Senate Bill sb0002B
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
By Senator Jones and Saunders
13-2662A-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 setoffs
5 against damages in medical malpractice actions
6 if there is a written release or covenant not
7 to sue; creating s. 381.0409, F.S.; providing
8 that creation of the Florida Center for
9 Excellence in Health Care is contingent on the
10 enactment of a public-records exemption;
11 creating the Florida Center for Excellence in
12 Health Care; providing goals and duties of the
13 center; providing definitions; providing
14 limitations on the center's liability for any
15 lawful actions taken; requiring the center to
16 issue patient safety recommendations; requiring
17 the development of a statewide electronic
18 infrastructure to improve patient care and the
19 delivery and quality of health care services;
20 providing requirements for development of a
21 core electronic medical record; authorizing
22 access to the electronic medical records and
23 other data maintained by the center; providing
24 for the use of computerized physician order
25 entry systems; providing for the establishment
26 of a simulation center for high technology
27 intervention surgery and intensive care;
28 providing for the immunity of specified
29 information in adverse incident reports from
30 discovery or admissibility in civil or
31 administrative actions; providing limitations
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 on liability of specified health care
2 practitioners and facilities under specified
3 conditions; providing requirements for the
4 appointment of a board of directors for the
5 center; establishing a mechanism for financing
6 the center through the assessment of specified
7 fees; requiring the Florida Center for
8 Excellence in Health Care to develop a business
9 and financing plan; authorizing state agencies
10 to contract with the center for specified
11 projects; authorizing the use of center funds
12 and the use of state purchasing and travel
13 contracts for the center; requiring the center
14 to submit an annual report and providing
15 requirements for the annual report; providing
16 for the center's books, records, and audits to
17 be open to the public; requiring the center to
18 annually furnish an audited report to the
19 Governor and Legislature; amending s. 395.004,
20 F.S., relating to licensure of certain health
21 care facilities; providing for discounted
22 medical liability insurance based on
23 certification of programs that reduce adverse
24 incidents; requiring the Office of Insurance
25 Regulation to consider certain information in
26 reviewing discounted rates; creating s.
27 395.0056, F.S.; requiring the Agency for Health
28 Care Administration to review complaints
29 submitted if the defendant is a hospital;
30 amending s. 395.0193, F.S., relating to peer
31 review and disciplinary actions; providing for
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 discipline of a physician for mental or
2 physical abuse of staff; limiting the liability
3 of certain participants in certain disciplinary
4 actions at a licensed facility; amending s.
5 395.0197, F.S., relating to internal risk
6 management programs; requiring a system for
7 notifying patients that they are the subject of
8 an adverse incident; requiring risk managers or
9 their designees to give notice; requiring
10 licensed facilities to annually report certain
11 information about health care practitioners for
12 whom they assume liability; requiring the
13 Agency for Health Care Administration and the
14 Department of Health to annually publish
15 statistics about licensed facilities that
16 assume liability for health care practitioners;
17 requiring a licensed facility at which sexual
18 abuse occurs to offer testing for sexually
19 transmitted diseases at no cost to the victim;
20 creating s. 395.1012, F.S.; requiring
21 facilities to adopt a patient safety plan;
22 providing requirements for a patient safety
23 plan; requiring facilities to appoint a patient
24 safety officer and a patient safety committee
25 and providing duties for the patient safety
26 officer and committee; amending s. 456.025,
27 F.S.; eliminating certain restrictions on the
28 setting of licensure renewal fees for health
29 care practitioners; directing the Agency for
30 Health Care Administration to conduct or
31 contract for a study to determine what
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 information to provide to the public comparing
2 hospitals, based on inpatient quality
3 indicators developed by the federal Agency for
4 Healthcare Research and Quality; creating s.
5 395.1051, F.S.; requiring certain facilities to
6 notify patients about adverse incidents under
7 specified conditions; creating s. 456.0575,
8 F.S.; requiring licensed health care
9 practitioners to notify patients about adverse
10 incidents under certain conditions; amending s.
11 456.026, F.S., relating to an annual report
12 published by the Department of Health;
13 requiring that the department publish the
14 report to its website; requiring the department
15 to include certain detailed information;
16 amending s. 456.039, F.S.; revising
17 requirements for the information furnished to
18 the Department of Health for licensure
19 purposes; amending s. 456.041, F.S., relating
20 to practitioner profiles; requiring the
21 Department of Health to compile certain
22 specified information in a practitioner
23 profile; establishing a timeframe for certain
24 health care practitioners to report specified
25 information; providing for disciplinary action
26 and a fine for untimely submissions; deleting
27 provisions that provide that a profile need not
28 indicate whether a criminal history check was
29 performed to corroborate information in the
30 profile; authorizing the department or
31 regulatory board to investigate any information
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 received; requiring the department to provide
2 an easy-to-read narrative explanation
3 concerning final disciplinary action taken
4 against a practitioner; requiring a hyperlink
5 to each final order on the department's website
6 which provides information about disciplinary
7 actions; requiring the department to provide a
8 hyperlink to certain comparison reports
9 pertaining to claims experience; requiring the
10 department to include the date that a reported
11 disciplinary action was taken by a licensed
12 facility and a characterization of the
13 practitioner's conduct that resulted in the
14 action; deleting provisions requiring the
15 department to consult with a regulatory board
16 before including certain information in a
17 health care practitioner's profile; providing
18 for a penalty for failure to comply with the
19 timeframe for verifying and correcting a
20 practitioner profile; requiring the department
21 to add a statement to a practitioner profile
22 when the profile information has not been
23 verified by the practitioner; requiring the
24 department to provide, in the practitioner
25 profile, an explanation of disciplinary action
26 taken and the reason for sanctions imposed;
27 requiring the department to include a hyperlink
28 to a practitioner's website when requested;
29 providing that practitioners licensed under ch.
30 458 or ch. 459, F.S., shall have claim
31 information concerning an indemnity payment
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 greater than a specified amount posted in the
2 practitioner profile; amending s. 456.042,
3 F.S.; providing for the update of practitioner
4 profiles; designating a timeframe within which
5 a practitioner must submit new information to
6 update his or her profile; amending s. 456.049,
7 F.S., relating to practitioner reports on
8 professional liability claims and actions;
9 revising requirements for a practitioner to
10 report claims or actions that were not covered
11 by an insurer; requiring the department to
12 forward information on liability claims and
13 actions to the Office of Insurance Regulation;
14 amending s. 456.051, F.S.; establishing the
15 responsibility of the Department of Health to
16 provide reports of professional liability
17 actions and bankruptcies; requiring the
18 department to include such reports in a
19 practitioner's profile within a specified
20 period; amending s. 456.057, F.S.; authorizing
21 the release of medical information to defendant
22 health care practitioners in medical
23 malpractice actions under specified
24 circumstances; allowing the department to
25 obtain patient records by subpoena without the
26 patient's written authorization, in specified
27 circumstances; amending s. 456.063, F.S.;
28 authorizing regulatory boards or the department
29 to adopt rules to implement requirements for
30 reporting allegations of sexual misconduct;
31 authorizing health care practitioner regulatory
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 boards to adopt rules to establish standards of
2 practice for prescribing drugs to patients via
3 the Internet; amending s. 456.072, F.S.;
4 providing for determining the amount of any
5 costs to be assessed in a disciplinary
6 proceeding; prescribing the standard of proof
7 in certain disciplinary proceedings; amending
8 s. 456.073, F.S.; authorizing the Department of
9 Health to investigate certain paid claims made
10 on behalf of practitioners licensed under ch.
11 458 or ch. 459, F.S.; amending procedures for
12 certain disciplinary proceedings; providing a
13 deadline for raising issues of material fact;
14 providing a deadline relating to notice of
15 receipt of a request for a formal hearing;
16 amending s. 456.077, F.S.; providing a
17 presumption related to an undisputed citation;
18 amending s. 456.078, F.S.; revising standards
19 for determining which violations of the
20 applicable professional practice act are
21 appropriate for mediation; amending s. 458.320,
22 F.S., relating to financial responsibility
23 requirements for medical physicians; requiring
24 the department to suspend the license of a
25 medical physician who has not paid, up to the
26 amounts required by any applicable financial
27 responsibility provision, any outstanding
28 judgment, arbitration award, other order, or
29 settlement; amending s. 459.0085, F.S.,
30 relating to financial responsibility
31 requirements for osteopathic physicians;
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 requiring that the department suspend the
2 license of an osteopathic physician who has not
3 paid, up to the amounts required by any
4 applicable financial responsibility provision,
5 any outstanding judgment, arbitration award,
6 other order, or settlement; providing civil
7 immunity for certain participants in quality
8 improvement processes; defining the terms
9 "patient safety data" and "patient safety
10 organization"; providing for use of patient
11 safety data by a patient safety organization;
12 providing limitations on use of patient safety
13 data; providing for protection of
14 patient-identifying information; providing for
15 determination of whether the privilege applies
16 as asserted; providing that an employer may not
17 take retaliatory action against an employee who
18 makes a good-faith report concerning patient
19 safety data; requiring that a specific
20 statement be included in each final settlement
21 statement relating to medical malpractice
22 actions; providing requirements for the closed
23 claim form of the Office of Insurance
24 Regulation; requiring the Office of Insurance
25 Regulation to compile annual statistical
26 reports pertaining to closed claims; requiring
27 historical statistical summaries; specifying
28 certain information to be included on the
29 closed claim form; amending s. 458.331, F.S.,
30 relating to grounds for disciplinary action
31 against a physician; redefining the term
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 "repeated malpractice"; revising the standards
2 for the burden of proof in an administrative
3 action against a physician; revising the
4 minimum amount of a claim against a licensee
5 which will trigger a departmental
6 investigation; amending s. 459.015, F.S.,
7 relating to grounds for disciplinary action
8 against an osteopathic physician; redefining
9 the term "repeated malpractice"; revising the
10 standards for the burden of proof in an
11 administrative action against an osteopathic
12 physician; amending conditions that necessitate
13 a departmental investigation of an osteopathic
14 physician; revising the minimum amount of a
15 claim against a licensee which will trigger a
16 departmental investigation; amending s.
17 460.413, F.S., relating to grounds for
18 disciplinary action against a chiropractic
19 physician; revising the standards for the
20 burden of proof in an administrative action
21 against a chiropractic physician; providing a
22 statement of legislative intent regarding the
23 change in the standard of proof in disciplinary
24 cases involving the suspension or revocation of
25 a license; providing that the practice of
26 health care is a privilege, not a right;
27 providing that protecting patients overrides
28 purported property interest in the license of a
29 health care practitioner; providing that
30 certain disciplinary actions are remedial and
31 protective, not penal; providing that the
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Legislature specifically reverses case law to
2 the contrary; requiring the Division of
3 Administrative Hearings to designate
4 administrative law judges who have special
5 qualifications for hearings involving certain
6 health care practitioners; amending s. 461.013,
7 F.S., relating to grounds for disciplinary
8 action against a podiatric physician;
9 redefining the term "repeated malpractice";
10 amending the minimum amount of a claim against
11 such a physician which will trigger a
12 department investigation; amending s. 466.028,
13 F.S., relating to grounds for disciplinary
14 action against a dentist or a dental hygienist;
15 redefining the term "dental malpractice";
16 revising the minimum amount of a claim against
17 a dentist which will trigger a departmental
18 investigation; amending s. 624.462, F.S.;
19 authorizing health care providers to form a
20 commercial self-insurance fund; amending s.
21 627.062, F.S.; providing that an insurer may
22 not require arbitration of a rate filing for
23 medical malpractice; providing additional
24 requirements for medical malpractice insurance
25 rate filings; providing that portions of
26 judgments and settlements entered against a
27 medical malpractice insurer for bad-faith
28 actions or for punitive damages against the
29 insurer, as well as related taxable costs and
30 attorney's fees, may not be included in an
31 insurer's base rate; providing for review of
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 rate filings by the Office of Insurance
2 Regulation for excessive, inadequate, or
3 unfairly discriminatory rates; requiring
4 insurers to apply a discount based on the
5 health care provider's loss experience;
6 amending s. 627.0645, F.S.; excepting medical
7 malpractice insurers from certain annual
8 filings; requiring the Office of Program Policy
9 Analysis and Government Accountability to study
10 and report to the Legislature on requirements
11 for coverage by the Florida Birth-Related
12 Neurological Injury Compensation Association;
13 creating s. 627.0662, F.S.; providing
14 definitions; requiring each medical liability
15 insurer to report certain information to the
16 Office of Insurance Regulation; providing for
17 determination of whether excessive profit has
18 been realized; requiring return of excessive
19 amounts; amending s. 627.357, F.S.; providing
20 guidelines for the formation and regulation of
21 certain self-insurance funds; amending s.
22 627.4147, F.S.; revising certain notification
23 criteria for medical and osteopathic
24 physicians; requiring prior notification of a
25 rate increase; authorizing the purchase of
26 insurance by certain health care providers;
27 creating s. 627.41491, F.S.; requiring the
28 Office of Insurance Regulation to require
29 health care providers to annually publish
30 certain rate comparison information; creating
31 s. 627.41492, F.S.; requiring the Office of
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Insurance Regulation to publish an annual
2 medical malpractice report; creating s.
3 627.41493, F.S.; requiring a medical
4 malpractice insurance rate rollback; providing
5 for subsequent increases under certain
6 circumstances; requiring approval for use of
7 certain medical malpractice insurance rates;
8 providing for a mechanism to make effective the
9 Florida Medical Malpractice Insurance Fund in
10 the event the rollback of medical malpractice
11 insurance rates is not completed; creating the
12 Florida Medical Malpractice Insurance Fund;
13 providing purpose; providing governance by a
14 board of governors; providing for the fund to
15 issue medical malpractice policies to any
16 physician regardless of specialty; providing
17 for regulation by the Office of Insurance
18 Regulation of the Financial Services
19 Commission; providing applicability; providing
20 for initial funding; providing for tax-exempt
21 status; providing for initial capitalization;
22 providing for termination of the fund;
23 providing that practitioners licensed under ch.
24 458 or ch. 459, F.S., must, as a licensure
25 requirement, obtain and maintain professional
26 liability coverage; creating s. 627.41495,
27 F.S.; providing for consumer participation in
28 review of medical malpractice rate changes;
29 providing for public inspection; providing for
30 adoption of rules by the Financial Services
31 Commission; requiring the Office of Insurance
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Regulation to order insurers to make rate
2 filings effective January 1, 2004, which
3 reflect the impact of the act; providing
4 criteria for such rate filing; amending s.
5 627.912, F.S.; amending provisions prescribing
6 conditions under which insurers must file
7 certain reports with the Department of Health;
8 requiring the Financial Services Commission to
9 adopt by rule requirements for reporting
10 financial information; increasing the
11 limitation on a fine imposed against insurers;
12 creating s. 627.9121, F.S.; requiring certain
13 claims, judgments, or settlements to be
14 reported to the Office of Insurance Regulation;
15 providing penalties; amending s. 766.102, F.S;
16 revising requirements for health care providers
17 providing expert testimony in medical
18 negligence actions; prohibiting contingency
19 fees for an expert witness; amending s.
20 766.106, F.S.; providing for application of
21 common law principles of good faith to an
22 insurance company's bad-faith actions arising
23 out of medical malpractice claims; providing
24 that an insurer shall not be held to have acted
25 in bad faith for certain activities during the
26 presuit period and for a specified later
27 period; providing legislative intent with
28 respect to actions by insurers, insureds, and
29 their assigns and representatives; revising
30 requirements for presuit notice and for an
31 insurer's or self-insurer's response to a
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 claim; requiring that a claimant provide the
2 Agency for Health Care Administration with a
3 copy of the complaint alleging medical
4 malpractice; requiring the agency to review
5 such complaints for licensure noncompliance;
6 permitting written questions during informal
7 discovery; requiring a claimant to execute a
8 medical release to authorize defendants in
9 medical negligence actions to take unsworn
10 statements from a claimant's treating
11 physicians; providing for informal discovery
12 without notice; imposing limits on such
13 statements; amending s. 766.108, F.S.;
14 providing for mandatory mediation; amending s.
15 766.110, F.S.; limiting liability of health
16 care providers providing emergency care
17 services in hospitals; providing for hospitals
18 and the state to assume a certain part of
19 liability for negligence by such providers;
20 providing a limit on attorney's fees; amending
21 s. 766.202, F.S.; redefining the terms
22 "economic damages," "medical expert,"
23 "noneconomic damages," and "periodic payment";
24 amending s. 766.206, F.S.; providing for
25 dismissal of a claim under certain
26 circumstances; requiring the court to make
27 certain reports concerning a medical expert who
28 fails to meet qualifications; amending s.
29 766.207, F.S.; providing for the applicability
30 of the Wrongful Death Act and general law to
31 arbitration awards; amending s. 768.041, F.S.;
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 revising requirements for setoffs against
2 damages in medical malpractice actions if there
3 is a written release or covenant not to sue;
4 providing legislative intent and findings with
5 respect to the provision of emergency medical
6 services and care by care providers; amending
7 s. 768.13, F.S.; revising guidelines for
8 immunity from liability under the "Good
9 Samaritan Act"; amending s. 768.77, F.S.;
10 prescribing a method for itemization of
11 specific categories of damages awarded in
12 medical malpractice actions; amending s.
13 768.81, F.S.; requiring the trier of fact to
14 apportion total fault solely among the claimant
15 and joint tortfeasors as parties to an action;
16 requiring the Office of Program Policy Analysis
17 and Government Accountability and the Office of
18 the Auditor General to conduct an audit of the
19 health care practitioner disciplinary process
20 and closed claims and report to the
21 Legislature; creating ss. 1004.08 and 1005.07,
22 F.S.; requiring schools, colleges, and
23 universities to include material on patient
24 safety in their curricula if the institution
25 awards specified degrees; creating a workgroup
26 to study the health care practitioner
27 disciplinary process; providing for workgroup
28 membership; providing that the workgroup
29 deliver its report by January 1, 2004;
30 providing appropriations and authorizing
31 positions; providing for construction of the
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 act in pari materia with laws enacted during
2 the 2003 Regular Session or 2003 Special
3 Session A of the Legislature; providing for
4 severability; providing effective dates.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Findings.--
9 (1) The Legislature finds that Florida is in the midst
10 of a medical malpractice insurance crisis of unprecedented
11 magnitude.
12 (2) The Legislature finds that this crisis threatens
13 the quality and availability of health care for all Florida
14 citizens.
15 (3) The Legislature finds that the rapidly growing
16 population and the changing demographics of Florida make it
17 imperative that students continue to choose Florida as the
18 place they will receive their medical educations and practice
19 medicine.
20 (4) The Legislature finds that Florida is among the
21 states with the highest medical malpractice insurance premiums
22 in the nation.
23 (5) The Legislature finds that the cost of medical
24 malpractice insurance has increased dramatically during the
25 past decade and both the increase and the current cost are
26 substantially higher than the national average.
27 (6) The Legislature finds that the increase in medical
28 malpractice liability insurance rates is forcing physicians to
29 practice medicine without professional liability insurance, to
30 leave Florida, to not perform high-risk procedures, or to
31 retire early from the practice of medicine.
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (7) The Governor created the Governor's Select Task
2 Force on Healthcare Professional Liability Insurance to study
3 and make recommendations to address these problems.
4 (8) The Legislature has reviewed the findings and
5 recommendations of the Governor's Select Task Force on
6 Healthcare Professional Liability Insurance.
7 (9) The Legislature finds that the Governor's Select
8 Task Force on Healthcare Professional Liability Insurance has
9 established that a medical malpractice insurance crisis exists
10 in the State of Florida which can be alleviated by the
11 adoption of comprehensive legislatively enacted reforms.
12 (10) The Legislature finds that making high-quality
13 health care available to the citizens of this state is an
14 overwhelming public necessity.
15 (11) The Legislature finds that ensuring that
16 physicians continue to practice in Florida is an overwhelming
17 public necessity.
18 (12) The Legislature finds that ensuring the
19 availability of affordable professional liability insurance
20 for physicians is an overwhelming public necessity.
21 (13) The Legislature finds, based upon the findings
22 and recommendations of the Governor's Select Task Force on
23 Healthcare Professional Liability Insurance, the findings and
24 recommendations of various study groups throughout the nation,
25 and the experience of other states, that the overwhelming
26 public necessities of making quality health care available to
27 the citizens of this state, of ensuring that physicians
28 continue to practice in Florida, and of ensuring that those
29 physicians have the opportunity to purchase affordable
30 professional liability insurance cannot be met unless
31 comprehensive legislation is adopted.
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (14) The Legislature finds that the provisions of this
2 act are naturally and logically connected to each other and to
3 the purpose of making quality health care available to the
4 citizens of Florida.
5 Section 2. Subsection (4) is added to section 46.015,
6 Florida Statutes, to read:
7 46.015 Release of parties.--
8 (4)(a) At trial pursuant to a suit filed under chapter
9 766 or pursuant to s. 766.209, if any defendant shows the
10 court that the plaintiff, or his or her legal representative,
11 has delivered a written release or covenant not to sue to any
12 person in partial satisfaction of the damages sued for, the
13 court shall set off this amount from the total amount of the
14 damages set forth in the verdict and before entry of the final
15 judgment.
16 (b) The amount of any setoff under this subsection
17 shall include all sums received by the plaintiff, including
18 economic and noneconomic damages, costs, and attorney's fees.
19 Section 3. Effective upon this act becoming a law if
20 SB ____ or similar legislation is adopted in the same
21 legislative session or an extension thereof and becomes law,
22 section 381.0409, Florida Statutes, is created to read:
23 381.0409 Florida Center for Excellence in Health
24 Care.--There is created the Florida Center for Excellence in
25 Health Care which shall be responsible for performing
26 activities and functions that are designed to improve the
27 quality of health care delivered by health care facilities and
28 health care practitioners. The principal goals of the center
29 are to improve health care quality and patient safety. The
30 long-term goal is to improve diagnostic and treatment
31 decisions, thus further improving quality.
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (1) As used in this section, the term:
2 (a) "Center" means the Florida Center for Excellence
3 in Health Care.
4 (b) "Health care practitioner" means any person as
5 defined under s. 456.001(4).
6 (c) "Health care facility" means any facility licensed
7 under chapter 395.
8 (d) "Health research entity" means any university or
9 academic health center engaged in research designed to
10 improve, prevent, diagnose, or treat diseases or medical
11 conditions or an entity that receives state or federal funds
12 for such research.
13 (e) "Patient safety data" means any data, reports,
14 records, memoranda, or analyses of patient safety events and
15 adverse incidents reported by a licensed facility pursuant to
16 s. 395.0197 which are submitted to the Florida Center for
17 Health Care Excellence or the corrective actions taken in
18 response to such patient safety events or adverse incidents.
19 (f) "Patient safety event" means an event over which
20 health care personnel could exercise control and which is
21 associated in whole or in part with medical intervention,
22 rather than the condition for which such intervention
23 occurred, and which could have resulted in, but did not result
24 in, serious patient injury or death.
25 (2) The center shall directly or by contract:
26 (a) Analyze patient safety data for the purpose of
27 recommending changes in practices and procedures which may be
28 implemented by health care practitioners and health care
29 facilities to prevent future adverse incidents.
30 (b) Collect, analyze, and evaluate patient safety data
31 submitted voluntarily by a health care practitioner or health
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 care facility. The center shall recommend to health care
2 practitioners and health care facilities changes in practices
3 and procedures that may be implemented for the purpose of
4 improving patient safety and preventing patient safety events.
5 (c) Foster the development of a statewide electronic
6 infrastructure that may be implemented in phases over a
7 multiyear period and that is designed to improve patient care
8 and the delivery and quality of health care services by health
9 care facilities and practitioners. The electronic
10 infrastructure shall be a secure platform for communication
11 and the sharing of clinical and other data, such as business
12 data, among providers and between patients and providers. The
13 electronic infrastructure shall include a "core" electronic
14 medical record. Health care practitioners and health care
15 facilities shall have access to individual electronic medical
16 records subject to the consent of the individual. Each health
17 insurer licensed under chapter 627 or chapter 641 shall have
18 access to the electronic medical records of its policyholders
19 and, subject to s. 381.04091, to other data if such access is
20 for the sole purpose of conducting research to identify
21 diagnostic tests and treatments that are medically effective.
22 Health research entities shall have access to the electronic
23 medical records of individuals, subject to the consent of the
24 individual and subject to s. 381.04091, and to other data if
25 such access is for the sole purpose of conducting research to
26 identify diagnostic tests and treatments that are medically
27 effective.
28 (d) Inventory hospitals to determine the current
29 status of implementation of computerized physician order entry
30 systems and recommend a plan for expediting implementation
31 statewide or, in hospitals where the center determines that
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 implementation of such systems is not practicable, alternative
2 methods to reduce medication errors. The center shall identify
3 in its plan any barriers to statewide implementation and shall
4 include recommendations to the Legislature of statutory
5 changes that may be necessary to eliminate those barriers.
6 (e) Establish a simulation center for high technology
7 intervention surgery and intensive care for use by all
8 hospitals.
9 (f) Identify best practices and share this information
10 with health care providers.
11
12 This section does not limit the scope of services provided by
13 the center with regard to engaging in other activities that
14 improve health care quality, improve the diagnosis and
15 treatment of diseases and medical conditions, increase the
16 efficiency of the delivery of health care services, increase
17 administrative efficiency, and increase access to quality
18 health care services.
19 (3) Notwithstanding s. 381.04091, the center may
20 release information contained in patient safety data to any
21 health care practitioner or health care facility when
22 recommending changes in practices and procedures which may be
23 implemented by such practitioner or facility to prevent
24 patient safety events or adverse incidents if the identity of
25 the source of the information and the names of persons have
26 been removed from such information.
27 (4) All information related to adverse incident
28 reports and all patient safety data submitted to or received
29 by the center shall not be subject to discovery or
30 introduction into evidence in any civil or administrative
31 action. Individuals in attendance at meetings held for the
21
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 purpose of discussing information related to adverse incidents
2 and patient safety data and meetings held to formulate
3 recommendations to prevent future adverse incidents or patient
4 safety events may not be permitted or required to testify in
5 any civil or administrative action related to such events.
6 There shall be no liability on the part of, and no cause of
7 action of any nature shall arise against, any employee or
8 agent of the center for any lawful action taken by such
9 individual in advising health practitioners or health care
10 facilities with regard to carrying out their duties under this
11 section. There shall be no liability on the part of, and no
12 cause of action of any nature shall arise against, a health
13 care practitioner or health care facility, its agents, or
14 employees, when it acts in reliance on any advice or
15 information provided by the center.
16 (5) The center shall be a nonprofit corporation
17 registered, incorporated, organized, and operated in
18 compliance with chapter 617, and shall have all powers
19 necessary to carry out the purposes of this section,
20 including, but not limited to, the power to receive and accept
21 from any source contributions of money, property, labor, or
22 any other thing of value, to be held, used, and applied for
23 the purpose of this section.
24 (6) The center shall:
25 1. Be designed and operated by an individual or entity
26 with demonstrated expertise in health care quality data and
27 systems analysis, health information management, systems
28 thinking and analysis, human factors analysis, and
29 identification of latent and active errors.
30 2. Include procedures for ensuring the confidentiality
31 of data which are consistent with state and federal law.
22
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (7) The center shall be governed by a 10-member board
2 of directors appointed by the Governor.
3 (a) The Governor shall appoint two members
4 representing hospitals, one member representing physicians,
5 one member representing nurses, one member representing health
6 insurance indemnity plans, one member representing health
7 maintenance organizations, one member representing business,
8 and one member representing consumers. The Governor shall
9 appoint members for a 2-year term. Such members shall serve
10 until their successors are appointed. Members are eligible to
11 be reappointed for additional terms.
12 (b) The Secretary of Health or his or her designee
13 shall be a member of the board.
14 (c) The Secretary of Health Care Administration or his
15 or her designee shall be a member of the board.
16 (d) The members shall elect a chairperson.
17 (e) Board members shall serve without compensation but
18 may be reimbursed for travel expenses pursuant to s. 112.061.
19 (8) The center shall be financed as follows:
20 (a) Notwithstanding any law to the contrary, each
21 health insurer issued a certificate of authority under part
22 VI, part VII, or part VIII of chapter 627 shall, as a
23 condition of maintaining such certificate, make payment to the
24 center on April 1 of each year, in the amount of $1 for each
25 individual included in every insurance policy issued during
26 the previous calendar year. Accompanying any payment shall be
27 a certification under oath by the chief executive officer
28 which states the number of individuals upon which such payment
29 was based. The health insurer may collect this $1 from
30 policyholders. The center may direct the insurer to provide an
31 independent audit of the certification which shall be
23
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 furnished within 90 days. If payment is not received by the
2 center within 30 days after April 1, interest at the
3 annualized rate of 18 percent shall begin to be charged on the
4 amount due. If payment has not been received within 60 days
5 after interest is charged, the center shall notify the Office
6 of Insurance Regulation that payment has not been received
7 pursuant to the requirements of this paragraph. An insurer
8 that refuses to comply with the requirements of this paragraph
9 is subject to the forfeiture of its certificate of authority.
10 (b) Notwithstanding any law to the contrary, each
11 health maintenance organization issued a certificate of
12 authority under part I of chapter 641 and each prepaid health
13 clinic issued a certificate of authority under part II of
14 chapter 641 shall, as a condition of maintaining such
15 certificate, make payment to the center on April 1 of each
16 year, in the amount of $1 for each individual who is eligible
17 to receive services pursuant to a contract with the health
18 maintenance organization or the prepaid health clinic during
19 the previous calendar year. Accompanying any payment shall be
20 a certification under oath by the chief executive officer
21 which states the number of individuals upon which such payment
22 was based. The health maintenance organization or prepaid
23 health clinic may collect the $1 from individuals eligible to
24 receive services under contract. The center may direct the
25 health maintenance organization or prepaid health clinic to
26 provide an independent audit of the certification which shall
27 be furnished within 90 days. If payment is not received by the
28 center within 30 days after April 1, interest at the
29 annualized rate of 18 percent shall begin to be charged on the
30 amount due. If payment has not been received within 60 days
31 after interest is charged, the center shall notify the Office
24
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 of Insurance Regulation that payment has not been received
2 pursuant to the requirements of this paragraph. A health
3 maintenance organization or prepaid health clinic that refuses
4 to comply with the requirements of this paragraph is subject
5 to the forfeiture of its certificate of authority.
6 (c) Notwithstanding any law to the contrary, each
7 hospital and ambulatory surgical center licensed under chapter
8 395 shall, as a condition of licensure, make payment to the
9 center on April 1 of each year, in the amount of $1 for each
10 individual who, during the previous 12 months, was an
11 inpatient discharged by the hospital or who was a patient
12 discharged by the ambulatory surgical center. Accompanying
13 payment shall be a certification under oath by the chief
14 executive officer which states the number of individuals upon
15 which such payment was based. The facility may collect the $1
16 from patients discharged from the facility. The center may
17 direct the facility to provide an independent audit of the
18 certification which shall be furnished within 90 days. If
19 payment is not received by the center within 30 days after
20 April 1, interest at the annualized rate of 18 percent shall
21 begin to be charged on the amount due. If payment has not been
22 received within 60 days after interest is charged, the center
23 shall notify the Agency for Health Care Administration that
24 payment has not been received pursuant to the requirements of
25 this paragraph. An entity that refuses to comply with the
26 requirements of this paragraph is subject to the forfeiture of
27 its license.
28 (d) Notwithstanding any law to the contrary, each
29 nursing home licensed under part II of chapter 400, each
30 assisted living facility licensed under part III of chapter
31 400, each home health agency licensed under part IV of chapter
25
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 400, each hospice licensed under part VI of chapter 400, each
2 prescribed pediatric extended care center licensed under part
3 IX of chapter 400, and each health care services pool licensed
4 under part XII of chapter 400 shall, as a condition of
5 licensure, make payment to the center on April 1 of each year,
6 in the amount of $1 for each individual served by each
7 aforementioned entity during the previous 12 months.
8 Accompanying payment shall be a certification under oath by
9 the chief executive officer which states the number of
10 individuals upon which such payment was based. The entity may
11 collect the $1 from individuals served by the entity. The
12 center may direct the entity to provide an independent audit
13 of the certification which shall be furnished within 90 days.
14 If payment is not received by the center within 30 days after
15 April 1, interest at the annualized rate of 18 percent shall
16 begin to be charged on the amount due. If payment has not been
17 received within 60 days after interest is charged, the center
18 shall notify the Agency for Health Care Administration that
19 payment has not been received pursuant to the requirements of
20 this paragraph. An entity that refuses to comply with the
21 requirements of this paragraph is subject to the forfeiture of
22 its license.
23 (e) Notwithstanding any law to the contrary, each
24 initial application and renewal fee for each license and each
25 fee for certification or recertification for each person
26 licensed or certified under chapter 401 or chapter 404, and
27 for each person licensed as a health care practitioner, as
28 defined in s. 456.001(4), shall be increased by the amount of
29 $1 for each year or part thereof for which the license or
30 certification is issued. The Department of Health shall make
31 payment to the center on April 1 of each year in the amount of
26
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the total received pursuant to this paragraph during the
2 preceding 12 months.
3 (f) The center shall develop a business and financing
4 plan to obtain funds through other means if funds beyond those
5 that are provided for in this subsection are needed to
6 accomplish the objectives of the center.
7 (9) The center may enter into affiliations with
8 universities for any purpose.
9 (10) Pursuant to s. 287.057(5)(f)6., state agencies
10 may contract with the center on a sole-source basis for
11 projects to improve the quality of program administration,
12 such as, but not limited to, the implementation of an
13 electronic medical record for Medicaid program recipients.
14 (11) All travel and per diem paid with center funds
15 shall be in accordance with s. 112.061.
16 (12) The center may use state purchasing and travel
17 contracts and the state communications system in accordance
18 with s. 282.105(3).
19 (13) The center may acquire, enjoy, use, and dispose
20 of patents, copyrights, trademarks, and any licenses,
21 royalties, and other rights or interests thereunder or
22 therein.
23 (14) The center shall submit an annual report to the
24 Governor, the President of the Senate, and the Speaker of the
25 House of Representatives no later than October 1 of each year
26 which includes:
27 (a) The status report on the implementation of a
28 program to analyze data concerning adverse incidents and
29 patient safety events.
30 (b) The status report on the implementation of a
31 computerized physician order entry system.
27
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (c) The status report on the implementation of an
2 electronic medical record.
3 (d) Other pertinent information relating to the
4 efforts of the center to improve health care quality and
5 efficiency.
6 (e) A financial statement and balance sheet.
7
8 The initial report shall include any recommendations that the
9 center deems appropriate regarding revisions in the definition
10 of adverse incidents in s. 395.0197 and the reporting of such
11 adverse incidents by licensed facilities.
12 (15) The center may establish and manage an operating
13 fund for the purposes of addressing the center's cash-flow
14 needs and facilitating the fiscal management of the
15 corporation. Upon dissolution of the corporation, any
16 remaining cash balances of any state funds shall revert to the
17 General Revenue Fund, or such other state funds consistent
18 with appropriated funding, as provided by law.
19 (16) The center may carry over funds from year to
20 year.
21 (17) All books, records, and audits of the center
22 shall be open to the public unless exempted by law.
23 (18) The center shall furnish an annual audited report
24 to the Governor and Legislature by March 1 of each year.
25 (19) In carrying out this section, the center shall
26 consult with and develop partnerships, as appropriate, with
27 all segments of the health care industry, including, among
28 others, health practitioners, health care facilities, health
29 care consumers, professional organizations, agencies, health
30 care practitioner licensing boards, and educational
31 institutions.
28
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Section 4. Subsection (3) is added to section 395.004,
2 Florida Statutes, to read:
3 395.004 Application for license, fees; expenses.--
4 (3) A licensed facility may apply to the agency for
5 certification of a quality improvement program that results in
6 the reduction of adverse incidents at that facility. The
7 agency, in consultation with the Office of Insurance
8 Regulation, shall develop criteria for such certification.
9 Insurers shall file with the Office of Insurance Regulation a
10 discount in the rate or rates applicable for medical liability
11 insurance coverage to reflect the implementation of a
12 certified program. In reviewing insurance company filings with
13 respect to rate discounts authorized under this subsection,
14 the Office of Insurance Regulation shall consider whether, and
15 the extent to which, the program certified under this
16 subsection is otherwise covered under a program of risk
17 management offered by an insurance company or self-insurance
18 plan providing medical liability coverage.
19 Section 5. Section 395.0056, Florida Statutes, is
20 created to read:
21 395.0056 Litigation notice requirement.--Upon receipt
22 of a copy of a complaint filed against a hospital as a
23 defendant in a medical malpractice action as required by s.
24 766.106(2), the agency shall:
25 (1) Review its adverse incident report files
26 pertaining to the licensed facility that is the subject of the
27 complaint to determine whether the facility timely complied
28 with the requirements of s. 395.0197; and
29 (2) Review the incident that is the subject of the
30 complaint and determine whether it involved conduct by a
31 licensee which is potentially subject to disciplinary action.
29
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Section 6. Subsection (3) and paragraph (a) of
2 subsection (9) of section 395.0193, Florida Statutes, are
3 amended to read:
4 395.0193 Licensed facilities; peer review;
5 disciplinary powers; agency or partnership with physicians.--
6 (3) If reasonable belief exists that conduct by a
7 staff member or physician who delivers health care services at
8 the licensed facility may constitute one or more grounds for
9 discipline as provided in this subsection, a peer review panel
10 shall investigate and determine whether grounds for discipline
11 exist with respect to such staff member or physician. The
12 governing board of any licensed facility, after considering
13 the recommendations of its peer review panel, shall suspend,
14 deny, revoke, or curtail the privileges, or reprimand,
15 counsel, or require education, of any such staff member or
16 physician after a final determination has been made that one
17 or more of the following grounds exist:
18 (a) Incompetence.
19 (b) Being found to be a habitual user of intoxicants
20 or drugs to the extent that he or she is deemed dangerous to
21 himself, herself, or others.
22 (c) Mental or physical impairment which may adversely
23 affect patient care.
24 (d) Mental or physical abuse of a nurse or other staff
25 member.
26 (e)(d) Being found liable by a court of competent
27 jurisdiction for medical negligence or malpractice involving
28 negligent conduct.
29 (f)(e) One or more settlements exceeding $10,000 for
30 medical negligence or malpractice involving negligent conduct
31 by the staff member.
30
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (g)(f) Medical negligence other than as specified in
2 paragraph (d) or paragraph (e).
3 (h)(g) Failure to comply with the policies,
4 procedures, or directives of the risk management program or
5 any quality assurance committees of any licensed facility.
6 (9)(a) If the defendant prevails in an action brought
7 by a staff member or physician who delivers health care
8 services at the licensed facility against any person or entity
9 that initiated, participated in, was a witness in, or
10 conducted any review as authorized by this section, the court
11 shall award reasonable attorney's fees and costs to the
12 defendant. Monetary liability pursuant to this subsection
13 shall not exceed $250,000 except when intentional fraud is
14 involved.
15 Section 7. Subsections (1), (3), and (8) of section
16 395.0197, Florida Statutes, are amended, present subsections
17 (12) through (20) of that section are redesignated as
18 subsections (13) through (21), respectively, and a new
19 subsection (12) is added to that section, to read:
20 395.0197 Internal risk management program.--
21 (1) Every licensed facility shall, as a part of its
22 administrative functions, establish an internal risk
23 management program that includes all of the following
24 components:
25 (a) The investigation and analysis of the frequency
26 and causes of general categories and specific types of adverse
27 incidents to patients.
28 (b) The development of appropriate measures to
29 minimize the risk of adverse incidents to patients, including,
30 but not limited to:
31
31
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 1. Risk management and risk prevention education and
2 training of all nonphysician personnel as follows:
3 a. Such education and training of all nonphysician
4 personnel as part of their initial orientation; and
5 b. At least 1 hour of such education and training
6 annually for all personnel of the licensed facility working in
7 clinical areas and providing patient care, except those
8 persons licensed as health care practitioners who are required
9 to complete continuing education coursework pursuant to
10 chapter 456 or the respective practice act.
11 2. A prohibition, except when emergency circumstances
12 require otherwise, against a staff member of the licensed
13 facility attending a patient in the recovery room, unless the
14 staff member is authorized to attend the patient in the
15 recovery room and is in the company of at least one other
16 person. However, a licensed facility is exempt from the
17 two-person requirement if it has:
18 a. Live visual observation;
19 b. Electronic observation; or
20 c. Any other reasonable measure taken to ensure
21 patient protection and privacy.
22 3. A prohibition against an unlicensed person from
23 assisting or participating in any surgical procedure unless
24 the facility has authorized the person to do so following a
25 competency assessment, and such assistance or participation is
26 done under the direct and immediate supervision of a licensed
27 physician and is not otherwise an activity that may only be
28 performed by a licensed health care practitioner.
29 4. Development, implementation, and ongoing evaluation
30 of procedures, protocols, and systems to accurately identify
31 patients, planned procedures, and the correct site of the
32
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 planned procedure so as to minimize the performance of a
2 surgical procedure on the wrong patient, a wrong surgical
3 procedure, a wrong-site surgical procedure, or a surgical
4 procedure otherwise unrelated to the patient's diagnosis or
5 medical condition.
6 (c) The analysis of patient grievances that relate to
7 patient care and the quality of medical services.
8 (d) A system for informing a patient or an individual
9 identified pursuant to s. 765.401(1) that the patient was the
10 subject of an adverse incident, as defined in subsection (5).
11 Such notice shall be given by the risk manager, or his or her
12 designee, as soon as practicable to allow the patient an
13 opportunity to minimize damage or injury.
14 (e)(d) The development and implementation of an
15 incident reporting system based upon the affirmative duty of
16 all health care providers and all agents and employees of the
17 licensed health care facility to report adverse incidents to
18 the risk manager, or to his or her designee, within 3 business
19 days after their occurrence.
20 (3) In addition to the programs mandated by this
21 section, other innovative approaches intended to reduce the
22 frequency and severity of medical malpractice and patient
23 injury claims shall be encouraged and their implementation and
24 operation facilitated. Such additional approaches may include
25 extending internal risk management programs to health care
26 providers' offices and the assuming of provider liability by a
27 licensed health care facility for acts or omissions occurring
28 within the licensed facility. Each licensed facility shall
29 annually report to the agency and the Department of Health the
30 name and judgments entered against each health care
31 practitioner for which it assumes liability. The agency and
33
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Department of Health, in their respective annual reports,
2 shall include statistics that report the number of licensed
3 facilities that assume such liability and the number of health
4 care practitioners, by profession, for whom they assume
5 liability.
6 (8) Any of the following adverse incidents, whether
7 occurring in the licensed facility or arising from health care
8 prior to admission in the licensed facility, shall be reported
9 by the facility to the agency within 15 calendar days after
10 its occurrence:
11 (a) The death of a patient;
12 (b) Brain or spinal damage to a patient;
13 (c) The performance of a surgical procedure on the
14 wrong patient;
15 (d) The performance of a wrong-site surgical
16 procedure;
17 (e) The performance of a wrong surgical procedure;
18 (f) The performance of a surgical procedure that is
19 medically unnecessary or otherwise unrelated to the patient's
20 diagnosis or medical condition;
21 (g) The surgical repair of damage resulting to a
22 patient from a planned surgical procedure, where the damage is
23 not a recognized specific risk, as disclosed to the patient
24 and documented through the informed-consent process; or
25 (h) The performance of procedures to remove unplanned
26 foreign objects remaining from a surgical procedure.
27
28 The agency may grant extensions to this reporting requirement
29 for more than 15 days upon justification submitted in writing
30 by the facility administrator to the agency. The agency may
31 require an additional, final report. These reports shall not
34
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 be available to the public pursuant to s. 119.07(1) or any
2 other law providing access to public records, nor be
3 discoverable or admissible in any civil or administrative
4 action, except in disciplinary proceedings by the agency or
5 the appropriate regulatory board, nor shall they be available
6 to the public as part of the record of investigation for and
7 prosecution in disciplinary proceedings made available to the
8 public by the agency or the appropriate regulatory board.
9 However, the agency or the appropriate regulatory board shall
10 make available, upon written request by a health care
11 professional against whom probable cause has been found, any
12 such records which form the basis of the determination of
13 probable cause. The agency may investigate, as it deems
14 appropriate, any such incident and prescribe measures that
15 must or may be taken in response to the incident. The agency
16 shall review each incident and determine whether it
17 potentially involved conduct by the health care professional
18 who is subject to disciplinary action, in which case the
19 provisions of s. 456.073 shall apply. The agency shall forward
20 a copy of all reports of adverse incidents submitted to the
21 agency by hospitals and ambulatory surgical centers to the
22 Florida Center for Excellence in Health Care, as created in s.
23 381.0409, for analysis by experts who may make recommendations
24 regarding the prevention of such incidents. Such information
25 shall remain confidential as otherwise provided by law.
26 (12) If appropriate, a licensed facility in which
27 sexual abuse occurs must offer the victim of sexual abuse
28 testing for sexually transmissible diseases and shall provide
29 all such testing at no cost to the victim.
30 Section 8. Section 395.1012, Florida Statutes, is
31 created to read:
35
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 395.1012 Patient safety.--
2 (1) Each licensed facility must adopt a patient safety
3 plan. A plan adopted to implement the requirements of 42
4 C.F.R. part 482.21 shall be deemed to comply with this
5 requirement.
6 (2) Each licensed facility shall appoint a patient
7 safety officer and a patient safety committee, which shall
8 include at least one person who is neither employed by nor
9 practicing in the facility, for the purpose of promoting the
10 health and safety of patients, reviewing and evaluating the
11 quality of patient safety measures used by the facility, and
12 assisting in the implementation of the facility patient safety
13 plan.
14 Section 9. Subsection (1) of section 456.025, Florida
15 Statutes, is amended to read:
16 456.025 Fees; receipts; disposition.--
17 (1) It is the intent of the Legislature that all costs
18 of regulating health care professions and practitioners shall
19 be borne solely by licensees and licensure applicants. It is
20 also the intent of the Legislature that fees should be
21 reasonable and not serve as a barrier to licensure. Moreover,
22 it is the intent of the Legislature that the department
23 operate as efficiently as possible and regularly report to the
24 Legislature additional methods to streamline operational
25 costs. Therefore, the boards in consultation with the
26 department, or the department if there is no board, shall, by
27 rule, set renewal fees which:
28 (a) Shall be based on revenue projections prepared
29 using generally accepted accounting procedures;
30
31
36
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (b) Shall be adequate to cover all expenses relating
2 to that board identified in the department's long-range policy
3 plan, as required by s. 456.005;
4 (c) Shall be reasonable, fair, and not serve as a
5 barrier to licensure;
6 (d) Shall be based on potential earnings from working
7 under the scope of the license;
8 (e) Shall be similar to fees imposed on similar
9 licensure types; and
10 (f) Shall not be more than 10 percent greater than the
11 fee imposed for the previous biennium;
12 (g) Shall not be more than 10 percent greater than the
13 actual cost to regulate that profession for the previous
14 biennium; and
15 (f)(h) Shall be subject to challenge pursuant to
16 chapter 120.
17 Section 10. (1) The Agency for Health Care
18 Administration shall conduct or contract for a study to
19 determine what information is most feasible to provide to the
20 public comparing state-licensed hospitals on certain inpatient
21 quality indicators developed by the federal Agency for
22 Healthcare Research and Quality. Such indicators shall be
23 designed to identify information about specific procedures
24 performed in hospitals for which there is strong evidence of a
25 link to quality of care. The Agency for Health Care
26 Administration or the study contractor shall refer to the
27 hospital quality reports published in New York and Texas as
28 guides during the evaluation.
29 (2) The following concepts shall be specifically
30 addressed in the study report:
31
37
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (a) Whether hospital discharge data about services can
2 be translated into understandable and meaningful information
3 for the public.
4 (b) Whether the following measures are useful consumer
5 guides relating to care provided in state-licensed hospitals:
6 1. Inpatient mortality for medical conditions;
7 2. Inpatient mortality for procedures;
8 3. Utilization of procedures for which there are
9 questions of overuse, underuse, or misuse; and
10 4. Volume of procedures for which there is evidence
11 that a higher volume of procedures is associated with lower
12 mortality.
13 (c) Whether there are quality indicators that are
14 particularly useful relative to the state's unique
15 demographics.
16 (d) Whether all hospitals should be included in the
17 comparison.
18 (e) The criteria for comparison.
19 (f) Whether comparisons are best within metropolitan
20 statistical areas or some other geographic configuration.
21 (g) Identify several websites to which such a report
22 should be published to achieve the broadest dissemination of
23 the information.
24 (3) The Agency for Health Care Administration shall
25 consider the input of all interested parties, including
26 hospitals, physicians, consumer organizations, and patients,
27 and submit the final report to the Governor and the presiding
28 officers of the Legislature by January 1, 2004.
29 Section 11. Section 395.1051, Florida Statutes, is
30 created to read:
31
38
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 395.1051 Duty to notify patients.--The risk manager,
2 or his or her designee, of each licensed facility shall inform
3 each patient, or an individual identified pursuant to s.
4 765.401(1), in person about adverse incidents that result in
5 serious harm to the patient. Notification of outcomes of care
6 that result in harm to the patient under this section shall
7 not constitute an acknowledgement or admission of liability,
8 nor can it be introduced as evidence.
9 Section 12. Section 456.0575, Florida Statutes, is
10 created to read:
11 456.0575 Duty to notify patients.--Every licensed
12 health care practitioner shall inform each patient, or an
13 individual identified pursuant to s. 765.401(1), in person
14 about adverse incidents that result in serious harm to the
15 patient. Notification of outcomes of care that result in harm
16 to the patient under this section shall not constitute an
17 acknowledgement of admission of liability, nor can such
18 notifications be introduced as evidence.
19 Section 13. Section 456.026, Florida Statutes, is
20 amended to read:
21 456.026 Annual report concerning finances,
22 administrative complaints, disciplinary actions, and
23 recommendations.--The department is directed to prepare and
24 submit a report to the President of the Senate and the Speaker
25 of the House of Representatives by November 1 of each year.
26 The department shall publish the report to its website
27 simultaneously with delivery to the President of the Senate
28 and the Speaker of the House of Representatives. The report
29 must be directly accessible on the department's Internet
30 homepage highlighted by easily identifiable links and buttons.
31 In addition to finances and any other information the
39
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Legislature may require, the report shall include statistics
2 and relevant information, profession by profession, detailing:
3 (1) The number of health care practitioners licensed
4 by the Division of Medical Quality Assurance or otherwise
5 authorized to provide services in the state, if known to the
6 department.
7 (2)(1) The revenues, expenditures, and cash balances
8 for the prior year, and a review of the adequacy of existing
9 fees.
10 (3)(2) The number of complaints received and
11 investigated.
12 (4)(3) The number of findings of probable cause made.
13 (5)(4) The number of findings of no probable cause
14 made.
15 (6)(5) The number of administrative complaints filed.
16 (7)(6) The disposition of all administrative
17 complaints.
18 (8)(7) A description of disciplinary actions taken.
19 (9) For licensees under chapter 458, chapter 459,
20 chapter 461, or chapter 466, the professional liability claims
21 and actions reported by insurers, as provided in s. 627.912.
22 This information must be provided in a separate section of the
23 report restricted to providing professional liability claims
24 and actions data.
25 (10)(8) A description of any effort by the department
26 to reduce or otherwise close any investigation or disciplinary
27 proceeding not before the Division of Administrative Hearings
28 under chapter 120 or otherwise not completed within 1 year
29 after the initial filing of a complaint under this chapter.
30
31
40
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (11)(9) The status of the development and
2 implementation of rules providing for disciplinary guidelines
3 pursuant to s. 456.079.
4 (12)(10) Such recommendations for administrative and
5 statutory changes necessary to facilitate efficient and
6 cost-effective operation of the department and the various
7 boards.
8 Section 14. Paragraph (a) of subsection (1) of section
9 456.039, Florida Statutes, is amended to read:
10 456.039 Designated health care professionals;
11 information required for licensure.--
12 (1) Each person who applies for initial licensure as a
13 physician under chapter 458, chapter 459, chapter 460, or
14 chapter 461, except a person applying for registration
15 pursuant to ss. 458.345 and 459.021, must, at the time of
16 application, and each physician who applies for license
17 renewal under chapter 458, chapter 459, chapter 460, or
18 chapter 461, except a person registered pursuant to ss.
19 458.345 and 459.021, must, in conjunction with the renewal of
20 such license and under procedures adopted by the Department of
21 Health, and in addition to any other information that may be
22 required from the applicant, furnish the following information
23 to the Department of Health:
24 (a)1. The name of each medical school that the
25 applicant has attended, with the dates of attendance and the
26 date of graduation, and a description of all graduate medical
27 education completed by the applicant, excluding any coursework
28 taken to satisfy medical licensure continuing education
29 requirements.
30 2. The name of each hospital at which the applicant
31 has privileges.
41
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 3. The address at which the applicant will primarily
2 conduct his or her practice.
3 4. Any certification that the applicant has received
4 from a specialty board that is recognized by the board to
5 which the applicant is applying.
6 5. The year that the applicant began practicing
7 medicine.
8 6. Any appointment to the faculty of a medical school
9 which the applicant currently holds and an indication as to
10 whether the applicant has had the responsibility for graduate
11 medical education within the most recent 10 years.
12 7. A description of any criminal offense of which the
13 applicant has been found guilty, regardless of whether
14 adjudication of guilt was withheld, or to which the applicant
15 has pled guilty or nolo contendere. A criminal offense
16 committed in another jurisdiction which would have been a
17 felony or misdemeanor if committed in this state must be
18 reported. If the applicant indicates that a criminal offense
19 is under appeal and submits a copy of the notice for appeal of
20 that criminal offense, the department must state that the
21 criminal offense is under appeal if the criminal offense is
22 reported in the applicant's profile. If the applicant
23 indicates to the department that a criminal offense is under
24 appeal, the applicant must, upon disposition of the appeal,
25 submit to the department a copy of the final written order of
26 disposition.
27 8. A description of any final disciplinary action
28 taken within the previous 10 years against the applicant by
29 the agency regulating the profession that the applicant is or
30 has been licensed to practice, whether in this state or in any
31 other jurisdiction, by a specialty board that is recognized by
42
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the American Board of Medical Specialties, the American
2 Osteopathic Association, or a similar national organization,
3 or by a licensed hospital, health maintenance organization,
4 prepaid health clinic, ambulatory surgical center, or nursing
5 home. Disciplinary action includes resignation from or
6 nonrenewal of medical staff membership or the restriction of
7 privileges at a licensed hospital, health maintenance
8 organization, prepaid health clinic, ambulatory surgical
9 center, or nursing home taken in lieu of or in settlement of a
10 pending disciplinary case related to competence or character.
11 If the applicant indicates that the disciplinary action is
12 under appeal and submits a copy of the document initiating an
13 appeal of the disciplinary action, the department must state
14 that the disciplinary action is under appeal if the
15 disciplinary action is reported in the applicant's profile.
16 9. Relevant professional qualifications as defined by
17 the applicable board.
18 Section 15. Section 456.041, Florida Statutes, is
19 amended to read:
20 456.041 Practitioner profile; creation.--
21 (1)(a) Beginning July 1, 1999, The Department of
22 Health shall compile the information submitted pursuant to s.
23 456.039 into a practitioner profile of the applicant
24 submitting the information, except that the Department of
25 Health shall may develop a format to compile uniformly any
26 information submitted under s. 456.039(4)(b). Beginning July
27 1, 2001, the Department of Health may compile the information
28 submitted pursuant to s. 456.0391 into a practitioner profile
29 of the applicant submitting the information.
30
31
43
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (b) The department shall take no longer than 45
2 business days to update the practitioner's profile in
3 accordance with the requirements of subsection (7).
4 (2) On the profile published under subsection (1), the
5 department shall indicate if the information provided under s.
6 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or is not
7 corroborated by a criminal history check conducted according
8 to this subsection. If the information provided under s.
9 456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
10 criminal history check, the fact that the criminal history
11 check was performed need not be indicated on the profile. The
12 department, or the board having regulatory authority over the
13 practitioner acting on behalf of the department, shall
14 investigate any information received by the department or the
15 board when it has reasonable grounds to believe that the
16 practitioner has violated any law that relates to the
17 practitioner's practice.
18 (3) The Department of Health shall may include in each
19 practitioner's practitioner profile that criminal information
20 that directly relates to the practitioner's ability to
21 competently practice his or her profession. The department
22 must include in each practitioner's practitioner profile the
23 following statement: "The criminal history information, if
24 any exists, may be incomplete; federal criminal history
25 information is not available to the public." The department
26 shall provide in each practitioner profile, for every final
27 disciplinary action taken against the practitioner, an
28 easy-to-read narrative description that explains the
29 administrative complaint filed against the practitioner and
30 the final disciplinary action imposed on the practitioner. The
31 department shall include a hyperlink to each final order
44
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 listed in its website report of dispositions of recent
2 disciplinary actions taken against practitioners.
3 (4) The Department of Health shall include, with
4 respect to a practitioner licensed under chapter 458 or
5 chapter 459, a statement of how the practitioner has elected
6 to comply with the financial responsibility requirements of s.
7 458.320 or s. 459.0085. The department shall include, with
8 respect to practitioners subject to s. 456.048, a statement of
9 how the practitioner has elected to comply with the financial
10 responsibility requirements of that section. The department
11 shall include, with respect to practitioners licensed under
12 chapter 458, chapter 459, or chapter 461, information relating
13 to liability actions which has been reported under s. 456.049
14 or s. 627.912 within the previous 10 years for any paid claim
15 that exceeds $5,000. The department shall include, with
16 respect to practitioners licensed under chapter 458 or chapter
17 459, information relating to liability actions which has been
18 reported under s. 456.049 or s. 627.912 within the previous 10
19 years for any paid claim that exceeds $100,000. Such claims
20 information shall be reported in the context of comparing an
21 individual practitioner's claims to the experience of other
22 practitioners within the same specialty, or profession if the
23 practitioner is not a specialist, to the extent such
24 information is available to the Department of Health. The
25 department must provide a hyperlink in such practitioner's
26 profile to all such comparison reports. If information
27 relating to a liability action is included in a practitioner's
28 practitioner profile, the profile must also include the
29 following statement: "Settlement of a claim may occur for a
30 variety of reasons that do not necessarily reflect negatively
31 on the professional competence or conduct of the practitioner.
45
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 A payment in settlement of a medical malpractice action or
2 claim should not be construed as creating a presumption that
3 medical malpractice has occurred."
4 (5) The Department of Health shall may not include the
5 date of a hospital or ambulatory surgical center disciplinary
6 action taken by a licensed hospital or an ambulatory surgical
7 center, in accordance with the requirements of s. 395.0193, in
8 the practitioner profile. The department shall state whether
9 the action related to professional competence and whether it
10 related to the delivery of services to a patient.
11 (6) The Department of Health may include in the
12 practitioner's practitioner profile any other information that
13 is a public record of any governmental entity and that relates
14 to a practitioner's ability to competently practice his or her
15 profession. However, the department must consult with the
16 board having regulatory authority over the practitioner before
17 such information is included in his or her profile.
18 (7) Upon the completion of a practitioner profile
19 under this section, the Department of Health shall furnish the
20 practitioner who is the subject of the profile a copy of it
21 for review and verification. The practitioner has a period of
22 30 days in which to review and verify the contents of the
23 profile and to correct any factual inaccuracies in it. The
24 Department of Health shall make the profile available to the
25 public at the end of the 30-day period regardless of whether
26 the practitioner has provided verification of the profile
27 content. A practitioner shall be subject to a fine of up to
28 $100 per day for failure to verify the profile contents and to
29 correct any factual errors in his or her profile within the
30 30-day period. The department shall make the profiles
31 available to the public through the World Wide Web and other
46
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 commonly used means of distribution. The department must
2 include the following statement, in boldface type, in each
3 profile that has not been reviewed by the practitioner to
4 which it applies: "The practitioner has not verified the
5 information contained in this profile."
6 (8) The Department of Health must provide in each
7 profile an easy-to-read explanation of any disciplinary action
8 taken and the reason the sanction or sanctions were imposed.
9 (9) The Department of Health may provide one link in
10 each profile to a practitioner's professional website if the
11 practitioner requests that such a link be included in his or
12 her profile.
13 (10)(8) Making a practitioner profile available to the
14 public under this section does not constitute agency action
15 for which a hearing under s. 120.57 may be sought.
16 Section 16. Section 456.042, Florida Statutes, is
17 amended to read:
18 456.042 Practitioner profiles; update.--A practitioner
19 must submit updates of required information within 15 days
20 after the final activity that renders such information a fact.
21 The Department of Health shall update each practitioner's
22 practitioner profile periodically. An updated profile is
23 subject to the same requirements as an original profile with
24 respect to the period within which the practitioner may review
25 the profile for the purpose of correcting factual
26 inaccuracies.
27 Section 17. Subsection (1) of section 456.049, Florida
28 Statutes, is amended, and subsection (3) is added to that
29 section, to read:
30 456.049 Health care practitioners; reports on
31 professional liability claims and actions.--
47
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (1) Any practitioner of medicine licensed pursuant to
2 the provisions of chapter 458, practitioner of osteopathic
3 medicine licensed pursuant to the provisions of chapter 459,
4 podiatric physician licensed pursuant to the provisions of
5 chapter 461, or dentist licensed pursuant to the provisions of
6 chapter 466 shall report to the department any claim or action
7 for damages for personal injury alleged to have been caused by
8 error, omission, or negligence in the performance of such
9 licensee's professional services or based on a claimed
10 performance of professional services without consent if the
11 claim was not covered by an insurer required to report under
12 s. 627.912 and the claim resulted in:
13 (a) A final judgment in any amount.
14 (b) A settlement in any amount.
15 (c) A final disposition not resulting in payment on
16 behalf of the licensee.
17
18 If the practitioner is licensed under chapter 458, chapter
19 459, or chapter 461 and the final judgment or settlement
20 amount was $50,000 or more, or if the practitioner is licensed
21 under chapter 466 and the final judgment or settlement amount
22 was $25,000 or more, the report Reports shall be filed with
23 the department no later than 60 days following the occurrence
24 of any event listed in paragraph (a) or, paragraph (b), or
25 paragraph (c).
26 (3) The department must forward the information
27 collected under this section to the Office of Insurance
28 Regulation.
29 Section 18. Section 456.051, Florida Statutes, is
30 amended to read:
31
48
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 456.051 Reports of professional liability actions;
2 bankruptcies; Department of Health's responsibility to
3 provide.--
4 (1) The report of a claim or action for damages for
5 personal injury which is required to be provided to the
6 Department of Health under s. 456.049 or s. 627.912 is public
7 information except for the name of the claimant or injured
8 person, which remains confidential as provided in ss.
9 456.049(2)(d) and 627.912(2)(e). The Department of Health
10 shall, upon request, make such report available to any person.
11 The department shall make such report available as a part of
12 the practitioner's profile within 45 calendar days after
13 receipt.
14 (2) Any information in the possession of the
15 Department of Health which relates to a bankruptcy proceeding
16 by a practitioner of medicine licensed under chapter 458, a
17 practitioner of osteopathic medicine licensed under chapter
18 459, a podiatric physician licensed under chapter 461, or a
19 dentist licensed under chapter 466 is public information. The
20 Department of Health shall, upon request, make such
21 information available to any person. The department shall make
22 such report available as a part of the practitioner's profile
23 within 45 calendar days after receipt.
24 Section 19. Subsection (6) and paragraph (a) of
25 subsection (7) of section 456.057, Florida Statutes, are
26 amended to read:
27 456.057 Ownership and control of patient records;
28 report or copies of records to be furnished.--
29 (6) Except in a medical negligence action or
30 administrative proceeding when a health care practitioner or
31 provider is or reasonably expects to be named as a defendant,
49
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 information disclosed to a health care practitioner by a
2 patient in the course of the care and treatment of such
3 patient is confidential and may be disclosed only to other
4 health care practitioners and providers involved in the care
5 or treatment of the patient, or if permitted by written
6 authorization from the patient or compelled by subpoena at a
7 deposition, evidentiary hearing, or trial for which proper
8 notice has been given or by a medical information release
9 executed pursuant to s. 766.106(13) which permits the taking
10 of unsworn statements.
11 (7)(a)1. The department may obtain patient records
12 pursuant to a subpoena without written authorization from the
13 patient if the department and the probable cause panel of the
14 appropriate board, if any, find reasonable cause to believe
15 that a health care practitioner has excessively or
16 inappropriately prescribed any controlled substance specified
17 in chapter 893 in violation of this chapter or any
18 professional practice act or that a health care practitioner
19 has practiced his or her profession below that level of care,
20 skill, and treatment required as defined by this chapter or
21 any professional practice act and also find that appropriate,
22 reasonable attempts were made to obtain a patient release.
23 2. The department may obtain patient records and
24 insurance information pursuant to a subpoena without written
25 authorization from the patient if the department and the
26 probable cause panel of the appropriate board, if any, find
27 reasonable cause to believe that a health care practitioner
28 has provided inadequate medical care based on termination of
29 insurance and also find that appropriate, reasonable attempts
30 were made to obtain a patient release.
31
50
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 3. The department may obtain patient records, billing
2 records, insurance information, provider contracts, and all
3 attachments thereto pursuant to a subpoena without written
4 authorization from the patient if the department and probable
5 cause panel of the appropriate board, if any, find reasonable
6 cause to believe that a health care practitioner has submitted
7 a claim, statement, or bill using a billing code that would
8 result in payment greater in amount than would be paid using a
9 billing code that accurately describes the services performed,
10 requested payment for services that were not performed by that
11 health care practitioner, used information derived from a
12 written report of an automobile accident generated pursuant to
13 chapter 316 to solicit or obtain patients personally or
14 through an agent regardless of whether the information is
15 derived directly from the report or a summary of that report
16 or from another person, solicited patients fraudulently,
17 received a kickback as defined in s. 456.054, violated the
18 patient brokering provisions of s. 817.505, or presented or
19 caused to be presented a false or fraudulent insurance claim
20 within the meaning of s. 817.234(1)(a), and also find that,
21 within the meaning of s. 817.234(1)(a), patient authorization
22 cannot be obtained because the patient cannot be located or is
23 deceased, incapacitated, or suspected of being a participant
24 in the fraud or scheme, and if the subpoena is issued for
25 specific and relevant records. For purposes of this
26 subsection, if the patient refuses to cooperate, is
27 unavailable, or fails to execute a patient release, the
28 department may obtain patient records pursuant to a subpoena
29 without written authorization from the patient.
30 Section 20. Subsection (4) is added to section
31 456.063, Florida Statutes, to read:
51
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 456.063 Sexual misconduct; disqualification for
2 license, certificate, or registration.--
3 (4) Each board, or the department if there is no
4 board, may adopt rules to implement the requirements for
5 reporting allegations of sexual misconduct, including rules to
6 determine the sufficiency of the allegations.
7 Section 21. Each board within the Department of Health
8 which has jurisdiction over health care practitioners who are
9 authorized to prescribe drugs may adopt by rule standards of
10 practice for practitioners who are under that board's
11 jurisdiction for the safe and ethical prescription of drugs to
12 patients via the Internet or other electronic means.
13 Section 22. Subsection (4) of section 456.072, Florida
14 Statutes, is amended, and subsection (7) is added to that
15 section to read:
16 456.072 Grounds for discipline; penalties;
17 enforcement.--
18 (4) In addition to any other discipline imposed
19 through final order, or citation, entered on or after July 1,
20 2001, pursuant to this section or discipline imposed through
21 final order, or citation, entered on or after July 1, 2001,
22 for a violation of any practice act, the board, or the
23 department when there is no board, shall assess costs related
24 to the investigation and prosecution of the case. Such costs
25 related to the investigation and prosecution include, but are
26 not limited to, salaries and benefits of personnel, costs
27 related to the time spent by the attorney and other personnel
28 working on the case, and any other expenses incurred by the
29 department for the case. The board, or the department when
30 there in no board, shall determine the amount of costs to be
31 assessed after its consideration of an affidavit of itemized
52
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 costs and any written objections thereto. In any case where
2 the board or the department imposes a fine or assessment and
3 the fine or assessment is not paid within a reasonable time,
4 such reasonable time to be prescribed in the rules of the
5 board, or the department when there is no board, or in the
6 order assessing such fines or costs, the department or the
7 Department of Legal Affairs may contract for the collection
8 of, or bring a civil action to recover, the fine or
9 assessment.
10 (7) In any formal administrative hearing conducted
11 under s. 120.57(1), the department shall establish grounds for
12 the discipline of a licensee by the greater weight of the
13 evidence.
14 Section 23. Subsections (1) and (5) of section
15 456.073, Florida Statutes, as amended by section 1 of chapter
16 2003-27, Laws of Florida, are amended to read:
17 456.073 Disciplinary proceedings.--Disciplinary
18 proceedings for each board shall be within the jurisdiction of
19 the department.
20 (1) The department, for the boards under its
21 jurisdiction, shall cause to be investigated any complaint
22 that is filed before it if the complaint is in writing, signed
23 by the complainant, and legally sufficient. A complaint filed
24 by a state prisoner against a health care practitioner
25 employed by or otherwise providing health care services within
26 a facility of the Department of Corrections is not legally
27 sufficient unless there is a showing that the prisoner
28 complainant has exhausted all available administrative
29 remedies within the state correctional system before filing
30 the complaint. However, if the Department of Health determines
31 after a preliminary inquiry of a state prisoner's complaint
53
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 that the practitioner may present a serious threat to the
2 health and safety of any individual who is not a state
3 prisoner, the Department of Health may determine legal
4 sufficiency and proceed with discipline. The Department of
5 Health shall be notified within 15 days after the Department
6 of Corrections disciplines or allows a health care
7 practitioner to resign for an offense related to the practice
8 of his or her profession. A complaint is legally sufficient if
9 it contains ultimate facts that show that a violation of this
10 chapter, of any of the practice acts relating to the
11 professions regulated by the department, or of any rule
12 adopted by the department or a regulatory board in the
13 department has occurred. In order to determine legal
14 sufficiency, the department may require supporting information
15 or documentation. The department may investigate, and the
16 department or the appropriate board may take appropriate final
17 action on, a complaint even though the original complainant
18 withdraws it or otherwise indicates a desire not to cause the
19 complaint to be investigated or prosecuted to completion. The
20 department may investigate an anonymous complaint if the
21 complaint is in writing and is legally sufficient, if the
22 alleged violation of law or rules is substantial, and if the
23 department has reason to believe, after preliminary inquiry,
24 that the violations alleged in the complaint are true. The
25 department may investigate a complaint made by a confidential
26 informant if the complaint is legally sufficient, if the
27 alleged violation of law or rule is substantial, and if the
28 department has reason to believe, after preliminary inquiry,
29 that the allegations of the complainant are true. The
30 department may initiate an investigation if it has reasonable
31 cause to believe that a licensee or a group of licensees has
54
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 violated a Florida statute, a rule of the department, or a
2 rule of a board. The department may investigate information
3 filed pursuant to s. 456.041(4) relating to liability actions
4 with respect to practitioners licensed under chapter 458 or
5 chapter 459 which have been reported under s. 456.049 or s.
6 627.912 within the previous 10 years for any paid claim that
7 exceeds $50,000. Except as provided in ss. 458.331(9),
8 459.015(9), 460.413(5), and 461.013(6), when an investigation
9 of any subject is undertaken, the department shall promptly
10 furnish to the subject or the subject's attorney a copy of the
11 complaint or document that resulted in the initiation of the
12 investigation. The subject may submit a written response to
13 the information contained in such complaint or document within
14 20 days after service to the subject of the complaint or
15 document. The subject's written response shall be considered
16 by the probable cause panel. The right to respond does not
17 prohibit the issuance of a summary emergency order if
18 necessary to protect the public. However, if the secretary, or
19 the secretary's designee, and the chair of the respective
20 board or the chair of its probable cause panel agree in
21 writing that such notification would be detrimental to the
22 investigation, the department may withhold notification. The
23 department may conduct an investigation without notification
24 to any subject if the act under investigation is a criminal
25 offense.
26 (5) A formal hearing before an administrative law
27 judge from the Division of Administrative Hearings shall be
28 held pursuant to chapter 120 if there are any disputed issues
29 of material fact. The administrative law judge shall issue a
30 recommended order pursuant to chapter 120. Notwithstanding s.
31 120.569(2), the department shall notify the division within 45
55
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 days after receipt of a petition or request for a formal
2 hearing. If any party raises an issue of disputed fact during
3 an informal hearing, the hearing shall be terminated and a
4 formal hearing pursuant to chapter 120 shall be held.
5 Section 24. Subsection (1) of section 456.077, Florida
6 Statutes, is amended to read:
7 456.077 Authority to issue citations.--
8 (1) Notwithstanding s. 456.073, the board, or the
9 department if there is no board, shall adopt rules to permit
10 the issuance of citations. The citation shall be issued to the
11 subject and shall contain the subject's name and address, the
12 subject's license number if applicable, a brief factual
13 statement, the sections of the law allegedly violated, and the
14 penalty imposed. The citation must clearly state that the
15 subject may choose, in lieu of accepting the citation, to
16 follow the procedure under s. 456.073. If the subject disputes
17 the matter in the citation, the procedures set forth in s.
18 456.073 must be followed. However, if the subject does not
19 dispute the matter in the citation with the department within
20 30 days after the citation is served, the citation becomes a
21 final order and does not constitute constitutes discipline for
22 a first offense. The penalty shall be a fine or other
23 conditions as established by rule.
24 Section 25. Subsection (1) of section 456.078, Florida
25 Statutes, is amended to read:
26 456.078 Mediation.--
27 (1) Notwithstanding the provisions of s. 456.073, the
28 board, or the department when there is no board, shall adopt
29 rules to designate which violations of the applicable
30 professional practice act, including standard-of-care
31 violations, are appropriate for mediation. The board, or the
56
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 department when there is no board, must may designate as
2 mediation offenses those complaints where harm caused by the
3 licensee is economic in nature or can be remedied by the
4 licensee.
5 Section 26. Present subsection (8) of section 458.320,
6 Florida Statutes, is redesignated as subsection (9), and a new
7 subsection (8) is added to that section, to read:
8 458.320 Financial responsibility.--
9 (8) Notwithstanding any other provision of this
10 section, the department shall suspend the license of any
11 physician against whom has been entered a final judgment,
12 arbitration award, or other order or who has entered into a
13 settlement agreement to pay damages arising out of a claim for
14 medical malpractice, if all appellate remedies have been
15 exhausted and payment up to the amounts required by this
16 section has not been made within 30 days after the entering of
17 such judgment, award, or order or agreement, until proof of
18 payment is received by the department or a payment schedule
19 has been agreed upon by the physician and the claimant and
20 presented to the department. This subsection does not apply to
21 a physician who has met the financial responsibility
22 requirements in paragraphs (1)(b) and (2)(b).
23 Section 27. Present subsection (9) of section
24 459.0085, Florida Statutes, is redesignated as subsection
25 (10), and a new subsection (9) is added to that section, to
26 read:
27 459.0085 Financial responsibility.--
28 (9) Notwithstanding any other provision of this
29 section, the department shall suspend the license of any
30 osteopathic physician against whom has been entered a final
31 judgment, arbitration award, or other order or who has entered
57
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 into a settlement agreement to pay damages arising out of a
2 claim for medical malpractice, if all appellate remedies have
3 been exhausted and payment up to the amounts required by this
4 section has not been made within 30 days after the entering of
5 such judgment, award, or order or agreement, until proof of
6 payment is received by the department or a payment schedule
7 has been agreed upon by the osteopathic physician and the
8 claimant and presented to the department. This subsection does
9 not apply to an osteopathic physician who has met the
10 financial responsibility requirements in paragraphs (1)(b) and
11 (2)(b).
12 Section 28. Civil immunity for members of or
13 consultants to certain boards, committees, or other
14 entities.--
15 (1) Each member of, or health care professional
16 consultant to, any committee, board, group, commission, or
17 other entity shall be immune from civil liability for any act,
18 decision, omission, or utterance done or made in performance
19 of his duties while serving as a member of or consultant to
20 such committee, board, group, commission, or other entity
21 established and operated for purposes of quality improvement
22 review, evaluation, and planning in a state-licensed health
23 care facility. Such entities must function primarily to
24 review, evaluate, or make recommendations relating to:
25 (a) The duration of patient stays in health care
26 facilities;
27 (b) The professional services furnished with respect
28 to the medical, dental, psychological, podiatric,
29 chiropractic, or optometric necessity for such services;
30 (c) The purpose of promoting the most efficient use of
31 available health care facilities and services;
58
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (d) The adequacy or quality of professional services;
2 (e) The competency and qualifications for professional
3 staff privileges;
4 (f) The reasonableness or appropriateness of charges
5 made by or on behalf of health care facilities; or
6 (g) Patient safety, including entering into contracts
7 with patient safety organizations.
8 (2) Such committee, board, group, commission, or other
9 entity must be established in accordance with state law or in
10 accordance with requirements of the Joint Commission on
11 Accreditation of Healthcare Organizations, established and
12 duly constituted by one or more public or licensed private
13 hospitals or behavioral health agencies, or established by a
14 governmental agency. To be protected by this section, the act,
15 decision, omission, or utterance may not be made or done in
16 bad faith or with malicious intent.
17 Section 29. Patient safety data privilege.--
18 (1) As used in this section, the term:
19 (a) "Patient safety data" means reports made to
20 patient safety organizations, including all health care data,
21 interviews, memoranda, analyses, root cause analyses, products
22 of quality assurance or quality improvement processes,
23 corrective action plans, or information collected or created
24 by a health care facility licensed under chapter 395 or a
25 health care practitioner as defined in section 456.001(4),
26 Florida Statutes, as a result of an occurrence related to the
27 provision of health care services which exacerbates an
28 existing medical condition or could result in injury, illness,
29 or death.
30 (b) "Patient safety organization" means any
31 organization, group, or other entity that collects and
59
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 analyzes patient safety data for the purpose of improving
2 patient safety and health care outcomes and that is
3 independent and not under the control of the entity that
4 reports patient safety data.
5 (2) Patient safety data shall not be subject to
6 discovery or introduction into evidence in any civil or
7 administrative action.
8 (3) Unless otherwise provided by law, a patient safety
9 organization shall promptly remove all patient-identifying
10 information after receipt of a complete patient safety data
11 report unless such organization is otherwise permitted by
12 state or federal law to maintain such information. Patient
13 safety organizations shall maintain the confidentiality of all
14 patient-identifying information and may not disseminate such
15 information, except as permitted by state or federal law.
16 (4) The exchange of patient safety data among health
17 care facilities licensed under chapter 395 or health care
18 practitioners as defined in section 456.001 (4), Florida
19 Statutes, or patient safety organizations which does not
20 identify any patient shall not constitute a waiver of any
21 privilege established in this section.
22 (5) Reports of patient safety data to patient safety
23 organizations does not abrogate obligations to make reports to
24 the Department of Health, the Agency for Health Care
25 Administration, or other state or federal regulatory agencies.
26 (6) An employer may not take retaliatory action
27 against an employee who in good faith makes a report of
28 patient safety data to a patient safety organization.
29 Section 30. Each final settlement statement relating
30 to medical malpractice shall include the following statement:
31 "The decision to settle a case may reflect the economic
60
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 practicalities pertaining to the cost of litigation and is
2 not, alone, an admission that the insured failed to meet the
3 required standard of care applicable to the patient's
4 treatment. The decision to settle a case may be made by the
5 insurance company without consulting its client for input,
6 unless otherwise provided by the insurance policy."
7 Section 31. Office of Insurance Regulation; closed
8 claim forms; report required.--The Office of Insurance
9 Regulation shall revise its closed claim form for readability
10 at the 9th grade level. The office shall compile annual
11 statistical reports that provide data summaries of all closed
12 claims, including, but not limited to, the number of closed
13 claims on file pertaining to the referent health care
14 professional or health care entity, the nature of the errant
15 conduct, the size of payments, and the frequency and size of
16 noneconomic damage awards. The office shall develop annualized
17 historical statistical summaries beginning with the 1976 state
18 fiscal year and publish these reports on its website no later
19 than the 2005 state fiscal year. The form must accommodate the
20 following minimum requirements:
21 (1) A practitioner of medicine licensed pursuant to
22 chapter 458, Florida Statutes, a practitioner of osteopathic
23 medicine licensed pursuant to chapter 459, Florida Statutes, a
24 practitioner of podiatric medicine licensed pursuant to
25 chapter 461, Florida Statutes, or a dentist licensed pursuant
26 to chapter 466, Florida Statutes, shall report to the Office
27 of Insurance Regulation and the Department of Health any claim
28 or action for damages for personal injury alleged to have been
29 caused by error, omission, or negligence in the performance of
30 such licensee's professional services or based on a claimed
31 performance of professional services without consent if the
61
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 claim was not covered by an insurer required to report under
2 section 627.912, Florida Statutes, and the claim resulted in:
3 (a) A final judgment in any amount.
4 (b) A settlement in any amount.
5
6 Reports shall be filed with the Office of Insurance Regulation
7 no later than 60 days following the occurrence of any event
8 listed in this subsection.
9 (2) Health professional reports must contain:
10 (a) The name and address of the licensee.
11 (b) The alleged occurrence.
12 (c) The date of the alleged occurrence.
13 (d) The date the claim or action was reported to the
14 licensee.
15 (e) The name and address of the opposing party.
16 (f) The date of suit, if filed.
17 (g) The injured person's age and sex.
18 (h) The total number and names of all defendants
19 involved in the claim.
20 (i) The date and amount of judgment or settlement, if
21 any, including the itemization of the verdict, together with a
22 copy of the settlement or judgment.
23 (j) In the case of a settlement, any information
24 required by the Office of Insurance Regulation concerning the
25 injured person's incurred and anticipated medical expense,
26 wage loss, and other expenses.
27 (k) The loss adjustment expense paid to defense
28 counsel, and all other allocated loss adjustment expense paid.
29 (l) The date and reason for final disposition, if
30 there was no judgment or settlement.
31
62
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (m) A summary of the occurrence that created the
2 claim, which must include:
3 1. The name of the institution, if any, and the
4 location within such institution, at which the injury
5 occurred.
6 2. The final diagnosis for which treatment was sought
7 or rendered, including the patient's actual condition.
8 3. A description of the misdiagnosis made, if any, of
9 the patient's actual condition.
10 4. The operation or the diagnostic or treatment
11 procedure causing the injury.
12 5. A description of the principal injury giving rise
13 to the claim.
14 6. The safety management steps that have been taken by
15 the licensee to make similar occurrences or injuries less
16 likely in the future.
17 (n) Any other information required by the Office of
18 Insurance Regulation to analyze and evaluate the nature,
19 causes, location, cost, and damages involved in professional
20 liability cases.
21 Section 32. Paragraph (t) of subsection (1) and
22 subsections (3) and (6) of section 458.331, Florida Statutes,
23 are amended to read:
24 458.331 Grounds for disciplinary action; action by the
25 board and department.--
26 (1) The following acts constitute grounds for denial
27 of a license or disciplinary action, as specified in s.
28 456.072(2):
29 (t) Gross or repeated malpractice or the failure to
30 practice medicine with that level of care, skill, and
31 treatment which is recognized by a reasonably prudent similar
63
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 physician as being acceptable under similar conditions and
2 circumstances. The board shall give great weight to the
3 provisions of s. 766.102 when enforcing this paragraph. As
4 used in this paragraph, "repeated malpractice" includes, but
5 is not limited to, three or more claims for medical
6 malpractice within the previous 5-year period resulting in
7 indemnities being paid in excess of $50,000 $25,000 each to
8 the claimant in a judgment or settlement and which incidents
9 involved negligent conduct by the physician. As used in this
10 paragraph, "gross malpractice" or "the failure to practice
11 medicine with that level of care, skill, and treatment which
12 is recognized by a reasonably prudent similar physician as
13 being acceptable under similar conditions and circumstances,"
14 shall not be construed so as to require more than one
15 instance, event, or act. Nothing in this paragraph shall be
16 construed to require that a physician be incompetent to
17 practice medicine in order to be disciplined pursuant to this
18 paragraph. A recommended order by an administrative law judge
19 or a final order of the board finding a violation under this
20 paragraph shall specify whether the licensee was found to have
21 committed "gross malpractice," "repeated malpractice," or
22 "failure to practice medicine with that level of care, skill,
23 and treatment which is recognized as being acceptable under
24 similar conditions and circumstances," or any combination
25 thereof, and any publication by the board must so specify.
26 (3) In any administrative action against a physician
27 which does not involve revocation or suspension of license,
28 the division shall have the burden, by the greater weight of
29 the evidence, to establish the existence of grounds for
30 disciplinary action. The division shall establish grounds for
31
64
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 revocation or suspension of license by clear and convincing
2 evidence.
3 (6) Upon the department's receipt from an insurer or
4 self-insurer of a report of a closed claim against a physician
5 pursuant to s. 627.912 or from a health care practitioner of a
6 report pursuant to s. 456.049, or upon the receipt from a
7 claimant of a presuit notice against a physician pursuant to
8 s. 766.106, the department shall review each report and
9 determine whether it potentially involved conduct by a
10 licensee that is subject to disciplinary action, in which case
11 the provisions of s. 456.073 shall apply. However, if it is
12 reported that a physician has had three or more claims with
13 indemnities exceeding $50,000 $25,000 each within the previous
14 5-year period, the department shall investigate the
15 occurrences upon which the claims were based and determine if
16 action by the department against the physician is warranted.
17 Section 33. Paragraph (x) of subsection (1) and
18 subsections (3) and (6) of section 459.015, Florida Statutes,
19 are amended to read:
20 459.015 Grounds for disciplinary action; action by the
21 board and department.--
22 (1) The following acts constitute grounds for denial
23 of a license or disciplinary action, as specified in s.
24 456.072(2):
25 (x) Gross or repeated malpractice or the failure to
26 practice osteopathic medicine with that level of care, skill,
27 and treatment which is recognized by a reasonably prudent
28 similar osteopathic physician as being acceptable under
29 similar conditions and circumstances. The board shall give
30 great weight to the provisions of s. 766.102 when enforcing
31 this paragraph. As used in this paragraph, "repeated
65
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 malpractice" includes, but is not limited to, three or more
2 claims for medical malpractice within the previous 5-year
3 period resulting in indemnities being paid in excess of
4 $50,000 $25,000 each to the claimant in a judgment or
5 settlement and which incidents involved negligent conduct by
6 the osteopathic physician. As used in this paragraph, "gross
7 malpractice" or "the failure to practice osteopathic medicine
8 with that level of care, skill, and treatment which is
9 recognized by a reasonably prudent similar osteopathic
10 physician as being acceptable under similar conditions and
11 circumstances" shall not be construed so as to require more
12 than one instance, event, or act. Nothing in this paragraph
13 shall be construed to require that an osteopathic physician be
14 incompetent to practice osteopathic medicine in order to be
15 disciplined pursuant to this paragraph. A recommended order
16 by an administrative law judge or a final order of the board
17 finding a violation under this paragraph shall specify whether
18 the licensee was found to have committed "gross malpractice,"
19 "repeated malpractice," or "failure to practice osteopathic
20 medicine with that level of care, skill, and treatment which
21 is recognized as being acceptable under similar conditions and
22 circumstances," or any combination thereof, and any
23 publication by the board shall so specify.
24 (3) In any administrative action against a physician
25 which does not involve revocation or suspension of license,
26 the division shall have the burden, by the greater weight of
27 the evidence, to establish the existence of grounds for
28 disciplinary action. The division shall establish grounds for
29 revocation or suspension of license by clear and convincing
30 evidence.
31
66
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (6) Upon the department's receipt from an insurer or
2 self-insurer of a report of a closed claim against an
3 osteopathic physician pursuant to s. 627.912 or from a health
4 care practitioner of a report pursuant to s. 456.049, or upon
5 the receipt from a claimant of a presuit notice against an
6 osteopathic physician pursuant to s. 766.106, the department
7 shall review each report and determine whether it potentially
8 involved conduct by a licensee that is subject to disciplinary
9 action, in which case the provisions of s. 456.073 shall
10 apply. However, if it is reported that an osteopathic
11 physician has had three or more claims with indemnities
12 exceeding $50,000 $25,000 each within the previous 5-year
13 period, the department shall investigate the occurrences upon
14 which the claims were based and determine if action by the
15 department against the osteopathic physician is warranted.
16 Section 34. Subsection (6) of section 460.413, Florida
17 Statutes, is amended to read:
18 460.413 Grounds for disciplinary action; action by
19 board or department.--
20 (6) In any administrative action against a
21 chiropractic physician which does not involve revocation or
22 suspension of license, the department shall have the burden,
23 by the greater weight of the evidence, to establish the
24 existence of grounds for disciplinary action. The department
25 shall establish grounds for revocation or suspension of
26 license by clear and convincing evidence.
27 Section 35. Legislative intent.--The Legislature
28 declares that reducing the burden of proof in medical
29 disciplinary cases to the level of greater weight of the
30 evidence is necessary to protect the health, safety, and
31 welfare of medical patients in the state. The Legislature
67
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 declares that there is an overwhelming public necessity to
2 protect medical patients which far overrides any purported
3 property interest in a license to practice in this state held
4 by a licensed health care practitioner. Furthermore, the
5 Legislature declares that it is a privilege, not a right, to
6 practice as a health care professional in this state and that
7 disciplinary action relating to scope of practice issues in
8 particular is remedial and protective, not penal, in nature.
9 The Legislature specifically reverses case law to the
10 contrary.
11 Section 36. The Division of Administrative Hearings
12 shall designate at least two administrative law judges who
13 shall specifically preside over actions involving the
14 Department of Health or boards within the Department of Health
15 and a health care practitioner as defined in section 456.001,
16 Florida Statutes. Each designated administrative law judge
17 must be a member of The Florida Bar in good standing and must
18 have experience working in the health care industry or have
19 attained board certification in health care law from The
20 Florida Bar.
21 Section 37. Paragraph (s) of subsection (1) and
22 paragraph (a) of subsection (5) of section 461.013, Florida
23 Statutes, are amended to read:
24 461.013 Grounds for disciplinary action; action by the
25 board; investigations by department.--
26 (1) The following acts constitute grounds for denial
27 of a license or disciplinary action, as specified in s.
28 456.072(2):
29 (s) Gross or repeated malpractice or the failure to
30 practice podiatric medicine at a level of care, skill, and
31 treatment which is recognized by a reasonably prudent
68
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 podiatric physician as being acceptable under similar
2 conditions and circumstances. The board shall give great
3 weight to the standards for malpractice in s. 766.102 in
4 interpreting this section. As used in this paragraph,
5 "repeated malpractice" includes, but is not limited to, three
6 or more claims for medical malpractice within the previous
7 5-year period resulting in indemnities being paid in excess of
8 $50,000 $10,000 each to the claimant in a judgment or
9 settlement and which incidents involved negligent conduct by
10 the podiatric physicians. As used in this paragraph, "gross
11 malpractice" or "the failure to practice podiatric medicine
12 with the level of care, skill, and treatment which is
13 recognized by a reasonably prudent similar podiatric physician
14 as being acceptable under similar conditions and
15 circumstances" shall not be construed so as to require more
16 than one instance, event, or act.
17 (5)(a) Upon the department's receipt from an insurer
18 or self-insurer of a report of a closed claim against a
19 podiatric physician pursuant to s. 627.912, or upon the
20 receipt from a claimant of a presuit notice against a
21 podiatric physician pursuant to s. 766.106, the department
22 shall review each report and determine whether it potentially
23 involved conduct by a licensee that is subject to disciplinary
24 action, in which case the provisions of s. 456.073 shall
25 apply. However, if it is reported that a podiatric physician
26 has had three or more claims with indemnities exceeding
27 $50,000 $25,000 each within the previous 5-year period, the
28 department shall investigate the occurrences upon which the
29 claims were based and determine if action by the department
30 against the podiatric physician is warranted.
31
69
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Section 38. Paragraph (x) of subsection (1) of section
2 466.028, Florida Statutes, is amended to read:
3 466.028 Grounds for disciplinary action; action by the
4 board.--
5 (1) The following acts constitute grounds for denial
6 of a license or disciplinary action, as specified in s.
7 456.072(2):
8 (x) Being guilty of incompetence or negligence by
9 failing to meet the minimum standards of performance in
10 diagnosis and treatment when measured against generally
11 prevailing peer performance, including, but not limited to,
12 the undertaking of diagnosis and treatment for which the
13 dentist is not qualified by training or experience or being
14 guilty of dental malpractice. For purposes of this paragraph,
15 it shall be legally presumed that a dentist is not guilty of
16 incompetence or negligence by declining to treat an individual
17 if, in the dentist's professional judgment, the dentist or a
18 member of her or his clinical staff is not qualified by
19 training and experience, or the dentist's treatment facility
20 is not clinically satisfactory or properly equipped to treat
21 the unique characteristics and health status of the dental
22 patient, provided the dentist refers the patient to a
23 qualified dentist or facility for appropriate treatment. As
24 used in this paragraph, "dental malpractice" includes, but is
25 not limited to, three or more claims within the previous
26 5-year period which resulted in indemnity being paid, or any
27 single indemnity paid in excess of $25,000 $5,000 in a
28 judgment or settlement, as a result of negligent conduct on
29 the part of the dentist.
30 Section 39. Subsection (2) of section 624.462, Florida
31 Statutes, is amended to read:
70
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 624.462 Commercial self-insurance funds.--
2 (2) As used in ss. 624.460-624.488, "commercial
3 self-insurance fund" or "fund" means a group of members,
4 operating individually and collectively through a trust or
5 corporation, that must be:
6 (a) Established by:
7 1. A not-for-profit trade association, industry
8 association, or professional association of employers or
9 professionals which has a constitution or bylaws, which is
10 incorporated under the laws of this state, and which has been
11 organized for purposes other than that of obtaining or
12 providing insurance and operated in good faith for a
13 continuous period of 1 year;
14 2. A self-insurance trust fund organized pursuant to
15 s. 627.357 and maintained in good faith for a continuous
16 period of 1 year for purposes other than that of obtaining or
17 providing insurance pursuant to this section. Each member of
18 a commercial self-insurance trust fund established pursuant to
19 this subsection must maintain membership in the self-insurance
20 trust fund organized pursuant to s. 627.357; or
21 3. A group of 10 or more health care providers, as
22 defined in s. 627.351(4)(h); or
23 4.3. A not-for-profit group comprised of no less than
24 10 condominium associations as defined in s. 718.103(2), which
25 is incorporated under the laws of this state, which restricts
26 its membership to condominium associations only, and which has
27 been organized and maintained in good faith for a continuous
28 period of 1 year for purposes other than that of obtaining or
29 providing insurance.
30 (b)1. In the case of funds established pursuant to
31 subparagraph (a)2. or subparagraph (a)4. subparagraph (a)3.,
71
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 operated pursuant to a trust agreement by a board of trustees
2 which shall have complete fiscal control over the fund and
3 which shall be responsible for all operations of the fund.
4 The majority of the trustees shall be owners, partners,
5 officers, directors, or employees of one or more members of
6 the fund. The trustees shall have the authority to approve
7 applications of members for participation in the fund and to
8 contract with an authorized administrator or servicing company
9 to administer the day-to-day affairs of the fund.
10 2. In the case of funds established pursuant to
11 subparagraph (a)1. or subparagraph (a)3., operated pursuant to
12 a trust agreement by a board of trustees or as a corporation
13 by a board of directors which board shall:
14 a. Be responsible to members of the fund or
15 beneficiaries of the trust or policyholders of the
16 corporation;
17 b. Appoint independent certified public accountants,
18 legal counsel, actuaries, and investment advisers as needed;
19 c. Approve payment of dividends to members;
20 d. Approve changes in corporate structure; and
21 e. Have the authority to contract with an
22 administrator authorized under s. 626.88 to administer the
23 day-to-day affairs of the fund including, but not limited to,
24 marketing, underwriting, billing, collection, claims
25 administration, safety and loss prevention, reinsurance,
26 policy issuance, accounting, regulatory reporting, and general
27 administration. The fees or compensation for services under
28 such contract shall be comparable to the costs for similar
29 services incurred by insurers writing the same lines of
30 insurance, or where available such expenses as filed by
31 boards, bureaus, and associations designated by insurers to
72
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 file such data. A majority of the trustees or directors shall
2 be owners, partners, officers, directors, or employees of one
3 or more members of the fund.
4 Section 40. Paragraph (a) of subsection (6) of section
5 627.062, Florida Statutes, is amended, and subsection (7) is
6 added to that section, to read:
7 627.062 Rate standards.--
8 (6)(a) After any action with respect to a rate filing
9 that constitutes agency action for purposes of the
10 Administrative Procedure Act, except for a rate filing for
11 medical malpractice, an insurer may, in lieu of demanding a
12 hearing under s. 120.57, require arbitration of the rate
13 filing. Arbitration shall be conducted by a board of
14 arbitrators consisting of an arbitrator selected by the
15 department, an arbitrator selected by the insurer, and an
16 arbitrator selected jointly by the other two arbitrators. Each
17 arbitrator must be certified by the American Arbitration
18 Association. A decision is valid only upon the affirmative
19 vote of at least two of the arbitrators. No arbitrator may be
20 an employee of any insurance regulator or regulatory body or
21 of any insurer, regardless of whether or not the employing
22 insurer does business in this state. The department and the
23 insurer must treat the decision of the arbitrators as the
24 final approval of a rate filing. Costs of arbitration shall be
25 paid by the insurer.
26 (7)(a) The provisions of this subsection apply only
27 with respect to rates for medical malpractice insurance and
28 shall control to the extent of any conflict with other
29 provisions of this section.
30 (b) Any portion of a judgment entered or settlement
31 paid as a result of a statutory or common-law, bad-faith
73
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 action and any portion of a judgment entered which awards
2 punitive damages against an insurer may not be included in the
3 insurer's rate base, and shall not be used to justify a rate
4 or rate change. Any common-law bad-faith action identified as
5 such and any portion of a settlement entered as a result of a
6 statutory or portion of a settlement wherein an insurer agrees
7 to pay specific punitive damages may not be used to justify a
8 rate or rate change. The portion of the taxable costs and
9 attorney's fees which is identified as being related to the
10 bad faith and punitive damages in these judgments and
11 settlements may not be included in the insurer's rate base and
12 may not be utilized to justify a rate or rate change.
13 (c) Upon reviewing a rate filing and determining
14 whether the rate is excessive, inadequate, or unfairly
15 discriminatory, the Office of Insurance Regulation shall
16 consider, in accordance with generally accepted and reasonable
17 actuarial techniques, past and present prospective loss
18 experience, either using loss experience solely for this state
19 or giving greater credibility to this state's loss data.
20 (d) Rates shall be deemed excessive if, among other
21 standards established by this section, the rate structure
22 provides for replenishment of reserves or surpluses from
23 premiums when the replenishment is attributable to investment
24 losses.
25 (e) The insurer must apply a discount or surcharge
26 based on the health care provider's loss experience, or shall
27 establish an alternative method giving due consideration to
28 the provider's loss experience. The insurer must include in
29 the filing a copy of the surcharge or discount schedule or a
30 description of the alternative method used, and must provide a
31 copy of such schedule or description, as approved by the
74
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 office, to policyholders at the time of renewal and to
2 prospective policyholders at the time of application for
3 coverage.
4 Section 41. Subsections (1) and (2) of section
5 627.0645, Florida Statutes, are amended to read:
6 627.0645 Annual filings.--
7 (1) Each rating organization filing rates for, and
8 each insurer writing, any line of property or casualty
9 insurance to which this part applies, except:
10 (a) Workers' compensation and employer's liability
11 insurance; or
12 (b) Commercial property and casualty insurance as
13 defined in s. 627.0625(1) other than commercial multiple line,
14 and commercial motor vehicle, and medical malpractice,
15
16 shall make an annual base rate filing for each such line with
17 the department no later than 12 months after its previous base
18 rate filing, demonstrating that its rates are not inadequate.
19 (2)(a) Deviations, except for medical malpractice,
20 filed by an insurer to any rating organization's base rate
21 filing are not subject to this section.
22 (b) The department, after receiving a request to be
23 exempted from the provisions of this section, may, for good
24 cause due to insignificant numbers of policies in force or
25 insignificant premium volume, exempt a company, by line of
26 coverage, from filing rates or rate certification as required
27 by this section.
28 Section 42. The Office of Program Policy Analysis and
29 Government Accountability shall complete a study of the
30 eligibility requirements for a birth to be covered under the
31 Florida Birth-Related Neurological Injury Compensation
75
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Association and submit a report to the Legislature by January
2 1, 2004, recommending whether or not the statutory criteria
3 for a claim to qualify for referral to the Florida
4 Birth-Related Neurological Injury Compensation Association
5 under section 766.302, Florida Statutes, should be modified.
6 Section 43. Section 627.0662, Florida Statutes, is
7 created to read:
8 627.0662 Excessive profits for medical liability
9 insurance prohibited.--
10 (1) As used in this section, the term:
11 (a) "Medical liability insurance" means insurance that
12 is written on a professional liability insurance policy issued
13 to a health care practitioner or on a liability insurance
14 policy covering medical malpractice claims issued to a health
15 care facility.
16 (b) "Medical liability insurer" means any insurance
17 company or group of insurance companies writing medical
18 liability insurance in this state and does not include any
19 self-insurance fund or other nonprofit entity writing such
20 insurance.
21 (2) Each medical liability insurer shall file with the
22 Office of Insurance Regulation, prior to July 1 of each year
23 on forms adopted by the Financial Services Commission, the
24 following data for medical liability insurance business in
25 this state. The data shall include both voluntary and joint
26 underwriting association business, as follows:
27 (a) Calendar-year earned premium.
28 (b) Accident-year incurred losses and loss adjustment
29 expenses.
30
31
76
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (c) The administrative and selling expenses incurred
2 in this state or allocated to this state for the calendar
3 year.
4 (d) Policyholder dividends incurred during the
5 applicable calendar year.
6 (3)(a) Excessive profit has been realized if there has
7 been an underwriting gain for the 10 most recent
8 calendar-accident years combined which is greater than the
9 anticipated underwriting profit plus 5 percent of earned
10 premiums for those calendar-accident years.
11 (b) As used in this subsection with respect to any
12 10-year period, the term "anticipated underwriting profit"
13 means the sum of the dollar amounts obtained by multiplying,
14 for each rate filing of the insurer group in effect during
15 such period, the earned premiums applicable to such rate
16 filing during such period by the percentage factor included in
17 such rate filing for profit and contingencies, such percentage
18 factor having been determined with due recognition to
19 investment income from funds generated by business in this
20 state. Separate calculations need not be made for consecutive
21 rate filings containing the same percentage factor for profits
22 and contingencies.
23 (4) Each medical liability insurer shall also file a
24 schedule of medical liability insurance loss in this state and
25 loss adjustment experience for each of the 10 most recent
26 accident years. The incurred losses and loss adjustment
27 expenses shall be valued as of March 31 of the year following
28 the close of the accident year, developed to an ultimate
29 basis, and at nine 12-month intervals thereafter, each
30 developed to an ultimate basis, to the extent that a total of
31 three evaluations is provided for each accident year. The
77
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 first year to be so reported shall be accident year 2004, such
2 that the reporting of 10 accident years will not take place
3 until accident years 2012 and 2013 have become available.
4 (5) Each insurer group's underwriting gain or loss for
5 each calendar-accident year shall be computed as follows: the
6 sum of the accident-year incurred losses and loss adjustment
7 expenses as of March 31 of the following year, developed to an
8 ultimate basis, plus the administrative and selling expenses
9 incurred in the calendar year, plus policyholder dividends
10 applicable to the calendar year, shall be subtracted from the
11 calendar-year earned premium to determine the underwriting
12 gain or loss.
13 (6) For the 10 most recent calendar-accident years,
14 the underwriting gain or loss shall be compared to the
15 anticipated underwriting profit.
16 (7) If the medical liability insurer has realized an
17 excessive profit, the office shall order a return of the
18 excessive amounts to policyholders after affording the insurer
19 an opportunity for hearing and otherwise complying with the
20 requirements of chapter 120. Such excessive amounts shall be
21 refunded to policyholders in all instances unless the insurer
22 affirmatively demonstrates to the office that the refund of
23 the excessive amounts will render the insurer or a member of
24 the insurer group financially impaired or will render it
25 insolvent.
26 (8) The excessive amount shall be refunded to
27 policyholders on a pro rata basis in relation to the final
28 compilation year earned premiums to the voluntary medical
29 liability insurance policyholders of record of the insurer
30 group on December 31 of the final compilation year.
31
78
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (9) Any return of excessive profits to policyholders
2 under this section shall be provided in the form of a cash
3 refund or a credit towards the future purchase of insurance.
4 (10)(a) Cash refunds to policyholders may be rounded
5 to the nearest dollar.
6 (b) Data in required reports to the office may be
7 rounded to the nearest dollar.
8 (c) Rounding, if elected by the insurer group, shall
9 be applied consistently.
10 (11)(a) Refunds to policyholders shall be completed as
11 follows:
12 1. If the insurer elects to make a cash refund, the
13 refund shall be completed within 60 days after entry of a
14 final order determining that excessive profits have been
15 realized; or
16 2. If the insurer elects to make refunds in the form
17 of a credit to renewal policies, such credits shall be applied
18 to policy renewal premium notices which are forwarded to
19 insureds more than 60 calendar days after entry of a final
20 order determining that excessive profits have been realized.
21 If an insurer has made this election but an insured thereafter
22 cancels his or her policy or otherwise allows the policy to
23 terminate, the insurer group shall make a cash refund not
24 later than 60 days after termination of such coverage.
25 (b) Upon completion of the renewal credits or refund
26 payments, the insurer shall immediately certify to the office
27 that the refunds have been made.
28 (12) Any refund or renewal credit made pursuant to
29 this section shall be treated as a policyholder dividend
30 applicable to the year in which it is incurred, for purposes
31 of reporting under this section for subsequent years.
79
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Section 44. Subsection (10) of section 627.357,
2 Florida Statutes, is amended to read:
3 627.357 Medical malpractice self-insurance.--
4 (10)(a) An application to form a self-insurance fund
5 under this section must be filed with the Office of Insurance
6 Regulation A self-insurance fund may not be formed under this
7 section after October 1, 1992.
8 (b) The Financial Services Commission must ensure that
9 self-insurance funds remain solvent and provide insurance
10 coverage purchased by participants. The Financial Services
11 Commission may adopt rules pursuant to ss. 120.536(1) and
12 120.54 to implement this section.
13 Section 45. Effective October 1, 2003, section
14 627.4147, Florida Statutes, is amended to read:
15 627.4147 Medical malpractice insurance contracts.--
16 (1) In addition to any other requirements imposed by
17 law, each self-insurance policy as authorized under s. 627.357
18 or insurance policy providing coverage for claims arising out
19 of the rendering of, or the failure to render, medical care or
20 services, including those of the Florida Medical Malpractice
21 Joint Underwriting Association, shall include:
22 (a) A clause requiring the insured to cooperate fully
23 in the review process prescribed under s. 766.106 if a notice
24 of intent to file a claim for medical malpractice is made
25 against the insured.
26 (b)1. Except as provided in subparagraph 2., a clause
27 authorizing the insurer or self-insurer to determine, to make,
28 and to conclude, without the permission of the insured, any
29 offer of admission of liability and for arbitration pursuant
30 to s. 766.106, settlement offer, or offer of judgment, if the
31 offer is within the policy limits. It is against public policy
80
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 for any insurance or self-insurance policy to contain a clause
2 giving the insured the exclusive right to veto any offer for
3 admission of liability and for arbitration made pursuant to s.
4 766.106, settlement offer, or offer of judgment, when such
5 offer is within the policy limits. However, any offer of
6 admission of liability, settlement offer, or offer of judgment
7 made by an insurer or self-insurer shall be made in good faith
8 and in the best interests of the insured.
9 2.a. With respect to physicians licensed under chapter
10 458 or chapter 459 or dentists licensed under chapter 466, a
11 clause clearly stating whether or not the insured has the
12 exclusive right to veto any offer of admission of liability
13 and for arbitration pursuant to s. 766.106, settlement offer,
14 or offer of judgment if the offer is within policy limits. An
15 insurer or self-insurer shall not make or conclude, without
16 the permission of the insured, any offer of admission of
17 liability and for arbitration pursuant to s. 766.106,
18 settlement offer, or offer of judgment, if such offer is
19 outside the policy limits. However, any offer for admission of
20 liability and for arbitration made under s. 766.106,
21 settlement offer, or offer of judgment made by an insurer or
22 self-insurer shall be made in good faith and in the best
23 interest of the insured.
24 b. If the policy contains a clause stating the insured
25 does not have the exclusive right to veto any offer or
26 admission of liability and for arbitration made pursuant to s.
27 766.106, settlement offer or offer of judgment, the insurer or
28 self-insurer shall provide to the insured or the insured's
29 legal representative by certified mail, return receipt
30 requested, a copy of the final offer of admission of liability
31 and for arbitration made pursuant to s. 766.106, settlement
81
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 offer or offer of judgment and at the same time such offer is
2 provided to the claimant. A copy of any final agreement
3 reached between the insurer and claimant shall also be
4 provided to the insurer or his or her legal representative by
5 certified mail, return receipt requested not more than 10 days
6 after affecting such agreement.
7 c. Physicians licensed under chapter 458 or chapter
8 459 and dentists licensed under chapter 466 may purchase an
9 insurance policy pursuant to this subparagraph if such
10 policies are available. Insurers may offer such policies,
11 notwithstanding any other provision of law to the contrary.
12 (c) A clause requiring the insurer or self-insurer to
13 notify the insured no less than 90 60 days prior to the
14 effective date of cancellation of the policy or contract and,
15 in the event of a determination by the insurer or self-insurer
16 not to renew the policy or contract, to notify the insured no
17 less than 90 60 days prior to the end of the policy or
18 contract period. If cancellation or nonrenewal is due to
19 nonpayment or loss of license, 10 days' notice is required.
20 (d) A clause requiring the insurer or self-insurer to
21 notify the insured no less than 60 days prior to the effective
22 date of a rate increase. The provisions of s. 627.4133 shall
23 apply to such notice and to the failure of the insurer to
24 provide such notice to the extent not in conflict with this
25 section.
26 (2) Each insurer covered by this section may require
27 the insured to be a member in good standing, i.e., not subject
28 to expulsion or suspension, of a duly recognized state or
29 local professional society of health care providers which
30 maintains a medical review committee. No professional society
31 shall expel or suspend a member solely because he or she
82
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 participates in a health maintenance organization licensed
2 under part I of chapter 641.
3 (3) This section shall apply to all policies issued or
4 renewed after October 1, 2003 1985.
5 Section 46. Section 627.41491, Florida Statutes, is
6 created to read:
7 627.41491 Medical malpractice rate comparison.--The
8 Office of Insurance Regulation shall annually publish a
9 comparison of the rate in effect for each medical malpractice
10 insurer and self-insurer and the Florida Medical Malpractice
11 Joint Underwriting Association. Such rate comparison shall be
12 made available to the public through the Internet and other
13 commonly used means of distribution no later than July 1 of
14 each year.
15 Section 47. Section 627.41492, Florida Statutes, is
16 created to read:
17 627.41492 Annual medical malpractice report.--The
18 Office of Insurance Regulation shall prepare an annual report
19 by October 1 of each year, which shall be available to the
20 public and posted on the Internet, which includes the
21 following information:
22 (1) A summary and analysis of the closed claim
23 information required to be reported pursuant to s. 627.912.
24 (2) A summary and analysis of the annual and quarterly
25 financial reports filed by each insurer writing medical
26 malpractice insurance in this state.
27 Section 48. Section 627.41493, Florida Statutes, is
28 created to read:
29 627.41493 Insurance rate rollback.--
30 (1) For medical malpractice insurance policies issued
31 or renewed on or after July 1, 2003, and before July 1, 2004,
83
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 every insurer, including the Florida Medical Malpractice Joint
2 Underwriting Association, shall reduce its rates and premiums
3 to levels that were in effect on January 1, 2002.
4 (2) For medical malpractice insurance policies issued
5 or renewed on or after July 1, 2003, and before July 1, 2004,
6 rates and premiums reduced pursuant to subsection (1) may only
7 be increased if the director of the Office of Insurance
8 Regulation finds that the rate reduced pursuant to subsection
9 (1) would result in an inadequate rate. Any such increase must
10 be approved by the director of the Office of Insurance
11 Regulation prior to being used.
12 (3) The provisions of this section control to the
13 extent of any conflict with the provision of s. 627.062.
14 Section 49. If, as of July 1, 2004, the director of
15 the Office of Insurance Regulation determines that the rates
16 of the medical malpractice insurers with a combined market
17 share of 50 percent or greater, as measured by net written
18 premiums in this state for medical malpractice for the most
19 recent calendar year, have been reduced to the level in effect
20 on January 1, 2002, but have not remained at that level for
21 the previous year beginning July 1, 2003, or that such medical
22 malpractice insurers have proposed increases from the January
23 1, 2002, level which are greater than 15 percent for either of
24 the next 2 years beginning July 1, 2004, then the Florida
25 Medical Malpractice Insurance Fund established by this act
26 shall begin offering coverage.
27 Section 50. Florida Medical Malpractice Insurance
28 Fund.--
29 (1) FINDINGS AND PURPOSES.--The Legislature finds and
30 declares that there is a compelling state interest in
31 maintaining the availability and affordability of health care
84
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 services to the citizens of Florida. This state interest is
2 seriously threatened by the increased cost and decreased
3 availability of medical malpractice insurance to physicians.
4 To the extent that the private sector is unable to maintain a
5 viable and orderly market for medical malpractice insurance,
6 state actions to maintain the availability and affordability
7 of medical malpractice insurance are a valid and necessary
8 exercise of the police power.
9 (2) DEFINITIONS.--As used in this section, the term:
10 (a) "Fund" means the Florida Medical Malpractice
11 Insurance Fund, as created pursuant to this section.
12 (b) "Physician" means a physician licensed under
13 chapter 458 or chapter 459, Florida Statutes.
14 (3) FLORIDA MEDICAL MALPRACTICE INSURANCE FUND
15 CREATED.--Effective October 1, 2003, there is created the
16 Florida Medical Malpractice Insurance Fund, which shall be
17 subject to the requirements of this section. However, the fund
18 shall not begin providing or offering coverage until the date
19 the director of the Office of Insurance Regulation determines
20 that the rates of the medical malpractice insurers with a
21 combined market share of 50 percent or greater, as measured by
22 net written premium in this state for medical malpractice for
23 the most recent calendar year, have been reduced to the level
24 in effect on January 1, 2002, but have not remained at that
25 level for the previous year beginning July 1, 2003, or that
26 such medical malpractice insurers have proposed increases from
27 the January 1, 2002, level which are greater than 15 percent
28 for either of the next 2 years beginning July 1, 2004.
29 (a) The fund shall be administered by a board of
30 governors consisting of seven members who are appointed as
31 follows:
85
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 1. Three members by the Governor;
2 2. Three members by the Chief Financial Officer; and
3 3. One member by the other six board members.
4
5 Board members shall serve at the pleasure of the appointing
6 authority. Two board members must be physicians licensed in
7 this state and the Governor and the Chief Financial Officer
8 shall each appoint one of these physicians.
9 (b) The board shall submit a plan of operation, which
10 must be approved by the Office of Insurance Regulation of the
11 Financial Services Commission. The plan of operation and other
12 actions of the board shall not be considered rules subject to
13 the requirements of chapter 120, Florida Statutes.
14 (c) Except as otherwise provided by this section, the
15 fund shall be subject to the requirements of state law which
16 apply to authorized insurers.
17 (d) Moneys in the fund may not be expended, loaned, or
18 appropriated except to pay obligations of the fund arising out
19 of medical malpractice insurance policies issued to physicians
20 and the costs of administering the fund, including the
21 purchase of reinsurance as the board deems prudent. The board
22 shall enter into an agreement with the State Board of
23 Administration, which shall invest one-third of the moneys in
24 the fund pursuant to sections 215.44-215.52, Florida Statutes.
25 The board shall enter into an agreement with the Division of
26 Treasury of the Department of Financial Services, which shall
27 invest two-thirds of the moneys in the fund pursuant to the
28 requirements for the investment of state funds in chapter 17,
29 Florida Statutes. Earnings from all investments shall be
30 retained in the fund, except as otherwise provided in this
31 section.
86
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (e) The fund may employ or contract with such staff
2 and professionals as the board deems necessary for the
3 administration of the fund.
4 (f) There shall be no liability on the part of any
5 member of the board, its agents, or any employee of the state
6 for any action taken by them in the performance of their
7 powers and duties under this section. Such immunity does not
8 apply to any willful tort or to breach of any contract or
9 agreement.
10 (g) The fund is not a member insurer of the Florida
11 Insurance Guaranty Association established pursuant to part II
12 of chapter 631, Florida Statutes. The fund is not subject to
13 sections 624.407, 624.408, 624.4095, and 624.411, Florida
14 Statutes.
15 (4) MEDICAL MALPRACTICE INSURANCE POLICIES.--The board
16 must offer medical malpractice insurance to any physician,
17 regardless of his or her specialty, but may adopt underwriting
18 requirements, as specified in its plan of operation. The fund
19 shall offer limits of coverage of $250,000 per claim/$500,000
20 annual aggregate; $500,000 per claim/$1 million annual
21 aggregate; and $1 million per claim/$2 million annual
22 aggregate. The fund shall also allow policyholders to select
23 from policies with deductibles of $100,000, $200,000, and
24 $250,000; excess coverage limits of $250,000 per claim and
25 $750,000 annual aggregate; $1 million per claim and $3 million
26 annual aggregate; or $2 million and $4 million annual
27 aggregate. The fund shall offer such other limits as specified
28 in its plan of operation.
29 (5) PREMIUM RATES.--The premium rates for coverage
30 offered by the fund must be actuarially sound and shall be
31
87
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 subject to the same requirements that apply to authorized
2 insurers issuing medical malpractice insurance, except that:
3 (a) The rates shall not include any factor for
4 profits; and
5 (b) The anticipated future investment income of the
6 fund, as projected in its rate filing, must be approximately
7 equal to the actual investment income that the fund has
8 earned, on average, for the prior 7 years. For those years of
9 the prior 7 years during which the fund was not in operation,
10 the anticipated future investment income must be approximately
11 equal to the actual average investment income earned by the
12 State Board of Administration for the moneys available for
13 investment under sections 215.44-215.53, Florida Statutes, and
14 the average annual investment income earned by the Division of
15 Treasury of the Department of Financial Services for the
16 investment of state funds under chapter 17, Florida Statutes,
17 in the same proportion as specified in paragraph (3)(d).
18 (6) TAX EXEMPTION.--The fund shall be a political
19 subdivision of the state and is exempt from the corporate
20 income tax under chapter 220, Florida Statutes, and the
21 premiums shall not be subject to the premium tax imposed by
22 section 624.509, Florida Statutes. It is also the intent of
23 the Legislature that the fund be exempt from federal income
24 taxation. The Financial Services Commission and the fund shall
25 seek an opinion from the Internal Revenue Service as to the
26 tax-exempt status of the fund and shall make such
27 recommendations to the Legislature as the board deems
28 necessary to obtain tax-exempt status.
29 (7) INITIAL CAPITALIZATION.--The fund shall enter into
30 an agreement with the Florida Birth-Related Neurological
31 Injury Compensation (NICA) Fund for a loan of $100 million to
88
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the fund to occur when the fund is established. Repayment of
2 the loan by the fund shall be in five equal annual payments,
3 each made no later than December 31, commencing during the
4 fourth year of operation of the fund after the fund begins to
5 offer medical malpractice insurance. Interest shall accrue on
6 the outstanding amount of the loan at an annual rate equal to
7 the annual rate of investment income earned by the NICA Fund.
8 The moneys loaned to the fund pursuant to this subsection
9 shall be considered admitted assets of the fund for purposes
10 of chapter 625, Florida Statutes.
11 (8) RULES.--The Financial Services Commission may
12 adopt rules to implement and administer the provisions of this
13 section.
14 (9) REVERSION OF FUND ASSETS UPON TERMINATION.--The
15 fund and the duties of the board under this section shall
16 stand repealed on a date 10 years after the date the Florida
17 Medical Malpractice Insurance Fund begins offering coverage
18 pursuant to this section, unless reviewed and saved from
19 repeal through reenactment by the Legislature. Upon
20 termination of the fund, all assets of the fund shall revert
21 to the General Revenue Fund.
22 Section 51. (1) Notwithstanding any law to the
23 contrary, if the Florida Medical Malpractice Insurance Fund
24 begins offering coverage as provided in this act, all
25 physicians licensed under chapter 458 or chapter 459, Florida
26 Statutes, as a condition of licensure shall be required to
27 maintain financial responsibility by obtaining and maintaining
28 professional liability coverage in an amount not less than
29 $250,000 per claim, with a minimum annual aggregate of not
30 less than $500,000, from an authorized insurer as defined
31 under section 624.09, Florida Statutes, from a surplus lines
89
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 insurer as defined under section 626.914(2), Florida Statutes,
2 from a risk retention group as defined under section 627.942,
3 Florida Statutes, from the Joint Underwriting Association
4 established under section 627.351(4), Florida Statutes, or
5 through a plan of self-insurance as provided in section
6 627.357 or section 624.462, Florida Statutes, or from the
7 Florida Medical Malpractice Insurance Fund.
8 (2) Physicians and osteopathic physicians who are
9 exempt from the financial responsibility requirements under
10 section 458.320(5)(a),(b),(c),(d),(e) and (f) and section
11 459.0085(5)(a),(b),(c),(d),(e), and (f), Florida Statutes,
12 shall not be subject to the requirements of this section.
13 Section 52. Section 627.41495, Florida Statutes, is
14 created to read:
15 627.41495 Public hearings for medical malpractice rate
16 filings.--
17 (1) Upon the filing of a proposed rate change by a
18 medical malpractice insurer or self-insurance fund, which
19 filing would result in an average statewide increase of 25
20 percent, or more, pursuant to standards determined by the
21 office, the insurer or self-insurance fund shall mail notice
22 of such filing to each of its policyholders or members. The
23 notices shall also inform the policyholders and members that a
24 public hearing may be requested on the rate filing and the
25 procedures for requesting a public hearing, as established by
26 rule, by the Financial Services Commission.
27 (2) The rate filing shall be available for public
28 inspection. If any policyholder or member of an insurer or
29 self-insurance fund that makes a rate filing described in
30 subsection (1) requests the Office of Insurance Regulation to
31 hold a hearing within 30 days after the mailing of the
90
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 notification of the proposed rate changes to the insureds, the
2 office shall hold a hearing within 30 days after such request.
3 Any policyholder or member may participate in such hearing.
4 The commission shall adopt rules implementing the provisions
5 of this section.
6 Section 53. (1) The Office of Insurance Regulation
7 shall order insurers to make a rate filing effective January
8 1, 2004, for medical malpractice which reduces rates by a
9 presumed factor that reflects the impact the changes contained
10 in all medical malpractice legislation enacted by the Florida
11 Legislature in 2003 will have on such rates, as determined by
12 the Office of Insurance Regulation. In determining the
13 presumed factor, the office shall use generally accepted
14 actuarial techniques and standards provided in section
15 627.062, Florida Statutes, in determining the expected impact
16 on losses, expenses, and investment income of the insurer.
17 Inclusion in the presumed factor of the expected impact of
18 such legislation shall be held in abeyance during the review
19 of such measure's validity in any proceeding by a court of
20 competent jurisdiction.
21 (2) Any insurer or rating organization that contends
22 that the rate provided for in subsection (1) is excessive,
23 inadequate, or unfairly discriminatory shall separately state
24 in its filing the rate it contends is appropriate and shall
25 state with specificity the factors or data that it contends
26 should be considered in order to produce such appropriate
27 rate. The insurer or rating organization shall be permitted to
28 use all of the generally accepted actuarial techniques, as
29 provided in section 627.062, Florida Statutes, in making any
30 filing pursuant to this subsection. The Office of Insurance
31 Regulation shall review each such exception and approve or
91
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 disapprove it prior to use. It shall be the insurer's burden
2 to actuarially justify any deviations from the rates filed
3 under subsection (1). Each insurer or rating organization
4 shall include in the filing the expected impact of all
5 malpractice legislation enacted by the Florida Legislature in
6 2003 on losses, expenses, and rates. If any provision of this
7 act is held invalid by a court of competent jurisdiction, the
8 office shall permit an adjustment of all rates filed under
9 this section to reflect the impact of such holding on such
10 rates, so as to ensure that the rates are not excessive,
11 inadequate, or unfairly discriminatory.
12 Section 54. Subsections (1), (2), and (4) of section
13 627.912, Florida Statutes, are amended to read:
14 627.912 Professional liability claims and actions;
15 reports by insurers.--
16 (1) Each self-insurer authorized under s. 627.357 and
17 each insurer or joint underwriting association providing
18 professional liability insurance to a practitioner of medicine
19 licensed under chapter 458, to a practitioner of osteopathic
20 medicine licensed under chapter 459, to a podiatric physician
21 licensed under chapter 461, to a dentist licensed under
22 chapter 466, to a hospital licensed under chapter 395, to a
23 crisis stabilization unit licensed under part IV of chapter
24 394, to a health maintenance organization certificated under
25 part I of chapter 641, to clinics included in chapter 390, to
26 an ambulatory surgical center as defined in s. 395.002, or to
27 a member of The Florida Bar shall report in duplicate to the
28 Department of Insurance any claim or action for damages for
29 personal injuries claimed to have been caused by error,
30 omission, or negligence in the performance of such insured's
31 professional services or based on a claimed performance of
92
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 professional services without consent, if the claim resulted
2 in:
3 (a) A final judgment in any amount.
4 (b) A settlement in any amount.
5
6 Reports shall be filed with the department. and, If the
7 insured party is licensed under chapter 458, chapter 459, or
8 chapter 461, and the final judgment or settlement amount was
9 $50,000 or more, or if the insured party is licensed under
10 chapter 466 and the final judgment or settlement amount was
11 $25,000 or more, the report shall be filed or chapter 466,
12 with the Department of Health, no later than 30 days following
13 the occurrence of any event listed in paragraph (a) or
14 paragraph (b). The Department of Health shall review each
15 report and determine whether any of the incidents that
16 resulted in the claim potentially involved conduct by the
17 licensee that is subject to disciplinary action, in which case
18 the provisions of s. 456.073 shall apply. The Department of
19 Health, as part of the annual report required by s. 456.026,
20 shall publish annual statistics, without identifying
21 licensees, on the reports it receives, including final action
22 taken on such reports by the Department of Health or the
23 appropriate regulatory board.
24 (2) The reports required by subsection (1) shall
25 contain:
26 (a) The name, address, and specialty coverage of the
27 insured.
28 (b) The insured's policy number.
29 (c) The date of the occurrence which created the
30 claim.
31
93
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (d) The date the claim was reported to the insurer or
2 self-insurer.
3 (e) The name and address of the injured person. This
4 information is confidential and exempt from the provisions of
5 s. 119.07(1), and must not be disclosed by the department
6 without the injured person's consent, except for disclosure by
7 the department to the Department of Health. This information
8 may be used by the department for purposes of identifying
9 multiple or duplicate claims arising out of the same
10 occurrence.
11 (f) The date of suit, if filed.
12 (g) The injured person's age and sex.
13 (h) The total number and names of all defendants
14 involved in the claim.
15 (i) The date and amount of judgment or settlement, if
16 any, including the itemization of the verdict, together with a
17 copy of the settlement or judgment.
18 (j) In the case of a settlement, such information as
19 the department may require with regard to the injured person's
20 incurred and anticipated medical expense, wage loss, and other
21 expenses.
22 (k) The loss adjustment expense paid to defense
23 counsel, and all other allocated loss adjustment expense paid.
24 (l) The date and reason for final disposition, if no
25 judgment or settlement.
26 (m) A summary of the occurrence which created the
27 claim, which shall include:
28 1. The name of the institution, if any, and the
29 location within the institution at which the injury occurred.
30 2. The final diagnosis for which treatment was sought
31 or rendered, including the patient's actual condition.
94
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 3. A description of the misdiagnosis made, if any, of
2 the patient's actual condition.
3 4. The operation, diagnostic, or treatment procedure
4 causing the injury.
5 5. A description of the principal injury giving rise
6 to the claim.
7 6. The safety management steps that have been taken by
8 the insured to make similar occurrences or injuries less
9 likely in the future.
10 (n) Any other information required by the office
11 department to analyze and evaluate the nature, causes,
12 location, cost, and damages involved in professional liability
13 cases. The Financial Services Commission shall adopt by rule
14 requirements for additional information to assist the office
15 in its analysis and evaluation of the nature, causes,
16 location, cost, and damages involved in professional liability
17 cases reported by insurers under this section.
18 (4) There shall be no liability on the part of, and no
19 cause of action of any nature shall arise against, any insurer
20 reporting hereunder or its agents or employees or the
21 department or its employees for any action taken by them under
22 this section. The department shall may impose a fine of $250
23 per day per case, but not to exceed a total of $10,000 $1,000
24 per case, against an insurer that violates the requirements of
25 this section. This subsection applies to claims accruing on or
26 after October 1, 1997.
27 Section 55. Section 627.9121, Florida Statutes, is
28 created to read:
29 627.9121 Required reporting of claims;
30 penalties.--Each entity that makes payment under a policy of
31 insurance, self-insurance, or otherwise in settlement or
95
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 partial settlement of, or in satisfaction of a judgment in, a
2 medical malpractice action or claim that is required to report
3 information to the National Practitioner Data Bank under 42
4 U.S.C. section 11131 must also report the same information to
5 the Office of Insurance Regulation. The Office of Insurance
6 Regulation shall include such information in the data that it
7 compiles under s. 627.912. The office must compile and review
8 the data collected pursuant to this section and must assess an
9 administrative fine on any entity that fails to fully comply
10 with the requirements imposed by law.
11 Section 56. Section 766.102, Florida Statutes, is
12 amended to read:
13 766.102 Medical negligence; standards of recovery;
14 expert witness.--
15 (1) In any action for recovery of damages based on the
16 death or personal injury of any person in which it is alleged
17 that such death or injury resulted from the negligence of a
18 health care provider as defined in s. 768.50(2)(b), the
19 claimant shall have the burden of proving by the greater
20 weight of evidence that the alleged actions of the health care
21 provider represented a breach of the prevailing professional
22 standard of care for that health care provider. The
23 prevailing professional standard of care for a given health
24 care provider shall be that level of care, skill, and
25 treatment which, in light of all relevant surrounding
26 circumstances, is recognized as acceptable and appropriate by
27 reasonably prudent similar health care providers.
28 (2)(a) If the health care provider whose negligence is
29 claimed to have created the cause of action is not certified
30 by the appropriate American board as being a specialist, is
31 not trained and experienced in a medical specialty, or does
96
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 not hold himself or herself out as a specialist, a "similar
2 health care provider" is one who:
3 1. Is licensed by the appropriate regulatory agency of
4 this state;
5 2. Is trained and experienced in the same discipline
6 or school of practice; and
7 3. Practices in the same or similar medical community.
8 (b) If the health care provider whose negligence is
9 claimed to have created the cause of action is certified by
10 the appropriate American board as a specialist, is trained and
11 experienced in a medical specialty, or holds himself or
12 herself out as a specialist, a "similar health care provider"
13 is one who:
14 1. Is trained and experienced in the same specialty;
15 and
16 2. Is certified by the appropriate American board in
17 the same specialty.
18
19 However, if any health care provider described in this
20 paragraph is providing treatment or diagnosis for a condition
21 which is not within his or her specialty, a specialist trained
22 in the treatment or diagnosis for that condition shall be
23 considered a "similar health care provider."
24 (c) The purpose of this subsection is to establish a
25 relative standard of care for various categories and
26 classifications of health care providers. Any health care
27 provider may testify as an expert in any action if he or she:
28 1. Is a similar health care provider pursuant to
29 paragraph (a) or paragraph (b); or
30 2. Is not a similar health care provider pursuant to
31 paragraph (a) or paragraph (b) but, to the satisfaction of the
97
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 court, possesses sufficient training, experience, and
2 knowledge as a result of practice or teaching in the specialty
3 of the defendant or practice or teaching in a related field of
4 medicine, so as to be able to provide such expert testimony as
5 to the prevailing professional standard of care in a given
6 field of medicine. Such training, experience, or knowledge
7 must be as a result of the active involvement in the practice
8 or teaching of medicine within the 5-year period before the
9 incident giving rise to the claim.
10 (2)(3)(a) If the injury is claimed to have resulted
11 from the negligent affirmative medical intervention of the
12 health care provider, the claimant must, in order to prove a
13 breach of the prevailing professional standard of care, show
14 that the injury was not within the necessary or reasonably
15 foreseeable results of the surgical, medicinal, or diagnostic
16 procedure constituting the medical intervention, if the
17 intervention from which the injury is alleged to have resulted
18 was carried out in accordance with the prevailing professional
19 standard of care by a reasonably prudent similar health care
20 provider.
21 (b) The provisions of this subsection shall apply only
22 when the medical intervention was undertaken with the informed
23 consent of the patient in compliance with the provisions of s.
24 766.103.
25 (3)(4) The existence of a medical injury shall not
26 create any inference or presumption of negligence against a
27 health care provider, and the claimant must maintain the
28 burden of proving that an injury was proximately caused by a
29 breach of the prevailing professional standard of care by the
30 health care provider. However, the discovery of the presence
31 of a foreign body, such as a sponge, clamp, forceps, surgical
98
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 needle, or other paraphernalia commonly used in surgical,
2 examination, or diagnostic procedures, shall be prima facie
3 evidence of negligence on the part of the health care
4 provider.
5 (4)(5) The Legislature is cognizant of the changing
6 trends and techniques for the delivery of health care in this
7 state and the discretion that is inherent in the diagnosis,
8 care, and treatment of patients by different health care
9 providers. The failure of a health care provider to order,
10 perform, or administer supplemental diagnostic tests shall not
11 be actionable if the health care provider acted in good faith
12 and with due regard for the prevailing professional standard
13 of care.
14 (5) A person may not give expert testimony concerning
15 the prevailing professional standard of care unless that
16 person is a licensed health care provider and meets the
17 following criteria:
18 (a) If the party against whom or on whose behalf the
19 testimony is offered is a specialist, the expert witness must:
20 1. Specialize in the same specialty as the party
21 against whom or on whose behalf the testimony is offered; or
22 2. Specialize in a similar speciality that includes
23 the evaluation, diagnosis, or treatment of the medical
24 condition that is the subject of the claim and have prior
25 experience treating similar patients.
26 (b) Have devoted professional time during the 3 years
27 immediately preceding the date of the occurrence that is the
28 basis for the action to:
29 1. The active clinical practice of, or consulting with
30 respect to, the same or similar health profession as the
31 health care provider against whom or on whose behalf the
99
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 testimony is offered and, if that health care provider is a
2 specialist, the active clinical practice of, or consulting
3 with respect to, the same or similar specialty that includes
4 the evaluation, diagnosis, or treatment of the medical
5 condition that is the subject of the claim and have prior
6 experience treating similar patients;
7 2. The instruction of students in an accredited health
8 professional school or accredited residency program in the
9 same or similar health profession in which the health care
10 provider against whom or on whose behalf the testimony is
11 offered and, if that health care provider is a specialist, an
12 accredited health professional school or accredited residency
13 or clinical research program in the same or similar specialty;
14 or
15 3. A clinical research program that is affiliated with
16 an accredited medical school or teaching hospital and that is
17 in the same or similar health profession as the health care
18 provider against whom or on whose behalf the testimony is
19 offered and, if that health care provider is a specialist, a
20 clinical research program that is affiliated with an
21 accredited health professional school or accredited residency
22 or clinical research program in the same or similar specialty.
23 (c) If the party against whom or on whose behalf the
24 testimony is offered is a general practitioner, the expert
25 witness must have devoted professional time during the 5 years
26 immediately preceding the date of the occurrence that is the
27 basis for the action to:
28 1. Active clinical practice or consultation as a
29 general practitioner;
30
31
100
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 2. Instruction of students in an accredited health
2 professional school or accredited residency program in the
3 general practice of medicine; 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 general practice of medicine.
7 (6) A physician licensed under chapter 458 or chapter
8 459 who qualifies as an expert witness under subsection (5)
9 and who, by reason of active clinical practice or instruction
10 of students, has knowledge of the applicable standard of care
11 for nurses, nurse practitioners, certified registered nurse
12 anesthetists, certified registered nurse midwives, physician
13 assistants, or other medical support staff may give expert
14 testimony in a medical malpractice action with respect to the
15 standard of care of such medical support staff.
16 (7) Notwithstanding subsection (5), in a medical
17 malpractice action against a hospital, a health care facility,
18 or medical facility, a person may give expert testimony on the
19 appropriate standard of care as to administrative and other
20 nonclinical issues if the person has substantial knowledge, by
21 virtue of his or her training and experience, concerning the
22 standard of care among hospitals, health care facilities, or
23 medical facilities of the same type as the hospital, health
24 care facility, or medical facility whose acts or omissions are
25 the subject of the testimony and which are located in the same
26 or similar communities at the time of the alleged act giving
27 rise to the cause of action.
28 (8) If a health care provider described in subsection
29 (5), subsection (6), or subsection (7) is providing
30 evaluation, treatment, or diagnosis for a condition that is
31 not within his or her specialty, a specialist trained in the
101
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 evaluation, treatment, or diagnosis for that condition shall
2 be considered a similar health care provider.
3 (9)(6)(a) In any action for damages involving a claim
4 of negligence against a physician licensed under chapter 458,
5 osteopathic physician licensed under chapter 459, podiatric
6 physician licensed under chapter 461, or chiropractic
7 physician licensed under chapter 460 providing emergency
8 medical services in a hospital emergency department, the court
9 shall admit expert medical testimony only from physicians,
10 osteopathic physicians, podiatric physicians, and chiropractic
11 physicians who have had substantial professional experience
12 within the preceding 5 years while assigned to provide
13 emergency medical services in a hospital emergency department.
14 (b) For the purposes of this subsection:
15 1. The term "emergency medical services" means those
16 medical services required for the immediate diagnosis and
17 treatment of medical conditions which, if not immediately
18 diagnosed and treated, could lead to serious physical or
19 mental disability or death.
20 2. "Substantial professional experience" shall be
21 determined by the custom and practice of the manner in which
22 emergency medical coverage is provided in hospital emergency
23 departments in the same or similar localities where the
24 alleged negligence occurred.
25 (10) In any action alleging medical malpractice, an
26 expert witness may not testify on a contingency fee basis.
27 (11) Any attorney who proffers a person as an expert
28 witness pursuant to this section must certify that such person
29 has not been found guilty of fraud or perjury in any
30 jurisdiction.
31
102
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (12) This section does not limit the power of the
2 trial court to disqualify or qualify an expert witness on
3 grounds other than the qualifications in this section.
4 Section 57. Effective July 1, 2003, and applicable to
5 any action arising from a medical malpractice claim initiated
6 by a notice of intent to litigate received by a potential
7 defendant in a medical malpractice case on or after that date,
8 present subsections (5) through (12) of section 766.106,
9 Florida Statutes, are redesignated as subsections (6) through
10 (13), respectively, and a new subsection (5) is added to that
11 section, to read:
12 766.106 Notice before filing action for medical
13 malpractice; presuit screening period; offers for admission of
14 liability and for arbitration; informal discovery; review.--
15 (5)(a) With regard to insurance company bad-faith
16 causes of action arising out of medical malpractice claims,
17 the action shall be brought pursuant to common law and not
18 pursuant to s. 624.155.
19 (b) An insurer shall not be held to have acted in bad
20 faith for failure to timely pay its policy limits if it
21 tenders its policy limits and meets the reasonable conditions
22 of settlement prior to the conclusion of the presuit screening
23 period provided for in subsection (4); during an extension
24 provided for therein; during a period of 120 days thereafter;
25 or during a 60-day period after the filing of an amended
26 medical malpractice complaint alleging new facts previously
27 unknown to the insurer.
28 (c) It is the intent of the Legislature to encourage
29 all insurers, insureds, and their assigns and legal
30 representatives to act in good faith during a medical
31
103
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 negligence action, both during the presuit period and the
2 litigation.
3 Section 58. Effective October 1, 2003, and applicable
4 to notices of intent to litigate sent on or after that date,
5 subsection (2), paragraphs (a) and (b) of subsection (3), and
6 subsection (7) of section 766.106, Florida Statutes, as
7 amended by this act, are amended, and subsection (13) is added
8 to that section, to read:
9 766.106 Notice before filing action for medical
10 malpractice; presuit screening period; offers for admission of
11 liability and for arbitration; informal discovery; review.--
12 (2)(a) After completion of presuit investigation
13 pursuant to s. 766.203 and prior to filing a claim for medical
14 malpractice, a claimant shall notify each prospective
15 defendant by certified mail, return receipt requested, of
16 intent to initiate litigation for medical malpractice. Notice
17 to each prospective defendant must include, if available, a
18 list of all known health care providers seen by the claimant
19 for the injuries complained of subsequent to the alleged act
20 of malpractice, all known health care providers during the
21 2-year period prior to the alleged act of malpractice who
22 treated or evaluated the claimant, and copies of all of the
23 medical records relied upon by the expert in signing the
24 affidavit. The requirement of providing the list of known
25 health care providers may not serve as grounds for imposing
26 sanctions for failure to provide presuit discovery.
27 (b) Following the initiation of a suit alleging
28 medical malpractice with a court of competent jurisdiction,
29 and service of the complaint upon a defendant, the claimant
30 shall provide a copy of the complaint to the Department of
31 Health and, if the complaint involves a facility licensed
104
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 under chapter 395, the Agency for Health Care Administration.
2 The requirement of providing the complaint to the Department
3 of Health or the Agency for Health Care Administration does
4 not impair the claimant's legal rights or ability to seek
5 relief for his or her claim. The Department of Health or the
6 Agency for Health Care Administration shall review each
7 incident that is the subject of the complaint and determine
8 whether it involved conduct by a licensee which is potentially
9 subject to disciplinary action, in which case, for a licensed
10 health care practitioner, the provisions of s. 456.073 apply,
11 and for a licensed facility, the provisions of part I of
12 chapter 395 apply.
13 (3)(a) No suit may be filed for a period of 90 days
14 after notice is mailed to any prospective defendant. During
15 the 90-day period, the prospective defendant's insurer or
16 self-insurer shall conduct a review to determine the liability
17 of the defendant. Each insurer or self-insurer shall have a
18 procedure for the prompt investigation, review, and evaluation
19 of claims during the 90-day period. This procedure shall
20 include one or more of the following:
21 1. Internal review by a duly qualified claims
22 adjuster;
23 2. Creation of a panel comprised of an attorney
24 knowledgeable in the prosecution or defense of medical
25 malpractice actions, a health care provider trained in the
26 same or similar medical specialty as the prospective
27 defendant, and a duly qualified claims adjuster;
28 3. A contractual agreement with a state or local
29 professional society of health care providers, which maintains
30 a medical review committee;
31
105
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 4. Any other similar procedure which fairly and
2 promptly evaluates the pending claim.
3
4 Each insurer or self-insurer shall investigate the claim in
5 good faith, and both the claimant and prospective defendant
6 shall cooperate with the insurer in good faith. If the
7 insurer requires, a claimant shall appear before a pretrial
8 screening panel or before a medical review committee and shall
9 submit to a physical examination, if required. Unreasonable
10 failure of any party to comply with this section justifies
11 dismissal of claims or defenses. There shall be no civil
12 liability for participation in a pretrial screening procedure
13 if done without intentional fraud.
14 (b) At or before the end of the 90 days, the insurer
15 or self-insurer shall provide the claimant with a response:
16 1. Rejecting the claim;
17 2. Making a settlement offer; or
18 3. Making an offer to arbitrate in which liability is
19 deemed admitted and arbitration will be held only of admission
20 of liability and for arbitration on the issue of damages.
21 This offer may be made contingent upon a limit of general
22 damages.
23 (7) Informal discovery may be used by a party to
24 obtain unsworn statements, the production of documents or
25 things, and physical and mental examinations, as follows:
26 (a) Unsworn statements.--Any party may require other
27 parties to appear for the taking of an unsworn statement. Such
28 statements may be used only for the purpose of presuit
29 screening and are not discoverable or admissible in any civil
30 action for any purpose by any party. A party desiring to take
31 the unsworn statement of any party must give reasonable notice
106
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 in writing to all parties. The notice must state the time and
2 place for taking the statement and the name and address of the
3 party to be examined. Unless otherwise impractical, the
4 examination of any party must be done at the same time by all
5 other parties. Any party may be represented by counsel at the
6 taking of an unsworn statement. An unsworn statement may be
7 recorded electronically, stenographically, or on videotape.
8 The taking of unsworn statements is subject to the provisions
9 of the Florida Rules of Civil Procedure and may be terminated
10 for abuses.
11 (b) Documents or things.--Any party may request
12 discovery of documents or things. The documents or things
13 must be produced, at the expense of the requesting party,
14 within 20 days after the date of receipt of the request. A
15 party is required to produce discoverable documents or things
16 within that party's possession or control.
17 (c) Physical and mental examinations.--A prospective
18 defendant may require an injured prospective claimant to
19 appear for examination by an appropriate health care provider.
20 The defendant shall give reasonable notice in writing to all
21 parties as to the time and place for examination. Unless
22 otherwise impractical, a prospective claimant is required to
23 submit to only one examination on behalf of all potential
24 defendants. The practicality of a single examination must be
25 determined by the nature of the potential claimant's
26 condition, as it relates to the liability of each potential
27 defendant. Such examination report is available to the parties
28 and their attorneys upon payment of the reasonable cost of
29 reproduction and may be used only for the purpose of presuit
30 screening. Otherwise, such examination report is confidential
31
107
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 and exempt from the provisions of s. 119.07(1) and s. 24(a),
2 Art. I of the State Constitution.
3 (d) Written questions.--Any party may request answers
4 to written questions, which may not exceed 30, including
5 subparts. A response must be made within 20 days after receipt
6 of the questions.
7 (e) Informal discovery.--It is the intent of the
8 Legislature that informal discovery may be conducted pursuant
9 to this subsection by any party without notice to any other
10 party.
11 (13) The claimant must execute a medical information
12 release that allows a defendant or his or her legal
13 representative to obtain unsworn statements of the claimant's
14 treating physicians, which statements must be limited to those
15 areas that are potentially relevant to the claim of personal
16 injury or wrongful death.
17 Section 59. Section 766.108, Florida Statutes, is
18 amended to read:
19 766.108 Mandatory mediation and mandatory settlement
20 conference in medical malpractice actions.--
21 (1) Within 120 days after suit for medical malpractice
22 is filed, the parties shall engage in mandatory mediation in
23 accordance with s. 44.102, if the parties have not agreed to
24 binding arbitration under s. 766.207. The Florida Rules of
25 Civil Procedure apply to mediation held pursuant to this
26 section.
27 (2)(a)(1) In any action for damages based on personal
28 injury or wrongful death arising out of medical malpractice,
29 whether in tort or contract, the court shall require a
30 settlement conference at least 3 weeks before the date set for
31 trial.
108
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (b)(2) Attorneys who will conduct the trial, parties,
2 and persons with authority to settle shall attend the
3 settlement conference held before the court unless excused by
4 the court for good cause.
5 Section 60. Subsections (3), (4), (5), (6), (7), (8),
6 and (9) are added to section 766.110, Florida Statutes, to
7 read:
8 766.110 Liability of health care facilities.--
9 (3) Members of the medical staff of a hospital
10 licensed under chapter 395 and any professional group
11 comprised of such persons shall be immune from liability for
12 all damages in excess of $100,000 per incident arising from
13 medical injuries to patients resulting from negligent acts or
14 omissions of such medical staff members in the performance of
15 emergency medical services pursuant to s. 768.13(2), and no
16 member of the medical staff of a hospital and no professional
17 group comprised of such persons shall be liable to pay any
18 damages in excess of $100,000 to any person or persons for any
19 single incident of medical negligence that causes injuries to
20 a patient or patients in the performance of emergency medical
21 services.
22 (4) Subject to the limitations set forth in subsection
23 (5), every hospital licensed under chapter 395 shall assume
24 liability for all damages in excess of $100,000 per incident
25 arising from medical injuries to patients resulting from
26 negligent acts or omissions on the part of members of its
27 medical staff in the performance of emergency medical services
28 pursuant to s. 768.13(2). For the purposes of this section, a
29 health care provider does not include a licensed health care
30 practitioner who is providing emergency services to a person
31
109
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 with whom the practitioner has an established provider-patient
2 relationship outside of the emergency room setting.
3 (5) No person or persons may recover damages from a
4 hospital licensed under chapter 395, or its insurer, in excess
5 of $2.5 million per incident arising from medical injuries to
6 a patient or patients caused by negligent acts or omissions on
7 the part of the hospital or members of the hospital's medical
8 staff in the performance of emergency medical services
9 pursuant to s. 768.13(2), and no hospital or hospital insurer
10 shall be liable to pay any claim or judgment in an amount in
11 excess of $2.5 million for a single incident of medical
12 negligence on the part of the hospital or members of the
13 hospital's medical staff that causes injuries to a patient or
14 patients in the performance of emergency medical services.
15 (6) Because of the overriding public necessity for
16 hospitals to provide trauma care and emergency medical
17 services to the public at large, the state assumes
18 responsibility for payment of reasonable compensation to
19 persons who are barred from recovery of certain damages due to
20 subsection (5). Application for payment of such damages shall
21 commence with the filing of a claims bill. The Legislature
22 shall process a claims bill for compensation under this
23 subsection in the same manner as a claims bill that seeks
24 compensation for damages barred from recovery under the
25 doctrine of sovereign immunity.
26 (7) No attorney may charge, demand, receive, or
27 collect, for services rendered, fees in excess of 25 percent
28 of any amount awarded by the Legislature pursuant to
29 subsection (6).
30 (8) Nothing in this section constitutes a waiver of
31 sovereign immunity under s. 768.28, nor shall this section
110
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 impair the immunities currently recognized for public
2 hospitals or teaching hospitals as defined in s. 408.07.
3 Section 61. Subsections (3), (5), (7), and (8) of
4 section 766.202, Florida Statutes, are amended to read:
5 766.202 Definitions; ss. 766.201-766.212.--As used in
6 ss. 766.201-766.212, the term:
7 (3) "Economic damages" means financial losses that
8 which would not have occurred but for the injury giving rise
9 to the cause of action, including, but not limited to, past
10 and future medical expenses and 80 percent of wage loss and
11 loss of earning capacity, to the extent the claimant is
12 entitled to recover such damages under general law, including
13 the Wrongful Death Act.
14 (5) "Medical expert" means a person duly and regularly
15 engaged in the practice of his or her profession who holds a
16 health care professional degree from a university or college
17 and who meets the requirements of an expert witness as set
18 forth in s. 766.102 has had special professional training and
19 experience or one possessed of special health care knowledge
20 or skill about the subject upon which he or she is called to
21 testify or provide an opinion.
22 (7) "Noneconomic damages" means nonfinancial losses
23 which would not have occurred but for the injury giving rise
24 to the cause of action, including pain and suffering,
25 inconvenience, physical impairment, mental anguish,
26 disfigurement, loss of capacity for enjoyment of life, and
27 other nonfinancial losses, to the extent the claimant is
28 entitled to recover such damages under general law, including
29 the Wrongful Death Act.
30
31
111
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (8) "Periodic payment" means provision for the
2 structuring of future economic damages payments, in whole or
3 in part, over a period of time, as follows:
4 (a) A specific finding of the dollar amount of
5 periodic payments which will compensate for these future
6 damages after offset for collateral sources shall be made.
7 The total dollar amount of the periodic payments shall equal
8 the dollar amount of all such future damages before any
9 reduction to present value.
10 (b) The defendant shall be required to post a bond or
11 security or otherwise to assure full payment of these damages
12 awarded. A bond is not adequate unless it is written by a
13 company authorized to do business in this state and is rated
14 A+ by Best's. If the defendant is unable to adequately assure
15 full payment of the damages, all damages, reduced to present
16 value, shall be paid to the claimant in a lump sum. No bond
17 may be canceled or be subject to cancellation unless at least
18 60 days' advance written notice is filed with the court and
19 the claimant. Upon termination of periodic payments, the
20 security, or so much as remains, shall be returned to the
21 defendant.
22 (c) The provision for payment of future damages by
23 periodic payments shall specify the recipient or recipients of
24 the payments, the dollar amounts of the payments, the interval
25 between payments, and the number of payments or the period of
26 time over which payments shall be made.
27 (d) Any portion of the periodic payment which is
28 attributable to medical expenses that have not yet been
29 incurred shall terminate upon the death of the claimant. Any
30 outstanding medical expenses incurred prior to the death of
31
112
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the claimant shall be paid from that portion of the periodic
2 payment attributable to medical expenses.
3 Section 62. Effective July 1, 2003, and applicable to
4 all causes of action accruing on or after that date, section
5 766.206, Florida Statutes, is amended to read:
6 766.206 Presuit investigation of medical negligence
7 claims and defenses by court.--
8 (1) After the completion of presuit investigation by
9 the parties pursuant to s. 766.203 and any informal discovery
10 pursuant to s. 766.106, any party may file a motion in the
11 circuit court requesting the court to determine whether the
12 opposing party's claim or denial rests on a reasonable basis.
13 (2) If the court finds that the notice of intent to
14 initiate litigation mailed by the claimant is not in
15 compliance with the reasonable investigation requirements of
16 ss. 766.201-766.212, including a review of the claim and a
17 verified written medical expert opinion by an expert witness
18 as defined in s. 766.202, the court shall dismiss the claim,
19 and the person who mailed such notice of intent, whether the
20 claimant or the claimant's attorney, shall be personally
21 liable for all attorney's fees and costs incurred during the
22 investigation and evaluation of the claim, including the
23 reasonable attorney's fees and costs of the defendant or the
24 defendant's insurer.
25 (3) If the court finds that the response mailed by a
26 defendant rejecting the claim is not in compliance with the
27 reasonable investigation requirements of ss. 766.201-766.212,
28 including a review of the claim and a verified written medical
29 expert opinion by an expert witness as defined in s. 766.202,
30 the court shall strike the defendant's pleading. response, and
31 The person who mailed such response, whether the defendant,
113
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the defendant's insurer, or the defendant's attorney, shall be
2 personally liable for all attorney's fees and costs incurred
3 during the investigation and evaluation of the claim,
4 including the reasonable attorney's fees and costs of the
5 claimant.
6 (4) If the court finds that an attorney for the
7 claimant mailed notice of intent to initiate litigation
8 without reasonable investigation, or filed a medical
9 negligence claim without first mailing such notice of intent
10 which complies with the reasonable investigation requirements,
11 or if the court finds that an attorney for a defendant mailed
12 a response rejecting the claim without reasonable
13 investigation, the court shall submit its finding in the
14 matter to The Florida Bar for disciplinary review of the
15 attorney. Any attorney so reported three or more times within
16 a 5-year period shall be reported to a circuit grievance
17 committee acting under the jurisdiction of the Supreme Court.
18 If such committee finds probable cause to believe that an
19 attorney has violated this section, such committee shall
20 forward to the Supreme Court a copy of its finding.
21 (5)(a) If the court finds that the corroborating
22 written medical expert opinion attached to any notice of claim
23 or intent or to any response rejecting a claim lacked
24 reasonable investigation, or that the medical expert
25 submitting the opinion did not meet the expert witness
26 qualifications as set forth in s. 766.202(5), the court shall
27 report the medical expert issuing such corroborating opinion
28 to the Division of Medical Quality Assurance or its designee.
29 If such medical expert is not a resident of the state, the
30 division shall forward such report to the disciplining
31 authority of that medical expert.
114
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (b) The court shall may refuse to consider the
2 testimony or opinion attached to any notice of intent or to
3 any response rejecting a claim of such an expert who has been
4 disqualified three times pursuant to this section.
5 Section 63. Subsection (7) of section 766.207, Florida
6 Statutes, is amended to read:
7 766.207 Voluntary binding arbitration of medical
8 negligence claims.--
9 (7) Arbitration pursuant to this section shall
10 preclude recourse to any other remedy by the claimant against
11 any participating defendant, and shall be undertaken with the
12 understanding that damages shall be awarded as provided by
13 general law, including the Wrongful Death Act, subject to the
14 following limitations:
15 (a) Net economic damages shall be awardable,
16 including, but not limited to, past and future medical
17 expenses and 80 percent of wage loss and loss of earning
18 capacity, offset by any collateral source payments.
19 (b) Noneconomic damages shall be limited to a maximum
20 of $250,000 per incident, and shall be calculated on a
21 percentage basis with respect to capacity to enjoy life, so
22 that a finding that the claimant's injuries resulted in a
23 50-percent reduction in his or her capacity to enjoy life
24 would warrant an award of not more than $125,000 noneconomic
25 damages.
26 (c) Damages for future economic losses shall be
27 awarded to be paid by periodic payments pursuant to s.
28 766.202(8) and shall be offset by future collateral source
29 payments.
30 (d) Punitive damages shall not be awarded.
31
115
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (e) The defendant shall be responsible for the payment
2 of interest on all accrued damages with respect to which
3 interest would be awarded at trial.
4 (f) The defendant shall pay the claimant's reasonable
5 attorney's fees and costs, as determined by the arbitration
6 panel, but in no event more than 15 percent of the award,
7 reduced to present value.
8 (g) The defendant shall pay all the costs of the
9 arbitration proceeding and the fees of all the arbitrators
10 other than the administrative law judge.
11 (h) Each defendant who submits to arbitration under
12 this section shall be jointly and severally liable for all
13 damages assessed pursuant to this section.
14 (i) The defendant's obligation to pay the claimant's
15 damages shall be for the purpose of arbitration under this
16 section only. A defendant's or claimant's offer to arbitrate
17 shall not be used in evidence or in argument during any
18 subsequent litigation of the claim following the rejection
19 thereof.
20 (j) The fact of making or accepting an offer to
21 arbitrate shall not be admissible as evidence of liability in
22 any collateral or subsequent proceeding on the claim.
23 (k) Any offer by a claimant to arbitrate must be made
24 to each defendant against whom the claimant has made a claim.
25 Any offer by a defendant to arbitrate must be made to each
26 claimant who has joined in the notice of intent to initiate
27 litigation, as provided in s. 766.106. A defendant who
28 rejects a claimant's offer to arbitrate shall be subject to
29 the provisions of s. 766.209(3). A claimant who rejects a
30 defendant's offer to arbitrate shall be subject to the
31 provisions of s. 766.209(4).
116
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 (l) The hearing shall be conducted by all of the
2 arbitrators, but a majority may determine any question of fact
3 and render a final decision. The chief arbitrator shall
4 decide all evidentiary matters.
5
6 The provisions of this subsection shall not preclude
7 settlement at any time by mutual agreement of the parties.
8 Section 64. Subsection (4) is added to section
9 768.041, Florida Statutes, to read:
10 768.041 Release or covenant not to sue.--
11 (4)(a) At trial pursuant to a suit filed under chapter
12 766, or at trial pursuant to s. 766.209, if any defendant
13 shows the court that the plaintiff, or his or her legal
14 representative, has delivered a written release or covenant
15 not to sue to any person in partial satisfaction of the
16 damages sued for, the court shall set off this amount from the
17 total amount of the damages set forth in the verdict and
18 before entry of the final judgment.
19 (b) The amount of the setoff pursuant to this
20 subsection shall include all sums received by the plaintiff,
21 including economic and noneconomic damages, costs, and
22 attorney's fees.
23 Section 65. Legislative findings and intent.--The
24 Legislature finds and declares it to be of vital importance
25 that emergency services and care be provided by hospitals,
26 physicians, and emergency medical services providers to every
27 person in need of such care. The Legislature finds that
28 emergency services and care providers are critical elements in
29 responding to disaster and emergency situations that might
30 affect our local communities, state, and country. The
31 Legislature recognizes the importance of maintaining a viable
117
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 system of providing for the emergency medical needs of the
2 state's residents and visitors. The Legislature and the
3 Federal Government have required such providers of emergency
4 medical services and care to provide emergency services and
5 care to all persons who present to hospitals seeking such
6 care. The Legislature finds that the Legislature has further
7 mandated that prehospital emergency medical treatment or
8 transport may not be denied by emergency medical services
9 providers to persons who have or are likely to have an
10 emergency medical condition. Such governmental requirements
11 have imposed a unilateral obligation for emergency services
12 and care providers to provide services to all persons seeking
13 emergency care without ensuring payment or other consideration
14 for provision of such care. The Legislature also recognizes
15 that emergency services and care providers provide a
16 significant amount of uncompensated emergency medical care in
17 furtherance of such governmental interest. The Legislature
18 finds that a significant proportion of the residents of this
19 state who are uninsured or are Medicaid or Medicare recipients
20 are unable to access needed health care because health care
21 providers fear the increased risk of medical malpractice
22 liability. The Legislature finds that such patients, in order
23 to obtain medical care, are frequently forced to seek care
24 through providers of emergency medical services and care. The
25 Legislature finds that providers of emergency medical services
26 and care in this state have reported significant problems with
27 both the availability and affordability of professional
28 liability coverage. The Legislature finds that medical
29 malpractice liability insurance premiums have increased
30 dramatically, and a number of insurers have ceased providing
31 medical malpractice insurance coverage for emergency medical
118
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 services and care in this state. This results in a functional
2 unavailability of medical malpractice insurance coverage for
3 some providers of emergency medical services and care. The
4 Legislature further finds that certain specialist physicians
5 have resigned from serving on hospital staffs or have
6 otherwise declined to provide on-call coverage to hospital
7 emergency departments due to increased medical malpractice
8 liability exposure created by treating such emergency
9 department patients. It is the intent of the Legislature that
10 hospitals, emergency medical services providers, and
11 physicians be able to ensure that patients who might need
12 emergency medical services treatment or transportation or who
13 present to hospitals for emergency medical services and care
14 have access to such needed services.
15 Section 66. Subsection (2) of section 768.13, Florida
16 Statutes, is amended to read:
17 768.13 Good Samaritan Act; immunity from civil
18 liability.--
19 (2)(a) Any person, including those licensed to
20 practice medicine, who gratuitously and in good faith renders
21 emergency care or treatment either in direct response to
22 emergency situations related to and arising out of a public
23 health emergency declared pursuant to s. 381.00315, a state of
24 emergency which has been declared pursuant to s. 252.36 or at
25 the scene of an emergency outside of a hospital, doctor's
26 office, or other place having proper medical equipment,
27 without objection of the injured victim or victims thereof,
28 shall not be held liable for any civil damages as a result of
29 such care or treatment or as a result of any act or failure to
30 act in providing or arranging further medical treatment where
31
119
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 the person acts as an ordinary reasonably prudent person would
2 have acted under the same or similar circumstances.
3 (b)1. Any health care provider, including a hospital
4 licensed under chapter 395, providing emergency services
5 pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s.
6 395.401, or s. 401.45 any employee of such hospital working in
7 a clinical area within the facility and providing patient
8 care, and any person licensed to practice medicine who in good
9 faith renders medical care or treatment necessitated by a
10 sudden, unexpected situation or occurrence resulting in a
11 serious medical condition demanding immediate medical
12 attention, for which the patient enters the hospital through
13 its emergency room or trauma center, or necessitated by a
14 public health emergency declared pursuant to s. 381.00315
15 shall not be held liable for any civil damages as a result of
16 such medical care or treatment unless such damages result from
17 providing, or failing to provide, medical care or treatment
18 under circumstances demonstrating a reckless disregard for the
19 consequences so as to affect the life or health of another. A
20 health care provider under this paragraph does not include a
21 licensed health care practitioner who is providing emergency
22 services to a person with whom the practitioner has an
23 established provider-patient relationship outside of the
24 emergency room setting.
25 2. The immunity provided by this paragraph applies
26 does not apply to damages as a result of any act or omission
27 of providing medical care or treatment, including diagnosis:
28 a. Which occurs prior to the time after the patient is
29 stabilized and is capable of receiving medical treatment as a
30 nonemergency patient, unless surgery is required as a result
31 of the emergency within a reasonable time after the patient is
120
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 stabilized, in which case the immunity provided by this
2 paragraph applies to any act or omission of providing medical
3 care or treatment which occurs prior to the stabilization of
4 the patient following the surgery; and or
5 b. Related Unrelated to the original medical
6 emergency.
7 3. For purposes of this paragraph, "reckless
8 disregard" as it applies to a given health care provider
9 rendering emergency medical services shall be such conduct
10 that which a health care provider knew or should have known,
11 at the time such services were rendered, created an
12 unreasonable risk of injury so as to affect the life or health
13 of another, and such risk was substantially greater than that
14 which is necessary to make the conduct negligent. would be
15 likely to result in injury so as to affect the life or health
16 of another, taking into account the following to the extent
17 they may be present;
18 a. The extent or serious nature of the circumstances
19 prevailing.
20 b. The lack of time or ability to obtain appropriate
21 consultation.
22 c. The lack of a prior patient-physician relationship.
23 d. The inability to obtain an appropriate medical
24 history of the patient.
25 e. The time constraints imposed by coexisting
26 emergencies.
27 4. Every emergency care facility granted immunity
28 under this paragraph shall accept and treat all emergency care
29 patients within the operational capacity of such facility
30 without regard to ability to pay, including patients
31 transferred from another emergency care facility or other
121
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 health care provider pursuant to Pub. L. No. 99-272, s. 9121.
2 The failure of an emergency care facility to comply with this
3 subparagraph constitutes grounds for the department to
4 initiate disciplinary action against the facility pursuant to
5 chapter 395.
6 (c)1. Any health care practitioner as defined in s.
7 456.001(4) who is in a hospital attending to a patient of his
8 or her practice or for business or personal reasons unrelated
9 to direct patient care, and who voluntarily responds to
10 provide care or treatment to a patient with whom at that time
11 the practitioner does not have a then-existing health care
12 patient-physician relationship, and when such care or
13 treatment is necessitated by a sudden or unexpected situation
14 or by an occurrence that demands immediate medical attention,
15 shall not be held liable for any civil damages as a result of
16 any act or omission relative to that care or treatment, unless
17 that care or treatment is proven to amount to conduct that is
18 willful and wanton and would likely result in injury so as to
19 affect the life or health of another.
20 2. The immunity provided by this paragraph does not
21 apply to damages as a result of any act or omission of
22 providing medical care or treatment unrelated to the original
23 situation that demanded immediate medical attention.
24 3. For purposes of this paragraph, the Legislature's
25 intent is to encourage health care practitioners to provide
26 necessary emergency care to all persons without fear of
27 litigation as described in this paragraph.
28 (c) Any person who is licensed to practice medicine,
29 while acting as a staff member or with professional clinical
30 privileges at a nonprofit medical facility, other than a
31 hospital licensed under chapter 395, or while performing
122
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 health screening services, shall not be held liable for any
2 civil damages as a result of care or treatment provided
3 gratuitously in such capacity as a result of any act or
4 failure to act in such capacity in providing or arranging
5 further medical treatment, if such person acts as a reasonably
6 prudent person licensed to practice medicine would have acted
7 under the same or similar circumstances.
8 Section 67. Section 768.77, Florida Statutes, is
9 amended to read:
10 768.77 Itemized verdict.--
11 (1) Except as provided in subsection (2), in any
12 action to which this part applies in which the trier of fact
13 determines that liability exists on the part of the defendant,
14 the trier of fact shall, as a part of the verdict, itemize the
15 amounts to be awarded to the claimant into the following
16 categories of damages:
17 (a)(1) Amounts intended to compensate the claimant for
18 economic losses;
19 (b)(2) Amounts intended to compensate the claimant for
20 noneconomic losses; and
21 (c)(3) Amounts awarded to the claimant for punitive
22 damages, if applicable.
23 (2) In any action for damages based on personal injury
24 or wrongful death arising out of medical malpractice, whether
25 in tort or contract, to which this part applies in which the
26 trier of fact determines that liability exists on the part of
27 the defendant, the trier of fact shall, as a part of the
28 verdict, itemize the amounts to be awarded to the claimant
29 into the following categories of damages:
30 (a) Amounts intended to compensate the claimant for:
31 1. Past economic losses; and
123
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 2. Future economic losses, not reduced to present
2 value, and the number of years or part thereof which the award
3 is intended to cover;
4 (b) Amounts intended to compensate the claimant for:
5 1. Past noneconomic losses; and
6 2. Future noneconomic losses and the number of years
7 or part thereof which the award is intended to cover; and
8 (c) Amounts awarded to the claimant for punitive
9 damages, if applicable.
10 Section 68. Subsection (5) of section 768.81, Florida
11 Statutes, is amended to read:
12 768.81 Comparative fault.--
13 (5) Notwithstanding any provision of anything in law
14 to the contrary, in an action for damages for personal injury
15 or wrongful death arising out of medical malpractice, whether
16 in contract or tort, the trier of fact shall apportion the
17 total fault only among the claimant and all the joint
18 tortfeasors who are parties to the action when the case is
19 submitted to the jury for deliberation and rendition of the
20 verdict when an apportionment of damages pursuant to this
21 section is attributed to a teaching hospital as defined in s.
22 408.07, the court shall enter judgment against the teaching
23 hospital on the basis of such party's percentage of fault and
24 not on the basis of the doctrine of joint and several
25 liability.
26 Section 69. The Office of Program Policy Analysis and
27 Government Accountability and the Office of the Auditor
28 General must jointly conduct an audit of the Department of
29 Health's health care practitioner disciplinary process and
30 closed claims that are filed with the department under section
31 627.912, Florida Statutes. The Office of Program Policy
124
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Analysis and Government Accountability and the Office of the
2 Auditor General shall submit a report to the Legislature by
3 January 1, 2004.
4 Section 70. Section 1004.08, Florida Statutes, is
5 created to read:
6 1004.08 Patient safety instructional
7 requirements.--Each public school, college, and university
8 that offers degrees in medicine, nursing, or allied health
9 shall include in the curricula applicable to such degrees
10 material on patient safety, including patient safety
11 improvement. Materials shall include, but need not be limited
12 to, effective communication and teamwork; epidemiology of
13 patient injuries and medical errors; medical injuries;
14 vigilance, attention and fatigue; checklists and inspections;
15 automation, technological, and computer support; psychological
16 factors in human error; and reporting systems.
17 Section 71. Section 1005.07, Florida Statutes, is
18 created to read:
19 1005.07 Patient safety instructional
20 requirements.--Each private school, college, and university
21 that offers degrees in medicine, nursing, and allied health
22 shall include in the curricula applicable to such degrees
23 material on patient safety, including patient safety
24 improvement. Materials shall include, but need not be limited
25 to, effective communication and teamwork; epidemiology of
26 patient injuries and medical errors; medical injuries;
27 vigilance, attention and fatigue; checklists and inspections;
28 automation, technological, and computer support; psychological
29 factors in human error; and reporting systems.
30 Section 72. No later than September 1, 2003, the
31 Department of Health shall convene a workgroup to study the
125
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 current healthcare practitioner disciplinary process. The
2 workgroup shall include a representative of the Administrative
3 Law section of The Florida Bar, a representative of the Health
4 Law section of The Florida Bar, a representative of the
5 Florida Medical Association, a representative of the Florida
6 Osteopathic Medical Association, a representative of the
7 Florida Dental Association, a member of the Florida Board of
8 Medicine who has served on the probable cause panel, a member
9 of the Board of Osteopathic Medicine who has served on the
10 probable cause panel, and a member of the Board of Dentistry
11 who has served on the probable cause panel. The workgroup
12 shall also include one consumer member of the Board of
13 Medicine. The Department of Health shall present the findings
14 and recommendations to the Governor, the President of the
15 Senate, and the Speaker of the House of Representatives no
16 later than January 1, 2004. The sponsoring organizations shall
17 assume the costs of their representative.
18 Section 73. The sum of $687,786 is appropriated from
19 the Medical Quality Assurance Trust Fund to the Department of
20 Health, and seven positions are authorized, for the purpose of
21 implementing this act during the 2003-2004 fiscal year. The
22 sum of $452,122 is appropriated from the General Revenue Fund
23 to the Agency for Health Care Administration, and five
24 positions are authorized, for the purpose of implementing this
25 act during the 2003-2004 fiscal year.
26 Section 74. If any law that is amended by this act was
27 also amended by a law enacted at the 2003 Regular Session or
28 2003 Special Session A of the Legislature, such laws shall be
29 construed as if they had been enacted during the same session
30 of the Legislature, and full effect should be given to each if
31 that is possible.
126
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 Section 75. If any provision of this act or its
2 application to any person or circumstance is held invalid, the
3 invalidity does not affect other provisions or applications of
4 the act which can be given effect without the invalid
5 provision or application, and to this end the provisions of
6 this act are severable.
7 Section 76. Except as otherwise expressly provided in
8 this act, this act shall take effect July 1, 2003, and shall
9 apply to any action arising from a medical malpractice claim
10 initiated by a notice of intent to litigate received by a
11 potential defendant in a medical malpractice case on or after
12 that date.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
127
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2-B
13-2662A-03
1 *****************************************
2 SENATE SUMMARY
3 Revises various laws governing legal actions that involve
medical malpractice. Requires certain setoffs be made
4 against the amount of a plaintiff's verdict. Creates the
Florida Center for Excellence in Health Care. Provides
5 duties of the center and provides for the appointment of
a board of directors. Provides for funding the center
6 through an assessment against health insurers, health
maintenance organizations, hospitals, ambulatory surgical
7 centers, and nursing home facilities. Requires licensed
facilities to notify each patient or representative about
8 outcomes of care which result in serious harm to the
patient. Limits the purposes for which such information
9 may be used. Requires licensed health care facilities to
adopt patient safety plans and appoint safety officers
10 and committees. Revises requirements for information
provided to the public in a practitioner's profile.
11 Authorizes health care regulatory boards to adopt rules
governing the prescribing of drugs to patients via the
12 Internet. Authorizes mediation in cases involving a
violation of a professional standard of care. Provides
13 civil immunity for members of or consultants to certain
boards and committees. Provides that patient safety data
14 is not subject to discovery or introduction into
evidence. Requires that claims or actions for damages for
15 personal injury be reported to the Office of Insurance
Regulation. Revises grounds for disciplinary action
16 against health care providers. Authorizes a patient
safety discount for certain health care facilities.
17 Provides procedures for limiting excessive profits for
medical liability insurance. Provides for certain rate
18 rollbacks. Creates the Florida Medical Malpractice
Insurance Fund. Revises requirements for expert
19 witnesses. Provides procedures for presuit mediation.
Requires mandatory mediation in medical malpractice
20 actions. Revises the Good Samaritan Act to provide
limited immunity to a health care practitioner who
21 provides emergency services or medical care or treatment
to a person with whom the practitioner does not have an
22 existing patient-physician relationship. Requires that
patient safety information be included in medical
23 education requirements. (See bill for details.)
24
25
26
27
28
29
30
31
128
CODING: Words stricken are deletions; words underlined are additions.