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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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
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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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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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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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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
6
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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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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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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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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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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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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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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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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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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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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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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
17
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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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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.
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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:
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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
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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:
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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
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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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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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