Senate Bill sb0002Bc1

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    Florida Senate - 2003                            CS for SB 2-B

    By the Committee on Health, Aging, and Long-Term Care; and
    Senators Jones and Saunders




    317-2695-03

  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

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    Florida Senate - 2003                            CS for SB 2-B
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 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

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    Florida Senate - 2003                            CS for SB 2-B
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 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

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    Florida Senate - 2003                            CS for SB 2-B
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 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

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    Florida Senate - 2003                            CS for SB 2-B
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 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

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    Florida Senate - 2003                            CS for SB 2-B
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 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.; allowing the

21         department to obtain patient records by

22         subpoena without the patient's written

23         authorization, in specified circumstances;

24         amending s. 456.063, F.S.; authorizing

25         regulatory boards or the department to adopt

26         rules to implement requirements for reporting

27         allegations of sexual misconduct; authorizing

28         health care practitioner regulatory boards to

29         adopt rules to establish standards of practice

30         for prescribing drugs to patients via the

31         Internet; amending s. 456.072, F.S.; providing

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    Florida Senate - 2003                            CS for SB 2-B
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 1         for determining the amount of any costs to be

 2         assessed in a disciplinary proceeding;

 3         prescribing the standard of proof in certain

 4         disciplinary proceedings; amending s. 456.073,

 5         F.S.; authorizing the Department of Health to

 6         investigate certain paid claims made on behalf

 7         of practitioners licensed under ch. 458 or ch.

 8         459, F.S.; amending procedures for certain

 9         disciplinary proceedings; providing a deadline

10         for raising issues of material fact; providing

11         a deadline relating to notice of receipt of a

12         request for a formal hearing; amending s.

13         456.077, F.S.; providing a presumption related

14         to an undisputed citation; amending s. 456.078,

15         F.S.; revising standards for determining which

16         violations of the applicable professional

17         practice act are appropriate for mediation;

18         amending s. 458.320, F.S., relating to

19         financial responsibility requirements for

20         medical physicians; requiring maintenance of

21         financial responsibility as a condition of

22         licensure of physicians; providing for payment

23         of any outstanding judgments or settlements

24         pending at the time a physician is suspended by

25         the Department of Business and Professional

26         Regulation; providing for an alternative method

27         of providing financial responsibility;

28         requiring the department to suspend the license

29         of a medical physician who has not paid, up to

30         the amounts required by any applicable

31         financial responsibility provision, any

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    Florida Senate - 2003                            CS for SB 2-B
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 1         outstanding judgment, arbitration award, other

 2         order, or settlement; amending s. 459.0085,

 3         F.S., relating to financial responsibility

 4         requirements for osteopathic physicians;

 5         requiring maintenance of financial

 6         responsibility as a condition of licensure of

 7         osteopathic physicians; providing for payment

 8         of any outstanding judgments or settlements

 9         pending at the time an osteopathic physician is

10         suspended by the Department of Business and

11         Professional Regulation; providing for an

12         alternative method of providing financial

13         responsibility; requiring that the department

14         suspend the license of an osteopathic physician

15         who has not paid, up to the amounts required by

16         any applicable financial responsibility

17         provision, any outstanding judgment,

18         arbitration award, other order, or settlement;

19         providing civil immunity for certain

20         participants in quality improvement processes;

21         defining the terms "patient safety data" and

22         "patient safety organization"; providing for

23         use of patient safety data by a patient safety

24         organization; providing limitations on use of

25         patient safety data; providing for protection

26         of patient-identifying information; providing

27         for determination of whether the privilege

28         applies as asserted; providing that an employer

29         may not take retaliatory action against an

30         employee who makes a good-faith report

31         concerning patient safety data; requiring that

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    Florida Senate - 2003                            CS for SB 2-B
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 1         a specific statement be included in each final

 2         settlement statement relating to medical

 3         malpractice actions; providing requirements for

 4         the closed claim form of the Office of

 5         Insurance Regulation; requiring the Office of

 6         Insurance Regulation to compile annual

 7         statistical reports pertaining to closed

 8         claims; requiring historical statistical

 9         summaries; specifying certain information to be

10         included on the closed claim form; amending s.

11         458.331, F.S., relating to grounds for

12         disciplinary action against a physician;

13         redefining the term "repeated malpractice";

14         revising the standards for the burden of proof

15         in an administrative action against a

16         physician; revising the minimum amount of a

17         claim against a licensee which will trigger a

18         departmental investigation; amending s.

19         459.015, F.S., relating to grounds for

20         disciplinary action against an osteopathic

21         physician; redefining the term "repeated

22         malpractice"; revising the standards for the

23         burden of proof in an administrative action

24         against an osteopathic physician; amending

25         conditions that necessitate a departmental

26         investigation of an osteopathic physician;

27         revising the minimum amount of a claim against

28         a licensee which will trigger a departmental

29         investigation; amending s. 460.413, F.S.,

30         relating to grounds for disciplinary action

31         against a chiropractic physician; revising the

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    Florida Senate - 2003                            CS for SB 2-B
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 1         standards for the burden of proof in an

 2         administrative action against a chiropractic

 3         physician; providing a statement of legislative

 4         intent regarding the change in the standard of

 5         proof in disciplinary cases involving the

 6         suspension or revocation of a license;

 7         providing that the practice of health care is a

 8         privilege, not a right; providing that

 9         protecting patients overrides purported

10         property interest in the license of a health

11         care practitioner; providing that certain

12         disciplinary actions are remedial and

13         protective, not penal; providing that the

14         Legislature specifically reverses case law to

15         the contrary; requiring the Division of

16         Administrative Hearings to designate

17         administrative law judges who have special

18         qualifications for hearings involving certain

19         health care practitioners; amending s. 461.013,

20         F.S., relating to grounds for disciplinary

21         action against a podiatric physician;

22         redefining the term "repeated malpractice";

23         amending the minimum amount of a claim against

24         such a physician which will trigger a

25         department investigation; amending s. 466.028,

26         F.S., relating to grounds for disciplinary

27         action against a dentist or a dental hygienist;

28         redefining the term "dental malpractice";

29         revising the minimum amount of a claim against

30         a dentist which will trigger a departmental

31         investigation; amending s. 624.462, F.S.;

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    Florida Senate - 2003                            CS for SB 2-B
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 1         authorizing health care providers to form a

 2         commercial self-insurance fund; amending s.

 3         627.062, F.S.; providing that an insurer may

 4         not require arbitration of a rate filing for

 5         medical malpractice; providing additional

 6         requirements for medical malpractice insurance

 7         rate filings; providing that portions of

 8         judgments and settlements entered against a

 9         medical malpractice insurer for bad-faith

10         actions or for punitive damages against the

11         insurer, as well as related taxable costs and

12         attorney's fees, may not be included in an

13         insurer's base rate; providing for review of

14         rate filings by the Office of Insurance

15         Regulation for excessive, inadequate, or

16         unfairly discriminatory rates; requiring

17         insurers to apply a discount based on the

18         health care provider's loss experience;

19         amending s. 627.0645, F.S.; excepting medical

20         malpractice insurers from certain annual

21         filings; requiring the Office of Program Policy

22         Analysis and Government Accountability to study

23         and report to the Legislature on requirements

24         for coverage by the Florida Birth-Related

25         Neurological Injury Compensation Association;

26         creating s. 627.0662, F.S.; providing

27         definitions; requiring each medical liability

28         insurer to report certain information to the

29         Office of Insurance Regulation; providing for

30         determination of whether excessive profit has

31         been realized; requiring return of excessive

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    Florida Senate - 2003                            CS for SB 2-B
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 1         amounts; amending s. 627.357, F.S.; providing

 2         guidelines for the formation and regulation of

 3         certain self-insurance funds; amending s.

 4         627.4147, F.S.; revising certain notification

 5         criteria for medical and osteopathic

 6         physicians; requiring prior notification of a

 7         rate increase; authorizing the purchase of

 8         insurance by certain health care providers;

 9         creating s. 627.41491, F.S.; requiring the

10         Office of Insurance Regulation to require

11         health care providers to annually publish

12         certain rate comparison information; creating

13         s. 627.41492, F.S.; requiring the Office of

14         Insurance Regulation to publish an annual

15         medical malpractice report; creating s.

16         627.41493, F.S.; requiring a medical

17         malpractice insurance rate rollback; providing

18         for subsequent increases under certain

19         circumstances; requiring approval for use of

20         certain medical malpractice insurance rates;

21         providing for a mechanism to make effective the

22         Florida Medical Malpractice Insurance Fund in

23         the event the rollback of medical malpractice

24         insurance rates is not completed; creating the

25         Florida Medical Malpractice Insurance Fund;

26         providing purpose; providing governance by a

27         board of governors; providing for the fund to

28         issue medical malpractice policies to any

29         physician regardless of specialty; providing

30         for regulation by the Office of Insurance

31         Regulation of the Financial Services

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    Florida Senate - 2003                            CS for SB 2-B
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 1         Commission; providing applicability; providing

 2         for initial funding; providing for tax-exempt

 3         status; providing for initial capitalization;

 4         providing for termination of the fund;

 5         providing that practitioners licensed under ch.

 6         458 or ch. 459, F.S., must, as a licensure

 7         requirement, obtain and maintain professional

 8         liability coverage; creating s. 627.41495,

 9         F.S.; providing for consumer participation in

10         review of medical malpractice rate changes;

11         providing for public inspection; providing for

12         adoption of rules by the Financial Services

13         Commission; requiring the Office of Insurance

14         Regulation to order insurers to make rate

15         filings effective January 1, 2004, which

16         reflect the impact of the act; providing

17         criteria for such rate filing; amending s.

18         627.912, F.S.; amending provisions prescribing

19         conditions under which insurers must file

20         certain reports with the Department of Health;

21         requiring the Financial Services Commission to

22         adopt by rule requirements for reporting

23         financial information; increasing the

24         limitation on a fine imposed against insurers;

25         creating s. 627.9121, F.S.; requiring certain

26         claims, judgments, or settlements to be

27         reported to the Office of Insurance Regulation;

28         providing penalties; amending s. 766.102, F.S;

29         revising requirements for health care providers

30         providing expert testimony in medical

31         negligence actions; prohibiting contingency

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    Florida Senate - 2003                            CS for SB 2-B
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 1         fees for an expert witness; amending s.

 2         766.106, F.S.; providing for application of

 3         common law principles of good faith to an

 4         insurance company's bad-faith actions arising

 5         out of medical malpractice claims; providing

 6         that an insurer shall not be held to have acted

 7         in bad faith for certain activities during the

 8         presuit period and for a specified later

 9         period; providing legislative intent with

10         respect to actions by insurers, insureds, and

11         their assigns and representatives; revising

12         requirements for presuit notice and for an

13         insurer's or self-insurer's response to a

14         claim; requiring that a claimant provide the

15         Agency for Health Care Administration with a

16         copy of the complaint alleging medical

17         malpractice; requiring the agency to review

18         such complaints for licensure noncompliance;

19         permitting written questions during informal

20         discovery; amending s. 766.108, F.S.; providing

21         for mandatory mediation; creating s. 766.118,

22         F.S.; providing a maximum amount to be awarded

23         as noneconomic damages in medical negligence

24         actions; providing exceptions; amending s.

25         766.202, F.S.; redefining the terms "economic

26         damages," "medical expert," "noneconomic

27         damages," and "periodic payment"; amending s.

28         766.206, F.S.; providing for dismissal of a

29         claim under certain circumstances; requiring

30         the court to make certain reports concerning a

31         medical expert who fails to meet

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    Florida Senate - 2003                            CS for SB 2-B
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 1         qualifications; amending s. 766.207, F.S.;

 2         providing for the applicability of the Wrongful

 3         Death Act and general law to arbitration

 4         awards; amending s. 768.041, F.S.; revising

 5         requirements for setoffs against damages in

 6         medical malpractice actions if there is a

 7         written release or covenant not to sue;

 8         amending s. 768.13, F.S.; revising guidelines

 9         for immunity from liability under the "Good

10         Samaritan Act"; amending s. 768.77, F.S.;

11         prescribing a method for itemization of

12         specific categories of damages awarded in

13         medical malpractice actions; amending s.

14         768.81, F.S.; requiring the trier of fact to

15         apportion total fault solely among the claimant

16         and joint tortfeasors as parties to an action;

17         requiring the Office of Program Policy Analysis

18         and Government Accountability and the Office of

19         the Auditor General to conduct an audit of the

20         health care practitioner disciplinary process

21         and closed claims and report to the

22         Legislature; creating ss. 1004.08 and 1005.07,

23         F.S.; requiring schools, colleges, and

24         universities to include material on patient

25         safety in their curricula if the institution

26         awards specified degrees; creating a workgroup

27         to study the health care practitioner

28         disciplinary process; providing for workgroup

29         membership; providing that the workgroup

30         deliver its report by January 1, 2004; creating

31         s. 766.1065, F.S.; providing for mandatory

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    Florida Senate - 2003                            CS for SB 2-B
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 1         presuit investigations; providing that certain

 2         records be provided to opposing parties;

 3         providing subpoena power; providing for sworn

 4         depositions of parties and medical experts;

 5         providing for mandatory in-person mediation if

 6         binding arbitration has not been agreed to;

 7         providing for a mandatory presuit screening

 8         panel hearing in the event of mediation

 9         impasse; creating s. 766.1066, F.S.; creating

10         the Office of Presuit Screening Administration;

11         providing for a database of volunteer panel

12         members; prescribing qualifications for panel

13         membership; providing a funding mechanism;

14         providing panel procedures; providing for

15         determination and recordation of panel

16         findings; providing for disposition of panel

17         findings; providing immunity from liability for

18         panel members; providing appropriations and

19         authorizing positions; providing for

20         construction of the act in pari materia with

21         laws enacted during the 2003 Regular Session or

22         2003 Special Session A of the Legislature;

23         providing for severability; providing for

24         retroactive application; providing effective

25         dates.

26  

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

28  

29         Section 1.  Findings.--

30  

31  

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    Florida Senate - 2003                            CS for SB 2-B
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 1         (1)  The Legislature finds that Florida is in the midst

 2  of a medical malpractice insurance crisis of unprecedented

 3  magnitude.

 4         (2)  The Legislature finds that this crisis threatens

 5  the quality and availability of health care for all Florida

 6  citizens.

 7         (3)  The Legislature finds that the rapidly growing

 8  population and the changing demographics of Florida make it

 9  imperative that students continue to choose Florida as the

10  place they will receive their medical educations and practice

11  medicine.

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

13  states with the highest medical malpractice insurance premiums

14  in the nation.

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

16  malpractice insurance has increased dramatically during the

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

18  substantially higher than the national average.

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

20  malpractice liability insurance rates is forcing physicians to

21  practice medicine without professional liability insurance, to

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

23  retire early from the practice of medicine.

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

25  Force on Healthcare Professional Liability Insurance to study

26  and make recommendations to address these problems.

27         (8)  The Legislature has reviewed the findings and

28  recommendations of the Governor's Select Task Force on

29  Healthcare Professional Liability Insurance.

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

31  Task Force on Healthcare Professional Liability Insurance has

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    Florida Senate - 2003                            CS for SB 2-B
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 1  established that a medical malpractice insurance crisis exists

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

 3  adoption of comprehensive legislatively enacted reforms.

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

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

 6  overwhelming public necessity.

 7         (11)  The Legislature finds that ensuring that

 8  physicians continue to practice in Florida is an overwhelming

 9  public necessity.

10         (12)  The Legislature finds that ensuring the

11  availability of affordable professional liability insurance

12  for physicians is an overwhelming public necessity.

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

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

15  Healthcare Professional Liability Insurance, the findings and

16  recommendations of various study groups throughout the nation,

17  and the experience of other states, that the overwhelming

18  public necessities of making quality health care available to

19  the citizens of this state, of ensuring that physicians

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

21  physicians have the opportunity to purchase affordable

22  professional liability insurance cannot be met unless

23  comprehensive legislation is adopted.

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

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

26  the purpose of making quality health care available to the

27  citizens of Florida.

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

29  Florida Statutes, to read:

30         46.015  Release of parties.--

31  

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    Florida Senate - 2003                            CS for SB 2-B
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 1         (4)(a)  At trial pursuant to a suit filed under chapter

 2  766 or pursuant to s. 766.209, if any defendant shows the

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

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

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

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

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

 8  judgment.

 9         (b)  The amount of any setoff under this subsection

10  shall include all sums received by the plaintiff, including

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

12         Section 3.  Effective upon this act becoming a law if

13  SB 4-B or similar legislation is adopted in the same

14  legislative session or an extension thereof and becomes law,

15  section 381.0409, Florida Statutes, is created to read:

16         381.0409  Florida Center for Excellence in Health

17  Care.--There is created the Florida Center for Excellence in

18  Health Care which shall be responsible for performing

19  activities and functions that are designed to improve the

20  quality of health care delivered by health care facilities and

21  health care practitioners. The principal goals of the center

22  are to improve health care quality and patient safety. The

23  long-term goal is to improve diagnostic and treatment

24  decisions, thus further improving quality.

25         (1)  As used in this section, the term:

26         (a)  "Center" means the Florida Center for Excellence

27  in Health Care.

28         (b)  "Health care practitioner" means any person as

29  defined under s. 456.001(4).

30         (c)  "Health care facility" means any facility licensed

31  under chapter 395.

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 1         (d)  "Health research entity" means any university or

 2  academic health center engaged in research designed to

 3  improve, prevent, diagnose, or treat diseases or medical

 4  conditions or an entity that receives state or federal funds

 5  for such research.

 6         (e)  "Patient safety data" means any data, reports,

 7  records, memoranda, or analyses of patient safety events and

 8  adverse incidents reported by a licensed facility pursuant to

 9  s. 395.0197 which are submitted to the Florida Center for

10  Health Care Excellence or the corrective actions taken in

11  response to such patient safety events or adverse incidents.

12         (f)  "Patient safety event" means an event over which

13  health care personnel could exercise control and which is

14  associated in whole or in part with medical intervention,

15  rather than the condition for which such intervention

16  occurred, and which could have resulted in, but did not result

17  in, serious patient injury or death.

18         (2)  The center shall directly or by contract:

19         (a)  Analyze patient safety data for the purpose of

20  recommending changes in practices and procedures which may be

21  implemented by health care practitioners and health care

22  facilities to prevent future adverse incidents.

23         (b)  Collect, analyze, and evaluate patient safety data

24  submitted voluntarily by a health care practitioner or health

25  care facility. The center shall recommend to health care

26  practitioners and health care facilities changes in practices

27  and procedures that may be implemented for the purpose of

28  improving patient safety and preventing patient safety events.

29         (c)  Foster the development of a statewide electronic

30  infrastructure that may be implemented in phases over a

31  multiyear period and that is designed to improve patient care

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 1  and the delivery and quality of health care services by health

 2  care facilities and practitioners. The electronic

 3  infrastructure shall be a secure platform for communication

 4  and the sharing of clinical and other data, such as business

 5  data, among providers and between patients and providers. The

 6  electronic infrastructure shall include a "core" electronic

 7  medical record. Health care practitioners and health care

 8  facilities shall have access to individual electronic medical

 9  records subject to the consent of the individual. Each health

10  insurer licensed under chapter 627 or chapter 641 shall have

11  access to the electronic medical records of its policyholders

12  and, subject to s. 381.04091, to other data if such access is

13  for the sole purpose of conducting research to identify

14  diagnostic tests and treatments that are medically effective.

15  Health research entities shall have access to the electronic

16  medical records of individuals, subject to the consent of the

17  individual and subject to s. 381.04091, and to other data if

18  such access is for the sole purpose of conducting research to

19  identify diagnostic tests and treatments that are medically

20  effective.

21         (d)  Inventory hospitals to determine the current

22  status of implementation of computerized physician order entry

23  systems and recommend a plan for expediting implementation

24  statewide or, in hospitals where the center determines that

25  implementation of such systems is not practicable, alternative

26  methods to reduce medication errors. The center shall identify

27  in its plan any barriers to statewide implementation and shall

28  include recommendations to the Legislature of statutory

29  changes that may be necessary to eliminate those barriers.

30  

31  

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 1         (e)  Establish a simulation center for high technology

 2  intervention surgery and intensive care for use by all

 3  hospitals.

 4         (f)  Identify best practices and share this information

 5  with health care providers.

 6  

 7  This section does not limit the scope of services provided by

 8  the center with regard to engaging in other activities that

 9  improve health care quality, improve the diagnosis and

10  treatment of diseases and medical conditions, increase the

11  efficiency of the delivery of health care services, increase

12  administrative efficiency, and increase access to quality

13  health care services.

14         (3)  Notwithstanding s. 381.04091, the center may

15  release information contained in patient safety data to any

16  health care practitioner or health care facility when

17  recommending changes in practices and procedures which may be

18  implemented by such practitioner or facility to prevent

19  patient safety events or adverse incidents if the identity of

20  the source of the information and the names of persons have

21  been removed from such information.

22         (4)  All information related to adverse incident

23  reports and all patient safety data submitted to or received

24  by the center shall not be subject to discovery or

25  introduction into evidence in any civil or administrative

26  action. Individuals in attendance at meetings held for the

27  purpose of discussing information related to adverse incidents

28  and patient safety data and meetings held to formulate

29  recommendations to prevent future adverse incidents or patient

30  safety events may not be permitted or required to testify in

31  any civil or administrative action related to such events.

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 1  There shall be no liability on the part of, and no cause of

 2  action of any nature shall arise against, any employee or

 3  agent of the center for any lawful action taken by such

 4  individual in advising health practitioners or health care

 5  facilities with regard to carrying out their duties under this

 6  section. There shall be no liability on the part of, and no

 7  cause of action of any nature shall arise against, a health

 8  care practitioner or health care facility, its agents, or

 9  employees, when it acts in reliance on any advice or

10  information provided by the center.

11         (5)  The center shall be a nonprofit corporation

12  registered, incorporated, organized, and operated in

13  compliance with chapter 617, and shall have all powers

14  necessary to carry out the purposes of this section,

15  including, but not limited to, the power to receive and accept

16  from any source contributions of money, property, labor, or

17  any other thing of value, to be held, used, and applied for

18  the purpose of this section.

19         (6)  The center shall:

20         1.  Be designed and operated by an individual or entity

21  with demonstrated expertise in health care quality data and

22  systems analysis, health information management, systems

23  thinking and analysis, human factors analysis, and

24  identification of latent and active errors.

25         2.  Include procedures for ensuring the confidentiality

26  of data which are consistent with state and federal law.

27         (7)  The center shall be governed by a 10-member board

28  of directors appointed by the Governor.

29         (a)  The Governor shall appoint two members

30  representing hospitals, one member representing physicians,

31  one member representing nurses, one member representing health

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 1  insurance indemnity plans, one member representing health

 2  maintenance organizations, one member representing business,

 3  and one member representing consumers. The Governor shall

 4  appoint members for a 2-year term. Such members shall serve

 5  until their successors are appointed. Members are eligible to

 6  be reappointed for additional terms.

 7         (b)  The Secretary of Health or his or her designee

 8  shall be a member of the board.

 9         (c)  The Secretary of Health Care Administration or his

10  or her designee shall be a member of the board.

11         (d)  The members shall elect a chairperson.

12         (e)  Board members shall serve without compensation but

13  may be reimbursed for travel expenses pursuant to s. 112.061.

14         (8)  The center shall be financed as follows:

15         (a)  Notwithstanding any law to the contrary, each

16  health insurer issued a certificate of authority under part

17  VI, part VII, or part VIII of chapter 627 shall, as a

18  condition of maintaining such certificate, make payment to the

19  center on April 1 of each year, in the amount of $1 for each

20  individual included in every insurance policy issued during

21  the previous calendar year. Accompanying any payment shall be

22  a certification under oath by the chief executive officer

23  which states the number of individuals upon which such payment

24  was based. The health insurer may collect this $1 from

25  policyholders. The center may direct the insurer to provide an

26  independent audit of the certification which shall be

27  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

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 1  of Insurance Regulation that payment has not been received

 2  pursuant to the requirements of this paragraph. An insurer

 3  that refuses to comply with the requirements of this paragraph

 4  is subject to the forfeiture of its certificate of authority.

 5         (b)  Notwithstanding any law to the contrary, each

 6  health maintenance organization issued a certificate of

 7  authority under part I of chapter 641 and each prepaid health

 8  clinic issued a certificate of authority under part II of

 9  chapter 641 shall, as a condition of maintaining such

10  certificate, make payment to the center on April 1 of each

11  year, in the amount of $1 for each individual who is eligible

12  to receive services pursuant to a contract with the health

13  maintenance organization or the prepaid health clinic during

14  the previous calendar year. Accompanying any payment shall be

15  a certification under oath by the chief executive officer

16  which states the number of individuals upon which such payment

17  was based. The health maintenance organization or prepaid

18  health clinic may collect the $1 from individuals eligible to

19  receive services under contract. The center may direct the

20  health maintenance organization or prepaid health clinic to

21  provide an independent audit of the certification which shall

22  be furnished within 90 days. If payment is not received by the

23  center within 30 days after April 1, interest at the

24  annualized rate of 18 percent shall begin to be charged on the

25  amount due. If payment has not been received within 60 days

26  after interest is charged, the center shall notify the Office

27  of Insurance Regulation that payment has not been received

28  pursuant to the requirements of this paragraph. A health

29  maintenance organization or prepaid health clinic that refuses

30  to comply with the requirements of this paragraph is subject

31  to the forfeiture of its certificate of authority.

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 1         (c)  Notwithstanding any law to the contrary, each

 2  hospital and ambulatory surgical center licensed under chapter

 3  395 shall, as a condition of licensure, make payment to the

 4  center on April 1 of each year, in the amount of $1 for each

 5  individual who, during the previous 12 months, was an

 6  inpatient discharged by the hospital or who was a patient

 7  discharged by the ambulatory surgical center. Accompanying

 8  payment shall be a certification under oath by the chief

 9  executive officer which states the number of individuals upon

10  which such payment was based. The facility may collect the $1

11  from patients discharged from the facility. The center may

12  direct the facility to provide an independent audit of the

13  certification which shall be furnished within 90 days. If

14  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         (d)  Notwithstanding any law to the contrary, each

24  nursing home licensed under part II of chapter 400, each

25  assisted living facility licensed under part III of chapter

26  400, each home health agency licensed under part IV of chapter

27  400, each hospice licensed under part VI of chapter 400, each

28  prescribed pediatric extended care center licensed under part

29  IX of chapter 400, and each health care services pool licensed

30  under part XII of chapter 400 shall, as a condition of

31  licensure, make payment to the center on April 1 of each year,

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 1  in the amount of $1 for each individual served by each

 2  aforementioned entity during the previous 12 months.

 3  Accompanying payment shall be a certification under oath by

 4  the chief executive officer which states the number of

 5  individuals upon which such payment was based. The entity may

 6  collect the $1 from individuals served by the entity. The

 7  center may direct the entity to provide an independent audit

 8  of the certification which shall be furnished within 90 days.

 9  If payment is not received by the center within 30 days after

10  April 1, interest at the annualized rate of 18 percent shall

11  begin to be charged on the amount due. If payment has not been

12  received within 60 days after interest is charged, the center

13  shall notify the Agency for Health Care Administration that

14  payment has not been received pursuant to the requirements of

15  this paragraph. An entity that refuses to comply with the

16  requirements of this paragraph is subject to the forfeiture of

17  its license.

18         (e)  Notwithstanding any law to the contrary, each

19  initial application and renewal fee for each license and each

20  fee for certification or recertification for each person

21  licensed or certified under chapter 401 or chapter 404, and

22  for each person licensed as a health care practitioner, as

23  defined in s. 456.001(4), shall be increased by the amount of

24  $1 for each year or part thereof for which the license or

25  certification is issued. The Department of Health shall make

26  payment to the center on April 1 of each year in the amount of

27  the total received pursuant to this paragraph during the

28  preceding 12 months.

29         (f)  The center shall develop a business and financing

30  plan to obtain funds through other means if funds beyond those

31  

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 1  that are provided for in this subsection are needed to

 2  accomplish the objectives of the center.

 3         (9)  The center may enter into affiliations with

 4  universities for any purpose.

 5         (10)  Pursuant to s. 287.057(5)(f)6., state agencies

 6  may contract with the center on a sole-source basis for

 7  projects to improve the quality of program administration,

 8  such as, but not limited to, the implementation of an

 9  electronic medical record for Medicaid program recipients.

10         (11)  All travel and per diem paid with center funds

11  shall be in accordance with s. 112.061.

12         (12)  The center may use state purchasing and travel

13  contracts and the state communications system in accordance

14  with s. 282.105(3).

15         (13)  The center may acquire, enjoy, use, and dispose

16  of patents, copyrights, trademarks, and any licenses,

17  royalties, and other rights or interests thereunder or

18  therein.

19         (14)  The center shall submit an annual report to the

20  Governor, the President of the Senate, and the Speaker of the

21  House of Representatives no later than October 1 of each year

22  which includes:

23         (a)  The status report on the implementation of a

24  program to analyze data concerning adverse incidents and

25  patient safety events.

26         (b)  The status report on the implementation of a

27  computerized physician order entry system.

28         (c)  The status report on the implementation of an

29  electronic medical record.

30  

31  

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 1         (d)  Other pertinent information relating to the

 2  efforts of the center to improve health care quality and

 3  efficiency.

 4         (e)  A financial statement and balance sheet.

 5  

 6  The initial report shall include any recommendations that the

 7  center deems appropriate regarding revisions in the definition

 8  of adverse incidents in s. 395.0197 and the reporting of such

 9  adverse incidents by licensed facilities.

10         (15)  The center may establish and manage an operating

11  fund for the purposes of addressing the center's cash-flow

12  needs and facilitating the fiscal management of the

13  corporation. Upon dissolution of the corporation, any

14  remaining cash balances of any state funds shall revert to the

15  General Revenue Fund, or such other state funds consistent

16  with appropriated funding, as provided by law.

17         (16)  The center may carry over funds from year to

18  year.

19         (17)  All books, records, and audits of the center

20  shall be open to the public unless exempted by law.

21         (18)  The center shall furnish an annual audited report

22  to the Governor and Legislature by March 1 of each year.

23         (19)  In carrying out this section, the center shall

24  consult with and develop partnerships, as appropriate, with

25  all segments of the health care industry, including, among

26  others, health practitioners, health care facilities, health

27  care consumers, professional organizations, agencies, health

28  care practitioner licensing boards, and educational

29  institutions.

30         Section 4.  Subsection (3) is added to section 395.004,

31  Florida Statutes, to read:

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 1         395.004  Application for license, fees; expenses.--

 2         (3)  A licensed facility may apply to the agency for

 3  certification of a quality improvement program that results in

 4  the reduction of adverse incidents at that facility. The

 5  agency, in consultation with the Office of Insurance

 6  Regulation, shall develop criteria for such certification.

 7  Insurers shall file with the Office of Insurance Regulation a

 8  discount in the rate or rates applicable for medical liability

 9  insurance coverage to reflect the implementation of a

10  certified program. In reviewing insurance company filings with

11  respect to rate discounts authorized under this subsection,

12  the Office of Insurance Regulation shall consider whether, and

13  the extent to which, the program certified under this

14  subsection is otherwise covered under a program of risk

15  management offered by an insurance company or self-insurance

16  plan providing medical liability coverage.

17         Section 5.  Section 395.0056, Florida Statutes, is

18  created to read:

19         395.0056  Litigation notice requirement.--Upon receipt

20  of a copy of a complaint filed against a hospital as a

21  defendant in a medical malpractice action as required by s.

22  766.106(2), the agency shall:

23         (1)  Review its adverse incident report files

24  pertaining to the licensed facility that is the subject of the

25  complaint to determine whether the facility timely complied

26  with the requirements of s. 395.0197; and

27         (2)  Review the incident that is the subject of the

28  complaint and determine whether it involved conduct by a

29  licensee which is potentially subject to disciplinary action.

30  

31  

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 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.

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 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  

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 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

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 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

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 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

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 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:

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 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  

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 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  

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 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  

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 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

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 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  

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 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.

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 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

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 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  

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 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

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 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 $50,000. 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.

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 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

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 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.--

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 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  

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 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.  Paragraph (a) of subsection (7) of section

25  456.057, Florida Statutes, is amended to read:

26         456.057  Ownership and control of patient records;

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

28         (7)(a)1.  The department may obtain patient records

29  pursuant to a subpoena without written authorization from the

30  patient if the department and the probable cause panel of the

31  appropriate board, if any, find reasonable cause to believe

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 1  that a health care practitioner has excessively or

 2  inappropriately prescribed any controlled substance specified

 3  in chapter 893 in violation of this chapter or any

 4  professional practice act or that a health care practitioner

 5  has practiced his or her profession below that level of care,

 6  skill, and treatment required as defined by this chapter or

 7  any professional practice act and also find that appropriate,

 8  reasonable attempts were made to obtain a patient release.

 9         2.  The department may obtain patient records and

10  insurance information pursuant to a subpoena without written

11  authorization from the patient if the department and the

12  probable cause panel of the appropriate board, if any, find

13  reasonable cause to believe that a health care practitioner

14  has provided inadequate medical care based on termination of

15  insurance and also find that appropriate, reasonable attempts

16  were made to obtain a patient release.

17         3.  The department may obtain patient records, billing

18  records, insurance information, provider contracts, and all

19  attachments thereto pursuant to a subpoena without written

20  authorization from the patient if the department and probable

21  cause panel of the appropriate board, if any, find reasonable

22  cause to believe that a health care practitioner has submitted

23  a claim, statement, or bill using a billing code that would

24  result in payment greater in amount than would be paid using a

25  billing code that accurately describes the services performed,

26  requested payment for services that were not performed by that

27  health care practitioner, used information derived from a

28  written report of an automobile accident generated pursuant to

29  chapter 316 to solicit or obtain patients personally or

30  through an agent regardless of whether the information is

31  derived directly from the report or a summary of that report

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 1  or from another person, solicited patients fraudulently,

 2  received a kickback as defined in s. 456.054, violated the

 3  patient brokering provisions of s. 817.505, or presented or

 4  caused to be presented a false or fraudulent insurance claim

 5  within the meaning of s. 817.234(1)(a), and also find that,

 6  within the meaning of s. 817.234(1)(a), patient authorization

 7  cannot be obtained because the patient cannot be located or is

 8  deceased, incapacitated, or suspected of being a participant

 9  in the fraud or scheme, and if the subpoena is issued for

10  specific and relevant records. For purposes of this

11  subsection, if the patient refuses to cooperate, is

12  unavailable, or fails to execute a patient release, the

13  department may obtain patient records pursuant to a subpoena

14  without written authorization from the patient.

15         Section 20.  Subsection (4) is added to section

16  456.063, Florida Statutes, to read:

17         456.063  Sexual misconduct; disqualification for

18  license, certificate, or registration.--

19         (4)  Each board, or the department if there is no

20  board, may adopt rules to implement the requirements for

21  reporting allegations of sexual misconduct, including rules to

22  determine the sufficiency of the allegations.

23         Section 21.  Each board within the Department of Health

24  which has jurisdiction over health care practitioners who are

25  authorized to prescribe drugs may adopt by rule standards of

26  practice for practitioners who are under that board's

27  jurisdiction for the safe and ethical prescription of drugs to

28  patients via the Internet or other electronic means.

29         Section 22.  Subsection (4) of section 456.072, Florida

30  Statutes, is amended, and subsection (7) is added to that

31  section to read:

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 1         456.072  Grounds for discipline; penalties;

 2  enforcement.--

 3         (4)  In addition to any other discipline imposed

 4  through final order, or citation, entered on or after July 1,

 5  2001, pursuant to this section or discipline imposed through

 6  final order, or citation, entered on or after July 1, 2001,

 7  for a violation of any practice act, the board, or the

 8  department when there is no board, shall assess costs related

 9  to the investigation and prosecution of the case. Such costs

10  related to the investigation and prosecution include, but are

11  not limited to, salaries and benefits of personnel, costs

12  related to the time spent by the attorney and other personnel

13  working on the case, and any other expenses incurred by the

14  department for the case. The board, or the department when

15  there in no board, shall determine the amount of costs to be

16  assessed after its consideration of an affidavit of itemized

17  costs and any written objections thereto. In any case where

18  the board or the department imposes a fine or assessment and

19  the fine or assessment is not paid within a reasonable time,

20  such reasonable time to be prescribed in the rules of the

21  board, or the department when there is no board, or in the

22  order assessing such fines or costs, the department or the

23  Department of Legal Affairs may contract for the collection

24  of, or bring a civil action to recover, the fine or

25  assessment.

26         (7)  In any formal administrative hearing conducted

27  under s. 120.57(1), the department shall establish grounds for

28  the discipline of a licensee by the greater weight of the

29  evidence.

30  

31  

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 1         Section 23.  Subsections (1) and (5) of section

 2  456.073, Florida Statutes, as amended by section 1 of chapter

 3  2003-27, Laws of Florida, are amended to read:

 4         456.073  Disciplinary proceedings.--Disciplinary

 5  proceedings for each board shall be within the jurisdiction of

 6  the department.

 7         (1)  The department, for the boards under its

 8  jurisdiction, shall cause to be investigated any complaint

 9  that is filed before it if the complaint is in writing, signed

10  by the complainant, and legally sufficient. A complaint filed

11  by a state prisoner against a health care practitioner

12  employed by or otherwise providing health care services within

13  a facility of the Department of Corrections is not legally

14  sufficient unless there is a showing that the prisoner

15  complainant has exhausted all available administrative

16  remedies within the state correctional system before filing

17  the complaint. However, if the Department of Health determines

18  after a preliminary inquiry of a state prisoner's complaint

19  that the practitioner may present a serious threat to the

20  health and safety of any individual who is not a state

21  prisoner, the Department of Health may determine legal

22  sufficiency and proceed with discipline. The Department of

23  Health shall be notified within 15 days after the Department

24  of Corrections disciplines or allows a health care

25  practitioner to resign for an offense related to the practice

26  of his or her profession. A complaint is legally sufficient if

27  it contains ultimate facts that show that a violation of this

28  chapter, of any of the practice acts relating to the

29  professions regulated by the department, or of any rule

30  adopted by the department or a regulatory board in the

31  department has occurred. In order to determine legal

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 1  sufficiency, the department may require supporting information

 2  or documentation. The department may investigate, and the

 3  department or the appropriate board may take appropriate final

 4  action on, a complaint even though the original complainant

 5  withdraws it or otherwise indicates a desire not to cause the

 6  complaint to be investigated or prosecuted to completion. The

 7  department may investigate an anonymous complaint if the

 8  complaint is in writing and is legally sufficient, if the

 9  alleged violation of law or rules is substantial, and if the

10  department has reason to believe, after preliminary inquiry,

11  that the violations alleged in the complaint are true. The

12  department may investigate a complaint made by a confidential

13  informant if the complaint is legally sufficient, if the

14  alleged violation of law or rule is substantial, and if the

15  department has reason to believe, after preliminary inquiry,

16  that the allegations of the complainant are true. The

17  department may initiate an investigation if it has reasonable

18  cause to believe that a licensee or a group of licensees has

19  violated a Florida statute, a rule of the department, or a

20  rule of a board. The department may investigate information

21  filed pursuant to s. 456.041(4) relating to liability actions

22  with respect to practitioners licensed under chapter 458 or

23  chapter 459 which have been reported under s. 456.049 or s.

24  627.912 within the previous 10 years for any paid claim that

25  exceeds $50,000. Except as provided in ss. 458.331(9),

26  459.015(9), 460.413(5), and 461.013(6), when an investigation

27  of any subject is undertaken, the department shall promptly

28  furnish to the subject or the subject's attorney a copy of the

29  complaint or document that resulted in the initiation of the

30  investigation. The subject may submit a written response to

31  the information contained in such complaint or document within

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 1  20 days after service to the subject of the complaint or

 2  document. The subject's written response shall be considered

 3  by the probable cause panel. The right to respond does not

 4  prohibit the issuance of a summary emergency order if

 5  necessary to protect the public. However, if the secretary, or

 6  the secretary's designee, and the chair of the respective

 7  board or the chair of its probable cause panel agree in

 8  writing that such notification would be detrimental to the

 9  investigation, the department may withhold notification. The

10  department may conduct an investigation without notification

11  to any subject if the act under investigation is a criminal

12  offense.

13         (5)  A formal hearing before an administrative law

14  judge from the Division of Administrative Hearings shall be

15  held pursuant to chapter 120 if there are any disputed issues

16  of material fact. The administrative law judge shall issue a

17  recommended order pursuant to chapter 120. Notwithstanding s.

18  120.569(2), the department shall notify the division within 45

19  days after receipt of a petition or request for a formal

20  hearing. If any party raises an issue of disputed fact during

21  an informal hearing, the hearing shall be terminated and a

22  formal hearing pursuant to chapter 120 shall be held.

23         Section 24.  Subsection (1) of section 456.077, Florida

24  Statutes, is amended to read:

25         456.077  Authority to issue citations.--

26         (1)  Notwithstanding s. 456.073, the board, or the

27  department if there is no board, shall adopt rules to permit

28  the issuance of citations. The citation shall be issued to the

29  subject and shall contain the subject's name and address, the

30  subject's license number if applicable, a brief factual

31  statement, the sections of the law allegedly violated, and the

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 1  penalty imposed. The citation must clearly state that the

 2  subject may choose, in lieu of accepting the citation, to

 3  follow the procedure under s. 456.073. If the subject disputes

 4  the matter in the citation, the procedures set forth in s.

 5  456.073 must be followed. However, if the subject does not

 6  dispute the matter in the citation with the department within

 7  30 days after the citation is served, the citation becomes a

 8  final order and does not constitute constitutes discipline for

 9  a first offense. The penalty shall be a fine or other

10  conditions as established by rule.

11         Section 25.  Subsection (1) of section 456.078, Florida

12  Statutes, is amended to read:

13         456.078  Mediation.--

14         (1)  Notwithstanding the provisions of s. 456.073, the

15  board, or the department when there is no board, shall adopt

16  rules to designate which violations of the applicable

17  professional practice act, including standard-of-care

18  violations, are appropriate for mediation. The board, or the

19  department when there is no board, must may designate as

20  mediation offenses those complaints where harm caused by the

21  licensee is economic in nature or can be remedied by the

22  licensee.

23         Section 26.  Effective upon this act becoming a law and

24  applying to claims accruing on or after that date, section

25  458.320, Florida Statutes, is amended to read:

26         458.320  Financial responsibility.--

27         (1)  As a condition of licensing and maintaining an

28  active license, and prior to the issuance or renewal of an

29  active license or reactivation of an inactive license for the

30  practice of medicine, an applicant must shall by one of the

31  following methods demonstrate to the satisfaction of the board

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 1  and the department financial responsibility to pay claims and

 2  costs ancillary thereto arising out of the rendering of, or

 3  the failure to render, medical care or services:

 4         (a)  Establishing and maintaining an escrow account

 5  consisting of cash or assets eligible for deposit in

 6  accordance with s. 625.52 in the per claim amounts specified

 7  in paragraph (b). The required escrow amount set forth in this

 8  paragraph may not be used for litigation costs or attorney's

 9  fees for the defense of any medical malpractice claim.

10         (b)  Obtaining and maintaining professional liability

11  coverage in an amount not less than $100,000 per claim, with a

12  minimum annual aggregate of not less than $300,000, from an

13  authorized insurer as defined under s. 624.09, from a surplus

14  lines insurer as defined under s. 626.914(2), from a risk

15  retention group as defined under s. 627.942, from the Joint

16  Underwriting Association established under s. 627.351(4), or

17  through a plan of self-insurance as provided in s. 627.357.

18  The required coverage amount set forth in this paragraph may

19  not be used for litigation costs or attorney's fees for the

20  defense of any medical malpractice claim.

21         (c)  Obtaining and maintaining an unexpired,

22  irrevocable letter of credit, established pursuant to chapter

23  675, in an amount not less than $100,000 per claim, with a

24  minimum aggregate availability of credit of not less than

25  $300,000. The letter of credit must shall be payable to the

26  physician as beneficiary upon presentment of a final judgment

27  indicating liability and awarding damages to be paid by the

28  physician or upon presentment of a settlement agreement signed

29  by all parties to such agreement when such final judgment or

30  settlement is a result of a claim arising out of the rendering

31  of, or the failure to render, medical care and services. The

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 1  letter of credit may not be used for litigation costs or

 2  attorney's fees for the defense of any medical malpractice

 3  claim. The Such letter of credit must shall be nonassignable

 4  and nontransferable. Such letter of credit must shall be

 5  issued by any bank or savings association organized and

 6  existing under the laws of this state or any bank or savings

 7  association organized under the laws of the United States

 8  which that has its principal place of business in this state

 9  or has a branch office that which is authorized under the laws

10  of this state or of the United States to receive deposits in

11  this state.

12         (2)  Physicians who perform surgery in an ambulatory

13  surgical center licensed under chapter 395, and as a

14  continuing condition of hospital staff privileges, physicians

15  who have with staff privileges must shall also be required to

16  establish financial responsibility by one of the following

17  methods:

18         (a)  Establishing and maintaining an escrow account

19  consisting of cash or assets eligible for deposit in

20  accordance with s. 625.52 in the per claim amounts specified

21  in paragraph (b). The required escrow amount set forth in this

22  paragraph may not be used for litigation costs or attorney's

23  fees for the defense of any medical malpractice claim.

24         (b)  Obtaining and maintaining professional liability

25  coverage in an amount not less than $250,000 per claim, with a

26  minimum annual aggregate of not less than $750,000 from an

27  authorized insurer as defined under s. 624.09, from a surplus

28  lines insurer as defined under s. 626.914(2), from a risk

29  retention group as defined under s. 627.942, from the Joint

30  Underwriting Association established under s. 627.351(4),

31  through a plan of self-insurance as provided in s. 627.357, or

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 1  through a plan of self-insurance which meets the conditions

 2  specified for satisfying financial responsibility in s.

 3  766.110. The required coverage amount set forth in this

 4  paragraph may not be used for litigation costs or attorney's

 5  fees for the defense of any medical malpractice claim.

 6         (c)  Obtaining and maintaining an unexpired irrevocable

 7  letter of credit, established pursuant to chapter 675, in an

 8  amount not less than $250,000 per claim, with a minimum

 9  aggregate availability of credit of not less than $750,000.

10  The letter of credit must shall be payable to the physician as

11  beneficiary upon presentment of a final judgment indicating

12  liability and awarding damages to be paid by the physician or

13  upon presentment of a settlement agreement signed by all

14  parties to such agreement when such final judgment or

15  settlement is a result of a claim arising out of the rendering

16  of, or the failure to render, medical care and services. The

17  letter of credit may not be used for litigation costs or

18  attorney's fees for the defense of any medical malpractice

19  claim. The Such letter of credit must shall be nonassignable

20  and nontransferable. The Such letter of credit must shall be

21  issued by any bank or savings association organized and

22  existing under the laws of this state or any bank or savings

23  association organized under the laws of the United States

24  which that has its principal place of business in this state

25  or has a branch office that which is authorized under the laws

26  of this state or of the United States to receive deposits in

27  this state.

28  

29  This subsection shall be inclusive of the coverage in

30  subsection (1).

31  

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 1         (3)(a)  The financial responsibility requirements of

 2  subsections (1) and (2) shall apply to claims for incidents

 3  that occur on or after January 1, 1987, or the initial date of

 4  licensure in this state, whichever is later.

 5         (b)  Meeting the financial responsibility requirements

 6  of this section or the criteria for any exemption from such

 7  requirements must shall be established at the time of issuance

 8  or renewal of a license on or after January 1, 1987.

 9         (b)(c)  Any person may, at any time, submit to the

10  department a request for an advisory opinion regarding such

11  person's qualifications for exemption.

12         (4)(a)  Each insurer, self-insurer, risk retention

13  group, or Joint Underwriting Association must shall promptly

14  notify the department of cancellation or nonrenewal of

15  insurance required by this section. Unless the physician

16  demonstrates that he or she is otherwise in compliance with

17  the requirements of this section, the department shall suspend

18  the license of the physician pursuant to ss. 120.569 and

19  120.57 and notify all health care facilities licensed under

20  chapter 395 of such action. Any suspension under this

21  subsection remains shall remain in effect until the physician

22  demonstrates compliance with the requirements of this section.

23  If any judgments or settlements are pending at the time of

24  suspension, those judgments or settlements must be paid in

25  accordance with this section unless otherwise mutually agreed

26  to in writing by the parties. This paragraph does not abrogate

27  a judgment debtor's obligation to satisfy the entire amount of

28  any judgment, except that a license suspended under paragraph

29  (5)(g) shall not be reinstated until the physician

30  demonstrates compliance with the requirements of that

31  provision.

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 1         (b)  If financial responsibility requirements are met

 2  by maintaining an escrow account or letter of credit as

 3  provided in this section, upon the entry of an adverse final

 4  judgment arising from a medical malpractice arbitration award,

 5  from a claim of medical malpractice either in contract or

 6  tort, or from noncompliance with the terms of a settlement

 7  agreement arising from a claim of medical malpractice either

 8  in contract or tort, the licensee shall pay the entire amount

 9  of the judgment together with all accrued interest, or the

10  amount maintained in the escrow account or provided in the

11  letter of credit as required by this section, whichever is

12  less, within 60 days after the date such judgment became final

13  and subject to execution, unless otherwise mutually agreed to

14  in writing by the parties.  If timely payment is not made by

15  the physician, the department shall suspend the license of the

16  physician pursuant to procedures set forth in subparagraphs

17  (5)(g)3., 4., and 5.  Nothing in this paragraph shall abrogate

18  a judgment debtor's obligation to satisfy the entire amount of

19  any judgment.

20         (5)  The requirements of subsections (1), (2), and (3)

21  do shall not apply to:

22         (a)  Any person licensed under this chapter who

23  practices medicine exclusively as an officer, employee, or

24  agent of the Federal Government or of the state or its

25  agencies or its subdivisions. For the purposes of this

26  subsection, an agent of the state, its agencies, or its

27  subdivisions is a person who is eligible for coverage under

28  any self-insurance or insurance program authorized by the

29  provisions of s. 768.28(15).

30         (b)  Any person whose license has become inactive under

31  this chapter and who is not practicing medicine in this state.

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 1  Any person applying for reactivation of a license must show

 2  either that such licensee maintained tail insurance coverage

 3  which provided liability coverage for incidents that occurred

 4  on or after January 1, 1987, or the initial date of licensure

 5  in this state, whichever is later, and incidents that occurred

 6  before the date on which the license became inactive; or such

 7  licensee must submit an affidavit stating that such licensee

 8  has no unsatisfied medical malpractice judgments or

 9  settlements at the time of application for reactivation.

10         (c)  Any person holding a limited license pursuant to

11  s. 458.317 and practicing under the scope of such limited

12  license.

13         (d)  Any person licensed or certified under this

14  chapter who practices only in conjunction with his or her

15  teaching duties at an accredited medical school or in its main

16  teaching hospitals.  Such person may engage in the practice of

17  medicine to the extent that such practice is incidental to and

18  a necessary part of duties in connection with the teaching

19  position in the medical school.

20         (e)  Any person holding an active license under this

21  chapter who is not practicing medicine in this state.  If such

22  person initiates or resumes any practice of medicine in this

23  state, he or she must notify the department of such activity

24  and fulfill the financial responsibility requirements of this

25  section before resuming the practice of medicine in this

26  state.

27         (f)  Any person holding an active license under this

28  chapter who meets all of the following criteria:

29         1.  The licensee has held an active license to practice

30  in this state or another state or some combination thereof for

31  more than 15 years.

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 1         2.  The licensee has either retired from the practice

 2  of medicine or maintains a part-time practice of no more than

 3  1,000 patient contact hours per year.

 4         3.  The licensee has had no more than two claims for

 5  medical malpractice resulting in an indemnity exceeding

 6  $25,000 within the previous 5-year period.

 7         4.  The licensee has not been convicted of, or pled

 8  guilty or nolo contendere to, any criminal violation specified

 9  in this chapter or the medical practice act of any other

10  state.

11         5.  The licensee has not been subject within the last

12  10 years of practice to license revocation or suspension for

13  any period of time; probation for a period of 3 years or

14  longer; or a fine of $500 or more for a violation of this

15  chapter or the medical practice act of another jurisdiction.

16  The regulatory agency's acceptance of a physician's

17  relinquishment of a license, stipulation, consent order, or

18  other settlement, offered in response to or in anticipation of

19  the filing of administrative charges against the physician's

20  license, constitutes shall be construed as action against the

21  physician's license for the purposes of this paragraph.

22         6.  The licensee has submitted a form supplying

23  necessary information as required by the department and an

24  affidavit affirming compliance with the provisions of this

25  paragraph.

26         7.  The licensee must shall submit biennially to the

27  department certification stating compliance with the

28  provisions of this paragraph. The licensee must shall, upon

29  request, demonstrate to the department information verifying

30  compliance with this paragraph.

31  

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 1  A licensee who meets the requirements of this paragraph must

 2  shall be required either to post notice in the form of a sign

 3  prominently displayed in the reception area and clearly

 4  noticeable by all patients or provide a written statement to

 5  any person to whom medical services are being provided. The

 6  Such sign or statement must read as follows shall state that:

 7  "Under Florida law, physicians are generally required to carry

 8  medical malpractice insurance or otherwise demonstrate

 9  financial responsibility to cover potential claims for medical

10  malpractice.  However, certain part-time physicians who meet

11  state requirements are exempt from the financial

12  responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND

13  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This

14  notice is provided pursuant to Florida law."

15         (g)  Any person holding an active license under this

16  chapter who agrees to meet all of the following criteria:

17         (6)1.  Upon the entry of an adverse final judgment

18  arising from a medical malpractice arbitration award, from a

19  claim of medical malpractice either in contract or tort, or

20  from noncompliance with the terms of a settlement agreement

21  arising from a claim of medical malpractice either in contract

22  or tort, the licensee shall pay the judgment creditor the

23  lesser of the entire amount of the judgment with all accrued

24  interest or either $100,000, if the physician is licensed

25  pursuant to this chapter but does not maintain hospital staff

26  privileges, or $250,000, if the physician is licensed pursuant

27  to this chapter and maintains hospital staff privileges,

28  within 60 days after the date such judgment became final and

29  subject to execution, unless otherwise mutually agreed to in

30  writing by the parties.  Such adverse final judgment shall

31  include any cross-claim, counterclaim, or claim for indemnity

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 1  or contribution arising from the claim of medical malpractice.

 2  Upon notification of the existence of an unsatisfied judgment

 3  or payment pursuant to this subparagraph, the department shall

 4  notify the licensee by certified mail that he or she shall be

 5  subject to disciplinary action unless, within 30 days from the

 6  date of mailing, he or she either:

 7         (a)a.  Shows proof that the unsatisfied judgment has

 8  been paid in the amount specified in this subparagraph; or

 9         (b)b.  Furnishes the department with a copy of a timely

10  filed notice of appeal and either:

11         1.(I)  A copy of a supersedeas bond properly posted in

12  the amount required by law; or

13         2.(II)  An order from a court of competent jurisdiction

14  staying execution on the final judgment pending disposition of

15  the appeal.

16         (c)2.  The Department of Health shall issue an

17  emergency order suspending the license of any licensee who,

18  after 30 days following receipt of a notice from the

19  Department of Health, has failed to: satisfy a medical

20  malpractice claim against him or her; furnish the Department

21  of Health a copy of a timely filed notice of appeal; furnish

22  the Department of Health a copy of a supersedeas bond properly

23  posted in the amount required by law; or furnish the

24  Department of Health an order from a court of competent

25  jurisdiction staying execution on the final judgment pending

26  disposition of the appeal.

27         (d)3.  Upon the next meeting of the probable cause

28  panel of the board following 30 days after the date of mailing

29  the notice of disciplinary action to the licensee, the panel

30  shall make a determination of whether probable cause exists to

31  

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 1  take disciplinary action against the licensee pursuant to this

 2  subsection subparagraph 1.

 3         (e)4.  If the board determines that the factual

 4  requirements of this subsection subparagraph 1. are met, it

 5  shall take disciplinary action as it deems appropriate against

 6  the licensee. Such disciplinary action shall include, at a

 7  minimum, probation of the license with the restriction that

 8  the licensee must make payments to the judgment creditor on a

 9  schedule determined by the board to be reasonable and within

10  the financial capability of the physician. Notwithstanding any

11  other disciplinary penalty imposed, the disciplinary penalty

12  may include suspension of the license for a period not to

13  exceed 5 years.  In the event that an agreement to satisfy a

14  judgment has been met, the board shall remove any restriction

15  on the license.

16         (f)5.  The licensee has completed a form supplying

17  necessary information as required by the department.

18  

19  A licensee who meets the requirements of this paragraph shall

20  be required either to post notice in the form of a sign

21  prominently displayed in the reception area and clearly

22  noticeable by all patients or to provide a written statement

23  to any person to whom medical services are being provided.

24  Such sign or statement shall state: "Under Florida law,

25  physicians are generally required to carry medical malpractice

26  insurance or otherwise demonstrate financial responsibility to

27  cover potential claims for medical malpractice. YOUR DOCTOR

28  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This

29  is permitted under Florida law subject to certain conditions.

30  Florida law imposes penalties against noninsured physicians

31  who fail to satisfy adverse judgments arising from claims of

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 1  medical malpractice.  This notice is provided pursuant to

 2  Florida law."

 3         (7)(6)  Any deceptive, untrue, or fraudulent

 4  representation by the licensee with respect to any provision

 5  of this section shall result in permanent disqualification

 6  from any exemption to mandated financial responsibility as

 7  provided in this section and shall constitute grounds for

 8  disciplinary action under s. 458.331.

 9         (8)(7)  Any licensee who relies on any exemption from

10  the financial responsibility requirement shall notify the

11  department, in writing, of any change of circumstance

12  regarding his or her qualifications for such exemption and

13  shall demonstrate that he or she is in compliance with the

14  requirements of this section.

15         (9)  Notwithstanding any other provision of this

16  section, the department shall suspend the license of any

17  physician against whom has been entered a final judgment,

18  arbitration award, or other order or who has entered into a

19  settlement agreement to pay damages arising out of a claim for

20  medical malpractice, if all appellate remedies have been

21  exhausted and payment up to the amounts required by this

22  section has not been made within 30 days after the entering of

23  such judgment, award, or order or agreement, until proof of

24  payment is received by the department or a payment schedule

25  has been agreed upon by the physician and the claimant and

26  presented to the department. This subsection does not apply to

27  a physician who has met the financial responsibility

28  requirements in paragraphs (1)(b) and (2)(b).

29         (10)(8)  The board shall adopt rules to implement the

30  provisions of this section.

31  

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 1         Section 27.  Effective upon this act becoming a law and

 2  applying to claims accruing on or after that date, section

 3  459.0085, Florida Statutes, is amended to read:

 4         459.0085  Financial responsibility.--

 5         (1)  As a condition of licensing and maintaining an

 6  active license, and prior to the issuance or renewal of an

 7  active license or reactivation of an inactive license for the

 8  practice of osteopathic medicine, an applicant must shall by

 9  one of the following methods demonstrate to the satisfaction

10  of the board and the department financial responsibility to

11  pay claims and costs ancillary thereto arising out of the

12  rendering of, or the failure to render, medical care or

13  services:

14         (a)  Establishing and maintaining an escrow account

15  consisting of cash or assets eligible for deposit in

16  accordance with s. 625.52 in the per-claim amounts specified

17  in paragraph (b).

18         (b)  Obtaining and maintaining professional liability

19  coverage for the current year and for each of the prior years

20  that the applicant or licensee has been in the active practice

21  of medicine, up to a maximum of 4 prior years, in an amount

22  not less than $100,000 per claim, with a minimum annual

23  aggregate of not less than $300,000, from an authorized

24  insurer as defined under s. 624.09, from a surplus lines

25  insurer as defined under s. 626.914(2), from a risk retention

26  group as defined under s. 627.942, from the Joint Underwriting

27  Association established under s. 627.351(4), or through a plan

28  of self-insurance as provided in s. 627.357. The required

29  coverage amount set forth in this paragraph may not be used

30  for litigation costs or attorney's fees for the defense of any

31  medical malpractice claim.

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 1         (c)  Obtaining and maintaining an unexpired,

 2  irrevocable letter of credit, established pursuant to chapter

 3  675, for the current year and for each of the prior years that

 4  the applicant or licensee has been in the active practice of

 5  medicine, up to a maximum of 4 prior years, in an amount not

 6  less than $100,000 per claim, with a minimum aggregate

 7  availability of credit of not less than $300,000. The letter

 8  of credit must shall be payable to the osteopathic physician

 9  as beneficiary upon presentment of a final judgment indicating

10  liability and awarding damages to be paid by the osteopathic

11  physician or upon presentment of a settlement agreement signed

12  by all parties to such agreement when such final judgment or

13  settlement is a result of a claim arising out of the rendering

14  of, or the failure to render, medical care and services. Such

15  letter of credit must shall be nonassignable and

16  nontransferable. Such letter of credit must shall be issued by

17  any bank or savings association organized and existing under

18  the laws of this state or any bank or savings association

19  organized under the laws of the United States which that has

20  its principal place of business in this state or has a branch

21  office that which is authorized under the laws of this state

22  or of the United States to receive deposits in this state.

23         (2)  Osteopathic physicians who perform surgery in an

24  ambulatory surgical center licensed under chapter 395, and, as

25  a continuing condition of hospital staff privileges,

26  osteopathic physicians who have with staff privileges must

27  shall also be required to establish financial responsibility

28  by one of the following methods:

29         (a)  Establishing and maintaining an escrow account

30  consisting of cash or assets eligible for deposit in

31  

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 1  accordance with s. 625.52 in the per-claim amounts specified

 2  in paragraph (b).

 3         (b)  Obtaining and maintaining professional liability

 4  coverage for the current year and for each of the prior years

 5  that the applicant or licensee has been in the active practice

 6  of medicine, up to a maximum of 4 prior years, in an amount

 7  not less than $250,000 per claim, with a minimum annual

 8  aggregate of not less than $750,000 from an authorized insurer

 9  as defined under s. 624.09, from a surplus lines insurer as

10  defined under s. 626.914(2), from a risk retention group as

11  defined under s. 627.942, from the Joint Underwriting

12  Association established under s. 627.351(4), through a plan of

13  self-insurance as provided in s. 627.357, or through a plan of

14  self-insurance that which meets the conditions specified for

15  satisfying financial responsibility in s. 766.110.

16         (c)  Obtaining and maintaining an unexpired,

17  irrevocable letter of credit, established pursuant to chapter

18  675, for the current year and for each of the prior years that

19  the applicant or licensee has been in the active practice of

20  medicine, up to a maximum of 4 prior years, in an amount not

21  less than $250,000 per claim, with a minimum aggregate

22  availability of credit of not less than $750,000. The letter

23  of credit must shall be payable to the osteopathic physician

24  as beneficiary upon presentment of a final judgment indicating

25  liability and awarding damages to be paid by the osteopathic

26  physician or upon presentment of a settlement agreement signed

27  by all parties to such agreement when such final judgment or

28  settlement is a result of a claim arising out of the rendering

29  of, or the failure to render, medical care and services. The

30  Such letter of credit must shall be nonassignable and

31  nontransferable. The Such letter of credit must shall be

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 1  issued by any bank or savings association organized and

 2  existing under the laws of this state or any bank or savings

 3  association organized under the laws of the United States

 4  which that has its principal place of business in this state

 5  or has a branch office that which is authorized under the laws

 6  of this state or of the United States to receive deposits in

 7  this state.

 8  

 9  This subsection shall be inclusive of the coverage in

10  subsection (1).

11         (3)(a)  The financial responsibility requirements of

12  subsections (1) and (2) shall apply to claims for incidents

13  that occur on or after January 1, 1987, or the initial date of

14  licensure in this state, whichever is later.

15         (b)  Meeting the financial responsibility requirements

16  of this section or the criteria for any exemption from such

17  requirements must shall be established at the time of issuance

18  or renewal of a license on or after January 1, 1987.

19         (b)(c)  Any person may, at any time, submit to the

20  department a request for an advisory opinion regarding such

21  person's qualifications for exemption.

22         (4)(a)  Each insurer, self-insurer, risk retention

23  group, or joint underwriting association must shall promptly

24  notify the department of cancellation or nonrenewal of

25  insurance required by this section. Unless the osteopathic

26  physician demonstrates that he or she is otherwise in

27  compliance with the requirements of this section, the

28  department shall suspend the license of the osteopathic

29  physician pursuant to ss. 120.569 and 120.57 and notify all

30  health care facilities licensed under chapter 395, part IV of

31  chapter 394, or part I of chapter 641 of such action. Any

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 1  suspension under this subsection remains shall remain in

 2  effect until the osteopathic physician demonstrates compliance

 3  with the requirements of this section. If any judgments or

 4  settlements are pending at the time of suspension, those

 5  judgments or settlements must be paid in accordance with

 6  section (6) unless otherwise mutually agreed to in writing by

 7  the parties. This paragraph does not abrogate a judgment

 8  debtor's obligation to satisfy the entire amount of any

 9  judgment except that a license suspended under paragraph

10  (5)(g) shall not be reinstated until the osteopathic physician

11  demonstrates compliance with the requirements of that

12  provision.

13         (b)  If financial responsibility requirements are met

14  by maintaining an escrow account or letter of credit as

15  provided in this section, upon the entry of an adverse final

16  judgment arising from a medical malpractice arbitration award,

17  from a claim of medical malpractice either in contract or

18  tort, or from noncompliance with the terms of a settlement

19  agreement arising from a claim of medical malpractice either

20  in contract or tort, the licensee shall pay the entire amount

21  of the judgment together with all accrued interest or the

22  amount maintained in the escrow account or provided in the

23  letter of credit as required by this section, whichever is

24  less, within 60 days after the date such judgment became final

25  and subject to execution, unless otherwise mutually agreed to

26  in writing by the parties. If timely payment is not made by

27  the osteopathic physician, the department shall suspend the

28  license of the osteopathic physician pursuant to procedures

29  set forth in subparagraphs (5)(g)3., 4., and 5. Nothing in

30  this paragraph shall abrogate a judgment debtor's obligation

31  to satisfy the entire amount of any judgment.

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 1         (5)  The requirements of subsections (1), (2), and (3)

 2  do shall not apply to:

 3         (a)  Any person licensed under this chapter who

 4  practices medicine exclusively as an officer, employee, or

 5  agent of the Federal Government or of the state or its

 6  agencies or its subdivisions.  For the purposes of this

 7  subsection, an agent of the state, its agencies, or its

 8  subdivisions is a person who is eligible for coverage under

 9  any self-insurance or insurance program authorized by the

10  provisions of s. 768.28(15).

11         (b)  Any person whose license has become inactive under

12  this chapter and who is not practicing medicine in this state.

13  Any person applying for reactivation of a license must show

14  either that such licensee maintained tail insurance coverage

15  that which provided liability coverage for incidents that

16  occurred on or after January 1, 1987, or the initial date of

17  licensure in this state, whichever is later, and incidents

18  that occurred before the date on which the license became

19  inactive; or such licensee must submit an affidavit stating

20  that such licensee has no unsatisfied medical malpractice

21  judgments or settlements at the time of application for

22  reactivation.

23         (c)  Any person holding a limited license pursuant to

24  s. 459.0075 and practicing under the scope of such limited

25  license.

26         (d)  Any person licensed or certified under this

27  chapter who practices only in conjunction with his or her

28  teaching duties at a college of osteopathic medicine.  Such

29  person may engage in the practice of osteopathic medicine to

30  the extent that such practice is incidental to and a necessary

31  

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 1  part of duties in connection with the teaching position in the

 2  college of osteopathic medicine.

 3         (e)  Any person holding an active license under this

 4  chapter who is not practicing osteopathic medicine in this

 5  state. If such person initiates or resumes any practice of

 6  osteopathic medicine in this state, he or she must notify the

 7  department of such activity and fulfill the financial

 8  responsibility requirements of this section before resuming

 9  the practice of osteopathic medicine in this state.

10         (f)  Any person holding an active license under this

11  chapter who meets all of the following criteria:

12         1.  The licensee has held an active license to practice

13  in this state or another state or some combination thereof for

14  more than 15 years.

15         2.  The licensee has either retired from the practice

16  of osteopathic medicine or maintains a part-time practice of

17  osteopathic medicine of no more than 1,000 patient contact

18  hours per year.

19         3.  The licensee has had no more than two claims for

20  medical malpractice resulting in an indemnity exceeding

21  $25,000 within the previous 5-year period.

22         4.  The licensee has not been convicted of, or pled

23  guilty or nolo contendere to, any criminal violation specified

24  in this chapter or the practice act of any other state.

25         5.  The licensee has not been subject within the last

26  10 years of practice to license revocation or suspension for

27  any period of time, probation for a period of 3 years or

28  longer, or a fine of $500 or more for a violation of this

29  chapter or the medical practice act of another jurisdiction.

30  The regulatory agency's acceptance of an osteopathic

31  physician's relinquishment of a license, stipulation, consent

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 1  order, or other settlement, offered in response to or in

 2  anticipation of the filing of administrative charges against

 3  the osteopathic physician's license, constitutes shall be

 4  construed as action against the physician's license for the

 5  purposes of this paragraph.

 6         6.  The licensee has submitted a form supplying

 7  necessary information as required by the department and an

 8  affidavit affirming compliance with the provisions of this

 9  paragraph.

10         7.  The licensee must shall submit biennially to the

11  department a certification stating compliance with the

12  provisions of this paragraph. The licensee must shall, upon

13  request, demonstrate to the department information verifying

14  compliance with this paragraph.

15  

16  A licensee who meets the requirements of this paragraph must

17  shall be required either to post notice in the form of a sign

18  prominently displayed in the reception area and clearly

19  noticeable by all patients or to provide a written statement

20  to any person to whom medical services are being provided. The

21  Such sign or statement must read as follows shall state that:

22  "Under Florida law, osteopathic physicians are generally

23  required to carry medical malpractice insurance or otherwise

24  demonstrate financial responsibility to cover potential claims

25  for medical malpractice. However, certain part-time

26  osteopathic physicians who meet state requirements are exempt

27  from the financial responsibility law. YOUR OSTEOPATHIC

28  PHYSICIAN MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO

29  CARRY MEDICAL MALPRACTICE INSURANCE.  This notice is provided

30  pursuant to Florida law."

31  

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 1         (g)  Any person holding an active license under this

 2  chapter who agrees to meet all of the following criteria:

 3         (6)1.  Upon the entry of an adverse final judgment

 4  arising from a medical malpractice arbitration award, from a

 5  claim of medical malpractice either in contract or tort, or

 6  from noncompliance with the terms of a settlement agreement

 7  arising from a claim of medical malpractice either in contract

 8  or tort, the licensee shall pay the judgment creditor the

 9  lesser of the entire amount of the judgment with all accrued

10  interest or either $100,000, if the osteopathic physician is

11  licensed pursuant to this chapter but does not maintain

12  hospital staff privileges, or $250,000, if the osteopathic

13  physician is licensed pursuant to this chapter and maintains

14  hospital staff privileges, within 60 days after the date such

15  judgment became final and subject to execution, unless

16  otherwise mutually agreed to in writing by the parties. Such

17  adverse final judgment shall include any cross-claim,

18  counterclaim, or claim for indemnity or contribution arising

19  from the claim of medical malpractice. Upon notification of

20  the existence of an unsatisfied judgment or payment pursuant

21  to this subparagraph, the department shall notify the licensee

22  by certified mail that he or she shall be subject to

23  disciplinary action unless, within 30 days from the date of

24  mailing, the licensee either:

25         (a)a.  Shows proof that the unsatisfied judgment has

26  been paid in the amount specified in this subparagraph; or

27         (b)b.  Furnishes the department with a copy of a timely

28  filed notice of appeal and either:

29         1.(I)  A copy of a supersedeas bond properly posted in

30  the amount required by law; or

31  

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 1         2.(II)  An order from a court of competent jurisdiction

 2  staying execution on the final judgment, pending disposition

 3  of the appeal.

 4         (c)2.  The Department of Health shall issue an

 5  emergency order suspending the license of any licensee who,

 6  after 30 days following receipt of a notice from the

 7  Department of Health, has failed to: satisfy a medical

 8  malpractice claim against him or her; furnish the Department

 9  of Health a copy of a timely filed notice of appeal; furnish

10  the Department of Health a copy of a supersedeas bond properly

11  posted in the amount required by law; or furnish the

12  Department of Health an order from a court of competent

13  jurisdiction staying execution on the final judgment pending

14  disposition of the appeal.

15         (d)3.  Upon the next meeting of the probable cause

16  panel of the board following 30 days after the date of mailing

17  the notice of disciplinary action to the licensee, the panel

18  shall make a determination of whether probable cause exists to

19  take disciplinary action against the licensee pursuant to this

20  subsection subparagraph 1.

21         (e)4.  If the board determines that the factual

22  requirements of this subsection subparagraph 1. are met, it

23  shall take disciplinary action as it deems appropriate against

24  the licensee. Such disciplinary action shall include, at a

25  minimum, probation of the license with the restriction that

26  the licensee must make payments to the judgment creditor on a

27  schedule determined by the board to be reasonable and within

28  the financial capability of the osteopathic physician.

29  Notwithstanding any other disciplinary penalty imposed, the

30  disciplinary penalty may include suspension of the license for

31  a period not to exceed 5 years.  In the event that an

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 1  agreement to satisfy a judgment has been met, the board shall

 2  remove any restriction on the license.

 3         (f)5.  The licensee has completed a form supplying

 4  necessary information as required by the department.

 5  

 6  A licensee who meets the requirements of this paragraph shall

 7  be required either to post notice in the form of a sign

 8  prominently displayed in the reception area and clearly

 9  noticeable by all patients or to provide a written statement

10  to any person to whom medical services are being provided.

11  Such sign or statement shall state: "Under Florida law,

12  osteopathic physicians are generally required to carry medical

13  malpractice insurance or otherwise demonstrate financial

14  responsibility to cover potential claims for medical

15  malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO

16  CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under

17  Florida law subject to certain conditions.  Florida law

18  imposes strict penalties against noninsured osteopathic

19  physicians who fail to satisfy adverse judgments arising from

20  claims of medical malpractice. This notice is provided

21  pursuant to Florida law."

22         (7)(6)  Any deceptive, untrue, or fraudulent

23  representation by the licensee with respect to any provision

24  of this section shall result in permanent disqualification

25  from any exemption to mandated financial responsibility as

26  provided in this section and shall constitute grounds for

27  disciplinary action under s. 459.015.

28         (8)(7)  Any licensee who relies on any exemption from

29  the financial responsibility requirement shall notify the

30  department in writing of any change of circumstance regarding

31  his or her qualifications for such exemption and shall

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 1  demonstrate that he or she is in compliance with the

 2  requirements of this section.

 3         (9)(8)  If a physician is either a resident physician,

 4  assistant resident physician, or intern in an approved

 5  postgraduate training program, as defined by the board's

 6  rules, and is supervised by a physician who is participating

 7  in the Florida Birth-Related Neurological Injury Compensation

 8  Plan, such resident physician, assistant resident physician,

 9  or intern is deemed to be a participating physician without

10  the payment of the assessment set forth in s. 766.314(4).

11         (10)  Notwithstanding any other provision of this

12  section, the department shall suspend the license of any

13  osteopathic physician against whom has been entered a final

14  judgment, arbitration award, or other order or who has entered

15  into a settlement agreement to pay damages arising out of a

16  claim for medical malpractice, if all appellate remedies have

17  been exhausted and payment up to the amounts required by this

18  section has not been made within 30 days after the entering of

19  such judgment, award, or order or agreement, until proof of

20  payment is received by the department or a payment schedule

21  has been agreed upon by the osteopathic physician and the

22  claimant and presented to the department. This subsection does

23  not apply to an osteopathic physician who has met the

24  financial responsibility requirements in paragraphs (1)(b) and

25  (2)(b).

26         (11)(9)  The board shall adopt rules to implement the

27  provisions of this section.

28         Section 28.  Civil immunity for members of or

29  consultants to certain boards, committees, or other

30  entities.--

31  

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 1         (1)  Each member of, or health care professional

 2  consultant to, any committee, board, group, commission, or

 3  other entity shall be immune from civil liability for any act,

 4  decision, omission, or utterance done or made in performance

 5  of his duties while serving as a member of or consultant to

 6  such committee, board, group, commission, or other entity

 7  established and operated for purposes of quality improvement

 8  review, evaluation, and planning in a state-licensed health

 9  care facility. Such entities must function primarily to

10  review, evaluate, or make recommendations relating to:

11         (a)  The duration of patient stays in health care

12  facilities;

13         (b)  The professional services furnished with respect

14  to the medical, dental, psychological, podiatric,

15  chiropractic, or optometric necessity for such services;

16         (c)  The purpose of promoting the most efficient use of

17  available health care facilities and services;

18         (d)  The adequacy or quality of professional services;

19         (e)  The competency and qualifications for professional

20  staff privileges;

21         (f)  The reasonableness or appropriateness of charges

22  made by or on behalf of health care facilities; or

23         (g)  Patient safety, including entering into contracts

24  with patient safety organizations.

25         (2)  Such committee, board, group, commission, or other

26  entity must be established in accordance with state law or in

27  accordance with requirements of the Joint Commission on

28  Accreditation of Healthcare Organizations, established and

29  duly constituted by one or more public or licensed private

30  hospitals or behavioral health agencies, or established by a

31  governmental agency. To be protected by this section, the act,

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 1  decision, omission, or utterance may not be made or done in

 2  bad faith or with malicious intent.

 3         Section 29.  Patient safety data privilege.--

 4         (1)  As used in this section, the term:

 5         (a)  "Patient safety data" means reports made to

 6  patient safety organizations, including all health care data,

 7  interviews, memoranda, analyses, root cause analyses, products

 8  of quality assurance or quality improvement processes,

 9  corrective action plans, or information collected or created

10  by a health care facility licensed under chapter 395 or a

11  health care practitioner as defined in section 456.001(4),

12  Florida Statutes, as a result of an occurrence related to the

13  provision of health care services which exacerbates an

14  existing medical condition or could result in injury, illness,

15  or death.

16         (b)  "Patient safety organization" means any

17  organization, group, or other entity that collects and

18  analyzes patient safety data for the purpose of improving

19  patient safety and health care outcomes and that is

20  independent and not under the control of the entity that

21  reports patient safety data.

22         (2)  Patient safety data shall not be subject to

23  discovery or introduction into evidence in any civil or

24  administrative action. However, information, documents, or

25  records otherwise available from original sources are not

26  immune from discovery or use in any civil or administrative

27  action merely because they were also collected, analyzed, or

28  presented to a patient safety organization. Any person who

29  testifies before a patient safety organization or who is a

30  member of such a group may not be prevented from testifying as

31  to matters within his or her knowledge, but he or she may not

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 1  be asked about his or her testimony before a patient safety

 2  organization or the opinions formed by him or her as a result

 3  of the hearings.

 4         (3)  Unless otherwise provided by law, a patient safety

 5  organization shall promptly remove all patient-identifying

 6  information after receipt of a complete patient safety data

 7  report unless such organization is otherwise permitted by

 8  state or federal law to maintain such information. Patient

 9  safety organizations shall maintain the confidentiality of all

10  patient-identifying information and may not disseminate such

11  information, except as permitted by state or federal law.

12         (4)  The exchange of patient safety data among health

13  care facilities licensed under chapter 395 or health care

14  practitioners as defined in section 456.001 (4), Florida

15  Statutes, or patient safety organizations which does not

16  identify any patient shall not constitute a waiver of any

17  privilege established in this section.

18         (5)  Reports of patient safety data to patient safety

19  organizations does not abrogate obligations to make reports to

20  the Department of Health, the Agency for Health Care

21  Administration, or other state or federal regulatory agencies.

22         (6)  An employer may not take retaliatory action

23  against an employee who in good faith makes a report of

24  patient safety data to a patient safety organization.

25         Section 30.  Each final settlement statement relating

26  to medical malpractice shall include the following statement:

27  "The decision to settle a case may reflect the economic

28  practicalities pertaining to the cost of litigation and is

29  not, alone, an admission that the insured failed to meet the

30  required standard of care applicable to the patient's

31  treatment. The decision to settle a case may be made by the

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 1  insurance company without consulting its client for input,

 2  unless otherwise provided by the insurance policy."

 3         Section 31.  Office of Insurance Regulation; closed

 4  claim forms; report required.--The Office of Insurance

 5  Regulation shall revise its closed claim form for readability

 6  at the 9th grade level. The office shall compile annual

 7  statistical reports that provide data summaries of all closed

 8  claims, including, but not limited to, the number of closed

 9  claims on file pertaining to the referent health care

10  professional or health care entity, the nature of the errant

11  conduct, the size of payments, and the frequency and size of

12  noneconomic damage awards. The office shall develop annualized

13  historical statistical summaries beginning with the 1976 state

14  fiscal year and publish these reports on its website no later

15  than the 2005 state fiscal year. The form must accommodate the

16  following minimum requirements:

17         (1)  A practitioner of medicine licensed pursuant to

18  chapter 458, Florida Statutes, a practitioner of osteopathic

19  medicine licensed pursuant to chapter 459, Florida Statutes, a

20  practitioner of podiatric medicine licensed pursuant to

21  chapter 461, Florida Statutes, or a dentist licensed pursuant

22  to chapter 466, Florida Statutes, shall report to the Office

23  of Insurance Regulation and the Department of Health any claim

24  or action for damages for personal injury alleged to have been

25  caused by error, omission, or negligence in the performance of

26  such licensee's professional services or based on a claimed

27  performance of professional services without consent if the

28  claim was not covered by an insurer required to report under

29  section 627.912, Florida Statutes, and the claim resulted in:

30         (a)  A final judgment in any amount.

31         (b)  A settlement in any amount.

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 1  

 2  Reports shall be filed with the Office of Insurance Regulation

 3  no later than 60 days following the occurrence of any event

 4  listed in this subsection.

 5         (2)  Health professional reports must contain:

 6         (a)  The name and address of the licensee.

 7         (b)  The alleged occurrence.

 8         (c)  The date of the alleged occurrence.

 9         (d)  The date the claim or action was reported to the

10  licensee.

11         (e)  The name and address of the opposing party.

12         (f)  The date of suit, if filed.

13         (g)  The injured person's age and sex.

14         (h)  The total number and names of all defendants

15  involved in the claim.

16         (i)  The date and amount of judgment or settlement, if

17  any, including the itemization of the verdict, together with a

18  copy of the settlement or judgment.

19         (j)  In the case of a settlement, any information

20  required by the Office of Insurance Regulation concerning the

21  injured person's incurred and anticipated medical expense,

22  wage loss, and other expenses.

23         (k)  The loss adjustment expense paid to defense

24  counsel, and all other allocated loss adjustment expense paid.

25         (l)  The date and reason for final disposition, if

26  there was no judgment or settlement.

27         (m)  A summary of the occurrence that created the

28  claim, which must include:

29         1.  The name of the institution, if any, and the

30  location within such institution, at which the injury

31  occurred.

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 1         2.  The final diagnosis for which treatment was sought

 2  or rendered, including the patient's actual condition.

 3         3.  A description of the misdiagnosis made, if any, of

 4  the patient's actual condition.

 5         4.  The operation or the diagnostic or treatment

 6  procedure causing the injury.

 7         5.  A description of the principal injury giving rise

 8  to the claim.

 9         6.  The safety management steps that have been taken by

10  the licensee to make similar occurrences or injuries less

11  likely in the future.

12         (n)  Any other information required by the Office of

13  Insurance Regulation to analyze and evaluate the nature,

14  causes, location, cost, and damages involved in professional

15  liability cases.

16         Section 32.  Paragraph (t) of subsection (1) and

17  subsections (3) and (6) of section 458.331, Florida Statutes,

18  are amended to read:

19         458.331  Grounds for disciplinary action; action by the

20  board and department.--

21         (1)  The following acts constitute grounds for denial

22  of a license or disciplinary action, as specified in s.

23  456.072(2):

24         (t)  Gross or repeated malpractice or the failure to

25  practice medicine with that level of care, skill, and

26  treatment which is recognized by a reasonably prudent similar

27  physician as being acceptable under similar conditions and

28  circumstances.  The board shall give great weight to the

29  provisions of s. 766.102 when enforcing this paragraph.  As

30  used in this paragraph, "repeated malpractice" includes, but

31  is not limited to, three or more claims for medical

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 1  malpractice within the previous 5-year period resulting in

 2  indemnities being paid in excess of $50,000 $25,000 each to

 3  the claimant in a judgment or settlement and which incidents

 4  involved negligent conduct by the physician. As used in this

 5  paragraph, "gross malpractice" or "the failure to practice

 6  medicine with that level of care, skill, and treatment which

 7  is recognized by a reasonably prudent similar physician as

 8  being acceptable under similar conditions and circumstances,"

 9  shall not be construed so as to require more than one

10  instance, event, or act.  Nothing in this paragraph shall be

11  construed to require that a physician be incompetent to

12  practice medicine in order to be disciplined pursuant to this

13  paragraph. A recommended order by an administrative law judge

14  or a final order of the board finding a violation under this

15  paragraph shall specify whether the licensee was found to have

16  committed "gross malpractice," "repeated malpractice," or

17  "failure to practice medicine with that level of care, skill,

18  and treatment which is recognized as being acceptable under

19  similar conditions and circumstances," or any combination

20  thereof, and any publication by the board must so specify.

21         (3)  In any administrative action against a physician

22  which does not involve revocation or suspension of license,

23  the division shall have the burden, by the greater weight of

24  the evidence, to establish the existence of grounds for

25  disciplinary action.  The division shall establish grounds for

26  revocation or suspension of license by clear and convincing

27  evidence.

28         (6)  Upon the department's receipt from an insurer or

29  self-insurer of a report of a closed claim against a physician

30  pursuant to s. 627.912 or from a health care practitioner of a

31  report pursuant to s. 456.049, or upon the receipt from a

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 1  claimant of a presuit notice against a physician pursuant to

 2  s. 766.106, the department shall review each report and

 3  determine whether it potentially involved conduct by a

 4  licensee that is subject to disciplinary action, in which case

 5  the provisions of s. 456.073 shall apply. However, if it is

 6  reported that a physician has had three or more claims with

 7  indemnities exceeding $50,000 $25,000 each within the previous

 8  5-year period, the department shall investigate the

 9  occurrences upon which the claims were based and determine if

10  action by the department against the physician is warranted.

11         Section 33.  Paragraph (x) of subsection (1) and

12  subsections (3) and (6) of section 459.015, Florida Statutes,

13  are amended to read:

14         459.015  Grounds for disciplinary action; action by the

15  board and department.--

16         (1)  The following acts constitute grounds for denial

17  of a license or disciplinary action, as specified in s.

18  456.072(2):

19         (x)  Gross or repeated malpractice or the failure to

20  practice osteopathic medicine with that level of care, skill,

21  and treatment which is recognized by a reasonably prudent

22  similar osteopathic physician as being acceptable under

23  similar conditions and circumstances. The board shall give

24  great weight to the provisions of s. 766.102 when enforcing

25  this paragraph. As used in this paragraph, "repeated

26  malpractice" includes, but is not limited to, three or more

27  claims for medical malpractice within the previous 5-year

28  period resulting in indemnities being paid in excess of

29  $50,000 $25,000 each to the claimant in a judgment or

30  settlement and which incidents involved negligent conduct by

31  the osteopathic physician. As used in this paragraph, "gross

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 1  malpractice" or "the failure to practice osteopathic medicine

 2  with that level of care, skill, and treatment which is

 3  recognized by a reasonably prudent similar osteopathic

 4  physician as being acceptable under similar conditions and

 5  circumstances" shall not be construed so as to require more

 6  than one instance, event, or act. Nothing in this paragraph

 7  shall be construed to require that an osteopathic physician be

 8  incompetent to practice osteopathic medicine in order to be

 9  disciplined pursuant to this paragraph.  A recommended order

10  by an administrative law judge or a final order of the board

11  finding a violation under this paragraph shall specify whether

12  the licensee was found to have committed "gross malpractice,"

13  "repeated malpractice," or "failure to practice osteopathic

14  medicine with that level of care, skill, and treatment which

15  is recognized as being acceptable under similar conditions and

16  circumstances," or any combination thereof, and any

17  publication by the board shall so specify.

18         (3)  In any administrative action against a physician

19  which does not involve revocation or suspension of license,

20  the division shall have the burden, by the greater weight of

21  the evidence, to establish the existence of grounds for

22  disciplinary action.  The division shall establish grounds for

23  revocation or suspension of license by clear and convincing

24  evidence.

25         (6)  Upon the department's receipt from an insurer or

26  self-insurer of a report of a closed claim against an

27  osteopathic physician pursuant to s. 627.912 or from a health

28  care practitioner of a report pursuant to s. 456.049, or upon

29  the receipt from a claimant of a presuit notice against an

30  osteopathic physician pursuant to s. 766.106, the department

31  shall review each report and determine whether it potentially

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 1  involved conduct by a licensee that is subject to disciplinary

 2  action, in which case the provisions of s. 456.073 shall

 3  apply.  However, if it is reported that an osteopathic

 4  physician has had three or more claims with indemnities

 5  exceeding $50,000 $25,000 each within the previous 5-year

 6  period, the department shall investigate the occurrences upon

 7  which the claims were based and determine if action by the

 8  department against the osteopathic physician is warranted.

 9         Section 34.  Subsection (6) of section 460.413, Florida

10  Statutes, is amended to read:

11         460.413  Grounds for disciplinary action; action by

12  board or department.--

13         (6)  In any administrative action against a

14  chiropractic physician which does not involve revocation or

15  suspension of license, the department shall have the burden,

16  by the greater weight of the evidence, to establish the

17  existence of grounds for disciplinary action. The department

18  shall establish grounds for revocation or suspension of

19  license by clear and convincing evidence.

20         Section 35.  Legislative intent.--The Legislature

21  declares that reducing the burden of proof in medical

22  disciplinary cases to the level of greater weight of the

23  evidence is necessary to protect the health, safety, and

24  welfare of medical patients in the state. The Legislature

25  declares that there is an overwhelming public necessity to

26  protect medical patients which far overrides any purported

27  property interest in a license to practice in this state held

28  by a licensed health care practitioner. Furthermore, the

29  Legislature declares that it is a privilege, not a right, to

30  practice as a health care professional in this state and that

31  disciplinary action relating to scope of practice issues in

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 1  particular is remedial and protective, not penal, in nature.

 2  The Legislature specifically reverses case law to the

 3  contrary.

 4         Section 36.  The Division of Administrative Hearings

 5  shall designate at least two administrative law judges who

 6  shall specifically preside over actions involving the

 7  Department of Health or boards within the Department of Health

 8  and a health care practitioner as defined in section 456.001,

 9  Florida Statutes. Each designated administrative law judge

10  must be a member of The Florida Bar in good standing and must

11  have experience working in the health care industry or have

12  attained board certification in health care law from The

13  Florida Bar.

14         Section 37.  Paragraph (s) of subsection (1) and

15  paragraph (a) of subsection (5) of section 461.013, Florida

16  Statutes, are amended to read:

17         461.013  Grounds for disciplinary action; action by the

18  board; investigations by department.--

19         (1)  The following acts constitute grounds for denial

20  of a license or disciplinary action, as specified in s.

21  456.072(2):

22         (s)  Gross or repeated malpractice or the failure to

23  practice podiatric medicine at a level of care, skill, and

24  treatment which is recognized by a reasonably prudent

25  podiatric physician as being acceptable under similar

26  conditions and circumstances.  The board shall give great

27  weight to the standards for malpractice in s. 766.102 in

28  interpreting this section. As used in this paragraph,

29  "repeated malpractice" includes, but is not limited to, three

30  or more claims for medical malpractice within the previous

31  5-year period resulting in indemnities being paid in excess of

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 1  $50,000 $10,000 each to the claimant in a judgment or

 2  settlement and which incidents involved negligent conduct by

 3  the podiatric physicians. As used in this paragraph, "gross

 4  malpractice" or "the failure to practice podiatric medicine

 5  with the level of care, skill, and treatment which is

 6  recognized by a reasonably prudent similar podiatric physician

 7  as being acceptable under similar conditions and

 8  circumstances" shall not be construed so as to require more

 9  than one instance, event, or act.

10         (5)(a)  Upon the department's receipt from an insurer

11  or self-insurer of a report of a closed claim against a

12  podiatric physician pursuant to s. 627.912, or upon the

13  receipt from a claimant of a presuit notice against a

14  podiatric physician pursuant to s. 766.106, the department

15  shall review each report and determine whether it potentially

16  involved conduct by a licensee that is subject to disciplinary

17  action, in which case the provisions of s. 456.073 shall

18  apply. However, if it is reported that a podiatric physician

19  has had three or more claims with indemnities exceeding

20  $50,000 $25,000 each within the previous 5-year period, the

21  department shall investigate the occurrences upon which the

22  claims were based and determine if action by the department

23  against the podiatric physician is warranted.

24         Section 38.  Paragraph (x) of subsection (1) of section

25  466.028, Florida Statutes, is amended to read:

26         466.028  Grounds for disciplinary action; action by the

27  board.--

28         (1)  The following acts constitute grounds for denial

29  of a license or disciplinary action, as specified in s.

30  456.072(2):

31  

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 1         (x)  Being guilty of incompetence or negligence by

 2  failing to meet the minimum standards of performance in

 3  diagnosis and treatment when measured against generally

 4  prevailing peer performance, including, but not limited to,

 5  the undertaking of diagnosis and treatment for which the

 6  dentist is not qualified by training or experience or being

 7  guilty of dental malpractice. For purposes of this paragraph,

 8  it shall be legally presumed that a dentist is not guilty of

 9  incompetence or negligence by declining to treat an individual

10  if, in the dentist's professional judgment, the dentist or a

11  member of her or his clinical staff is not qualified by

12  training and experience, or the dentist's treatment facility

13  is not clinically satisfactory or properly equipped to treat

14  the unique characteristics and health status of the dental

15  patient, provided the dentist refers the patient to a

16  qualified dentist or facility for appropriate treatment.  As

17  used in this paragraph, "dental malpractice" includes, but is

18  not limited to, three or more claims within the previous

19  5-year period which resulted in indemnity being paid, or any

20  single indemnity paid in excess of $25,000 $5,000 in a

21  judgment or settlement, as a result of negligent conduct on

22  the part of the dentist.

23         Section 39.  Subsection (2) of section 624.462, Florida

24  Statutes, is amended to read:

25         624.462  Commercial self-insurance funds.--

26         (2)  As used in ss. 624.460-624.488, "commercial

27  self-insurance fund" or "fund" means a group of members,

28  operating individually and collectively through a trust or

29  corporation, that must be:

30         (a)  Established by:

31  

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 1         1.  A not-for-profit trade association, industry

 2  association, or professional association of employers or

 3  professionals which has a constitution or bylaws, which is

 4  incorporated under the laws of this state, and which has been

 5  organized for purposes other than that of obtaining or

 6  providing insurance and operated in good faith for a

 7  continuous period of 1 year;

 8         2.  A self-insurance trust fund organized pursuant to

 9  s. 627.357 and maintained in good faith for a continuous

10  period of 1 year for purposes other than that of obtaining or

11  providing insurance pursuant to this section.  Each member of

12  a commercial self-insurance trust fund established pursuant to

13  this subsection must maintain membership in the self-insurance

14  trust fund organized pursuant to s. 627.357; or

15         3.  A group of 10 or more health care providers, as

16  defined in s. 627.351(4)(h); or

17         4.3.  A not-for-profit group comprised of no less than

18  10 condominium associations as defined in s. 718.103(2), which

19  is incorporated under the laws of this state, which restricts

20  its membership to condominium associations only, and which has

21  been organized and maintained in good faith for a continuous

22  period of 1 year for purposes other than that of obtaining or

23  providing insurance.

24         (b)1.  In the case of funds established pursuant to

25  subparagraph (a)2. or subparagraph (a)4. subparagraph (a)3.,

26  operated pursuant to a trust agreement by a board of trustees

27  which shall have complete fiscal control over the fund and

28  which shall be responsible for all operations of the fund.

29  The majority of the trustees shall be owners, partners,

30  officers, directors, or employees of one or more members of

31  the fund.  The trustees shall have the authority to approve

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 1  applications of members for participation in the fund and to

 2  contract with an authorized administrator or servicing company

 3  to administer the day-to-day affairs of the fund.

 4         2.  In the case of funds established pursuant to

 5  subparagraph (a)1. or subparagraph (a)3., operated pursuant to

 6  a trust agreement by a board of trustees or as a corporation

 7  by a board of directors which board shall:

 8         a.  Be responsible to members of the fund or

 9  beneficiaries of the trust or policyholders of the

10  corporation;

11         b.  Appoint independent certified public accountants,

12  legal counsel, actuaries, and investment advisers as needed;

13         c.  Approve payment of dividends to members;

14         d.  Approve changes in corporate structure; and

15         e.  Have the authority to contract with an

16  administrator authorized under s. 626.88 to administer the

17  day-to-day affairs of the fund including, but not limited to,

18  marketing, underwriting, billing, collection, claims

19  administration, safety and loss prevention, reinsurance,

20  policy issuance, accounting, regulatory reporting, and general

21  administration.  The fees or compensation for services under

22  such contract shall be comparable to the costs for similar

23  services incurred by insurers writing the same lines of

24  insurance, or where available such expenses as filed by

25  boards, bureaus, and associations designated by insurers to

26  file such data. A majority of the trustees or directors shall

27  be owners, partners, officers, directors, or employees of one

28  or more members of the fund.

29         Section 40.  Paragraph (a) of subsection (6) of section

30  627.062, Florida Statutes, is amended, and subsection (7) is

31  added to that section, to read:

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 1         627.062  Rate standards.--

 2         (6)(a)  After any action with respect to a rate filing

 3  that constitutes agency action for purposes of the

 4  Administrative Procedure Act, except for a rate filing for

 5  medical malpractice, an insurer may, in lieu of demanding a

 6  hearing under s. 120.57, require arbitration of the rate

 7  filing. Arbitration shall be conducted by a board of

 8  arbitrators consisting of an arbitrator selected by the

 9  department, an arbitrator selected by the insurer, and an

10  arbitrator selected jointly by the other two arbitrators. Each

11  arbitrator must be certified by the American Arbitration

12  Association. A decision is valid only upon the affirmative

13  vote of at least two of the arbitrators. No arbitrator may be

14  an employee of any insurance regulator or regulatory body or

15  of any insurer, regardless of whether or not the employing

16  insurer does business in this state. The department and the

17  insurer must treat the decision of the arbitrators as the

18  final approval of a rate filing. Costs of arbitration shall be

19  paid by the insurer.

20         (7)(a)  The provisions of this subsection apply only

21  with respect to rates for medical malpractice insurance and

22  shall control to the extent of any conflict with other

23  provisions of this section.

24         (b)  Any portion of a judgment entered or settlement

25  paid as a result of a statutory or common-law, bad-faith

26  action and any portion of a judgment entered which awards

27  punitive damages against an insurer may not be included in the

28  insurer's rate base, and shall not be used to justify a rate

29  or rate change. Any common-law bad-faith action identified as

30  such and any portion of a settlement entered as a result of a

31  statutory or portion of a settlement wherein an insurer agrees

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 1  to pay specific punitive damages may not be used to justify a

 2  rate or rate change. The portion of the taxable costs and

 3  attorney's fees which is identified as being related to the

 4  bad faith and punitive damages in these judgments and

 5  settlements may not be included in the insurer's rate base and

 6  may not be utilized to justify a rate or rate change.

 7         (c)  Upon reviewing a rate filing and determining

 8  whether the rate is excessive, inadequate, or unfairly

 9  discriminatory, the Office of Insurance Regulation shall

10  consider, in accordance with generally accepted and reasonable

11  actuarial techniques, past and present prospective loss

12  experience, either using loss experience solely for this state

13  or giving greater credibility to this state's loss data.

14         (d)  Rates shall be deemed excessive if, among other

15  standards established by this section, the rate structure

16  provides for replenishment of reserves or surpluses from

17  premiums when the replenishment is attributable to investment

18  losses.

19         (e)  The insurer must apply a discount or surcharge

20  based on the health care provider's loss experience, or shall

21  establish an alternative method giving due consideration to

22  the provider's loss experience. The insurer must include in

23  the filing a copy of the surcharge or discount schedule or a

24  description of the alternative method used, and must provide a

25  copy of such schedule or description, as approved by the

26  office, to policyholders at the time of renewal and to

27  prospective policyholders at the time of application for

28  coverage.

29         Section 41.  Subsections (1) and (2) of section

30  627.0645, Florida Statutes, are amended to read:

31         627.0645  Annual filings.--

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 1         (1)  Each rating organization filing rates for, and

 2  each insurer writing, any line of property or casualty

 3  insurance to which this part applies, except:

 4         (a)  Workers' compensation and employer's liability

 5  insurance; or

 6         (b)  Commercial property and casualty insurance as

 7  defined in s. 627.0625(1) other than commercial multiple line,

 8  and commercial motor vehicle, and medical malpractice,

 9  

10  shall make an annual base rate filing for each such line with

11  the department no later than 12 months after its previous base

12  rate filing, demonstrating that its rates are not inadequate.

13         (2)(a)  Deviations, except for medical malpractice,

14  filed by an insurer to any rating organization's base rate

15  filing are not subject to this section.

16         (b)  The department, after receiving a request to be

17  exempted from the provisions of this section, may, for good

18  cause due to insignificant numbers of policies in force or

19  insignificant premium volume, exempt a company, by line of

20  coverage, from filing rates or rate certification as required

21  by this section.

22         Section 42.  The Office of Program Policy Analysis and

23  Government Accountability shall complete a study of the

24  eligibility requirements for a birth to be covered under the

25  Florida Birth-Related Neurological Injury Compensation

26  Association and submit a report to the Legislature by January

27  1, 2004, recommending whether or not the statutory criteria

28  for a claim to qualify for referral to the Florida

29  Birth-Related Neurological Injury Compensation Association

30  under section 766.302, Florida Statutes, should be modified.

31  

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 1         Section 43.  Section 627.0662, Florida Statutes, is

 2  created to read:

 3         627.0662  Excessive profits for medical liability

 4  insurance prohibited.--

 5         (1)  As used in this section, the term:

 6         (a)  "Medical liability insurance" means insurance that

 7  is written on a professional liability insurance policy issued

 8  to a health care practitioner or on a liability insurance

 9  policy covering medical malpractice claims issued to a health

10  care facility.

11         (b)  "Medical liability insurer" means any insurance

12  company or group of insurance companies writing medical

13  liability insurance in this state and does not include any

14  self-insurance fund or other nonprofit entity writing such

15  insurance.

16         (2)  Each medical liability insurer shall file with the

17  Office of Insurance Regulation, prior to July 1 of each year

18  on forms adopted by the Financial Services Commission, the

19  following data for medical liability insurance business in

20  this state. The data shall include both voluntary and joint

21  underwriting association business, as follows:

22         (a)  Calendar-year earned premium.

23         (b)  Accident-year incurred losses and loss adjustment

24  expenses.

25         (c)  The administrative and selling expenses incurred

26  in this state or allocated to this state for the calendar

27  year.

28         (d)  Policyholder dividends incurred during the

29  applicable calendar year.

30         (3)(a)  Excessive profit has been realized if there has

31  been an underwriting gain for the 3 most recent

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 1  calendar-accident years combined which is greater than the

 2  anticipated underwriting profit plus 5 percent of earned

 3  premiums for those calendar-accident years.

 4         (b)  As used in this subsection with respect to any

 5  3-year period, the term "anticipated underwriting profit"

 6  means the sum of the dollar amounts obtained by multiplying,

 7  for each rate filing of the insurer group in effect during

 8  such period, the earned premiums applicable to such rate

 9  filing during such period by the percentage factor included in

10  such rate filing for profit and contingencies, such percentage

11  factor having been determined with due recognition to

12  investment income from funds generated by business in this

13  state. Separate calculations need not be made for consecutive

14  rate filings containing the same percentage factor for profits

15  and contingencies.

16         (4)  Each medical liability insurer shall also file a

17  schedule of medical liability insurance loss in this state and

18  loss adjustment experience for each of the 3 most recent

19  accident years. The incurred losses and loss adjustment

20  expenses shall be valued as of March 31 of the year following

21  the close of the accident year, developed to an ultimate

22  basis, and at two 12-month intervals thereafter, each

23  developed to an ultimate basis, to the extent that a total of

24  three evaluations is provided for each accident year. The

25  first year to be so reported shall be accident year 2004, such

26  that the reporting of 3 accident years will not take place

27  until accident years 2005 and 2006 have become available.

28         (5)  Each insurer group's underwriting gain or loss for

29  each calendar-accident year shall be computed as follows: the

30  sum of the accident-year incurred losses and loss adjustment

31  expenses as of March 31 of the following year, developed to an

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 1  ultimate basis, plus the administrative and selling expenses

 2  incurred in the calendar year, plus policyholder dividends

 3  applicable to the calendar year, shall be subtracted from the

 4  calendar-year earned premium to determine the underwriting

 5  gain or loss.

 6         (6)  For the 3 most recent calendar-accident years, the

 7  underwriting gain or loss shall be compared to the anticipated

 8  underwriting profit.

 9         (7)  If the medical liability insurer has realized an

10  excessive profit, the office shall order a return of the

11  excessive amounts to policyholders after affording the insurer

12  an opportunity for hearing and otherwise complying with the

13  requirements of chapter 120. Such excessive amounts shall be

14  refunded to policyholders in all instances unless the insurer

15  affirmatively demonstrates to the office that the refund of

16  the excessive amounts will render the insurer or a member of

17  the insurer group financially impaired or will render it

18  insolvent.

19         (8)  The excessive amount shall be refunded to

20  policyholders on a pro rata basis in relation to the final

21  compilation year earned premiums to the voluntary medical

22  liability insurance policyholders of record of the insurer

23  group on December 31 of the final compilation year.

24         (9)  Any return of excessive profits to policyholders

25  under this section shall be provided in the form of a cash

26  refund or a credit towards the future purchase of insurance.

27         (10)(a)  Cash refunds to policyholders may be rounded

28  to the nearest dollar.

29         (b)  Data in required reports to the office may be

30  rounded to the nearest dollar.

31  

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 1         (c)  Rounding, if elected by the insurer group, shall

 2  be applied consistently.

 3         (11)(a)  Refunds to policyholders shall be completed as

 4  follows:

 5         1.  If the insurer elects to make a cash refund, the

 6  refund shall be completed within 60 days after entry of a

 7  final order determining that excessive profits have been

 8  realized; or

 9         2.  If the insurer elects to make refunds in the form

10  of a credit to renewal policies, such credits shall be applied

11  to policy renewal premium notices which are forwarded to

12  insureds more than 60 calendar days after entry of a final

13  order determining that excessive profits have been realized.

14  If an insurer has made this election but an insured thereafter

15  cancels his or her policy or otherwise allows the policy to

16  terminate, the insurer group shall make a cash refund not

17  later than 60 days after termination of such coverage.

18         (b)  Upon completion of the renewal credits or refund

19  payments, the insurer shall immediately certify to the office

20  that the refunds have been made.

21         (12)  Any refund or renewal credit made pursuant to

22  this section shall be treated as a policyholder dividend

23  applicable to the year in which it is incurred, for purposes

24  of reporting under this section for subsequent years.

25         Section 44.  Subsection (10) of section 627.357,

26  Florida Statutes, is amended to read:

27         627.357  Medical malpractice self-insurance.--

28         (10)(a)  An application to form a self-insurance fund

29  under this section must be filed with the Office of Insurance

30  Regulation A self-insurance fund may not be formed under this

31  section after October 1, 1992.

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 1         (b)  The Financial Services Commission must ensure that

 2  self-insurance funds remain solvent and provide insurance

 3  coverage purchased by participants. The Financial Services

 4  Commission may adopt rules pursuant to ss. 120.536(1) and

 5  120.54 to implement this section.

 6         Section 45.  Effective October 1, 2003, section

 7  627.4147, Florida Statutes, is amended to read:

 8         627.4147  Medical malpractice insurance contracts.--

 9         (1)  In addition to any other requirements imposed by

10  law, each self-insurance policy as authorized under s. 627.357

11  or insurance policy providing coverage for claims arising out

12  of the rendering of, or the failure to render, medical care or

13  services, including those of the Florida Medical Malpractice

14  Joint Underwriting Association, shall include:

15         (a)  A clause requiring the insured to cooperate fully

16  in the review process prescribed under s. 766.106 if a notice

17  of intent to file a claim for medical malpractice is made

18  against the insured.

19         (b)1.  Except as provided in subparagraph 2., a clause

20  authorizing the insurer or self-insurer to determine, to make,

21  and to conclude, without the permission of the insured, any

22  offer of admission of liability and for arbitration pursuant

23  to s. 766.106, settlement offer, or offer of judgment, if the

24  offer is within the policy limits. It is against public policy

25  for any insurance or self-insurance policy to contain a clause

26  giving the insured the exclusive right to veto any offer for

27  admission of liability and for arbitration made pursuant to s.

28  766.106, settlement offer, or offer of judgment, when such

29  offer is within the policy limits. However, any offer of

30  admission of liability, settlement offer, or offer of judgment

31  

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 1  made by an insurer or self-insurer shall be made in good faith

 2  and in the best interests of the insured.

 3         2.a.  With respect to physicians licensed under chapter

 4  458 or chapter 459 or dentists licensed under chapter 466, a

 5  clause clearly stating whether or not the insured has the

 6  exclusive right to veto any offer of admission of liability

 7  and for arbitration pursuant to s. 766.106, settlement offer,

 8  or offer of judgment if the offer is within policy limits. An

 9  insurer or self-insurer shall not make or conclude, without

10  the permission of the insured, any offer of admission of

11  liability and for arbitration pursuant to s. 766.106,

12  settlement offer, or offer of judgment, if such offer is

13  outside the policy limits. However, any offer for admission of

14  liability and for arbitration made under s. 766.106,

15  settlement offer, or offer of judgment made by an insurer or

16  self-insurer shall be made in good faith and in the best

17  interest of the insured.

18         b.  If the policy contains a clause stating the insured

19  does not have the exclusive right to veto any offer or

20  admission of liability and for arbitration made pursuant to s.

21  766.106, settlement offer or offer of judgment, the insurer or

22  self-insurer shall provide to the insured or the insured's

23  legal representative by certified mail, return receipt

24  requested, a copy of the final offer of admission of liability

25  and for arbitration made pursuant to s. 766.106, settlement

26  offer or offer of judgment and at the same time such offer is

27  provided to the claimant. A copy of any final agreement

28  reached between the insurer and claimant shall also be

29  provided to the insurer or his or her legal representative by

30  certified mail, return receipt requested not more than 10 days

31  after affecting such agreement.

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 1         c.  Physicians licensed under chapter 458 or chapter

 2  459 and dentists licensed under chapter 466 may purchase an

 3  insurance policy pursuant to this subparagraph if such

 4  policies are available. Insurers may offer such policies,

 5  notwithstanding any other provision of law to the contrary.

 6         (c)  A clause requiring the insurer or self-insurer to

 7  notify the insured no less than 90 60 days prior to the

 8  effective date of cancellation of the policy or contract and,

 9  in the event of a determination by the insurer or self-insurer

10  not to renew the policy or contract, to notify the insured no

11  less than 90 60 days prior to the end of the policy or

12  contract period. If cancellation or nonrenewal is due to

13  nonpayment or loss of license, 10 days' notice is required.

14         (d)  A clause requiring the insurer or self-insurer to

15  notify the insured no less than 60 days prior to the effective

16  date of a rate increase. The provisions of s. 627.4133 shall

17  apply to such notice and to the failure of the insurer to

18  provide such notice to the extent not in conflict with this

19  section.

20         (2)  Each insurer covered by this section may require

21  the insured to be a member in good standing, i.e., not subject

22  to expulsion or suspension, of a duly recognized state or

23  local professional society of health care providers which

24  maintains a medical review committee. No professional society

25  shall expel or suspend a member solely because he or she

26  participates in a health maintenance organization licensed

27  under part I of chapter 641.

28         (3)  This section shall apply to all policies issued or

29  renewed after October 1, 2003 1985.

30         Section 46.  Section 627.41491, Florida Statutes, is

31  created to read:

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 1         627.41491  Medical malpractice rate comparison.--The

 2  Office of Insurance Regulation shall annually publish a

 3  comparison of the rate in effect for each medical malpractice

 4  insurer and self-insurer and the Florida Medical Malpractice

 5  Joint Underwriting Association. Such rate comparison shall be

 6  made available to the public through the Internet and other

 7  commonly used means of distribution no later than July 1 of

 8  each year.

 9         Section 47.  Section 627.41492, Florida Statutes, is

10  created to read:

11         627.41492  Annual medical malpractice report.--The

12  Office of Insurance Regulation shall prepare an annual report

13  by October 1 of each year, which shall be available to the

14  public and posted on the Internet, which includes the

15  following information:

16         (1)  A summary and analysis of the closed claim

17  information required to be reported pursuant to s. 627.912.

18         (2)  A summary and analysis of the annual and quarterly

19  financial reports filed by each insurer writing medical

20  malpractice insurance in this state.

21         Section 48.  Section 627.41493, Florida Statutes, is

22  created to read:

23         627.41493  Insurance rate rollback.--

24         (1)  For medical malpractice insurance policies issued

25  or renewed on or after July 1, 2003, and before July 1, 2004,

26  every insurer, including the Florida Medical Malpractice Joint

27  Underwriting Association, shall reduce its rates and premiums

28  to levels that were in effect on January 1, 2002.

29         (2)  For medical malpractice insurance policies issued

30  or renewed on or after July 1, 2003, and before July 1, 2004,

31  rates and premiums reduced pursuant to subsection (1) may only

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 1  be increased if the director of the Office of Insurance

 2  Regulation finds that the rate reduced pursuant to subsection

 3  (1) would result in an inadequate rate. Any such increase must

 4  be approved by the director of the Office of Insurance

 5  Regulation prior to being used.

 6         (3)  The provisions of this section control to the

 7  extent of any conflict with the provision of s. 627.062.

 8         Section 49.  If, as of July 1, 2004, the director of

 9  the Office of Insurance Regulation determines that the rates

10  of the medical malpractice insurers with a combined market

11  share of 50 percent or greater, as measured by net written

12  premiums in this state for medical malpractice for the most

13  recent calendar year, have been reduced to the level in effect

14  on January 1, 2002, but have not remained at that level for

15  the previous year beginning July 1, 2003, or that such medical

16  malpractice insurers have proposed increases from the January

17  1, 2002, level which are greater than 15 percent for either of

18  the next 2 years beginning July 1, 2004, then the Florida

19  Medical Malpractice Insurance Fund established by this act

20  shall begin offering coverage.

21         Section 50.  Florida Medical Malpractice Insurance

22  Fund.--

23         (1)  FINDINGS AND PURPOSES.--The Legislature finds and

24  declares that there is a compelling state interest in

25  maintaining the availability and affordability of health care

26  services to the citizens of Florida. This state interest is

27  seriously threatened by the increased cost and decreased

28  availability of medical malpractice insurance to physicians.

29  To the extent that the private sector is unable to maintain a

30  viable and orderly market for medical malpractice insurance,

31  state actions to maintain the availability and affordability

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 1  of medical malpractice insurance are a valid and necessary

 2  exercise of the police power.

 3         (2)  DEFINITIONS.--As used in this section, the term:

 4         (a)  "Fund" means the Florida Medical Malpractice

 5  Insurance Fund, as created pursuant to this section.

 6         (b)  "Physician" means a physician licensed under

 7  chapter 458 or chapter 459, Florida Statutes.

 8         (3)  FLORIDA MEDICAL MALPRACTICE INSURANCE FUND

 9  CREATED.--Effective October 1, 2003, there is created the

10  Florida Medical Malpractice Insurance Fund, which shall be

11  subject to the requirements of this section. However, the fund

12  shall not begin providing or offering coverage until the date

13  the director of the Office of Insurance Regulation determines

14  that the rates of the medical malpractice insurers with a

15  combined market share of 50 percent or greater, as measured by

16  net written premium in this state for medical malpractice for

17  the most recent calendar year, have been reduced to the level

18  in effect on January 1, 2002, but have not remained at that

19  level for the previous year beginning July 1, 2003, or that

20  such medical malpractice insurers have proposed increases from

21  the January 1, 2002, level which are greater than 15 percent

22  for either of the next 2 years beginning July 1, 2004.

23         (a)  The fund shall be administered by a board of

24  governors consisting of seven members who are appointed as

25  follows:

26         1.  Three members by the Governor;

27         2.  Three members by the Chief Financial Officer; and

28         3.  One member by the other six board members.

29  

30  Board members shall serve at the pleasure of the appointing

31  authority. Two board members must be physicians licensed in

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 1  this state and the Governor and the Chief Financial Officer

 2  shall each appoint one of these physicians.

 3         (b)  The board shall submit a plan of operation, which

 4  must be approved by the Office of Insurance Regulation of the

 5  Financial Services Commission. The plan of operation and other

 6  actions of the board shall not be considered rules subject to

 7  the requirements of chapter 120, Florida Statutes.

 8         (c)  Except as otherwise provided by this section, the

 9  fund shall be subject to the requirements of state law which

10  apply to authorized insurers.

11         (d)  Moneys in the fund may not be expended, loaned, or

12  appropriated except to pay obligations of the fund arising out

13  of medical malpractice insurance policies issued to physicians

14  and the costs of administering the fund, including the

15  purchase of reinsurance as the board deems prudent. The board

16  shall enter into an agreement with the State Board of

17  Administration, which shall invest one-third of the moneys in

18  the fund pursuant to sections 215.44-215.52, Florida Statutes.

19  The board shall enter into an agreement with the Division of

20  Treasury of the Department of Financial Services, which shall

21  invest two-thirds of the moneys in the fund pursuant to the

22  requirements for the investment of state funds in chapter 17,

23  Florida Statutes. Earnings from all investments shall be

24  retained in the fund, except as otherwise provided in this

25  section.

26         (e)  The fund may employ or contract with such staff

27  and professionals as the board deems necessary for the

28  administration of the fund.

29         (f)  There shall be no liability on the part of any

30  member of the board, its agents, or any employee of the state

31  for any action taken by them in the performance of their

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 1  powers and duties under this section. Such immunity does not

 2  apply to any willful tort or to breach of any contract or

 3  agreement.

 4         (g)  The fund is not a member insurer of the Florida

 5  Insurance Guaranty Association established pursuant to part II

 6  of chapter 631, Florida Statutes. The fund is not subject to

 7  sections 624.407, 624.408, 624.4095, and 624.411, Florida

 8  Statutes.

 9         (4)  MEDICAL MALPRACTICE INSURANCE POLICIES.--The board

10  must offer medical malpractice insurance to any physician,

11  regardless of his or her specialty, but may adopt underwriting

12  requirements, as specified in its plan of operation. The fund

13  shall offer limits of coverage of $250,000 per claim/$500,000

14  annual aggregate; $500,000 per claim/$1 million annual

15  aggregate; and $1 million per claim/$2 million annual

16  aggregate. The fund shall also allow policyholders to select

17  from policies with deductibles of $100,000, $200,000, and

18  $250,000; excess coverage limits of $250,000 per claim and

19  $750,000 annual aggregate; $1 million per claim and $3 million

20  annual aggregate; or $2 million and $4 million annual

21  aggregate. The fund shall offer such other limits as specified

22  in its plan of operation.

23         (5)  PREMIUM RATES.--The premium rates for coverage

24  offered by the fund must be actuarially sound and shall be

25  subject to the same requirements that apply to authorized

26  insurers issuing medical malpractice insurance, except that:

27         (a)  The rates shall not include any factor for

28  profits; and

29         (b)  The anticipated future investment income of the

30  fund, as projected in its rate filing, must be approximately

31  equal to the actual investment income that the fund has

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 1  earned, on average, for the prior 7 years. For those years of

 2  the prior 7 years during which the fund was not in operation,

 3  the anticipated future investment income must be approximately

 4  equal to the actual average investment income earned by the

 5  State Board of Administration for the moneys available for

 6  investment under sections 215.44-215.53, Florida Statutes, and

 7  the average annual investment income earned by the Division of

 8  Treasury of the Department of Financial Services for the

 9  investment of state funds under chapter 17, Florida Statutes,

10  in the same proportion as specified in paragraph (3)(d).

11         (6)  TAX EXEMPTION.--The fund shall be a political

12  subdivision of the state and is exempt from the corporate

13  income tax under chapter 220, Florida Statutes, and the

14  premiums shall not be subject to the premium tax imposed by

15  section 624.509, Florida Statutes. It is also the intent of

16  the Legislature that the fund be exempt from federal income

17  taxation. The Financial Services Commission and the fund shall

18  seek an opinion from the Internal Revenue Service as to the

19  tax-exempt status of the fund and shall make such

20  recommendations to the Legislature as the board deems

21  necessary to obtain tax-exempt status.

22         (7)  INITIAL CAPITALIZATION.--The fund shall enter into

23  an agreement with the Florida Birth-Related Neurological

24  Injury Compensation (NICA) Fund for a loan of $100 million to

25  the fund to occur when the fund is established. Repayment of

26  the loan by the fund shall be in five equal annual payments,

27  each made no later than December 31, commencing during the

28  fourth year of operation of the fund after the fund begins to

29  offer medical malpractice insurance. Interest shall accrue on

30  the outstanding amount of the loan at an annual rate equal to

31  the annual rate of investment income earned by the NICA Fund.

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 1  The moneys loaned to the fund pursuant to this subsection

 2  shall be considered admitted assets of the fund for purposes

 3  of chapter 625, Florida Statutes.

 4         (8)  RULES.--The Financial Services Commission may

 5  adopt rules to implement and administer the provisions of this

 6  section.

 7         (9)  REVERSION OF FUND ASSETS UPON TERMINATION.--The

 8  fund and the duties of the board under this section shall

 9  stand repealed on a date 10 years after the date the Florida

10  Medical Malpractice Insurance Fund begins offering coverage

11  pursuant to this section, unless reviewed and saved from

12  repeal through reenactment by the Legislature. Upon

13  termination of the fund, all assets of the fund shall revert

14  to the General Revenue Fund.

15         Section 51.  (1)  Notwithstanding any law to the

16  contrary, if the Florida Medical Malpractice Insurance Fund

17  begins offering coverage as provided in this act, all

18  physicians licensed under chapter 458 or chapter 459, Florida

19  Statutes, as a condition of licensure shall be required to

20  maintain financial responsibility by obtaining and maintaining

21  professional liability coverage in an amount not less than

22  $250,000 per claim, with a minimum annual aggregate of not

23  less than $500,000, from an authorized insurer as defined

24  under section 624.09, Florida Statutes, from a surplus lines

25  insurer as defined under section 626.914(2), Florida Statutes,

26  from a risk retention group as defined under section 627.942,

27  Florida Statutes, from the Joint Underwriting Association

28  established under section 627.351(4), Florida Statutes, or

29  through a plan of self-insurance as provided in section

30  627.357 or section 624.462, Florida Statutes, or from the

31  Florida Medical Malpractice Insurance Fund.

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 1         (2)  Physicians and osteopathic physicians who are

 2  exempt from the financial responsibility requirements under

 3  section 458.320(5)(a),(b),(c),(d),(e) and (f) and section

 4  459.0085(5)(a),(b),(c),(d),(e), and (f), Florida Statutes,

 5  shall not be subject to the requirements of this section.

 6         Section 52.  Section 627.41495, Florida Statutes, is

 7  created to read:

 8         627.41495  Public hearings for medical malpractice rate

 9  filings.--

10         (1)  Upon the filing of a proposed rate change by a

11  medical malpractice insurer or self-insurance fund, which

12  filing would result in an average statewide increase of 25

13  percent, or more, pursuant to standards determined by the

14  office, the insurer or self-insurance fund shall mail notice

15  of such filing to each of its policyholders or members. The

16  notices shall also inform the policyholders and members that a

17  public hearing may be requested on the rate filing and the

18  procedures for requesting a public hearing, as established by

19  rule, by the Financial Services Commission.

20         (2)  The rate filing shall be available for public

21  inspection. If any policyholder or member of an insurer or

22  self-insurance fund that makes a rate filing described in

23  subsection (1) requests the Office of Insurance Regulation to

24  hold a hearing within 30 days after the mailing of the

25  notification of the proposed rate changes to the insureds, the

26  office shall hold a hearing within 30 days after such request.

27  Any policyholder or member may participate in such hearing.

28  The commission shall adopt rules implementing the provisions

29  of this section.

30         Section 53.  (1)  The Office of Insurance Regulation

31  shall order insurers to make a rate filing effective January

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 1  1, 2004, for medical malpractice which reduces rates by a

 2  presumed factor that reflects the impact the changes contained

 3  in all medical malpractice legislation enacted by the Florida

 4  Legislature in 2003 will have on such rates, as determined by

 5  the Office of Insurance Regulation. In determining the

 6  presumed factor, the office shall use generally accepted

 7  actuarial techniques and standards provided in section

 8  627.062, Florida Statutes, in determining the expected impact

 9  on losses, expenses, and investment income of the insurer.

10  Inclusion in the presumed factor of the expected impact of

11  such legislation shall be held in abeyance during the review

12  of such measure's validity in any proceeding by a court of

13  competent jurisdiction.

14         (2)  Any insurer or rating organization that contends

15  that the rate provided for in subsection (1) is excessive,

16  inadequate, or unfairly discriminatory shall separately state

17  in its filing the rate it contends is appropriate and shall

18  state with specificity the factors or data that it contends

19  should be considered in order to produce such appropriate

20  rate. The insurer or rating organization shall be permitted to

21  use all of the generally accepted actuarial techniques, as

22  provided in section 627.062, Florida Statutes, in making any

23  filing pursuant to this subsection. The Office of Insurance

24  Regulation shall review each such exception and approve or

25  disapprove it prior to use. It shall be the insurer's burden

26  to actuarially justify any deviations from the rates filed

27  under subsection (1). Each insurer or rating organization

28  shall include in the filing the expected impact of all

29  malpractice legislation enacted by the Florida Legislature in

30  2003 on losses, expenses, and rates. If any provision of this

31  act is held invalid by a court of competent jurisdiction, the

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 1  office shall permit an adjustment of all rates filed under

 2  this section to reflect the impact of such holding on such

 3  rates, so as to ensure that the rates are not excessive,

 4  inadequate, or unfairly discriminatory.

 5         Section 54.  Subsections (1), (2), and (4) of section

 6  627.912, Florida Statutes, are amended to read:

 7         627.912  Professional liability claims and actions;

 8  reports by insurers.--

 9         (1)  Each self-insurer authorized under s. 627.357 and

10  each insurer or joint underwriting association providing

11  professional liability insurance to a practitioner of medicine

12  licensed under chapter 458, to a practitioner of osteopathic

13  medicine licensed under chapter 459, to a podiatric physician

14  licensed under chapter 461, to a dentist licensed under

15  chapter 466, to a hospital licensed under chapter 395, to a

16  crisis stabilization unit licensed under part IV of chapter

17  394, to a health maintenance organization certificated under

18  part I of chapter 641, to clinics included in chapter 390, to

19  an ambulatory surgical center as defined in s. 395.002, or to

20  a member of The Florida Bar shall report in duplicate to the

21  Department of Insurance any claim or action for damages for

22  personal injuries claimed to have been caused by error,

23  omission, or negligence in the performance of such insured's

24  professional services or based on a claimed performance of

25  professional services without consent, if the claim resulted

26  in:

27         (a)  A final judgment in any amount.

28         (b)  A settlement in any amount.

29  

30  Reports shall be filed with the department. and, If the

31  insured party is licensed under chapter 458, chapter 459, or

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 1  chapter 461, and the final judgment or settlement amount was

 2  $50,000 or more, or if the insured party is licensed under

 3  chapter 466 and the final judgment or settlement amount was

 4  $25,000 or more, the report shall be filed or chapter 466,

 5  with the Department of Health, no later than 30 days following

 6  the occurrence of any event listed in paragraph (a) or

 7  paragraph (b). The Department of Health shall review each

 8  report and determine whether any of the incidents that

 9  resulted in the claim potentially involved conduct by the

10  licensee that is subject to disciplinary action, in which case

11  the provisions of s. 456.073 shall apply. The Department of

12  Health, as part of the annual report required by s. 456.026,

13  shall publish annual statistics, without identifying

14  licensees, on the reports it receives, including final action

15  taken on such reports by the Department of Health or the

16  appropriate regulatory board.

17         (2)  The reports required by subsection (1) shall

18  contain:

19         (a)  The name, address, and specialty coverage of the

20  insured.

21         (b)  The insured's policy number.

22         (c)  The date of the occurrence which created the

23  claim.

24         (d)  The date the claim was reported to the insurer or

25  self-insurer.

26         (e)  The name and address of the injured person. This

27  information is confidential and exempt from the provisions of

28  s. 119.07(1), and must not be disclosed by the department

29  without the injured person's consent, except for disclosure by

30  the department to the Department of Health. This information

31  may be used by the department for purposes of identifying

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 1  multiple or duplicate claims arising out of the same

 2  occurrence.

 3         (f)  The date of suit, if filed.

 4         (g)  The injured person's age and sex.

 5         (h)  The total number and names of all defendants

 6  involved in the claim.

 7         (i)  The date and amount of judgment or settlement, if

 8  any, including the itemization of the verdict, together with a

 9  copy of the settlement or judgment.

10         (j)  In the case of a settlement, such information as

11  the department may require with regard to the injured person's

12  incurred and anticipated medical expense, wage loss, and other

13  expenses.

14         (k)  The loss adjustment expense paid to defense

15  counsel, and all other allocated loss adjustment expense paid.

16         (l)  The date and reason for final disposition, if no

17  judgment or settlement.

18         (m)  A summary of the occurrence which created the

19  claim, which shall include:

20         1.  The name of the institution, if any, and the

21  location within the institution at which the injury occurred.

22         2.  The final diagnosis for which treatment was sought

23  or rendered, including the patient's actual condition.

24         3.  A description of the misdiagnosis made, if any, of

25  the patient's actual condition.

26         4.  The operation, diagnostic, or treatment procedure

27  causing the injury.

28         5.  A description of the principal injury giving rise

29  to the claim.

30  

31  

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 1         6.  The safety management steps that have been taken by

 2  the insured to make similar occurrences or injuries less

 3  likely in the future.

 4         (n)  Any other information required by the office

 5  department to analyze and evaluate the nature, causes,

 6  location, cost, and damages involved in professional liability

 7  cases. The Financial Services Commission shall adopt by rule

 8  requirements for additional information to assist the office

 9  in its analysis and evaluation of the nature, causes,

10  location, cost, and damages involved in professional liability

11  cases reported by insurers under this section.

12         (4)  There shall be no liability on the part of, and no

13  cause of action of any nature shall arise against, any insurer

14  reporting hereunder or its agents or employees or the

15  department or its employees for any action taken by them under

16  this section.  The department shall may impose a fine of $250

17  per day per case, but not to exceed a total of $10,000 $1,000

18  per case, against an insurer that violates the requirements of

19  this section. This subsection applies to claims accruing on or

20  after October 1, 1997.

21         Section 55.  Section 627.9121, Florida Statutes, is

22  created to read:

23         627.9121  Required reporting of claims;

24  penalties.--Each entity that makes payment under a policy of

25  insurance, self-insurance, or otherwise in settlement or

26  partial settlement of, or in satisfaction of a judgment in, a

27  medical malpractice action or claim that is required to report

28  information to the National Practitioner Data Bank under 42

29  U.S.C. section 11131 must also report the same information to

30  the Office of Insurance Regulation. The Office of Insurance

31  Regulation shall include such information in the data that it

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 1  compiles under s. 627.912. The office must compile and review

 2  the data collected pursuant to this section and must assess an

 3  administrative fine on any entity that fails to fully comply

 4  with the requirements imposed by law.

 5         Section 56.  Section 766.102, Florida Statutes, is

 6  amended to read:

 7         766.102  Medical negligence; standards of recovery;

 8  expert witness.--

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

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

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

12  health care provider as defined in s. 768.50(2)(b), the

13  claimant shall have the burden of proving by the greater

14  weight of evidence that the alleged actions of the health care

15  provider represented a breach of the prevailing professional

16  standard of care for that health care provider.  The

17  prevailing professional standard of care for a given health

18  care provider shall be that level of care, skill, and

19  treatment which, in light of all relevant surrounding

20  circumstances, is recognized as acceptable and appropriate by

21  reasonably prudent similar health care providers.

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

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

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

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

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

27  health care provider" is one who:

28         1.  Is licensed by the appropriate regulatory agency of

29  this state;

30         2.  Is trained and experienced in the same discipline

31  or school of practice; and

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

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

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

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

 5  experienced in a medical specialty, or holds himself or

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

 7  is one who:

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

 9  and

10         2.  Is certified by the appropriate American board in

11  the same specialty.

12  

13  However, if any health care provider described in this

14  paragraph is providing treatment or diagnosis for a condition

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

16  in the treatment or diagnosis for that condition shall be

17  considered a "similar health care provider."

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

19  relative standard of care for various categories and

20  classifications of health care providers.  Any health care

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

22         1.  Is a similar health care provider pursuant to

23  paragraph (a) or paragraph (b); or

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

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

26  court, possesses sufficient training, experience, and

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

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

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

30  to the prevailing professional standard of care in a given

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

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

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

 3  incident giving rise to the claim.

 4         (2)(3)(a)  If the injury is claimed to have resulted

 5  from the negligent affirmative medical intervention of the

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

 7  breach of the prevailing professional standard of care, show

 8  that the injury was not within the necessary or reasonably

 9  foreseeable results of the surgical, medicinal, or diagnostic

10  procedure constituting the medical intervention, if the

11  intervention from which the injury is alleged to have resulted

12  was carried out in accordance with the prevailing professional

13  standard of care by a reasonably prudent similar health care

14  provider.

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

16  when the medical intervention was undertaken with the informed

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

18  766.103.

19         (3)(4)  The existence of a medical injury shall not

20  create any inference or presumption of negligence against a

21  health care provider, and the claimant must maintain the

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

23  breach of the prevailing professional standard of care by the

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

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

26  needle, or other paraphernalia commonly used in surgical,

27  examination, or diagnostic procedures, shall be prima facie

28  evidence of negligence on the part of the health care

29  provider.

30         (4)(5)  The Legislature is cognizant of the changing

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

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

 2  care, and treatment of patients by different health care

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

 4  perform, or administer supplemental diagnostic tests shall not

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

 6  and with due regard for the prevailing professional standard

 7  of care.

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

 9  the prevailing professional standard of care unless that

10  person is a licensed health care provider and meets the

11  following criteria:

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

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

14         1.  Specialize in the same specialty as the party

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

16         2.  Specialize in a similar speciality that includes

17  the evaluation, diagnosis, or treatment of the medical

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

19  experience treating similar patients.

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

21  immediately preceding the date of the occurrence that is the

22  basis for the action to:

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

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

25  health care provider against whom or on whose behalf the

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

27  specialist, the active clinical practice of, or consulting

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

29  the evaluation, diagnosis, or treatment of the medical

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

31  experience treating similar patients;

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 1         2.  The instruction of students in an accredited health

 2  professional school or accredited residency program in the

 3  same or similar health profession in which the health care

 4  provider against whom or on whose behalf the testimony is

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

 6  accredited health professional school or accredited residency

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

 8  or

 9         3.  A clinical research program that is affiliated with

10  an accredited medical school or teaching hospital and that is

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

12  provider against whom or on whose behalf the testimony is

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

14  clinical research program that is affiliated with an

15  accredited health professional school or accredited residency

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

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

18  testimony is offered is a general practitioner, the expert

19  witness must have devoted professional time during the 5 years

20  immediately preceding the date of the occurrence that is the

21  basis for the action to:

22         1.  Active clinical practice or consultation as a

23  general practitioner;

24         2.  Instruction of students in an accredited health

25  professional school or accredited residency program in the

26  general practice of medicine; or

27         3.  A clinical research program that is affiliated with

28  an accredited medical school or teaching hospital and that is

29  in the general practice of medicine.

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

31  459 who qualifies as an expert witness under subsection (5)

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

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

 3  for nurses, nurse practitioners, certified registered nurse

 4  anesthetists, certified registered nurse midwives, physician

 5  assistants, or other medical support staff may give expert

 6  testimony in a medical malpractice action with respect to the

 7  standard of care of such medical support staff.

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

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

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

11  appropriate standard of care as to administrative and other

12  nonclinical issues if the person has substantial knowledge, by

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

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

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

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

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

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

19  rise to the cause of action.

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

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

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

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

24  evaluation, treatment, or diagnosis for that condition shall

25  be considered a similar health care provider.

26         (9)(6)(a)  In any action for damages involving a claim

27  of negligence against a physician licensed under chapter 458,

28  osteopathic physician licensed under chapter 459, podiatric

29  physician licensed under chapter 461, or chiropractic

30  physician licensed under chapter 460 providing emergency

31  medical services in a hospital emergency department, the court

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 1  shall admit expert medical testimony only from physicians,

 2  osteopathic physicians, podiatric physicians, and chiropractic

 3  physicians who have had substantial professional experience

 4  within the preceding 5 years while assigned to provide

 5  emergency medical services in a hospital emergency department.

 6         (b)  For the purposes of this subsection:

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

 8  medical services required for the immediate diagnosis and

 9  treatment of medical conditions which, if not immediately

10  diagnosed and treated, could lead to serious physical or

11  mental disability or death.

12         2.  "Substantial professional experience" shall be

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

14  emergency medical coverage is provided in hospital emergency

15  departments in the same or similar localities where the

16  alleged negligence occurred.

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

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

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

20  witness pursuant to this section must certify that such person

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

22  jurisdiction.

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

24  trial court to disqualify or qualify an expert witness on

25  grounds other than the qualifications in this section.

26         Section 57.  Effective July 1, 2003, and applicable to

27  any action arising from a medical malpractice claim initiated

28  by a notice of intent to litigate received by a potential

29  defendant in a medical malpractice case on or after that date,

30  present subsections (5) through (12) of section 766.106,

31  Florida Statutes, are redesignated as subsections (6) through

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 1  (13), respectively, and a new subsection (5) is added to that

 2  section, to read:

 3         766.106  Notice before filing action for medical

 4  malpractice; presuit screening period; offers for admission of

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

 6         (5)(a)  With regard to insurance company bad-faith

 7  causes of action arising out of medical malpractice claims,

 8  the action shall be brought pursuant to common law and not

 9  pursuant to s. 624.155.

10         (b)  An insurer shall not be held to have acted in bad

11  faith for failure to timely pay its policy limits if it

12  tenders its policy limits and meets the reasonable conditions

13  of settlement prior to the conclusion of the presuit screening

14  period provided for in subsection (4); during an extension

15  provided for therein; during a period of 270 days thereafter;

16  or during a 90-day period after the filing of an amended

17  medical malpractice complaint alleging new facts previously

18  unknown to the insurer. If a case is set for trial within 1

19  year after the date of filing of the claim, an insurer shall

20  not be held in bad faith if policy limits are tendered 60 days

21  or more prior to trial. 

22         (c)  It is the intent of the Legislature to encourage

23  all insurers, insureds, and their assigns and legal

24  representatives to act in good faith during a medical

25  negligence action, both during the presuit period and the

26  litigation.

27         Section 58.  Effective October 1, 2003, and applicable

28  to notices of intent to litigate sent on or after that date,

29  subsection (2), paragraphs (a) and (b) of subsection (3), and

30  subsection (7) of section 766.106, Florida Statutes, as

31  amended by this act, are amended, to read:

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 1         766.106  Notice before filing action for medical

 2  malpractice; presuit screening period; offers for admission of

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

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

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

 6  malpractice, a claimant shall notify each prospective

 7  defendant by certified mail, return receipt requested, of

 8  intent to initiate litigation for medical malpractice. Notice

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

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

11  for the injuries complained of subsequent to the alleged act

12  of malpractice, all known health care providers during the

13  2-year period prior to the alleged act of malpractice who

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

15  medical records relied upon by the expert in signing the

16  affidavit. The requirement of providing the list of known

17  health care providers may not serve as grounds for imposing

18  sanctions for failure to provide presuit discovery.

19         (b)  Following the initiation of a suit alleging

20  medical malpractice with a court of competent jurisdiction,

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

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

23  Health and, if the complaint involves a facility licensed

24  under chapter 395, the Agency for Health Care Administration.

25  The requirement of providing the complaint to the Department

26  of Health or the Agency for Health Care Administration does

27  not impair the claimant's legal rights or ability to seek

28  relief for his or her claim. The Department of Health or the

29  Agency for Health Care Administration shall review each

30  incident that is the subject of the complaint and determine

31  whether it involved conduct by a licensee which is potentially

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 1  subject to disciplinary action, in which case, for a licensed

 2  health care practitioner, the provisions of s. 456.073 apply,

 3  and for a licensed facility, the provisions of part I of

 4  chapter 395 apply.

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

 6  after notice is mailed to any prospective defendant. During

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

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

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

10  procedure for the prompt investigation, review, and evaluation

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

12  include one or more of the following:

13         1.  Internal review by a duly qualified claims

14  adjuster;

15         2.  Creation of a panel comprised of an attorney

16  knowledgeable in the prosecution or defense of medical

17  malpractice actions, a health care provider trained in the

18  same or similar medical specialty as the prospective

19  defendant, and a duly qualified claims adjuster;

20         3.  A contractual agreement with a state or local

21  professional society of health care providers, which maintains

22  a medical review committee;

23         4.  Any other similar procedure which fairly and

24  promptly evaluates the pending claim.

25  

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

27  good faith, and both the claimant and prospective defendant

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

29  insurer requires, a claimant shall appear before a pretrial

30  screening panel or before a medical review committee and shall

31  submit to a physical examination, if required.  Unreasonable

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 1  failure of any party to comply with this section justifies

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

 3  liability for participation in a pretrial screening procedure

 4  if done without intentional fraud.

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

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

 7         1.  Rejecting the claim;

 8         2.  Making a settlement offer; or

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

10  deemed admitted and arbitration will be held only of admission

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

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

13  damages.

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

15  obtain unsworn statements, the production of documents or

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

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

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

19  statements may be used only for the purpose of presuit

20  screening and are not discoverable or admissible in any civil

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

22  the unsworn statement of any party must give reasonable notice

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

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

25  party to be examined.  Unless otherwise impractical, the

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

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

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

29  recorded electronically, stenographically, or on videotape.

30  The taking of unsworn statements is subject to the provisions

31  

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

 2  for abuses.

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

 4  discovery of documents or things.  The documents or things

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

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

 7  party is required to produce discoverable documents or things

 8  within that party's possession or control.

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

10  defendant may require an injured prospective claimant to

11  appear for examination by an appropriate health care provider.

12  The defendant shall give reasonable notice in writing to all

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

14  otherwise impractical, a prospective claimant is required to

15  submit to only one examination on behalf of all potential

16  defendants. The practicality of a single examination must be

17  determined by the nature of the potential claimant's

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

19  defendant. Such examination report is available to the parties

20  and their attorneys upon payment of the reasonable cost of

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

22  screening. Otherwise, such examination report is confidential

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

24  Art. I of the State Constitution.

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

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

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

28  of the questions.

29         Section 59.  Section 766.108, Florida Statutes, is

30  amended to read:

31  

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 1         766.108  Mandatory mediation and mandatory settlement

 2  conference in medical malpractice actions.--

 3         (1)  Within 120 days after suit being filed, unless

 4  such period is extended by mutual agreement of all parties,

 5  all parties shall attend in-person mandatory mediation in

 6  accordance with s. 44.102 if binding arbitration under s.

 7  766.106 or s. 766.207 has not been agreed to by the parties.

 8  The Florida Rules of Civil Procedure shall apply to mediation

 9  held pursuant to this section.

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

11  injury or wrongful death arising out of medical malpractice,

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

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

14  trial.

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

16  and persons with authority to settle shall attend the

17  settlement conference held before the court unless excused by

18  the court for good cause.

19         Section 60.  Section 766.118, Florida Statutes, is

20  created to read:

21         766.118  Determination of noneconomic damages.--

22         (1)  With respect to a cause of action for personal

23  injury or wrongful death resulting from an occurrence of

24  medical negligence, including actions pursuant to ss.

25  766.207-766.212, damages recoverable for noneconomic losses to

26  compensate for pain and suffering, inconvenience, physical

27  impairment, mental anguish, disfigurement, loss of capacity

28  for enjoyment of life, and all other noneconomic damages shall

29  not exceed $500,000 per defendant, regardless of the number of

30  claimants involved in the action subject to the limitations

31  set forth in subsection (2).

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 1         (2)  Notwithstanding subsection (1), a trier of fact

 2  may award noneconomic damages under this section in excess of

 3  the limits described in subsection (1) in cases where medical

 4  negligence results in certain catastrophic injuries, including

 5  death, severe and permanent brain damage, coma, paralysis,

 6  quadriplegia, paraplegia, blindness, or a permanent vegetative

 7  state, except in those actions under ss. 766.207-766.212.

 8         Section 61.  Subsections (3), (5), (7), and (8) of

 9  section 766.202, Florida Statutes, are amended to read:

10         766.202  Definitions; ss. 766.201-766.212.--As used in

11  ss. 766.201-766.212, the term:

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

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

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

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

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

17  entitled to recover such damages under general law, including

18  the Wrongful Death Act.

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

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

21  health care professional degree from a university or college

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

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

24  experience or one possessed of special health care knowledge

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

26  testify or provide an opinion.

27         (7)  "Noneconomic damages" means nonfinancial losses

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

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

30  inconvenience, physical impairment, mental anguish,

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

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 1  other nonfinancial losses, to the extent the claimant is

 2  entitled to recover such damages under general law, including

 3  the Wrongful Death Act.

 4         (8)  "Periodic payment" means provision for the

 5  structuring of future economic damages payments, in whole or

 6  in part, over a period of time, as follows:

 7         (a)  A specific finding of the dollar amount of

 8  periodic payments which will compensate for these future

 9  damages after offset for collateral sources shall be made.

10  The total dollar amount of the periodic payments shall equal

11  the dollar amount of all such future damages before any

12  reduction to present value.

13         (b)  The defendant shall be required to post a bond or

14  security or otherwise to assure full payment of these damages

15  awarded.  A bond is not adequate unless it is written by a

16  company authorized to do business in this state and is rated

17  A+ by Best's. If the defendant is unable to adequately assure

18  full payment of the damages, all damages, reduced to present

19  value, shall be paid to the claimant in a lump sum.  No bond

20  may be canceled or be subject to cancellation unless at least

21  60 days' advance written notice is filed with the court and

22  the claimant.  Upon termination of periodic payments, the

23  security, or so much as remains, shall be returned to the

24  defendant.

25         (c)  The provision for payment of future damages by

26  periodic payments shall specify the recipient or recipients of

27  the payments, the dollar amounts of the payments, the interval

28  between payments, and the number of payments or the period of

29  time over which payments shall be made.

30         (d)  Any portion of the periodic payment which is

31  attributable to medical expenses that have not yet been

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 1  incurred shall terminate upon the death of the claimant. Any

 2  outstanding medical expenses incurred prior to the death of

 3  the claimant shall be paid from that portion of the periodic

 4  payment attributable to medical expenses.

 5         Section 62.  Effective July 1, 2003, and applicable to

 6  all causes of action accruing on or after that date, section

 7  766.206, Florida Statutes, is amended to read:

 8         766.206  Presuit investigation of medical negligence

 9  claims and defenses by court.--

10         (1)  After the completion of presuit investigation by

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

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

13  circuit court requesting the court to determine whether the

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

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

16  initiate litigation mailed by the claimant is not in

17  compliance with the reasonable investigation requirements of

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

19  verified written medical expert opinion by an expert witness

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

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

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

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

24  investigation and evaluation of the claim, including the

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

26  defendant's insurer.

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

28  defendant rejecting the claim is not in compliance with the

29  reasonable investigation requirements of ss. 766.201-766.212,

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

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

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

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

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

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

 5  during the investigation and evaluation of the claim,

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

 7  claimant.

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

 9  claimant mailed notice of intent to initiate litigation

10  without reasonable investigation, or filed a medical

11  negligence claim without first mailing such notice of intent

12  which complies with the reasonable investigation requirements,

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

14  a response rejecting the claim without reasonable

15  investigation, the court shall submit its finding in the

16  matter to The Florida Bar for disciplinary review of the

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

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

19  committee acting under the jurisdiction of the Supreme Court.

20  If such committee finds probable cause to believe that an

21  attorney has violated this section, such committee shall

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

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

24  written medical expert opinion attached to any notice of claim

25  or intent or to any response rejecting a claim lacked

26  reasonable investigation, or that the medical expert

27  submitting the opinion did not meet the expert witness

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

29  report the medical expert issuing such corroborating opinion

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

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

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 1  division shall forward such report to the disciplining

 2  authority of that medical expert.

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

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

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

 6  disqualified three times pursuant to this section.

 7         Section 63.  Subsection (7) of section 766.207, Florida

 8  Statutes, is amended to read:

 9         766.207  Voluntary binding arbitration of medical

10  negligence claims.--

11         (7)  Arbitration pursuant to this section shall

12  preclude recourse to any other remedy by the claimant against

13  any participating defendant, and shall be undertaken with the

14  understanding that damages shall be awarded as provided by

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

16  following limitations:

17         (a)  Net economic damages shall be awardable,

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

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

20  capacity, offset by any collateral source payments.

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

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

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

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

25  50-percent reduction in his or her capacity to enjoy life

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

27  damages.

28         (c)  Damages for future economic losses shall be

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

30  766.202(8) and shall be offset by future collateral source

31  payments.

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 1         (d)  Punitive damages shall not be awarded.

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

 3  of interest on all accrued damages with respect to which

 4  interest would be awarded at trial.

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

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

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

 8  reduced to present value.

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

10  arbitration proceeding and the fees of all the arbitrators

11  other than the administrative law judge.

12         (h)  Each defendant who submits to arbitration under

13  this section shall be jointly and severally liable for all

14  damages assessed pursuant to this section.

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

16  damages shall be for the purpose of arbitration under this

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

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

19  subsequent litigation of the claim following the rejection

20  thereof.

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

22  arbitrate shall not be admissible as evidence of liability in

23  any collateral or subsequent proceeding on the claim.

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

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

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

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

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

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

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

31  

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

 2  provisions of s. 766.209(4).

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

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

 5  and render a final decision.  The chief arbitrator shall

 6  decide all evidentiary matters.

 7  

 8  The provisions of this subsection shall not preclude

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

10         Section 64.  Subsection (4) is added to section

11  768.041, Florida Statutes, to read:

12         768.041  Release or covenant not to sue.--

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

14  766, or at trial pursuant to s. 766.209, if any defendant

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

16  representative, has delivered a written release or covenant

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

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

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

20  before entry of the final judgment.

21         (b)  The amount of the setoff pursuant to this

22  subsection shall include all sums received by the plaintiff,

23  including economic and noneconomic damages, costs, and

24  attorney's fees.

25         Section 65.  Paragraph (c) of subsection (2) of section

26  768.13, Florida Statutes, is amended to read:

27         768.13  Good Samaritan Act; immunity from civil

28  liability.--

29         (2)

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

31  456.001(4) who is in a hospital attending to a patient of his

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 1  or her practice or for business or personal reasons unrelated

 2  to direct patient care, and who voluntarily responds to

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

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

 5  patient-physician relationship, and when such care or

 6  treatment is necessitated by a sudden or unexpected situation

 7  or by an occurrence that demands immediate medical attention,

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

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

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

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

12  affect the life or health of another.

13         2.  The immunity provided by this paragraph does not

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

15  providing medical care or treatment unrelated to the original

16  situation that demanded immediate medical attention.

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

18  intent is to encourage health care practitioners to provide

19  necessary emergency care to all persons without fear of

20  litigation as described in this paragraph.

21         (c)  Any person who is licensed to practice medicine,

22  while acting as a staff member or with professional clinical

23  privileges at a nonprofit medical facility, other than a

24  hospital licensed under chapter 395, or while performing

25  health screening services, shall not be held liable for any

26  civil damages as a result of care or treatment provided

27  gratuitously in such capacity as a result of any act or

28  failure to act in such capacity in providing or arranging

29  further medical treatment, if such person acts as a reasonably

30  prudent person licensed to practice medicine would have acted

31  under the same or similar circumstances.

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 1         Section 66.  Section 768.77, Florida Statutes, is

 2  amended to read:

 3         768.77  Itemized verdict.--

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

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

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

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

 8  amounts to be awarded to the claimant into the following

 9  categories of damages:

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

11  economic losses;

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

13  noneconomic losses; and

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

15  damages, if applicable.

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

17  or wrongful death arising out of medical malpractice, whether

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

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

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

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

22  into the following categories of damages:

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

24         1.  Past economic losses; and

25         2.  Future economic losses, not reduced to present

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

27  is intended to cover;

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

29         1.  Past noneconomic losses; and

30         2.  Future noneconomic losses and the number of years

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

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 1         (c)  Amounts awarded to the claimant for punitive

 2  damages, if applicable.

 3         Section 67.  Subsection (5) of section 768.81, Florida

 4  Statutes, is amended to read:

 5         768.81  Comparative fault.--

 6         (5)  Notwithstanding any provision of anything in law

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

 8  or wrongful death arising out of medical malpractice, whether

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

10  total fault only among the claimant and all the joint

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

12  submitted to the jury for deliberation and rendition of the

13  verdict when an apportionment of damages pursuant to this

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

15  408.07, the court shall enter judgment against the teaching

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

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

18  liability.

19         Section 68.  The Office of Program Policy Analysis and

20  Government Accountability and the Office of the Auditor

21  General must jointly conduct an audit of the Department of

22  Health's health care practitioner disciplinary process and

23  closed claims that are filed with the department under section

24  627.912, Florida Statutes. The Office of Program Policy

25  Analysis and Government Accountability and the Office of the

26  Auditor General shall submit a report to the Legislature by

27  January 1, 2004.

28         Section 69.  Section 1004.08, Florida Statutes, is

29  created to read:

30         1004.08  Patient safety instructional

31  requirements.--Each public school, college, and university

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 1  that offers degrees in medicine, nursing, or allied health

 2  shall include in the curricula applicable to such degrees

 3  material on patient safety, including patient safety

 4  improvement. Materials shall include, but need not be limited

 5  to, effective communication and teamwork; epidemiology of

 6  patient injuries and medical errors; medical injuries;

 7  vigilance, attention and fatigue; checklists and inspections;

 8  automation, technological, and computer support; psychological

 9  factors in human error; and reporting systems.

10         Section 70.  Section 1005.07, Florida Statutes, is

11  created to read:

12         1005.07  Patient safety instructional

13  requirements.--Each private school, college, and university

14  that offers degrees in medicine, nursing, and allied health

15  shall include in the curricula applicable to such degrees

16  material on patient safety, including patient safety

17  improvement. Materials shall include, but need not be limited

18  to, effective communication and teamwork; epidemiology of

19  patient injuries and medical errors; medical injuries;

20  vigilance, attention and fatigue; checklists and inspections;

21  automation, technological, and computer support; psychological

22  factors in human error; and reporting systems.

23         Section 71.  No later than September 1, 2003, the

24  Department of Health shall convene a workgroup to study the

25  current healthcare practitioner disciplinary process. The

26  workgroup shall include a representative of the Administrative

27  Law section of The Florida Bar, a representative of the Health

28  Law section of The Florida Bar, a representative of the

29  Florida Medical Association, a representative of the Florida

30  Osteopathic Medical Association, a representative of the

31  Florida Dental Association, a member of the Florida Board of

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 1  Medicine who has served on the probable cause panel, a member

 2  of the Board of Osteopathic Medicine who has served on the

 3  probable cause panel, and a member of the Board of Dentistry

 4  who has served on the probable cause panel. The workgroup

 5  shall also include one consumer member of the Board of

 6  Medicine. The Department of Health shall present the findings

 7  and recommendations to the Governor, the President of the

 8  Senate, and the Speaker of the House of Representatives no

 9  later than January 1, 2004. The sponsoring organizations shall

10  assume the costs of their representative.

11         Section 72.  Section 766.1065, Florida Statutes, is

12  created to read:

13         766.1065  Mandatory presuit investigation.--

14         (1)  Within 30 days after service of the presuit notice

15  of intent to initiate medical malpractice litigation, each

16  party shall provide to all other parties all medical,

17  hospital, health care, and employment records concerning the

18  claimant in the disclosing party's possession, custody, or

19  control, and the disclosing party shall affirmatively certify

20  in writing that such records constitute all records in that

21  party's possession, custody, or control of that the party has

22  no medical, hospital, health care, or employment records

23  concerning the claimant.

24         (a)  Subpoenas may be issued according to the Florida

25  Rules of Civil Procedure as if suit has been filed for the

26  limited purpose of obtaining copies of medical, hospital,

27  health care, and employment records relating to the claimant.

28  The party shall indicate on the subpoena that it is issued in

29  accordance with the presuit procedures of this section and

30  need not include a case number.

31  

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 1         (b)  This section does not limit the ability of any

 2  party to use any other presuit discovery available under this

 3  chapter or the Florida Rules of Civil Procedure.

 4         (2)  Within 60 days after service of the presuit notice

 5  of intent to initiate medical malpractice litigation, all

 6  parties must be made available for a sworn deposition. A

 7  deposition taken pursuant to this section may not be used in

 8  any civil action for any purpose by any party.

 9         (3)  Within 120 days after service of the presuit

10  notice of intent to initiate medical malpractice litigation,

11  each party's corroborating expert, who will otherwise be

12  tendered as the expert complying with the affidavit provisions

13  in s. 766.203, must be made available for a sworn deposition.

14         (a)  The expenses associated with the expert's time and

15  travel in preparing for and attending such deposition are the

16  responsibility of the party retaining such expert.

17         (b)  An expert is deemed available for deposition if

18  suitable accommodations can be made for appearance of the

19  expert by real-time video technology.

20         (4)  Within 150 days after service of the presuit

21  notice of intent to initiate medical malpractice litigation,

22  all parties must attend in-person mandatory mediation in

23  accordance with s. 44.102, if binding arbitration under s.

24  766.106 or s. 766.207 has not been agreed to by the parties.

25  The Florida Rules of Civil Procedure shall apply to such

26  mediation.

27         (5)  If the parties declare an impasse during the

28  mandatory mediation, the plaintiff shall make a request to the

29  Office of Presuit Screening, via certified mail, for a hearing

30  of a presuit screening panel to be convened pursuant to s.

31  766.1066.

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 1         Section 73.  Section 766.1066, Florida Statutes, is

 2  created to read:

 3         766.1066  Office of Presuit Screening Administration;

 4  presuit screening panels.--

 5         (1)(a)  There is created within the Department of

 6  Health, the Office of Presuit Screening Administration. The

 7  department shall provide administrative support and service to

 8  the office to the extent requested by the director. The office

 9  is not subject to any control, supervision, or direction by

10  the department, including, but not limited to, personnel,

11  purchasing, transactions involving real or personal property,

12  and budgetary matters. The director of the office shall be

13  appointed by the Governor and the Cabinet.

14         (b)  The office shall, by September 1, 2003, develop

15  and maintain a database of physicians, attorneys, and

16  consumers available to serve as members of presuit screening

17  panels.

18         (c)  The Department of Health and the relevant

19  regulatory boards shall assist the office in developing the

20  database. The office shall request the assistance of The

21  Florida Bar in developing the database.

22         (d)  Funding for the office's general expenses shall

23  come from a service charge equal to 0.5 percent of the final

24  judgment or arbitration award in each medical malpractice

25  liability case in this state. All parties in such malpractice

26  actions shall in equal parts pay the service charge at the

27  time proceeds from a final judgment or an arbitration award

28  are initially disbursed. Such charge shall be collected by the

29  clerk of the circuit court in the county where the final

30  judgment is entered or the arbitration award is made. The

31  clerk shall remit the service charges to the Department of

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 1  Revenue for deposit into the Presuit Screening Administration

 2  Trust Fund. The Department of Revenue shall adopt rules to

 3  administer the service charge.

 4         (e)1.  A person may not be required to serve on a

 5  presuit screening panel for more than 2 days.

 6         2.  A person on a panel shall designate in advance any

 7  time period during which he or she will not be available to

 8  serve.

 9         3.  When a plaintiff requests a hearing before a panel,

10  the office shall randomly select members for a panel from

11  available persons in the appropriate categories who have not

12  served on a panel in the past 12 months. If there are no other

13  potential panelists available, a panelist may be asked to

14  serve on another panel within 12 months.

15         (f)  Panel members shall receive reimbursement from the

16  office for their travel expenses.

17         (g)  A physician who serves on a panel:

18         1.  Shall receive credit for 20 hours of continuing

19  medical education for such service;

20         2.  Must reside and practice at least 50 miles from the

21  location where the alleged injury occurred;

22         3.  Must have had no more than two judgments for

23  medical malpractice liability against him or her within the

24  preceding 5 years and no more than 10 claims of medical

25  malpractice filed against him or her within the preceding 3

26  years.

27         4.  Must hold an active license in good standing in

28  this state or must have been in active practice within the

29  5-year period prior to selection.

30  

31  

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 1  A physician who fails to attend the designated panel hearing

 2  on two separate occasions shall be reported to his or her

 3  regulatory board for discipline and may not receive certified

 4  medical education credit for participation on the panel.

 5         (h)  An attorney who serves on a panel:

 6         1.  Should receive credit for 20 hours of continuing

 7  legal education and credit towards pro bono requirements for

 8  such service. The Legislature requests that the Supreme Court

 9  adopt rules to implement this provision.

10         2.  Must reside and practice at least 50 miles from the

11  location where the alleged injury occurred;

12         3.  Must have had no judgments for filing a frivolous

13  lawsuit within the preceding 5 years;

14         4.  Must hold an active license to practice law in this

15  state and have held an active license in good standing for at

16  least 5 years; and

17         5.  Must be a board-certified civil trial lawyer.

18  

19  An attorney who fails to attend the designated panel hearing

20  on two separate occasions shall be reported to The Florida

21  Bar.

22         (2)(a)  A presuit screening panel shall be composed of

23  five persons, including:

24         1.  Two physicians who are board-certified in the same

25  specialty as the defendant;

26         2.  Two attorneys; and

27         3.  One consumer who is neither an attorney nor a

28  physician and who does not have a professional or financial

29  relationship with a health care provider or an attorney that

30  is a party or represents a party in the hearing. A consumer

31  panel member who fails to attend the designated panel hearing

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 1  on two separate occasions shall be dismissed from service on

 2  the panel and barred from future service on a panel.

 3         (b)  If there is more than one physician defendant, the

 4  plaintiff shall designate the subject areas in which both

 5  physician members of the panel must be board-certified.

 6         (c)  A panel member who knowingly has a conflict of

 7  interest or potential conflict of interest must disclose it

 8  prior to the hearing.

 9         (d)  A plaintiff or a defendant may challenge any panel

10  member for a conflict of interest and ask that the panelist be

11  replaced by the office. The office must replace a challenged

12  panel member with a panel member from the same category as the

13  one challenged. A plaintiff or defendant may make repeated

14  challenges to prospective panel members until the lists from

15  which the panel members are selected are exhausted.

16         (e)  The office shall provide administrative support to

17  the panel.

18         (3)  The plaintiff shall be allowed 8 hours to present

19  his or her case. All defendants shall be allowed a total of 8

20  hours collectively to present their case, and a hearing may

21  not exceed a total of 16 hours; however, the panel may hear a

22  case over the course of 2 calendar days. The panel members

23  shall select a chair to preside at the hearing from among the

24  panel members.

25         (4)(a)  The testimony of all witnesses or parties shall

26  be given under oath. The presiding panel member may administer

27  oaths.

28         (b)  The parties are entitled to be heard, to present

29  relevant evidence, and to cross-examine witnesses to the

30  extent necessary to enable the panel to render an opinion.

31  Irrelevant, immaterial, or unduly repetitious evidence shall

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 1  be excluded, but all other evidence of a type commonly relied

 2  upon by reasonably prudent persons in the conduct of their

 3  affairs is admissible, whether or not such evidence would be

 4  admissible in a trial. Any part of the evidence may be

 5  received in written form. The panel may proceed with the

 6  hearing and shall render an opinion upon the evidence

 7  produced, notwithstanding the failure of a party to appear.

 8         (5)  A panel shall, by a majority vote for each

 9  defendant, make its findings in writing regarding reasonable

10  grounds for liability of the defendant, based on the

11  preponderance of the evidence. The findings of the panel are

12  not final agency action for purposes of chapter 120, and are

13  admissible as evidence, but not conclusive evidence, in the

14  action brought by the plaintiff.

15         (6)  Panel members are immune from civil liability for

16  all communications, findings, opinions, and conclusions made

17  in the course and scope of duties prescribed by this section

18  to the extent provided in s. 768.28.

19         (7)  The Administration Commission shall adopt rules to

20  administer this section.

21         Section 74.  Three positions are authorized and the sum

22  of $200,000 is appropriated from the General Revenue Fund to

23  the Office of Presuit Screening Administration to implement

24  the provisions of sections 72 and 73 of this act for the

25  2003-2004 fiscal year. The $200,000 includes $147,600 in

26  salaries and benefits, $47,400 in expenses, and $5,000 in OCO.

27  The appropriations shall be continued from the Presuit

28  Screening Trust Fund of the Department of Health in subsequent

29  years.

30         Section 75.  The sum of $687,786 is appropriated from

31  the Medical Quality Assurance Trust Fund to the Department of

                                 149

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    Florida Senate - 2003                            CS for SB 2-B
    317-2695-03




 1  Health, and seven positions are authorized, for the purpose of

 2  implementing this act during the 2003-2004 fiscal year. The

 3  sum of $452,122 is appropriated from the General Revenue Fund

 4  to the Agency for Health Care Administration, and five

 5  positions are authorized, for the purpose of implementing this

 6  act during the 2003-2004 fiscal year.

 7         Section 76.  The sum of $2,150,000 is appropriated from

 8  the Insurance Regulatory Trust Fund in the Department of

 9  Financial Services to the Office of Insurance Regulation for

10  the purpose of implementing this act during the 2003-2004

11  fiscal year.

12         Section 77.  If any law that is amended by this act was

13  also amended by a law enacted at the 2003 Regular Session or

14  2003 Special Session A of the Legislature, such laws shall be

15  construed as if they had been enacted during the same session

16  of the Legislature, and full effect should be given to each if

17  that is possible.

18         Section 78.  If any provision of this act or its

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

20  invalidity does not affect other provisions or applications of

21  the act which can be given effect without the invalid

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

23  this act are severable.

24         Section 79.  Except as otherwise expressly provided in

25  this act, this act shall take effect July 1, 2003, or upon

26  becoming a law, whichever occurs later, and shall apply

27  retroactively to July 1, 2003, with respect to any action

28  arising from a medical malpractice claim initiated by a notice

29  of intent to litigate received by a potential defendant in a

30  medical malpractice case on or after that date.

31  

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    Florida Senate - 2003                            CS for SB 2-B
    317-2695-03




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2-B

 3                                 

 4  The bill deletes requirements for a claimant to execute a
    medical release pursuant to informal discovery as part of a
 5  medical malpractice action to permit the taking of unsworn
    statements.
 6  
    The financial responsibility requirements for medical and
 7  osteopathic physicians are revised to prohibit the use of
    funds set aside to meet the requirements for litigation or
 8  defense costs in a medical malpractice action. The minimum
    amount of professional liability claims that a medical or
 9  osteopathic physician has incurred within the previous ten
    years which the Department of Health must include in the
10  practitioner profiles is revised from $100,000 to $50,000.

11  For purposes of the prohibition on excess underwriting profits
    for medical liability insurance, the bill revises the number
12  of years in which an insurer would be deemed to have earned
    excess profits if its actual profit for the previous 3 instead
13  of ten years is greater than the insurer's anticipated profit
    plus a specified percentage for that period.
14  
    The period in which an insurer may not be held to have acted
15  in bad faith for failure to timely pay its policy limits if it
    tenders its policy limits and meets reasonable conditions of
16  settlement before the conclusion of the presuit screening
    period for a medical malpractice action is revised.
17  
    A $500,000 per defendant cap is established on noneconomic
18  damages in personal injury or wrongful death cases resulting
    from an occurrence of medical negligence, including voluntary
19  binding arbitration. Damages may be awarded in excess of the
    $500,000 cap under when specified injuries are involved with
20  exceptions.

21  The bill revises provisions extending immunity from civil
    liability under the Good Samaritan Act.
22  
    The bill establishes the Office of Presuit Screening
23  Administration and creates presuit screening panels to
    determine whether there is a reasonable basis for claims after
24  the presuit investigation by the claimant and defendant. An
    appropriation of $200,000 is provided to implement the Office
25  and its responsibilities.

26  The bill provides for an appropriation of $2,150,000 to be
    transferred from the Insurance Regulatory Trust Fund to the
27  Office of Insurance Regulation in order to implement the Act
    during the 2003-2004 fiscal year.
28  

29  

30  

31  

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