Senate Bill sb0564c3

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    By the Committees on Appropriations; Judiciary; Health, Aging,
    and Long-Term Care; and Senators Saunders and Peaden



    309-2437-03

  1                      A bill to be entitled

  2         An act relating to medical malpractice;

  3         providing legislative findings; amending s.

  4         46.015, F.S.; revising requirements for set

  5         offs against damages in medical malpractice

  6         actions if there is a written release or

  7         covenant not to sue; amending s. 456.057, F.S.;

  8         authorizing the release of medical information

  9         to defendant health care practitioners in

10         medical malpractice actions under specified

11         circumstances; amending s. 766.102, F.S;

12         revising requirements for health care providers

13         providing expert testimony in medical

14         negligence actions; prohibiting contingency

15         fees for an expert witness; amending s.

16         766.106, F.S.; revising requirements for

17         presuit notice and insurer or self-insurer

18         response to a claim; permitting written

19         questions during informal discovery; requiring

20         a claimant to execute a medical release to

21         authorize defendants in medical negligence

22         actions to take unsworn statements from a

23         claimant's treating physicians; providing for

24         informal discovery without notice; imposing

25         limits on such statements; amending s. 766.108,

26         F.S.; providing for mandatory mediation;

27         amending s. 766.202, F.S.; redefining the terms

28         "economic damages," "medical expert,"

29         "noneconomic damages," amending s. 766.206,

30         F.S.; providing for dismissal of a claim under

31         certain circumstances; requiring the court to

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         make certain reports concerning a medical

 2         expert who fails to meet qualifications;

 3         amending s. 766.207, F.S.; providing for the

 4         applicability of the Wrongful Death Act and

 5         general law to arbitration awards; amending s.

 6         768.041, F.S.; revising requirements for set

 7         offs against damages in medical malpractice

 8         actions if there is a written release or

 9         covenant not to sue; providing legislative

10         intent and findings with respect to the

11         provision of emergency medical services and

12         care by care providers; amending s. 768.13,

13         F.S.; extending immunity from liability to

14         certain health care practitioners in response

15         to an emergency in a hospital; amending s.

16         768.28, F.S.; extending sovereign immunity to

17         specified health care providers as agents of

18         the state when providing emergency services

19         pursuant to state and federal imposed

20         obligations; amending s. 768.77, F.S.;

21         prescribing a method for itemization of

22         specific categories of damages awarded in

23         medical malpractice actions; amending s.

24         768.81, F.S.; requiring the trier of fact to

25         apportion total fault solely among the claimant

26         and joint tortfeasors as parties to an action;

27         providing for severability; providing effective

28         dates.

29  

30  Be It Enacted by the Legislature of the State of Florida:

31  

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         Section 1.  Findings.--

 2         (1)  The Legislature finds that Florida is in the midst

 3  of a medical malpractice insurance crisis of unprecedented

 4  magnitude.

 5         (2)  The Legislature finds that this crisis threatens

 6  the quality and availability of health care for all Florida

 7  citizens.

 8         (3)  The Legislature finds that the rapidly growing

 9  population and the changing demographics of Florida make it

10  imperative that students continue to choose Florida as the

11  place they will receive their medical educations and practice

12  medicine.

13         (4)  The Legislature finds that Florida is among the

14  states with the highest medical malpractice insurance premiums

15  in the nation.

16         (5)  The Legislature finds that the cost of medical

17  malpractice insurance has increased dramatically during the

18  past decade and both the increase and the current cost are

19  substantially higher than the national average.

20         (6)  The Legislature finds that the increase in medical

21  malpractice liability insurance rates is forcing physicians to

22  practice medicine without professional liability insurance, to

23  leave Florida, to not perform high-risk procedures, or to

24  retire early from the practice of medicine.

25         (7)  The Governor created the Governor's Select Task

26  Force on Healthcare Professional Liability Insurance to study

27  and make recommendations to address these problems.

28         (8)  The Legislature has reviewed the findings and

29  recommendations of the Governor's Select Task Force on

30  Healthcare Professional Liability Insurance.

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         (9)  The Legislature finds that the Governor's Select

 2  Task Force on Healthcare Professional Liability Insurance has

 3  established that a medical malpractice insurance crisis exists

 4  in the State of Florida which can be alleviated by the

 5  adoption of comprehensive legislatively enacted reforms.

 6         (10)  The Legislature finds that making high-quality

 7  health care available to the citizens of this state is an

 8  overwhelming public necessity.

 9         (11)  The Legislature finds that ensuring that

10  physicians continue to practice in Florida is an overwhelming

11  public necessity.

12         (12)  The Legislature finds that ensuring the

13  availability of affordable professional liability insurance

14  for physicians is an overwhelming public necessity.

15         (13)  The Legislature finds, based upon the findings

16  and recommendations of the Governor's Select Task Force on

17  Healthcare Professional Liability Insurance, the findings and

18  recommendations of various study groups throughout the nation,

19  and the experience of other states, that the overwhelming

20  public necessities of making quality health care available to

21  the citizens of this state, of ensuring that physicians

22  continue to practice in Florida, and of ensuring that those

23  physicians have the opportunity to purchase affordable

24  professional liability insurance cannot be met unless

25  comprehensive legislation is adopted.

26         (14)  The Legislature finds that the provisions of this

27  act are naturally and logically connected to each other and to

28  the purpose of making quality health care available to the

29  citizens of Florida.

30         Section 2.  Subsection (4) is added to section 46.015,

31  Florida Statutes, to read:

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         46.015  Release of parties.--

 2         (4)(a)  At trial pursuant to a suit filed under chapter

 3  766 or pursuant to s. 766.209, if any defendant shows the

 4  court that the plaintiff, or his or her legal representative,

 5  has delivered a written release or covenant not to sue to any

 6  person in partial satisfaction of the damages sued for, the

 7  court shall set off this amount from the total amount of the

 8  damages set forth in the verdict and before entry of the final

 9  judgment.

10         (b)  The amount of any set off under this subsection

11  shall include all sums received by the plaintiff, including

12  economic and noneconomic damages, costs, and attorney's fees.

13         Section 3.  Subsection (6) of section 456.057, Florida

14  Statutes, is amended to read:

15         456.057  Ownership and control of patient records;

16  report or copies of records to be furnished.--

17         (6)  Except in a medical negligence action or

18  administrative proceeding when a health care practitioner or

19  provider is or reasonably expects to be named as a defendant,

20  information disclosed to a health care practitioner by a

21  patient in the course of the care and treatment of such

22  patient is confidential and may be disclosed only to other

23  health care practitioners and providers involved in the care

24  or treatment of the patient, or if permitted by written

25  authorization from the patient or compelled by subpoena at a

26  deposition, evidentiary hearing, or trial for which proper

27  notice has been given or by a medical information release

28  executed pursuant to s. 766.106(13) which permits the taking

29  of unsworn statements.

30         Section 4.  Section 766.102, Florida Statutes, is

31  amended to read:

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         766.102  Medical negligence; standards of recovery;

 2  expert witness.--

 3         (1)  In any action for recovery of damages based on the

 4  death or personal injury of any person in which it is alleged

 5  that such death or injury resulted from the negligence of a

 6  health care provider as defined in s. 766.101(1)(b) s.

 7  768.50(2)(b), the claimant shall have the burden of proving by

 8  the greater weight of evidence that the alleged actions of the

 9  health care provider represented a breach of the prevailing

10  professional standard of care for that health care provider.

11  The prevailing professional standard of care for a given

12  health care provider shall be that level of care, skill, and

13  treatment which, in light of all relevant surrounding

14  circumstances, is recognized as acceptable and appropriate by

15  reasonably prudent similar health care providers.

16         (2)(a)  If the health care provider whose negligence is

17  claimed to have created the cause of action is not certified

18  by the appropriate American board as being a specialist, is

19  not trained and experienced in a medical specialty, or does

20  not hold himself or herself out as a specialist, a "similar

21  health care provider" is one who:

22         1.  Is licensed by the appropriate regulatory agency of

23  this state;

24         2.  Is trained and experienced in the same discipline

25  or school of practice; and

26         3.  Practices in the same or similar medical community.

27         (b)  If the health care provider whose negligence is

28  claimed to have created the cause of action is certified by

29  the appropriate American board as a specialist, is trained and

30  experienced in a medical specialty, or holds himself or

31  

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  herself out as a specialist, a "similar health care provider"

 2  is one who:

 3         1.  Is trained and experienced in the same specialty;

 4  and

 5         2.  Is certified by the appropriate American board in

 6  the same specialty.

 7  

 8  However, if any health care provider described in this

 9  paragraph is providing treatment or diagnosis for a condition

10  which is not within his or her specialty, a specialist trained

11  in the treatment or diagnosis for that condition shall be

12  considered a "similar health care provider."

13         (c)  The purpose of this subsection is to establish a

14  relative standard of care for various categories and

15  classifications of health care providers.  Any health care

16  provider may testify as an expert in any action if he or she:

17         1.  Is a similar health care provider pursuant to

18  paragraph (a) or paragraph (b); or

19         2.  Is not a similar health care provider pursuant to

20  paragraph (a) or paragraph (b) but, to the satisfaction of the

21  court, possesses sufficient training, experience, and

22  knowledge as a result of practice or teaching in the specialty

23  of the defendant or practice or teaching in a related field of

24  medicine, so as to be able to provide such expert testimony as

25  to the prevailing professional standard of care in a given

26  field of medicine.  Such training, experience, or knowledge

27  must be as a result of the active involvement in the practice

28  or teaching of medicine within the 5-year period before the

29  incident giving rise to the claim.

30         (2)(3)(a)  If the injury is claimed to have resulted

31  from the negligent affirmative medical intervention of the

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  health care provider, the claimant must, in order to prove a

 2  breach of the prevailing professional standard of care, show

 3  that the injury was not within the necessary or reasonably

 4  foreseeable results of the surgical, medicinal, or diagnostic

 5  procedure constituting the medical intervention, if the

 6  intervention from which the injury is alleged to have resulted

 7  was carried out in accordance with the prevailing professional

 8  standard of care by a reasonably prudent similar health care

 9  provider.

10         (b)  The provisions of this subsection shall apply only

11  when the medical intervention was undertaken with the informed

12  consent of the patient in compliance with the provisions of s.

13  766.103.

14         (3)(4)  The existence of a medical injury shall not

15  create any inference or presumption of negligence against a

16  health care provider, and the claimant must maintain the

17  burden of proving that an injury was proximately caused by a

18  breach of the prevailing professional standard of care by the

19  health care provider. However, the discovery of the presence

20  of a foreign body, such as a sponge, clamp, forceps, surgical

21  needle, or other paraphernalia commonly used in surgical,

22  examination, or diagnostic procedures, shall be prima facie

23  evidence of negligence on the part of the health care

24  provider.

25         (4)(5)  The Legislature is cognizant of the changing

26  trends and techniques for the delivery of health care in this

27  state and the discretion that is inherent in the diagnosis,

28  care, and treatment of patients by different health care

29  providers.  The failure of a health care provider to order,

30  perform, or administer supplemental diagnostic tests shall not

31  be actionable if the health care provider acted in good faith

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  and with due regard for the prevailing professional standard

 2  of care.

 3         (5)  A person may not give expert testimony concerning

 4  the prevailing professional standard of care unless that

 5  person is a licensed health care provider and meets the

 6  following criteria:

 7         (a)  If the party against whom or on whose behalf the

 8  testimony is offered is a specialist, the expert witness must:

 9         1.  Specialize in the same specialty as the party

10  against whom or on whose behalf the testimony is offered; or 

11         2.  Specialize in a similar speciality that includes

12  the evaluation, diagnosis, or treatment of the medical

13  condition that is the subject of the claim and have prior

14  experience treating similar patients.

15         (b)  Have devoted professional time during the 3 years

16  immediately preceding the date of the occurrence that is the

17  basis for the action to:

18         1.  The active clinical practice of, or consulting with

19  respect to, the same or similar health profession as the

20  health care provider against whom or on whose behalf the

21  testimony is offered and, if that health care provider is a

22  specialist, the active clinical practice of, or consulting

23  with respect to, the same or similar specialty that includes

24  the evaluation, diagnosis, or treatment of the medical

25  condition that is the subject of the claim and have prior

26  experience treating similar patients;

27         2.  The instruction of students in an accredited health

28  professional school or accredited residency program in the

29  same or similar health profession in which the health care

30  provider against whom or on whose behalf the testimony is

31  offered and, if that health care provider is a specialist, an

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  accredited health professional school or accredited residency

 2  or clinical research program in the same or similar specialty;

 3  or

 4         3.  A clinical research program that is affiliated with

 5  an accredited medical school or teaching hospital and that is

 6  in the same or similar health profession as the health care

 7  provider against whom or on whose behalf the testimony is

 8  offered and, if that health care provider is a specialist, a

 9  clinical research program that is affiliated with an

10  accredited health professional school or accredited residency

11  or clinical research program in the same or similar specialty.

12         (c)  If the party against whom or on whose behalf the

13  testimony is offered is a general practitioner, the expert

14  witness must have devoted professional time during the 5 years

15  immediately preceding the date of the occurrence that is the

16  basis for the action to:

17         1.  Active clinical practice or consultation as a

18  general practitioner;

19         2.  Instruction of students in an accredited health

20  professional school or accredited residency program in the

21  general practice of medicine; or

22         3.  A clinical research program that is affiliated with

23  an accredited medical school or teaching hospital and that is

24  in the general practice of medicine.

25         (6)  A physician licensed under chapter 458 or chapter

26  459 who qualifies as an expert witness under subsection (5)

27  and who, by reason of active clinical practice or instruction

28  of students, has knowledge of the applicable standard of care

29  for nurses, nurse practitioners, certified registered nurse

30  anesthetists, certified registered nurse midwives, physician

31  assistants, or other medical support staff may give expert

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  testimony in a medical malpractice action with respect to the

 2  standard of care of such medical support staff.

 3         (7)  Notwithstanding subsection (5), in a medical

 4  malpractice action against a hospital, a health care facility,

 5  or medical facility, a person may give expert testimony on the

 6  appropriate standard of care as to administrative and other

 7  nonclinical issues if the person has substantial knowledge, by

 8  virtue of his or her training and experience, concerning the

 9  standard of care among hospitals, health care facilities, or

10  medical facilities of the same type as the hospital, health

11  care facility, or medical facility whose acts or omissions are

12  the subject of the testimony and which are located in the same

13  or similar communities at the time of the alleged act giving

14  rise to the cause of action.

15         (8)  If a health care provider described in subsection

16  (5), subsection (6), or subsection (7) is providing

17  evaluation, treatment, or diagnosis for a condition that is

18  not within his or her specialty, a specialist trained in the

19  evaluation, treatment, or diagnosis for that condition shall

20  be considered a similar health care provider.

21         (9)(6)(a)  In any action for damages involving a claim

22  of negligence against a physician licensed under chapter 458,

23  osteopathic physician licensed under chapter 459, podiatric

24  physician licensed under chapter 461, or chiropractic

25  physician licensed under chapter 460 providing emergency

26  medical services in a hospital emergency department, the court

27  shall admit expert medical testimony only from physicians,

28  osteopathic physicians, podiatric physicians, and chiropractic

29  physicians who have had substantial professional experience

30  within the preceding 5 years while assigned to provide

31  emergency medical services in a hospital emergency department.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         (b)  For the purposes of this subsection:

 2         1.  The term "emergency medical services" means those

 3  medical services required for the immediate diagnosis and

 4  treatment of medical conditions which, if not immediately

 5  diagnosed and treated, could lead to serious physical or

 6  mental disability or death.

 7         2.  "Substantial professional experience" shall be

 8  determined by the custom and practice of the manner in which

 9  emergency medical coverage is provided in hospital emergency

10  departments in the same or similar localities where the

11  alleged negligence occurred.

12         (10)  In any action alleging medical malpractice, an

13  expert witness may not testify on a contingency fee basis.

14         (11)  Any attorney who proffers a person as an expert

15  witness pursuant to this section must certify that such person

16  has not been found guilty of fraud or perjury in any

17  jurisdiction.

18         (12)  This section does not limit the power of the

19  trial court to disqualify or qualify an expert witness on

20  grounds other than the qualifications in this section.

21         Section 5.  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, and subsection (13) is added to that section, to

26  read:

27         766.106  Notice before filing action for medical

28  malpractice; presuit screening period; offers for admission of

29  liability and for arbitration; informal discovery; review.--

30         (2)(a)  After completion of presuit investigation

31  pursuant to s. 766.203 and prior to filing a claim for medical

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  malpractice, a claimant shall notify each prospective

 2  defendant by certified mail, return receipt requested, of

 3  intent to initiate litigation for medical malpractice. Notice

 4  to each prospective defendant must include, if available, a

 5  list of all known health care providers seen by the claimant

 6  for the injuries complained of subsequent to the alleged act

 7  of malpractice, all known health care providers during the

 8  2-year period prior to the alleged act of malpractice who

 9  treated or evaluated the claimant, and copies of all of the

10  medical records relied upon by the expert in signing the

11  affidavit. The requirement of providing the list of known

12  health care providers may not serve as grounds for imposing

13  sanctions for failure to provide presuit discovery.

14         (b)  Following the initiation of a suit alleging

15  medical malpractice with a court of competent jurisdiction,

16  and service of the complaint upon a defendant, the claimant

17  shall provide a copy of the complaint to the Department of

18  Health. The requirement of providing the complaint to the

19  Department of Health does not impair the claimant's legal

20  rights or ability to seek relief for his or her claim. The

21  Department of Health shall review each incident and determine

22  whether it involved conduct by a licensee which is potentially

23  subject to disciplinary action, in which case the provisions

24  of s. 456.073 apply.

25         (3)(a)  No suit may be filed for a period of 90 days

26  after notice is mailed to any prospective defendant. During

27  the 90-day period, the prospective defendant's insurer or

28  self-insurer shall conduct a review to determine the liability

29  of the defendant.  Each insurer or self-insurer shall have a

30  procedure for the prompt investigation, review, and evaluation

31  

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  of claims during the 90-day period.  This procedure shall

 2  include one or more of the following:

 3         1.  Internal review by a duly qualified claims

 4  adjuster;

 5         2.  Creation of a panel comprised of an attorney

 6  knowledgeable in the prosecution or defense of medical

 7  malpractice actions, a health care provider trained in the

 8  same or similar medical specialty as the prospective

 9  defendant, and a duly qualified claims adjuster;

10         3.  A contractual agreement with a state or local

11  professional society of health care providers, which maintains

12  a medical review committee;

13         4.  Any other similar procedure which fairly and

14  promptly evaluates the pending claim.

15  

16  Each insurer or self-insurer shall investigate the claim in

17  good faith, and both the claimant and prospective defendant

18  shall cooperate with the insurer in good faith.  If the

19  insurer requires, a claimant shall appear before a pretrial

20  screening panel or before a medical review committee and shall

21  submit to a physical examination, if required.  Unreasonable

22  failure of any party to comply with this section justifies

23  dismissal of claims or defenses. There shall be no civil

24  liability for participation in a pretrial screening procedure

25  if done without intentional fraud.

26         (b)  At or before the end of the 90 days, the insurer

27  or self-insurer shall provide the claimant with a response:

28         1.  Rejecting the claim;

29         2.  Making a settlement offer; or

30         3.  Making an offer to arbitrate in which liability is

31  deemed admitted and arbitration will be held only of admission

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  of liability and for arbitration on the issue of damages.

 2  This offer may be made contingent upon a limit of general

 3  damages.

 4         (7)  Informal discovery may be used by a party to

 5  obtain unsworn statements, the production of documents or

 6  things, and physical and mental examinations, as follows:

 7         (a)  Unsworn statements.--Any party may require other

 8  parties to appear for the taking of an unsworn statement. Such

 9  statements may be used only for the purpose of presuit

10  screening and are not discoverable or admissible in any civil

11  action for any purpose by any party. A party desiring to take

12  the unsworn statement of any party must give reasonable notice

13  in writing to all parties.  The notice must state the time and

14  place for taking the statement and the name and address of the

15  party to be examined.  Unless otherwise impractical, the

16  examination of any party must be done at the same time by all

17  other parties.  Any party may be represented by counsel at the

18  taking of an unsworn statement. An unsworn statement may be

19  recorded electronically, stenographically, or on videotape.

20  The taking of unsworn statements is subject to the provisions

21  of the Florida Rules of Civil Procedure and may be terminated

22  for abuses.

23         (b)  Documents or things.--Any party may request

24  discovery of documents or things.  The documents or things

25  must be produced, at the expense of the requesting party,

26  within 20 days after the date of receipt of the request.  A

27  party is required to produce discoverable documents or things

28  within that party's possession or control.

29         (c)  Physical and mental examinations.--A prospective

30  defendant may require an injured prospective claimant to

31  appear for examination by an appropriate health care provider.

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  The defendant shall give reasonable notice in writing to all

 2  parties as to the time and place for examination. Unless

 3  otherwise impractical, a prospective claimant is required to

 4  submit to only one examination on behalf of all potential

 5  defendants. The practicality of a single examination must be

 6  determined by the nature of the potential claimant's

 7  condition, as it relates to the liability of each potential

 8  defendant. Such examination report is available to the parties

 9  and their attorneys upon payment of the reasonable cost of

10  reproduction and may be used only for the purpose of presuit

11  screening. Otherwise, such examination report is confidential

12  and exempt from the provisions of s. 119.07(1) and s. 24(a),

13  Art. I of the State Constitution.

14         (d)  Written questions.--Any party may request answers

15  to written questions, which may not exceed 30, including

16  subparts. A response must be made within 20 days after receipt

17  of the questions.

18         (e)  Informal discovery.--It is the intent of the

19  Legislature that informal discovery may be conducted pursuant

20  to this subsection by any party without notice to any other

21  party.

22         (13)  The claimant must execute a medical information

23  release that allows a defendant or his or her legal

24  representative to obtain unsworn statements of the claimant's

25  treating physicians, which statements must be limited to those

26  areas that are potentially relevant to the claim of personal

27  injury or wrongful death.

28         Section 6.  Section 766.108, Florida Statutes, is

29  amended to read:

30         766.108  Mandatory mediation and mandatory settlement

31  conference in medical malpractice actions.--

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         (1)  Within 120 days after suit for medical malpractice

 2  is filed, the parties shall engage in mandatory mediation in

 3  accordance with s. 44.102, if the parties have not agreed to

 4  binding arbitration under s. 766.207. The Florida Rules of

 5  Civil Procedure apply to mediation held pursuant to this

 6  section.

 7         (2)(a)(1)  In any action for damages based on personal

 8  injury or wrongful death arising out of medical malpractice,

 9  whether in tort or contract, the court shall require a

10  settlement conference at least 3 weeks before the date set for

11  trial.

12         (b)(2)  Attorneys who will conduct the trial, parties,

13  and persons with authority to settle shall attend the

14  settlement conference held before the court unless excused by

15  the court for good cause.

16         Section 7.  Subsections (3), (5), and (7), of section

17  766.202, Florida Statutes, are amended to read:

18         766.202  Definitions; ss. 766.201-766.212.--As used in

19  ss. 766.201-766.212, the term:

20         (3)  "Economic damages" means financial losses that

21  which would not have occurred but for the injury giving rise

22  to the cause of action, including, but not limited to, past

23  and future medical expenses and 80 percent of wage loss and

24  loss of earning capacity, to the extent the claimant is

25  entitled to recover such damages under general law, including

26  the Wrongful Death Act.

27         (5)  "Medical expert" means a person duly and regularly

28  engaged in the practice of his or her profession who holds a

29  health care professional degree from a university or college

30  and who meets the requirements of an expert witness as set

31  forth in s. 766.102 has had special professional training and

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  experience or one possessed of special health care knowledge

 2  or skill about the subject upon which he or she is called to

 3  testify or provide an opinion.

 4         (7)  "Noneconomic damages" means nonfinancial losses

 5  which would not have occurred but for the injury giving rise

 6  to the cause of action, including pain and suffering,

 7  inconvenience, physical impairment, mental anguish,

 8  disfigurement, loss of capacity for enjoyment of life, and

 9  other nonfinancial losses, to the extent the claimant is

10  entitled to recover such damages under general law, including

11  the Wrongful Death Act.

12         Section 8.  Effective upon this act becoming a law and

13  applicable to all causes of action accruing on or after that

14  date, section 766.206, Florida Statutes, is amended to read:

15         766.206  Presuit investigation of medical negligence

16  claims and defenses by court.--

17         (1)  After the completion of presuit investigation by

18  the parties pursuant to s. 766.203 and any informal discovery

19  pursuant to s. 766.106, any party may file a motion in the

20  circuit court requesting the court to determine whether the

21  opposing party's claim or denial rests on a reasonable basis.

22         (2)  If the court finds that the notice of intent to

23  initiate litigation mailed by the claimant is not in

24  compliance with the reasonable investigation requirements of

25  ss. 766.201-766.212, including a review of the claim and a

26  verified written medical expert opinion by an expert witness

27  as defined in s. 766.202, the court shall dismiss the claim,

28  and the person who mailed such notice of intent, whether the

29  claimant or the claimant's attorney, shall be personally

30  liable for all attorney's fees and costs incurred during the

31  investigation and evaluation of the claim, including the

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  reasonable attorney's fees and costs of the defendant or the

 2  defendant's insurer.

 3         (3)  If the court finds that the response mailed by a

 4  defendant rejecting the claim is not in compliance with the

 5  reasonable investigation requirements of ss.766.201-766.212,

 6  including a review of the claim and a verified written medical

 7  expert opinion by an expert witness as defined in s. 766.202,

 8  the court shall strike the defendant's pleading. response, and

 9  The person who mailed such response, whether the defendant,

10  the defendant's insurer, or the defendant's attorney, shall be

11  personally liable for all attorney's fees and costs incurred

12  during the investigation and evaluation of the claim,

13  including the reasonable attorney's fees and costs of the

14  claimant.

15         (4)  If the court finds that an attorney for the

16  claimant mailed notice of intent to initiate litigation

17  without reasonable investigation, or filed a medical

18  negligence claim without first mailing such notice of intent

19  which complies with the reasonable investigation requirements,

20  or if the court finds that an attorney for a defendant mailed

21  a response rejecting the claim without reasonable

22  investigation, the court shall submit its finding in the

23  matter to The Florida Bar for disciplinary review of the

24  attorney.  Any attorney so reported three or more times within

25  a 5-year period shall be reported to a circuit grievance

26  committee acting under the jurisdiction of the Supreme Court.

27  If such committee finds probable cause to believe that an

28  attorney has violated this section, such committee shall

29  forward to the Supreme Court a copy of its finding.

30         (5)(a)  If the court finds that the corroborating

31  written medical expert opinion attached to any notice of claim

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  or intent or to any response rejecting a claim lacked

 2  reasonable investigation, or that the medical expert

 3  submitting the opinion did not meet the expert witness

 4  qualifications as set forth in s. 766.202(5), the court shall

 5  report the medical expert issuing such corroborating opinion

 6  to the Division of Medical Quality Assurance or its designee.

 7  If such medical expert is not a resident of the state, the

 8  division shall forward such report to the disciplining

 9  authority of that medical expert.

10         (b)  The court shall may refuse to consider the

11  testimony or opinion attached to any notice of intent or to

12  any response rejecting a claim of such an expert who has been

13  disqualified three times pursuant to this section.

14         Section 9.  Subsection (7) of section 766.207, Florida

15  Statutes, is amended to read:

16         766.207  Voluntary binding arbitration of medical

17  negligence claims.--

18         (7)  Arbitration pursuant to this section shall

19  preclude recourse to any other remedy by the claimant against

20  any participating defendant, and shall be undertaken with the

21  understanding that damages shall be awarded as provided by

22  general law, including the Wrongful Death Act, subject to the

23  following limitations:

24         (a)  Net economic damages shall be awardable,

25  including, but not limited to, past and future medical

26  expenses and 80 percent of wage loss and loss of earning

27  capacity, offset by any collateral source payments.

28         (b)  Noneconomic damages shall be limited to a maximum

29  of $250,000 per incident, and shall be calculated on a

30  percentage basis with respect to capacity to enjoy life, so

31  that a finding that the claimant's injuries resulted in a

                                  20

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  50-percent reduction in his or her capacity to enjoy life

 2  would warrant an award of not more than $125,000 noneconomic

 3  damages.

 4         (c)  Damages for future economic losses shall be

 5  awarded to be paid by periodic payments pursuant to s.

 6  766.202(8) and shall be offset by future collateral source

 7  payments.

 8         (d)  Punitive damages shall not be awarded.

 9         (e)  The defendant shall be responsible for the payment

10  of interest on all accrued damages with respect to which

11  interest would be awarded at trial.

12         (f)  The defendant shall pay the claimant's reasonable

13  attorney's fees and costs, as determined by the arbitration

14  panel, but in no event more than 15 percent of the award,

15  reduced to present value.

16         (g)  The defendant shall pay all the costs of the

17  arbitration proceeding and the fees of all the arbitrators

18  other than the administrative law judge.

19         (h)  Each defendant who submits to arbitration under

20  this section shall be jointly and severally liable for all

21  damages assessed pursuant to this section.

22         (i)  The defendant's obligation to pay the claimant's

23  damages shall be for the purpose of arbitration under this

24  section only.  A defendant's or claimant's offer to arbitrate

25  shall not be used in evidence or in argument during any

26  subsequent litigation of the claim following the rejection

27  thereof.

28         (j)  The fact of making or accepting an offer to

29  arbitrate shall not be admissible as evidence of liability in

30  any collateral or subsequent proceeding on the claim.

31  

                                  21

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         (k)  Any offer by a claimant to arbitrate must be made

 2  to each defendant against whom the claimant has made a claim.

 3  Any offer by a defendant to arbitrate must be made to each

 4  claimant who has joined in the notice of intent to initiate

 5  litigation, as provided in s. 766.106.  A defendant who

 6  rejects a claimant's offer to arbitrate shall be subject to

 7  the provisions of s. 766.209(3). A claimant who rejects a

 8  defendant's offer to arbitrate shall be subject to the

 9  provisions of s. 766.209(4).

10         (l)  The hearing shall be conducted by all of the

11  arbitrators, but a majority may determine any question of fact

12  and render a final decision.  The chief arbitrator shall

13  decide all evidentiary matters.

14  

15  The provisions of this subsection shall not preclude

16  settlement at any time by mutual agreement of the parties.

17         Section 10.  Subsection (4) is added to section

18  768.041, Florida Statutes, to read:

19         768.041  Release or covenant not to sue.--

20         (4)(a)  At trial pursuant to a suit filed under chapter

21  766, or at trial pursuant to s. 766.209, if any defendant

22  shows the court that the plaintiff, or his or her legal

23  representative, has delivered a written release or covenant

24  not to sue to any person in partial satisfaction of the

25  damages sued for, the court shall set off this amount from the

26  total amount of the damages set forth in the verdict and

27  before entry of the final judgment.

28         (b)  The amount of the set off pursuant to this

29  subsection shall include all sums received by the plaintiff,

30  including economic and noneconomic damages, costs, and

31  attorney's fees.

                                  22

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         Section 11.  Legislative findings and intent.--The

 2  Legislature finds and declares it to be of vital importance

 3  that emergency services and care be provided by hospitals,

 4  physicians, and emergency medical services providers to every

 5  person in need of such care. The Legislature finds that

 6  emergency services and care providers are critical elements in

 7  responding to disaster and emergency situations that might

 8  affect our local communities, state, and country. The

 9  Legislature recognizes the importance of maintaining a viable

10  system of providing for the emergency medical needs of the

11  state's residents and visitors. The Legislature and the

12  Federal Government have required such providers of emergency

13  medical services and care to provide emergency services and

14  care to all persons who present to hospitals seeking such

15  care. The Legislature finds that the Legislature has further

16  mandated that prehospital emergency medical treatment or

17  transport may not be denied by emergency medical services

18  providers to persons who have or are likely to have an

19  emergency medical condition. Such governmental requirements

20  have imposed a unilateral obligation for emergency services

21  and care providers to provide services to all persons seeking

22  emergency care without ensuring payment or other consideration

23  for provision of such care. The Legislature also recognizes

24  that emergency services and care providers provide a

25  significant amount of uncompensated emergency medical care in

26  furtherance of such governmental interest. The Legislature

27  finds that a significant proportion of the residents of this

28  state who are uninsured or are Medicaid or Medicare recipients

29  are unable to access needed health care because health care

30  providers fear the increased risk of medical malpractice

31  liability. The Legislature finds that such patients, in order

                                  23

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  to obtain medical care, are frequently forced to seek care

 2  through providers of emergency medical services and care. The

 3  Legislature finds that providers of emergency medical services

 4  and care in this state have reported significant problems with

 5  both the availability and affordability of professional

 6  liability coverage. The Legislature finds that medical

 7  malpractice liability insurance premiums have increased

 8  dramatically, and a number of insurers have ceased providing

 9  medical malpractice insurance coverage for emergency medical

10  services and care in this state. This results in a functional

11  unavailability of medical malpractice insurance coverage for

12  some providers of emergency medical services and care. The

13  Legislature further finds that certain specialist physicians

14  have resigned from serving on hospital staffs or have

15  otherwise declined to provide on-call coverage to hospital

16  emergency departments due to increased medical malpractice

17  liability exposure created by treating such emergency

18  department patients. It is the intent of the Legislature that

19  hospitals, emergency medical services providers, and

20  physicians be able to ensure that patients who might need

21  emergency medical services treatment or transportation or who

22  present to hospitals for emergency medical services and care

23  have access to such needed services.

24         Section 12.  Paragraph (b) of subsection (2) of section

25  768.13, Florida Statutes, is amended, present paragraphs (c)

26  and (d) of that subsection are redesignated as paragraphs (f)

27  and (g), respectively, and new paragraphs (c), (d), and (e)

28  are added to that subsection, to read:

29         768.13  Good Samaritan Act; immunity from civil

30  liability.--

31         (2)

                                  24

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         (b)1.  Any hospital licensed under chapter 395, any

 2  employee of such hospital working in a clinical area within

 3  the facility and providing patient care, and any person

 4  licensed to practice medicine who in good faith renders

 5  medical care or treatment necessitated by a sudden, unexpected

 6  situation or occurrence resulting in a serious medical

 7  condition demanding immediate medical attention, for which the

 8  patient enters the hospital through its emergency room or

 9  trauma center, or necessitated by a public health emergency

10  declared pursuant to s. 381.00315 shall not be held liable for

11  any civil damages as a result of such medical care or

12  treatment unless such damages result from providing, or

13  failing to provide, medical care or treatment under

14  circumstances demonstrating a reckless disregard for the

15  consequences so as to affect the life or health of another.

16         (c)1.  Any health care practitioner as defined in s.

17  456.001(4) who is in a hospital attending to a patient of his

18  or her practice or for business or personal reasons unrelated

19  to direct patient care, and who voluntarily responds to

20  provide care or treatment to a patient with whom at that time

21  the practitioner does not have a then-existing health care

22  patient-physician relationship, and when such care or

23  treatment is necessitated by a sudden or unexpected situation

24  or by an occurrence that demands immediate medical attention,

25  shall not be held liable for any civil damages as a result of

26  any act or omission relative to that care or treatment, unless

27  that care or treatment is proven to amount to conduct that is

28  willful and wanton and would likely result in injury so as to

29  affect the life or health of another.

30         2.  The immunity provided by this paragraph does not

31  apply to damages as a result of any act or omission of

                                  25

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  providing medical care or treatment unrelated to the original

 2  situation that demanded immediate medical attention.

 3         3.  For purposes of this paragraph, the Legislature's

 4  intent is to encourage health care practitioners to provide

 5  necessary emergency care to all persons without fear of

 6  litigation as described in this paragraph.

 7         (d)1.2.  The immunity provided by paragraphs (b) and

 8  (c) this paragraph does not apply to damages as a result of

 9  any act or omission of providing medical care, or treatment,

10  or services:

11         a.  Which occurs after the patient is stabilized and is

12  capable of receiving medical treatment as a nonemergency

13  patient, unless surgery is required as a result of the

14  emergency within a reasonable time after the patient is

15  stabilized, in which case the immunity provided by this

16  paragraph applies to any act or omission of providing medical

17  care or treatment which occurs prior to the stabilization of

18  the patient following the surgery; or

19         b.  unrelated to the original medical emergency.

20         2.3.  For purposes of paragraphs (b) and (c) this

21  paragraph, "reckless disregard" as it applies to a given

22  health care provider rendering emergency medical care or

23  treatment means services shall be such conduct that which a

24  health care provider knew or should have known, at the time

25  such services were rendered, would be likely to result in

26  injury so as to affect the life or health of another, taking

27  into account the following to the extent they may be present:

28         a.  The extent or serious nature of the circumstances

29  prevailing.

30         b.  The lack of time or ability to obtain appropriate

31  consultation.

                                  26

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         c.  The lack of a prior patient-physician relationship.

 2         d.  The inability to obtain an appropriate medical

 3  history of the patient.

 4         e.  The time constraints imposed by coexisting

 5  emergencies.

 6         (e)4.  Every emergency care facility granted immunity

 7  under this paragraph (b) shall accept and treat all emergency

 8  care patients within the operational capacity of such facility

 9  without regard to ability to pay, including patients

10  transferred from another emergency care facility or other

11  health care provider pursuant to Pub. L. No. 99-272, s. 9121.

12  The failure of an emergency care facility to comply with this

13  subparagraph constitutes grounds for the department to

14  initiate disciplinary action against the facility pursuant to

15  chapter 395.

16         Section 13.  Paragraph (b) of subsection (9) of section

17  768.28, Florida Statutes, is amended to read:

18         768.28  Waiver of sovereign immunity in tort actions;

19  recovery limits; limitation on attorney fees; statute of

20  limitations; exclusions; indemnification; risk management

21  programs.--

22         (9)

23         (b)  As used in this subsection, the term:

24         1.  "Employee" includes any volunteer firefighter.

25         2.a.  "Officer, employee, or agent" includes, but is

26  not limited to, any health care provider when providing

27  services pursuant to s. 766.1115;, any member of the Florida

28  Health Services Corps, as defined in s. 381.0302, who provides

29  uncompensated care to medically indigent persons referred by

30  the Department of Health;, and any public defender or her or

31  

                                  27

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  his employee or agent, including, among others, an assistant

 2  public defender and an investigator.

 3         b. Any health care provider providing emergency

 4  services pursuant to obligations imposed by 42 U.S.C. s.

 5  1395dd, s. 395.1041, s. 395.401, s. 401.45, or s. 768.13. Such

 6  health care provider shall be considered an agent of the

 7  state, or its applicable agency or subdivision for purposes of

 8  immunity under s. 768.28, and shall indemnify the state for

 9  any liabilities incurred up to the limits set out in this

10  chapter or the limits of available insurance coverage of the

11  health care provider, whichever is greater. Emergency services

12  under this subparagraph means ambulance assessments,

13  treatment, or transport services provided pursuant to

14  obligations imposed by s. 401.45 or s. 395.1041; and all

15  screening, examination, and evaluation by a physician,

16  hospital, or other person or entity acting pursuant to

17  obligations imposed by ss. 395.1041, 395.401, and 42 U.S.C. s.

18  1395dd; as well as care, treatment, surgery, or other medical

19  services provided to relieve or eliminate and to stabilize the

20  emergency medical condition in accordance with s. 395.1041 and

21  42 U.S.C. s. 1395dd; including all medical services to

22  eliminate the likelihood that the emergency medical condition

23  will deteriorate or recur without further medical attention

24  within a reasonable period of time. Notwithstanding the waiver

25  of sovereign immunity provided in this subparagraph, claims

26  hereunder may be settled and judgments entered and satisfied

27  up to the limits of the available coverage of the health care

28  provider without the requirement of filing a claim bill. A

29  health care provider under this sub-subparagraph does not

30  include a licensed healthcare practitioner who is providing

31  emergency services to a person with whom the practitioner has

                                  28

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1  an established provider-patient relationship outside of the

 2  emergency room setting.

 3         Section 14.  Section 768.77, Florida Statutes, is

 4  amended to read:

 5         768.77  Itemized verdict.--

 6         (1)  Except as provided in subsection (2), in any

 7  action to which this part applies in which the trier of fact

 8  determines that liability exists on the part of the defendant,

 9  the trier of fact shall, as a part of the verdict, itemize the

10  amounts to be awarded to the claimant into the following

11  categories of damages:

12         (a)(1)  Amounts intended to compensate the claimant for

13  economic losses;

14         (b)(2)  Amounts intended to compensate the claimant for

15  noneconomic losses; and

16         (c)(3)  Amounts awarded to the claimant for punitive

17  damages, if applicable.

18         (2)  In any action for damages based on personal injury

19  or wrongful death arising out of medical malpractice, whether

20  in tort or contract, to which this part applies in which the

21  trier of fact determines that liability exists on the part of

22  the defendant, the trier of fact shall, as a part of the

23  verdict, itemize the amounts to be awarded to the claimant

24  into the following categories of damages:

25         (a)  Amounts intended to compensate the claimant for:

26         1.  Past economic losses; and

27         2.  Future economic losses, not reduced to present

28  value, and the number of years or part thereof which the award

29  is intended to cover;

30         (b)  Amounts intended to compensate the claimant for:

31         1.  Past noneconomic losses; and

                                  29

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1         2.  Future noneconomic losses and the number of years

 2  or part thereof which the award is intended to cover; and

 3         (c)  Amounts awarded to the claimant for punitive

 4  damages, if applicable.

 5         Section 15.  Subsection (5) of section 768.81, Florida

 6  Statutes, is amended to read:

 7         768.81  Comparative fault.--

 8         (5)  Notwithstanding any provision of anything in law

 9  to the contrary, in an action for damages for personal injury

10  or wrongful death arising out of medical malpractice, whether

11  in contract or tort, the trier of fact shall apportion the

12  total fault only among the claimant and all the joint

13  tortfeasors who are parties to the action when the case is

14  submitted to the jury for deliberation and rendition of the

15  verdict when an apportionment of damages pursuant to this

16  section is attributed to a teaching hospital as defined in s.

17  408.07, the court shall enter judgment against the teaching

18  hospital on the basis of such party's percentage of fault and

19  not on the basis of the doctrine of joint and several

20  liability.

21         Section 16.  If any provision of this act or its

22  application to any person or circumstance is held invalid, the

23  invalidity does not affect other provisions or applications of

24  the act which can be given effect without the invalid

25  provision or application, and to this end the provisions of

26  this act are severable.

27         Section 17.  Except as otherwise expressly provided in

28  this act, this act shall take effect upon becoming a law.

29  

30  

31  

                                  30

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003   CS for CS for CS for SB 564, SB 2120 &

                                                           SB 2620
    309-2437-03


 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                     Senate Bill CS/CS/SB 564

 3                                 

 4  The Committee Substitute modifies the "Code Blue" provisions
    for health care practitioners to require willful and wanton
 5  conduct.  It provides legislative intent to encourage
    emergency care and to allow informal discovery.
 6  

 7  

 8  

 9  

10  

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  31

CODING: Words stricken are deletions; words underlined are additions.