on the basis of
1250	the doctrine of joint and several liability.
1251	Section 34. Section 1004.08, Florida Statutes, is created
1252	to read:
1253	1004.08 Patient safety instructional requirements.--Every
1254	public school, college, and university that offers degrees in
1255	medicine, nursing, and allied health shall include in the
1256	curricula applicable to such degrees material on patient safety,
1257	including patient safety improvement. Materials shall include,
1258	but need not be limited to, effective communication and
1259	teamwork; epidemiology of patient injuries and medical errors;
1260	vigilance, attention, and fatigue; checklists and inspections;
1261	automation and technological and computer support; psychological
1262	factors in human error; and reporting systems.
1263	Section 35. Section 1005.07, Florida Statutes, is created
1264	to read:
1265	1005.07 Patient safety instructional requirements.--Every
1266	nonpublic school, college, and university that offers degrees in
1267	medicine, nursing, and allied health shall include in the
1268	curricula applicable to such degrees material on patient safety,
1269	including patient safety improvement. Materials shall include,
1270	but need not be limited to, effective communication and
1271	teamwork; epidemiology of patient injuries and medical errors;
1272	vigilance, attention, and fatigue; checklists and inspections;
1273	automation and technological and computer support; psychological
1274	factors in human error; and reporting systems.
1275	Section 36. The Agency for Health Care Administration is
1276	directed to study the types of information the public would find
1277	relevant in the selection of hospitals. The agency shall review
1278	and recommend appropriate methods of collection, analysis, and
1279	dissemination of that information. The agency shall complete its
1280	study and report its findings and recommendations to the
1281	Legislature by January 15, 2004.
1282	Section 37. Comprehensive study and report on the creation
1283	of a Patient Safety Authority.--
1284	(1) The Agency for Health Care Administration, in
1285	consultation with the Department of Health, is directed to study
1286	the need for, and the implementation requirements of,
1287	establishing a Patient Safety Authority. The authority would be
1288	responsible for performing activities and functions designed to
1289	improve patient safety and the quality of care delivered by
1290	health care facilities and health care practitioners.
1291	(2) In undertaking its study, the agency shall examine and
1292	evaluate a Patient Safety Authority that would, either directly
1293	or by contract:
1294	(a) Analyze information concerning adverse incidents
1295	reported to the Agency for Health Care Administration pursuant
1296	to s. 395.0197, Florida Statutes, for the purpose of
1297	recommending changes in practices and procedures that may be
1298	implemented by health care practitioners and health care
1299	facilities to prevent future adverse incidents.
1300	(b) Collect, analyze, and evaluate patient safety data
1301	submitted voluntarily by a health care practitioner or health
1302	care facility. The authority would communicate to health care
1303	practitioners and health care facilities changes in practices
1304	and procedures that may be implemented for the purpose of
1305	improving patient safety and preventing future patient safety
1306	events from resulting in serious injury or death. At a minimum,
1307	the authority would:
1308	1. Be designed and operated by an individual or entity
1309	with demonstrated expertise in health care quality data and
1310	systems analysis, health information management, systems
1311	thinking and analysis, human factors analysis, and
1312	identification of latent and active errors.
1313	2. Include procedures for ensuring its confidentiality,
1314	timeliness, and independence.
1315	(c) Foster the development of a statewide electronic
1316	infrastructure, which would be implemented in phases over a
1317	multiyear period, that is designed to improve patient care and
1318	the delivery and quality of health care services by health care
1319	facilities and practitioners. The electronic infrastructure
1320	would be a secure platform for communication and the sharing of
1321	clinical and other data, such as business data, among providers
1322	and between patients and providers. The electronic
1323	infrastructure would include a core electronic medical record.
1324	Health care providers would have access to individual electronic
1325	medical records, subject to the consent of the individual. The
1326	right, if any, of other entities, including health insurers and
1327	researchers, to access the records would need further
1328	examination and evaluation by the agency.
1329	(d) Foster the use of computerized physician medication
1330	ordering systems by hospitals that do not have such systems and
1331	develop protocols for these systems.
1332	(e) Implement paragraphs (c) and (d) as a demonstration
1333	project for Medicaid recipients.
1334	(f) Identify best practices and share this information
1335	with health care providers.
1336	(g) Engage in other activities that improve health care
1337	quality, improve the diagnosis and treatment of diseases and
1338	medical conditions, increase the efficiency of the delivery of
1339	health care services, increase administrative efficiency, and
1340	increase access to quality health care services.
1341	(3) The agency shall also consider ways in which a Patient
1342	Safety Authority would be able to facilitate the development of
1343	no-fault demonstration projects as means to reduce and prevent
1344	medical errors and promote patient safety.
1345	(4) The agency shall seek information and advice from and
1346	consult with hospitals, physicians, other health care providers,
1347	attorneys, consumers, and individuals involved with and
1348	knowledgeable about patient safety and quality-of-care
1349	initiatives.
1350	(5) In evaluating the need for, and the operation of, a
1351	Patient Safety Authority, the agency shall determine the costs
1352	of implementing and administering an authority and suggest
1353	funding sources and mechanisms.
1354	(6) The agency shall complete its study and issue a report
1355	to the Legislature by February 1, 2004. In its report, the
1356	agency shall include specific findings, recommendations, and
1357	proposed legislation.
1358	Section 38. Subsection (8) of section 768.21, Florida
1359	Statutes, is repealed.
1360	Section 39. Subsection (7) of section 400.023, Florida
1361	Statutes, is amended to read:
1362	400.023 Civil enforcement.--
1363	(7) An action under this part for a violation of rights or
1364	negligence recognized herein is not a claim for medical
1365	malpractice, and the provisions of s. 768.21(8) do not apply to
1366	a claim alleging death of the resident.
1367	Section 40. Section 400.0235, Florida Statutes, is amended
1368	to read:
1369	400.0235 Certain provisions not applicable to actions
1370	under this part.--An action under this part for a violation of
1371	rights or negligence recognized under this part is not a claim
1372	for medical malpractice, and the provisions of s. 768.21(8) do
1373	not apply to a claim alleging death of the resident.
1374	Section 41. Section 400.4295, Florida Statutes, is amended
1375	to read:
1376	400.4295 Certain provisions not applicable to actions
1377	under this part.--An action under this part for a violation of
1378	rights or negligence recognized herein is not a claim for
1379	medical malpractice, and the provisions of s. 768.21(8) do not
1380	apply to a claim alleging death of the resident.
1381	Section 42. If any provision of this act or the
1382	application thereof to any person or circumstance is held
1383	invalid, the invalidity does not affect other provisions or
1384	applications of the act which can be given effect without the
1385	invalid provision or application, and to this end the provisions
1386	of this act are declared severable.
1387	Section 43. This act shall take effect upon becoming a law
1388	and shall apply to all actions filed after the effective date of
1389	the act.