Senate Bill sb2120
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Florida Senate - 2003 SB 2120
By Senator Peaden
2-949-03
1 A bill to be entitled
2 An act relating to medical malpractice;
3 amending s. 766.102, F.S.; revising required
4 criteria for an expert witness to give expert
5 testimony concerning the prevailing
6 professional standard of care; revising
7 required criteria for an expert witness to give
8 testimony concerning a general practitioner;
9 providing for such expert witnesses to give
10 testimony with respect to other medical staff
11 and administrative staff; providing for a
12 specialist to be considered "a similar health
13 care provider" under certain circumstances;
14 amending s. 766.104, F.S.; increasing the
15 period for extending the statute of limitations
16 in a medical negligence case; creating s.
17 766.1045, F.S.; providing for recommencing a
18 case following discontinuance or dismissal
19 under limited circumstances; amending s.
20 766.106, F.S.; providing requirements for the
21 notice to prospective defendants; revising
22 requirements for the response provided to a
23 claimant; providing for sworn statements rather
24 than unsworn statements during informal
25 discovery; providing for written questions;
26 creating s. 766.1095, F.S.; providing for
27 mandatory mediation; providing procedures;
28 providing for an assessment of fees and costs
29 following the judgment; excluding medical
30 negligence or wrongful death cases from certain
31 requirements for offers of settlement; amending
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1 s. 766.110, F.S.; providing that a hospital is
2 exclusively liable for negligent acts or
3 omissions regarding the provision of treatment
4 in the hospital's emergency room or trauma
5 center; providing legislative intent with
6 respect to such liability; amending s. 766.113,
7 F.S.; providing that a settlement agreement may
8 not prohibit a party from discussing the
9 settlement amount; creating s. 766.115, F.S.;
10 prohibiting certain entities from preventing or
11 discouraging the providing of expert testimony;
12 providing for a civil remedy; providing a
13 standard of proof; providing for an award of
14 attorney's fees and costs; amending s. 766.202,
15 F.S.; providing for certification of a medical
16 expert; providing certain limitations on
17 persons who may submit expert opinions;
18 amending s. 766.205, F.S., relating to presuit
19 discovery; conforming provisions to changes
20 made by the act; amending s. 766.206, F.S.;
21 providing for dismissal of a claim under
22 certain circumstances; requiring the court to
23 make certain reports concerning a medical
24 expert who fails to meet qualifications;
25 requiring the court to apportion the total
26 fault in a medical malpractice case among the
27 claimant and joint tortfeasors who are parties
28 to the action when the case is submitted to the
29 jury; providing effective dates.
30
31 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Effective upon this act becoming a law and
2 applicable to causes of action filed on or after July 1, 2003,
3 section 766.102, Florida Statutes, is amended to read:
4 766.102 Medical negligence; standards of recovery.--
5 (1) In any action for recovery of damages based on the
6 death or personal injury of any person in which it is alleged
7 that such death or injury resulted from the negligence of a
8 health care provider as defined in s. 768.50(2)(b), the
9 claimant shall have the burden of proving by the greater
10 weight of evidence that the alleged actions of the health care
11 provider represented a breach of the prevailing professional
12 standard of care for that health care provider. The
13 prevailing professional standard of care for a given health
14 care provider shall be that level of care, skill, and
15 treatment which, in light of all relevant surrounding
16 circumstances, is recognized as acceptable and appropriate by
17 reasonably prudent similar health care providers.
18 (2) A person may not give expert testimony concerning
19 the prevailing professional standard of care unless that
20 person is a licensed health care provider and meets the
21 following criteria:
22 (a) If the party against whom or on whose behalf the
23 testimony is offered is a specialist, the expert witness must:
24 1. Specialize in the same specialty as the party
25 against whom or on whose behalf the testimony is offered; or
26 2. Specialize in a similar specialty that includes the
27 evaluation, diagnosis, or treatment of the medical condition
28 that is the subject of the complaint and have prior experience
29 treating similar patients.
30
31
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1 (b) During the 3 years immediately preceding the date
2 of the occurrence that is the basis for the action, the expert
3 witness must have devoted professional time to:
4 1. The active clinical practice of, or consulting with
5 respect to, the same or similar health profession as the
6 health care provider against whom or on whose behalf the
7 testimony is offered and, if that health care provider is a
8 specialist, the active clinical practice of, or consulting
9 with respect to, the same specialty or a similar specialty
10 that includes the evaluation, diagnosis, or treatment of the
11 medical condition that is the subject of the action and have
12 prior experience treating similar patients;
13 2. The instruction of students in an accredited health
14 professional school or accredited residency program in the
15 same or similar health profession in which the health care
16 provider against whom or on whose behalf the testimony is
17 offered, and if that health care provider is a specialist, an
18 accredited health professional school or accredited residency
19 or clinical research program in the same or similar specialty;
20 or
21 3. A clinical research program that is affiliated with
22 an accredited medical school or teaching hospital and that is
23 in the same or similar health profession as the health care
24 provider against whom or on whose behalf the testimony is
25 offered and, if that health care provider is a specialist, a
26 clinical research program that is affiliated with an
27 accredited health professional school or accredited residency
28 or clinical research program in the same or similar specialty.
29 (3) Notwithstanding subsection (2), if the health care
30 provider against whom or on whose behalf the testimony is
31 offered is a general practitioner, the expert witness, during
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1 the 3 years immediately preceding the date of the occurrence
2 that is the basis for the action, must have devoted his or her
3 professional time to:
4 (a) Active clinical practice or consultation as a
5 general practitioner;
6 (b) Instruction of students in an accredited health
7 professional school or accredited residency program in the
8 general practice of medicine; or
9 (c) A clinical research program that is affiliated
10 with an accredited medical school or teaching hospital and
11 that is in the general practice of medicine.
12 (4) Notwithstanding subsection (2), a physician
13 licensed under chapter 458 or chapter 459 who qualifies as an
14 expert under the section and who by reason of active clinical
15 practice or instruction of students has knowledge of the
16 applicable standard of care for nurses, nurse practitioners,
17 certified registered nurse anesthetists, certified registered
18 nurse midwives, physician assistants, or other medical support
19 staff may give expert testimony in a medical malpractice
20 action with respect to the standard of care of such medical
21 support staff.
22 (5) In an action alleging medical malpractice, an
23 expert witness may not testify on a contingency fee basis.
24 (6) This section does not limit the power of the trial
25 court to disqualify or qualify an expert witness on grounds
26 other than the qualifications in this section.
27 (7) Notwithstanding subsection (2), in a medical
28 malpractice action against a hospital or other health care or
29 medical facility, a person may give expert testimony on the
30 appropriate standard of care as to administrative and other
31 nonclinical issues if the person has substantial knowledge, by
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1 virtue of his or her training and experience, concerning the
2 standard of care among hospitals or health care or medical
3 facilities of the same type as the hospital, health facility,
4 or medical facility whose actions or inactions are the subject
5 of this testimony and which are located in the same or similar
6 communities at the time of the alleged act giving rise to the
7 cause of action.
8 (2)(a) If the health care provider whose negligence is
9 claimed to have created the cause of action is not certified
10 by the appropriate American board as being a specialist, is
11 not trained and experienced in a medical specialty, or does
12 not hold himself or herself out as a specialist, a "similar
13 health care provider" is one who:
14 1. Is licensed by the appropriate regulatory agency of
15 this state;
16 2. Is trained and experienced in the same discipline
17 or school of practice; and
18 3. Practices in the same or similar medical community.
19 (b) If the health care provider whose negligence is
20 claimed to have created the cause of action is certified by
21 the appropriate American board as a specialist, is trained and
22 experienced in a medical specialty, or holds himself or
23 herself out as a specialist, a "similar health care provider"
24 is one who:
25 1. Is trained and experienced in the same specialty;
26 and
27 2. Is certified by the appropriate American board in
28 the same specialty.
29
30 However, if any health care provider described in this
31 paragraph is providing treatment or diagnosis for a condition
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1 which is not within his or her specialty, a specialist trained
2 in the treatment or diagnosis for that condition shall be
3 considered a "similar health care provider."
4 (c) The purpose of this subsection is to establish a
5 relative standard of care for various categories and
6 classifications of health care providers. Any health care
7 provider may testify as an expert in any action if he or she:
8 1. Is a similar health care provider pursuant to
9 paragraph (a) or paragraph (b); or
10 2. Is not a similar health care provider pursuant to
11 paragraph (a) or paragraph (b) but, to the satisfaction of the
12 court, possesses sufficient training, experience, and
13 knowledge as a result of practice or teaching in the specialty
14 of the defendant or practice or teaching in a related field of
15 medicine, so as to be able to provide such expert testimony as
16 to the prevailing professional standard of care in a given
17 field of medicine. Such training, experience, or knowledge
18 must be as a result of the active involvement in the practice
19 or teaching of medicine within the 5-year period before the
20 incident giving rise to the claim.
21 (8)(3)(a) If the injury is claimed to have resulted
22 from the negligent affirmative medical intervention of the
23 health care provider, the claimant must, in order to prove a
24 breach of the prevailing professional standard of care, show
25 that the injury was not within the necessary or reasonably
26 foreseeable results of the surgical, medicinal, or diagnostic
27 procedure constituting the medical intervention, if the
28 intervention from which the injury is alleged to have resulted
29 was carried out in accordance with the prevailing professional
30 standard of care by a reasonably prudent similar health care
31 provider.
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1 (b) The provisions of this subsection shall apply only
2 when the medical intervention was undertaken with the informed
3 consent of the patient in compliance with the provisions of s.
4 766.103.
5 (9)(4) The existence of a medical injury shall not
6 create any inference or presumption of negligence against a
7 health care provider, and the claimant must maintain the
8 burden of proving that an injury was proximately caused by a
9 breach of the prevailing professional standard of care by the
10 health care provider. However, the discovery of the presence
11 of a foreign body, such as a sponge, clamp, forceps, surgical
12 needle, or other paraphernalia commonly used in surgical,
13 examination, or diagnostic procedures, shall be prima facie
14 evidence of negligence on the part of the health care
15 provider.
16 (10)(5) The Legislature is cognizant of the changing
17 trends and techniques for the delivery of health care in this
18 state and the discretion that is inherent in the diagnosis,
19 care, and treatment of patients by different health care
20 providers. The failure of a health care provider to order,
21 perform, or administer supplemental diagnostic tests shall not
22 be actionable if the health care provider acted in good faith
23 and with due regard for the prevailing professional standard
24 of care.
25 (11)(6)(a) In any action for damages involving a claim
26 of negligence against a physician licensed under chapter 458,
27 osteopathic physician licensed under chapter 459, podiatric
28 physician licensed under chapter 461, or chiropractic
29 physician licensed under chapter 460 providing emergency
30 medical services in a hospital emergency department, the court
31 shall admit expert medical testimony only from physicians,
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1 osteopathic physicians, podiatric physicians, and chiropractic
2 physicians who have had substantial professional experience
3 within the preceding 5 years while assigned to provide
4 emergency medical services in a hospital emergency department.
5 (b) For the purposes of this subsection:
6 1. The term "emergency medical services" means those
7 medical services required for the immediate diagnosis and
8 treatment of medical conditions which, if not immediately
9 diagnosed and treated, could lead to serious physical or
10 mental disability or death.
11 2. "Substantial professional experience" shall be
12 determined by the custom and practice of the manner in which
13 emergency medical coverage is provided in hospital emergency
14 departments in the same or similar localities where the
15 alleged negligence occurred.
16 (12) If a health care provider described in subsection
17 (2), subsection (3), or subsection (4) is providing treatment
18 or diagnosis for a condition that is not within his or her
19 specialty, a specialist trained in the treatment or diagnosis
20 for that condition shall be considered a "similar health care
21 provider."
22 Section 2. Effective upon this act becoming a law and
23 applicable to notices of intent to litigate and responses
24 mailed on or after July 1, 2003, subsection (2) of section
25 766.104, Florida Statues, is amended to read:
26 766.104 Pleading in medical negligence cases; claim
27 for punitive damages; authorization for release of records for
28 investigation.--
29 (2) Upon petition to the clerk of the court where the
30 suit will be filed and payment to the clerk of a filing fee,
31 not to exceed $25, established by the chief judge, an
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1 automatic 180-day 90-day extension of the statute of
2 limitations shall be granted to allow the reasonable
3 investigation required by subsection (1). This period shall
4 be in addition to other tolling periods. No court order is
5 required for the extension to be effective. The provisions of
6 this subsection shall not be deemed to revive a cause of
7 action on which the statute of limitations has run.
8 Section 3. Effective upon this act becoming a law and
9 applicable to notices of intent to litigate and responses
10 mailed on or after July 1, 2003, section 766.1045, Florida
11 Statutes, is created to read:
12 766.1045 Medical malpractice cases; dismissal of
13 actions.--When any medical negligence case has been commenced
14 in a state or federal court within the applicable statute of
15 limitations and the plaintiff discontinues or dismisses the
16 case, it may be recommenced in a court of this state or in a
17 federal court either within the original applicable period of
18 limitations or within 6 months after the discontinuance or
19 dismissal, whichever occurs later. This privilege of renewal
20 shall be exercised only once.
21 Section 4. Effective October 1, 2003, and applicable
22 to notices of intent to litigate sent on or after that date,
23 subsection (2), paragraphs (a) and (b) of subsection (3), and
24 subsection (7) of section 766.106, Florida Statutes, are
25 amended, to read:
26 766.106 Notice before filing action for medical
27 malpractice; presuit screening period; offers for admission of
28 liability and for arbitration; informal discovery; review.--
29 (2) After completion of presuit investigation pursuant
30 to s. 766.203 and prior to filing a claim for medical
31 malpractice, a claimant shall notify each prospective
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1 defendant by certified mail, return receipt requested, of
2 intent to initiate litigation for medical malpractice. Notice
3 to each prospective defendant must include, if available, a
4 list of all known health care providers seen by the claimant
5 for the injuries complained of subsequent to the alleged act
6 of malpractice, all known health care providers during the
7 5-year period prior to the alleged act of malpractice, and
8 copies of the medical records relied upon by the expert in
9 signing the affidavit. The requirement of providing the list
10 of known health care providers may not serve as grounds for
11 imposing sanctions for failure to provide presuit discovery.
12 Following the initiation of a suit alleging medical
13 malpractice with a court of competent jurisdiction, and
14 service of the complaint upon a defendant, the claimant shall
15 provide a copy of the complaint to the Department of Health.
16 The requirement of providing the complaint to the Department
17 of Health does not impair the claimant's legal rights or
18 ability to seek relief for his or her claim. The Department of
19 Health shall review each incident and determine whether it
20 involved conduct by a licensee which is potentially subject to
21 disciplinary action, in which case the provisions of s.
22 456.073 apply.
23 (3)(a) No suit may be filed for a period of 90 days
24 after notice is mailed to any prospective defendant. During
25 the 90-day period, the prospective defendant's insurer or
26 self-insurer shall conduct a review to determine the liability
27 of the defendant. Each insurer or self-insurer shall have a
28 procedure for the prompt investigation, review, and evaluation
29 of claims during the 90-day period. This procedure shall
30 include one or more of the following:
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1 1. Internal review by a duly qualified claims
2 adjuster;
3 2. Creation of a panel comprised of an attorney
4 knowledgeable in the prosecution or defense of medical
5 malpractice actions, a health care provider trained in the
6 same or similar medical specialty as the prospective
7 defendant, and a duly qualified claims adjuster;
8 3. A contractual agreement with a state or local
9 professional society of health care providers, which maintains
10 a medical review committee;
11 4. Any other similar procedure which fairly and
12 promptly evaluates the pending claim.
13
14 Each insurer or self-insurer shall investigate the claim in
15 good faith, and both the claimant and prospective defendant
16 shall cooperate with the insurer in good faith. If the
17 insurer requires, a claimant shall appear before a pretrial
18 screening panel or before a medical review committee and shall
19 submit to a physical examination, if required. Unreasonable
20 failure of any party to comply with this section justifies
21 dismissal of claims or defenses. There shall be no civil
22 liability for participation in a pretrial screening procedure
23 if done without intentional fraud.
24 (b) At or before the end of the 90 days, the insurer
25 or self-insurer shall provide the claimant with a response:
26 1. Rejecting the claim and submitting corroboration of
27 lack of reasonable grounds for medical negligence litigation,
28 in accordance with s. 766.203(3), which sets forth a factual
29 basis for the denial;
30 2. Making a settlement offer; or
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1 3. Making an offer to arbitrate in which liability is
2 deemed admitted and arbitration will be held of admission of
3 liability and for arbitration on the issue of damages. This
4 offer may be made contingent upon a limit of general damages.
5
6 Such response must include a copy of any insurance policy and
7 applicable policy limits. If the prospective defendant intends
8 to deny liability should a lawsuit be filed notwithstanding a
9 settlement offer, an affidavit corroborating lack of
10 reasonable grounds for medical negligence must be submitted
11 that meets the requirements of s. 766.203(3) and that sets
12 forth a factual basis for the denial of liability. Any
13 response must also include all affirmative defenses the
14 prospective defendant intends to raise, and a corroborating
15 expert witness affidavit for each potential defendant whom the
16 responding defendant contends is liable for the injuries
17 complained of and who has not been sent a notice of intent to
18 litigate by the claimant.
19 (7) Informal discovery may be used by a party to
20 obtain unsworn statements, the production of documents or
21 things, and physical and mental examinations, and answers to
22 written questions, as follows:
23 (a) Sworn Unsworn statements; parties.--Any party may
24 require health care providers or other parties to appear for
25 the taking of a sworn an unsworn statement. Such statements
26 may be used only for the purpose of presuit screening and are
27 not discoverable or admissible in any civil action for any
28 purpose by any party. A party desiring to take the sworn
29 unsworn statement of any party or health care provider must
30 provide give reasonable written notice and opportunity to be
31 present in writing to all parties. The notice must state the
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1 time and place for taking the statement and the name and
2 address of the party or health care provider to be examined.
3 Unless otherwise impractical, The examination of any party or
4 health care provider must be done at the same time by all
5 other parties. Any party or health care provider may be
6 represented by counsel at the taking of a sworn an unsworn
7 statement. A sworn An unsworn statement may be recorded
8 electronically, stenographically, or on videotape. The taking
9 of sworn unsworn statements is subject to the provisions of
10 the Florida Rules of Civil Procedure and may be terminated for
11 abuses. The taking of a sworn statement during presuit
12 screening does not preclude a party from updating the sworn
13 statement by deposition.
14 (b) Documents or things.--Any party may request
15 discovery of documents or things. The documents or things
16 must be produced, at the expense of the requesting party,
17 within 20 days after the date of receipt of the request. A
18 party is required to produce discoverable documents or things
19 within that party's possession or control.
20 (c) Physical and mental examinations.--A prospective
21 defendant may require an injured prospective claimant to
22 appear for examination by an appropriate health care provider.
23 The defendant shall give reasonable notice in writing to all
24 parties as to the time and place for examination. Unless
25 otherwise impractical, a prospective claimant is required to
26 submit to only one examination on behalf of all potential
27 defendants. The practicality of a single examination must be
28 determined by the nature of the potential claimant's
29 condition, as it relates to the liability of each potential
30 defendant. Such examination report is available to the parties
31 and their attorneys upon payment of the reasonable cost of
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1 reproduction and may be used only for the purpose of presuit
2 screening. Otherwise, such examination report is confidential
3 and exempt from the provisions of s. 119.07(1) and s. 24(a),
4 Art. I of the State Constitution.
5 (d) Written questions.--Any party may request answers
6 to written questions, which may not exceed 30, including
7 subparts, and which shall be responded to within 20 days after
8 receipt.
9 Section 5. Effective July 1, 2003, and applicable to
10 cases filed on or after that date, section 766.1095, Florida
11 Statutes, is created to read:
12 766.1095 Mandatory mediation.--
13 (1) Within 120 days after a suit is filed, the parties
14 shall conduct mandatory mediation in accordance with s.
15 44.102, if binding arbitration under s. 766.106 or s. 766.207
16 has not been agreed to by the parties. The Florida Rules of
17 Civil Procedure shall apply to mediation held pursuant to this
18 section. During the mediation, each party shall make a demand
19 for judgment or an offer of settlement. At the conclusion of
20 the mediation, the mediator shall record the final demand and
21 final offer to provide to the court upon the rendering of a
22 judgment.
23 (2) If a claimant rejecting the final offer of
24 settlement made during the mediation does not obtain a
25 judgment more favorable than the offer, the court shall assess
26 the claimant the mediation costs and reasonable costs,
27 expenses, and attorney's fees that were incurred after the
28 date of mediation. The assessment shall attach to the proceeds
29 of the claimant and attributable to any defendant whose final
30 offer was more favorable than the judgment.
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1 (3) If the judgment obtained at trial is not more
2 favorable to a defendant than the final demand for judgment
3 made by the claimant to the defendant during mediation, the
4 court shall assess the defendant the mediation costs and
5 reasonable costs, expenses, and attorney's fees that were
6 incurred after the date of mediation. Prejudgment interest at
7 the rate established in s. 55.03 from the date of the final
8 demand shall also be assessed. The defendant and the insurer
9 of the defendant, if any, shall be liable for the costs, fees,
10 and interest awardable under this section.
11 (4) The final offer and final demand made during the
12 mediation required in this section shall be the only offer and
13 demand considered by the court in assessing costs, expenses,
14 attorney's fees, and prejudgment interest under this section.
15 No subsequent offer or demand by either party shall apply in
16 the determination of whether sanctions will be assessed by the
17 court under this section.
18 (5) Notwithstanding any law to the contrary, ss.
19 45.061 and 768.79 do not apply to medical negligence or to
20 wrongful death cases arising out of medical negligence causes
21 of action.
22 Section 6. Effective July 1, 2003, and applicable to
23 causes of action arising on or after that date, section
24 766.110, Florida Statutes, is amended to read:
25 766.110 Liability of health care facilities.--
26 (1) All health care facilities, including hospitals
27 and ambulatory surgical centers, as defined in chapter 395,
28 have a duty to assure comprehensive risk management and the
29 competence of their medical staff and personnel through
30 careful selection and review, and are liable for a failure to
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1 exercise due care in fulfilling these duties. These duties
2 shall include, but not be limited to:
3 (a) The adoption of written procedures for the
4 selection of staff members and a periodic review of the
5 medical care and treatment rendered to patients by each member
6 of the medical staff;
7 (b) The adoption of a comprehensive risk management
8 program which fully complies with the substantive requirements
9 of s. 395.0197 as appropriate to such hospital's size,
10 location, scope of services, physical configuration, and
11 similar relevant factors;
12 (c) The initiation and diligent administration of the
13 medical review and risk management processes established in
14 paragraphs (a) and (b) including the supervision of the
15 medical staff and hospital personnel to the extent necessary
16 to ensure that such medical review and risk management
17 processes are being diligently carried out.
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19 Each such facility shall be liable for a failure to exercise
20 due care in fulfilling one or more of these duties when such
21 failure is a proximate cause of injury to a patient.
22 (2)(a) A hospital licensed under chapter 395 shall be
23 exclusively liable for any negligent acts or omissions
24 committed in the course of the rendering or failing to render
25 medical care or treatment to a patient at the hospital who
26 enters the hospital through its emergency room or trauma
27 center for treatment of a sudden, unexpected situation or
28 occurrence resulting in a serious medical condition demanding
29 immediate medical attention; except that this paragraph does
30 not apply to damages as a result of any act or omission of
31 providing medical care or treatment which is unrelated to the
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1 original medical emergency or which occurs after the patient
2 is stabilized and is capable of receiving medical treatment as
3 a nonemergency patient, unless surgery is required as a result
4 of the emergency within a reasonable time after the patient is
5 stabilized, in which case the exclusive liability provided by
6 this paragraph applies to any act or omission of providing
7 medical care or treatment which occurs prior to the
8 stabilization of the patient following the surgery.
9 (b) The liability imposed by this subsection shall lie
10 exclusively with the hospital for all such acts, and the
11 exclusive remedy for injury or damages suffered as a result of
12 medical negligence committed at a hospital shall be against
13 the hospital. Except as provided in this section, no cause of
14 action shall lie against a health care provider, whether
15 employed by the hospital or not, and no such health care
16 provider shall be held liable nor shall fault be attributed to
17 the health care provider, for any such act of medical
18 negligence for which the hospital is liable pursuant to this
19 subsection; however, any such health care provider shall be
20 considered an adverse witness in a medical negligence action
21 for any injury or damage suffered as a result of any act,
22 event, or omission of action in the scope of the provider's
23 employment or function. This subsection does not limit in any
24 way any liability to which the hospital may be subject under
25 any other provision of law.
26 (3)(2) Every hospital licensed under chapter 395 may
27 carry liability insurance or adequately insure itself in an
28 amount of not less than $1.5 million per claim, $5 million
29 annual aggregate to cover all medical injuries to patients
30 resulting from negligent acts or omissions on the part of
31 those members of its medical staff who are covered thereby in
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1 furtherance of the requirements of ss. 458.320 and 459.0085.
2 Self-insurance coverage extended hereunder to a member of a
3 hospital's medical staff meets the financial responsibility
4 requirements of ss. 458.320 and 459.0085 if the physician's
5 coverage limits are not less than the minimum limits
6 established in ss. 458.320 and 459.0085 and the hospital is a
7 verified trauma center that has extended self-insurance
8 coverage continuously to members of its medical staff for
9 activities both inside and outside of the hospital. Any
10 insurer authorized to write casualty insurance may make
11 available, but shall not be required to write, such coverage.
12 The hospital may assess on an equitable and pro rata basis the
13 following professional health care providers for a portion of
14 the total hospital insurance cost for this coverage:
15 physicians licensed under chapter 458, osteopathic physicians
16 licensed under chapter 459, podiatric physicians licensed
17 under chapter 461, dentists licensed under chapter 466, and
18 nurses licensed under part I of chapter 464. The hospital may
19 provide for a deductible amount to be applied against any
20 individual health care provider found liable in a law suit in
21 tort or for breach of contract for an act of medical
22 negligence for which the hospital is not exclusively liable
23 pursuant to subsection (2). The legislative intent in holding
24 hospitals exclusively liable for acts of medical negligence
25 committed on hospital patients in emergency rooms is to
26 instill in each hospital the incentive to maximize the use of
27 measures that will avoid the risk of injury to the fullest
28 extent and ensure that the public receives the highest quality
29 health care obtainable from the hospital and the individual
30 health care providers who practice therein. The legislative
31 intent in providing for the deductible to be applied to
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1 individual health care providers found negligent or in breach
2 of contract for acts for which the hospital is not liable is
3 to instill in each individual health care provider the
4 incentive to avoid the risk of injury to the fullest extent
5 and ensure that the public receives citizens of this state
6 receive the highest quality health care obtainable.
7 Section 7. Effective upon this act becoming a law and
8 applicable to notices of intent to litigate and responses
9 mailed on or after July 1, 2003, section 766.113, Florida
10 Statutes, is amended to read:
11 766.113 Settlement agreements; prohibition on
12 restricting disclosure to Division of Medical Quality
13 Assurance.--A settlement agreement involving a claim for
14 medical malpractice shall not prohibit any party to the
15 agreement from discussing the settlement amount or with or
16 reporting to the Division of Medical Quality Assurance the
17 events giving rise to the claim.
18 Section 8. Effective upon this act becoming a law and
19 applicable to causes of action filed on or after July 1, 2003,
20 section 766.115, Florida Statutes, is created to read:
21 766.115 Policy to prohibit or discourage the providing
22 of expert testimony prohibited; civil remedy.--
23 (1) Any policy, written or oral, by a private or
24 public educational institution; a private or public health
25 care facility; a professional association; a pharmaceutical
26 corporation; a manufacturer of a drug, medical product, or
27 medical device; an insurer, self-insurance trust, risk
28 retention group, joint underwriting association, fund, or
29 similar entity; or a health maintenance organization, which
30 prohibits or discourages providing expert testimony is against
31 public policy and is void.
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1 (2) Any person may bring a civil action to:
2 (a) Enjoin a person or entity who has violated or is
3 violating the provisions of subsection (1).
4 (b) Obtain a civil penalty of not more than $10,000
5 for each violation.
6 (3) A showing of proof that the prohibited policy
7 exists creates a rebuttable presumption that the existence of
8 the policy caused irreparable injury to the claimant. The
9 defendant institution has the burden of proving by a
10 preponderance of the evidence that the claimant was not
11 injured by demonstrating that, in the absence of the policy,
12 the witness would nevertheless have not allowed himself or
13 herself to be retained by the claimant. In any civil action
14 involving a violation of subsection (1) where an injury has
15 occurred, reasonable attorney's fees and costs shall be
16 awarded to the prevailing party. The award of fees and costs
17 shall become part of the judgment and subject to execution as
18 provided by law.
19 Section 9. Effective upon this act becoming a law and
20 applicable to causes of action filed on or after July 1, 2003,
21 subsection (5) of section 766.202, Florida Statutes, is
22 amended to read:
23 766.202 Definitions; ss. 766.201-766.212.--As used in
24 ss. 766.201-766.212, the term:
25 (5) "Medical expert" means a person duly and regularly
26 engaged in the practice of his or her profession who holds a
27 health care professional degree from a university or college
28 and has had special professional training, knowledge, or and
29 experience or one possessed of special health care knowledge
30 or skill about the subject upon which he or she is called to
31 testify or provide an opinion and who is familiar with the
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1 evaluation, diagnosis, or treatment of the medical condition
2 at issue. Such expert shall certify that he or she has had
3 experience in the evaluation, diagnosis, or treatment of this
4 condition. In order to avoid the appearance of impropriety, a
5 medical expert opinion submitted on behalf of a defendant may
6 not be provided by a member of the same self-insurance trust
7 or risk retention group as the defendant or by a health care
8 provider who is employed by the same employer as the defendant
9 or in a professional association, partnership, or joint
10 venture with the defendant.
11 Section 10. Effective upon this act becoming a law and
12 applicable to notices of intent to litigate and responses
13 mailed on or after July 1, 2003, subsection (4) of section
14 766.205, Florida Statutes, is amended to read:
15 766.205 Presuit discovery of medical negligence claims
16 and defenses.--
17 (4) With the exception of sworn statements taken
18 pursuant to s. 766.106(7)(a), no statement, discussion,
19 written document, report, or other work product generated
20 solely by the presuit investigation process is discoverable or
21 admissible in any civil action for any purpose by the opposing
22 party. All participants, including, but not limited to,
23 hospitals and other medical facilities, and the officers,
24 directors, trustees, employees, and agents thereof,
25 physicians, investigators, witnesses, and employees or
26 associates of the defendant, are immune from civil liability
27 arising from participation in the presuit investigation
28 process. Such immunity from civil liability includes immunity
29 for any acts by a medical facility in connection with
30 providing medical records pursuant to s. 766.204(1) regardless
31 of whether the medical facility is or is not a defendant.
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1 Section 11. Effective upon this act becoming a law and
2 applicable to to all causes of action pending on or after that
3 date, section 766.206, Florida Statutes, is amended to read:
4 766.206 Presuit investigation of medical negligence
5 claims and defenses by court.--
6 (1) After the completion of presuit investigation by
7 the parties pursuant to s. 766.203 and any informal discovery
8 pursuant to s. 766.106, any party may file a motion in the
9 circuit court requesting the court to determine whether the
10 opposing party's claim or denial rests on a reasonable basis.
11 (2) If the court finds that the notice of intent to
12 initiate litigation mailed by the claimant is not in
13 compliance with the reasonable investigation requirements of
14 ss. 766.201-766.212, including a review of the claim and a
15 verified written medical expert opinion by an expert witness
16 as defined in s. 766.202, the court shall dismiss the claim,
17 and the person who mailed such notice of intent, whether the
18 claimant or the claimant's attorney, shall be personally
19 liable for all attorney's fees and costs incurred during the
20 investigation and evaluation of the claim, including the
21 reasonable attorney's fees and costs of the defendant or the
22 defendant's insurer.
23 (3) If the court finds that the response mailed by a
24 defendant rejecting the claim is not in compliance with the
25 reasonable investigation requirements of ss.766.201-766.212,
26 including a review of the claim and a verified written medical
27 expert opinion by an expert witness as defined in s. 766.202,
28 the court shall strike the defendant's pleading. response, and
29 The person who mailed such response, whether the defendant,
30 the defendant's insurer, or the defendant's attorney, shall be
31 personally liable for all attorney's fees and costs incurred
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1 during the investigation and evaluation of the claim,
2 including the reasonable attorney's fees and costs of the
3 claimant.
4 (4) If the court finds that an attorney for the
5 claimant mailed notice of intent to initiate litigation
6 without reasonable investigation, or filed a medical
7 negligence claim without first mailing such notice of intent
8 which complies with the reasonable investigation requirements,
9 or if the court finds that an attorney for a defendant mailed
10 a response rejecting the claim without reasonable
11 investigation, the court shall submit its finding in the
12 matter to The Florida Bar for disciplinary review of the
13 attorney. Any attorney so reported three or more times within
14 a 5-year period shall be reported to a circuit grievance
15 committee acting under the jurisdiction of the Supreme Court.
16 If such committee finds probable cause to believe that an
17 attorney has violated this section, such committee shall
18 forward to the Supreme Court a copy of its finding.
19 (5)(a) If the court finds that the corroborating
20 written medical expert opinion attached to any notice of claim
21 or intent or to any response rejecting a claim lacked
22 reasonable investigation, or that the medical expert
23 submitting the opinion did not meet the expert witness
24 qualifications as set forth in s. 766.202(5), the court shall
25 report the medical expert issuing such corroborating opinion
26 to the Division of Medical Quality Assurance or its designee.
27 If such medical expert is not a resident of the state, the
28 division shall forward such report to the disciplining
29 authority of that medical expert.
30 (b) The court shall may refuse to consider the
31 testimony of such an expert whose medical expert witness
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1 opinion attached to any notice of intent or to any response
2 rejecting a claim who has been disqualified three times
3 pursuant to this section.
4 Section 12. Notwithstanding any provision of law to
5 the contrary, in an action for damages for personal injury or
6 wrongful death arising out of medical malpractice, whether in
7 contract or tort, the trier of fact shall apportion the total
8 fault only among the claimant and all joint tortfeasors who
9 are parties to the action when the case is submitted to the
10 jury for deliberation and the rendition of a verdict.
11 Section 13. Except as otherwise expressly provided in
12 this act, this act shall take effect upon becoming a law.
13
14 *****************************************
15 SENATE SUMMARY
16 Revises various provisions governing medical malpractice.
Revises certain criteria for expert witnesses and the
17 providing of expert testimony. Changes the period for
extending the statute of limitations in a medical
18 negligence case from 90 days to 180 days. Provides for
sworn statements rather than unsworn statements during
19 informal discovery. Authorizes written questions.
Provides a procedure for mandatory mediation. Provides
20 for assessing fees and costs following mediation and
judgment. Provides that a hospital is exclusively liable
21 for negligent acts or omissions regarding the provision
of treatment in the hospital's emergency room or trauma
22 center. Prohibits actions that prevent or discourage the
providing of expert testimony. Provides a civil remedy.
23 Requires the court to apportion total fault in a medical
malpractice case among the claimant and joint tortfeasors
24 who are parties to the action when the case is submitted
to the jury. (See bill for details.)
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