Amendment Text: 503329

HOUSE AMENDMENT

Bill No. HB 63B

CHAMBER ACTION

Senate

House

Representative Clarke offered the following:

Amendment

Remove line(s) 1883-2188, and insert:

business in this state to make those periodic payments on its

behalf. Upon a joint petition by the defendant and the company

that is contractually obligated to make the periodic payments,

the court shall discharge the defendant from any further

obligations to the claimant for those future economic and future

noneconomic damages that are to be paid by that company by

periodic payments.

defendant or company that is obligated to make periodic payments

pursuant to this section; however, if, upon petition by a

claimant who is receiving periodic payments pursuant to this

section, the court finds that there is substantial, competent

evidence that the defendant that is responsible for the periodic

payments cannot adequately ensure full and continuous payments

thereof, and that doing so is in the best interest of the

claimant, the court may require the defendant or the company

that is obligated to make the periodic payments to provide such

additional financial security as the court determines to be

reasonable under the circumstances.

(d) The provision for the periodic payments must specify

the recipient or recipients of the payments, the address to

which the payments are to be delivered, and theamount and

intervals of the payments; however, in any one year, any payment

or payments may not exceed the amount intended by the trier of

fact to be awarded each year, offset for collateral sources. A

periodic payment may not be accelerated, deferred, increased, or

decreased, except by court order based upon the mutual consent

and agreement of the claimant, the defendant, whether or not

discharged, and the company that is obligated to make the

periodic payments, if any; nor may the claimant sell, mortgage,

encumber, or anticipate the periodic payments or any part

thereof, by assignment or otherwise.~~The defendant shall be~~

~~required to post a bond or security or otherwise to assure full~~

~~payment of these damages awarded. A bond is not adequate unless~~

~~it is written by a company authorized to do business in this~~

~~state and is rated A+ by Best's. If the defendant is unable to~~

~~adequately assure full payment of the damages, all damages,~~

~~reduced to present value, shall be paid to the claimant in a~~

~~lump sum. No bond may be canceled or be subject to cancellation~~

~~unless at least 60 days' advance written notice is filed with~~

~~the court and the claimant. Upon termination of periodic~~

~~payments, the security, or so much as remains, shall be returned~~

~~to the defendant.~~

~~(c) The provision for payment of future damages by~~

~~periodic payments shall specify the recipient or recipients of~~

~~the payments, the dollar amounts of the payments, the interval~~

~~between payments, and the number of payments or the period of~~

~~time over which payments shall be made.~~

Section 39. Subsections (2) and (3) of section 766.203,

Florida Statutes, are amended to read:

766.203 Presuit investigation of medical negligence claims

and defenses by prospective parties.--

(2) Prior to issuing notification of intent to initiate

medical malpractice litigation pursuant to s. 766.106, the

claimant shall conduct an investigation to ascertain that there

are reasonable grounds to believe that:

(a) Any named defendant in the litigation was negligent in

the care or treatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical

negligence litigation shall be provided by the claimant's

submission of a verified written medical expert opinion from a

medical expert as defined in s. 766.202(5), at the time the

notice of intent to initiate litigation is mailed, which

statement shall corroborate reasonable grounds to support the

claim of medical negligence. This opinion and statement are

subject to discovery.

(3) Prior to issuing its response to the claimant's notice

of intent to initiate litigation, during the time period for

response authorized pursuant to s. 766.106, the defendant or the

defendant's insurer or self-insurer shall conduct an

investigation to ascertain whether there are reasonable grounds

to believe that:

(a) The defendant was negligent in the care or treatment

of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of lack of reasonable grounds for medical

negligence litigation shall be provided with any response

rejecting the claim by the defendant's submission of a verified

written medical expert opinion from a medical expert as defined

in s. 766.202(5), at the time the response rejecting the claim

is mailed, which statement shall corroborate reasonable grounds

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for lack of negligent injury sufficient to support the response

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denying negligent injury. This opinion and statement are subject

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to discovery.

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Section 40. Subsections (2), (3), and (7) of section

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766.207, Florida Statutes, are amended to read:

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766.207 Voluntary binding arbitration of medical

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negligence claims.--

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(2) Upon the completion of presuit investigation with

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preliminary reasonable grounds for a medical negligence claim

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intact, the parties may elect to have damages determined by an

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arbitration panel. Such election may be initiated by either

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party by serving a request for voluntary binding arbitration of

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damages within 18090days after service of the claimant's

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notice of intent to initiate litigation upon the defendant. The

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evidentiary standards for voluntary binding arbitration of

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medical negligence claims shall be as provided in ss.

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120.569(2)(g) and 120.57(1)(c).

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(3) Upon receipt of a party's request for such

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arbitration, the opposing party may accept the offer of

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voluntary binding arbitration within 30 days. However, in no

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event shall the defendant be required to respond to the request

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for arbitration sooner than 18090days after service of the

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notice of intent to initiate litigation under s. 766.106. Such

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acceptance within the time period provided by this subsection

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shall be a binding commitment to comply with the decision of the

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arbitration panel. The liability of any insurer shall be subject

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to any applicable insurance policy limits.

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(7) Arbitration pursuant to this section shall preclude

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recourse to any other remedy by the claimant against any

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participating defendant, and shall be undertaken with the

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understanding that damages shall be awarded as provided by

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general law, including the Wrongful Death Act, subject to the

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following limitations:

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(a) Net economic damages shall be awardable, including,

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but not limited to, past and future medical expenses and 80

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percent of wage loss and loss of earning capacity, offset by any

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collateral source payments.

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(b) Noneconomic damages shall be limited to a maximum of

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$250,000 per incident, and shall be calculated on a percentage

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basis with respect to capacity to enjoy life, so that a finding

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that the claimant's injuries resulted in a 50-percent reduction

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in his or her capacity to enjoy life would warrant an award of

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not more than $125,000 noneconomic damages.

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be paid by periodic payments pursuant to s. 766.202(8) and shall

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be offset by future collateral source payments.

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(d) Punitive damages shall not be awarded.

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(e) The defendant shall be responsible for the payment of

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interest on all accrued damages with respect to which interest

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would be awarded at trial.

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(f) The defendant shall pay the claimant's reasonable

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attorney's fees and costs, as determined by the arbitration

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panel, but in no event more than 15 percent of the award,

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reduced to present value.

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(g) The defendant shall pay all the costs of the

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arbitration proceeding and the fees of all the arbitrators other

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than the administrative law judge.

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(h) Each defendant who submits to arbitration under this

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section shall be jointly and severally liable for all damages

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assessed pursuant to this section.

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(i) The defendant's obligation to pay the claimant's

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damages shall be for the purpose of arbitration under this

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section only. A defendant's or claimant's offer to arbitrate

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shall not be used in evidence or in argument during any

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subsequent litigation of the claim following the rejection

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thereof.

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(j) The fact of making or accepting an offer to arbitrate

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shall not be admissible as evidence of liability in any

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collateral or subsequent proceeding on the claim.

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(k) Any offer by a claimant to arbitrate must be made to

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each defendant against whom the claimant has made a claim. Any

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offer by a defendant to arbitrate must be made to each claimant

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who has joined in the notice of intent to initiate litigation,

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as provided in s. 766.106. A defendant who rejects a claimant's

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offer to arbitrate shall be subject to the provisions of s.

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766.209(3). A claimant who rejects a defendant's offer to

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arbitrate shall be subject to the provisions of s. 766.209(4).

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(l) The hearing shall be conducted by all of the

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arbitrators, but a majority may determine any question of fact

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and render a final decision. The chief arbitrator shall decide

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all evidentiary matters.

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The provisions of this subsection shall not preclude settlement

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at any time by mutual agreement of the parties.

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Section 41. Section 766.213, Florida Statutes, is created

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to read:

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766.213 Periodic payment of damages upon death of

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claimant.--Any portion of a periodic payment made pursuant to a

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settlement or jury award or pursuant to mediation or arbitration

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which is attributable to medical expenses that have not yet been

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incurred shall terminate upon the death of the claimant. Any

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outstanding medical expenses incurred prior to the death of the

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claimant shall be paid from that portion of the periodic payment

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attributable to medical expenses.

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Section 42. Subsection (4) is added to section 768.041,

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Florida Statutes, to read:

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768.041 Release or covenant not to sue.--

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(4)(a) At trial pursuant to a suit filed under chapter

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766, or at trial pursuant to s. 766.209, if any defendant shows

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the court that the plaintiff, or his or her legal

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representative, has delivered a written release or covenant not

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to sue to any person in partial satisfaction of the damages sued

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for, the court shall set off this amount from the total amount

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

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final judgment.

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(b) The amount of the setoff pursuant to this subsection

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shall include all sums received by the plaintiff, including

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

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Section 43. Section 768.77, Florida Statutes, is amended

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to read:

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768.77 Itemized verdict.--

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(1) Except as provided in subsection (2),in any action to

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which this part applies in which the trier of fact determines

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that liability exists on the part of the defendant, the trier of

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fact shall, as a part of the verdict, itemize the amounts to be

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awarded to the claimant into the following categories of

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damages:

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(a)~~(1)~~Amounts intended to compensate the claimant for

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economic losses;

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(b)~~(2)~~Amounts intended to compensate the claimant for

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noneconomic losses; and

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(c)~~(3)~~Amounts awarded to the claimant for punitive

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damages, if applicable.

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(2) In any action for damages based on personal injury or

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wrongful death arising out of medical malpractice, whether in

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tort or contract, to which this part applies in which the trier

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of fact determines that liability exists on the part of the

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defendant, the trier of fact shall, as a part of the verdict,

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itemize the amounts to be awarded to the claimant into the

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following categories of damages:

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(a) Amounts intended to compensate the claimant for:

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1. Past economic losses; and

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2. Future economic losses, not reduced to present value,

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and the number of years or part thereof which the award is

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intended to cover;

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(b) Amounts intended to compensate the claimant for:

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1. Past noneconomic losses; and

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2. Future noneconomic losses and the number of years or

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part thereof which the award is intended to cover; and

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if applicable.

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Section 44. Subsection (2) and paragraph (a) of subsection

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(1) of section 768.78, Florida Statutes, is amended to read:

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768.78 Alternative methods of payment of damage awards.--

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(1)(a) In any action to which this part applies in which

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the court determines that an award to compensate the claimant

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includes future economic losses which exceed $250,000, payment

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of amounts intended to compensate the claimant for these losses

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shall be made by one of the following means, unless an

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alternative method of payment of damages is provided in this

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section:

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1. The defendant may make a lump-sum payment for all

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damages so assessed, with future economic losses and expenses

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reduced to present value; or

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2. Subject to the provisions of this subsection, the court

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shall, at the request of either party, unless the court

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determines that manifest injustice would result to any party,

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enter a judgment ordering future economic damages, as itemized

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pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid in

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whole or in part by periodic payments rather than by a lump-sum

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payment.

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(2)(a) In any action for damages based on personal injury

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or wrongful death arising out of medical malpractice, whether in

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tort or contract, in which the trier of fact makes an award to

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compensate the claimant for future economic or future

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noneconomiclosses, payment of amounts intended to compensate

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the claimant for these futurelosses shall be made by one of the

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following means:

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1. The defendant may elect to make a lump-sum payment for

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either or both the~~all damages so assessed, with~~ future economic

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and future noneconomic losses after offset for collateral

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sources and after having been~~and expenses~~reduced to present

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value by the court based upon competent, substantial evidence

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presented to it by the parties; or

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2. The defendant, if determined by the court to be

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financially capable or adequately insured, may elect to use

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periodic payments to satisfy in whole or in part the assessed

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future economic and future noneconomic losses awarded by the

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trier of fact after offset for collateral sources for so long as

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the claimant lives or the condition for which the award was made

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persists, whichever period may be shorter, but without regard

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for the number of years awarded by the trier of fact. The court

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shall review and, unless clearly unresponsive to the future

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needs of the claimant, approve the amounts and schedule of the

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periodic payments proposed by the defendant. Upon motion of the

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defendant, whether or not discharged from any obligation to make

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the payments pursuant to paragraph (b), and the establishment by

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substantial, competent evidence of either the death of the

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claimant or that the condition for which the award was made no

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longer persists, the court shall enter an order terminating the

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periodic payments effective as of the date of the death of the

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claimant or the date the condition for which the award was made

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no longer persisted.

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(b) A defendant that elects to make periodic payments of

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either or both future economic and future noneconomic losses may

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contractually obligate a company that is authorized to do

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business in this state to make those periodic payments on its

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behalf. Upon a joint petition by the defendant and the company

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that is contractually obligated to make the periodic payments,

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the court shall discharge the defendant from any further

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obligations to the claimant for those future economic and future

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noneconomic damages that are to be paid by that company by

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periodic payments.

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payments pursuant hereto, the claimant may request that the

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court modify the periodic payments to reasonably provide for

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attorney's fees; however, a court may not make any such

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modification that would increase the amount the defendant would

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have been obligated to pay had no such adjustment been made.

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(d) A bond or security may not be required of any

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