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:

31  

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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

31  

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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.

31  

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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

31  

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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.

18  

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.)
25  

26  

27  

28  

29  

30  

31  

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