HB 1713, Engrossed 1 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing
3	legislative findings; amending s. 395.0191, F.S.; deleting
4	requirement that persons act in good faith to avoid
5	liability or discipline for their actions regarding the
6	awarding of staff membership or clinical privileges;
7	amending s. 395.1012, F.S.; requiring hospitals,
8	ambulatory surgical centers, and mobile surgical
9	facilities to establish patient safety plans and
10	committees; creating s. 395.1051, F.S.; providing for
11	notification of injuries in a hospital, ambulatory
12	surgical center, or mobile surgical facility; amending s.
13	456.041, F.S.; requiring additional information to be
14	included in health care practitioner profiles; providing
15	for fines; revising requirements for the reporting of paid
16	liability claims; amending s. 456.042, F.S.; requiring
17	health care practitioner profiles to be updated within a
18	specific time period; amending s. 456.049, F.S.; revising
19	requirements for the reporting of paid liability claims;
20	amending s. 456.057, F.S.; authorizing the Department of
21	Health to utilize subpoenas to obtain patient records
22	without patients' consent under certain circumstances;
23	amending s. 456.072, F.S.; authorizing the Department of
24	Health to determine administrative costs in disciplinary
25	actions; amending s. 456.073, F.S.; extending the time for
26	the Department of Health to refer a request for an
27	administrative hearing; amending s. 456.077, F.S.;
28	revising provisions relating to designation of certain
29	citation violations; amending s. 456.078, F.S.; revising
30	provisions relating to designation of certain mediation
31	offenses; creating s. 456.085, F.S.; providing for
32	notification of an injury by a physician; amending s.
33	458.331, F.S.; increasing the amount of paid liability
34	claims requiring investigation by the Department of
35	Health; revising the definition of "repeated malpractice"
36	to conform; creating s. 458.3311, F.S.; establishing
37	emergency procedures for disciplinary actions; amending s.
38	459.015, F.S.; increasing the amount of paid liability
39	claims requiring investigation by the Department of
40	Health; revising the definition of "repeated malpractice"
41	to conform; creating s. 459.0151, F.S.; establishing
42	emergency procedures for disciplinary actions; amending s.
43	461.013, F.S.; increasing the amount of paid liability
44	claims requiring investigation by the Department of
45	Health; revising the definition of "repeated malpractice"
46	to conform; amending s. 627.062, F.S.; prohibiting the
47	inclusion of payments made by insurers for bad faith
48	claims in an insurer's rate base; requiring certain rate
49	filings; creating s. 627.0662, F.S.; providing
50	definitions; requiring each medical liability insurer to
51	report certain information to the Office of Insurance
52	Regulation; providing for determination of whether
53	excessive profit has been realized; requiring return of
54	excessive amounts; amending s. 627.357, F.S.; deleting the
55	prohibition against formation of medical malpractice self-
56	insurance funds; providing requirements to form a self-
57	insurance fund; providing rulemaking authority to the
58	Financial Services Commission; creating s. 627.3575, F.S.;
59	creating the Health Care Professional Liability Insurance
60	Facility; providing purpose; providing for governance and
61	powers; providing eligibility requirements; providing for
62	premiums and assessments; providing for regulation;
63	providing applicability; specifying duties of the
64	Department of Health; providing for debt and regulation
65	thereof; amending s. 627.912, F.S.; requiring certain
66	claims information to be filed with the Office of
67	Insurance Regulation and the Department of Health;
68	providing for rulemaking by the Financial Services
69	Commission; creating s. 627.9121, F.S.; requiring certain
70	information relating to medical malpractice to be reported
71	to the Office of Insurance Regulation; providing for
72	enforcement; amending s. 766.106, F.S.; extending the time
73	period for the presuit screening period; providing
74	conditions for causes of action for bad faith against
75	insurers providing coverage for medical negligence;
76	revising provisions relating to a claimant's period to
77	file suit after rejection of a prospective defendant's
78	offer to admit liability and for arbitration on the issue
79	of damages; specifying consequences of failure to
80	cooperate on the part of any party during the presuit
81	investigation; providing factors to be considered with
82	respect to certain claims against bad faith against an
83	insurer; creating s. 766.1065, F.S.; requiring parties to
84	provide certain information to parties without request;
85	authorizing the issuance of subpoenas without case
86	numbers; requiring that parties and certain experts be
87	made available for deposition; providing for mandatory
88	presuit mediation; creating s. 766.1067, F.S.; providing
89	for mandatory mediation in medical negligence causes of
90	action; creating s. 766.118, F.S.; providing a limitation
91	on noneconomic damages which can be awarded in causes of
92	action involving medical negligence; amending s. 766.202,
93	F.S.; providing requirements for medical experts; amending
94	s. 766.203, F.S.; providing for discovery of opinions and
95	statements tendered during presuit investigation; amending
96	s. 766.207, F.S.; conforming provisions to the extension
97	in the time period for presuit investigation; requiring
98	the Department of Health to study the efficacy and
99	constitutionality of medical review panels; requiring a
100	report; amending s. 768.81, F.S.; providing that a
101	defendant's liability for damages in medical negligence
102	cases is several only; creating s. 1004.08, F.S.;
103	requiring patient safety instruction for certain students
104	in public schools, colleges, and universities; creating s.
105	1005.07, F.S.; requiring patient safety instruction for
106	certain students in nonpublic schools, colleges, and
107	universities; requiring a report by the Agency for Health
108	Care Administration regarding information to be provided
109	to health care consumers; requiring a report by the Agency
110	for Health Care Administration regarding the establishment
111	of a Patient Safety Authority; specifying elements of the
112	report; providing severability; providing an effective
113	date.
114
115	Be It Enacted by the Legislature of the State of Florida:
116
117	Section 1. Findings.--
118	(1) The Legislature finds that Florida is in the midst of
119	a medical malpractice insurance crisis of unprecedented
120	magnitude.
121	(2) The Legislature finds that this crisis threatens the
122	quality and availability of health care for all Florida
123	citizens.
124	(3) The Legislature finds that the rapidly growing
125	population and the changing demographics of Florida make it
126	imperative that students continue to choose Florida as the place
127	they will receive their medical educations and practice
128	medicine.
129	(4) The Legislature finds that Florida is among the states
130	with the highest medical malpractice insurance premiums in the
131	nation.
132	(5) The Legislature finds that the cost of medical
133	malpractice insurance has increased dramatically during the past
134	decade and both the increase and the current cost are
135	substantially higher than the national average.
136	(6) The Legislature finds that the increase in medical
137	malpractice liability insurance rates is forcing physicians to
138	practice medicine without professional liability insurance, to
139	leave Florida, to not perform high-risk procedures, or to retire
140	early from the practice of medicine.
141	(7) The Legislature finds that there are certain elements
142	of damage presently recoverable that have no monetary value,
143	except on a purely arbitrary basis, while other elements of
144	damage are either easily measured on a monetary basis or reflect
145	ultimate monetary loss.
146	(8) The Governor created the Governor's Select Task Force
147	on Healthcare Professional Liability Insurance to study and make
148	recommendations to address these problems.
149	(9) The Legislature has reviewed the findings and
150	recommendations of the Governor's Select Task Force on
151	Healthcare Professional Liability Insurance.
152	(10) The Legislature finds that the Governor's Select Task
153	Force on Healthcare Professional Liability Insurance has
154	established that a medical malpractice crisis exists in the
155	State of Florida which can be alleviated by the adoption of
156	comprehensive legislatively enacted reforms.
157	(11) The Legislature finds that making high-quality health
158	care available to the citizens of this state is an overwhelming
159	public necessity.
160	(12) The Legislature finds that ensuring that physicians
161	continue to practice in Florida is an overwhelming public
162	necessity.
163	(13) The Legislature finds that ensuring the availability
164	of affordable professional liability insurance for physicians is
165	an overwhelming public necessity.
166	(14) The Legislature finds, based upon the findings and
167	recommendations of the Governor's Select Task Force on
168	Healthcare Professional Liability Insurance, the findings and
169	recommendations of various study groups throughout the nation,
170	and the experience of other states, that the overwhelming public
171	necessities of making quality health care available to the
172	citizens of this state, of ensuring that physicians continue to
173	practice in Florida, and of ensuring that those physicians have
174	the opportunity to purchase affordable professional liability
175	insurance cannot be met unless a cap on noneconomic damages in
176	an amount no higher than $250,000 is imposed.
177	(15) The Legislature finds that the high cost of medical
178	malpractice claims can be substantially alleviated by imposing a
179	limitation on noneconomic damages in medical malpractice
180	actions.
181	(16) The Legislature further finds that there is no
182	alternative measure of accomplishing such result without
183	imposing even greater limits upon the ability of persons to
184	recover damages for medical malpractice.
185	(17) The Legislature finds that the provisions of this act
186	are naturally and logically connected to each other and to the
187	purpose of making quality health care available to the citizens
188	of Florida.
189	(18) The Legislature finds that each of the provisions of
190	this act is necessary to alleviate the crisis relating to
191	medical malpractice insurance.
192	Section 2. Subsection (7) of section 395.0191, Florida
193	Statutes, is amended to read:
194	395.0191 Staff membership and clinical privileges.--
195	(7) There shall be no monetary liability on the part of,
196	and no cause of action for injunctive relief or damages shall
197	arise against, any licensed facility, its governing board or
198	governing board members, medical staff, or disciplinary board or
199	against its agents, investigators, witnesses, or employees, or
200	against any other person, for any action arising out of or
201	related to carrying out the provisions of this section, absent
202	taken in good faith and without intentional fraud in carrying
203	out the provisions of this section.
204	Section 3. Section 395.1012, Florida Statutes, is created
205	to read:
206	395.1012 Patient safety.--
207	(1) Each licensed facility shall adopt a patient safety
208	plan. A plan adopted to implement the requirements of 42 C.F.R.
209	s. 482.21 shall be deemed to comply with this requirement.
210	(2) Each licensed facility shall appoint a patient safety
211	officer and a patient safety committee, which shall include at
212	least one person who is neither employed by nor practicing in
213	the facility, for the purpose of promoting the health and safety
214	of patients, reviewing and evaluating the quality of patient
215	safety measures used by the facility, and assisting in the
216	implementation of the facility patient safety plan.
217	Section 4. Section 395.1051, Florida Statutes, is created
218	to read:
219	395.1051 Duty to notify patients.--Every licensed facility
220	shall inform each patient, or an individual identified pursuant
221	to s. 765.401(1), in person about unanticipated outcomes of care
222	that result in serious harm to the patient. Notification of
223	outcomes of care that result in harm to the patient under this
224	section shall not constitute an acknowledgement or admission of
225	liability, nor can it be introduced as evidence in any civil
226	lawsuit.
227	Section 5. Section 456.041, Florida Statutes, is amended
228	to read:
229	456.041 Practitioner profile; creation.--
230	(1)(a)Beginning July 1, 1999, the Department of Health
231	shall compile the information submitted pursuant to s. 456.039
232	into a practitioner profile of the applicant submitting the
233	information, except that the Department of Health may develop a
234	format to compile uniformly any information submitted under s.
235	456.039(4)(b). Beginning July 1, 2001, the Department of Health
236	may, and beginning July 1, 2004, shall,compile the information
237	submitted pursuant to s. 456.0391 into a practitioner profile of
238	the applicant submitting the information.
239	(b) Each practitioner licensed under chapter 458 or
240	chapter 459 must report to the Department of Health and the
241	Board of Medicine or the Board of Osteopathic Medicine,
242	respectively, all final disciplinary actions, sanctions by a
243	governmental agency or a facility or entity licensed under state
244	law, and claims or actions, as provided under s. 456.051, to
245	which he or she is subjected no later than 15 calendar days
246	after such action or sanction is imposed. Failure to submit the
247	requisite information within 15 calendar days in accordance with
248	this paragraph shall subject the practitioner to discipline by
249	the Board of Medicine or the Board of Osteopathic Medicine and a
250	fine of $100 for each day that the information is not submitted
251	after the expiration of the 15-day reporting period.
252	(c) Within 15 days after receiving a report under
253	paragraph (b), the department shall update the practitioner's
254	profile in accordance with the requirements of subsection (7).
255	(2) On the profile published under subsection (1), the
256	department shall indicate whetherifthe information provided
257	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
258	corroborated by a criminal history check conducted according to
259	this subsection. If the information provided under s.
260	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
261	criminal history check, the fact that the criminal history check
262	was performed need not be indicated on the profile.The
263	department, or the board having regulatory authority over the
264	practitioner acting on behalf of the department, shall
265	investigate any information received by the department or the
266	board when it has reasonable grounds to believe that the
267	practitioner has violated any law that relates to the
268	practitioner's practice.
269	(3) The Department of Health shallmayinclude in each
270	practitioner's practitioner profile that criminal information
271	that directly relates to the practitioner's ability to
272	competently practice his or her profession. The department must
273	include in each practitioner's practitioner profile the
274	following statement: "The criminal history information, if any
275	exists, may be incomplete; federal criminal history information
276	is not available to the public." The department shall provide in
277	each practitioner profile, for every final disciplinary action
278	taken against the practitioner, a narrative description, written
279	in plain English, that explains the administrative complaint
280	filed against the practitioner and the final disciplinary action
281	imposed on the practitioner. The department shall include a
282	hyperlink to each final order listed on its Internet website
283	report of dispositions of recent disciplinary actions taken
284	against practitioners.
285	(4) The Department of Health shall include, with respect
286	to a practitioner licensed under chapter 458 or chapter 459, a
287	statement of how the practitioner has elected to comply with the
288	financial responsibility requirements of s. 458.320 or s.
289	459.0085. The department shall include, with respect to
290	practitioners subject to s. 456.048, a statement of how the
291	practitioner has elected to comply with the financial
292	responsibility requirements of that section. The department
293	shall include, with respect to practitioners licensed under
294	chapter 458, chapter 459, or chapter 461, information relating
295	to liability actions which has been reported under s. 456.049 or
296	s. 627.912 within the previous 10 years for any paid claim of
297	$50,000 or morethat exceeds $5,000. Such claims information
298	shall be reported in the context of comparing an individual
299	practitioner's claims to the experience of other practitioners
300	within the same specialty, or profession if the practitioner is
301	not a specialist, to the extent such information is available to
302	the Department of Health. The department shall include a
303	hyperlink to all such comparison reports in such practitioner's
304	profile on its Internet website.If information relating to a
305	liability action is included in a practitioner's practitioner
306	profile, the profile must also include the following statement:
307	"Settlement of a claim may occur for a variety of reasons that
308	do not necessarily reflect negatively on the professional
309	competence or conduct of the practitioner. A payment in
310	settlement of a medical malpractice action or claim should not
311	be construed as creating a presumption that medical malpractice
312	has occurred."
313	(5) The Department of Health shallmay not include the
314	date of adisciplinary action taken by a licensed hospital or an
315	ambulatory surgical center, in accordance with the requirements
316	of s. 395.0193, in the practitioner profile. Any practitioner
317	disciplined under paragraph (1)(b) must report to the department
318	the date the disciplinary action was imposed. The department
319	shall state whether the action is related to professional
320	competence and whether it is related to the delivery of services
321	to a patient.
322	(6) The Department of Health may include in the
323	practitioner's practitioner profile any other information that
324	is a public record of any governmental entity and that relates
325	to a practitioner's ability to competently practice his or her
326	profession. However, the department must consult with the board
327	having regulatory authority over the practitioner before such
328	information is included in his or her profile.
329	(7) Upon the completion of a practitioner profile under
330	this section, the Department of Health shall furnish the
331	practitioner who is the subject of the profile a copy of it. The
332	practitioner has a period of 30 days in which to review the
333	profile and to correct any factual inaccuracies in it. The
334	Department of Health shall make the profile available to the
335	public at the end of the 30-day period. The department shall
336	make the profiles available to the public through the World Wide
337	Web and other commonly used means of distribution.
338	(8) The Department of Health shall provide in each profile
339	an easy-to-read explanation of any disciplinary action taken and
340	the reason the sanction or sanctions were imposed.
341	(9)(8)Making a practitioner profile available to the
342	public under this section does not constitute agency action for
343	which a hearing under s. 120.57 may be sought.
344	Section 6. Section 456.042, Florida Statutes, is amended
345	to read:
346	456.042 Practitioner profiles; update.--A practitioner
347	must submit updates of required information within 15 days after
348	the final activity that renders such information a fact.The
349	Department of Health shall update each practitioner's
350	practitioner profile periodically. An updated profile is subject
351	to the same requirements as an original profile with respect to
352	the period within which the practitioner may review the profile
353	for the purpose of correcting factual inaccuracies.
354	Section 7. Subsection (1) of section 456.049, Florida
355	Statutes, is amended, and subsection (3) is added to said
356	section, to read:
357	456.049 Health care practitioners; reports on professional
358	liability claims and actions.--
359	(1) Any practitioner of medicine licensed pursuant to the
360	provisions of chapter 458, practitioner of osteopathic medicine
361	licensed pursuant to the provisions of chapter 459, podiatric
362	physician licensed pursuant to the provisions of chapter 461, or
363	dentist licensed pursuant to the provisions of chapter 466 shall
364	report to the department any claim or action for damages for
365	personal injury alleged to have been caused by error, omission,
366	or negligence in the performance of such licensee's professional
367	services or based on a claimed performance of professional
368	services without consent if the claim was not covered by an
369	insurer required to report under s. 627.912 andthe claim
370	resulted in:
371	(a) A final judgment of $50,000 or more or, with respect
372	to a dentist licensed pursuant to chapter 466, a final judgment
373	of $25,000 or morein any amount.
374	(b) A settlement of $50,000 or more or, with respect to a
375	dentist licensed pursuant to chapter 466, a settlement of
376	$25,000 or morein any amount.
377	(c) A final disposition not resulting in payment on behalf
378	of the licensee.
379
380	Reports shall be filed with the department no later than 60 days
381	following the occurrence of any event listed in paragraph (a),
382	paragraph (b), or paragraph (c).
383	(3) The department shall forward the information collected
384	under this section to the Office of Insurance Regulation.
385	Section 8. Paragraph (a) of subsection (7) of section
386	456.057, Florida Statutes, is amended to read:
387	456.057 Ownership and control of patient records; report
388	or copies of records to be furnished.--
389	(7)(a)1. The department may obtain patient records
390	pursuant to a subpoena without written authorization from the
391	patient if the department and the probable cause panel of the
392	appropriate board, if any, find reasonable cause to believe that
393	a health care practitioner has excessively or inappropriately
394	prescribed any controlled substance specified in chapter 893 in
395	violation of this chapter or any professional practice act or
396	that a health care practitioner has practiced his or her
397	profession below that level of care, skill, and treatment
398	required as defined by this chapter or any professional practice
399	act and also find that appropriate, reasonable attempts were
400	made to obtain a patient release.
401	2. The department may obtain patient records and insurance
402	information pursuant to a subpoena without written authorization
403	from the patient if the department and the probable cause panel
404	of the appropriate board, if any, find reasonable cause to
405	believe that a health care practitioner has provided inadequate
406	medical care based on termination of insurance and also find
407	that appropriate, reasonable attempts were made to obtain a
408	patient release.
409	3. The department may obtain patient records, billing
410	records, insurance information, provider contracts, and all
411	attachments thereto pursuant to a subpoena without written
412	authorization from the patient if the department and probable
413	cause panel of the appropriate board, if any, find reasonable
414	cause to believe that a health care practitioner has submitted a
415	claim, statement, or bill using a billing code that would result
416	in payment greater in amount than would be paid using a billing
417	code that accurately describes the services performed, requested
418	payment for services that were not performed by that health care
419	practitioner, used information derived from a written report of
420	an automobile accident generated pursuant to chapter 316 to
421	solicit or obtain patients personally or through an agent
422	regardless of whether the information is derived directly from
423	the report or a summary of that report or from another person,
424	solicited patients fraudulently, received a kickback as defined
425	in s. 456.054, violated the patient brokering provisions of s.
426	817.505, or presented or caused to be presented a false or
427	fraudulent insurance claim within the meaning of s.
428	817.234(1)(a), and also find that, within the meaning of s.
429	817.234(1)(a), patient authorization cannot be obtained because
430	the patient cannot be located or is deceased, incapacitated, or
431	suspected of being a participant in the fraud or scheme, and if
432	the subpoena is issued for specific and relevant records.
433	4. Notwithstanding subparagraphs 1.-3., when the
434	department investigates a professional liability claim or
435	undertakes action pursuant to s. 456.049 or s. 627.912, the
436	department may obtain patient records pursuant to a subpoena
437	without written authorization from the patient if the patient
438	refuses to cooperate or attempts to obtain a patient release and
439	failure to obtain the patient records would be detrimental to
440	the investigation.
441	Section 9. Subsection (4) of section 456.072, Florida
442	Statutes, is amended to read:
443	456.072 Grounds for discipline; penalties; enforcement.--
444	(4) In anyaddition to any other discipline imposed
445	throughfinal order, or citation, entered on or after July 1,
446	2001, that imposes a penalty or other form of discipline
447	pursuant to this section or discipline imposed through final
448	order, or citation, entered on or after July 1, 2001,for a
449	violation of any practice act, the board, or the department when
450	there is no board, shall assess costs related to the
451	investigation and prosecution of the case, including costs
452	associated with an attorney's time. The amount of costs to be
453	assessed shall be determined by the board, or the department
454	when there is no board, following its consideration of an
455	affidavit of itemized costs and any written objections thereto.
456	In any case in whichwhere the board or the department imposesa
457	fine or assessment of costs imposed by the board or department
458	and the fine or assessmentis not paid within a reasonable time,
459	such reasonable time to be prescribed in the rules of the board,
460	or the department when there is no board, or in the order
461	assessing such fines or costs, the department or the Department
462	of Legal Affairs may contract for the collection of, or bring a
463	civil action to recover, the fine or assessment.
464	Section 10. Subsection (5) of section 456.073, Florida
465	Statutes, is amended to read:
466	456.073 Disciplinary proceedings.--Disciplinary
467	proceedings for each board shall be within the jurisdiction of
468	the department.
469	(5)(a)A formal hearing before an administrative law judge
470	from the Division of Administrative Hearings shall be held
471	pursuant to chapter 120 if there are any disputed issues of
472	material fact. The administrative law judge shall issue a
473	recommended order pursuant to chapter 120. If any party raises
474	an issue of disputed fact during an informal hearing, the
475	hearing shall be terminated and a formal hearing pursuant to
476	chapter 120 shall be held.
477	(b) Notwithstanding s. 120.569(2), the department shall
478	notify the Division of Administrative Hearings within 45 days
479	after receipt of a petition or request for a hearing that the
480	department has determined requires a formal hearing before an
481	administrative law judge.
482	Section 11. Subsections (1) and (2) of section 456.077,
483	Florida Statutes, are amended to read:
484	456.077 Authority to issue citations.--
485	(1) Notwithstanding s. 456.073, the board, or the
486	department if there is no board, shall adopt rules to permit the
487	issuance of citations. The citation shall be issued to the
488	subject and shall contain the subject's name and address, the
489	subject's license number if applicable, a brief factual
490	statement, the sections of the law allegedly violated, and the
491	penalty imposed. The citation must clearly state that the
492	subject may choose, in lieu of accepting the citation, to follow
493	the procedure under s. 456.073. If the subject disputes the
494	matter in the citation, the procedures set forth in s. 456.073
495	must be followed. However, if the subject does not dispute the
496	matter in the citation with the department within 30 days after
497	the citation is served, the citation becomes a publicfinal
498	order and does not constituteconstitutes discipline for a first
499	offense. The penalty shall be a fine or other conditions as
500	established by rule.
501	(2) The board, or the department if there is no board,
502	shall adopt rules designating violations for which a citation
503	may be issued. Such rules shall designate as citation violations
504	those violations for which there is no substantial threat to the
505	public health, safety, and welfare or no violation of standard
506	of care involving injury to a patient. Violations for which a
507	citation may be issued shall include violations of continuing
508	education requirements; failure to timely pay required fees and
509	fines; failure to comply with the requirements of ss. 381.026
510	and 381.0261 regarding the dissemination of information
511	regarding patient rights; failure to comply with advertising
512	requirements; failure to timely update practitioner profile and
513	credentialing files; failure to display signs, licenses, and
514	permits; failure to have required reference books available; and
515	all other violations that do not pose a direct and serious
516	threat to the health and safety of the patient or involve a
517	violation of standard of care that has resulted in injury to a
518	patient.
519	Section 12. Subsections (1) and (2) of section 456.078,
520	Florida Statutes, are amended to read:
521	456.078 Mediation.--
522	(1) Notwithstanding the provisions of s. 456.073, the
523	board, or the department when there is no board, shall adopt
524	rules to designate which violations of the applicable
525	professional practice act are appropriate for mediation. The
526	board, or the department when there is no board, shallmay
527	designate as mediation offenses those complaints where harm
528	caused by the licensee is economic in nature, except any act or
529	omission involving intentional misconduct,orcan be remedied by
530	the licensee, is not a standard of care violation involving any
531	type of injury to a patient, or does not result in an adverse
532	incident. For the purposes of this section, an "adverse
533	incident" means an event that results in:
534	(a) The death of a patient;
535	(b) Brain or spinal damage to a patient;
536	(c) The performance of a surgical procedure on the wrong
537	patient;
538	(d) The performance of a wrong-site surgical procedure;
539	(e) The performance of a surgical procedure that is
540	medically unnecessary or otherwise unrelated to the patient's
541	diagnosis or medical condition;
542	(f) The surgical repair of damage to a patient resulting
543	from a planned surgical procedure, which damage is not a
544	recognized specific risk as disclosed to the patient and
545	documented through the informed-consent process;
546	(g) The performance of a procedure to remove unplanned
547	foreign objects remaining from a surgical procedure; or
548	(h) The performance of any other surgical procedure that
549	breached the standard of care.
550	(2) After the department determines a complaint is legally
551	sufficient and the alleged violations are defined as mediation
552	offenses, the department or any agent of the department may
553	conduct informal mediation to resolve the complaint. If the
554	complainant and the subject of the complaint agree to a
555	resolution of a complaint within 14 days after contact by the
556	mediator, the mediator shall notify the department of the terms
557	of the resolution. The department or board shall take no
558	further action unless the complainant and the subject each fail
559	to record with the department an acknowledgment of satisfaction
560	of the terms of mediation within 60 days of the mediator's
561	notification to the department. A successful mediation shall not
562	constitute discipline.In the event the complainant and subject
563	fail to reach settlement terms or to record the required
564	acknowledgment, the department shall process the complaint
565	according to the provisions of s. 456.073.
566	Section 13. Section 456.085, Florida Statutes, is created
567	to read:
568	456.085 Duty to notify patients.--Every physician licensed
569	under chapter 458 or chapter 459 shall inform each patient, or
570	an individual identified pursuant to s. 765.401(1), in person
571	about unanticipated outcomes of care that result in serious harm
572	to the patient. Notification of outcomes of care that result in
573	harm to the patient under this section shall not constitute an
574	acknowledgement or admission of liability, nor can it be
575	introduced as evidence in any civil lawsuit.
576	Section 14. Paragraph (t) of subsection (1) and subsection
577	(6) of section 458.331, Florida Statutes, are amended to read:
578	458.331 Grounds for disciplinary action; action by the
579	board and department.--
580	(1) The following acts constitute grounds for denial of a
581	license or disciplinary action, as specified in s. 456.072(2):
582	(t) Gross or repeated malpractice or the failure to
583	practice medicine with that level of care, skill, and treatment
584	which is recognized by a reasonably prudent similar physician as
585	being acceptable under similar conditions and circumstances. The
586	board shall give great weight to the provisions of s. 766.102
587	when enforcing this paragraph. As used in this paragraph,
588	"repeated malpractice" includes, but is not limited to, three or
589	more claims for medical malpractice within the previous 5-year
590	period resulting in indemnities being paid in excess of $50,000
591	$25,000each to the claimant in a judgment or settlement and
592	which incidents involved negligent conduct by the physician. As
593	used in this paragraph, "gross malpractice" or "the failure to
594	practice medicine with that level of care, skill, and treatment
595	which is recognized by a reasonably prudent similar physician as
596	being acceptable under similar conditions and circumstances,"
597	shall not be construed so as to require more than one instance,
598	event, or act. Nothing in this paragraph shall be construed to
599	require that a physician be incompetent to practice medicine in
600	order to be disciplined pursuant to this paragraph.
601	(6) Upon the department's receipt from an insurer or self-
602	insurer of a report of a closed claim against a physician
603	pursuant to s. 627.912 or from a health care practitioner of a
604	report pursuant to s. 456.049, or upon the receipt from a
605	claimant of a presuit notice against a physician pursuant to s.
606	766.106, the department shall review each report and determine
607	whether it potentially involved conduct by a licensee that is
608	subject to disciplinary action, in which case the provisions of
609	s. 456.073 shall apply. However, if it is reported that a
610	physician has had three or more claims with indemnities
611	exceeding $50,000$25,000each within the previous 5-year
612	period, the department shall investigate the occurrences upon
613	which the claims were based and determine if action by the
614	department against the physician is warranted.
615	Section 15. Section 458.3311, Florida Statutes, is created
616	to read:
617	458.3311 Emergency procedures for disciplinary
618	action.--Notwithstanding any other provision of law to the
619	contrary:
620	(1) Each physician must report to the Department of Health
621	any judgment for medical negligence levied against the
622	physician. The physician must make the report no later than 15
623	days after the exhaustion of the last opportunity for any party
624	to appeal the judgment or request a rehearing.
625	(2) No later than 30 days after a physician has, within a
626	60-month period, made three reports as required by subsection
627	(1), the Department of Health shall initiate an emergency
628	investigation and the Board of Medicine shall conduct an
629	emergency probable cause hearing to determine whether the
630	physician should be disciplined for a violation of s.
631	458.331(1)(t) or any other relevant provision of law.
632	Section 16. Paragraph (x) of subsection (1) and subsection
633	(6) of section 459.015, Florida Statutes, are amended to read:
634	459.015 Grounds for disciplinary action; action by the
635	board and department.--
636	(1) The following acts constitute grounds for denial of a
637	license or disciplinary action, as specified in s. 456.072(2):
638	(x) Gross or repeated malpractice or the failure to
639	practice osteopathic medicine with that level of care, skill,
640	and treatment which is recognized by a reasonably prudent
641	similar osteopathic physician as being acceptable under similar
642	conditions and circumstances. The board shall give great weight
643	to the provisions of s. 766.102 when enforcing this paragraph.
644	As used in this paragraph, "repeated malpractice" includes, but
645	is not limited to, three or more claims for medical malpractice
646	within the previous 5-year period resulting in indemnities being
647	paid in excess of $50,000$25,000each to the claimant in a
648	judgment or settlement and which incidents involved negligent
649	conduct by the osteopathic physician. As used in this paragraph,
650	"gross malpractice" or "the failure to practice osteopathic
651	medicine with that level of care, skill, and treatment which is
652	recognized by a reasonably prudent similar osteopathic physician
653	as being acceptable under similar conditions and circumstances"
654	shall not be construed so as to require more than one instance,
655	event, or act. Nothing in this paragraph shall be construed to
656	require that an osteopathic physician be incompetent to practice
657	osteopathic medicine in order to be disciplined pursuant to this
658	paragraph. A recommended order by an administrative law judge or
659	a final order of the board finding a violation under this
660	paragraph shall specify whether the licensee was found to have
661	committed "gross malpractice," "repeated malpractice," or
662	"failure to practice osteopathic medicine with that level of
663	care, skill, and treatment which is recognized as being
664	acceptable under similar conditions and circumstances," or any
665	combination thereof, and any publication by the board shall so
666	specify.
667	(6) Upon the department's receipt from an insurer or self-
668	insurer of a report of a closed claim against an osteopathic
669	physician pursuant to s. 627.912 or from a health care
670	practitioner of a report pursuant to s. 456.049, or upon the
671	receipt from a claimant of a presuit notice against an
672	osteopathic physician pursuant to s. 766.106, the department
673	shall review each report and determine whether it potentially
674	involved conduct by a licensee that is subject to disciplinary
675	action, in which case the provisions of s. 456.073 shall apply.
676	However, if it is reported that an osteopathic physician has had
677	three or more claims with indemnities exceeding $50,000$25,000
678	each within the previous 5-year period, the department shall
679	investigate the occurrences upon which the claims were based and
680	determine if action by the department against the osteopathic
681	physician is warranted.
682	Section 17. Section 459.0151, Florida Statutes, is created
683	to read:
684	459.0151 Emergency procedures for disciplinary
685	action.--Notwithstanding any other provision of law to the
686	contrary:
687	(1) Each osteopathic physician must report to the
688	Department of Health any judgment for medical negligence levied
689	against the physician. The osteopathic physician must make the
690	report no later than 15 days after the exhaustion of the last
691	opportunity for any party to appeal the judgment or request a
692	rehearing.
693	(2) No later than 30 days after an osteopathic physician
694	has, within a 60-month period, made three reports as required by
695	subsection (1), the Department of Health shall initiate an
696	emergency investigation and the Board of Osteopathic Medicine
697	shall conduct an emergency probable cause hearing to determine
698	whether the physician should be disciplined for a violation of
699	s. 459.015(1)(x) or any other relevant provision of law.
700	Section 18. Paragraph (s) of subsection (1) and paragraph
701	(a) of subsection (5) of section 461.013, Florida Statutes, are
702	amended to read:
703	461.013 Grounds for disciplinary action; action by the
704	board; investigations by department.--
705	(1) The following acts constitute grounds for denial of a
706	license or disciplinary action, as specified in s. 456.072(2):
707	(s) Gross or repeated malpractice or the failure to
708	practice podiatric medicine at a level of care, skill, and
709	treatment which is recognized by a reasonably prudent podiatric
710	physician as being acceptable under similar conditions and
711	circumstances. The board shall give great weight to the
712	standards for malpractice in s. 766.102 in interpreting this
713	section. As used in this paragraph, "repeated malpractice"
714	includes, but is not limited to, three or more claims for
715	medical malpractice within the previous 5-year period resulting
716	in indemnities being paid in excess of $50,000$10,000each to
717	the claimant in a judgment or settlement and which incidents
718	involved negligent conduct by the podiatric physicians. As used
719	in this paragraph, "gross malpractice" or "the failure to
720	practice podiatric medicine with the level of care, skill, and
721	treatment which is recognized by a reasonably prudent similar
722	podiatric physician as being acceptable under similar conditions
723	and circumstances" shall not be construed so as to require more
724	than one instance, event, or act.
725	(5)(a) Upon the department's receipt from an insurer or
726	self-insurer of a report of a closed claim against a podiatric
727	physician pursuant to s. 627.912, or upon the receipt from a
728	claimant of a presuit notice against a podiatric physician
729	pursuant to s. 766.106, the department shall review each report
730	and determine whether it potentially involved conduct by a
731	licensee that is subject to disciplinary action, in which case
732	the provisions of s. 456.073 shall apply. However, if it is
733	reported that a podiatric physician has had three or more claims
734	with indemnities exceeding $50,000$25,000each within the
735	previous 5-year period, the department shall investigate the
736	occurrences upon which the claims were based and determine if
737	action by the department against the podiatric physician is
738	warranted.
739	Section 19. Subsections (7), (8), and (9) are added to
740	section 627.062, Florida Statutes, to read:
741	627.062 Rate standards.--
742	(7) Notwithstanding any other provision of this section,
743	in matters relating to professional liability insurance coverage
744	for medical negligence, any portion of a judgment entered as a
745	result of a statutory or common-law bad faith action and any
746	portion of a judgment entered that awards punitive damages
747	against an insurer may not be included in the insurer's rate
748	base and may not be used to justify a rate or rate change. In
749	matters relating to professional liability insurance coverage
750	for medical negligence, any portion of a settlement entered as a
751	result of a statutory or common-law bad faith action identified
752	as such and any portion of a settlement wherein an insurer
753	agrees to pay specific punitive damages may not be used to
754	justify a rate or rate change. The portion of the taxable costs
755	and attorney's fees that is identified as being related to the
756	bad faith and punitive damages in these judgments and
757	settlements may not be included in the insurer's rate base and
758	may not be utilized to justify a rate or rate change.
759	(8) Each insurer writing professional liability insurance
760	coverage for medical negligence must make a rate filing under
761	this section with the Office of Insurance Regulation at least
762	once each calendar year.
763	(9) Medical malpractice insurance companies shall submit a
764	rate filing to the Office of Insurance Regulation no earlier
765	than 30 days, but no later than 120 days, after the date upon
766	which this act becomes law.
767	Section 20. Section 627.0662, Florida Statutes, is created
768	to read:
769	627.0662 Excessive profits for medical liability insurance
770	prohibited.--
771	(1) As used in this section:
772	(a) “Medical liability insurance” means insurance that is
773	written on a professional liability insurance policy issued to a
774	health care practitioner or on a liability insurance policy
775	covering medical malpractice claims issued to a health care
776	facility.
777	(b) “Medical liability insurer” means any insurance
778	company or group of insurance companies writing medical
779	liability insurance in this state and does not include any self-
780	insurance fund or other nonprofit entity writing such insurance.
781	(2) Each medical liability insurer shall file with the
782	Office of Insurance Regulation, prior to July 1 of each year on
783	forms prescribed by the office, the following data for medical
784	liability insurance business in this state. The data shall
785	include both voluntary and joint underwriting association
786	business, as follows:
787	(a) Calendar-year earned premium.
788	(b) Accident-year incurred losses and loss adjustment
789	expenses.
790	(c) The administrative and selling expenses incurred in
791	this state or allocated to this state for the calendar year.
792	(d) Policyholder dividends incurred during the applicable
793	calendar year.
794	(3)(a) Excessive profit has been realized if there has
795	been an underwriting gain for the 3 most recent calendar-
796	accident years combined which is greater than the anticipated
797	underwriting profit plus 5 percent of earned premiums for those
798	calendar-accident years.
799	(b) As used in this subsection with respect to any 3-year
800	period, “anticipated underwriting profit” means the sum of the
801	dollar amounts obtained by multiplying, for each rate filing of
802	the insurer group in effect during such period, the earned
803	premiums applicable to such rate filing during such period by
804	the percentage factor included in such rate filing for profit
805	and contingencies, such percentage factor having been determined
806	with due recognition to investment income from funds generated
807	by business in this state. Separate calculations need not be
808	made for consecutive rate filings containing the same percentage
809	factor for profits and contingencies.
810	(4) Each medical liability insurer shall also file a
811	schedule of medical liability insurance loss in this state and
812	loss adjustment experience for each of the 3 most recent
813	accident years. The incurred losses and loss adjustment expenses
814	shall be valued as of March 31 of the year following the close
815	of the accident year, developed to an ultimate basis, and at two
816	12-month intervals thereafter, each developed to an ultimate
817	basis, to the extent that a total of three evaluations is
818	provided for each accident year. The first year to be so
819	reported shall be accident year 2004, such that the reporting of
820	3 accident years will not take place until accident years 2005
821	and 2006 have become available.
822	(5) Each insurer group's underwriting gain or loss for
823	each calendar-accident year shall be computed as follows: the
824	sum of the accident-year incurred losses and loss adjustment
825	expenses as of March 31 of the following year, developed to an
826	ultimate basis, plus the administrative and selling expenses
827	incurred in the calendar year, plus policyholder dividends
828	applicable to the calendar year, shall be subtracted from the
829	calendar-year earned premium to determine the underwriting gain
830	or loss.
831	(6) For the 3 most recent calendar-accident years, the
832	underwriting gain or loss shall be compared to the anticipated
833	underwriting profit.
834	(7) If the medical liability insurer has realized an
835	excessive profit, the office shall order a return of the
836	excessive amounts to policyholders after affording the insurer
837	an opportunity for hearing and otherwise complying with the
838	requirements of chapter 120. Such excessive amounts shall be
839	refunded to policyholders in all instances unless the insurer
840	affirmatively demonstrates to the office that the refund of the
841	excessive amounts will render the insurer or a member of the
842	insurer group financially impaired or will render it insolvent.
843	(8) The excessive amount shall be refunded to
844	policyholders on a pro rata basis in relation to the final
845	compilation year earned premiums to the voluntary medical
846	liability insurance policyholders of record of the insurer group
847	on December 31 of the final compilation year.
848	(9) Any return of excessive profits to policyholders under
849	this section shall be provided in the form of a cash refund or a
850	credit towards the future purchase of insurance.
851	(10)(a) Cash refunds to policyholders may be rounded to
852	the nearest dollar.
853	(b) Data in required reports to the office may be rounded
854	to the nearest dollar.
855	(c) Rounding, if elected by the insurer group, shall be
856	applied consistently.
857	(11)(a) Refunds to policyholders shall be completed as
858	follows:
859	1. If the insurer elects to make a cash refund, the refund
860	shall be completed within 60 days after entry of a final order
861	determining that excessive profits have been realized; or
862	2. If the insurer elects to make refunds in the form of a
863	credit to renewal policies, such credits shall be applied to
864	policy renewal premium notices which are forwarded to insureds
865	more than 60 calendar days after entry of a final order
866	determining that excessive profits have been realized. If an
867	insurer has made this election but an insured thereafter cancels
868	his or her policy or otherwise allows the policy to terminate,
869	the insurer group shall make a cash refund not later than 60
870	days after termination of such coverage.
871	(b) Upon completion of the renewal credits or refund
872	payments, the insurer shall immediately certify to the office
873	that the refunds have been made.
874	(12) Any refund or renewal credit made pursuant to this
875	section shall be treated as a policyholder dividend applicable
876	to the year in which it is incurred, for purposes of reporting
877	under this section for subsequent years.
878	Section 21. Subsection (10) of section 627.357, Florida
879	Statutes, is amended to read:
880	627.357 Medical malpractice self-insurance.--
881	(10)(a) An application to form a self-insurance fund under
882	this section must be filed with the Office of Insurance
883	Regulation.
884	(b) The Office of Insurance Regulation must ensure that
885	self-insurance funds remain solvent and provide insurance
886	coverage purchased by participants. The Financial Services
887	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
888	to implement this subsectionA self-insurance fund may not be
889	formed under this section after October 1, 1992.
890	Section 22. Section 627.3575, Florida Statutes, is created
891	to read:
892	627.3575 Health Care Professional Liability Insurance
893	Facility.--
894	(1) FACILITY CREATED; PURPOSE; STATUS.--There is created
895	the Health Care Professional Liability Insurance Facility. The
896	facility is intended to meet ongoing availability and
897	affordability problems relating to liability insurance for
898	health care professionals by providing an affordable, self-
899	supporting source of excess insurance coverage for those
900	professionals who are willing and able to self-insure for
901	smaller losses. The facility shall operate on a not-for-profit
902	basis. The facility is self-funding and is intended to serve a
903	public purpose but is not a state agency or program, and no
904	activity of the facility shall create any state liability.
905	(2) GOVERNANCE; POWERS.--
906	(a) The facility shall operate under a seven-member board
907	of governors consisting of the Secretary of Health, three
908	members appointed by the Governor, and three members appointed
909	by the Chief Financial Officer. The board shall be chaired by
910	the Secretary of Health. The secretary shall serve by virtue of
911	his or her office, and the other members of the board shall
912	serve terms concurrent with the term of office of the official
913	who appointed them. Any vacancy on the board shall be filled in
914	the same manner as the original appointment. Members serve at
915	the pleasure of the official who appointed them. Members are not
916	eligible for compensation for their service on the board, but
917	the facility may reimburse them for per diem and travel expenses
918	at the same levels as are provided in s. 112.061 for state
919	employees.
920	(b) The facility shall have such powers as are necessary
921	to operate as an insurer, including the power to:
922	1. Sue and be sued.
923	2. Hire such employees and retain such consultants,
924	attorneys, actuaries, and other professionals as it deems
925	appropriate.
926	3. Contract with such service providers as it deems
927	appropriate.
928	4. Maintain offices appropriate to the conduct of its
929	business.
930	5. Take such other actions as are necessary or appropriate
931	in fulfillment of its responsibilities under this section.
932	(3) COVERAGE PROVIDED.--The facility shall provide
933	liability insurance coverage for health care professionals. The
934	facility shall allow policyholders to select from policies with
935	deductibles of $25,000 per claim, $50,000 per claim, and
936	$100,000 per claim and with coverage limits of $250,000 per
937	claim and $750,000 annual aggregate and $1 million per claim and
938	$3 million annual aggregate. To the greatest extent possible,
939	the terms and conditions of the policies shall be consistent
940	with terms and conditions commonly used by professional
941	liability insurers.
942	(4) ELIGIBILITY; TERMINATION.--
943	(a) Any health care professional is eligible for coverage
944	provided by the facility if the professional at all times
945	maintains either:
946	1. An escrow account consisting of cash or assets eligible
947	for deposit under s. 625.52 in an amount equal to the deductible
948	amount of the policy; or
949	2. An unexpired, irrevocable letter of credit, established
950	pursuant to chapter 675, in an amount not less than the
951	deductible amount of the policy. The letter of credit shall be
952	payable to the health care professional as beneficiary upon
953	presentment of a final judgment indicating liability and
954	awarding damages to be paid by the physician or upon presentment
955	of a settlement agreement signed by all parties to such
956	agreement when such final judgment or settlement is a result of
957	a claim arising out of the rendering of, or the failure to
958	render, medical care and services. Such letter of credit shall
959	be nonassignable and nontransferable. Such letter of credit
960	shall be issued by any bank or savings association organized and
961	existing under the laws of this state or any bank or savings
962	association organized under the laws of the United States that
963	has its principal place of business in this state or has a
964	branch office which is authorized under the laws of this state
965	or of the United States to receive deposits in this state.
966	(b) The eligibility of a health care professional for
967	coverage terminates upon:
968	1. The failure of the professional to comply with
969	paragraph (a);
970	2. The failure of the professional to timely pay premiums
971	or assessments; or
972	3. The commission of any act of fraud in connection with
973	the policy, as determined by the board of governors.
974	(c) The board of governors, in its discretion, may
975	reinstate the eligibility of a health care professional whose
976	eligibility has terminated pursuant to paragraph (b) upon
977	determining that the professional has come back into compliance
978	with paragraph (a) or has paid the overdue premiums or
979	assessments. Eligibility may be reinstated in the case of fraud
980	only if the board determines that its initial determination of
981	fraud was in error.
982	(5) PREMIUMS; ASSESSMENTS.--
983	(a) The facility shall charge the actuarially indicated
984	premium for the coverage provided and shall retain the services
985	of consulting actuaries to prepare its rate filings. The
986	facility shall not provide dividends to policyholders, and, to
987	the extent that premiums are more than the amount required to
988	cover claims and expenses, such excess shall be retained by the
989	facility for payment of future claims. In the event of
990	dissolution of the facility, any amounts not required as a
991	reserve for outstanding claims shall be transferred to the
992	policyholders of record as of the last day of operation.
993	(b) In the event that the premiums for a particular year,
994	together with any investment income or reinsurance recoveries
995	attributable to that year, are insufficient to pay claims
996	arising out of claims accruing in that year, the facility shall
997	levy assessments against all of its policyholders in a uniform
998	percentage of premium. Each policyholder's assessment shall be
999	such percentage of the premium that policyholder paid for
1000	coverage for the year to which the insufficiency is
1001	attributable.
1002	(c) The policyholder is personally liable for any
1003	assessment. The failure to timely pay an assessment is grounds
1004	for suspension or revocation of the policyholder's professional
1005	license by the appropriate licensing entity.
1006	(6) REGULATION; APPLICABILITY OF OTHER STATUTES.--
1007	(a) The facility shall operate pursuant to a plan of
1008	operation approved by order of the Office of Insurance
1009	Regulation of the Financial Services Commission. The board of
1010	governors may at any time adopt amendments to the plan of
1011	operation and submit the amendments to the Office of Insurance
1012	Regulation for approval.
1013	(b) The facility is subject to regulation by the Office of
1014	Insurance Regulation of the Financial Services Commission in the
1015	same manner as other insurers, except that, in recognition of
1016	the fact that its ability to levy assessments against its own
1017	policyholders is a substitute for the protections ordinarily
1018	afforded by such statutory requirements, the facility is exempt
1019	from statutory requirements relating to surplus as to
1020	policyholders.
1021	(c) The facility is not subject to part II of chapter 631,
1022	relating to the Florida Insurance Guaranty Association.
1023	(7) STARTUP PROVISIONS.--
1024	(a) It is the intent of the Legislature that the facility
1025	begin providing coverage no later than January 1, 2004.
1026	(b) The Governor and the Chief Financial Officer shall
1027	make their appointments to the board of governors of the
1028	facility no later than July 1, 2003. Until the board is
1029	appointed, the Secretary of Health may perform ministerial acts
1030	on behalf of the facility as chair of the board of governors.
1031	(c) Until the facility is able to hire permanent staff and
1032	enter into contracts for professional services, the office of
1033	the Secretary of Health shall provide support services to the
1034	facility.
1035	(d) In order to provide startup funds for the facility,
1036	the board of governors may incur debt or enter into agreements
1037	for lines of credit, provided that the sole source of funds for
1038	repayment of any debt is future premium revenues of the
1039	facility. The amount of such debt or lines of credit may not
1040	exceed $10 million.
1041	Section 23. Subsection (1) and paragraph (n) of subsection
1042	(2) of section 627.912, Florida Statutes, are amended to read:
1043	627.912 Professional liability claims and actions; reports
1044	by insurers.--
1045	(1)(a)Each self-insurer authorized under s. 627.357 and
1046	each insurer or joint underwriting association providing
1047	professional liability insurance to a practitioner of medicine
1048	licensed under chapter 458, to a practitioner of osteopathic
1049	medicine licensed under chapter 459, to a podiatric physician
1050	licensed under chapter 461, to a dentist licensed under chapter
1051	466, to a hospital licensed under chapter 395, to a crisis
1052	stabilization unit licensed under part IV of chapter 394, to a
1053	health maintenance organization certificated under part I of
1054	chapter 641, to clinics included in chapter 390, to an
1055	ambulatory surgical center as defined in s. 395.002, or to a
1056	member of The Florida Bar shall report in duplicate to the
1057	Department of Insurance any claim or action for damages for
1058	personal injuries claimed to have been caused by error,
1059	omission, or negligence in the performance of such insured's
1060	professional services or based on a claimed performance of
1061	professional services without consent, if the claim resulted in:
1062	1.(a)A final judgment in any amount.
1063	2.(b)A settlement in any amount.
1064
1065	Reports shall be filed with the department.
1066	(b) In addition to the requirements of paragraph (a), if
1067	the insured party is licensed under chapter 395, chapter 458,
1068	chapter 459, chapter 461, or chapter 466, the insurer shall
1069	report in duplicate to the Office of Insurance Regulation any
1070	other disposition of the claim, including, but not limited to, a
1071	dismissal. If the insured is licensed under chapter 458, chapter
1072	459, or chapter 461, any claim that resulted in a final judgment
1073	or settlement in the amount of $50,000 or more shall be reported
1074	to the Department of Health no later than 30 days following the
1075	occurrence of that event. If the insured is licensed under
1076	chapter 466, any claim that resulted in a final judgment or
1077	settlement in the amount of $25,000 or more shall be reported to
1078	the Department of Health no later than 30 days following the
1079	occurrence of that eventand, if the insured party is licensed
1080	under chapter 458, chapter 459, chapter 461, or chapter 466,
1081	with the Department of Health, no later than 30 days following
1082	the occurrence of any event listed in paragraph (a) or paragraph
1083	(b). The Department of Health shall review each report and
1084	determine whether any of the incidents that resulted in the
1085	claim potentially involved conduct by the licensee that is
1086	subject to disciplinary action, in which case the provisions of
1087	s. 456.073 shall apply. The Department of Health, as part of the
1088	annual report required by s. 456.026, shall publish annual
1089	statistics, without identifying licensees, on the reports it
1090	receives, including final action taken on such reports by the
1091	Department of Health or the appropriate regulatory board.
1092	(2) The reports required by subsection (1) shall contain:
1093	(n) Any other information required by the department to
1094	analyze and evaluate the nature, causes, location, cost, and
1095	damages involved in professional liability cases. The Financial
1096	Services Commission shall adopt by rule requirements for
1097	additional information to assist the Office of Insurance
1098	Regulation in its analysis and evaluation of the nature, causes,
1099	location, cost, and damages involved in professional liability
1100	cases reported by insurers under this section.
1101	Section 24. Section 627.9121, Florida Statutes, is created
1102	to read:
1103	627.9121 Required reporting of claims; penalties.--Each
1104	entity that makes payment under a policy of insurance, self-
1105	insurance, or otherwise in settlement, partial settlement, or
1106	satisfaction of a judgment in a medical malpractice action or
1107	claim that is required to report information to the National
1108	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
1109	the same information to the Office of Insurance Regulation. The
1110	office shall include such information in the data that it
1111	compiles under s. 627.912. The office must compile and review
1112	the data collected pursuant to this section and must assess an
1113	administrative fine on any entity that fails to fully comply
1114	with such reporting requirements.
1115	Section 25. Subsections (3) and (4) and paragraph (a) of
1116	subsection (10) of section 766.106, Florida Statutes, are
1117	amended, and subsections (13), (14), and (15) are added to said
1118	section, to read:
1119	766.106 Notice before filing action for medical
1120	malpractice; presuit screening period; offers for admission of
1121	liability and for arbitration; informal discovery; review.--
1122	(3)(a) No suit may be filed for a period of 18090days
1123	after notice is mailed to any prospective defendant. During the
1124	180-day90-dayperiod, the prospective defendant's insurer or
1125	self-insurer shall conduct a review to determine the liability
1126	of the defendant. Each insurer or self-insurer shall have a
1127	procedure for the prompt investigation, review, and evaluation
1128	of claims during the 180-day90-dayperiod. This procedure shall
1129	include one or more of the following:
1130	1. Internal review by a duly qualified claims adjuster;
1131	2. Creation of a panel comprised of an attorney
1132	knowledgeable in the prosecution or defense of medical
1133	malpractice actions, a health care provider trained in the same
1134	or similar medical specialty as the prospective defendant, and a
1135	duly qualified claims adjuster;
1136	3. A contractual agreement with a state or local
1137	professional society of health care providers, which maintains a
1138	medical review committee;
1139	4. Any other similar procedure which fairly and promptly
1140	evaluates the pending claim.
1141
1142	Each insurer or self-insurer shall investigate the claim in good
1143	faith, and both the claimant and prospective defendant shall
1144	cooperate with the insurer in good faith. If the insurer
1145	requires, a claimant shall appear before a pretrial screening
1146	panel or before a medical review committee and shall submit to a
1147	physical examination, if required. Unreasonable failure of any
1148	party to comply with this section justifies dismissal of claims
1149	or defenses. There shall be no civil liability for participation
1150	in a pretrial screening procedure if done without intentional
1151	fraud.
1152	(b) At or before the end of the 18090days, the insurer
1153	or self-insurer shall provide the claimant with a response:
1154	1. Rejecting the claim;
1155	2. Making a settlement offer; or
1156	3. Making an offer of admission of liability and for
1157	arbitration on the issue of damages. This offer may be made
1158	contingent upon a limit of general damages.
1159	(c) The response shall be delivered to the claimant if not
1160	represented by counsel or to the claimant's attorney, by
1161	certified mail, return receipt requested. Failure of the
1162	prospective defendant or insurer or self-insurer to reply to the
1163	notice within 18090days after receipt shall be deemed a final
1164	rejection of the claim for purposes of this section.
1165	(d) Within 30 days afterofreceipt of a response by a
1166	prospective defendant, insurer, or self-insurer to a claimant
1167	represented by an attorney, the attorney shall advise the
1168	claimant in writing of the response, including:
1169	1. The exact nature of the response under paragraph (b).
1170	2. The exact terms of any settlement offer, or admission
1171	of liability and offer of arbitration on damages.
1172	3. The legal and financial consequences of acceptance or
1173	rejection of any settlement offer, or admission of liability,
1174	including the provisions of this section.
1175	4. An evaluation of the time and likelihood of ultimate
1176	success at trial on the merits of the claimant's action.
1177	5. An estimation of the costs and attorney's fees of
1178	proceeding through trial.
1179	(4) The notice of intent to initiate litigation shall be
1180	served within the time limits set forth in s. 95.11. However,
1181	during the 180-day90-dayperiod, the statute of limitations is
1182	tolled as to all potential defendants. Upon stipulation by the
1183	parties, the 180-day90-dayperiod may be extended and the
1184	statute of limitations is tolled during any such extension. Upon
1185	receiving notice of termination of negotiations in an extended
1186	period, the claimant shall have 60 days or the remainder of the
1187	period of the statute of limitations, whichever is greater,
1188	within which to file suit.
1189	(10) If a prospective defendant makes an offer to admit
1190	liability and for arbitration on the issue of damages, the
1191	claimant has 50 days from the date of receipt of the offer to
1192	accept or reject it. The claimant shall respond in writing to
1193	the insurer or self-insurer by certified mail, return receipt
1194	requested. If the claimant rejects the offer, he or she may then
1195	file suit. Acceptance of the offer of admission of liability and
1196	for arbitration waives recourse to any other remedy by the
1197	parties, and the claimant's written acceptance of the offer
1198	shall so state.
1199	(a) If rejected, the offer to admit liability and for
1200	arbitration on damages is not admissible in any subsequent
1201	litigation. Upon rejection of the offer to admit liability and
1202	for arbitration, the claimant has 60 days from receipt of the
1203	rejection of the offer to admit liability and for arbitration,
1204	60 days from the date of the declaration of impasse during
1205	presuit mediation conducted pursuant to s. 766.1065,or the
1206	remainder of the period of the statute of limitations, whichever
1207	period is greater, in which to file suit.
1208	(13) In matters relating to professional liability
1209	insurance coverage for medical negligence, an insurer shall not
1210	be held in bad faith for failure to timely pay its policy limits
1211	if it tenders its policy limits and meets all other conditions
1212	of settlement prior to the conclusion of the presuit screening
1213	period provided for in this section.
1214	(14) Failure to cooperate on the part of any party during
1215	the presuit investigation may be grounds to strike any claim
1216	made, or defense raised, by such party in suit.
1217	(15) In all matters relating to professional liability
1218	insurance coverage for medical negligence, and in determining
1219	whether the insurer acted fairly and honestly towards its
1220	insured with due regard for her or his interest during the
1221	presuit process or after a complaint has been filed, the
1222	following factors shall be considered:
1223	(a) The insurer’s willingness to negotiate with the
1224	claimant;
1225	(b) The insurer’s consideration of the advice of its
1226	defense counsel;
1227	(c) The insurer’s proper investigation of the claim;
1228	(d) Whether the insurer informed the insured of the offer
1229	to settle within the limits of coverage, the right to retain
1230	personal counsel, and risk of litigation;
1231	(e) Whether the insured denied liability or requested that
1232	the case be defended; and
1233	(f) Whether the claimant imposed any condition, other than
1234	the tender of the policy limits, on the settlement of the claim.
1235	Section 26. Section 766.1065, Florida Statutes, is created
1236	to read:
1237	766.1065 Mandatory staging of presuit investigation and
1238	mandatory mediation.--
1239	(1) Within 30 days after service of the presuit notice of
1240	intent to initiate medical malpractice litigation, each party
1241	shall voluntarily produce to all other parties, without being
1242	requested, any and all medical, hospital, health care, and
1243	employment records concerning the claimant in the disclosing
1244	party’s possession, custody, or control, and the disclosing
1245	party shall affirmatively certify in writing that the records
1246	produced include all records in that party’s possession,
1247	custody, or control or that the disclosing party has no medical,
1248	hospital, health care, or employment records concerning the
1249	claimant.
1250	(a) Subpoenas may be issued according to the Florida Rules
1251	of Civil Procedure as though suit had been filed for the limited
1252	purpose of obtaining copies of medical, hospital, health care,
1253	and employment records of the claimant. The party shall indicate
1254	on the subpoena that it is being issued in accordance with the
1255	presuit procedures of this section and shall not be required to
1256	include a case number.
1257	(b) Nothing in this section shall limit the ability of any
1258	party to use any other available form of presuit discovery
1259	available under this chapter or the Florida Rules of Civil
1260	Procedure.
1261	(2) Within 60 days after service of the presuit notice of
1262	intent to initiate medical malpractice litigation, all parties
1263	must be made available for a sworn deposition. Such deposition
1264	may not be used in a civil suit for medical negligence.
1265	(3) Within 120 days after service of the presuit notice of
1266	intent to initiate medical malpractice litigation, each party’s
1267	corroborating expert, who will otherwise be tendered as the
1268	expert complying with the affidavit provisions set forth in s.
1269	766.203, must be made available for a sworn deposition.
1270	(a) The expenses associated with the expert’s time and
1271	travel in preparing for and attending such deposition shall be
1272	the responsibility of the party retaining such expert.
1273	(b) An expert shall be deemed available for deposition if
1274	suitable accommodations can be made for appearance of said
1275	expert via real-time video technology.
1276	(4) Within 180 days after service of the presuit notice of
1277	intent to initiate medical malpractice litigation, all parties
1278	shall attend in-person mandatory mediation in accordance with s.
1279	44.102 if binding arbitration under s. 766.106 or s. 766.207 has
1280	not been agreed to by the parties. The Florida Rules of Civil
1281	Procedure shall apply to mediation held pursuant to this
1282	section.
1283	Section 27. Section 766.1067, Florida Statutes, is created
1284	to read:
1285	766.1067 Mandatory mediation after suit is filed.--Within
1286	120 days after suit being filed, unless such period is extended
1287	by mutual agreement of all parties, all parties shall attend in-
1288	person mandatory mediation in accordance with s. 44.102 if
1289	binding arbitration under s. 766.106 or s. 766.207 has not been
1290	agreed to by the parties. The Florida Rules of Civil Procedure
1291	shall apply to mediation held pursuant to this section.
1292	Section 28. Section 766.118, Florida Statutes, is created
1293	to read:
1294	766.118 Determination of noneconomic damages.--With
1295	respect to a cause of action for personal injury or wrongful
1296	death resulting from an occurrence of medical negligence,
1297	including actions pursuant to s. 766.209, damages recoverable
1298	for noneconomic losses to compensate for pain and suffering,
1299	inconvenience, physical impairment, mental anguish,
1300	disfigurement, loss of capacity for enjoyment of life, and all
1301	other noneconomic damages shall not exceed $250,000, regardless
1302	of the number of claimants or defendants involved in the action.
1303	Section 29. Subsection (5) of section 766.202, Florida
1304	Statutes, is amended to read:
1305	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
1306	766.201-766.212, the term:
1307	(5) "Medical expert" means a person familiar with the
1308	evaluation, diagnosis, or treatment of the medical condition at
1309	issue who:
1310	(a) Isduly and regularly engaged in the practice of his
1311	or her profession,whoholds a health care professional degree
1312	from a university or college,and has had special professional
1313	training and experience;or
1314	(b) Hasone possessed ofspecial health care knowledge or
1315	skill about the subject upon which he or she is called to
1316	testify or provide an opinion.
1317
1318	Such expert shall certify that he or she has similar credentials
1319	and expertise in the area of the defendant's particular practice
1320	or specialty, if the defendant is a specialist.
1321	Section 30. Subsections (2) and (3) of section 766.203,
1322	Florida Statutes, are amended to read:
1323	766.203 Presuit investigation of medical negligence claims
1324	and defenses by prospective parties.--
1325	(2) Prior to issuing notification of intent to initiate
1326	medical malpractice litigation pursuant to s. 766.106, the
1327	claimant shall conduct an investigation to ascertain that there
1328	are reasonable grounds to believe that:
1329	(a) Any named defendant in the litigation was negligent in
1330	the care or treatment of the claimant; and
1331	(b) Such negligence resulted in injury to the claimant.
1332
1333	Corroboration of reasonable grounds to initiate medical
1334	negligence litigation shall be provided by the claimant's
1335	submission of a verified written medical expert opinion from a
1336	medical expert as defined in s. 766.202(5), at the time the
1337	notice of intent to initiate litigation is mailed, which
1338	statement shall corroborate reasonable grounds to support the
1339	claim of medical negligence. This opinion and statement are
1340	subject to discovery.
1341	(3) Prior to issuing its response to the claimant's notice
1342	of intent to initiate litigation, during the time period for
1343	response authorized pursuant to s. 766.106, the defendant or the
1344	defendant's insurer or self-insurer shall conduct an
1345	investigation to ascertain whether there are reasonable grounds
1346	to believe that:
1347	(a) The defendant was negligent in the care or treatment
1348	of the claimant; and
1349	(b) Such negligence resulted in injury to the claimant.
1350
1351	Corroboration of lack of reasonable grounds for medical
1352	negligence litigation shall be provided with any response
1353	rejecting the claim by the defendant's submission of a verified
1354	written medical expert opinion from a medical expert as defined
1355	in s. 766.202(5), at the time the response rejecting the claim
1356	is mailed, which statement shall corroborate reasonable grounds
1357	for lack of negligent injury sufficient to support the response
1358	denying negligent injury. This opinion and statement are subject
1359	to discovery.
1360	Section 31. Subsections (2) and (3) of section 766.207,
1361	Florida Statutes, are amended to read:
1362	766.207 Voluntary binding arbitration of medical
1363	negligence claims.--
1364	(2) Upon the completion of presuit investigation with
1365	preliminary reasonable grounds for a medical negligence claim
1366	intact, the parties may elect to have damages determined by an
1367	arbitration panel. Such election may be initiated by either
1368	party by serving a request for voluntary binding arbitration of
1369	damages within 18090days after service of the claimant's
1370	notice of intent to initiate litigation upon the defendant. The
1371	evidentiary standards for voluntary binding arbitration of
1372	medical negligence claims shall be as provided in ss.
1373	120.569(2)(g) and 120.57(1)(c).
1374	(3) Upon receipt of a party's request for such
1375	arbitration, the opposing party may accept the offer of
1376	voluntary binding arbitration within 30 days. However, in no
1377	event shall the defendant be required to respond to the request
1378	for arbitration sooner than 18090days after service of the
1379	notice of intent to initiate litigation under s. 766.106. Such
1380	acceptance within the time period provided by this subsection
1381	shall be a binding commitment to comply with the decision of the
1382	arbitration panel. The liability of any insurer shall be subject
1383	to any applicable insurance policy limits.
1384	Section 32. (1) The Department of Health shall study and
1385	report to the Legislature as to whether medical review panels
1386	should be included as part of the presuit process in medical
1387	malpractice litigation. Medical review panels review a medical
1388	malpractice case during the presuit process and make judgments
1389	on the merits of the case based on established standards of care
1390	with the intent of reducing the number of frivolous claims. The
1391	panel's report could be used as admissible evidence at trial or
1392	for other purposes. The department's report should address:
1393	(a) Historical use of medical review panels and similar
1394	pretrial programs in this state, including the mediation panels
1395	created by chapter 75-9, Laws of Florida.
1396	(b) Constitutional issues relating to the use of medical
1397	review panels.
1398	(c) The use of medical review panels or similar programs
1399	in other states.
1400	(d) Whether medical review panels or similar panels should
1401	be created for use during the presuit process.
1402	(e) Other recommendations and information that the
1403	department deems appropriate.
1404	(f) In submitting its report with respect to (a)-(c), the
1405	Department should identify at a minimum:
1406	1. The percentage of medical malpractice claims submitted
1407	to the panels during the time period the panels were in
1408	existence.
1409	2. The percentage of claims that were settled while the
1410	panels were in existence and the percentage of claims that were
1411	settled in the 3 years prior to the establishment of such panels
1412	or, for each panel which no longer exists, 3 years after the
1413	dissolution of such panels.
1414	3. In those state where panels have been discontinued,
1415	whether additional safeguards have been implemented to avoid the
1416	filing of frivolous lawsuits and what those additional
1417	safeguards are.
1418	4. How the rates for medical malpractice insurance in
1419	states utilizing such panels compares with the rates in states
1420	not utilizing such panels.
1421	5. Whether, and to what extent, a finding by a panel is
1422	subject to review and the burden of proof required to overcome a
1423	finding by the panel.
1424	(2) If the department finds that medical review panels or
1425	a similar structure should be created in this state, it shall
1426	include draft legislation to implement its recommendations in
1427	its report.
1428	(3) The department shall submit its report to the Speaker
1429	of the House of Representatives and the President of the Senate
1430	no later than December 31, 2003.
1431	Section 33. Subsection (5) of section 768.81, Florida
1432	Statutes, is amended to read:
1433	768.81 Comparative fault.--
1434	(5) Notwithstanding anything in law to the contrary, in an
1435	action for damages for personal injury or wrongful death arising
1436	out of medical malpractice, whether in contract or tort, when an
1437	apportionment of damages pursuant to this section is attributed
1438	to a teaching hospital as defined in s. 408.07,the court shall
1439	enter judgment against the teaching hospital on the basis of
1440	eachsuchparty's percentage of fault and not on the basis of
1441	the doctrine of joint and several liability.
1442	Section 34. Section 1004.08, Florida Statutes, is created
1443	to read:
1444	1004.08 Patient safety instructional requirements.--Every
1445	public school, college, and university that offers degrees in
1446	medicine, nursing, and allied health shall include in the
1447	curricula applicable to such degrees material on patient safety,
1448	including patient safety improvement. Materials shall include,
1449	but need not be limited to, effective communication and
1450	teamwork; epidemiology of patient injuries and medical errors;
1451	vigilance, attention, and fatigue; checklists and inspections;
1452	automation and technological and computer support; psychological
1453	factors in human error; and reporting systems.
1454	Section 35. Section 1005.07, Florida Statutes, is created
1455	to read:
1456	1005.07 Patient safety instructional requirements.--Every
1457	nonpublic school, college, and university that offers degrees in
1458	medicine, nursing, and allied health shall include in the
1459	curricula applicable to such degrees material on patient safety,
1460	including patient safety improvement. Materials shall include,
1461	but need not be limited to, effective communication and
1462	teamwork; epidemiology of patient injuries and medical errors;
1463	vigilance, attention, and fatigue; checklists and inspections;
1464	automation and technological and computer support; psychological
1465	factors in human error; and reporting systems.
1466	Section 36. The Agency for Health Care Administration is
1467	directed to study the types of information the public would find
1468	relevant in the selection of hospitals. The agency shall review
1469	and recommend appropriate methods of collection, analysis, and
1470	dissemination of that information. The agency shall complete its
1471	study and report its findings and recommendations to the
1472	Legislature by January 15, 2004.
1473	Section 37. Comprehensive study and report on the creation
1474	of a Patient Safety Authority.--
1475	(1) The Agency for Health Care Administration, in
1476	consultation with the Department of Health, is directed to study
1477	the need for, and the implementation requirements of,
1478	establishing a Patient Safety Authority. The authority would be
1479	responsible for performing activities and functions designed to
1480	improve patient safety and the quality of care delivered by
1481	health care facilities and health care practitioners.
1482	(2) In undertaking its study, the agency shall examine and
1483	evaluate a Patient Safety Authority that would, either directly
1484	or by contract:
1485	(a) Analyze information concerning adverse incidents
1486	reported to the Agency for Health Care Administration pursuant
1487	to s. 395.0197, Florida Statutes, for the purpose of
1488	recommending changes in practices and procedures that may be
1489	implemented by health care practitioners and health care
1490	facilities to prevent future adverse incidents.
1491	(b) Collect, analyze, and evaluate patient safety data
1492	submitted voluntarily by a health care practitioner or health
1493	care facility. The authority would communicate to health care
1494	practitioners and health care facilities changes in practices
1495	and procedures that may be implemented for the purpose of
1496	improving patient safety and preventing future patient safety
1497	events from resulting in serious injury or death. At a minimum,
1498	the authority would:
1499	1. Be designed and operated by an individual or entity
1500	with demonstrated expertise in health care quality data and
1501	systems analysis, health information management, systems
1502	thinking and analysis, human factors analysis, and
1503	identification of latent and active errors.
1504	2. Include procedures for ensuring its confidentiality,
1505	timeliness, and independence.
1506	(c) Foster the development of a statewide electronic
1507	infrastructure, which would be implemented in phases over a
1508	multiyear period, that is designed to improve patient care and
1509	the delivery and quality of health care services by health care
1510	facilities and practitioners. The electronic infrastructure
1511	would be a secure platform for communication and the sharing of
1512	clinical and other data, such as business data, among providers
1513	and between patients and providers. The electronic
1514	infrastructure would include a core electronic medical record.
1515	Health care providers would have access to individual electronic
1516	medical records, subject to the consent of the individual. The
1517	right, if any, of other entities, including health insurers and
1518	researchers, to access the records would need further
1519	examination and evaluation by the agency.
1520	(d) Foster the use of computerized physician medication
1521	ordering systems by hospitals that do not have such systems and
1522	develop protocols for these systems.
1523	(e) Implement paragraphs (c) and (d) as a demonstration
1524	project for Medicaid recipients.
1525	(f) Identify best practices and share this information
1526	with health care providers.
1527	(g) Engage in other activities that improve health care
1528	quality, improve the diagnosis and treatment of diseases and
1529	medical conditions, increase the efficiency of the delivery of
1530	health care services, increase administrative efficiency, and
1531	increase access to quality health care services.
1532	(3) The agency shall also consider ways in which a Patient
1533	Safety Authority would be able to facilitate the development of
1534	no-fault demonstration projects as means to reduce and prevent
1535	medical errors and promote patient safety.
1536	(4) The agency shall seek information and advice from and
1537	consult with hospitals, physicians, other health care providers,
1538	attorneys, consumers, and individuals involved with and
1539	knowledgeable about patient safety and quality-of-care
1540	initiatives.
1541	(5) In evaluating the need for, and the operation of, a
1542	Patient Safety Authority, the agency shall determine the costs
1543	of implementing and administering an authority and suggest
1544	funding sources and mechanisms.
1545	(6) The agency shall complete its study and issue a report
1546	to the Legislature by February 1, 2004. In its report, the
1547	agency shall include specific findings, recommendations, and
1548	proposed legislation.
1549	Section 38. If any provision of this act or the
1550	application thereof to any person or circumstance is held
1551	invalid, the invalidity does not affect other provisions or
1552	applications of the act which can be given effect without the
1553	invalid provision or application, and to this end the provisions
1554	of this act are declared severable.
1555	Section 39. This act shall take effect upon becoming a law
1556	and shall apply to all actions filed after the effective date of
1557	the act.