Amendment Text: 369087

HOUSE AMENDMENT

Bill No. HB 63B

CHAMBER ACTION

Senate

House

Representative Homan offered the following:

Amendment (with title amendment)

Between lines 3191 and 3192, insert:

Section 63. Section 766.1061, Florida Statutes, is created

to read:

766.1061 Creation of medical negligence review panels;

timeframes for convening a panel; opinion of panel.--

(1) Medical negligence review panels are hereby created

and are required to review proposed medical malpractice

complaints against health care facilities licensed under chapter

395, physicians licensed under chapters 458 or 459, or other

health care providers licensed under chapters 460, 461, 464,

466, or 467, pursuant to the presuit notice of intent to

initiate medical malpractice litigation, whereupon the total

damages alleged by the plaintiff are in excess of $15,000. All

such notices of intent to initiate medical malpractice

litigation must be sent by certified mail to the Office of

Presuit Screening Administration, together with the assessment

payment required by s. 766.1062(4)(b).

(2) Except where the parties have agreed to voluntary

binding arbitration pursuant to s. 766.207, a medical negligence

review panel shall be convened on an alleged malpractice case by

the Office of Presuit Screening Administration within 60 days

after the end date of the presuit mediation process or within

120 days after the presuit notice of intent to initiate medical

malpractice litigation, whichever occurs earlier. The Office of

Presuit Screening Administration shall be notified as soon as

practicable by the plaintiff of the end date of the presuit

mediation process and whether the parties have agreed to binding

arbitration, and the date of the binding arbitration hearing, if

applicable.

(3) A medical negligence review panel has the sole duty to

express the panel’s expert opinion as to whether or not the

evidence supports the conclusion that the defendant or

defendants acted or failed to act within the appropriate

standards of care as charged by the plaintiff in the notice of

intent to initiate medical malpractice litigation. Such opinion

shall be reached by a vote of the panel members. Within 30 days

after the end of the hearing before the panel, the panel shall

issue a written report, signed by all of the panelists, which

contains one of the following findings:

(a) The evidence supports the conclusion that the

defendant or defendants failed to meet the appropriate standard

of care;

(b) The evidence does not support the conclusion that the

defendant or defendants failed to meet the appropriate standard

of care;

in the opinion, that does not require expert opinion, bearing on

liability for consideration by a court or jury;

(d) The conduct complained of was or was not a factor in

the resultant damages, and, if so, whether the plaintiff

suffered:

1. Any disability and the extent and duration of the

disability; and

2. Any permanent impairment and the percentage of the

impairment; or

(e) The panel is unable from the evidence presented to

determine the appropriate standard of care to which the

plaintiff was entitled.

(4) Any opinion rendered by the medical negligence review

panel must state the grounds upon which it is based and must

further identify the persons, texts, or other authorities which

were consulted by the panel in reaching its conclusion, and any

opinion shall be admissible as prima facie evidence in any

subsequent court proceeding.

Section 64. Section 766.1062, Florida Statutes, is created

to read:

766.1062 Office of Presuit Screening Administration;

administration of medical negligence review panels.--

(1) There is created within the Department of Health the

Office of Presuit Screening Administration, which shall be

responsible for administering medical negligence review panels.

(2) The Office of Presuit Screening Administration shall

develop and maintain a database of physicians, attorneys, and

consumers to serve as members of presuit screening panels as

described in this section.

(3) The Office of Presuit Screening Administration shall

develop an application by September 1, 2003, that shall be

submitted in writing and via the Internet for physicians,

attorneys, and consumers to volunteer for the panels.

(4) For the purpose of funding for the Office of Presuit

Screening Administration, there is assessed:

(a) Against the defendant, a fee equal to 0.5 percent of

the total of any judgment or settlement in a medical malpractice

liability matter to be paid to the Department of Health within

30 days after the judgment becomes final or the settlement is

100

finalized.

101

(b) Against the claimants in a medical malpractice matter,

102

an aggregate fee of $50 to be paid to the Department of Health

103

at the time the notice of intent to initiate medical malpractice

104

litigation is provided as required by s. 766.1061(1).

105

106

Assessments collected by the Department of Health pursuant to

107

this subsection shall be deposited in the department's

108

Administrative Trust Fund and shall be used solely for the

109

operation of the office.

110

(5) There is hereby appropriated on a continuing basis

111

from the Administrative Trust Fund of the Department of Health

112

an amount necessary and such positions as may be determined by

113

the Department of Health to be required for the operation of the

114

Office of Presuit Screening Administration, provided that such

115

appropriation shall not exceed the amount of funds deposited in

116

such trust fund pursuant to subsection (4).

117

(6) The Department of Health may adopt administrative

118

rules to implement the provisions of ss. 766.1061-766.1064.

119

Section 65. Section 766.1063, Florida Statutes, is created

120

to read:

121

766.1063 Qualifications and membership of medical

122

negligence review panels.--

123

(1) Medical negligence review panels shall consist of

124

qualified individuals who volunteer to assume such

125

responsibility. Physicians, attorneys, and consumers who

126

volunteer for the panels shall serve on a panel, per panel

127

selection, for no longer than 2 calendar days or the review of

128

one medical negligence case, whichever is longer.

129

(2) Every person applying to serve on a panel shall

130

designate in advance any time period during which he or she will

131

not be available to serve on a panel. The Secretary of Health,

132

or his or her designee, shall make determinations where so

133

challenged by a possible panel appointee, and issue excuses

134

whereupon an undue burden or hardship would arise from a

135

person’s appointment to serve on a particular panel.

136

(3) In order to convene a medical negligence review panel,

137

the Office of Presuit Screening Administration shall randomly

138

select members for a panel as provided in subsection (8) from

139

among the available persons in the appropriate categories who

140

have not served on a panel in the past 12 months. If there are

141

no other potential panelists available, a panelist may be asked

142

to serve on another panel within 12 months.

143

(4) If a physician, attorney, or consumer is selected to

144

serve on a panel, he or she shall not be obligated to serve for

145

a period exceeding 2 days or for a period to complete the review

146

of one medical negligence case, whichever is longer.

147

(5) All persons serving on a panel shall receive

148

reimbursement for their travel expenses.

149

(6) A physician who is selected to serve on a panel:

150

(a) Shall receive credit for 20 hours of continuing

151

medical education for his or her service.

152

(b) Must reside and practice at least 50 miles from the

153

location of the injury alleged by the plaintiff.

154

155

malpractice liability against him or her within the preceding 5

156

years and no more than 10 claims of medical malpractice filed

157

against him or her within the preceding 3 years.

158

(d) Must have an active license with the Department of

159

Health and be in good standing with the appropriate regulatory

160

or licensing board.

161

(7) An attorney who is selected to serve on a panel:

162

(a) Shall receive credit for continuing legal education

163

and credit towards pro bono requirements for his or her service,

164

as may be provided by rules of the Florida Supreme Court.

165

(b) Must reside and practice at least 50 miles from the

166

location of the injury alleged by the plaintiff.

167

168

lawsuit within the preceding 5 years.

169

(d) Must be a member of The Florida Bar in good standing.

170

(8)(a) A medical negligence review panel shall be composed

171

of five persons, including:

172

1. One physician board certified in the same specialty as

173

the defendant physician.

174

2. One physician who is a general practitioner, family

175

practitioner, or an internist or serves as a full-time member of

176

the faculty of an accredited public or private medical school in

177

the state.

178

3. One attorney who has served as a plaintiff’s attorney

179

with 5 years' experience in the practice of law.

180

4. One attorney who has served as a defendant’s attorney

181

with 5 years' experience in the practice of law.

182

5. One consumer, who shall not have a professional or

183

financial relationship with either a health care provider or an

184

attorney.

185

(b) In cases with more than one physician defendant, the

186

plaintiff shall designate the subject areas in which both

187

physician members of the panel shall be board certified.

188

189

or potential conflict of interest must disclose such conflict of

190

interest prior to the hearing.

191

(d) A plaintiff or a defendant may challenge any panel

192

member for a conflict of interest and ask that the panelist be

193

replaced by the Office of Presuit Screening Administration. The

194

secretary of the Department of Health, or his or her designee,

195

shall make an expedient determination on such challenge. If the

196

challenge is upheld, a new member shall be randomly selected

197

from the same category as provided in subsection (3) within 10

198

days. In such case, the time in which a panel hearing may take

199

place shall be extended by 10 days beyond the timeframe

200

established in s. 766.1061.

201

(9) The Office of Presuit Screening Administration shall

202

provide an administrator for the panel who shall serve as the

203

chair of the panel. The chair is a nonvoting member of the panel

204

and shall be responsible for the collection of evidence during

205

the hearing and preparation of the written opinion of the panel.

206

(10) Members of the panel shall not be subpoenaed to

207

testify as witnesses in any subsequent court proceedings if the

208

purpose of calling a panel member is to challenge or question

209

facts about the hearing conducted by or the conclusions reached

210

by the medical negligence review panel in rendering its opinion.

211

(11) Members of a medical negligence review panel shall

212

have immunity from civil liability for all communications,

213

findings, opinions, and conclusions made in the course and scope

214

of their duties required in ss. 766.1061, 766.1063, and

215

766.1064.

216

Section 66. Section 766.1064, Florida Statutes, is created

217

to read:

218

766.1064 Hearings conducted by medical negligence review

219

panels; limitations upon liability; award of costs and

220

attorney’s fees in certain circumstances; attorneys must act in

221

good faith at hearing.--

222

(1) The claimant shall be allowed a total of 6 hours to

223

present his or her case. The defendants shall be allowed a total

224

of 6 hours to present their case. No hearing shall exceed a

225

total of 16 hours; however, the panel may hear the case over the

226

course of 2 calendar days.

227

(2) A medical negligence review panel shall, by a majority

228

vote for each defendant, make its findings regarding whether

229

each defendant met the appropriate standard of care, in addition

230

to the liability of each defendant, based on the preponderance

231

of the evidence. Such vote shall be recorded in the written

232

opinion of the panel.

233

(a) If a panel finds that the evidence does not support

234

the conclusion that the defendant or defendants failed to meet

235

the appropriate standard of care and do not have any liability

236

for the injury alleged, the defendant may, within 10 days,

237

request voluntary binding arbitration pursuant to s. 766.207.

238

(b) If a panel finds that the evidence supports the

239

conclusion that the defendant or defendants failed to meet the

240

appropriate standard of care and have liability for the injury

241

alleged, the parties may elect to have damages determined by

242

voluntary binding arbitration pursuant to s. 766.207.

243

244

the conclusion that the defendant or defendants failed to meet

245

the appropriate standard of care alleged by the plaintiff and

246

that there is no liability for the injury alleged and the

247

defendant does not request arbitration, or if a panel finds that

248

a defendant had liability for the injury alleged and either a

249

defendant or the plaintiff does not agree to voluntary binding

250

arbitration pursuant to s. 766.207, the claim shall proceed to

251

trial or to any available legal alternative, including, but not

252

limited to, offer of or demand for judgment under s. 768.79 or

253

offer of settlement under s. 45.061.

254

(d) If a panel is unable to agree as to the appropriate

255

standard of care and either a defendant or the plaintiff does

256

not agree to voluntary binding arbitration pursuant to s.

257

766.207, the claim shall proceed to trial or to any available

258

legal alternative, including, but not limited to, offer of or

259

demand for judgment under s. 768.79 or offer of settlement under

260

s. 45.061.

261

(3) Notwithstanding any other law to the contrary, if a

262

panel finds that the evidence does not support the conclusion

263

that the defendant or defendants failed to meet the appropriate

264

standard of care and do not have any liability for the injury

265

alleged, the plaintiff shall pay all costs and attorney's fees

266

if the plaintiff proceeds to trial and does not prevail at

267

trial.

268

(4) Attorneys who represent the plaintiff or defendant are

269

required to act in good faith relating to the hearing before the

270

medical negligence review panel. Attorneys who are not found to

271

make a good faith effort to provide all relevant evidence to the

272

panel during the hearing shall be barred in any subsequent court

273

proceedings from claiming the opinion of the panel should not be

274

considered because the panel did not consider all relevant

275

evidence.

276

277

================= T I T L E A M E N D M E N T =================

278

Remove line 256, and insert:

279

in medical malpractice actions; creating s. 766.1061, F.S.;

280

providing for the creation of medical negligence review panels

281

to review proposed medical malpractice complaints; providing

282

that copies of notice of intent to initiate medical malpractice

283

litigation be sent to the Office of Presuit Screening

284

Administration; providing duties of the medical negligence

285

review panels; providing for alternative determinations from

286

which the panel may select; providing that the finding of the

287

panel is admissible as prima facie evidence in subsequent court

288

proceedings; creating s. 766.1062, F.S.; creating the Office of

289

Presuit Screening Administration within the Department of

290

Health; providing powers, duties, and responsibilities of the

291

office; providing certain assessments for the funding of the

292

office; providing for the payment, collection, deposit, and

293

appropriation of the assessments; providing rule adoption

294

authority to the Department of Health; creating s. 766.1063,

295

F.S.; providing for the membership, appointment, and member

296

qualifications of medical negligence review panels; providing

297

for reimbursement of certain expenses; providing for the award

298

of continuing education and other credits to members of such

299

panels; providing for panel administrators; providing a

300

privilege against forced testimony by panel members; providing

301

immunity from civil liability for panel members; creating s.

302

766.1064, F.S.; providing procedures for hearings before medical

303

negligence review panels; providing that panel decisions shall

304

be by majority vote of the members; providing for an award of

305

costs and attorney's fees in certain cases; creating s.

306

766.1067,