Senate Bill sb0002Be1

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    CS for SB 2-B                                  First Engrossed



  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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1         greater than a specified amount posted in the

 2         practitioner profile; amending s. 456.042,

 3         F.S.; providing for the update of practitioner

 4         profiles; designating a timeframe within which

 5         a practitioner must submit new information to

 6         update his or her profile; amending s. 456.049,

 7         F.S., relating to practitioner reports on

 8         professional liability claims and actions;

 9         revising requirements for a practitioner to

10         report claims or actions that were not covered

11         by an insurer; requiring the department to

12         forward information on liability claims and

13         actions to the Office of Insurance Regulation;

14         amending s. 456.051, F.S.; establishing the

15         responsibility of the Department of Health to

16         provide reports of professional liability

17         actions and bankruptcies; requiring the

18         department to include such reports in a

19         practitioner's profile within a specified

20         period; amending s. 456.057, F.S.; allowing the

21         department to obtain patient records by

22         subpoena without the patient's written

23         authorization, in specified circumstances;

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

25         regulatory boards or the department to adopt

26         rules to implement requirements for reporting

27         allegations of sexual misconduct; authorizing

28         health care practitioner regulatory boards to

29         adopt rules to establish standards of practice

30         for prescribing drugs to patients via the

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


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    CS for SB 2-B                                  First Engrossed



 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 ss. 458.311 and 459.0055, F.S.;

19         requiring that specified information be

20         provided to the Department of Health; amending

21         s. 458.320, F.S., relating to financial

22         responsibility requirements for medical

23         physicians; requiring maintenance of financial

24         responsibility as a condition of licensure of

25         physicians; providing for payment of any

26         outstanding judgments or settlements pending at

27         the time a physician is suspended by the

28         Department of Business and Professional

29         Regulation; requiring the department to suspend

30         the license of a medical physician who has not

31         paid, up to the amounts required by any


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    CS for SB 2-B                                  First Engrossed



 1         applicable financial responsibility provision,

 2         any outstanding judgment, arbitration award,

 3         other order, or settlement; amending s.

 4         459.0085, F.S., relating to financial

 5         responsibility requirements for osteopathic

 6         physicians; requiring maintenance of financial

 7         responsibility as a condition of licensure of

 8         osteopathic physicians; providing for payment

 9         of any outstanding judgments or settlements

10         pending at the time an osteopathic physician is

11         suspended by the Department of Business and

12         Professional Regulation; requiring that the

13         department suspend the license of an

14         osteopathic physician who has not paid, up to

15         the amounts required by any applicable

16         financial responsibility provision, any

17         outstanding judgment, arbitration award, other

18         order, or settlement; providing civil immunity

19         for certain participants in quality improvement

20         processes; defining the terms "patient safety

21         data" and "patient safety organization";

22         providing for use of patient safety data by a

23         patient safety organization; providing

24         limitations on use of patient safety data;

25         providing for protection of patient-identifying

26         information; providing for determination of

27         whether the privilege applies as asserted;

28         providing that an employer may not take

29         retaliatory action against an employee who

30         makes a good-faith report concerning patient

31         safety data; requiring that a specific


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    CS for SB 2-B                                  First Engrossed



 1         statement be included in each final settlement

 2         statement relating to medical malpractice

 3         actions; providing requirements for the closed

 4         claim form of the Office of Insurance

 5         Regulation; requiring the Office of Insurance

 6         Regulation to compile annual statistical

 7         reports pertaining to closed claims; requiring

 8         historical statistical summaries; specifying

 9         certain information to be included on the

10         closed claim form; amending s. 458.331, F.S.,

11         relating to grounds for disciplinary action

12         against a physician; redefining the term

13         "repeated malpractice"; revising the standards

14         for the burden of proof in an administrative

15         action against a physician; revising the

16         minimum amount of a claim against a licensee

17         which will trigger a departmental

18         investigation; amending s. 459.015, F.S.,

19         relating to grounds for disciplinary action

20         against an osteopathic physician; redefining

21         the term "repeated malpractice"; revising the

22         standards for the burden of proof in an

23         administrative action against an osteopathic

24         physician; amending conditions that necessitate

25         a departmental investigation of an osteopathic

26         physician; revising the minimum amount of a

27         claim against a licensee which will trigger a

28         departmental investigation; amending s.

29         460.413, F.S., relating to grounds for

30         disciplinary action against a chiropractic

31         physician; revising the standards for the


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    CS for SB 2-B                                  First Engrossed



 1         burden of proof in an administrative action

 2         against a chiropractic physician; providing a

 3         statement of legislative intent regarding the

 4         change in the standard of proof in disciplinary

 5         cases involving the suspension or revocation of

 6         a license; providing that the practice of

 7         health care is a privilege, not a right;

 8         providing that protecting patients overrides

 9         purported property interest in the license of a

10         health care practitioner; providing that

11         certain disciplinary actions are remedial and

12         protective, not penal; providing that the

13         Legislature specifically reverses case law to

14         the contrary; requiring the Division of

15         Administrative Hearings to designate

16         administrative law judges who have special

17         qualifications for hearings involving certain

18         health care practitioners; amending s. 461.013,

19         F.S., relating to grounds for disciplinary

20         action against a podiatric physician;

21         redefining the term "repeated malpractice";

22         amending the minimum amount of a claim against

23         such a physician which will trigger a

24         department investigation; amending s. 466.028,

25         F.S., relating to grounds for disciplinary

26         action against a dentist or a dental hygienist;

27         redefining the term "dental malpractice";

28         revising the minimum amount of a claim against

29         a dentist which will trigger a departmental

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

31         authorizing health care providers to form a


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    CS for SB 2-B                                  First Engrossed



 1         commercial self-insurance fund; amending s.

 2         627.062, F.S.; providing that an insurer may

 3         not require arbitration of a rate filing for

 4         medical malpractice; providing additional

 5         requirements for medical malpractice insurance

 6         rate filings; providing that portions of

 7         judgments and settlements entered against a

 8         medical malpractice insurer for bad-faith

 9         actions or for punitive damages against the

10         insurer, as well as related taxable costs and

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

12         insurer's base rate; providing for review of

13         rate filings by the Office of Insurance

14         Regulation for excessive, inadequate, or

15         unfairly discriminatory rates; requiring

16         insurers to apply a discount based on the

17         health care provider's loss experience;

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

19         malpractice insurers from certain annual

20         filings; requiring the Office of Program Policy

21         Analysis and Government Accountability to study

22         and report to the Legislature on requirements

23         for coverage by the Florida Birth-Related

24         Neurological Injury Compensation Association;

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

26         definitions; requiring each medical liability

27         insurer to report certain information to the

28         Office of Insurance Regulation; providing for

29         determination of whether excessive profit has

30         been realized; requiring return of excessive

31         amounts; amending s. 627.357, F.S.; providing


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    CS for SB 2-B                                  First Engrossed



 1         guidelines for the formation and regulation of

 2         certain self-insurance funds; amending s.

 3         627.4147, F.S.; revising certain notification

 4         criteria for medical and osteopathic

 5         physicians; requiring prior notification of a

 6         rate increase; authorizing the purchase of

 7         insurance by certain health care providers;

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

 9         Office of Insurance Regulation to require

10         health care providers to annually publish

11         certain rate comparison information; creating

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

13         Insurance Regulation to publish an annual

14         medical malpractice report; creating s.

15         627.41493, F.S.; requiring a medical

16         malpractice insurance rate rollback; providing

17         for subsequent increases under certain

18         circumstances; requiring approval for use of

19         certain medical malpractice insurance rates;

20         providing for a mechanism to make effective the

21         Florida Medical Malpractice Insurance Fund in

22         the event the rollback of medical malpractice

23         insurance rates is not completed; creating the

24         Florida Medical Malpractice Insurance Fund;

25         providing purpose; providing governance by a

26         board of governors; providing for the fund to

27         issue medical malpractice policies to any

28         physician regardless of specialty; providing

29         for regulation by the Office of Insurance

30         Regulation of the Financial Services

31         Commission; providing applicability; providing


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    CS for SB 2-B                                  First Engrossed



 1         for initial funding; providing for tax-exempt

 2         status; providing for initial capitalization;

 3         providing for termination of the fund;

 4         providing that practitioners licensed under ch.

 5         458 or ch. 459, F.S., must, as a licensure

 6         requirement, obtain and maintain professional

 7         liability coverage; creating s. 627.41495,

 8         F.S.; providing for consumer participation in

 9         review of medical malpractice rate changes;

10         providing for public inspection; providing for

11         adoption of rules by the Financial Services

12         Commission; requiring the Office of Insurance

13         Regulation to order insurers to make rate

14         filings effective January 1, 2004, which

15         reflect the impact of the act; providing

16         criteria for such rate filing; amending s.

17         627.912, F.S.; amending provisions prescribing

18         conditions under which insurers must file

19         certain reports with the Department of Health;

20         requiring the Financial Services Commission to

21         adopt by rule requirements for reporting

22         financial information; increasing the

23         limitation on a fine imposed against insurers;

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

25         claims, judgments, or settlements to be

26         reported to the Office of Insurance Regulation;

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

28         revising requirements for health care providers

29         providing expert testimony in medical

30         negligence actions; prohibiting contingency

31         fees for an expert witness; amending s.


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    CS for SB 2-B                                  First Engrossed



 1         766.106, F.S.; providing for application of

 2         common law principles of good faith to an

 3         insurance company's bad-faith actions arising

 4         out of medical malpractice claims; providing

 5         that an insurer shall not be held to have acted

 6         in bad faith for certain activities during the

 7         presuit period and for a specified later

 8         period; providing legislative intent with

 9         respect to actions by insurers, insureds, and

10         their assigns and representatives; providing

11         for future repeal; revising requirements for

12         presuit notice and for an insurer's or

13         self-insurer's response to a claim; requiring

14         that a claimant provide the Agency for Health

15         Care Administration with a copy of the

16         complaint alleging medical malpractice;

17         requiring the agency to review such complaints

18         for licensure noncompliance; permitting written

19         questions during informal discovery; amending

20         s. 766.108, F.S.; providing for mandatory

21         mediation; creating s. 766.118, F.S.; providing

22         a maximum amount to be awarded as noneconomic

23         damages in medical negligence actions;

24         providing exceptions; providing for

25         cost-of-living adjustments to such maximum

26         amount of noneconomic damages; providing that

27         caps on noneconomic damages do not apply to any

28         incident involving certain physicians under

29         certain circumstances; providing for future

30         repeal; amending s. 766.202, F.S.; redefining

31         the terms "economic damages," "medical expert,"


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    CS for SB 2-B                                  First Engrossed



 1         "noneconomic damages," and "periodic payment";

 2         amending s. 766.206, F.S.; providing for

 3         dismissal of a claim under certain

 4         circumstances; requiring the court to make

 5         certain reports concerning a medical expert who

 6         fails to meet qualifications; amending s.

 7         766.207, F.S.; providing for the applicability

 8         of the Wrongful Death Act and general law to

 9         arbitration awards; amending s. 768.041, F.S.;

10         revising requirements for setoffs against

11         damages in medical malpractice actions if there

12         is a written release or covenant not to sue;

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

14         for immunity from liability under the "Good

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

16         prescribing a method for itemization of

17         specific categories of damages awarded in

18         medical malpractice actions; amending s.

19         768.81, F.S.; requiring the trier of fact to

20         apportion total fault solely among the claimant

21         and joint tortfeasors as parties to an action;

22         preserving sovereign immunity and the

23         abrogation of certain joint and several

24         liability; requiring the Office of Program

25         Policy Analysis and Government Accountability

26         and the Office of the Auditor General to

27         conduct an audit of the health care

28         practitioner disciplinary process and closed

29         claims and report to the Legislature; creating

30         ss. 1004.08 and 1005.07, F.S.; requiring

31         schools, colleges, and universities to include


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    CS for SB 2-B                                  First Engrossed



 1         material on patient safety in their curricula

 2         if the institution awards specified degrees;

 3         amending s. 1006.20, F.S.; requiring completion

 4         of a uniform participation physical evaluation

 5         and history form incorporating recommendations

 6         of the American Heart Association; deleting

 7         revisions to procedures for students' physical

 8         examinations; creating a workgroup to study the

 9         health care practitioner disciplinary process;

10         providing for workgroup membership; providing

11         that the workgroup deliver its report by

12         January 1, 2004; creating s. 766.1065, F.S.;

13         providing for mandatory presuit investigations;

14         providing that certain records be provided to

15         opposing parties; providing subpoena power;

16         providing for sworn depositions of parties and

17         medical experts; providing for mandatory

18         in-person mediation if binding arbitration has

19         not been agreed to; providing for a mandatory

20         presuit screening panel hearing in the event of

21         mediation impasse; creating s. 766.1066, F.S.;

22         creating the Office of Presuit Screening

23         Administration; providing for a database of

24         volunteer panel members; prescribing

25         qualifications for panel membership; providing

26         a funding mechanism; providing panel

27         procedures; providing for determination and

28         recordation of panel findings; providing for

29         disposition of panel findings; providing

30         immunity from liability for panel members;

31         creating s. 624.156, F.S.; providing that


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    CS for SB 2-B                                  First Engrossed



 1         certain consumer protection laws apply to the

 2         business of insurance; amending s. 456.013,

 3         F.S.; requiring, as a condition of licensure

 4         and license renewal, that physicians and

 5         physician assistants complete a continuing

 6         education course relating to misdiagnosed

 7         conditions; amending s. 766.209, F.S.; revising

 8         applicable damages available in voluntary

 9         binding arbitration relating to claims of

10         medical negligence; providing appropriations

11         and authorizing positions; providing for

12         construction of the act in pari materia with

13         laws enacted during the 2003 Regular Session or

14         2003 Special Session A of the Legislature;

15         providing for severability; providing for

16         retroactive application; providing effective

17         dates.

18  

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

20  

21         Section 1.  Findings.--

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

23  of a medical malpractice insurance crisis of unprecedented

24  magnitude.

25         (2)  The Legislature finds that this crisis threatens

26  the quality and availability of health care for all Florida

27  citizens.

28         (3)  The Legislature finds that the rapidly growing

29  population and the changing demographics of Florida make it

30  imperative that students continue to choose Florida as the

31  


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    CS for SB 2-B                                  First Engrossed



 1  place they will receive their medical educations and practice

 2  medicine.

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

 4  states with the highest medical malpractice insurance premiums

 5  in the nation.

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

 7  malpractice insurance has increased dramatically during the

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

 9  substantially higher than the national average.

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

11  malpractice liability insurance rates is forcing physicians to

12  practice medicine without professional liability insurance, to

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

14  retire early from the practice of medicine.

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

16  Force on Healthcare Professional Liability Insurance to study

17  and make recommendations to address these problems.

18         (8)  The Legislature has reviewed the findings and

19  recommendations of the Governor's Select Task Force on

20  Healthcare Professional Liability Insurance.

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

22  Task Force on Healthcare Professional Liability Insurance has

23  established that a medical malpractice insurance crisis exists

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

25  adoption of comprehensive legislatively enacted reforms.

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

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

28  overwhelming public necessity.

29         (11)  The Legislature finds that ensuring that

30  physicians continue to practice in Florida is an overwhelming

31  public necessity.


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    CS for SB 2-B                                  First Engrossed



 1         (12)  The Legislature finds that ensuring the

 2  availability of affordable professional liability insurance

 3  for physicians is an overwhelming public necessity.

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

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

 6  Healthcare Professional Liability Insurance, the findings and

 7  recommendations of various study groups throughout the nation,

 8  and the experience of other states, that the overwhelming

 9  public necessities of making quality health care available to

10  the citizens of this state, of ensuring that physicians

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

12  physicians have the opportunity to purchase affordable

13  professional liability insurance cannot be met unless a cap on

14  noneconomic damages is imposed under certain circumstances.

15         (14)  The Legislature finds that the high cost of

16  medical malpractice claims can be substantially alleviated, in

17  the short term, by imposing a limitation on noneconomic

18  damages in medical malpractice actions under certain

19  circumstances.

20         (15)  The Legislature further finds that there is no

21  alternative measure of accomplishing such result without

22  imposing even greater limits upon the ability of persons to

23  recover damages for medical malpractice.

24         (16)  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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1  that are provided for in this subsection are needed to

 2  accomplish the objectives of the center.

 3         (9)  The center may enter into affiliations with

 4  universities for any purpose.

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

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

 7  projects to improve the quality of program administration,

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

 9  electronic medical record for Medicaid program recipients.

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

11  shall be in accordance with s. 112.061.

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

13  contracts and the state communications system in accordance

14  with s. 282.105(3).

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

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

17  royalties, and other rights or interests thereunder or

18  therein.

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

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

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

22  which includes:

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

24  program to analyze data concerning adverse incidents and

25  patient safety events.

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

27  computerized physician order entry system.

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

29  electronic medical record.

30  

31  


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1         (g)(f)  Medical negligence other than as specified in

 2  paragraph (d) or paragraph (e).

 3         (h)(g)  Failure to comply with the policies,

 4  procedures, or directives of the risk management program or

 5  any quality assurance committees of any licensed facility.

 6         (9)(a)  If the defendant prevails in an action brought

 7  by a staff member or physician who delivers health care

 8  services at the licensed facility against any person or entity

 9  that initiated, participated in, was a witness in, or

10  conducted any review as authorized by this section, the court

11  shall award reasonable attorney's fees and costs to the

12  defendant. Monetary liability pursuant to this subsection

13  shall not exceed $250,000 except when intentional fraud is

14  involved.

15         Section 7.  Subsections (1), (3), and (8) of section

16  395.0197, Florida Statutes, are amended, present subsections

17  (12) through (20) of that section are redesignated as

18  subsections (13) through (21), respectively, and a new

19  subsection (12) is added to that section, to read:

20         395.0197  Internal risk management program.--

21         (1)  Every licensed facility shall, as a part of its

22  administrative functions, establish an internal risk

23  management program that includes all of the following

24  components:

25         (a)  The investigation and analysis of the frequency

26  and causes of general categories and specific types of adverse

27  incidents to patients.

28         (b)  The development of appropriate measures to

29  minimize the risk of adverse incidents to patients, including,

30  but not limited to:

31  


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1         395.1012  Patient safety.--

 2         (1)  Each licensed facility must adopt a patient safety

 3  plan. A plan adopted to implement the requirements of 42

 4  C.F.R. part 482.21 shall be deemed to comply with this

 5  requirement.

 6         (2)  Each licensed facility shall appoint a patient

 7  safety officer and a patient safety committee, which shall

 8  include at least one person who is neither employed by nor

 9  practicing in the facility, for the purpose of promoting the

10  health and safety of patients, reviewing and evaluating the

11  quality of patient safety measures used by the facility, and

12  assisting in the implementation of the facility patient safety

13  plan.

14         Section 9.  Subsection (1) of section 456.025, Florida

15  Statutes, is amended to read:

16         456.025  Fees; receipts; disposition.--

17         (1)  It is the intent of the Legislature that all costs

18  of regulating health care professions and practitioners shall

19  be borne solely by licensees and licensure applicants. It is

20  also the intent of the Legislature that fees should be

21  reasonable and not serve as a barrier to licensure. Moreover,

22  it is the intent of the Legislature that the department

23  operate as efficiently as possible and regularly report to the

24  Legislature additional methods to streamline operational

25  costs. Therefore, the boards in consultation with the

26  department, or the department if there is no board, shall, by

27  rule, set renewal fees which:

28         (a)  Shall be based on revenue projections prepared

29  using generally accepted accounting procedures;

30  

31  


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1         (a)  Whether hospital discharge data about services can

 2  be translated into understandable and meaningful information

 3  for the public.

 4         (b)  Whether the following measures are useful consumer

 5  guides relating to care provided in state-licensed hospitals:

 6         1.  Inpatient mortality for medical conditions;

 7         2.  Inpatient mortality for procedures;

 8         3.  Utilization of procedures for which there are

 9  questions of overuse, underuse, or misuse; and

10         4.  Volume of procedures for which there is evidence

11  that a higher volume of procedures is associated with lower

12  mortality.

13         (c)  Whether there are quality indicators that are

14  particularly useful relative to the state's unique

15  demographics.

16         (d)  Whether all hospitals should be included in the

17  comparison.

18         (e)  The criteria for comparison.

19         (f)  Whether comparisons are best within metropolitan

20  statistical areas or some other geographic configuration.

21         (g)  Identify several websites to which such a report

22  should be published to achieve the broadest dissemination of

23  the information.

24         (3)  The Agency for Health Care Administration shall

25  consider the input of all interested parties, including

26  hospitals, physicians, consumer organizations, and patients,

27  and submit the final report to the Governor and the presiding

28  officers of the Legislature by January 1, 2004.

29         Section 11.  Section 395.1051, Florida Statutes, is

30  created to read:

31  


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 1  listed in its website report of dispositions of recent

 2  disciplinary actions taken against practitioners.

 3         (4)  The Department of Health shall include, with

 4  respect to a practitioner licensed under chapter 458 or

 5  chapter 459, a statement of how the practitioner has elected

 6  to comply with the financial responsibility requirements of s.

 7  458.320 or s. 459.0085. The department shall include, with

 8  respect to practitioners subject to s. 456.048, a statement of

 9  how the practitioner has elected to comply with the financial

10  responsibility requirements of that section. The department

11  shall include, with respect to practitioners licensed under

12  chapter 458, chapter 459, or chapter 461, information relating

13  to liability actions which has been reported under s. 456.049

14  or s. 627.912 within the previous 10 years for any paid claim

15  that exceeds $5,000. The department shall include, with

16  respect to practitioners licensed under chapter 458 or chapter

17  459, information relating to liability actions which has been

18  reported under s. 456.049 or s. 627.912 within the previous 10

19  years for any paid claim that exceeds $100,000. Such claims

20  information shall be reported in the context of comparing an

21  individual practitioner's claims to the experience of other

22  practitioners within the same specialty, or profession if the

23  practitioner is not a specialist, to the extent such

24  information is available to the Department of Health. The

25  department must provide a hyperlink in such practitioner's

26  profile to all such comparison reports. If information

27  relating to a liability action is included in a practitioner's

28  practitioner profile, the profile must also include the

29  following statement: "Settlement of a claim may occur for a

30  variety of reasons that do not necessarily reflect negatively

31  on the professional competence or conduct of the practitioner.


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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.  Subsection (9) is added to section

24  458.311, Florida Statutes, to read:

25         458.311  Licensure by examination; requirements;

26  fees.--

27         (9)  In addition to other information required under

28  this section, an applicant for licensure or relicensure must

29  submit the following information to the department:

30         (a)  The name of the applicant's insurance carrier;

31  


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    CS for SB 2-B                                  First Engrossed



 1         (b)  If the applicant is self-insured, a description of

 2  how, such as a certificate of deposit;

 3         (c)  The dates of insurance coverage;

 4         (d)  The cost of insurance coverage;

 5         (e)  The terms and limits of insurance coverage,

 6  including policy changes;

 7         (f)  The identity of the hospital or group name if

 8  coverage is provided by an entity other than the licensee;

 9         (g)  Whether the licensee is covered by insurance;

10         (h)  The applicant's specialty of practice; and

11         (i)  The name of the county or counties in which the

12  licensee practices medicine.

13  

14  A licensee seeking a renewal license must include the

15  specified information for the 2 years prior to the renewal

16  date. The department shall include the information provided on

17  the application form in its computer database.

18         Section 27.  Subsection (5) is added to section

19  459.0055, Florida Statutes, to read:

20         459.0055  General licensure requirements.--

21         (5)  In addition to other information required under

22  this section, an applicant for licensure or relicensure must

23  submit the following information to the department:

24         (a)  The name of the applicant's insurance carrier;

25         (b)  If the applicant is self-insured, a description of

26  how, such as a certificate of deposit;

27         (c)  The dates of insurance coverage;

28         (d)  The cost of insurance coverage;

29         (e)  The terms and limits of insurance coverage,

30  including policy changes;

31  


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    CS for SB 2-B                                  First Engrossed



 1         (f)  The identity of the hospital or group name if

 2  coverage is provided by an entity other than the licensee;

 3         (g)  Whether the licensee is covered by insurance;

 4         (h)  The applicant's specialty of practice; and

 5         (i)  The name of the county or counties in which the

 6  licensee practices medicine.

 7  

 8  A licensee seeking a renewal license must include the

 9  specified information for the 2 years prior to the renewal

10  date. The department shall include the information provided on

11  the application form in its computer database.

12         Section 28.  Effective upon this act becoming a law and

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

14  458.320, Florida Statutes, is amended to read:

15         458.320  Financial responsibility.--

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

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

18  active license or reactivation of an inactive license for the

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

20  following methods demonstrate to the satisfaction of the board

21  and the department financial responsibility to pay claims and

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

23  the failure to render, medical care or services:

24         (a)  Establishing and maintaining an escrow account

25  consisting of cash or assets eligible for deposit in

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

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

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

29  fees for the defense of any medical malpractice claim.

30         (b)  Obtaining and maintaining professional liability

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


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    CS for SB 2-B                                  First Engrossed



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

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

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

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

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

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

 7  The required coverage amount set forth in this paragraph may

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

 9  defense of any medical malpractice claim.

10         (c)  Obtaining and maintaining an unexpired,

11  irrevocable letter of credit, established pursuant to chapter

12  675, in an amount not less than $100,000 per claim, with a

13  minimum aggregate availability of credit of not less than

14  $300,000. The letter of credit must shall be payable to the

15  physician as beneficiary upon presentment of a final judgment

16  indicating liability and awarding damages to be paid by the

17  physician or upon presentment of a settlement agreement signed

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

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

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

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

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

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

24  and nontransferable. Such letter of credit must shall be

25  issued by any bank or savings association organized and

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

27  association organized under the laws of the United States

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

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

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

31  this state.


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    CS for SB 2-B                                  First Engrossed



 1         (2)  Physicians who perform surgery in an ambulatory

 2  surgical center licensed under chapter 395, and as a

 3  continuing condition of hospital staff privileges, physicians

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

 5  establish financial responsibility by one of the following

 6  methods:

 7         (a)  Establishing and maintaining an escrow account

 8  consisting of cash or assets eligible for deposit in

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

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

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

12  fees for the defense of any medical malpractice claim.

13         (b)  Obtaining and maintaining professional liability

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

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

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

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

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

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

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

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

22  specified for satisfying financial responsibility in s.

23  766.110. The required coverage amount set forth in this

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

25  fees for the defense of any medical malpractice claim.

26         (c)  Obtaining and maintaining an unexpired irrevocable

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

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

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

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

31  beneficiary upon presentment of a final judgment indicating


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    CS for SB 2-B                                  First Engrossed



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

 2  upon presentment of a settlement agreement signed by all

 3  parties to such agreement when such final judgment or

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

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

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

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

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

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

10  issued by any bank or savings association organized and

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

12  association organized under the laws of the United States

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

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

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

16  this state.

17  

18  This subsection shall be inclusive of the coverage in

19  subsection (1).

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

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

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

23  licensure in this state, whichever is later.

24         (b)  Meeting the financial responsibility requirements

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

26  requirements must shall be established at the time of issuance

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

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

29  department a request for an advisory opinion regarding such

30  person's qualifications for exemption.

31  


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    CS for SB 2-B                                  First Engrossed



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

 2  group, or Joint Underwriting Association must shall promptly

 3  notify the department of cancellation or nonrenewal of

 4  insurance required by this section. Unless the physician

 5  demonstrates that he or she is otherwise in compliance with

 6  the requirements of this section, the department shall suspend

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

 8  120.57 and notify all health care facilities licensed under

 9  chapter 395 of such action. Any suspension under this

10  subsection remains shall remain in effect until the physician

11  demonstrates compliance with the requirements of this section.

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

13  suspension, those judgments or settlements must be paid in

14  accordance with this section unless otherwise mutually agreed

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

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

17  any judgment, except that a license suspended under paragraph

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

19  demonstrates compliance with the requirements of that

20  provision.

21         (b)  If financial responsibility requirements are met

22  by maintaining an escrow account or letter of credit as

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

24  judgment arising from a medical malpractice arbitration award,

25  from a claim of medical malpractice either in contract or

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

27  agreement arising from a claim of medical malpractice either

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

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

30  amount maintained in the escrow account or provided in the

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


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    CS for SB 2-B                                  First Engrossed



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

 2  and subject to execution, unless otherwise mutually agreed to

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

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

 5  physician pursuant to procedures set forth in subparagraphs

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

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

 8  any judgment.

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

10  do shall not apply to:

11         (a)  Any person licensed under this chapter who

12  practices medicine exclusively as an officer, employee, or

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

14  agencies or its subdivisions. For the purposes of this

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

16  subdivisions is a person who is eligible for coverage under

17  any self-insurance or insurance program authorized by the

18  provisions of s. 768.28(15).

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

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

21  Any person applying for reactivation of a license must show

22  either that such licensee maintained tail insurance coverage

23  which provided liability coverage for incidents that occurred

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

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

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

27  licensee must submit an affidavit stating that such licensee

28  has no unsatisfied medical malpractice judgments or

29  settlements at the time of application for reactivation.

30  

31  


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    CS for SB 2-B                                  First Engrossed



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

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

 3  license.

 4         (d)  Any person licensed or certified under this

 5  chapter who practices only in conjunction with his or her

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

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

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

 9  a necessary part of duties in connection with the teaching

10  position in the medical school.

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

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

13  person initiates or resumes any practice of medicine in this

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

15  and fulfill the financial responsibility requirements of this

16  section before resuming the practice of medicine in this

17  state.

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

19  chapter who meets all of the following criteria:

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

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

22  more than 15 years.

23         2.  The licensee has either retired from the practice

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

25  1,000 patient contact hours per year.

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

27  medical malpractice resulting in an indemnity exceeding

28  $25,000 within the previous 5-year period.

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

30  guilty or nolo contendere to, any criminal violation specified

31  


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    CS for SB 2-B                                  First Engrossed



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

 2  state.

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

 4  10 years of practice to license revocation or suspension for

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

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

 7  chapter or the medical practice act of another jurisdiction.

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

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

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

11  the filing of administrative charges against the physician's

12  license, constitutes shall be construed as action against the

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

14         6.  The licensee has submitted a form supplying

15  necessary information as required by the department and an

16  affidavit affirming compliance with the provisions of this

17  paragraph.

18         7.  The licensee must shall submit biennially to the

19  department certification stating compliance with the

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

21  request, demonstrate to the department information verifying

22  compliance with this paragraph.

23  

24  A licensee who meets the requirements of this paragraph must

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

26  prominently displayed in the reception area and clearly

27  noticeable by all patients or provide a written statement to

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

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

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

31  medical malpractice insurance or otherwise demonstrate


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    CS for SB 2-B                                  First Engrossed



 1  financial responsibility to cover potential claims for medical

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

 3  state requirements are exempt from the financial

 4  responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND

 5  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This

 6  notice is provided pursuant to Florida law."

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

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

 9         1.  Upon the entry of an adverse final judgment arising

10  from a medical malpractice arbitration award, from a claim of

11  medical malpractice either in contract or tort, or from

12  noncompliance with the terms of a settlement agreement arising

13  from a claim of medical malpractice either in contract or

14  tort, the licensee shall pay the judgment creditor the lesser

15  of the entire amount of the judgment with all accrued interest

16  or either $100,000, if the physician is licensed pursuant to

17  this chapter but does not maintain hospital staff privileges,

18  or $250,000, if the physician is licensed pursuant to this

19  chapter and maintains hospital staff privileges, within 60

20  days after the date such judgment became final and subject to

21  execution, unless otherwise mutually agreed to in writing by

22  the parties.  Such adverse final judgment shall include any

23  cross-claim, counterclaim, or claim for indemnity or

24  contribution arising from the claim of medical malpractice.

25  Upon notification of the existence of an unsatisfied judgment

26  or payment pursuant to this subparagraph, the department shall

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

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

29  date of mailing, he or she either:

30         a.  Shows proof that the unsatisfied judgment has been

31  paid in the amount specified in this subparagraph; or


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    CS for SB 2-B                                  First Engrossed



 1         b.  Furnishes the department with a copy of a timely

 2  filed notice of appeal and either:

 3         (I)  A copy of a supersedeas bond properly posted in

 4  the amount required by law; or

 5         (II)  An order from a court of competent jurisdiction

 6  staying execution on the final judgment pending disposition of

 7  the appeal.

 8         2.  The Department of Health shall issue an emergency

 9  order suspending the license of any licensee who, after 30

10  days following receipt of a notice from the Department of

11  Health, has failed to: satisfy a medical malpractice claim

12  against him or her; furnish the Department of Health a copy of

13  a timely filed notice of appeal; furnish the Department of

14  Health a copy of a supersedeas bond properly posted in the

15  amount required by law; or furnish the Department of Health an

16  order from a court of competent jurisdiction staying execution

17  on the final judgment pending disposition of the appeal.

18         3.  Upon the next meeting of the probable cause panel

19  of the board following 30 days after the date of mailing the

20  notice of disciplinary action to the licensee, the panel shall

21  make a determination of whether probable cause exists to take

22  disciplinary action against the licensee pursuant to

23  subparagraph 1.

24         4.  If the board determines that the factual

25  requirements of subparagraph 1. are met, it shall take

26  disciplinary action as it deems appropriate against the

27  licensee. Such disciplinary action shall include, at a

28  minimum, probation of the license with the restriction that

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

30  schedule determined by the board to be reasonable and within

31  the financial capability of the physician. Notwithstanding any


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    CS for SB 2-B                                  First Engrossed



 1  other disciplinary penalty imposed, the disciplinary penalty

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

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

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

 5  on the license.

 6         5.  The licensee has completed a form supplying

 7  necessary information as required by the department.

 8  

 9  A licensee who meets the requirements of this paragraph shall

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

11  prominently displayed in the reception area and clearly

12  noticeable by all patients or to provide a written statement

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

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

15  physicians are generally required to carry medical malpractice

16  insurance or otherwise demonstrate financial responsibility to

17  cover potential claims for medical malpractice. YOUR DOCTOR

18  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This

19  is permitted under Florida law subject to certain conditions.

20  Florida law imposes penalties against noninsured physicians

21  who fail to satisfy adverse judgments arising from claims of

22  medical malpractice.  This notice is provided pursuant to

23  Florida law."

24         (6)  Any deceptive, untrue, or fraudulent

25  representation by the licensee with respect to any provision

26  of this section shall result in permanent disqualification

27  from any exemption to mandated financial responsibility as

28  provided in this section and shall constitute grounds for

29  disciplinary action under s. 458.331.

30         (7)  Any licensee who relies on any exemption from the

31  financial responsibility requirement shall notify the


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    CS for SB 2-B                                  First Engrossed



 1  department, in writing, of any change of circumstance

 2  regarding his or her qualifications for such exemption and

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

 4  requirements of this section.

 5         (8)  Notwithstanding any other provision of this

 6  section, the department shall suspend the license of any

 7  physician against whom has been entered a final judgment,

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

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

10  medical malpractice, if all appellate remedies have been

11  exhausted and payment up to the amounts required by this

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

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

14  payment is received by the department or a payment schedule

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

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

17  a physician who has met the financial responsibility

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

19         (9)(8)  The board shall adopt rules to implement the

20  provisions of this section.

21         Section 29.  Effective upon this act becoming a law and

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

23  459.0085, Florida Statutes, is amended to read:

24         459.0085  Financial responsibility.--

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

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

27  active license or reactivation of an inactive license for the

28  practice of osteopathic medicine, an applicant must shall by

29  one of the following methods demonstrate to the satisfaction

30  of the board and the department financial responsibility to

31  pay claims and costs ancillary thereto arising out of the


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    CS for SB 2-B                                  First Engrossed



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

 2  services:

 3         (a)  Establishing and maintaining an escrow account

 4  consisting of cash or assets eligible for deposit in

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

 6  in paragraph (b).

 7         (b)  Obtaining and maintaining professional liability

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

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

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

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

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

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

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

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

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

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

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

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

20  medical malpractice claim.

21         (c)  Obtaining and maintaining an unexpired,

22  irrevocable letter of credit, established pursuant to chapter

23  675, for the current year and for each of the prior years that

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

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

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

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

28  of credit must shall be payable to the osteopathic physician

29  as beneficiary upon presentment of a final judgment indicating

30  liability and awarding damages to be paid by the osteopathic

31  physician or upon presentment of a settlement agreement signed


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    CS for SB 2-B                                  First Engrossed



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

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

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

 4  letter of credit must shall be nonassignable and

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

 6  any bank or savings association organized and existing under

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

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

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

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

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

12         (2)  Osteopathic physicians who perform surgery in an

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

14  a continuing condition of hospital staff privileges,

15  osteopathic physicians who have with staff privileges must

16  shall also be required to establish financial responsibility

17  by one of the following 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).

22         (b)  Obtaining and maintaining professional liability

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

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

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

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

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

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

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

30  defined under s. 627.942, from the Joint Underwriting

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


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    CS for SB 2-B                                  First Engrossed



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

 2  self-insurance that which meets the conditions specified for

 3  satisfying financial responsibility in s. 766.110.

 4         (c)  Obtaining and maintaining an unexpired,

 5  irrevocable letter of credit, established pursuant to chapter

 6  675, for the current year and for each of the prior years that

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

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

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

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

11  of credit must shall be payable to the osteopathic physician

12  as beneficiary upon presentment of a final judgment indicating

13  liability and awarding damages to be paid by the osteopathic

14  physician or upon presentment of a settlement agreement signed

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

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

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

18  Such letter of credit must shall be nonassignable and

19  nontransferable. The Such letter of credit must shall be

20  issued by any bank or savings association organized and

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

22  association organized under the laws of the United States

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

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

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

26  this state.

27  

28  This subsection shall be inclusive of the coverage in

29  subsection (1).

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

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


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    CS for SB 2-B                                  First Engrossed



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

 2  licensure in this state, whichever is later.

 3         (b)  Meeting the financial responsibility requirements

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

 5  requirements must shall be established at the time of issuance

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

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

 8  department a request for an advisory opinion regarding such

 9  person's qualifications for exemption.

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

11  group, or joint underwriting association must shall promptly

12  notify the department of cancellation or nonrenewal of

13  insurance required by this section. Unless the osteopathic

14  physician demonstrates that he or she is otherwise in

15  compliance with the requirements of this section, the

16  department shall suspend the license of the osteopathic

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

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

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

20  suspension under this subsection remains shall remain in

21  effect until the osteopathic physician demonstrates compliance

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

23  settlements are pending at the time of suspension, those

24  judgments or settlements must be paid in accordance with this

25  section unless otherwise mutually agreed to in writing by the

26  parties. This paragraph does not abrogate a judgment debtor's

27  obligation to satisfy the entire amount of any judgment except

28  that a license suspended under paragraph (5)(g) shall not be

29  reinstated until the osteopathic physician demonstrates

30  compliance with the requirements of that provision.

31  


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    CS for SB 2-B                                  First Engrossed



 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 osteopathic physician, the department shall suspend the

16  license of the osteopathic physician pursuant to procedures

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

18  this paragraph shall abrogate a judgment debtor's obligation

19  to satisfy the entire amount of 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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    CS for SB 2-B                                  First Engrossed



 1  Any person applying for reactivation of a license must show

 2  either that such licensee maintained tail insurance coverage

 3  that which provided liability coverage for incidents that

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

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

 6  that occurred before the date on which the license became

 7  inactive; or such licensee must submit an affidavit stating

 8  that such licensee has no unsatisfied medical malpractice

 9  judgments or settlements at the time of application for

10  reactivation.

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

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

13  license.

14         (d)  Any person licensed or certified under this

15  chapter who practices only in conjunction with his or her

16  teaching duties at a college of osteopathic medicine.  Such

17  person may engage in the practice of osteopathic medicine to

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

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

20  college of osteopathic medicine.

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

22  chapter who is not practicing osteopathic medicine in this

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

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

25  department of such activity and fulfill the financial

26  responsibility requirements of this section before resuming

27  the practice of osteopathic medicine in this state.

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

29  chapter who meets all of the following criteria:

30  

31  


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    CS for SB 2-B                                  First Engrossed



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

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

 3  more than 15 years.

 4         2.  The licensee has either retired from the practice

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

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

 7  hours per year.

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

 9  medical malpractice resulting in an indemnity exceeding

10  $25,000 within the previous 5-year period.

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

12  guilty or nolo contendere to, any criminal violation specified

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

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

15  10 years of practice to license revocation or suspension for

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

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

18  chapter or the medical practice act of another jurisdiction.

19  The regulatory agency's acceptance of an osteopathic

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

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

22  anticipation of the filing of administrative charges against

23  the osteopathic physician's license, constitutes shall be

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

25  purposes of this paragraph.

26         6.  The licensee has submitted a form supplying

27  necessary information as required by the department and an

28  affidavit affirming compliance with the provisions of this

29  paragraph.

30         7.  The licensee must shall submit biennially to the

31  department a certification stating compliance with the


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    CS for SB 2-B                                  First Engrossed



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

 2  request, demonstrate to the department information verifying

 3  compliance with this paragraph.

 4  

 5  A licensee who meets the requirements of this paragraph must

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

 7  prominently displayed in the reception area and clearly

 8  noticeable by all patients or to provide a written statement

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

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

11  "Under Florida law, osteopathic physicians are generally

12  required to carry medical malpractice insurance or otherwise

13  demonstrate financial responsibility to cover potential claims

14  for medical malpractice. However, certain part-time

15  osteopathic physicians who meet state requirements are exempt

16  from the financial responsibility law. YOUR OSTEOPATHIC

17  PHYSICIAN MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO

18  CARRY MEDICAL MALPRACTICE INSURANCE.  This notice is provided

19  pursuant to Florida law."

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

21  chapter who agrees to meet all of the following criteria.

22         1.  Upon the entry of an adverse final judgment arising

23  from a medical malpractice arbitration award, from a claim of

24  medical malpractice either in contract or tort, or from

25  noncompliance with the terms of a settlement agreement arising

26  from a claim of medical malpractice either in contract or

27  tort, the licensee shall pay the judgment creditor the lesser

28  of the entire amount of the judgment with all accrued interest

29  or either $100,000, if the osteopathic physician is licensed

30  pursuant to this chapter but does not maintain hospital staff

31  privileges, or $250,000, if the osteopathic physician is


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    CS for SB 2-B                                  First Engrossed



 1  licensed pursuant to this chapter and maintains hospital staff

 2  privileges, within 60 days after the date such judgment became

 3  final and subject to execution, unless otherwise mutually

 4  agreed to in writing by the parties. Such adverse final

 5  judgment shall include any cross-claim, counterclaim, or claim

 6  for indemnity or contribution arising from the claim of

 7  medical malpractice. Upon notification of the existence of an

 8  unsatisfied judgment or payment pursuant to this subparagraph,

 9  the department shall notify the licensee by certified mail

10  that he or she shall be subject to disciplinary action unless,

11  within 30 days from the date of mailing, the licensee either:

12         a.  Shows proof that the unsatisfied judgment has been

13  paid in the amount specified in this subparagraph; or

14         b.  Furnishes the department with a copy of a timely

15  filed notice of appeal and either:

16         (I)  A copy of a supersedeas bond properly posted in

17  the amount required by law; or

18         (II)  An order from a court of competent jurisdiction

19  staying execution on the final judgment, pending disposition

20  of the appeal.

21         2.  The Department of Health shall issue an emergency

22  order suspending the license of any licensee who, after 30

23  days following receipt of a notice from the Department of

24  Health, has failed to: satisfy a medical malpractice claim

25  against him or her; furnish the Department of Health a copy of

26  a timely filed notice of appeal; furnish the Department of

27  Health a copy of a supersedeas bond properly posted in the

28  amount required by law; or furnish the Department of Health an

29  order from a court of competent jurisdiction staying execution

30  on the final judgment pending disposition of the appeal.

31  


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    CS for SB 2-B                                  First Engrossed



 1         3.  Upon the next meeting of the probable cause panel

 2  of the board following 30 days after the date of mailing the

 3  notice of disciplinary action to the licensee, the panel shall

 4  make a determination of whether probable cause exists to take

 5  disciplinary action against the licensee pursuant to

 6  subparagraph 1.

 7         4.  If the board determines that the factual

 8  requirements of subparagraph 1. are met, it shall take

 9  disciplinary action as it deems appropriate against the

10  licensee. Such disciplinary action shall include, at a

11  minimum, probation of the license with the restriction that

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

13  schedule determined by the board to be reasonable and within

14  the financial capability of the osteopathic physician.

15  Notwithstanding any other disciplinary penalty imposed, the

16  disciplinary penalty may include suspension of the license for

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

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

19  remove any restriction on the license.

20         5.  The licensee has completed a form supplying

21  necessary information as required by the department.

22  

23  A licensee who meets the requirements of this paragraph shall

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

25  prominently displayed in the reception area and clearly

26  noticeable by all patients or to provide a written statement

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

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

29  osteopathic physicians are generally required to carry medical

30  malpractice insurance or otherwise demonstrate financial

31  responsibility to cover potential claims for medical


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    CS for SB 2-B                                  First Engrossed



 1  malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO

 2  CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under

 3  Florida law subject to certain conditions.  Florida law

 4  imposes strict penalties against noninsured osteopathic

 5  physicians who fail to satisfy adverse judgments arising from

 6  claims of medical malpractice. This notice is provided

 7  pursuant to Florida law."

 8         (6)  Any deceptive, untrue, or fraudulent

 9  representation by the licensee with respect to any provision

10  of this section shall result in permanent disqualification

11  from any exemption to mandated financial responsibility as

12  provided in this section and shall constitute grounds for

13  disciplinary action under s. 459.015.

14         (7)  Any licensee who relies on any exemption from the

15  financial responsibility requirement shall notify the

16  department in writing of any change of circumstance regarding

17  his or her qualifications for such exemption and shall

18  demonstrate that he or she is in compliance with the

19  requirements of this section.

20         (8)  If a physician is either a resident physician,

21  assistant resident physician, or intern in an approved

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

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

24  in the Florida Birth-Related Neurological Injury Compensation

25  Plan, such resident physician, assistant resident physician,

26  or intern is deemed to be a participating physician without

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

28         (9)  Notwithstanding any other provision of this

29  section, the department shall suspend the license of any

30  osteopathic physician against whom has been entered a final

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


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    CS for SB 2-B                                  First Engrossed



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

 2  claim for medical malpractice, if all appellate remedies have

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

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

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

 6  payment is received by the department or a payment schedule

 7  has been agreed upon by the osteopathic physician and the

 8  claimant and presented to the department. This subsection does

 9  not apply to an osteopathic physician who has met the

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

11  (2)(b).

12         (10)(9)  The board shall adopt rules to implement the

13  provisions of this section.

14         Section 30.  Civil immunity for members of or

15  consultants to certain boards, committees, or other

16  entities.--

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

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

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

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

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

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

23  established and operated for purposes of quality improvement

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

25  care facility. Such entities must function primarily to

26  review, evaluate, or make recommendations relating to:

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

28  facilities;

29         (b)  The professional services furnished with respect

30  to the medical, dental, psychological, podiatric,

31  chiropractic, or optometric necessity for such services;


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    CS for SB 2-B                                  First Engrossed



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

 2  available health care facilities and services;

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

 4         (e)  The competency and qualifications for professional

 5  staff privileges;

 6         (f)  The reasonableness or appropriateness of charges

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

 8         (g)  Patient safety, including entering into contracts

 9  with patient safety organizations.

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

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

12  accordance with requirements of the Joint Commission on

13  Accreditation of Healthcare Organizations, established and

14  duly constituted by one or more public or licensed private

15  hospitals or behavioral health agencies, or established by a

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

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

18  bad faith or with malicious intent.

19         Section 31.  Patient safety data privilege.--

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

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

22  patient safety organizations, including all health care data,

23  interviews, memoranda, analyses, root cause analyses, products

24  of quality assurance or quality improvement processes,

25  corrective action plans, or information collected or created

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

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

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

29  provision of health care services which exacerbates an

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

31  or death.


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    CS for SB 2-B                                  First Engrossed



 1         (b)  "Patient safety organization" means any

 2  organization, group, or other entity that collects and

 3  analyzes patient safety data for the purpose of improving

 4  patient safety and health care outcomes and that is

 5  independent and not under the control of the entity that

 6  reports patient safety data.

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

 8  discovery or introduction into evidence in any civil or

 9  administrative action. However, information, documents, or

10  records otherwise available from original sources are not

11  immune from discovery or use in any civil or administrative

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

13  presented to a patient safety organization. Any person who

14  testifies before a patient safety organization or who is a

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

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

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

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

19  of the hearings.

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

21  organization shall promptly remove all patient-identifying

22  information after receipt of a complete patient safety data

23  report unless such organization is otherwise permitted by

24  state or federal law to maintain such information. Patient

25  safety organizations shall maintain the confidentiality of all

26  patient-identifying information and may not disseminate such

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

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

29  care facilities licensed under chapter 395 or health care

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

31  Statutes, or patient safety organizations which does not


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    CS for SB 2-B                                  First Engrossed



 1  identify any patient shall not constitute a waiver of any

 2  privilege established in this section.

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

 4  organizations does not abrogate obligations to make reports to

 5  the Department of Health, the Agency for Health Care

 6  Administration, or other state or federal regulatory agencies.

 7         (6)  An employer may not take retaliatory action

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

 9  patient safety data to a patient safety organization.

10         Section 32.  Each final settlement statement relating

11  to medical malpractice shall include the following statement:

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

13  practicalities pertaining to the cost of litigation and is

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

15  required standard of care applicable to the patient's

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

17  insurance company without consulting its client for input,

18  unless otherwise provided by the insurance policy."

19         Section 33.  Office of Insurance Regulation; closed

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

21  Regulation shall revise its closed claim form for readability

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

23  statistical reports that provide data summaries of all closed

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

25  claims on file pertaining to the referent health care

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

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

28  noneconomic damage awards. The office shall develop annualized

29  historical statistical summaries beginning with the 1976 state

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

31  


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    CS for SB 2-B                                  First Engrossed



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

 2  following minimum requirements:

 3         (1)  A practitioner of medicine licensed pursuant to

 4  chapter 458, Florida Statutes, a practitioner of osteopathic

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

 6  practitioner of podiatric medicine licensed pursuant to

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

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

 9  of Insurance Regulation and the Department of Health any claim

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

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

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

13  performance of professional services without consent if the

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

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

16         (a)  A final judgment in any amount.

17         (b)  A settlement in any amount.

18  

19  Reports shall be filed with the Office of Insurance Regulation

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

21  listed in this subsection.

22         (2)  Health professional reports must contain:

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

24         (b)  The alleged occurrence.

25         (c)  The date of the alleged occurrence.

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

27  licensee.

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

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

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

31  


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    CS for SB 2-B                                  First Engrossed



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

 2  involved in the claim.

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

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

 5  copy of the settlement or judgment.

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

 7  required by the Office of Insurance Regulation concerning the

 8  injured person's incurred and anticipated medical expense,

 9  wage loss, and other expenses.

10         (k)  The loss adjustment expense paid to defense

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

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

13  there was no judgment or settlement.

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

15  claim, which must include:

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

17  location within such institution, at which the injury

18  occurred.

19         2.  The final diagnosis for which treatment was sought

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

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

22  the patient's actual condition.

23         4.  The operation or the diagnostic or treatment

24  procedure causing the injury.

25         5.  A description of the principal injury giving rise

26  to the claim.

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

28  the licensee to make similar occurrences or injuries less

29  likely in the future.

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

31  Insurance Regulation to analyze and evaluate the nature,


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    CS for SB 2-B                                  First Engrossed



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

 2  liability cases.

 3         Section 34.  Paragraph (t) of subsection (1) and

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

 5  are amended to read:

 6         458.331  Grounds for disciplinary action; action by the

 7  board and department.--

 8         (1)  The following acts constitute grounds for denial

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

10  456.072(2):

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

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

13  treatment which is recognized by a reasonably prudent similar

14  physician as being acceptable under similar conditions and

15  circumstances.  The board shall give great weight to the

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

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

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

19  malpractice within the previous 5-year period resulting in

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

21  the claimant in a judgment or settlement and which incidents

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

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

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

25  is recognized by a reasonably prudent similar physician as

26  being acceptable under similar conditions and circumstances,"

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

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

29  construed to require that a physician be incompetent to

30  practice medicine in order to be disciplined pursuant to this

31  paragraph. A recommended order by an administrative law judge


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    CS for SB 2-B                                  First Engrossed



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

 2  paragraph shall specify whether the licensee was found to have

 3  committed "gross malpractice," "repeated malpractice," or

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

 5  and treatment which is recognized as being acceptable under

 6  similar conditions and circumstances," or any combination

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

 8         (3)  In any administrative action against a physician

 9  which does not involve revocation or suspension of license,

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

11  the evidence, to establish the existence of grounds for

12  disciplinary action.  The division shall establish grounds for

13  revocation or suspension of license by clear and convincing

14  evidence.

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

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

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

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

19  claimant of a presuit notice against a physician pursuant to

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

21  determine whether it potentially involved conduct by a

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

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

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

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

26  5-year period, the department shall investigate the

27  occurrences upon which the claims were based and determine if

28  action by the department against the physician is warranted.

29         Section 35.  Paragraph (x) of subsection (1) and

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

31  are amended to read:


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    CS for SB 2-B                                  First Engrossed



 1         459.015  Grounds for disciplinary action; action by the

 2  board and department.--

 3         (1)  The following acts constitute grounds for denial

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

 5  456.072(2):

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

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

 8  and treatment which is recognized by a reasonably prudent

 9  similar osteopathic physician as being acceptable under

10  similar conditions and circumstances. The board shall give

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

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

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

14  claims for medical malpractice within the previous 5-year

15  period resulting in indemnities being paid in excess of

16  $50,000 $25,000 each to the claimant in a judgment or

17  settlement and which incidents involved negligent conduct by

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

19  malpractice" or "the failure to practice osteopathic medicine

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

21  recognized by a reasonably prudent similar osteopathic

22  physician as being acceptable under similar conditions and

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

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

25  shall be construed to require that an osteopathic physician be

26  incompetent to practice osteopathic medicine in order to be

27  disciplined pursuant to this paragraph.  A recommended order

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

29  finding a violation under this paragraph shall specify whether

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

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


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    CS for SB 2-B                                  First Engrossed



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

 2  is recognized as being acceptable under similar conditions and

 3  circumstances," or any combination thereof, and any

 4  publication by the board shall so specify.

 5         (3)  In any administrative action against a physician

 6  which does not involve revocation or suspension of license,

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

 8  the evidence, to establish the existence of grounds for

 9  disciplinary action.  The division shall establish grounds for

10  revocation or suspension of license by clear and convincing

11  evidence.

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

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

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

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

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

17  osteopathic physician pursuant to s. 766.106, the department

18  shall review each report and determine whether it potentially

19  involved conduct by a licensee that is subject to disciplinary

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

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

22  physician has had three or more claims with indemnities

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

24  period, the department shall investigate the occurrences upon

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

26  department against the osteopathic physician is warranted.

27         Section 36.  Subsection (6) of section 460.413, Florida

28  Statutes, is amended to read:

29         460.413  Grounds for disciplinary action; action by

30  board or department.--

31  


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    CS for SB 2-B                                  First Engrossed



 1         (6)  In any administrative action against a

 2  chiropractic physician which does not involve revocation or

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

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

 5  existence of grounds for disciplinary action. The department

 6  shall establish grounds for revocation or suspension of

 7  license by clear and convincing evidence.

 8         Section 37.  Legislative intent.--The Legislature

 9  declares that reducing the burden of proof in medical

10  disciplinary cases to the level of greater weight of the

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

12  welfare of medical patients in the state. The Legislature

13  declares that there is an overwhelming public necessity to

14  protect medical patients which far overrides any purported

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

16  by a licensed health care practitioner. Furthermore, the

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

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

19  disciplinary action relating to scope of practice issues in

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

21  The Legislature specifically reverses case law to the

22  contrary.

23         Section 38.  The Division of Administrative Hearings

24  shall designate at least two administrative law judges who

25  shall specifically preside over actions involving the

26  Department of Health or boards within the Department of Health

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

28  Florida Statutes. Each designated administrative law judge

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

30  have experience working in the health care industry or have

31  


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    CS for SB 2-B                                  First Engrossed



 1  attained board certification in health care law from The

 2  Florida Bar.

 3         Section 39.  Paragraph (s) of subsection (1) and

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

 5  Statutes, are amended to read:

 6         461.013  Grounds for disciplinary action; action by the

 7  board; investigations by department.--

 8         (1)  The following acts constitute grounds for denial

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

10  456.072(2):

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

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

13  treatment which is recognized by a reasonably prudent

14  podiatric physician as being acceptable under similar

15  conditions and circumstances.  The board shall give great

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

17  interpreting this section. As used in this paragraph,

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

19  or more claims for medical malpractice within the previous

20  5-year period resulting in indemnities being paid in excess of

21  $50,000 $10,000 each to the claimant in a judgment or

22  settlement and which incidents involved negligent conduct by

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

24  malpractice" or "the failure to practice podiatric medicine

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

26  recognized by a reasonably prudent similar podiatric physician

27  as being acceptable under similar conditions and

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

29  than one instance, event, or act.

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

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


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    CS for SB 2-B                                  First Engrossed



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

 2  receipt from a claimant of a presuit notice against a

 3  podiatric physician pursuant to s. 766.106, the department

 4  shall review each report and determine whether it potentially

 5  involved conduct by a licensee that is subject to disciplinary

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

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

 8  has had three or more claims with indemnities exceeding

 9  $50,000 $25,000 each within the previous 5-year period, the

10  department shall investigate the occurrences upon which the

11  claims were based and determine if action by the department

12  against the podiatric physician is warranted.

13         Section 40.  Paragraph (x) of subsection (1) of section

14  466.028, Florida Statutes, is amended to read:

15         466.028  Grounds for disciplinary action; action by the

16  board.--

17         (1)  The following acts constitute grounds for denial

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

19  456.072(2):

20         (x)  Being guilty of incompetence or negligence by

21  failing to meet the minimum standards of performance in

22  diagnosis and treatment when measured against generally

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

24  the undertaking of diagnosis and treatment for which the

25  dentist is not qualified by training or experience or being

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

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

28  incompetence or negligence by declining to treat an individual

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

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

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


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    CS for SB 2-B                                  First Engrossed



 1  is not clinically satisfactory or properly equipped to treat

 2  the unique characteristics and health status of the dental

 3  patient, provided the dentist refers the patient to a

 4  qualified dentist or facility for appropriate treatment.  As

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

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

 7  5-year period which resulted in indemnity being paid, or any

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

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

10  the part of the dentist.

11         Section 41.  Subsection (2) of section 624.462, Florida

12  Statutes, is amended to read:

13         624.462  Commercial self-insurance funds.--

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

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

16  operating individually and collectively through a trust or

17  corporation, that must be:

18         (a)  Established by:

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

20  association, or professional association of employers or

21  professionals which has a constitution or bylaws, which is

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

23  organized for purposes other than that of obtaining or

24  providing insurance and operated in good faith for a

25  continuous period of 1 year;

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

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

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

29  providing insurance pursuant to this section.  Each member of

30  a commercial self-insurance trust fund established pursuant to

31  


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    CS for SB 2-B                                  First Engrossed



 1  this subsection must maintain membership in the self-insurance

 2  trust fund organized pursuant to s. 627.357; or

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

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

 5         4.3.  A not-for-profit group comprised of no less than

 6  10 condominium associations as defined in s. 718.103(2), which

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

 8  its membership to condominium associations only, and which has

 9  been organized and maintained in good faith for a continuous

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

11  providing insurance.

12         (b)1.  In the case of funds established pursuant to

13  subparagraph (a)2. or subparagraph (a)4. subparagraph (a)3.,

14  operated pursuant to a trust agreement by a board of trustees

15  which shall have complete fiscal control over the fund and

16  which shall be responsible for all operations of the fund.

17  The majority of the trustees shall be owners, partners,

18  officers, directors, or employees of one or more members of

19  the fund.  The trustees shall have the authority to approve

20  applications of members for participation in the fund and to

21  contract with an authorized administrator or servicing company

22  to administer the day-to-day affairs of the fund.

23         2.  In the case of funds established pursuant to

24  subparagraph (a)1. or subparagraph (a)3., operated pursuant to

25  a trust agreement by a board of trustees or as a corporation

26  by a board of directors which board shall:

27         a.  Be responsible to members of the fund or

28  beneficiaries of the trust or policyholders of the

29  corporation;

30         b.  Appoint independent certified public accountants,

31  legal counsel, actuaries, and investment advisers as needed;


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    CS for SB 2-B                                  First Engrossed



 1         c.  Approve payment of dividends to members;

 2         d.  Approve changes in corporate structure; and

 3         e.  Have the authority to contract with an

 4  administrator authorized under s. 626.88 to administer the

 5  day-to-day affairs of the fund including, but not limited to,

 6  marketing, underwriting, billing, collection, claims

 7  administration, safety and loss prevention, reinsurance,

 8  policy issuance, accounting, regulatory reporting, and general

 9  administration.  The fees or compensation for services under

10  such contract shall be comparable to the costs for similar

11  services incurred by insurers writing the same lines of

12  insurance, or where available such expenses as filed by

13  boards, bureaus, and associations designated by insurers to

14  file such data. A majority of the trustees or directors shall

15  be owners, partners, officers, directors, or employees of one

16  or more members of the fund.

17         Section 42.  Paragraph (a) of subsection (6) of section

18  627.062, Florida Statutes, is amended, and subsection (7) is

19  added to that section, to read:

20         627.062  Rate standards.--

21         (6)(a)  After any action with respect to a rate filing

22  that constitutes agency action for purposes of the

23  Administrative Procedure Act, except for a rate filing for

24  medical malpractice, an insurer may, in lieu of demanding a

25  hearing under s. 120.57, require arbitration of the rate

26  filing. Arbitration shall be conducted by a board of

27  arbitrators consisting of an arbitrator selected by the

28  department, an arbitrator selected by the insurer, and an

29  arbitrator selected jointly by the other two arbitrators. Each

30  arbitrator must be certified by the American Arbitration

31  Association. A decision is valid only upon the affirmative


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    CS for SB 2-B                                  First Engrossed



 1  vote of at least two of the arbitrators. No arbitrator may be

 2  an employee of any insurance regulator or regulatory body or

 3  of any insurer, regardless of whether or not the employing

 4  insurer does business in this state. The department and the

 5  insurer must treat the decision of the arbitrators as the

 6  final approval of a rate filing. Costs of arbitration shall be

 7  paid by the insurer.

 8         (7)(a)  The provisions of this subsection apply only

 9  with respect to rates for medical malpractice insurance and

10  shall control to the extent of any conflict with other

11  provisions of this section.

12         (b)  Any portion of a judgment entered or settlement

13  paid as a result of a statutory or common-law, bad-faith

14  action and any portion of a judgment entered which awards

15  punitive damages against an insurer may not be included in the

16  insurer's rate base, and shall not be used to justify a rate

17  or rate change. Any common-law bad-faith action identified as

18  such and any portion of a settlement entered as a result of a

19  statutory or portion of a settlement wherein an insurer agrees

20  to pay specific punitive damages may not be used to justify a

21  rate or rate change. The portion of the taxable costs and

22  attorney's fees which is identified as being related to the

23  bad faith and punitive damages in these judgments and

24  settlements may not be included in the insurer's rate base and

25  may not be utilized to justify a rate or rate change.

26         (c)  Upon reviewing a rate filing and determining

27  whether the rate is excessive, inadequate, or unfairly

28  discriminatory, the Office of Insurance Regulation shall

29  consider, in accordance with generally accepted and reasonable

30  actuarial techniques, past and present prospective loss

31  


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    CS for SB 2-B                                  First Engrossed



 1  experience, either using loss experience solely for this state

 2  or giving greater credibility to this state's loss data.

 3         (d)  Rates shall be deemed excessive if, among other

 4  standards established by this section, the rate structure

 5  provides for replenishment of reserves or surpluses from

 6  premiums when the replenishment is attributable to investment

 7  losses.

 8         (e)  The insurer must apply a discount or surcharge

 9  based on the health care provider's loss experience, or shall

10  establish an alternative method giving due consideration to

11  the provider's loss experience. The insurer must include in

12  the filing a copy of the surcharge or discount schedule or a

13  description of the alternative method used, and must provide a

14  copy of such schedule or description, as approved by the

15  office, to policyholders at the time of renewal and to

16  prospective policyholders at the time of application for

17  coverage.

18         Section 43.  Subsections (1) and (2) of section

19  627.0645, Florida Statutes, are amended to read:

20         627.0645  Annual filings.--

21         (1)  Each rating organization filing rates for, and

22  each insurer writing, any line of property or casualty

23  insurance to which this part applies, except:

24         (a)  Workers' compensation and employer's liability

25  insurance; or

26         (b)  Commercial property and casualty insurance as

27  defined in s. 627.0625(1) other than commercial multiple line,

28  and commercial motor vehicle, and medical malpractice,

29  

30  

31  


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    CS for SB 2-B                                  First Engrossed



 1  shall make an annual base rate filing for each such line with

 2  the department no later than 12 months after its previous base

 3  rate filing, demonstrating that its rates are not inadequate.

 4         (2)(a)  Deviations, except for medical malpractice,

 5  filed by an insurer to any rating organization's base rate

 6  filing are not subject to this section.

 7         (b)  The department, after receiving a request to be

 8  exempted from the provisions of this section, may, for good

 9  cause due to insignificant numbers of policies in force or

10  insignificant premium volume, exempt a company, by line of

11  coverage, from filing rates or rate certification as required

12  by this section.

13         Section 44.  The Office of Program Policy Analysis and

14  Government Accountability shall complete a study of the

15  eligibility requirements for a birth to be covered under the

16  Florida Birth-Related Neurological Injury Compensation

17  Association and submit a report to the Legislature by January

18  1, 2004, recommending whether or not the statutory criteria

19  for a claim to qualify for referral to the Florida

20  Birth-Related Neurological Injury Compensation Association

21  under section 766.302, Florida Statutes, should be modified.

22         Section 45.  Section 627.0662, Florida Statutes, is

23  created to read:

24         627.0662  Excessive profits for medical liability

25  insurance prohibited.--

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

27         (a)  "Medical liability insurance" means insurance that

28  is written on a professional liability insurance policy issued

29  to a health care practitioner or on a liability insurance

30  policy covering medical malpractice claims issued to a health

31  care facility.


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    CS for SB 2-B                                  First Engrossed



 1         (b)  "Medical liability insurer" means any insurance

 2  company or group of insurance companies writing medical

 3  liability insurance in this state and does not include any

 4  self-insurance fund or other nonprofit entity writing such

 5  insurance.

 6         (2)  Each medical liability insurer shall file with the

 7  Office of Insurance Regulation, prior to July 1 of each year

 8  on forms adopted by the Financial Services Commission, the

 9  following data for medical liability insurance business in

10  this state. The data shall include both voluntary and joint

11  underwriting association business, as follows:

12         (a)  Calendar-year earned premium.

13         (b)  Accident-year incurred losses and loss adjustment

14  expenses.

15         (c)  The administrative and selling expenses incurred

16  in this state or allocated to this state for the calendar

17  year.

18         (d)  Policyholder dividends incurred during the

19  applicable calendar year.

20         (3)(a)  Excessive profit has been realized if there has

21  been an underwriting gain for the 3 most recent

22  calendar-accident years combined which is greater than the

23  anticipated underwriting profit plus 5 percent of earned

24  premiums for those calendar-accident years.

25         (b)  As used in this subsection with respect to any

26  3-year period, the term "anticipated underwriting profit"

27  means the sum of the dollar amounts obtained by multiplying,

28  for each rate filing of the insurer group in effect during

29  such period, the earned premiums applicable to such rate

30  filing during such period by the percentage factor included in

31  such rate filing for profit and contingencies, such percentage


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    CS for SB 2-B                                  First Engrossed



 1  factor having been determined with due recognition to

 2  investment income from funds generated by business in this

 3  state. Separate calculations need not be made for consecutive

 4  rate filings containing the same percentage factor for profits

 5  and contingencies.

 6         (4)  Each medical liability insurer shall also file a

 7  schedule of medical liability insurance loss in this state and

 8  loss adjustment experience for each of the 3 most recent

 9  accident years. The incurred losses and loss adjustment

10  expenses shall be valued as of March 31 of the year following

11  the close of the accident year, developed to an ultimate

12  basis, and at two 12-month intervals thereafter, each

13  developed to an ultimate basis, to the extent that a total of

14  three evaluations is provided for each accident year. The

15  first year to be so reported shall be accident year 2004, such

16  that the reporting of 3 accident years will not take place

17  until accident years 2005 and 2006 have become available.

18         (5)  Each insurer group's underwriting gain or loss for

19  each calendar-accident year shall be computed as follows: the

20  sum of the accident-year incurred losses and loss adjustment

21  expenses as of March 31 of the following year, developed to an

22  ultimate basis, plus the administrative and selling expenses

23  incurred in the calendar year, plus policyholder dividends

24  applicable to the calendar year, shall be subtracted from the

25  calendar-year earned premium to determine the underwriting

26  gain or loss.

27         (6)  For the 3 most recent calendar-accident years, the

28  underwriting gain or loss shall be compared to the anticipated

29  underwriting profit.

30         (7)  If the medical liability insurer has realized an

31  excessive profit, the office shall order a return of the


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    CS for SB 2-B                                  First Engrossed



 1  excessive amounts to policyholders after affording the insurer

 2  an opportunity for hearing and otherwise complying with the

 3  requirements of chapter 120. Such excessive amounts shall be

 4  refunded to policyholders in all instances unless the insurer

 5  affirmatively demonstrates to the office that the refund of

 6  the excessive amounts will render the insurer or a member of

 7  the insurer group financially impaired or will render it

 8  insolvent.

 9         (8)  The excessive amount shall be refunded to

10  policyholders on a pro rata basis in relation to the final

11  compilation year earned premiums to the voluntary medical

12  liability insurance policyholders of record of the insurer

13  group on December 31 of the final compilation year.

14         (9)  Any return of excessive profits to policyholders

15  under this section shall be provided in the form of a cash

16  refund or a credit towards the future purchase of insurance.

17         (10)(a)  Cash refunds to policyholders may be rounded

18  to the nearest dollar.

19         (b)  Data in required reports to the office may be

20  rounded to the nearest dollar.

21         (c)  Rounding, if elected by the insurer group, shall

22  be applied consistently.

23         (11)(a)  Refunds to policyholders shall be completed as

24  follows:

25         1.  If the insurer elects to make a cash refund, the

26  refund shall be completed within 60 days after entry of a

27  final order determining that excessive profits have been

28  realized; or

29         2.  If the insurer elects to make refunds in the form

30  of a credit to renewal policies, such credits shall be applied

31  to policy renewal premium notices which are forwarded to


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    CS for SB 2-B                                  First Engrossed



 1  insureds more than 60 calendar days after entry of a final

 2  order determining that excessive profits have been realized.

 3  If an insurer has made this election but an insured thereafter

 4  cancels his or her policy or otherwise allows the policy to

 5  terminate, the insurer group shall make a cash refund not

 6  later than 60 days after termination of such coverage.

 7         (b)  Upon completion of the renewal credits or refund

 8  payments, the insurer shall immediately certify to the office

 9  that the refunds have been made.

10         (12)  Any refund or renewal credit made pursuant to

11  this section shall be treated as a policyholder dividend

12  applicable to the year in which it is incurred, for purposes

13  of reporting under this section for subsequent years.

14         Section 46.  Subsection (10) of section 627.357,

15  Florida Statutes, is amended to read:

16         627.357  Medical malpractice self-insurance.--

17         (10)(a)  An application to form a self-insurance fund

18  under this section must be filed with the Office of Insurance

19  Regulation A self-insurance fund may not be formed under this

20  section after October 1, 1992.

21         (b)  The Financial Services Commission must ensure that

22  self-insurance funds remain solvent and provide insurance

23  coverage purchased by participants. The Financial Services

24  Commission may adopt rules pursuant to ss. 120.536(1) and

25  120.54 to implement this section.

26         Section 47.  Effective October 1, 2003, section

27  627.4147, Florida Statutes, is amended to read:

28         627.4147  Medical malpractice insurance contracts.--

29         (1)  In addition to any other requirements imposed by

30  law, each self-insurance policy as authorized under s. 627.357

31  or insurance policy providing coverage for claims arising out


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    CS for SB 2-B                                  First Engrossed



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

 2  services, including those of the Florida Medical Malpractice

 3  Joint Underwriting Association, shall include:

 4         (a)  A clause requiring the insured to cooperate fully

 5  in the review process prescribed under s. 766.106 if a notice

 6  of intent to file a claim for medical malpractice is made

 7  against the insured.

 8         (b)1.  Except as provided in subparagraph 2., a clause

 9  authorizing the insurer or self-insurer to determine, to make,

10  and to conclude, without the permission of the insured, any

11  offer of admission of liability and for arbitration pursuant

12  to s. 766.106, settlement offer, or offer of judgment, if the

13  offer is within the policy limits. It is against public policy

14  for any insurance or self-insurance policy to contain a clause

15  giving the insured the exclusive right to veto any offer for

16  admission of liability and for arbitration made pursuant to s.

17  766.106, settlement offer, or offer of judgment, when such

18  offer is within the policy limits. However, any offer of

19  admission of liability, settlement offer, or offer of judgment

20  made by an insurer or self-insurer shall be made in good faith

21  and in the best interests of the insured.

22         2.a.  With respect to physicians licensed under chapter

23  458 or chapter 459 or dentists licensed under chapter 466, a

24  clause clearly stating whether or not the insured has the

25  exclusive right to veto any offer of admission of liability

26  and for arbitration pursuant to s. 766.106, settlement offer,

27  or offer of judgment if the offer is within policy limits. An

28  insurer or self-insurer shall not make or conclude, without

29  the permission of the insured, any offer of admission of

30  liability and for arbitration pursuant to s. 766.106,

31  settlement offer, or offer of judgment, if such offer is


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    CS for SB 2-B                                  First Engrossed



 1  outside the policy limits. However, any offer for admission of

 2  liability and for arbitration made under s. 766.106,

 3  settlement offer, or offer of judgment made by an insurer or

 4  self-insurer shall be made in good faith and in the best

 5  interest of the insured.

 6         b.  If the policy contains a clause stating the insured

 7  does not have the exclusive right to veto any offer or

 8  admission of liability and for arbitration made pursuant to s.

 9  766.106, settlement offer or offer of judgment, the insurer or

10  self-insurer shall provide to the insured or the insured's

11  legal representative by certified mail, return receipt

12  requested, a copy of the final offer of admission of liability

13  and for arbitration made pursuant to s. 766.106, settlement

14  offer or offer of judgment and at the same time such offer is

15  provided to the claimant. A copy of any final agreement

16  reached between the insurer and claimant shall also be

17  provided to the insurer or his or her legal representative by

18  certified mail, return receipt requested not more than 10 days

19  after affecting such agreement.

20         c.  Physicians licensed under chapter 458 or chapter

21  459 and dentists licensed under chapter 466 may purchase an

22  insurance policy pursuant to this subparagraph if such

23  policies are available. Insurers may offer such policies,

24  notwithstanding any other provision of law to the contrary.

25         (c)  A clause requiring the insurer or self-insurer to

26  notify the insured no less than 90 60 days prior to the

27  effective date of cancellation of the policy or contract and,

28  in the event of a determination by the insurer or self-insurer

29  not to renew the policy or contract, to notify the insured no

30  less than 90 60 days prior to the end of the policy or

31  


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    CS for SB 2-B                                  First Engrossed



 1  contract period. If cancellation or nonrenewal is due to

 2  nonpayment or loss of license, 10 days' notice is required.

 3         (d)  A clause requiring the insurer or self-insurer to

 4  notify the insured no less than 60 days prior to the effective

 5  date of a rate increase. The provisions of s. 627.4133 shall

 6  apply to such notice and to the failure of the insurer to

 7  provide such notice to the extent not in conflict with this

 8  section.

 9         (2)  Each insurer covered by this section may require

10  the insured to be a member in good standing, i.e., not subject

11  to expulsion or suspension, of a duly recognized state or

12  local professional society of health care providers which

13  maintains a medical review committee. No professional society

14  shall expel or suspend a member solely because he or she

15  participates in a health maintenance organization licensed

16  under part I of chapter 641.

17         (3)  This section shall apply to all policies issued or

18  renewed after October 1, 2003 1985.

19         Section 48.  Section 627.41491, Florida Statutes, is

20  created to read:

21         627.41491  Medical malpractice rate comparison.--The

22  Office of Insurance Regulation shall annually publish a

23  comparison of the rate in effect for each medical malpractice

24  insurer and self-insurer and the Florida Medical Malpractice

25  Joint Underwriting Association. Such rate comparison shall be

26  made available to the public through the Internet and other

27  commonly used means of distribution no later than July 1 of

28  each year.

29         Section 49.  Section 627.41492, Florida Statutes, is

30  created to read:

31  


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    CS for SB 2-B                                  First Engrossed



 1         627.41492  Annual medical malpractice report.--The

 2  Office of Insurance Regulation shall prepare an annual report

 3  by October 1 of each year, which shall be available to the

 4  public and posted on the Internet, which includes the

 5  following information:

 6         (1)  A summary and analysis of the closed claim

 7  information required to be reported pursuant to s. 627.912.

 8         (2)  A summary and analysis of the annual and quarterly

 9  financial reports filed by each insurer writing medical

10  malpractice insurance in this state.

11         Section 50.  Section 627.41493, Florida Statutes, is

12  created to read:

13         627.41493  Insurance rate rollback.--

14         (1)  For medical malpractice insurance policies issued

15  or renewed on or after July 1, 2003, and before July 1, 2004,

16  every insurer, including the Florida Medical Malpractice Joint

17  Underwriting Association, shall reduce its rates and premiums

18  to levels that were in effect on January 1, 2002.

19         (2)  For medical malpractice insurance policies issued

20  or renewed on or after July 1, 2003, and before July 1, 2004,

21  rates and premiums reduced pursuant to subsection (1) may only

22  be increased if the director of the Office of Insurance

23  Regulation finds that the rate reduced pursuant to subsection

24  (1) would result in an inadequate rate. Any such increase must

25  be approved by the director of the Office of Insurance

26  Regulation prior to being used.

27         (3)  The provisions of this section control to the

28  extent of any conflict with the provision of s. 627.062.

29         Section 51.  If, as of July 1, 2004, the director of

30  the Office of Insurance Regulation determines that the rates

31  of the medical malpractice insurers with a combined market


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    CS for SB 2-B                                  First Engrossed



 1  share of 50 percent or greater, as measured by net written

 2  premiums in this state for medical malpractice for the most

 3  recent calendar year, have been reduced to the level in effect

 4  on January 1, 2002, but have not remained at that level for

 5  the previous year beginning July 1, 2003, or that such medical

 6  malpractice insurers have proposed increases from the January

 7  1, 2002, level which are greater than 15 percent for either of

 8  the next 2 years beginning July 1, 2004, then the Florida

 9  Medical Malpractice Insurance Fund established by this act

10  shall begin offering coverage.

11         Section 52.  Florida Medical Malpractice Insurance

12  Fund.--

13         (1)  FINDINGS AND PURPOSES.--The Legislature finds and

14  declares that there is a compelling state interest in

15  maintaining the availability and affordability of health care

16  services to the citizens of Florida. This state interest is

17  seriously threatened by the increased cost and decreased

18  availability of medical malpractice insurance to physicians.

19  To the extent that the private sector is unable to maintain a

20  viable and orderly market for medical malpractice insurance,

21  state actions to maintain the availability and affordability

22  of medical malpractice insurance are a valid and necessary

23  exercise of the police power.

24         (2)  DEFINITIONS.--As used in this section, the term:

25         (a)  "Fund" means the Florida Medical Malpractice

26  Insurance Fund, as created pursuant to this section.

27         (b)  "Physician" means a physician licensed under

28  chapter 458 or chapter 459, Florida Statutes.

29         (3)  FLORIDA MEDICAL MALPRACTICE INSURANCE FUND

30  CREATED.--Effective October 1, 2003, there is created the

31  Florida Medical Malpractice Insurance Fund, which shall be


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    CS for SB 2-B                                  First Engrossed



 1  subject to the requirements of this section. However, the fund

 2  shall not begin providing or offering coverage until the date

 3  the director of the Office of Insurance Regulation determines

 4  that the rates of the medical malpractice insurers with a

 5  combined market share of 50 percent or greater, as measured by

 6  net written premium in this state for medical malpractice for

 7  the most recent calendar year, have been reduced to the level

 8  in effect on January 1, 2002, but have not remained at that

 9  level for the previous year beginning July 1, 2003, or that

10  such medical malpractice insurers have proposed increases from

11  the January 1, 2002, level which are greater than 15 percent

12  for either of the next 2 years beginning July 1, 2004.

13         (a)  The fund shall be administered by a board of

14  governors consisting of seven members who are appointed as

15  follows:

16         1.  Three members by the Governor;

17         2.  Three members by the Chief Financial Officer; and

18         3.  One member by the other six board members.

19  

20  Board members shall serve at the pleasure of the appointing

21  authority. Two board members must be physicians licensed in

22  this state and the Governor and the Chief Financial Officer

23  shall each appoint one of these physicians.

24         (b)  The board shall submit a plan of operation, which

25  must be approved by the Office of Insurance Regulation of the

26  Financial Services Commission. The plan of operation and other

27  actions of the board shall not be considered rules subject to

28  the requirements of chapter 120, Florida Statutes.

29         (c)  Except as otherwise provided by this section, the

30  fund shall be subject to the requirements of state law which

31  apply to authorized insurers.


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    CS for SB 2-B                                  First Engrossed



 1         (d)  Moneys in the fund may not be expended, loaned, or

 2  appropriated except to pay obligations of the fund arising out

 3  of medical malpractice insurance policies issued to physicians

 4  and the costs of administering the fund, including the

 5  purchase of reinsurance as the board deems prudent. The board

 6  shall enter into an agreement with the State Board of

 7  Administration, which shall invest one-third of the moneys in

 8  the fund pursuant to sections 215.44-215.52, Florida Statutes.

 9  The board shall enter into an agreement with the Division of

10  Treasury of the Department of Financial Services, which shall

11  invest two-thirds of the moneys in the fund pursuant to the

12  requirements for the investment of state funds in chapter 17,

13  Florida Statutes. Earnings from all investments shall be

14  retained in the fund, except as otherwise provided in this

15  section.

16         (e)  The fund may employ or contract with such staff

17  and professionals as the board deems necessary for the

18  administration of the fund.

19         (f)  There shall be no liability on the part of any

20  member of the board, its agents, or any employee of the state

21  for any action taken by them in the performance of their

22  powers and duties under this section. Such immunity does not

23  apply to any willful tort or to breach of any contract or

24  agreement.

25         (g)  The fund is not a member insurer of the Florida

26  Insurance Guaranty Association established pursuant to part II

27  of chapter 631, Florida Statutes. The fund is not subject to

28  sections 624.407, 624.408, 624.4095, and 624.411, Florida

29  Statutes.

30         (4)  MEDICAL MALPRACTICE INSURANCE POLICIES.--The board

31  must offer medical malpractice insurance to any physician,


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    CS for SB 2-B                                  First Engrossed



 1  regardless of his or her specialty, but may adopt underwriting

 2  requirements, as specified in its plan of operation. The fund

 3  shall offer limits of coverage of $250,000 per claim/$500,000

 4  annual aggregate; $500,000 per claim/$1 million annual

 5  aggregate; and $1 million per claim/$2 million annual

 6  aggregate. The fund shall also allow policyholders to select

 7  from policies with deductibles of $100,000, $200,000, and

 8  $250,000; excess coverage limits of $250,000 per claim and

 9  $750,000 annual aggregate; $1 million per claim and $3 million

10  annual aggregate; or $2 million and $4 million annual

11  aggregate. The fund shall offer such other limits as specified

12  in its plan of operation.

13         (5)  PREMIUM RATES.--The premium rates for coverage

14  offered by the fund must be actuarially sound and shall be

15  subject to the same requirements that apply to authorized

16  insurers issuing medical malpractice insurance, except that:

17         (a)  The rates shall not include any factor for

18  profits; and

19         (b)  The anticipated future investment income of the

20  fund, as projected in its rate filing, must be approximately

21  equal to the actual investment income that the fund has

22  earned, on average, for the prior 7 years. For those years of

23  the prior 7 years during which the fund was not in operation,

24  the anticipated future investment income must be approximately

25  equal to the actual average investment income earned by the

26  State Board of Administration for the moneys available for

27  investment under sections 215.44-215.53, Florida Statutes, and

28  the average annual investment income earned by the Division of

29  Treasury of the Department of Financial Services for the

30  investment of state funds under chapter 17, Florida Statutes,

31  in the same proportion as specified in paragraph (3)(d).


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    CS for SB 2-B                                  First Engrossed



 1         (6)  TAX EXEMPTION.--The fund shall be a political

 2  subdivision of the state and is exempt from the corporate

 3  income tax under chapter 220, Florida Statutes, and the

 4  premiums shall not be subject to the premium tax imposed by

 5  section 624.509, Florida Statutes. It is also the intent of

 6  the Legislature that the fund be exempt from federal income

 7  taxation. The Financial Services Commission and the fund shall

 8  seek an opinion from the Internal Revenue Service as to the

 9  tax-exempt status of the fund and shall make such

10  recommendations to the Legislature as the board deems

11  necessary to obtain tax-exempt status.

12         (7)  INITIAL CAPITALIZATION.--By July 1, 2004, the

13  Legislature shall provide by law for adequate initial

14  capitalization of the Florida Medical Malpractice Insurance

15  Fund to occur on the date that the Office of Insurance

16  Regulation notifies the Legislature that it has made the

17  determination necessary for the fund to begin providing or

18  offering coverage pursuant to subsection (3).

19         (8)  RULES.--The Financial Services Commission may

20  adopt rules to implement and administer the provisions of this

21  section.

22         (9)  REVERSION OF FUND ASSETS UPON TERMINATION.--The

23  fund and the duties of the board under this section shall

24  stand repealed on a date 10 years after the date the Florida

25  Medical Malpractice Insurance Fund begins offering coverage

26  pursuant to this section, unless reviewed and saved from

27  repeal through reenactment by the Legislature. Upon

28  termination of the fund, all assets of the fund shall revert

29  to the General Revenue Fund.

30         Section 53.  (1)  Notwithstanding any law to the

31  contrary, if the Florida Medical Malpractice Insurance Fund


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    CS for SB 2-B                                  First Engrossed



 1  begins offering coverage as provided in this act, all

 2  physicians licensed under chapter 458 or chapter 459, Florida

 3  Statutes, as a condition of licensure shall be required to

 4  maintain financial responsibility by obtaining and maintaining

 5  professional liability coverage in an amount not less than

 6  $250,000 per claim, with a minimum annual aggregate of not

 7  less than $500,000, from an authorized insurer as defined

 8  under section 624.09, Florida Statutes, from a surplus lines

 9  insurer as defined under section 626.914(2), Florida Statutes,

10  from a risk retention group as defined under section 627.942,

11  Florida Statutes, from the Joint Underwriting Association

12  established under section 627.351(4), Florida Statutes, or

13  through a plan of self-insurance as provided in section

14  627.357 or section 624.462, Florida Statutes, or from the

15  Florida Medical Malpractice Insurance Fund.

16         (2)  Physicians and osteopathic physicians who are

17  exempt from the financial responsibility requirements under

18  section 458.320(5)(a),(b),(c),(d),(e) and (f) and section

19  459.0085(5)(a),(b),(c),(d),(e), and (f), Florida Statutes,

20  shall not be subject to the requirements of this section.

21         Section 54.  Section 627.41495, Florida Statutes, is

22  created to read:

23         627.41495  Public hearings for medical malpractice rate

24  filings.--

25         (1)  Upon the filing of a proposed rate change by a

26  medical malpractice insurer or self-insurance fund, which

27  filing would result in an average statewide increase of 25

28  percent, or more, pursuant to standards determined by the

29  office, the insurer or self-insurance fund shall mail notice

30  of such filing to each of its policyholders or members. The

31  notices shall also inform the policyholders and members that a


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    CS for SB 2-B                                  First Engrossed



 1  public hearing may be requested on the rate filing and the

 2  procedures for requesting a public hearing, as established by

 3  rule, by the Financial Services Commission.

 4         (2)  The rate filing shall be available for public

 5  inspection. If any policyholder or member of an insurer or

 6  self-insurance fund that makes a rate filing described in

 7  subsection (1) requests the Office of Insurance Regulation to

 8  hold a hearing within 30 days after the mailing of the

 9  notification of the proposed rate changes to the insureds, the

10  office shall hold a hearing within 30 days after such request.

11  Any policyholder or member may participate in such hearing.

12  The commission shall adopt rules implementing the provisions

13  of this section.

14         Section 55.  (1)  The Office of Insurance Regulation

15  shall order insurers to make a rate filing effective January

16  1, 2004, for medical malpractice which reduces rates by a

17  presumed factor that reflects the impact the changes contained

18  in all medical malpractice legislation enacted by the Florida

19  Legislature in 2003 will have on such rates, as determined by

20  the Office of Insurance Regulation. In determining the

21  presumed factor, the office shall use generally accepted

22  actuarial techniques and standards provided in section

23  627.062, Florida Statutes, in determining the expected impact

24  on losses, expenses, and investment income of the insurer.

25  Inclusion in the presumed factor of the expected impact of

26  such legislation shall be held in abeyance during the review

27  of such measure's validity in any proceeding by a court of

28  competent jurisdiction.

29         (2)  Any insurer or rating organization that contends

30  that the rate provided for in subsection (1) is excessive,

31  inadequate, or unfairly discriminatory shall separately state


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    CS for SB 2-B                                  First Engrossed



 1  in its filing the rate it contends is appropriate and shall

 2  state with specificity the factors or data that it contends

 3  should be considered in order to produce such appropriate

 4  rate. The insurer or rating organization shall be permitted to

 5  use all of the generally accepted actuarial techniques, as

 6  provided in section 627.062, Florida Statutes, in making any

 7  filing pursuant to this subsection. The Office of Insurance

 8  Regulation shall review each such exception and approve or

 9  disapprove it prior to use. It shall be the insurer's burden

10  to actuarially justify any deviations from the rates filed

11  under subsection (1). Each insurer or rating organization

12  shall include in the filing the expected impact of all

13  malpractice legislation enacted by the Florida Legislature in

14  2003 on losses, expenses, and rates. If any provision of this

15  act is held invalid by a court of competent jurisdiction, the

16  office shall permit an adjustment of all rates filed under

17  this section to reflect the impact of such holding on such

18  rates, so as to ensure that the rates are not excessive,

19  inadequate, or unfairly discriminatory.

20         Section 56.  Subsections (1), (2), and (4) of section

21  627.912, Florida Statutes, are amended to read:

22         627.912  Professional liability claims and actions;

23  reports by insurers.--

24         (1)  Each self-insurer authorized under s. 627.357 and

25  each insurer or joint underwriting association providing

26  professional liability insurance to a practitioner of medicine

27  licensed under chapter 458, to a practitioner of osteopathic

28  medicine licensed under chapter 459, to a podiatric physician

29  licensed under chapter 461, to a dentist licensed under

30  chapter 466, to a hospital licensed under chapter 395, to a

31  crisis stabilization unit licensed under part IV of chapter


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    CS for SB 2-B                                  First Engrossed



 1  394, to a health maintenance organization certificated under

 2  part I of chapter 641, to clinics included in chapter 390, to

 3  an ambulatory surgical center as defined in s. 395.002, or to

 4  a member of The Florida Bar shall report in duplicate to the

 5  Department of Insurance any claim or action for damages for

 6  personal injuries claimed to have been caused by error,

 7  omission, or negligence in the performance of such insured's

 8  professional services or based on a claimed performance of

 9  professional services without consent, if the claim resulted

10  in:

11         (a)  A final judgment in any amount.

12         (b)  A settlement in any amount.

13  

14  Reports shall be filed with the department. and, If the

15  insured party is licensed under chapter 458, chapter 459, or

16  chapter 461, and the final judgment or settlement amount was

17  $50,000 or more, or if the insured party is licensed under

18  chapter 466 and the final judgment or settlement amount was

19  $25,000 or more, the report shall be filed or chapter 466,

20  with the Department of Health, no later than 30 days following

21  the occurrence of any event listed in paragraph (a) or

22  paragraph (b). The Department of Health shall review each

23  report and determine whether any of the incidents that

24  resulted in the claim potentially involved conduct by the

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

26  the provisions of s. 456.073 shall apply. The Department of

27  Health, as part of the annual report required by s. 456.026,

28  shall publish annual statistics, without identifying

29  licensees, on the reports it receives, including final action

30  taken on such reports by the Department of Health or the

31  appropriate regulatory board.


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    CS for SB 2-B                                  First Engrossed



 1         (2)  The reports required by subsection (1) shall

 2  contain:

 3         (a)  The name, address, and specialty coverage of the

 4  insured.

 5         (b)  The insured's policy number.

 6         (c)  The date of the occurrence which created the

 7  claim.

 8         (d)  The date the claim was reported to the insurer or

 9  self-insurer.

10         (e)  The name and address of the injured person. This

11  information is confidential and exempt from the provisions of

12  s. 119.07(1), and must not be disclosed by the department

13  without the injured person's consent, except for disclosure by

14  the department to the Department of Health. This information

15  may be used by the department for purposes of identifying

16  multiple or duplicate claims arising out of the same

17  occurrence.

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

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

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

21  involved in the claim.

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

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

24  copy of the settlement or judgment.

25         (j)  In the case of a settlement, such information as

26  the department may require with regard to the injured person's

27  incurred and anticipated medical expense, wage loss, and other

28  expenses.

29         (k)  The loss adjustment expense paid to defense

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

31  


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    CS for SB 2-B                                  First Engrossed



 1         (l)  The date and reason for final disposition, if no

 2  judgment or settlement.

 3         (m)  A summary of the occurrence which created the

 4  claim, which shall include:

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

 6  location within the institution at which the injury occurred.

 7         2.  The final diagnosis for which treatment was sought

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

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

10  the patient's actual condition.

11         4.  The operation, diagnostic, or treatment procedure

12  causing the injury.

13         5.  A description of the principal injury giving rise

14  to the claim.

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

16  the insured to make similar occurrences or injuries less

17  likely in the future.

18         (n)  Any other information required by the office

19  department to analyze and evaluate the nature, causes,

20  location, cost, and damages involved in professional liability

21  cases. The Financial Services Commission shall adopt by rule

22  requirements for additional information to assist the office

23  in its analysis and evaluation of the nature, causes,

24  location, cost, and damages involved in professional liability

25  cases reported by insurers under this section.

26         (4)  There shall be no liability on the part of, and no

27  cause of action of any nature shall arise against, any insurer

28  reporting hereunder or its agents or employees or the

29  department or its employees for any action taken by them under

30  this section.  The department shall may impose a fine of $250

31  per day per case, but not to exceed a total of $10,000 $1,000


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    CS for SB 2-B                                  First Engrossed



 1  per case, against an insurer that violates the requirements of

 2  this section. This subsection applies to claims accruing on or

 3  after October 1, 1997.

 4         Section 57.  Section 627.9121, Florida Statutes, is

 5  created to read:

 6         627.9121  Required reporting of claims;

 7  penalties.--Each entity that makes payment under a policy of

 8  insurance, self-insurance, or otherwise in settlement or

 9  partial settlement of, or in satisfaction of a judgment in, a

10  medical malpractice action or claim that is required to report

11  information to the National Practitioner Data Bank under 42

12  U.S.C. section 11131 must also report the same information to

13  the Office of Insurance Regulation. The Office of Insurance

14  Regulation shall include such information in the data that it

15  compiles under s. 627.912. The office must compile and review

16  the data collected pursuant to this section and must assess an

17  administrative fine on any entity that fails to fully comply

18  with the requirements imposed by law.

19         Section 58.  Section 766.102, Florida Statutes, is

20  amended to read:

21         766.102  Medical negligence; standards of recovery;

22  expert witness.--

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

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

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

26  health care provider as defined in s. 768.50(2)(b), the

27  claimant shall have the burden of proving by the greater

28  weight of evidence that the alleged actions of the health care

29  provider represented a breach of the prevailing professional

30  standard of care for that health care provider.  The

31  prevailing professional standard of care for a given health


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    CS for SB 2-B                                  First Engrossed



 1  care provider shall be that level of care, skill, and

 2  treatment which, in light of all relevant surrounding

 3  circumstances, is recognized as acceptable and appropriate by

 4  reasonably prudent similar health care providers.

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

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

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

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

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

10  health care provider" is one who:

11         1.  Is licensed by the appropriate regulatory agency of

12  this state;

13         2.  Is trained and experienced in the same discipline

14  or school of practice; and

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

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

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

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

19  experienced in a medical specialty, or holds himself or

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

21  is one who:

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

23  and

24         2.  Is certified by the appropriate American board in

25  the same specialty.

26  

27  However, if any health care provider described in this

28  paragraph is providing treatment or diagnosis for a condition

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

30  in the treatment or diagnosis for that condition shall be

31  considered a "similar health care provider."


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

 2  relative standard of care for various categories and

 3  classifications of health care providers.  Any health care

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

 5         1.  Is a similar health care provider pursuant to

 6  paragraph (a) or paragraph (b); or

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

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

 9  court, possesses sufficient training, experience, and

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

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

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

13  to the prevailing professional standard of care in a given

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

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

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

17  incident giving rise to the claim.

18         (2)(3)(a)  If the injury is claimed to have resulted

19  from the negligent affirmative medical intervention of the

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

21  breach of the prevailing professional standard of care, show

22  that the injury was not within the necessary or reasonably

23  foreseeable results of the surgical, medicinal, or diagnostic

24  procedure constituting the medical intervention, if the

25  intervention from which the injury is alleged to have resulted

26  was carried out in accordance with the prevailing professional

27  standard of care by a reasonably prudent similar health care

28  provider.

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

30  when the medical intervention was undertaken with the informed

31  


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

 2  766.103.

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

 4  create any inference or presumption of negligence against a

 5  health care provider, and the claimant must maintain the

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

 7  breach of the prevailing professional standard of care by the

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

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

10  needle, or other paraphernalia commonly used in surgical,

11  examination, or diagnostic procedures, shall be prima facie

12  evidence of negligence on the part of the health care

13  provider.

14         (4)(5)  The Legislature is cognizant of the changing

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

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

17  care, and treatment of patients by different health care

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

19  perform, or administer supplemental diagnostic tests shall not

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

21  and with due regard for the prevailing professional standard

22  of care.

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

24  the prevailing professional standard of care unless that

25  person is a licensed health care provider and meets the

26  following criteria:

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

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

29         1.  Specialize in the same specialty as the party

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

31  


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    CS for SB 2-B                                  First Engrossed



 1         2.  Specialize in a similar speciality that includes

 2  the evaluation, diagnosis, or treatment of the medical

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

 4  experience treating similar patients.

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

 6  immediately preceding the date of the occurrence that is the

 7  basis for the action to:

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

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

10  health care provider against whom or on whose behalf the

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

12  specialist, the active clinical practice of, or consulting

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

14  the evaluation, diagnosis, or treatment of the medical

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

16  experience treating similar patients;

17         2.  The instruction of students in an accredited health

18  professional school or accredited residency program in the

19  same or similar health profession in which the health care

20  provider against whom or on whose behalf the testimony is

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

22  accredited health professional school or accredited residency

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

24  or

25         3.  A clinical research program that is affiliated with

26  an accredited medical school or teaching hospital and that is

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

28  provider against whom or on whose behalf the testimony is

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

30  clinical research program that is affiliated with an

31  


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    CS for SB 2-B                                  First Engrossed



 1  accredited health professional school or accredited residency

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

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

 4  testimony is offered is a general practitioner, the expert

 5  witness must have devoted professional time during the 5 years

 6  immediately preceding the date of the occurrence that is the

 7  basis for the action to:

 8         1.  Active clinical practice or consultation as a

 9  general practitioner;

10         2.  Instruction of students in an accredited health

11  professional school or accredited residency program in the

12  general practice of medicine; or

13         3.  A clinical research program that is affiliated with

14  an accredited medical school or teaching hospital and that is

15  in the general practice of medicine.

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

17  459 who qualifies as an expert witness under subsection (5)

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

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

20  for nurses, nurse practitioners, certified registered nurse

21  anesthetists, certified registered nurse midwives, physician

22  assistants, or other medical support staff may give expert

23  testimony in a medical malpractice action with respect to the

24  standard of care of such medical support staff.

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

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

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

28  appropriate standard of care as to administrative and other

29  nonclinical issues if the person has substantial knowledge, by

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

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


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    CS for SB 2-B                                  First Engrossed



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

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

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

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

 5  rise to the cause of action.

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

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

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

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

10  evaluation, treatment, or diagnosis for that condition shall

11  be considered a similar health care provider.

12         (9)(6)(a)  In any action for damages involving a claim

13  of negligence against a physician licensed under chapter 458,

14  osteopathic physician licensed under chapter 459, podiatric

15  physician licensed under chapter 461, or chiropractic

16  physician licensed under chapter 460 providing emergency

17  medical services in a hospital emergency department, the court

18  shall admit expert medical testimony only from physicians,

19  osteopathic physicians, podiatric physicians, and chiropractic

20  physicians who have had substantial professional experience

21  within the preceding 5 years while assigned to provide

22  emergency medical services in a hospital emergency department.

23         (b)  For the purposes of this subsection:

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

25  medical services required for the immediate diagnosis and

26  treatment of medical conditions which, if not immediately

27  diagnosed and treated, could lead to serious physical or

28  mental disability or death.

29         2.  "Substantial professional experience" shall be

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

31  emergency medical coverage is provided in hospital emergency


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    CS for SB 2-B                                  First Engrossed



 1  departments in the same or similar localities where the

 2  alleged negligence occurred.

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

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

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

 6  witness pursuant to this section must certify that such person

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

 8  jurisdiction.

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

10  trial court to disqualify or qualify an expert witness on

11  grounds other than the qualifications in this section.

12         Section 59.  Effective July 1, 2003, and applicable to

13  any action arising from a medical malpractice claim initiated

14  by a notice of intent to litigate received by a potential

15  defendant in a medical malpractice case on or after that date,

16  present subsections (5) through (12) of section 766.106,

17  Florida Statutes, are redesignated as subsections (6) through

18  (13), respectively, and a new subsection (5) is added to that

19  section, to read:

20         766.106  Notice before filing action for medical

21  malpractice; presuit screening period; offers for admission of

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

23         (5)(a)  With regard to insurance company bad-faith

24  causes of action arising out of medical malpractice claims,

25  the action shall be brought pursuant to common law and not

26  pursuant to s. 624.155.

27         (b)  An insurer shall not be held to have acted in bad

28  faith for failure to timely pay its policy limits if it

29  tenders its policy limits and meets the reasonable conditions

30  of settlement prior to the conclusion of the presuit screening

31  period provided for in subsection (4); during an extension


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    CS for SB 2-B                                  First Engrossed



 1  provided for therein; during a period of 210 days thereafter;

 2  or during a 90-day period after the filing of an amended

 3  medical malpractice complaint alleging new facts previously

 4  unknown to the insurer. If a case is set for trial within 1

 5  year after the date of filing the claim, an insurer shall not

 6  be held in bad faith if policy limits are tendered 60 days or

 7  more prior to the initial trial date. This paragraph does not

 8  apply when, based upon information known earlier to the

 9  insurance company or its representatives, the insurance

10  company could and should have settled the claim within policy

11  limits if it had been acting fairly and honestly toward the

12  insured and with due regard for the insured's interests during

13  the 210-day period after the 90-day presuit period or in

14  circumstances when a case is set for trial within 1 year after

15  the date of filing the claim, 60 days or more prior to the

16  initial trial date, whichever is earlier.

17         (c)  It is the intent of the Legislature to encourage

18  all insurers, insureds, and their assigns and legal

19  representatives to act in good faith during a medical

20  negligence action, both during the presuit period and the

21  litigation.

22         (d)  This subsection is repealed effective September 1,

23  2006, but shall continue to apply with respect to incidents

24  that occur prior to that date.

25         Section 60.  Effective October 1, 2003, and applicable

26  to notices of intent to litigate sent on or after that date,

27  subsection (2), paragraphs (a) and (b) of subsection (3), and

28  subsection (7) of section 766.106, Florida Statutes, as

29  amended by this act, are amended, to read:

30  

31  


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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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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    CS for SB 2-B                                  First Engrossed



 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 61.  Section 766.108, Florida Statutes, is

30  amended to read:

31  


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    CS for SB 2-B                                  First Engrossed



 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 62.  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, damages recoverable for noneconomic losses

25  to compensate for pain and suffering, inconvenience, physical

26  impairment, mental anguish, disfigurement, loss of capacity

27  for enjoyment of life, and all other noneconomic damages shall

28  not exceed $500,000 aggregate for all defendant practitioners,

29  $500,000 aggregate for all defendant facilities, and $500,000

30  aggregate for all other defendants regardless of the number of

31  


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    CS for SB 2-B                                  First Engrossed



 1  claimants involved in the action subject to the limitations

 2  set forth in subsection (2).

 3         (2)  Notwithstanding subsection (1), the trier of fact

 4  may award noneconomic damages under this section in an amount

 5  not to exceed $2 million per incident in cases where medical

 6  negligence results in certain catastrophic injuries including

 7  death, coma, severe and permanent brain damage, mastectomy,

 8  loss of reproductive capabilities, hemiplegia, quadriplegia,

 9  paraplegia, blindness, or a permanent vegetative state.

10  Regardless of the number of individual claimants, the total

11  noneconomic damages that may be awarded for all claims arising

12  out of the same incident, shall be limited to a maximum of $2

13  million aggregate for all defendant practitioners, $2 million

14  aggregate for all defendant facilities, and $2 million

15  aggregate for all other defendants.

16         (3)  The maximum amount of noneconomic damages which

17  may be awarded under this section must be adjusted each year

18  on July 1 to reflect the rate of inflation or deflation as

19  indicated in the Consumer Price Index for All Urban Consumers

20  published by the United States Department of Labor. However,

21  the maximum amount of noneconomic damages which may be awarded

22  may not be less than $500,000.

23         (4)  Notwithstanding any law to the contrary, the caps

24  on noneconomic damages provided in subsection (1) of this

25  section do not apply to any incident involving a physician or

26  osteopathic physician who is not in compliance with the

27  financial responsibility requirements set forth in sections

28  458.320 and 459.0085, Florida Statutes, respectively.

29         (5)  This section is repealed effective September 1,

30  2006, but shall continue to apply with respect to incidents

31  that occur prior to that date.


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    CS for SB 2-B                                  First Engrossed



 1         Section 63.  Subsections (3), (5), (7), and (8) of

 2  section 766.202, Florida Statutes, are amended to read:

 3         766.202  Definitions; ss. 766.201-766.212.--As used in

 4  ss. 766.201-766.212, the term:

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

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

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

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

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

10  entitled to recover such damages under general law, including

11  the Wrongful Death Act.

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

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

14  health care professional degree from a university or college

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

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

17  experience or one possessed of special health care knowledge

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

19  testify or provide an opinion.

20         (7)  "Noneconomic damages" means nonfinancial losses

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

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

23  inconvenience, physical impairment, mental anguish,

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

25  other nonfinancial losses, to the extent the claimant is

26  entitled to recover such damages under general law, including

27  the Wrongful Death Act.

28         (8)  "Periodic payment" means provision for the

29  structuring of future economic damages payments, in whole or

30  in part, over a period of time, as follows:

31  


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    CS for SB 2-B                                  First Engrossed



 1         (a)  A specific finding of the dollar amount of

 2  periodic payments which will compensate for these future

 3  damages after offset for collateral sources shall be made.

 4  The total dollar amount of the periodic payments shall equal

 5  the dollar amount of all such future damages before any

 6  reduction to present value.

 7         (b)  The defendant shall be required to post a bond or

 8  security or otherwise to assure full payment of these damages

 9  awarded.  A bond is not adequate unless it is written by a

10  company authorized to do business in this state and is rated

11  A+ by Best's. If the defendant is unable to adequately assure

12  full payment of the damages, all damages, reduced to present

13  value, shall be paid to the claimant in a lump sum.  No bond

14  may be canceled or be subject to cancellation unless at least

15  60 days' advance written notice is filed with the court and

16  the claimant.  Upon termination of periodic payments, the

17  security, or so much as remains, shall be returned to the

18  defendant.

19         (c)  The provision for payment of future damages by

20  periodic payments shall specify the recipient or recipients of

21  the payments, the dollar amounts of the payments, the interval

22  between payments, and the number of payments or the period of

23  time over which payments shall be made.

24         (d)  Any portion of the periodic payment which is

25  attributable to medical expenses that have not yet been

26  incurred shall terminate upon the death of the claimant. Any

27  outstanding medical expenses incurred prior to the death of

28  the claimant shall be paid from that portion of the periodic

29  payment attributable to medical expenses.

30  

31  


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    CS for SB 2-B                                  First Engrossed



 1         Section 64.  Effective July 1, 2003, and applicable to

 2  all causes of action accruing on or after that date, section

 3  766.206, Florida Statutes, is amended to read:

 4         766.206  Presuit investigation of medical negligence

 5  claims and defenses by court.--

 6         (1)  After the completion of presuit investigation by

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

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

 9  circuit court requesting the court to determine whether the

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

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

12  initiate litigation mailed by the claimant is not in

13  compliance with the reasonable investigation requirements of

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

15  verified written medical expert opinion by an expert witness

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

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

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

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

20  investigation and evaluation of the claim, including the

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

22  defendant's insurer.

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

24  defendant rejecting the claim is not in compliance with the

25  reasonable investigation requirements of ss. 766.201-766.212,

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

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

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

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

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

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


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    CS for SB 2-B                                  First Engrossed



 1  during the investigation and evaluation of the claim,

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

 3  claimant.

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

 5  claimant mailed notice of intent to initiate litigation

 6  without reasonable investigation, or filed a medical

 7  negligence claim without first mailing such notice of intent

 8  which complies with the reasonable investigation requirements,

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

10  a response rejecting the claim without reasonable

11  investigation, the court shall submit its finding in the

12  matter to The Florida Bar for disciplinary review of the

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

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

15  committee acting under the jurisdiction of the Supreme Court.

16  If such committee finds probable cause to believe that an

17  attorney has violated this section, such committee shall

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

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

20  written medical expert opinion attached to any notice of claim

21  or intent or to any response rejecting a claim lacked

22  reasonable investigation, or that the medical expert

23  submitting the opinion did not meet the expert witness

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

25  report the medical expert issuing such corroborating opinion

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

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

28  division shall forward such report to the disciplining

29  authority of that medical expert.

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

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


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    CS for SB 2-B                                  First Engrossed



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

 2  disqualified three times pursuant to this section.

 3         Section 65.  Subsection (7) of section 766.207, Florida

 4  Statutes, is amended to read:

 5         766.207  Voluntary binding arbitration of medical

 6  negligence claims.--

 7         (7)  Arbitration pursuant to this section shall

 8  preclude recourse to any other remedy by the claimant against

 9  any participating defendant, and shall be undertaken with the

10  understanding that damages shall be awarded as provided by

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

12  following limitations:

13         (a)  Net economic damages shall be awardable,

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

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

16  capacity, offset by any collateral source payments.

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

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

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

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

21  50-percent reduction in his or her capacity to enjoy life

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

23  damages.

24         (c)  Damages for future economic losses shall be

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

26  766.202(8) and shall be offset by future collateral source

27  payments.

28         (d)  Punitive damages shall not be awarded.

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

30  of interest on all accrued damages with respect to which

31  interest would be awarded at trial.


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    CS for SB 2-B                                  First Engrossed



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

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

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

 4  reduced to present value.

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

 6  arbitration proceeding and the fees of all the arbitrators

 7  other than the administrative law judge.

 8         (h)  Each defendant who submits to arbitration under

 9  this section shall be jointly and severally liable for all

10  damages assessed pursuant to this section.

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

12  damages shall be for the purpose of arbitration under this

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

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

15  subsequent litigation of the claim following the rejection

16  thereof.

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

18  arbitrate shall not be admissible as evidence of liability in

19  any collateral or subsequent proceeding on the claim.

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

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

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

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

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

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

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

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

28  provisions of s. 766.209(4).

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

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

31  


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    CS for SB 2-B                                  First Engrossed



 1  and render a final decision.  The chief arbitrator shall

 2  decide all evidentiary matters.

 3  

 4  The provisions of this subsection shall not preclude

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

 6         Section 66.  Subsection (4) is added to section

 7  768.041, Florida Statutes, to read:

 8         768.041  Release or covenant not to sue.--

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

10  766, or at trial pursuant to s. 766.209, if any defendant

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

12  representative, has delivered a written release or covenant

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

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

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

16  before entry of the final judgment.

17         (b)  The amount of the setoff pursuant to this

18  subsection shall include all sums received by the plaintiff,

19  including economic and noneconomic damages, costs, and

20  attorney's fees.

21         Section 67.  Paragraph (c) of subsection (2) of section

22  768.13, Florida Statutes, is amended to read:

23         768.13  Good Samaritan Act; immunity from civil

24  liability.--

25         (2)

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

27  456.001(4) who is in a hospital attending to a patient of his

28  or her practice or for business or personal reasons unrelated

29  to direct patient care, and who voluntarily responds to

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

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


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    CS for SB 2-B                                  First Engrossed



 1  patient-physician relationship, and when such care or

 2  treatment is necessitated by a sudden or unexpected situation

 3  or by an occurrence that demands immediate medical attention,

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

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

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

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

 8  affect the life or health of another.

 9         2.  The immunity provided by this paragraph does not

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

11  providing medical care or treatment unrelated to the original

12  situation that demanded immediate medical attention.

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

14  intent is to encourage health care practitioners to provide

15  necessary emergency care to all persons without fear of

16  litigation as described in this paragraph.

17         (c)  Any person who is licensed to practice medicine,

18  while acting as a staff member or with professional clinical

19  privileges at a nonprofit medical facility, other than a

20  hospital licensed under chapter 395, or while performing

21  health screening services, shall not be held liable for any

22  civil damages as a result of care or treatment provided

23  gratuitously in such capacity as a result of any act or

24  failure to act in such capacity in providing or arranging

25  further medical treatment, if such person acts as a reasonably

26  prudent person licensed to practice medicine would have acted

27  under the same or similar circumstances.

28         Section 68.  Section 768.77, Florida Statutes, is

29  amended to read:

30         768.77  Itemized verdict.--

31  


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    CS for SB 2-B                                  First Engrossed



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

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

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

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

 5  amounts to be awarded to the claimant into the following

 6  categories of damages:

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

 8  economic losses;

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

10  noneconomic losses; and

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

12  damages, if applicable.

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

14  or wrongful death arising out of medical malpractice, whether

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

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

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

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

19  into the following categories of damages:

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

21         1.  Past economic losses; and

22         2.  Future economic losses, not reduced to present

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

24  is intended to cover;

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

26         1.  Past noneconomic losses; and

27         2.  Future noneconomic losses and the number of years

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

29         (c)  Amounts awarded to the claimant for punitive

30  damages, if applicable.

31  


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    CS for SB 2-B                                  First Engrossed



 1         Section 69.  Subsection (5) of section 768.81, Florida

 2  Statutes, is amended to read:

 3         768.81  Comparative fault.--

 4         (5)  Notwithstanding any provision of anything in law

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

 6  or wrongful death arising out of medical malpractice, whether

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

 8  total fault only among the claimant and all the joint

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

10  submitted to the jury for deliberation and rendition of the

11  verdict when an apportionment of damages pursuant to this

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

13  408.07, the court shall enter judgment against the teaching

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

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

16  liability.

17         Section 70.  Nothing in this act constitutes a waiver

18  of sovereign immunity under section 768.28, Florida Statutes,

19  or contravenes the abrogation of joint and several liability

20  contained in section 766.112, Florida Statutes.

21         Section 71.  The Office of Program Policy Analysis and

22  Government Accountability and the Office of the Auditor

23  General must jointly conduct an audit of the Department of

24  Health's health care practitioner disciplinary process and

25  closed claims that are filed with the department under section

26  627.912, Florida Statutes. The Office of Program Policy

27  Analysis and Government Accountability and the Office of the

28  Auditor General shall submit a report to the Legislature by

29  January 1, 2004.

30         Section 72.  Section 1004.08, Florida Statutes, is

31  created to read:


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    CS for SB 2-B                                  First Engrossed



 1         1004.08  Patient safety instructional

 2  requirements.--Each public school, college, and university

 3  that offers degrees in medicine, nursing, or allied health

 4  shall include in the curricula applicable to such degrees

 5  material on patient safety, including patient safety

 6  improvement. Materials shall include, but need not be limited

 7  to, effective communication and teamwork; epidemiology of

 8  patient injuries and medical errors; medical injuries;

 9  vigilance, attention and fatigue; checklists and inspections;

10  automation, technological, and computer support; psychological

11  factors in human error; and reporting systems.

12         Section 73.  Section 1005.07, Florida Statutes, is

13  created to read:

14         1005.07  Patient safety instructional

15  requirements.--Each private school, college, and university

16  that offers degrees in medicine, nursing, and allied health

17  shall include in the curricula applicable to such degrees

18  material on patient safety, including patient safety

19  improvement. Materials shall include, but need not be limited

20  to, effective communication and teamwork; epidemiology of

21  patient injuries and medical errors; medical injuries;

22  vigilance, attention and fatigue; checklists and inspections;

23  automation, technological, and computer support; psychological

24  factors in human error; and reporting systems.

25         Section 74.  Paragraph (c) of subsection (2) of section

26  1006.20, Florida Statutes, as amended by section 2 of chapter

27  2003-129, Laws of Florida, is amended to read:

28         1006.20  Athletics in public K-12 schools.--

29         (2)  ADOPTION OF BYLAWS.--

30         (c)  The organization shall adopt bylaws that require

31  all students participating in interscholastic athletic


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    CS for SB 2-B                                  First Engrossed



 1  competition or who are candidates for an interscholastic

 2  athletic team to satisfactorily pass a medical evaluation each

 3  year prior to participating in interscholastic athletic

 4  competition or engaging in any practice, tryout, workout, or

 5  other physical activity associated with the student's

 6  candidacy for an interscholastic athletic team. Such medical

 7  evaluation can only be administered by a practitioner licensed

 8  under the provisions of chapter 458, chapter 459, chapter 460,

 9  or s. 464.012, and in good standing with the practitioner's

10  regulatory board. The bylaws shall establish requirements for

11  eliciting a student's medical history and performing the

12  medical evaluation required under this paragraph, which shall

13  include a physical assessment of the student's physical

14  capabilities to participate in interscholastic athletic

15  competition as contained in a uniform preparticipation

16  physical evaluation and history form. The evaluation form

17  shall incorporate the recommendations of the American Heart

18  Association for participation cardiovascular screening and

19  shall provide a place for the signature of the practitioner

20  performing the evaluation with an attestation that each

21  examination procedure listed on the form was performed by the

22  practitioner or by someone under the direct supervision of the

23  practitioner. The form shall also contain a place for the

24  practitioner to indicate if a referral to another practitioner

25  was made in lieu of completion of a certain examination

26  procedure. The form shall provide a place for the practitioner

27  to whom the student was referred to complete the remaining

28  sections and attest to that portion of the examination. The

29  preparticipation physical evaluation form shall advise

30  students to complete a cardiovascular assessment and shall

31  include information concerning alternative cardiovascular


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    CS for SB 2-B                                  First Engrossed



 1  evaluation and diagnostic tests. Practitioners administering

 2  medical evaluations pursuant to this subsection must, at a

 3  minimum, solicit all information required by, and perform a

 4  physical assessment according to, the uniform preparticipation

 5  form referred to in this paragraph and must certify, based on

 6  the information provided and the physical assessment, that the

 7  student is physically capable of participating in

 8  interscholastic athletic competition. If the practitioner

 9  determines that there are any abnormal findings in the

10  cardiovascular system, the student may not participate until a

11  further cardiovascular assessment, which may include an EKG,

12  is performed which indicates that the student is physically

13  capable of participating in interscholastic athletic

14  competition. Results of such medical evaluation must be

15  provided to the school. No student shall be eligible to

16  participate in any interscholastic athletic competition or

17  engage in any practice, tryout, workout, or other physical

18  activity associated with the student's candidacy for an

19  interscholastic athletic team until the results of the medical

20  evaluation clearing the student for participation has been

21  received and approved by the school.

22         Section 75.  No later than September 1, 2003, the

23  Department of Health shall convene a workgroup to study the

24  current healthcare practitioner disciplinary process. The

25  workgroup shall include a representative of the Administrative

26  Law section of The Florida Bar, a representative of the Health

27  Law section of The Florida Bar, a representative of the

28  Florida Medical Association, a representative of the Florida

29  Osteopathic Medical Association, a representative of the

30  Florida Dental Association, a member of the Florida Board of

31  Medicine who has served on the probable cause panel, a member


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    CS for SB 2-B                                  First Engrossed



 1  of the Board of Osteopathic Medicine who has served on the

 2  probable cause panel, and a member of the Board of Dentistry

 3  who has served on the probable cause panel. The workgroup

 4  shall also include one consumer member of the Board of

 5  Medicine. The Department of Health shall present the findings

 6  and recommendations to the Governor, the President of the

 7  Senate, and the Speaker of the House of Representatives no

 8  later than January 1, 2004. The sponsoring organizations shall

 9  assume the costs of their representative.

10         Section 76.  Section 766.1065, Florida Statutes, is

11  created to read:

12         766.1065  Mandatory presuit investigation.--

13         (1)  Within 30 days after service of the presuit notice

14  of intent to initiate medical malpractice litigation, each

15  party shall provide to all other parties all medical,

16  hospital, health care, and employment records concerning the

17  claimant in the disclosing party's possession, custody, or

18  control, and the disclosing party shall affirmatively certify

19  in writing that such records constitute all records in that

20  party's possession, custody, or control of that the party has

21  no medical, hospital, health care, or employment records

22  concerning the claimant.

23         (2)  Within 60 days after service of the presuit notice

24  of intent to initiate medical malpractice litigation, all

25  parties must be made available for a sworn deposition. A

26  deposition taken pursuant to this section may not be used in

27  any civil action for any purpose by any party.

28         (3)  Within 90 days after service of the presuit notice

29  of intent to initiate medical malpractice litigation, all

30  parties must attend in-person mandatory mediation in

31  accordance with s. 44.102, if binding arbitration under s.


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    CS for SB 2-B                                  First Engrossed



 1  766.106 or s. 766.207 has not been agreed to by the parties.

 2  The Florida Rules of Civil Procedure shall apply to such

 3  mediation.

 4         (4)  If the parties declare an impasse during the

 5  mandatory mediation, and if the plaintiff or the defendants so

 6  request within 10 days of the impasse, via certified mail to

 7  Office of Presuit Screening Administration for a presuit

 8  screening panel, then the Office of Presuit Screening

 9  Administration shall convene such a panel pursuant to s.

10  766.1066. Notwithstanding any other provision of law, the

11  parties may stipulate to waive any proceedings under this

12  section.

13         Section 77.  Section 766.1066, Florida Statutes, is

14  created to read:

15         766.1066  Office of Presuit Screening Administration;

16  presuit screening panels.--

17         (1)(a)  There is created within the Department of

18  Health, the Office of Presuit Screening Administration. The

19  department shall provide administrative support and service to

20  the office to the extent requested by the director. The office

21  is not subject to any control, supervision, or direction by

22  the department, including, but not limited to, personnel,

23  purchasing, transactions involving real or personal property,

24  and budgetary matters. The director of the office shall be

25  appointed by the Governor and the Cabinet.

26         (b)  The office shall, by September 1, 2003, develop

27  and maintain a database of physicians, attorneys, and

28  consumers available to serve as members of presuit screening

29  panels.

30         (c)  The Department of Health shall request the

31  relevant regulatory boards to assist the office in developing


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    CS for SB 2-B                                  First Engrossed



 1  the database. The office shall request the assistance of The

 2  Florida Bar in developing the database.

 3         (d)  Funding for the office's general expenses shall

 4  come from a service charge equal to 0.5 percent of the final

 5  judgment or arbitration award in each medical malpractice

 6  liability case in this state. All parties in such malpractice

 7  actions shall in equal parts pay the service charge at the

 8  time proceeds from a final judgment or an arbitration award

 9  are initially disbursed. Such charge shall be collected by the

10  clerk of the circuit court in the county where the final

11  judgment is entered or the arbitration award is made. The

12  clerk shall remit the service charges to the Department of

13  Revenue for deposit into the Department of Health

14  Administrative Trust Fund. The Department of Revenue shall

15  adopt rules to administer the service charge.

16         (e)1.  A person may not be required to serve on a

17  presuit screening panel for more than 2 days.

18         2.  A person on a panel shall designate in advance any

19  time period during which he or she will not be available to

20  serve.

21         3.  When a plaintiff requests a hearing before a panel,

22  the office shall randomly select members for a panel from

23  available persons in the appropriate categories who have not

24  served on a panel in the past 12 months. If there are no other

25  potential panelists available, a panelist may be asked to

26  serve on another panel within 12 months. 

27         (4)  The office shall establish a panel no later than

28  15 days after the receipt of the request for hearing. The

29  office shall set a hearing no later than 30 days after the

30  receipt of the request for hearing.

31  


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    CS for SB 2-B                                  First Engrossed



 1         (f)  Panel members shall receive reimbursement from the

 2  office for their travel expenses.

 3         (g)  A physician who serves on a panel:

 4         1.  Shall receive credit for 20 hours of continuing

 5  medical education for such service;

 6         2.  Must reside and practice at least 50 miles from the

 7  location where the alleged injury occurred;

 8         3.  Must have had no more than two judgments for

 9  medical malpractice liability against him or her within the

10  preceding 5 years and no more than 10 claims of medical

11  malpractice filed against him or her within the preceding 3

12  years.

13         4.  Must hold an active license in good standing in

14  this state and must have been in active practice within the

15  5-year period prior to selection.

16  A physician who fails to attend the designated panel hearing

17  on two separate occasions shall be reported to his or her

18  regulatory board for discipline and may not receive certified

19  medical education credit for participation on the panel.

20         (h)  An attorney who serves on a panel:

21         1.  Should receive credit for 20 hours of continuing

22  legal education and credit towards pro bono requirements for

23  such service. The Legislature requests that the Supreme Court

24  adopt rules to implement this provision.

25         2.  Must reside and practice at least 50 miles from the

26  location where the alleged injury occurred;

27         3.  Must have had no judgments for filing a frivolous

28  lawsuit within the preceding 5 years;

29         4.  Must hold an active license to practice law in this

30  state and have held an active license in good standing for at

31  least 5 years; and


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    CS for SB 2-B                                  First Engrossed



 1         5.  Must be a board-certified civil trial lawyer.

 2  An attorney who fails to attend the designated panel hearing

 3  on two separate occasions shall be reported to The Florida

 4  Bar.

 5         (2)(a)  A presuit screening panel shall be composed of

 6  five persons, including:

 7         1.  Two physicians who are board-certified in the same

 8  specialty as the defendant;

 9         2.  Two attorneys; and

10         3.  One certified mediator obtained from a list

11  provided by the Clerk of the Court in the Judicial circuit

12  where a prospective defendant physician resides. The mediator

13  shall serve as the presiding officer of the panel.

14         (b)  If there is more than one physician defendant, the

15  plaintiff shall designate the subject areas in which both

16  physician members of the panel must be board-certified.

17         (c)  A panel member who knowingly has a conflict of

18  interest or potential conflict of interest must disclose it

19  prior to the hearing. The office must replace the conflicted

20  panel member with a panel member from the same category as the

21  member removed because of a conflict of interest. Failure of a

22  panel member to report a conflict of interest shall result in

23  dismissal from the panel and from further service. A physician

24  member who does not report a conflict of interest shall also

25  be reported to his or her regulatory board for disciplinary

26  action. An attorney member who does not report a conflict of

27  interest shall be reported to the Florida Bar and the office

28  is to request disciplinary action be taken against the

29  attorney.

30         (d)  The office shall provide administrative support to

31  the panel.


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    CS for SB 2-B                                  First Engrossed



 1         (3)  The plaintiff shall be allowed 8 hours to present

 2  his or her case. All defendants shall be allowed a total of 8

 3  hours collectively to present their case, and a hearing may

 4  not exceed a total of 16 hours; however, the panel may hear a

 5  case over the course of 2 calendar days.

 6         (4)(a)  In addition to any other information that may

 7  be disclosed under this section and no later than two weeks

 8  prior to the hearing of the screening panel, the claimant

 9  shall provide to the panel and opposing parties a detailed

10  report, supported by one or more verified written medical

11  expert opinion reports from medical experts as defined in this

12  chapter, including a detailed description of the expert

13  witness's qualifications, the precise nature of the witness's

14  opinions regarding each instance in which each defendant is

15  alleged to breached the prevailing professional standard of

16  care, and a description of the factual basis for each such

17  opinion of negligence. The report shall also include a

18  description of all elements of damages claimed.

19         (b)  In addition to any other information that may be

20  disclosed under this section and no later than one week prior

21  to the hearing of the screening panel, each  defendant shall

22  provide to the panel and opposing parties a detailed report,

23  supported by one or more verified written medical expert

24  opinion reports from medical experts as defined in this

25  chapter, including a detailed description of the expert

26  witness's qualifications, the precise nature of the witness's

27  opinions and a description of the factual basis for each such

28  opinion. If a party fails to comply with the requirements of

29  this section without good cause, the court upon motion shall

30  impose sanctions, including as award of attorney's fees and

31  other costs, against the party failing to comply.


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    CS for SB 2-B                                  First Engrossed



 1         (5)  All documentary 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. The panel may proceed with the hearing

 5  and shall render an opinion upon the evidence produced,

 6  notwithstanding the failure of a party to appear.

 7         (6)  A panel shall, by a majority vote for each

 8  defendant, determine whether reasonable grounds exists to

 9  support a claim of medical negligence.  The findings of the

10  panel are not final agency action for purposes of chapter 120.

11         (7)  Panel members are immune from civil liability for

12  all communications, findings, opinions, and conclusions made

13  in the course and scope of duties prescribed by this section

14  to the extent provided in s. 768.28.

15         (8)  Unless excluded by the judge for good cause shown,

16  the proceedings and findings of a presuit screening panel

17  shall be discoverable and admissible in any subsequent trial

18  arising out of the claim, and the members of the panel may be

19  deposed and called to testify at trial. If the panel's

20  findings, or any testimony or evidence related to the panel's

21  findings or proceedings, are admitted into evidence, the court

22  shall instruct the jury that the findings are not binding and

23  shall be considered by the jury equally with all other

24  evidence presented at trial.

25         (9)  The statute of limitations as to all potential

26  defendants shall be tolled from the date that any party serves

27  upon the Office of Presuit Screening Administration the

28  request for a medical review panel until the date that the

29  plaintiff receives the panel's findings. These tolling

30  provisions shall be in addition to any other tolling

31  provision.


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    CS for SB 2-B                                  First Engrossed



 1         (10)  Upon the plaintiff receipt of the presuit

 2  screening panel's determination, the plaintiff has 60 days or

 3  the remainder of the period of the statute of limitations,

 4  whichever period is greater, in which to file suit.

 5         (11)  The Administration Commission shall adopt rules

 6  to administer this section.

 7         (12)  This section is repealed effective September 1,

 8  2006, but shall continue to apply with respect to incidents

 9  that occur prior to that date.

10         Section 78.  Section 624.156, Florida Statutes, is

11  created to read:

12         624.156  Applicability of consumer protection laws to

13  the business of insurance.--

14         (1)  Notwithstanding any provision of law to the

15  contrary, the business of insurance shall be subject to the

16  laws of this state applicable to any other business,

17  including, but not limited to, the Florida Civil Rights Act of

18  1992 set forth in part I of chapter 760, the Florida Antitrust

19  Act of 1980 set forth in chapter 542, the Florida Deceptive

20  and Unfair Trade Practices Act set forth in part II of chapter

21  501, and the consumer protection provisions contained in

22  chapter 540.  The protections afforded consumers by chapters

23  501, 540, 542, and 760 shall apply to insurance consumers.

24         (2)  Nothing in this section shall be construed to

25  prohibit:

26         (a)  Any agreement to collect, compile, and disseminate

27  historical data on paid claims or reserves for reported

28  claims, provided such data is contemporaneously transmitted to

29  the Office of Insurance Regulation and made available for

30  public inspection.

31  


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    CS for SB 2-B                                  First Engrossed



 1         (b)  Participation in any joint arrangement established

 2  by law or the Office of Insurance Regulation to assure

 3  availability of insurance.

 4         (c)  Any agent or broker, representing one or more

 5  insurers, from obtaining from any insurer such agent or broker

 6  represents information relative to the premium for any policy

 7  or risk to be underwritten by that insurer.

 8         (d)  Any agent or broker from disclosing to an insurer

 9  the agent or broker represents any quoted rate or charge

10  offered by another insurer represented by that agent or broker

11  for the purpose of negotiating a lower rate, charge, or term

12  from the insurer to whom the disclosure is made.

13         (e)  Any agents, brokers, or insurers from using, or

14  participating with multiple insurers or reinsurers for

15  underwriting, a single risk or group of risks.

16         Section 79.  Subsection (7) of section 456.013, Florida

17  Statutes, is amended to read:

18         456.013  Department; general licensing provisions.--

19         (7)  The boards, or the department when there is no

20  board, shall require the completion of a 2-hour course

21  relating to prevention of medical errors as part of the

22  licensure and renewal process. The 2-hour course shall count

23  towards the total number of continuing education hours

24  required for the profession. The course shall be approved by

25  the board or department, as appropriate, and shall include a

26  study of root-cause analysis, error reduction and prevention,

27  and patient safety. If the course is being offered by a

28  facility licensed pursuant to chapter 395 for its employees,

29  the board may approve up to 1 hour of the 2-hour course to be

30  specifically related to error reduction and prevention methods

31  used in that facility. The Board of Medicine and the Board of


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    CS for SB 2-B                                  First Engrossed



 1  Osteopathic Medicine shall also require as a condition of

 2  licensure and license renewal that each physician and

 3  physician assistant complete a 2-hour board-approved

 4  continuing education course relating to the five most

 5  misdiagnosed conditions, as determined by the board, during

 6  the previous biennium. This continuing education course shall

 7  count towards the total number of continuing education hours

 8  required for those physicians and physician assistants.

 9         Section 80.  Paragraph (a) of subsection (3) of section

10  766.209, Florida Statutes, is amended to read:

11         766.209  Effects of failure to offer or accept

12  voluntary binding arbitration.--

13         (3)  If the defendant refuses a claimant's offer of

14  voluntary binding arbitration:

15         (a)  The claim shall proceed to trial without

16  limitation on damages, and the claimant, upon proving medical

17  negligence, shall be entitled to recover prejudgment interest,

18  and reasonable attorney's fees up to 25 percent of the award

19  reduced to present value.

20         Section 81.  Seven positions are authorized and the sum

21  of $454,766 is appropriated from the General Revenue Fund to

22  the Department of Health, Office of Presuit Screening

23  Administration, to implement the provisions of this act for

24  the 2003-2004 fiscal year.

25         Section 82.  The sum of $687,786 is appropriated from

26  the Medical Quality Assurance Trust Fund to the Department of

27  Health, and seven positions are authorized, for the purpose of

28  implementing this act during the 2003-2004 fiscal year. The

29  sum of $452,122 is appropriated from the General Revenue Fund

30  to the Agency for Health Care Administration, and five

31  


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    CS for SB 2-B                                  First Engrossed



 1  positions are authorized, for the purpose of implementing this

 2  act during the 2003-2004 fiscal year.

 3         Section 83.  The sum of $2,150,000 is appropriated from

 4  the Insurance Regulatory Trust Fund in the Department of

 5  Financial Services to the Office of Insurance Regulation for

 6  the purpose of implementing this act during the 2003-2004

 7  fiscal year.

 8         Section 84.  If any law that is amended by this act was

 9  also amended by a law enacted at the 2003 Regular Session or

10  2003 Special Session A of the Legislature, such laws shall be

11  construed as if they had been enacted during the same session

12  of the Legislature, and full effect should be given to each if

13  that is possible.

14         Section 85.  If any provision of this act or its

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

16  invalidity does not affect other provisions or applications of

17  the act which can be given effect without the invalid

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

19  this act are severable.

20         Section 86.  Except as otherwise expressly provided in

21  this act, this act shall take effect July 1, 2003, or upon

22  becoming a law, whichever occurs later, and shall apply

23  retroactively to July 1, 2003, with respect to any action

24  arising from a medical malpractice claim initiated by a notice

25  of intent to litigate received by a potential defendant in a

26  medical malpractice case on or after that date.

27  

28  

29  

30  

31  


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