HB 0063B 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing
3	legislative findings; amending s. 46.015, F.S.; revising
4	requirements for setoffs against damages in medical
5	malpractice actions if there is a written release or
6	covenant not to sue; amending s. 395.0191, F.S.; deleting
7	requirement that persons act in good faith to avoid
8	liability or discipline for their actions regarding the
9	awarding of staff membership or clinical privileges;
10	creating s. 395.1012, F.S.; requiring hospitals,
11	ambulatory surgical centers, and mobile surgical
12	facilities to establish patient safety plans and
13	committees; creating s. 395.1051, F.S.; providing for
14	notification of injuries in a hospital, ambulatory
15	surgical center, or mobile surgical facility; amending s.
16	415.1111, F.S.; providing that such section shall not
17	apply to actions involving allegations of medical
18	malpractice by a hospital; amending s. 456.039, F.S.;
19	providing additional information required to be furnished
20	to the Department of Health for licensure purposes;
21	amending s. 456.041, F.S.; requiring additional
22	information to be included in health care practitioner
23	profiles; providing for fines; revising requirements for
24	the reporting of paid liability claims; amending s.
25	456.042, F.S.; requiring health care practitioner profiles
26	to be updated within a specific time period; amending s.
27	456.049, F.S.; revising requirements for the reporting of
28	paid liability claims; amending s. 456.051, F.S.;
29	establishing the responsibility of the Department of
30	Health to provide reports of professional liability
31	actions and bankruptcies; requiring the department to
32	include such reports in a practitioner's profile within a
33	specified period; amending s. 456.057, F.S.; authorizing
34	the Department of Health to utilize subpoenas to obtain
35	patient records without patients' consent under certain
36	circumstances; amending s. 456.063, F.S.; providing for
37	adopting rules to implement requirements for reporting
38	allegations of sexual misconduct; amending s. 456.072,
39	F.S.; authorizing the Department of Health to determine
40	administrative costs in disciplinary actions; amending s.
41	456.073, F.S.; extending the time for the Department of
42	Health to refer a request for an administrative hearing;
43	amending s. 456.077, F.S.; revising provisions relating to
44	designation of certain citation violations; amending s.
45	456.078, F.S.; revising provisions relating to designation
46	of certain mediation offenses; creating s. 456.085, F.S.;
47	providing for notification of an injury by a physician;
48	amending s. 458.320, F.S., relating to financial
49	responsibility requirements for medical physicians;
50	requiring the department to suspend the license of a
51	medical physician who has not paid, up to the amounts
52	required by any applicable financial responsibility
53	provision, any outstanding judgment, arbitration award,
54	other order, or settlement; amending s. 458.331, F.S.;
55	increasing the amount of paid liability claims requiring
56	investigation by the Department of Health; revising the
57	definition of "repeated malpractice" to conform; creating
58	s. 458.3311, F.S.; establishing emergency procedures for
59	disciplinary actions; amending s. 459.0085, F.S., relating
60	to financial responsibility requirements for osteopathic
61	physicians; requiring that the department suspend the
62	license of an osteopathic physician who has not paid, up
63	to the amounts required by any applicable financial
64	responsibility provision, any outstanding judgment,
65	arbitration award, other order, or settlement; amending s.
66	459.015, F.S.; increasing the amount of paid liability
67	claims requiring investigation by the Department of
68	Health; revising the definition of "repeated malpractice"
69	to conform; creating s. 459.0151, F.S.; establishing
70	emergency procedures for disciplinary actions; amending s.
71	461.013, F.S.; increasing the amount of paid liability
72	claims requiring investigation by the Department of
73	Health; revising the definition of "repeated malpractice"
74	to conform; amending s. 624.462, F.S.; authorizing health
75	care providers to form a commercial self-insurance fund;
76	amending s. 627.062, F.S.; providing additional
77	requirements for medical malpractice insurance rate
78	filings; providing that portions of judgments and
79	settlements entered against a medical malpractice insurer
80	for badfaith actions or for punitive damages against the
81	insurer, as well as related taxable costs and attorney's
82	fees, may not be included in an insurer's base rate;
83	providing for review of rate filings by the Office of
84	Insurance Regulation for excessive, inadequate, or
85	unfairly discriminatory rates; requiring insurers to apply
86	a discount based on the health care provider's loss
87	experience; requiring annual rate filings; requiring
88	medical malpractice insurers to make rate filings
89	effective January 1, 2004, which reflect the impact of
90	this act; providing requirements for rate deviation by
91	insurers; authorizing adjustments to filed rates in the
92	event a provision of this act is declared invalid by a
93	court of competent jurisdiction; creating s. 627.0662,
94	F.S.; providing definitions; requiring each medical
95	liability insurer to report certain information to the
96	Office of Insurance Regulation; providing for
97	determination of whether excessive profit has been
98	realized; requiring return of excessive amounts; amending
99	s. 627.357, F.S.; deleting the prohibition against
100	formation of medical malpractice self-insurance funds;
101	providing requirements to form a self-insurance fund;
102	providing rulemaking authority to the Financial Services
103	Commission; creating s. 627.3575, F.S.; creating the
104	Health Care Professional Liability Insurance Facility;
105	providing purpose; providing for governance and powers;
106	providing eligibility requirements; providing for premiums
107	and assessments; providing for regulation; providing rule
108	adoption authority to the Financial Services Commission;
109	providing applicability; specifying duties of the
110	Department of Health; providing for debt and regulation
111	thereof; amending s. 627.4147, F.S.; requiring earlier
112	notice of decisions to not renew certain insurance
113	policies to insureds under certain circumstances;
114	requiring prior notification of a rate increase; amending
115	s. 627.912, F.S.; requiring certain claims information to
116	be filed with the Office of Insurance Regulation and the
117	Department of Health; providing for rulemaking by the
118	Financial Services Commission; increasing the limit on a
119	fine; creating s. 627.9121, F.S.; requiring certain
120	information relating to medical malpractice to be reported
121	to the Office of Insurance Regulation; providing for
122	enforcement; amending s. 766.106, F.S.; requiring the
123	inclusion of additional information in presuit notices
124	provided to defendants; extending the time period for the
125	presuit screening period; providing that liability is
126	deemed admitted when an offer is made by a defendant to
127	arbitrate providing conditions for causes of action for
128	bad faith against insurers providing coverage for medical
129	negligence; revising provisions relating to a claimant's
130	period to file suit after rejection of a prospective
131	defendant's offer to admit liability and for arbitration
132	on the issue of damages; specifying consequences of
133	failure to cooperate on the part of any party during the
134	presuit investigation; providing factors to be considered
135	with respect to certain claims against bad faith against
136	an insurer; revising requirements for presuit notice and
137	insurer or self-insurer response to a claim; permitting
138	written questions during informal discovery; requiring a
139	claimant to execute a medical release to authorize
140	defendants in medical negligence actions to take unsworn
141	statements from a claimant's treating physicians;
142	providing for informal discovery without notice; imposing
143	limits on such statements; creating s. 766.1065, F.S.;
144	requiring parties to provide certain information to
145	parties without request; authorizing the issuance of
146	subpoenas without case numbers; requiring that parties and
147	certain experts be made available for deposition; creating
148	s. 766.1067, F.S.; providing for mandatory mediation in
149	medical negligence causes of action; creating s. 766.118,
150	F.S.; providing a limitation on noneconomic damages which
151	can be awarded in causes of action involving medical
152	negligence; amending s. 766.202, F.S.; redefining the
153	terms "economic damages," "medical expert," "noneconomic
154	damages," and "periodic payment"; extending the
155	definitions of economic and noneconomic damages to include
156	any such damages recoverable under the Wrongful Death Act
157	or general law; providing requirements for medical
158	experts; providing for periodic payments for future
159	noneconomic damages; revising regulations of periodic
160	payments; amending s. 766.203, F.S.; providing for
161	discovery of opinions and statements tendered during
162	presuit investigation; amending s. 766.207, F.S.;
163	conforming provisions to the extension in the time period
164	for presuit investigation; providing for the applicability
165	of the Wrongful Death Act and general law to arbitration
166	awards; creating s. 766.213, F.S.; providing for the
167	termination of periodic payments for unincurred medical
168	expenses upon the death of the claimant; providing for the
169	payment of medical expenses incurred prior to the death of
170	the claimant; amending s. 768.041, F.S.; revising
171	requirements for setoffs against damages in medical
172	malpractice actions if there is a written release or
173	covenant not to sue; amending s. 768.77, F.S.; prescribing
174	a method for itemization of specific categories of damages
175	awarded in medical malpractice actions; amending s.
176	768.78, F.S.; correcting a cross reference; providing that
177	a defendant may elect to make lump sum payments rather
178	than periodic payments for either or both future economic
179	and noneconomic damages; authorizing the payment of
180	certain losses for a shorter period of time under certain
181	circumstances; providing for modification of periodic
182	payments or for requiring additional security by order of
183	the court under certain circumstances; amending s. 768.81,
184	F.S.; providing that a defendant's liability for damages
185	in medical negligence cases is several only; creating s.
186	1004.08, F.S.; requiring patient safety instruction for
187	certain students in public schools, colleges, and
188	universities; creating s. 1005.07, F.S.; requiring patient
189	safety instruction for certain students in nonpublic
190	schools, colleges, and universities; requiring the
191	Department of Health to study the efficacy and
192	constitutionality of medical review panels; requiring a
193	report; directing the Agency for Health Care
194	Administration to conduct or contract for a study to
195	determine what information to provide to the public
196	comparing hospitals, based on inpatient quality indicators
197	developed by the federal Agency for Healthcare Research
198	and Quality; requiring a report by the Agency for Health
199	Care Administration regarding the establishment of a
200	Patient Safety Authority; specifying elements of the
201	report; requiring the Office of Program Policy Analysis
202	and Government Accountability to study and report to the
203	Legislature on requirements for coverage by the Florida
204	Birth-Related Neurological Injury Compensation
205	Association; providing civil immunity for certain
206	participants in quality improvement processes; requiring
207	the Office of Program Policy Analysis and Government
208	Accountability and the Office of the Auditor General to
209	conduct an audit of the Department of Health's health care
210	practitioner disciplinary process and certain closed
211	claims and to report to the Legislature; creating a
212	workgroup to study the health care practitioner
213	disciplinary process; providing for workgroup membership;
214	providing that the workgroup deliver its report by January
215	1, 2004; providing severability; providing for
216	construction of the act in pari materia with laws enacted
217	during the 2003 Regular Session or the 2003 Special
218	Session A of the Legislature; providing an effective date.
219
220	Be It Enacted by the Legislature of the State of Florida:
221
222	Section 1. Findings.--
223	(1) The Legislature finds that Florida is in the midst of
224	a medical malpractice insurance crisis of unprecedented
225	magnitude.
226	(2) The Legislature finds that this crisis threatens the
227	quality and availability of health care for all Florida
228	citizens.
229	(3) The Legislature finds that the rapidly growing
230	population and the changing demographics of Florida make it
231	imperative that students continue to choose Florida as the place
232	they will receive their medical educations and practice
233	medicine.
234	(4) The Legislature finds that Florida is among the states
235	with the highest medical malpractice insurance premiums in the
236	nation.
237	(5) The Legislature finds that the cost of medical
238	malpractice insurance has increased dramatically during the past
239	decade and both the increase and the current cost are
240	substantially higher than the national average.
241	(6) The Legislature finds that the increase in medical
242	malpractice liability insurance rates is forcing physicians to
243	practice medicine without professional liability insurance, to
244	leave Florida, to not perform high-risk procedures, or to retire
245	early from the practice of medicine.
246	(7) The Legislature finds that there are certain elements
247	of damage presently recoverable that have no monetary value,
248	except on a purely arbitrary basis, while other elements of
249	damage are either easily measured on a monetary basis or reflect
250	ultimate monetary loss.
251	(8) The Governor created the Governor's Select Task Force
252	on Healthcare Professional Liability Insurance to study and make
253	recommendations to address these problems.
254	(9) The Legislature has reviewed the findings and
255	recommendations of the Governor's Select Task Force on
256	Healthcare Professional Liability Insurance.
257	(10) The Legislature finds that the Governor's Select Task
258	Force on Healthcare Professional Liability Insurance has
259	established that a medical malpractice crisis exists in the
260	State of Florida which can be alleviated by the adoption of
261	comprehensive legislatively enacted reforms.
262	(11) The Legislature finds that making high-quality health
263	care available to the citizens of this state is an overwhelming
264	public necessity.
265	(12) The Legislature finds that ensuring that physicians
266	continue to practice in Florida is an overwhelming public
267	necessity.
268	(13) The Legislature finds that ensuring the availability
269	of affordable professional liability insurance for physicians is
270	an overwhelming public necessity.
271	(14) The Legislature finds, based upon the findings and
272	recommendations of the Governor's Select Task Force on
273	Healthcare Professional Liability Insurance, the findings and
274	recommendations of various study groups throughout the nation,
275	and the experience of other states, that the overwhelming public
276	necessities of making quality health care available to the
277	citizens of this state, of ensuring that physicians continue to
278	practice in Florida, and of ensuring that those physicians have
279	the opportunity to purchase affordable professional liability
280	insurance cannot be met unless a cap on noneconomic damages in
281	an amount no higher than $250,000 is imposed.
282	(15) The Legislature finds that the high cost of medical
283	malpractice claims can be substantially alleviated by imposing a
284	limitation on noneconomic damages in medical malpractice
285	actions.
286	(16) The Legislature further finds that there is no
287	alternative measure of accomplishing such result without
288	imposing even greater limits upon the ability of persons to
289	recover damages for medical malpractice.
290	(17) The Legislature finds that the provisions of this act
291	are naturally and logically connected to each other and to the
292	purpose of making quality health care available to the citizens
293	of Florida.
294	(18) The Legislature finds that each of the provisions of
295	this act is necessary to alleviate the crisis relating to
296	medical malpractice insurance.
297	Section 2. Subsection (4) is added to section 46.015,
298	Florida Statutes, to read:
299	46.015 Release of parties.--
300	(4)(a) At trial pursuant to a suit filed under chapter 766
301	or pursuant to s. 766.209, if any defendant shows the court that
302	the plaintiff, or his or her legal representative, has delivered
303	a written release or covenant not to sue to any person in
304	partial satisfaction of the damages sued for, the court shall
305	setoff this amount from the total amount of the damages set
306	forth in the verdict and before entry of the final judgment.
307	(b) The amount of any set off under this subsection shall
308	include all sums received by the plaintiff, including economic
309	and noneconomic damages, costs, and attorney's fees.
310	Section 3. Subsection (7) of section 395.0191, Florida
311	Statutes, is amended to read:
312	395.0191 Staff membership and clinical privileges.--
313	(7) There shall be no monetary liability on the part of,
314	and no cause of action for injunctive relief ordamages shall
315	arise against, any licensed facility, its governing board or
316	governing board members, medical staff, or disciplinary board or
317	against its agents, investigators, witnesses, or employees, or
318	against any other person, for any action arising out of or
319	related to carrying out the provisions of this section, absent
320	taken in good faith and without intentional fraud in carrying
321	out the provisions of this section.
322	Section 4. Section 395.1012, Florida Statutes, is created
323	to read:
324	395.1012 Patient safety.--
325	(1) Each licensed facility shall adopt a patient safety
326	plan. A plan adopted to implement the requirements of 42 C.F.R.
327	s. 482.21 shall be deemed to comply with this requirement.
328	(2) Each licensed facility shall appoint a patient safety
329	officer and a patient safety committee, which shall include at
330	least one person who is neither employed by nor practicing in
331	the facility, for the purpose of promoting the health and safety
332	of patients, reviewing and evaluating the quality of patient
333	safety measures used by the facility, and assisting in the
334	implementation of the facility patient safety plan.
335	Section 5. Section 395.1051, Florida Statutes, is created
336	to read:
337	395.1051 Duty to notify patients.--Every licensed facility
338	shall inform each patient, or an individual identified pursuant
339	to s. 765.401(1), in person about unanticipated outcomes of care
340	that result in serious harm to the patient. Notification of
341	outcomes of care that result in harm to the patient under this
342	section shall not constitute an acknowledgement or admission of
343	liability, nor can it be introduced as evidence in any civil
344	lawsuit.
345	Section 6. Section 415.1111, Florida Statutes, is amended
346	to read:
347	415.1111 Civil actions.--A vulnerable adult who has been
348	abused, neglected, or exploited as specified in this chapter has
349	a cause of action against any perpetrator and may recover actual
350	and punitive damages for such abuse, neglect, or exploitation.
351	The action may be brought by the vulnerable adult, or that
352	person's guardian, by a person or organization acting on behalf
353	of the vulnerable adult with the consent of that person or that
354	person's guardian, or by the personal representative of the
355	estate of a deceased victim without regard to whether the cause
356	of death resulted from the abuse, neglect, or exploitation. The
357	action may be brought in any court of competent jurisdiction to
358	enforce such action and to recover actual and punitive damages
359	for any deprivation of or infringement on the rights of a
360	vulnerable adult. A party who prevails in any such action may be
361	entitled to recover reasonable attorney's fees, costs of the
362	action, and damages. The remedies provided in this section are
363	in addition to and cumulative with other legal and
364	administrative remedies available to a vulnerable adult.
365	Notwithstanding the foregoing, any civil action for damages
366	against any licensee or entity who establishes, controls,
367	conducts, manages, or operates a facility licensed under part II
368	of chapter 400 relating to its operation of the licensed
369	facility shall be brought pursuant to s. 400.023, or against any
370	licensee or entity who establishes, controls, conducts, manages,
371	or operates a facility licensed under part III of chapter 400
372	relating to its operation of the licensed facility shall be
373	brought pursuant to s. 400.429. Such licensee or entity shall
374	not be vicariously liable for the acts or omissions of its
375	employees or agents or any other third party in an action
376	brought under this section. Notwithstanding the provisions of
377	this section, any claim that qualifies as a claim for medical
378	malpractice, as defined in s. 766.106(1)(a), against any
379	licensee or entity who establishes, controls, conducts, manages,
380	or operates a facility licensed under chapter 395 shall be
381	brought pursuant to chapter 766.
382	Section 7. Paragraph (a) of subsection (1) of section
383	456.039, Florida Statutes, is amended to read:
384	456.039 Designated health care professionals; information
385	required for licensure.--
386	(1) Each person who applies for initial licensure as a
387	physician under chapter 458, chapter 459, chapter 460, or
388	chapter 461, except a person applying for registration pursuant
389	to ss. 458.345 and 459.021, must, at the time of application,
390	and each physician who applies for license renewal under chapter
391	458, chapter 459, chapter 460, or chapter 461, except a person
392	registered pursuant to ss. 458.345 and 459.021, must, in
393	conjunction with the renewal of such license and under
394	procedures adopted by the Department of Health, and in addition
395	to any other information that may be required from the
396	applicant, furnish the following information to the Department
397	of Health:
398	(a)1. The name of each medical school that the applicant
399	has attended, with the dates of attendance and the date of
400	graduation, and a description of all graduate medical education
401	completed by the applicant, excluding any coursework taken to
402	satisfy medical licensure continuing education requirements.
403	2. The name of each hospital at which the applicant has
404	privileges.
405	3. The address at which the applicant will primarily
406	conduct his or her practice.
407	4. Any certification that the applicant has received from
408	a specialty board that is recognized by the board to which the
409	applicant is applying.
410	5. The year that the applicant began practicing medicine.
411	6. Any appointment to the faculty of a medical school
412	which the applicant currently holds and an indication as to
413	whether the applicant has had the responsibility for graduate
414	medical education within the most recent 10 years.
415	7. A description of any criminal offense of which the
416	applicant has been found guilty, regardless of whether
417	adjudication of guilt was withheld, or to which the applicant
418	has pled guilty or nolo contendere. A criminal offense committed
419	in another jurisdiction which would have been a felony or
420	misdemeanor if committed in this state must be reported. If the
421	applicant indicates that a criminal offense is under appeal and
422	submits a copy of the notice for appeal of that criminal
423	offense, the department must state that the criminal offense is
424	under appeal if the criminal offense is reported in the
425	applicant's profile. If the applicant indicates to the
426	department that a criminal offense is under appeal, the
427	applicant must, upon disposition of the appeal, submit to the
428	department a copy of the final written order of disposition.
429	8. A description of any final disciplinary action taken
430	within the previous 10 years against the applicant by the agency
431	regulating the profession that the applicant is or has been
432	licensed to practice, whether in this state or in any other
433	jurisdiction, by a specialty board that is recognized by the
434	American Board of Medical Specialties, the American Osteopathic
435	Association, or a similar national organization, or by a
436	licensed hospital, health maintenance organization, prepaid
437	health clinic, ambulatory surgical center, or nursing home.
438	Disciplinary action includes resignation from or nonrenewal of
439	medical staff membership or the restriction of privileges at a
440	licensed hospital, health maintenance organization, prepaid
441	health clinic, ambulatory surgical center, or nursing home taken
442	in lieu of or in settlement of a pending disciplinary case
443	related to competence or character. If the applicant indicates
444	that the disciplinary action is under appeal and submits a copy
445	of the document initiating an appeal of the disciplinary action,
446	the department must state that the disciplinary action is under
447	appeal if the disciplinary action is reported in the applicant's
448	profile.
449	9. Relevant professional qualifications as defined by the
450	applicable board.
451	Section 8. Section 456.041, Florida Statutes, is amended
452	to read:
453	456.041 Practitioner profile; creation.--
454	(1)(a)Beginning July 1, 1999, the Department of Health
455	shall compile the information submitted pursuant to s. 456.039
456	into a practitioner profile of the applicant submitting the
457	information, except that the Department of Health may develop a
458	format to compile uniformly any information submitted under s.
459	456.039(4)(b). Beginning July 1, 2001, the Department of Health
460	may, and beginning July 1, 2004, shall,compile the information
461	submitted pursuant to s. 456.0391 into a practitioner profile of
462	the applicant submitting the information.
463	(b) Each practitioner licensed under chapter 458 or
464	chapter 459 must report to the Department of Health and the
465	Board of Medicine or the Board of Osteopathic Medicine,
466	respectively, all final disciplinary actions, sanctions by a
467	governmental agency or a facility or entity licensed under state
468	law, and claims or actions, as provided under s. 456.051, to
469	which he or she is subjected no later than 15 calendar days
470	after such action or sanction is imposed. Failure to submit the
471	requisite information within 15 calendar days in accordance with
472	this paragraph shall subject the practitioner to discipline by
473	the Board of Medicine or the Board of Osteopathic Medicine and a
474	fine of $100 for each day that the information is not submitted
475	after the expiration of the 15-day reporting period.
476	(c) Within 15 days after receiving a report under
477	paragraph (b), the department shall update the practitioner's
478	profile in accordance with the requirements of subsection (7).
479	(2) On the profile published under subsection (1), the
480	department shall indicate whetherifthe information provided
481	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
482	corroborated by a criminal history check conducted according to
483	this subsection. If the information provided under s.
484	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
485	criminal history check, the fact that the criminal history check
486	was performed need not be indicated on the profile.The
487	department, or the board having regulatory authority over the
488	practitioner acting on behalf of the department, shall
489	investigate any information received by the department or the
490	board when it has reasonable grounds to believe that the
491	practitioner has violated any law that relates to the
492	practitioner's practice.
493	(3) The Department of Health shallmayinclude in each
494	practitioner's practitioner profile that criminal information
495	that directly relates to the practitioner's ability to
496	competently practice his or her profession. The department must
497	include in each practitioner's practitioner profile the
498	following statement: "The criminal history information, if any
499	exists, may be incomplete; federal criminal history information
500	is not available to the public." The department shall provide in
501	each practitioner profile, for every final disciplinary action
502	taken against the practitioner, a narrative description, written
503	in plain English, that explains the administrative complaint
504	filed against the practitioner and the final disciplinary action
505	imposed on the practitioner. The department shall include a
506	hyperlink to each final order listed on its Internet website
507	report of dispositions of recent disciplinary actions taken
508	against practitioners.
509	(4) The Department of Health shall include, with respect
510	to a practitioner licensed under chapter 458 or chapter 459, a
511	statement of how the practitioner has elected to comply with the
512	financial responsibility requirements of s. 458.320 or s.
513	459.0085. The department shall include, with respect to
514	practitioners subject to s. 456.048, a statement of how the
515	practitioner has elected to comply with the financial
516	responsibility requirements of that section. The department
517	shall include, with respect to practitioners licensed under
518	chapter 458, chapter 459, or chapter 461, information relating
519	to liability actions which has been reported under s. 456.049 or
520	s. 627.912 within the previous 10 years for any paid claim of
521	$50,000 or morethat exceeds $5,000. Such claims information
522	shall be reported in the context of comparing an individual
523	practitioner's claims to the experience of other practitioners
524	within the same specialty, or profession if the practitioner is
525	not a specialist, to the extent such information is available to
526	the Department of Health. The department shall include a
527	hyperlink to all such comparison reports in such practitioner's
528	profile on its Internet website.If information relating to a
529	liability action is included in a practitioner's practitioner
530	profile, the profile must also include the following statement:
531	"Settlement of a claim may occur for a variety of reasons that
532	do not necessarily reflect negatively on the professional
533	competence or conduct of the practitioner. A payment in
534	settlement of a medical malpractice action or claim should not
535	be construed as creating a presumption that medical malpractice
536	has occurred."
537	(5) The Department of Health shallmay not include the
538	date of adisciplinary action taken by a licensed hospital or an
539	ambulatory surgical center, in accordance with the requirements
540	of s. 395.0193, in the practitioner profile. Any practitioner
541	disciplined under paragraph (1)(b) must report to the department
542	the date the disciplinary action was imposed. The department
543	shall state whether the action is related to professional
544	competence and whether it is related to the delivery of services
545	to a patient.
546	(6) The Department of Health may include in the
547	practitioner's practitioner profile any other information that
548	is a public record of any governmental entity and that relates
549	to a practitioner's ability to competently practice his or her
550	profession. However, the department must consult with the board
551	having regulatory authority over the practitioner before such
552	information is included in his or her profile.
553	(7) Upon the completion of a practitioner profile under
554	this section, the Department of Health shall furnish the
555	practitioner who is the subject of the profile a copy of it. The
556	practitioner has a period of 30 days in which to review the
557	profile and to correct any factual inaccuracies in it. The
558	Department of Health shall make the profile available to the
559	public at the end of the 30-day period. The department shall
560	make the profiles available to the public through the World Wide
561	Web and other commonly used means of distribution.
562	(8) The Department of Health shall provide in each profile
563	an easy-to-read explanation of any disciplinary action taken and
564	the reason the sanction or sanctions were imposed.
565	(9)(8)Making a practitioner profile available to the
566	public under this section does not constitute agency action for
567	which a hearing under s. 120.57 may be sought.
568	Section 9. Section 456.042, Florida Statutes, is amended
569	to read:
570	456.042 Practitioner profiles; update.--A practitioner
571	must submit updates of required information within 15 days after
572	the final activity that renders such information a fact.The
573	Department of Health shall update each practitioner's
574	practitioner profile periodically. An updated profile is subject
575	to the same requirements as an original profile with respect to
576	the period within which the practitioner may review the profile
577	for the purpose of correcting factual inaccuracies.
578	Section 10. Subsection (1) of section 456.049, Florida
579	Statutes, is amended, and subsection (3) is added to said
580	section, to read:
581	456.049 Health care practitioners; reports on professional
582	liability claims and actions.--
583	(1) Any practitioner of medicine licensed pursuant to the
584	provisions of chapter 458, practitioner of osteopathic medicine
585	licensed pursuant to the provisions of chapter 459, podiatric
586	physician licensed pursuant to the provisions of chapter 461, or
587	dentist licensed pursuant to the provisions of chapter 466 shall
588	report to the department any claim or action for damages for
589	personal injury alleged to have been caused by error, omission,
590	or negligence in the performance of such licensee's professional
591	services or based on a claimed performance of professional
592	services without consent if the claim was not covered by an
593	insurer required to report under s. 627.912 andthe claim
594	resulted in:
595	(a) A final judgment of $50,000 or more or, with respect
596	to a dentist licensed pursuant to chapter 466, a final judgment
597	of $25,000 or morein any amount.
598	(b) A settlement of $50,000 or more or, with respect to a
599	dentist licensed pursuant to chapter 466, a settlement of
600	$25,000 or morein any amount.
601	(c) A final disposition not resulting in payment on behalf
602	of the licensee.
603
604	Reports shall be filed with the department no later than 60 days
605	following the occurrence of any event listed in paragraph (a),
606	paragraph (b), or paragraph (c).
607	(3) The department shall forward the information collected
608	under this section to the Office of Insurance Regulation.
609	Section 11. Section 456.051, Florida Statutes, is amended
610	to read:
611	456.051 Reports of professional liability actions;
612	bankruptcies; Department of Health's responsibility to
613	provide.--
614	(1) The report of a claim or action for damages for
615	personal injury which is required to be provided to the
616	Department of Health under s. 456.049 or s. 627.912 is public
617	information except for the name of the claimant or injured
618	person, which remains confidential as provided in ss.
619	456.049(2)(d) and 627.912(2)(e). The Department of Health
620	shall, upon request, make such report available to any person.
621	The department shall make such report available as a part of the
622	practitioner's profile within 45 calendar days after receipt.
623	(2) Any information in the possession of the Department of
624	Health which relates to a bankruptcy proceeding by a
625	practitioner of medicine licensed under chapter 458, a
626	practitioner of osteopathic medicine licensed under chapter 459,
627	a podiatric physician licensed under chapter 461, or a dentist
628	licensed under chapter 466 is public information. The Department
629	of Health shall, upon request, make such information available
630	to any person. The department shall make such report available
631	as a part of the practitioner's profile within 45 calendar days
632	after receipt.
633	Section 12. Paragraph (a) of subsection (7) of section
634	456.057, Florida Statutes, is amended to read:
635	456.057 Ownership and control of patient records; report
636	or copies of records to be furnished.--
637	(7)(a)1. The department may obtain patient records
638	pursuant to a subpoena without written authorization from the
639	patient if the department and the probable cause panel of the
640	appropriate board, if any, find reasonable cause to believe that
641	a health care practitioner has excessively or inappropriately
642	prescribed any controlled substance specified in chapter 893 in
643	violation of this chapter or any professional practice act or
644	that a health care practitioner has practiced his or her
645	profession below that level of care, skill, and treatment
646	required as defined by this chapter or any professional practice
647	act and also find that appropriate, reasonable attempts were
648	made to obtain a patient release.
649	2. The department may obtain patient records and insurance
650	information pursuant to a subpoena without written authorization
651	from the patient if the department and the probable cause panel
652	of the appropriate board, if any, find reasonable cause to
653	believe that a health care practitioner has provided inadequate
654	medical care based on termination of insurance and also find
655	that appropriate, reasonable attempts were made to obtain a
656	patient release.
657	3. The department may obtain patient records, billing
658	records, insurance information, provider contracts, and all
659	attachments thereto pursuant to a subpoena without written
660	authorization from the patient if the department and probable
661	cause panel of the appropriate board, if any, find reasonable
662	cause to believe that a health care practitioner has submitted a
663	claim, statement, or bill using a billing code that would result
664	in payment greater in amount than would be paid using a billing
665	code that accurately describes the services performed, requested
666	payment for services that were not performed by that health care
667	practitioner, used information derived from a written report of
668	an automobile accident generated pursuant to chapter 316 to
669	solicit or obtain patients personally or through an agent
670	regardless of whether the information is derived directly from
671	the report or a summary of that report or from another person,
672	solicited patients fraudulently, received a kickback as defined
673	in s. 456.054, violated the patient brokering provisions of s.
674	817.505, or presented or caused to be presented a false or
675	fraudulent insurance claim within the meaning of s.
676	817.234(1)(a), and also find that, within the meaning of s.
677	817.234(1)(a), patient authorization cannot be obtained because
678	the patient cannot be located or is deceased, incapacitated, or
679	suspected of being a participant in the fraud or scheme, and if
680	the subpoena is issued for specific and relevant records.
681	4. Notwithstanding subparagraphs 1.-3., when the
682	department investigates a professional liability claim or
683	undertakes action pursuant to s. 456.049 or s. 627.912, the
684	department may obtain patient records pursuant to a subpoena
685	without written authorization from the patient if the patient
686	refuses to cooperate or attempts to obtain a patient release and
687	failure to obtain the patient records would be detrimental to
688	the investigation.
689	Section 13. Subsection (4) is added to section 456.063,
690	Florida Statutes, to read:
691	456.063 Sexual misconduct; disqualification for license,
692	certificate, or registration.--
693	(4) Each board, or the department if there is no board,
694	may adopt rules to implement the requirements for reporting
695	allegations of sexual misconduct, including rules to determine
696	the sufficiency of the allegations.
697	Section 14. Subsection (4) of section 456.072, Florida
698	Statutes, is amended to read:
699	456.072 Grounds for discipline; penalties; enforcement.--
700	(4) In anyaddition to any other discipline imposed
701	throughfinal order, or citation, entered on or after July 1,
702	2001, that imposes a penalty or other form of discipline
703	pursuant to this section or discipline imposed through final
704	order, or citation, entered on or after July 1, 2001,for a
705	violation of any practice act, the board, or the department when
706	there is no board, shall assess costs related to the
707	investigation and prosecution of the case, including costs
708	associated with an attorney's time. The amount of costs to be
709	assessed shall be determined by the board, or the department
710	when there is no board, following its consideration of an
711	affidavit of itemized costs and any written objections thereto.
712	In any case in whichwhere the board or the department imposesa
713	fine or assessment of costs imposed by the board or department
714	and the fine or assessmentis not paid within a reasonable time,
715	such reasonable time to be prescribed in the rules of the board,
716	or the department when there is no board, or in the order
717	assessing such fines or costs, the department or the Department
718	of Legal Affairs may contract for the collection of, or bring a
719	civil action to recover, the fine or assessment.
720	Section 15. Subsection (5) of section 456.073, Florida
721	Statutes, is amended to read:
722	456.073 Disciplinary proceedings.--Disciplinary
723	proceedings for each board shall be within the jurisdiction of
724	the department.
725	(5)(a)A formal hearing before an administrative law judge
726	from the Division of Administrative Hearings shall be held
727	pursuant to chapter 120 if there are any disputed issues of
728	material fact. The administrative law judge shall issue a
729	recommended order pursuant to chapter 120. If any party raises
730	an issue of disputed fact during an informal hearing, the
731	hearing shall be terminated and a formal hearing pursuant to
732	chapter 120 shall be held.
733	(b) Notwithstanding s. 120.569(2), the department shall
734	notify the Division of Administrative Hearings within 45 days
735	after receipt of a petition or request for a hearing that the
736	department has determined requires a formal hearing before an
737	administrative law judge.
738	Section 16. Subsections (1) and (2) of section 456.077,
739	Florida Statutes, are amended to read:
740	456.077 Authority to issue citations.--
741	(1) Notwithstanding s. 456.073, the board, or the
742	department if there is no board, shall adopt rules to permit the
743	issuance of citations. The citation shall be issued to the
744	subject and shall contain the subject's name and address, the
745	subject's license number if applicable, a brief factual
746	statement, the sections of the law allegedly violated, and the
747	penalty imposed. The citation must clearly state that the
748	subject may choose, in lieu of accepting the citation, to follow
749	the procedure under s. 456.073. If the subject disputes the
750	matter in the citation, the procedures set forth in s. 456.073
751	must be followed. However, if the subject does not dispute the
752	matter in the citation with the department within 30 days after
753	the citation is served, the citation becomes a publicfinal
754	order and does not constituteconstitutes discipline for a first
755	offense, but does constitute discipline for a second or
756	subsequent offense. The penalty shall be a fine or other
757	conditions as established by rule.
758	(2) The board, or the department if there is no board,
759	shall adopt rules designating violations for which a citation
760	may be issued. Such rules shall designate as citation violations
761	those violations for which there is no substantial threat to the
762	public health, safety, and welfare or no violation of standard
763	of care involving injury to a patient. Violations for which a
764	citation may be issued shall include violations of continuing
765	education requirements; failure to timely pay required fees and
766	fines; failure to comply with the requirements of ss. 381.026
767	and 381.0261 regarding the dissemination of information
768	regarding patient rights; failure to comply with advertising
769	requirements; failure to timely update practitioner profile and
770	credentialing files; failure to display signs, licenses, and
771	permits; failure to have required reference books available; and
772	all other violations that do not pose a direct and serious
773	threat to the health and safety of the patient or involve a
774	violation of standard of care that has resulted in injury to a
775	patient.
776	Section 17. Subsections (1) and (2) of section 456.078,
777	Florida Statutes, are amended to read:
778	456.078 Mediation.--
779	(1) Notwithstanding the provisions of s. 456.073, the
780	board, or the department when there is no board, shall adopt
781	rules to designate which violations of the applicable
782	professional practice act are appropriate for mediation. The
783	board, or the department when there is no board, shallmay
784	designate as mediation offenses those complaints where harm
785	caused by the licensee is economic in nature, except any act or
786	omission involving intentional misconduct,orcan be remedied by
787	the licensee, is not a standard of care violation involving any
788	type of injury to a patient, or does not result in an adverse
789	incident. For the purposes of this section, an "adverse
790	incident" means an event that results in:
791	(a) The death of a patient;
792	(b) Brain or spinal damage to a patient;
793	(c) The performance of a surgical procedure on the wrong
794	patient;
795	(d) The performance of a wrong-site surgical procedure;
796	(e) The performance of a surgical procedure that is
797	medically unnecessary or otherwise unrelated to the patient's
798	diagnosis or medical condition;
799	(f) The surgical repair of damage to a patient resulting
800	from a planned surgical procedure, which damage is not a
801	recognized specific risk as disclosed to the patient and
802	documented through the informed-consent process;
803	(g) The performance of a procedure to remove unplanned
804	foreign objects remaining from a surgical procedure; or
805	(h) The performance of any other surgical procedure that
806	breached the standard of care.
807	(2) After the department determines a complaint is legally
808	sufficient and the alleged violations are defined as mediation
809	offenses, the department or any agent of the department may
810	conduct informal mediation to resolve the complaint. If the
811	complainant and the subject of the complaint agree to a
812	resolution of a complaint within 14 days after contact by the
813	mediator, the mediator shall notify the department of the terms
814	of the resolution. The department or board shall take no further
815	action unless the complainant and the subject each fail to
816	record with the department an acknowledgment of satisfaction of
817	the terms of mediation within 60 days of the mediator's
818	notification to the department. A successful mediation shall not
819	constitute discipline.In the event the complainant and subject
820	fail to reach settlement terms or to record the required
821	acknowledgment, the department shall process the complaint
822	according to the provisions of s. 456.073.
823	Section 18. Section 456.085, Florida Statutes, is created
824	to read:
825	456.085 Duty to notify patients.--Every physician licensed
826	under chapter 458 or chapter 459 shall inform each patient, or
827	an individual identified pursuant to s. 765.401(1), in person
828	about unanticipated outcomes of care that result in serious harm
829	to the patient. Notification of outcomes of care that result in
830	harm to the patient under this section shall not constitute an
831	acknowledgement or admission of liability, nor can it be
832	introduced as evidence in any civil lawsuit.
833	Section 19. Present subsection (8) of section 458.320,
834	Florida Statutes, is renumbered as subsection (9), and a new
835	subsection (8) is added to said section, to read:
836	458.320 Financial responsibility.--
837	(8) Notwithstanding any other provision of this section,
838	the department shall suspend the license of any physician
839	against whom has been entered a final judgment, arbitration
840	award, or other order or who has entered into a settlement
841	agreement to pay damages arising out of a claim for medical
842	malpractice, if all appellate remedies have been exhausted and
843	payment up to the amounts required by this section has not been
844	made within 30 days after the entering of such judgment, award,
845	or order or agreement, until proof of payment is received by the
846	department or a payment schedule has been agreed upon by the
847	physician and the claimant and presented to the department. This
848	subsection does not apply to a physician who has met the
849	financial responsibility requirements in paragraphs (1)(b) and
850	(2)(b).
851	Section 20. Paragraph (t) of subsection (1) and subsection
852	(6) of section 458.331, Florida Statutes, are amended to read:
853	458.331 Grounds for disciplinary action; action by the
854	board and department.--
855	(1) The following acts constitute grounds for denial of a
856	license or disciplinary action, as specified in s. 456.072(2):
857	(t) Gross or repeated malpractice or the failure to
858	practice medicine with that level of care, skill, and treatment
859	which is recognized by a reasonably prudent similar physician as
860	being acceptable under similar conditions and circumstances. The
861	board shall give great weight to the provisions of s. 766.102
862	when enforcing this paragraph. As used in this paragraph,
863	"repeated malpractice" includes, but is not limited to, three or
864	more claims for medical malpractice within the previous 5-year
865	period resulting in indemnities being paid in excess of $50,000
866	$25,000each to the claimant in a judgment or settlement and
867	which incidents involved negligent conduct by the physician. As
868	used in this paragraph, "gross malpractice" or "the failure to
869	practice medicine with that level of care, skill, and treatment
870	which is recognized by a reasonably prudent similar physician as
871	being acceptable under similar conditions and circumstances,"
872	shall not be construed so as to require more than one instance,
873	event, or act. Nothing in this paragraph shall be construed to
874	require that a physician be incompetent to practice medicine in
875	order to be disciplined pursuant to this paragraph.
876	(6) Upon the department's receipt from an insurer or self-
877	insurer of a report of a closed claim against a physician
878	pursuant to s. 627.912 or from a health care practitioner of a
879	report pursuant to s. 456.049, or upon the receipt from a
880	claimant of a presuit notice against a physician pursuant to s.
881	766.106, the department shall review each report and determine
882	whether it potentially involved conduct by a licensee that is
883	subject to disciplinary action, in which case the provisions of
884	s. 456.073 shall apply. However, if it is reported that a
885	physician has had three or more claims with indemnities
886	exceeding $50,000$25,000each within the previous 5-year
887	period, the department shall investigate the occurrences upon
888	which the claims were based and determine if action by the
889	department against the physician is warranted.
890	Section 21. Section 458.3311, Florida Statutes, is created
891	to read:
892	458.3311 Emergency procedures for disciplinary
893	action.--Notwithstanding any other provision of law to the
894	contrary:
895	(1) Each physician must report to the Department of Health
896	any judgment for medical negligence levied against the
897	physician. The physician must make the report no later than 15
898	days after the exhaustion of the last opportunity for any party
899	to appeal the judgment or request a rehearing.
900	(2) No later than 30 days after a physician has, within a
901	60-month period, made three reports as required by subsection
902	(1), the Department of Health shall initiate an emergency
903	investigation and the Board of Medicine shall conduct an
904	emergency probable cause hearing to determine whether the
905	physician should be disciplined for a violation of s.
906	458.331(1)(t) or any other relevant provision of law.
907	Section 22. Present subsection (9) of section 459.0085,
908	Florida Statutes, is renumbered as subsection (10), and a new
909	subsection (9) is added to said section, to read:
910	459.0085 Financial responsibility.--
911	(9) Notwithstanding any other provision of this section,
912	the department shall suspend the license of any osteopathic
913	physician against whom has been entered a final judgment,
914	arbitration award, or other order or who has entered into a
915	settlement agreement to pay damages arising out of a claim for
916	medical malpractice, if all appellate remedies have been
917	exhausted and payment up to the amounts required by this section
918	has not been made within 30 days after the entering of such
919	judgment, award, or order or agreement, until proof of payment
920	is received by the department or a payment schedule has been
921	agreed upon by the osteopathic physician and the claimant and
922	presented to the department. This subsection does not apply to
923	an osteopathic physician who has met the financial
924	responsibility requirements in paragraphs (1)(b) and (2)(b).
925	Section 23. Paragraph (x) of subsection (1) and subsection
926	(6) of section 459.015, Florida Statutes, are amended to read:
927	459.015 Grounds for disciplinary action; action by the
928	board and department.--
929	(1) The following acts constitute grounds for denial of a
930	license or disciplinary action, as specified in s. 456.072(2):
931	(x) Gross or repeated malpractice or the failure to
932	practice osteopathic medicine with that level of care, skill,
933	and treatment which is recognized by a reasonably prudent
934	similar osteopathic physician as being acceptable under similar
935	conditions and circumstances. The board shall give great weight
936	to the provisions of s. 766.102 when enforcing this paragraph.
937	As used in this paragraph, "repeated malpractice" includes, but
938	is not limited to, three or more claims for medical malpractice
939	within the previous 5-year period resulting in indemnities being
940	paid in excess of $50,000$25,000each to the claimant in a
941	judgment or settlement and which incidents involved negligent
942	conduct by the osteopathic physician. As used in this paragraph,
943	"gross malpractice" or "the failure to practice osteopathic
944	medicine with that level of care, skill, and treatment which is
945	recognized by a reasonably prudent similar osteopathic physician
946	as being acceptable under similar conditions and circumstances"
947	shall not be construed so as to require more than one instance,
948	event, or act. Nothing in this paragraph shall be construed to
949	require that an osteopathic physician be incompetent to practice
950	osteopathic medicine in order to be disciplined pursuant to this
951	paragraph. A recommended order by an administrative law judge or
952	a final order of the board finding a violation under this
953	paragraph shall specify whether the licensee was found to have
954	committed "gross malpractice," "repeated malpractice," or
955	"failure to practice osteopathic medicine with that level of
956	care, skill, and treatment which is recognized as being
957	acceptable under similar conditions and circumstances," or any
958	combination thereof, and any publication by the board shall so
959	specify.
960	(6) Upon the department's receipt from an insurer or self-
961	insurer of a report of a closed claim against an osteopathic
962	physician pursuant to s. 627.912 or from a health care
963	practitioner of a report pursuant to s. 456.049, or upon the
964	receipt from a claimant of a presuit notice against an
965	osteopathic physician pursuant to s. 766.106, the department
966	shall review each report and determine whether it potentially
967	involved conduct by a licensee that is subject to disciplinary
968	action, in which case the provisions of s. 456.073 shall apply.
969	However, if it is reported that an osteopathic physician has had
970	three or more claims with indemnities exceeding $50,000$25,000
971	each within the previous 5-year period, the department shall
972	investigate the occurrences upon which the claims were based and
973	determine if action by the department against the osteopathic
974	physician is warranted.
975	Section 24. Section 459.0151, Florida Statutes, is created
976	to read:
977	459.0151 Emergency procedures for disciplinary
978	action.--Notwithstanding any other provision of law to the
979	contrary:
980	(1) Each osteopathic physician must report to the
981	Department of Health any judgment for medical negligence levied
982	against the physician. The osteopathic physician must make the
983	report no later than 15 days after the exhaustion of the last
984	opportunity for any party to appeal the judgment or request a
985	rehearing.
986	(2) No later than 30 days after an osteopathic physician
987	has, within a 60-month period, made three reports as required by
988	subsection (1), the Department of Health shall initiate an
989	emergency investigation and the Board of Osteopathic Medicine
990	shall conduct an emergency probable cause hearing to determine
991	whether the physician should be disciplined for a violation of
992	s. 459.015(1)(x) or any other relevant provision of law.
993	Section 25. Paragraph (s) of subsection (1) and paragraph
994	(a) of subsection (5) of section 461.013, Florida Statutes, are
995	amended to read:
996	461.013 Grounds for disciplinary action; action by the
997	board; investigations by department.--
998	(1) The following acts constitute grounds for denial of a
999	license or disciplinary action, as specified in s. 456.072(2):
1000	(s) Gross or repeated malpractice or the failure to
1001	practice podiatric medicine at a level of care, skill, and
1002	treatment which is recognized by a reasonably prudent podiatric
1003	physician as being acceptable under similar conditions and
1004	circumstances. The board shall give great weight to the
1005	standards for malpractice in s. 766.102 in interpreting this
1006	section. As used in this paragraph, "repeated malpractice"
1007	includes, but is not limited to, three or more claims for
1008	medical malpractice within the previous 5-year period resulting
1009	in indemnities being paid in excess of $50,000$10,000each to
1010	the claimant in a judgment or settlement and which incidents
1011	involved negligent conduct by the podiatric physicians. As used
1012	in this paragraph, "gross malpractice" or "the failure to
1013	practice podiatric medicine with the level of care, skill, and
1014	treatment which is recognized by a reasonably prudent similar
1015	podiatric physician as being acceptable under similar conditions
1016	and circumstances" shall not be construed so as to require more
1017	than one instance, event, or act.
1018	(5)(a) Upon the department's receipt from an insurer or
1019	self-insurer of a report of a closed claim against a podiatric
1020	physician pursuant to s. 627.912, or upon the receipt from a
1021	claimant of a presuit notice against a podiatric physician
1022	pursuant to s. 766.106, the department shall review each report
1023	and determine whether it potentially involved conduct by a
1024	licensee that is subject to disciplinary action, in which case
1025	the provisions of s. 456.073 shall apply. However, if it is
1026	reported that a podiatric physician has had three or more claims
1027	with indemnities exceeding $50,000$25,000each within the
1028	previous 5-year period, the department shall investigate the
1029	occurrences upon which the claims were based and determine if
1030	action by the department against the podiatric physician is
1031	warranted.
1032	Section 26. Subsection (2) of section 624.462, Florida
1033	Statutes, is amended to read:
1034	624.462 Commercial self-insurance funds.--
1035	(2) As used in ss. 624.460-624.488, "commercial self-
1036	insurance fund" or "fund" means a group of members, operating
1037	individually and collectively through a trust or corporation,
1038	that must be:
1039	(a) Established by:
1040	1. A not-for-profit trade association, industry
1041	association, or professional association of employers or
1042	professionals which has a constitution or bylaws, which is
1043	incorporated under the laws of this state, and which has been
1044	organized for purposes other than that of obtaining or providing
1045	insurance and operated in good faith for a continuous period of
1046	1 year;
1047	2. A self-insurance trust fund organized pursuant to s.
1048	627.357 and maintained in good faith for a continuous period of
1049	1 year for purposes other than that of obtaining or providing
1050	insurance pursuant to this section. Each member of a commercial
1051	self-insurance trust fund established pursuant to this
1052	subsection must maintain membership in the self-insurance trust
1053	fund organized pursuant to s. 627.357; or
1054	3. A group of 10 or more health care providers, as defined
1055	in s. 627.351(4)(h); or
1056	4.3.A not-for-profit group comprised of no less than 10
1057	condominium associations as defined in s. 718.103(2), which is
1058	incorporated under the laws of this state, which restricts its
1059	membership to condominium associations only, and which has been
1060	organized and maintained in good faith for a continuous period
1061	of 1 year for purposes other than that of obtaining or providing
1062	insurance.
1063	(b)1. In the case of funds established pursuant to
1064	subparagraph (a)2. or subparagraph (a)4.3., operated pursuant to
1065	a trust agreement by a board of trustees which shall have
1066	complete fiscal control over the fund and which shall be
1067	responsible for all operations of the fund. The majority of the
1068	trustees shall be owners, partners, officers, directors, or
1069	employees of one or more members of the fund. The trustees
1070	shall have the authority to approve applications of members for
1071	participation in the fund and to contract with an authorized
1072	administrator or servicing company to administer the day-to-day
1073	affairs of the fund.
1074	2. In the case of funds established pursuant to
1075	subparagraph (a)1. or subparagraph (a)3., operated pursuant to a
1076	trust agreement by a board of trustees or as a corporation by a
1077	board of directors which board shall:
1078	a. Be responsible to members of the fund or beneficiaries
1079	of the trust or policyholders of the corporation;
1080	b. Appoint independent certified public accountants, legal
1081	counsel, actuaries, and investment advisers as needed;
1082	c. Approve payment of dividends to members;
1083	d. Approve changes in corporate structure; and
1084	e. Have the authority to contract with an administrator
1085	authorized under s. 626.88 to administer the day-to-day affairs
1086	of the fund including, but not limited to, marketing,
1087	underwriting, billing, collection, claims administration, safety
1088	and loss prevention, reinsurance, policy issuance, accounting,
1089	regulatory reporting, and general administration. The fees or
1090	compensation for services under such contract shall be
1091	comparable to the costs for similar services incurred by
1092	insurers writing the same lines of insurance, or where available
1093	such expenses as filed by boards, bureaus, and associations
1094	designated by insurers to file such data. A majority of the
1095	trustees or directors shall be owners, partners, officers,
1096	directors, or employees of one or more members of the fund.
1097	Section 27. Subsections (7), (8), and (9) are added to
1098	section 627.062, Florida Statutes, to read:
1099	627.062 Rate standards.--
1100	(7)(a) The provisions of this subsection apply only with
1101	respect to rates for medical malpractice insurance and shall
1102	control to the extent of any conflict with other provisions of
1103	this section.
1104	(b) Any portion of a judgment entered or settlement paid
1105	as a result of a statutory or common-law badfaith action and any
1106	portion of a judgment entered which awards punitive damages
1107	against an insurer may not be included in the insurer's rate
1108	base and shall not be used to justify a rate or rate change. Any
1109	common-law badfaith action identified as such and any portion of
1110	a settlement entered as a result of a statutory or portion of a
1111	settlement wherein an insurer agrees to pay specific punitive
1112	damages may not be used to justify a rate or rate change. The
1113	portion of the taxable costs and attorney's fees which is
1114	identified as being related to the bad faith and punitive
1115	damages in these judgments and settlements may not be included
1116	in the insurer's rate base and may not be utilized to justify a
1117	rate or rate change.
1118	(c) Upon reviewing a rate filing and determining whether
1119	the rate is excessive, inadequate, or unfairly discriminatory,
1120	the Office of Insurance Regulation shall consider, in accordance
1121	with generally accepted and reasonable actuarial techniques,
1122	past and present prospective loss experience, either using loss
1123	experience solely for this state or giving greater credibility
1124	to this state's loss data.
1125	(d) Rates shall be deemed excessive if, among other
1126	standards established by this section, the rate structure
1127	provides for replenishment of reserves or surpluses from
1128	premiums when the replenishment is attributable to investment
1129	losses.
1130	(e) The insurer must apply a discount or surcharge based
1131	on the health care provider's loss experience or shall establish
1132	an alternative method giving due consideration to the provider's
1133	loss experience. The insurer must include in the filing a copy
1134	of the surcharge or discount schedule or a description of the
1135	alternative method used and must provide a copy of such schedule
1136	or description, as approved by the office, to policyholders at
1137	the time of renewal and to prospective policyholders at the time
1138	of application for coverage.
1139	(8) Each insurer writing professional liability insurance
1140	coverage for medical negligence must make a rate filing under
1141	this section with the Office of Insurance Regulation at least
1142	once each calendar year.
1143	(9)(a) Medical malpractice insurance companies shall
1144	submit a rate filing effective January 1, 2004, to the Office of
1145	Insurance Regulation no earlier than 30 days, but no later than
1146	120 days, after the date upon which this act becomes law which
1147	reduces rates by a presumed factor that reflects the impact the
1148	changes contained in all medical malpractice legislation enacted
1149	by the Florida Legislature in 2003 will have on such rates, as
1150	determined by the Office of Insurance Regulation. In determining
1151	the presumed factor, the office shall use generally accepted
1152	actuarial techniques and standards provided in this section in
1153	determining the expected impact on losses, expenses, and
1154	investment income of the insurer. Inclusion in the presumed
1155	factor of the expected impact of such legislation shall be held
1156	in abeyance during the review of such measure's validity in any
1157	proceeding by a court of competent jurisdiction.
1158	(b) Any insurer or rating organization that contends that
1159	the rate provided for in subsection (1) is excessive,
1160	inadequate, or unfairly discriminatory shall separately state in
1161	its filing the rate it contends is appropriate and shall state
1162	with specificity the factors or data that it contends should be
1163	considered in order to produce such appropriate rate. The
1164	insurer or rating organization shall be permitted to use all of
1165	the generally accepted actuarial techniques provided in this
1166	section in making any filing pursuant to this subsection. The
1167	Office of Insurance Regulation shall review each such exception
1168	and approve or disapprove it prior to use. It shall be the
1169	insurer's burden to actuarially justify any deviations from the
1170	rates filed under subsection (1). Each insurer or rating
1171	organization shall include in the filing the expected impact of
1172	all malpractice legislation enacted by the Florida Legislature
1173	in 2003 on losses, expenses, and rates. If any provision of this
1174	act is held invalid by a court of competent jurisdiction, the
1175	department shall permit an adjustment of all rates filed under
1176	this section to reflect the impact of such holding on such rates
1177	so as to ensure that the rates are not excessive, inadequate, or
1178	unfairly discriminatory.
1179	Section 28. Section 627.0662, Florida Statutes, is created
1180	to read:
1181	627.0662 Excessive profits for medical liability insurance
1182	prohibited.--
1183	(1) As used in this section:
1184	(a) “Medical liability insurance” means insurance that is
1185	written on a professional liability insurance policy issued to a
1186	health care practitioner or on a liability insurance policy
1187	covering medical malpractice claims issued to a health care
1188	facility.
1189	(b) “Medical liability insurer” means any insurance
1190	company or group of insurance companies writing medical
1191	liability insurance in this state and does not include any self-
1192	insurance fund or other nonprofit entity writing such insurance.
1193	(2) Each medical liability insurer shall file with the
1194	Office of Insurance Regulation, prior to July 1 of each year on
1195	forms prescribed by the office, the following data for medical
1196	liability insurance business in this state. The data shall
1197	include both voluntary and joint underwriting association
1198	business, as follows:
1199	(a) Calendar-year earned premium.
1200	(b) Accident-year incurred losses and loss adjustment
1201	expenses.
1202	(c) The administrative and selling expenses incurred in
1203	this state or allocated to this state for the calendar year.
1204	(d) Policyholder dividends incurred during the applicable
1205	calendar year.
1206	(3)(a) Excessive profit has been realized if there has
1207	been an underwriting gain for the 3 most recent calendar-
1208	accident years combined which is greater than the anticipated
1209	underwriting profit plus 5 percent of earned premiums for those
1210	calendar-accident years.
1211	(b) As used in this subsection with respect to any 3-year
1212	period, “anticipated underwriting profit” means the sum of the
1213	dollar amounts obtained by multiplying, for each rate filing of
1214	the insurer group in effect during such period, the earned
1215	premiums applicable to such rate filing during such period by
1216	the percentage factor included in such rate filing for profit
1217	and contingencies, such percentage factor having been determined
1218	with due recognition to investment income from funds generated
1219	by business in this state. Separate calculations need not be
1220	made for consecutive rate filings containing the same percentage
1221	factor for profits and contingencies.
1222	(4) Each medical liability insurer shall also file a
1223	schedule of medical liability insurance loss in this state and
1224	loss adjustment experience for each of the 3 most recent
1225	accident years. The incurred losses and loss adjustment expenses
1226	shall be valued as of March 31 of the year following the close
1227	of the accident year, developed to an ultimate basis, and at two
1228	12-month intervals thereafter, each developed to an ultimate
1229	basis, to the extent that a total of three evaluations is
1230	provided for each accident year. The first year to be so
1231	reported shall be accident year 2004, such that the reporting of
1232	3 accident years will not take place until accident years 2005
1233	and 2006 have become available.
1234	(5) Each insurer group's underwriting gain or loss for
1235	each calendar-accident year shall be computed as follows: the
1236	sum of the accident-year incurred losses and loss adjustment
1237	expenses as of March 31 of the following year, developed to an
1238	ultimate basis, plus the administrative and selling expenses
1239	incurred in the calendar year, plus policyholder dividends
1240	applicable to the calendar year, shall be subtracted from the
1241	calendar-year earned premium to determine the underwriting gain
1242	or loss.
1243	(6) For the 3 most recent calendar-accident years, the
1244	underwriting gain or loss shall be compared to the anticipated
1245	underwriting profit.
1246	(7) If the medical liability insurer has realized an
1247	excessive profit, the office shall order a return of the
1248	excessive amounts to policyholders after affording the insurer
1249	an opportunity for hearing and otherwise complying with the
1250	requirements of chapter 120. Such excessive amounts shall be
1251	refunded to policyholders in all instances unless the insurer
1252	affirmatively demonstrates to the office that the refund of the
1253	excessive amounts will render the insurer or a member of the
1254	insurer group financially impaired or will render it insolvent.
1255	(8) The excessive amount shall be refunded to
1256	policyholders on a pro rata basis in relation to the final
1257	compilation year earned premiums to the voluntary medical
1258	liability insurance policyholders of record of the insurer group
1259	on December 31 of the final compilation year.
1260	(9) Any return of excessive profits to policyholders under
1261	this section shall be provided in the form of a cash refund or a
1262	credit towards the future purchase of insurance.
1263	(10)(a) Cash refunds to policyholders may be rounded to
1264	the nearest dollar.
1265	(b) Data in required reports to the office may be rounded
1266	to the nearest dollar.
1267	(c) Rounding, if elected by the insurer group, shall be
1268	applied consistently.
1269	(11)(a) Refunds to policyholders shall be completed as
1270	follows:
1271	1. If the insurer elects to make a cash refund, the refund
1272	shall be completed within 60 days after entry of a final order
1273	determining that excessive profits have been realized; or
1274	2. If the insurer elects to make refunds in the form of a
1275	credit to renewal policies, such credits shall be applied to
1276	policy renewal premium notices which are forwarded to insureds
1277	more than 60 calendar days after entry of a final order
1278	determining that excessive profits have been realized. If an
1279	insurer has made this election but an insured thereafter cancels
1280	his or her policy or otherwise allows the policy to terminate,
1281	the insurer group shall make a cash refund not later than 60
1282	days after termination of such coverage.
1283	(b) Upon completion of the renewal credits or refund
1284	payments, the insurer shall immediately certify to the office
1285	that the refunds have been made.
1286	(12) Any refund or renewal credit made pursuant to this
1287	section shall be treated as a policyholder dividend applicable
1288	to the year in which it is incurred, for purposes of reporting
1289	under this section for subsequent years.
1290	Section 29. Subsection (10) of section 627.357, Florida
1291	Statutes, is amended to read:
1292	627.357 Medical malpractice self-insurance.--
1293	(10)(a) An application to form a self-insurance fund under
1294	this section must be filed with the Office of Insurance
1295	Regulation.
1296	(b) The Office of Insurance Regulation must ensure that
1297	self-insurance funds remain solvent and provide insurance
1298	coverage purchased by participants. The Financial Services
1299	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
1300	to implement this subsectionA self-insurance fund may not be
1301	formed under this section after October 1, 1992.
1302	Section 30. Section 627.3575, Florida Statutes, is created
1303	to read:
1304	627.3575 Health Care Professional Liability Insurance
1305	Facility.--
1306	(1) FACILITY CREATED; PURPOSE; STATUS.--There is created
1307	the Health Care Professional Liability Insurance Facility. The
1308	facility is intended to meet ongoing availability and
1309	affordability problems relating to liability insurance for
1310	health care professionals by providing an affordable, self-
1311	supporting source of professional liability insurance coverage
1312	with a high deductible for those professionals who are willing
1313	and able to self-insure for smaller losses. The facility shall
1314	operate on a not-for-profit basis. The facility is self-funding
1315	and is intended to serve a public purpose but is not a state
1316	agency or program, and no activity of the facility shall create
1317	any state liability.
1318	(2) GOVERNANCE; POWERS.--
1319	(a) The facility shall operate under a seven-member board
1320	of governors consisting of the Secretary of Health, three
1321	members appointed by the Governor, and three members appointed
1322	by the Chief Financial Officer. The board shall be chaired by
1323	the Secretary of Health. The secretary shall serve by virtue of
1324	his or her office, and the other members of the board shall
1325	serve terms concurrent with the term of office of the official
1326	who appointed them. Any vacancy on the board shall be filled in
1327	the same manner as the original appointment. Members serve at
1328	the pleasure of the official who appointed them. Members are not
1329	eligible for compensation for their service on the board, but
1330	the facility may reimburse them for per diem and travel expenses
1331	at the same levels as are provided in s. 112.061 for state
1332	employees.
1333	(b) The facility shall have such powers as are necessary
1334	to operate as an insurer, including the power to:
1335	1. Sue and be sued.
1336	2. Hire such employees and retain such consultants,
1337	attorneys, actuaries, and other professionals as it deems
1338	appropriate.
1339	3. Contract with such service providers as it deems
1340	appropriate.
1341	4. Maintain offices appropriate to the conduct of its
1342	business.
1343	5. Take such other actions as are necessary or appropriate
1344	in fulfillment of its responsibilities under this section.
1345	(3) COVERAGE PROVIDED.--The facility shall provide
1346	liability insurance coverage for health care professionals. The
1347	facility shall allow policyholders to select only from policies
1348	with deductibles of $25,000 per claim, $50,000 per claim, and
1349	$100,000 per claim and with coverage limits of $250,000 per
1350	claim and $750,000 annual aggregate and $1 million per claim and
1351	$3 million annual aggregate. To the greatest extent possible,
1352	the terms and conditions of the policies shall be consistent
1353	with terms and conditions commonly used by professional
1354	liability insurers.
1355	(4) ELIGIBILITY; TERMINATION.--
1356	(a) Any health care professional is eligible for coverage
1357	provided by the facility if the professional at all times
1358	maintains either:
1359	1. An escrow account consisting of cash or assets eligible
1360	for deposit under s. 625.52 in an amount equal to the deductible
1361	amount of the policy; or
1362	2. An unexpired, irrevocable letter of credit, established
1363	pursuant to chapter 675, in an amount not less than the
1364	deductible amount of the policy. The letter of credit shall be
1365	payable to the health care professional as beneficiary upon
1366	presentment of a final judgment indicating liability and
1367	awarding damages to be paid by the physician or upon presentment
1368	of a settlement agreement signed by all parties to such
1369	agreement when such final judgment or settlement is a result of
1370	a claim arising out of the rendering of, or the failure to
1371	render, medical care and services. Such letter of credit shall
1372	be nonassignable and nontransferable. Such letter of credit
1373	shall be issued by any bank or savings association organized and
1374	existing under the laws of this state or any bank or savings
1375	association organized under the laws of the United States that
1376	has its principal place of business in this state or has a
1377	branch office which is authorized under the laws of this state
1378	or of the United States to receive deposits in this state.
1379	(b) The eligibility of a health care professional for
1380	coverage terminates upon:
1381	1. The failure of the professional to comply with
1382	paragraph (a);
1383	2. The failure of the professional to timely pay premiums
1384	or assessments; or
1385	3. The commission of any act of fraud in connection with
1386	the policy, as determined by the board of governors.
1387	(c) The board of governors, in its discretion, may
1388	reinstate the eligibility of a health care professional whose
1389	eligibility has terminated pursuant to paragraph (b) upon
1390	determining that the professional has come back into compliance
1391	with paragraph (a) or has paid the overdue premiums or
1392	assessments. Eligibility may be reinstated in the case of fraud
1393	only if the board determines that its initial determination of
1394	fraud was in error.
1395	(5) PREMIUMS; ASSESSMENTS.--
1396	(a) The facility shall charge the actuarially indicated
1397	rate for the coverage provided plus a component for debt service
1398	and shall retain the services of consulting actuaries to prepare
1399	its rate filings. The facility shall not provide dividends to
1400	policyholders, and, to the extent that premiums are more than
1401	the amount required to cover claims and expenses, such excess
1402	shall be retained by the facility for payment of future claims.
1403	In the event of dissolution of the facility, any amounts not
1404	required as a reserve for outstanding claims shall be
1405	transferred to the policyholders of record as of the last day of
1406	operation.
1407	(b) In the event that the premiums for a particular year,
1408	together with any investment income or reinsurance recoveries
1409	attributable to that year, are insufficient to pay losses
1410	arising out of claims accruing in that year, the facility shall
1411	levy assessments against all of the persons who were its
1412	policyholders in that year in a uniform percentage of premium.
1413	Each policyholder's assessment shall be such percentage of the
1414	premium that policyholder paid for coverage for the year to
1415	which the insufficiency is attributable.
1416	(c) The policyholder is personally liable for any
1417	assessment. The failure to timely pay an assessment is grounds
1418	for suspension or revocation of the policyholder's professional
1419	license by the appropriate licensing entity.
1420	(6) REGULATION; APPLICABILITY OF OTHER STATUTES.--
1421	(a) The facility shall operate pursuant to a plan of
1422	operation approved by order of the Office of Insurance
1423	Regulation of the Financial Services Commission. The board of
1424	governors may at any time adopt amendments to the plan of
1425	operation and submit the amendments to the Office of Insurance
1426	Regulation for approval.
1427	(b) The facility is subject to regulation by the Office of
1428	Insurance Regulation of the Financial Services Commission in the
1429	same manner as other insurers, except that, in recognition of
1430	the fact that its ability to levy assessments against its own
1431	policyholders is a substitute for the protections ordinarily
1432	afforded by such statutory requirements, the facility is exempt
1433	from statutory requirements relating to surplus as to
1434	policyholders.
1435	(c) The facility is not subject to part II of chapter 631,
1436	relating to the Florida Insurance Guaranty Association.
1437	(d) The Financial Service Commission may adopt rules to
1438	provide for the regulation of the facility consistent with the
1439	provisions of this section.
1440	(7) STARTUP PROVISIONS.--
1441	(a) It is the intent of the Legislature that the facility
1442	begin providing coverage no later than January 1, 2004.
1443	(b) The Governor and the Chief Financial Officer shall
1444	make their appointments to the board of governors of the
1445	facility no later than August 1, 2003. Until the board is
1446	appointed, the Secretary of Health may perform ministerial acts
1447	on behalf of the facility as chair of the board of governors.
1448	(c) Until the facility is able to hire permanent staff and
1449	enter into contracts for professional services, the office of
1450	the Secretary of Health shall provide support services to the
1451	facility.
1452	(d) In order to provide startup funds for the facility,
1453	the board of governors may incur debt or enter into agreements
1454	for lines of credit, provided that the sole source of funds for
1455	repayment of any debt is future premium revenues of the
1456	facility. The amount of such debt or lines of credit may not
1457	exceed $10 million.
1458	Section 31. Paragraph (c) of subsection (1) of section
1459	627.4147, Florida Statutes, is amended, and paragraph (d) is
1460	added to said subsection, to read:
1461	627.4147 Medical malpractice insurance contracts.--
1462	(1) In addition to any other requirements imposed by law,
1463	each self-insurance policy as authorized under s. 627.357 or
1464	insurance policy providing coverage for claims arising out of
1465	the rendering of, or the failure to render, medical care or
1466	services, including those of the Florida Medical Malpractice
1467	Joint Underwriting Association, shall include:
1468	(c)1. If the insurer is not leaving the state,a clause
1469	requiring the insurer or self-insurer to notify the insured no
1470	less than 60 days prior to the effective date of cancellation of
1471	the policy or contract and, in the event of a determination by
1472	the insurer or self-insurer not to renew the policy or contract,
1473	to notify the insured no less than 60 days prior to the end of
1474	the policy or contract period. If cancellation or nonrenewal is
1475	due to nonpayment or loss of license, 10 days' notice is
1476	required.
1477	2. If the insurer is leaving the state, a clause requiring
1478	the insurer or self-insurer to notify the insured no less than
1479	90 days prior to the effective date of cancellation of the
1480	policy or contract and, in the event of a determination by the
1481	insurer or self-insurer not to renew the policy or contract, to
1482	notify the insured no less than 90 days prior to the end of the
1483	policy or contract period. If cancellation or nonrenewal is due
1484	to nonpayment or loss of license, 10 days' notice is required.
1485	(d) A clause requiring the insurer or self-insurer to
1486	notify the insured no less than 60 days prior to the effective
1487	date of a rate increase. The provisions of s. 627.4133 shall
1488	apply to such notice and to the failure of the insurer to
1489	provide such notice to the extent not in conflict with this
1490	section.
1491	Section 32. Subsections (1) and (4) and paragraph (n) of
1492	subsection (2) of section 627.912, Florida Statutes, are amended
1493	to read:
1494	627.912 Professional liability claims and actions; reports
1495	by insurers.--
1496	(1)(a)Each self-insurer authorized under s. 627.357 and
1497	each insurer or joint underwriting association providing
1498	professional liability insurance to a practitioner of medicine
1499	licensed under chapter 458, to a practitioner of osteopathic
1500	medicine licensed under chapter 459, to a podiatric physician
1501	licensed under chapter 461, to a dentist licensed under chapter
1502	466, to a hospital licensed under chapter 395, to a crisis
1503	stabilization unit licensed under part IV of chapter 394, to a
1504	health maintenance organization certificated under part I of
1505	chapter 641, to clinics included in chapter 390, to an
1506	ambulatory surgical center as defined in s. 395.002, or to a
1507	member of The Florida Bar shall report in duplicate to the
1508	Department of Insurance any claim or action for damages for
1509	personal injuries claimed to have been caused by error,
1510	omission, or negligence in the performance of such insured's
1511	professional services or based on a claimed performance of
1512	professional services without consent, if the claim resulted in:
1513	1.(a)A final judgment in any amount.
1514	2.(b)A settlement in any amount.
1515
1516	Reports shall be filed with the department.
1517	(b) In addition to the requirements of paragraph (a), if
1518	the insured party is licensed under chapter 395, chapter 458,
1519	chapter 459, chapter 461, or chapter 466, the insurer shall
1520	report in duplicate to the Office of Insurance Regulation any
1521	other disposition of the claim, including, but not limited to, a
1522	dismissal. If the insured is licensed under chapter 458, chapter
1523	459, or chapter 461, any claim that resulted in a final judgment
1524	or settlement in the amount of $50,000 or more shall be reported
1525	to the Department of Health no later than 30 days following the
1526	occurrence of that event. If the insured is licensed under
1527	chapter 466, any claim that resulted in a final judgment or
1528	settlement in the amount of $25,000 or more shall be reported to
1529	the Department of Health no later than 30 days following the
1530	occurrence of that eventand, if the insured party is licensed
1531	under chapter 458, chapter 459, chapter 461, or chapter 466,
1532	with the Department of Health, no later than 30 days following
1533	the occurrence of any event listed in paragraph (a) or paragraph
1534	(b). The Department of Health shall review each report and
1535	determine whether any of the incidents that resulted in the
1536	claim potentially involved conduct by the licensee that is
1537	subject to disciplinary action, in which case the provisions of
1538	s. 456.073 shall apply. The Department of Health, as part of the
1539	annual report required by s. 456.026, shall publish annual
1540	statistics, without identifying licensees, on the reports it
1541	receives, including final action taken on such reports by the
1542	Department of Health or the appropriate regulatory board.
1543	(2) The reports required by subsection (1) shall contain:
1544	(n) Any other information required by the department to
1545	analyze and evaluate the nature, causes, location, cost, and
1546	damages involved in professional liability cases. The Financial
1547	Services Commission shall adopt by rule requirements for
1548	additional information to assist the Office of Insurance
1549	Regulation in its analysis and evaluation of the nature, causes,
1550	location, cost, and damages involved in professional liability
1551	cases reported by insurers under this section.
1552	(4) There shall be no liability on the part of, and no
1553	cause of action of any nature shall arise against, any insurer
1554	reporting hereunder or its agents or employees or the department
1555	or its employees for any action taken by them under this
1556	section. The department may impose a fine of $250 per day per
1557	case, but not to exceed a total of $10,000$1,000per case,
1558	against an insurer that violates the requirements of this
1559	section. This subsection applies to claims accruing on or after
1560	October 1, 1997.
1561	Section 33. Section 627.9121, Florida Statutes, is created
1562	to read:
1563	627.9121 Required reporting of claims; penalties.--Each
1564	entity that makes payment under a policy of insurance, self-
1565	insurance, or otherwise in settlement, partial settlement, or
1566	satisfaction of a judgment in a medical malpractice action or
1567	claim that is required to report information to the National
1568	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
1569	the same information to the Office of Insurance Regulation. The
1570	office shall include such information in the data that it
1571	compiles under s. 627.912. The office must compile and review
1572	the data collected pursuant to this section and must assess an
1573	administrative fine on any entity that fails to fully comply
1574	with such reporting requirements.
1575	Section 34. Subsections (2), (3), (4), and (7) and
1576	paragraph (a) of subsection (10) of section 766.106, Florida
1577	Statutes, are amended, and subsections (13), (14), (15), and
1578	(16) are added to said section, to read:
1579	766.106 Notice before filing action for medical
1580	malpractice; presuit screening period; offers for admission of
1581	liability and for arbitration; informal discovery; review.--
1582	(2)(a)After completion of presuit investigation pursuant
1583	to s. 766.203 and prior to filing a claim for medical
1584	malpractice, a claimant shall notify each prospective defendant
1585	by certified mail, return receipt requested, of intent to
1586	initiate litigation for medical malpractice. Notice to each
1587	prospective defendant must include, if available, a list of all
1588	known health care providers seen by the claimant for the
1589	injuries complained of subsequent to the alleged act of
1590	malpractice, a list of all known health care providers during
1591	the 2-year period prior to the alleged act of malpractice who
1592	treated or evaluated the claimant, and copies of all of the
1593	medical records relied upon by the expert in signing the
1594	affidavit. The requirement of providing the list of known health
1595	care providers may not serve as grounds for imposing sanctions
1596	for failure to provide presuit discovery.
1597	(b)Following the initiation of a suit alleging medical
1598	malpractice with a court of competent jurisdiction, and service
1599	of the complaint upon a defendant, the claimant shall provide a
1600	copy of the complaint to the Department of Health. The
1601	requirement of providing the complaint to the Department of
1602	Health does not impair the claimant's legal rights or ability to
1603	seek relief for his or her claim. The Department of Health shall
1604	review each incident and determine whether it involved conduct
1605	by a licensee which is potentially subject to disciplinary
1606	action, in which case the provisions of s. 456.073 apply.
1607	(3)(a) No suit may be filed for a period of 18090days
1608	after notice is mailed to any prospective defendant. During the
1609	180-day90-dayperiod, the prospective defendant's insurer or
1610	self-insurer shall conduct a review to determine the liability
1611	of the defendant. Each insurer or self-insurer shall have a
1612	procedure for the prompt investigation, review, and evaluation
1613	of claims during the 180-day90-dayperiod. This procedure shall
1614	include one or more of the following:
1615	1. Internal review by a duly qualified claims adjuster;
1616	2. Creation of a panel comprised of an attorney
1617	knowledgeable in the prosecution or defense of medical
1618	malpractice actions, a health care provider trained in the same
1619	or similar medical specialty as the prospective defendant, and a
1620	duly qualified claims adjuster;
1621	3. A contractual agreement with a state or local
1622	professional society of health care providers, which maintains a
1623	medical review committee;
1624	4. Any other similar procedure which fairly and promptly
1625	evaluates the pending claim.
1626
1627	Each insurer or self-insurer shall investigate the claim in good
1628	faith, and both the claimant and prospective defendant shall
1629	cooperate with the insurer in good faith. If the insurer
1630	requires, a claimant shall appear before a pretrial screening
1631	panel or before a medical review committee and shall submit to a
1632	physical examination, if required. Unreasonable failure of any
1633	party to comply with this section justifies dismissal of claims
1634	or defenses. There shall be no civil liability for participation
1635	in a pretrial screening procedure if done without intentional
1636	fraud.
1637	(b) At or before the end of the 18090days, the insurer
1638	or self-insurer shall provide the claimant with a response:
1639	1. Rejecting the claim;
1640	2. Making a settlement offer; or
1641	3. Making an offer to arbitrate, in which case liability
1642	is deemed admitted and arbitration will be held onlyof
1643	admission of liability and for arbitrationon the issue of
1644	damages. This offer may be made contingent upon a limit of
1645	general damages.
1646	(c) The response shall be delivered to the claimant if not
1647	represented by counsel or to the claimant's attorney, by
1648	certified mail, return receipt requested. Failure of the
1649	prospective defendant or insurer or self-insurer to reply to the
1650	notice within 18090days after receipt shall be deemed a final
1651	rejection of the claim for purposes of this section.
1652	(d) Within 30 days afterofreceipt of a response by a
1653	prospective defendant, insurer, or self-insurer to a claimant
1654	represented by an attorney, the attorney shall advise the
1655	claimant in writing of the response, including:
1656	1. The exact nature of the response under paragraph (b).
1657	2. The exact terms of any settlement offer, or admission
1658	of liability and offer of arbitration on damages.
1659	3. The legal and financial consequences of acceptance or
1660	rejection of any settlement offer, or admission of liability,
1661	including the provisions of this section.
1662	4. An evaluation of the time and likelihood of ultimate
1663	success at trial on the merits of the claimant's action.
1664	5. An estimation of the costs and attorney's fees of
1665	proceeding through trial.
1666	(4) The notice of intent to initiate litigation shall be
1667	served within the time limits set forth in s. 95.11. However,
1668	during the 180-day90-dayperiod, the statute of limitations is
1669	tolled as to all potential defendants. Upon stipulation by the
1670	parties, the 180-day90-dayperiod may be extended and the
1671	statute of limitations is tolled during any such extension. Upon
1672	receiving notice of termination of negotiations in an extended
1673	period, the claimant shall have 60 days or the remainder of the
1674	period of the statute of limitations, whichever is greater,
1675	within which to file suit.
1676	(7) Informal discovery may be used by a party to obtain
1677	unsworn statements, the production of documents or things, and
1678	physical and mental examinations, as follows:
1679	(a) Unsworn statements.--Any party may require other
1680	parties to appear for the taking of an unsworn statement. Such
1681	statements may be used only for the purpose of presuit screening
1682	and are not discoverable or admissible in any civil action for
1683	any purpose by any party. A party desiring to take the unsworn
1684	statement of any party must give reasonable notice in writing to
1685	all parties. The notice must state the time and place for taking
1686	the statement and the name and address of the party to be
1687	examined. Unless otherwise impractical, the examination of any
1688	party must be done at the same time by all other parties. Any
1689	party may be represented by counsel at the taking of an unsworn
1690	statement. An unsworn statement may be recorded electronically,
1691	stenographically, or on videotape. The taking of unsworn
1692	statements is subject to the provisions of the Florida Rules of
1693	Civil Procedure and may be terminated for abuses.
1694	(b) Documents or things.--Any party may request discovery
1695	of documents or things. The documents or things must be
1696	produced, at the expense of the requesting party, within 20 days
1697	after the date of receipt of the request. A party is required to
1698	produce discoverable documents or things within that party's
1699	possession or control.
1700	(c) Physical and mental examinations.--A prospective
1701	defendant may require an injured prospective claimant to appear
1702	for examination by an appropriate health care provider. The
1703	defendant shall give reasonable notice in writing to all parties
1704	as to the time and place for examination. Unless otherwise
1705	impractical, a prospective claimant is required to submit to
1706	only one examination on behalf of all potential defendants. The
1707	practicality of a single examination must be determined by the
1708	nature of the potential claimant's condition, as it relates to
1709	the liability of each potential defendant. Such examination
1710	report is available to the parties and their attorneys upon
1711	payment of the reasonable cost of reproduction and may be used
1712	only for the purpose of presuit screening. Otherwise, such
1713	examination report is confidential and exempt from the
1714	provisions of s. 119.07(1) and s. 24(a), Art. I of the State
1715	Constitution.
1716	(d) Written questions.--Any party may request answers to
1717	written questions, the number of which may not exceed 30,
1718	including subparts. A response must be made within 20 days after
1719	receipt of the questions.
1720	(e) Informal discovery.--It is the intent of the
1721	Legislature that informal discovery may be conducted pursuant to
1722	this subsection by any party without notice to any other party.
1723	(10) If a prospective defendant makes an offer to admit
1724	liability and for arbitration on the issue of damages, the
1725	claimant has 50 days from the date of receipt of the offer to
1726	accept or reject it. The claimant shall respond in writing to
1727	the insurer or self-insurer by certified mail, return receipt
1728	requested. If the claimant rejects the offer, he or she may then
1729	file suit. Acceptance of the offer of admission of liability and
1730	for arbitration waives recourse to any other remedy by the
1731	parties, and the claimant's written acceptance of the offer
1732	shall so state.
1733	(a) If rejected, the offer to admit liability and for
1734	arbitration on damages is not admissible in any subsequent
1735	litigation. Upon rejection of the offer to admit liability and
1736	for arbitration, the claimant has 60 days from receipt of the
1737	rejection of the offer for arbitration, 60 days from the date of
1738	the declaration of impasse during presuit mediation conducted
1739	pursuant to s. 766.1065,or the remainder of the period of the
1740	statute of limitations, whichever period is greater, in which to
1741	file suit.
1742	(13) In matters relating to professional liability
1743	insurance coverage for medical negligence, an insurer shall not
1744	be held in bad faith for failure to timely pay its policy limits
1745	if it tenders its policy limits and meets all other conditions
1746	of settlement prior to the conclusion of the presuit screening
1747	period provided for in this section.
1748	(14) Failure to cooperate on the part of any party during
1749	the presuit investigation may be grounds to strike any claim
1750	made, or defense raised, by such party in suit.
1751	(15) In all matters relating to professional liability
1752	insurance coverage for medical negligence, and in determining
1753	whether the insurer acted fairly and honestly towards its
1754	insured with due regard for her or his interest during the
1755	presuit process or after a complaint has been filed, the
1756	following factors shall be considered:
1757	(a) The insurer’s willingness to negotiate with the
1758	claimant;
1759	(b) The insurer’s consideration of the advice of its
1760	defense counsel;
1761	(c) The insurer’s proper investigation of the claim;
1762	(d) Whether the insurer informed the insured of the offer
1763	to settle within the limits of coverage, the right to retain
1764	personal counsel, and risk of litigation;
1765	(e) Whether the insured denied liability or requested that
1766	the case be defended; and
1767	(f) Whether the claimant imposed any condition, other than
1768	the tender of the policy limits, on the settlement of the claim.
1769	(16) The claimant must execute a medical information
1770	release that allows a defendant or his or her legal
1771	representative to obtain unsworn statements of the claimant's
1772	treating physicians, which statements must be limited to those
1773	areas that are potentially relevant to the claim of personal
1774	injury or wrongful death.
1775	Section 35. Section 766.1065, Florida Statutes, is created
1776	to read:
1777	766.1065 Mandatory staging of presuit investigation and
1778	mandatory mediation.--
1779	(1) Within 30 days after service of the presuit notice of
1780	intent to initiate medical malpractice litigation, each party
1781	shall voluntarily produce to all other parties, without being
1782	requested, any and all medical, hospital, health care, and
1783	employment records concerning the claimant in the disclosing
1784	party’s possession, custody, or control, and the disclosing
1785	party shall affirmatively certify in writing that the records
1786	produced include all records in that party’s possession,
1787	custody, or control or that the disclosing party has no medical,
1788	hospital, health care, or employment records concerning the
1789	claimant.
1790	(a) Subpoenas may be issued according to the Florida Rules
1791	of Civil Procedure as though suit had been filed for the limited
1792	purpose of obtaining copies of medical, hospital, health care,
1793	and employment records of the claimant. The party shall indicate
1794	on the subpoena that it is being issued in accordance with the
1795	presuit procedures of this section and shall not be required to
1796	include a case number.
1797	(b) Nothing in this section shall limit the ability of any
1798	party to use any other available form of presuit discovery
1799	available under this chapter or the Florida Rules of Civil
1800	Procedure.
1801	(2) Within 60 days after service of the presuit notice of
1802	intent to initiate medical malpractice litigation, all parties
1803	must be made available for a sworn deposition. Such deposition
1804	may not be used in a civil suit for medical negligence.
1805	(3) Within 120 days after service of the presuit notice of
1806	intent to initiate medical malpractice litigation, each party’s
1807	corroborating expert, who will otherwise be tendered as the
1808	expert complying with the affidavit provisions set forth in s.
1809	766.203, must be made available for a sworn deposition.
1810	(a) The expenses associated with the expert’s time and
1811	travel in preparing for and attending such deposition shall be
1812	the responsibility of the party retaining such expert.
1813	(b) An expert shall be deemed available for deposition if
1814	suitable accommodations can be made for appearance of said
1815	expert via real-time video technology.
1816	Section 36. Section 766.1067, Florida Statutes, is created
1817	to read:
1818	766.1067 Mandatory mediation after suit is filed.--Within
1819	120 days after suit being filed, unless such period is extended
1820	by mutual agreement of all parties, all parties shall attend in-
1821	person mandatory mediation in accordance with s. 44.102 if
1822	binding arbitration under s. 766.106 or s. 766.207 has not been
1823	agreed to by the parties. The Florida Rules of Civil Procedure
1824	shall apply to mediation held pursuant to this section.
1825	Section 37. Section 766.118, Florida Statutes, is created
1826	to read:
1827	766.118 Determination of noneconomic damages.--With
1828	respect to a cause of action for personal injury or wrongful
1829	death resulting from an occurrence of medical negligence,
1830	including actions pursuant to s. 766.209, damages recoverable
1831	for noneconomic losses to compensate for pain and suffering,
1832	inconvenience, physical impairment, mental anguish,
1833	disfigurement, loss of capacity for enjoyment of life, and all
1834	other noneconomic damages shall not exceed $250,000, regardless
1835	of the number of claimants or defendants involved in the action.
1836	Section 38. Subsections (3), (5), (7), and (8) of section
1837	766.202, Florida Statutes, are amended to read:
1838	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
1839	766.201-766.212, the term:
1840	(3) "Economic damages" means financial losses thatwhich
1841	would not have occurred but for the injury giving rise to the
1842	cause of action, including, but not limited to, past and future
1843	medical expenses and 80 percent of wage loss and loss of earning
1844	capacity, to the extent the claimant is entitled to recover such
1845	damages under general law, including the Wrongful Death Act.
1846	(5) "Medical expert" means a person familiar with the
1847	evaluation, diagnosis, or treatment of the medical condition at
1848	issue who:
1849	(a) Isduly and regularly engaged in the practice of his
1850	or her profession,whoholds a health care professional degree
1851	from a university or college,and has had special professional
1852	training and experience;or
1853	(b) Hasone possessed ofspecial health care knowledge or
1854	skill about the subject upon which he or she is called to
1855	testify or provide an opinion.
1856
1857	Such expert shall certify that he or she has similar credentials
1858	and expertise in the area of the defendant's particular practice
1859	or specialty, if the defendant is a specialist.
1860	(7) "Noneconomic damages" means nonfinancial losses which
1861	would not have occurred but for the injury giving rise to the
1862	cause of action, including pain and suffering, inconvenience,
1863	physical impairment, mental anguish, disfigurement, loss of
1864	capacity for enjoyment of life, and other nonfinancial losses,
1865	to the extent the claimant is entitled to recover such damages
1866	under general law, including the Wrongful Death Act.
1867	(8) "Periodic payment" means provision for the structuring
1868	of future economic and future noneconomic damages payments, in
1869	whole or in part, over a period of time, as follows:
1870	(a) A specific finding must be madeof the dollar amount
1871	of periodic payments which will compensate for these future
1872	damages after offset for collateral sources and after having
1873	been reduced to present valueshall be made. A periodic payment
1874	must be structured to last as long as the claimant lives or the
1875	condition of the claimant for which the award was made persists,
1876	whichever may be shorter, but without regard for the number of
1877	years for which future damages are awardedThe total dollar
1878	amount of the periodic payments shall equal the dollar amount of
1879	all such future damages before any reduction to present value.
1880	(b) A defendant that elects to make periodic payments of
1881	either or both future economic and future noneconomic losses may
1882	contractually obligate a company that is authorized to do
1883	business in this state and rated by A.M. Best Company as "A+" or
1884	higher to make those periodic payments on its behalf. Upon a
1885	joint petition by the defendant and the company that is
1886	contractually obligated to make the periodic payments, the court
1887	shall discharge the defendant from any further obligations to
1888	the claimant for those future economic and future noneconomic
1889	damages that are to be paid by that company by periodic
1890	payments.
1891	(c) A bond or security may not be required of any
1892	defendant or company that is obligated to make periodic payments
1893	pursuant to this section; however, if, upon petition by a
1894	claimant who is receiving periodic payments pursuant to this
1895	section, the court finds that there is substantial, competent
1896	evidence that the defendant that is responsible for the periodic
1897	payments cannot adequately ensure full and continuous payments
1898	thereof or that the company that is obligated to make the
1899	payments has been rated by A.M. Best Company as "B+" or lower,
1900	and that doing so is in the best interest of the claimant, the
1901	court may require the defendant or the company that is obligated
1902	to make the periodic payments to provide such additional
1903	financial security as the court determines to be reasonable
1904	under the circumstances.
1905	(d) The provision for the periodic payments must specify
1906	the recipient or recipients of the payments, the address to
1907	which the payments are to be delivered, and theamount and
1908	intervals of the payments; however, in any one year, any payment
1909	or payments may not exceed the amount intended by the trier of
1910	fact to be awarded each year, offset for collateral sources. A
1911	periodic payment may not be accelerated, deferred, increased, or
1912	decreased, except by court order based upon the mutual consent
1913	and agreement of the claimant, the defendant, whether or not
1914	discharged, and the company that is obligated to make the
1915	periodic payments, if any; nor may the claimant sell, mortgage,
1916	encumber, or anticipate the periodic payments or any part
1917	thereof, by assignment or otherwise.The defendant shall be
1918	required to post a bond or security or otherwise to assure full
1919	payment of these damages awarded. A bond is not adequate unless
1920	it is written by a company authorized to do business in this
1921	state and is rated A+ by Best's. If the defendant is unable to
1922	adequately assure full payment of the damages, all damages,
1923	reduced to present value, shall be paid to the claimant in a
1924	lump sum. No bond may be canceled or be subject to cancellation
1925	unless at least 60 days' advance written notice is filed with
1926	the court and the claimant. Upon termination of periodic
1927	payments, the security, or so much as remains, shall be returned
1928	to the defendant.
1929	(c) The provision for payment of future damages by
1930	periodic payments shall specify the recipient or recipients of
1931	the payments, the dollar amounts of the payments, the interval
1932	between payments, and the number of payments or the period of
1933	time over which payments shall be made.
1934	Section 39. Subsections (2) and (3) of section 766.203,
1935	Florida Statutes, are amended to read:
1936	766.203 Presuit investigation of medical negligence claims
1937	and defenses by prospective parties.--
1938	(2) Prior to issuing notification of intent to initiate
1939	medical malpractice litigation pursuant to s. 766.106, the
1940	claimant shall conduct an investigation to ascertain that there
1941	are reasonable grounds to believe that:
1942	(a) Any named defendant in the litigation was negligent in
1943	the care or treatment of the claimant; and
1944	(b) Such negligence resulted in injury to the claimant.
1945
1946	Corroboration of reasonable grounds to initiate medical
1947	negligence litigation shall be provided by the claimant's
1948	submission of a verified written medical expert opinion from a
1949	medical expert as defined in s. 766.202(5), at the time the
1950	notice of intent to initiate litigation is mailed, which
1951	statement shall corroborate reasonable grounds to support the
1952	claim of medical negligence. This opinion and statement are
1953	subject to discovery.
1954	(3) Prior to issuing its response to the claimant's notice
1955	of intent to initiate litigation, during the time period for
1956	response authorized pursuant to s. 766.106, the defendant or the
1957	defendant's insurer or self-insurer shall conduct an
1958	investigation to ascertain whether there are reasonable grounds
1959	to believe that:
1960	(a) The defendant was negligent in the care or treatment
1961	of the claimant; and
1962	(b) Such negligence resulted in injury to the claimant.
1963
1964	Corroboration of lack of reasonable grounds for medical
1965	negligence litigation shall be provided with any response
1966	rejecting the claim by the defendant's submission of a verified
1967	written medical expert opinion from a medical expert as defined
1968	in s. 766.202(5), at the time the response rejecting the claim
1969	is mailed, which statement shall corroborate reasonable grounds
1970	for lack of negligent injury sufficient to support the response
1971	denying negligent injury. This opinion and statement are subject
1972	to discovery.
1973	Section 40. Subsections (2), (3), and (7) of section
1974	766.207, Florida Statutes, are amended to read:
1975	766.207 Voluntary binding arbitration of medical
1976	negligence claims.--
1977	(2) Upon the completion of presuit investigation with
1978	preliminary reasonable grounds for a medical negligence claim
1979	intact, the parties may elect to have damages determined by an
1980	arbitration panel. Such election may be initiated by either
1981	party by serving a request for voluntary binding arbitration of
1982	damages within 18090days after service of the claimant's
1983	notice of intent to initiate litigation upon the defendant. The
1984	evidentiary standards for voluntary binding arbitration of
1985	medical negligence claims shall be as provided in ss.
1986	120.569(2)(g) and 120.57(1)(c).
1987	(3) Upon receipt of a party's request for such
1988	arbitration, the opposing party may accept the offer of
1989	voluntary binding arbitration within 30 days. However, in no
1990	event shall the defendant be required to respond to the request
1991	for arbitration sooner than 18090days after service of the
1992	notice of intent to initiate litigation under s. 766.106. Such
1993	acceptance within the time period provided by this subsection
1994	shall be a binding commitment to comply with the decision of the
1995	arbitration panel. The liability of any insurer shall be subject
1996	to any applicable insurance policy limits.
1997	(7) Arbitration pursuant to this section shall preclude
1998	recourse to any other remedy by the claimant against any
1999	participating defendant, and shall be undertaken with the
2000	understanding that damages shall be awarded as provided by
2001	general law, including the Wrongful Death Act, subject to the
2002	following limitations:
2003	(a) Net economic damages shall be awardable, including,
2004	but not limited to, past and future medical expenses and 80
2005	percent of wage loss and loss of earning capacity, offset by any
2006	collateral source payments.
2007	(b) Noneconomic damages shall be limited to a maximum of
2008	$250,000 per incident, and shall be calculated on a percentage
2009	basis with respect to capacity to enjoy life, so that a finding
2010	that the claimant's injuries resulted in a 50-percent reduction
2011	in his or her capacity to enjoy life would warrant an award of
2012	not more than $125,000 noneconomic damages.
2013	(c) Damages for future economic losses shall be awarded to
2014	be paid by periodic payments pursuant to s. 766.202(8) and shall
2015	be offset by future collateral source payments.
2016	(d) Punitive damages shall not be awarded.
2017	(e) The defendant shall be responsible for the payment of
2018	interest on all accrued damages with respect to which interest
2019	would be awarded at trial.
2020	(f) The defendant shall pay the claimant's reasonable
2021	attorney's fees and costs, as determined by the arbitration
2022	panel, but in no event more than 15 percent of the award,
2023	reduced to present value.
2024	(g) The defendant shall pay all the costs of the
2025	arbitration proceeding and the fees of all the arbitrators other
2026	than the administrative law judge.
2027	(h) Each defendant who submits to arbitration under this
2028	section shall be jointly and severally liable for all damages
2029	assessed pursuant to this section.
2030	(i) The defendant's obligation to pay the claimant's
2031	damages shall be for the purpose of arbitration under this
2032	section only. A defendant's or claimant's offer to arbitrate
2033	shall not be used in evidence or in argument during any
2034	subsequent litigation of the claim following the rejection
2035	thereof.
2036	(j) The fact of making or accepting an offer to arbitrate
2037	shall not be admissible as evidence of liability in any
2038	collateral or subsequent proceeding on the claim.
2039	(k) Any offer by a claimant to arbitrate must be made to
2040	each defendant against whom the claimant has made a claim. Any
2041	offer by a defendant to arbitrate must be made to each claimant
2042	who has joined in the notice of intent to initiate litigation,
2043	as provided in s. 766.106. A defendant who rejects a claimant's
2044	offer to arbitrate shall be subject to the provisions of s.
2045	766.209(3). A claimant who rejects a defendant's offer to
2046	arbitrate shall be subject to the provisions of s. 766.209(4).
2047	(l) The hearing shall be conducted by all of the
2048	arbitrators, but a majority may determine any question of fact
2049	and render a final decision. The chief arbitrator shall decide
2050	all evidentiary matters.
2051
2052	The provisions of this subsection shall not preclude settlement
2053	at any time by mutual agreement of the parties.
2054	Section 41. Section 766.213, Florida Statutes, is created
2055	to read:
2056	766.213 Periodic payment of damages upon death of
2057	claimant.--Any portion of a periodic payment made pursuant to a
2058	settlement or jury award or pursuant to mediation or arbitration
2059	which is attributable to medical expenses that have not yet been
2060	incurred shall terminate upon the death of the claimant. Any
2061	outstanding medical expenses incurred prior to the death of the
2062	claimant shall be paid from that portion of the periodic payment
2063	attributable to medical expenses.
2064	Section 42. Subsection (4) is added to section 768.041,
2065	Florida Statutes, to read:
2066	768.041 Release or covenant not to sue.--
2067	(4)(a) At trial pursuant to a suit filed under chapter
2068	766, or at trial pursuant to s. 766.209, if any defendant shows
2069	the court that the plaintiff, or his or her legal
2070	representative, has delivered a written release or covenant not
2071	to sue to any person in partial satisfaction of the damages sued
2072	for, the court shall set off this amount from the total amount
2073	of the damages set forth in the verdict and before entry of the
2074	final judgment.
2075	(b) The amount of the setoff pursuant to this subsection
2076	shall include all sums received by the plaintiff, including
2077	economic and noneconomic damages, costs, and attorney's fees.
2078	Section 43. Section 768.77, Florida Statutes, is amended
2079	to read:
2080	768.77 Itemized verdict.--
2081	(1) Except as provided in subsection (2),in any action to
2082	which this part applies in which the trier of fact determines
2083	that liability exists on the part of the defendant, the trier of
2084	fact shall, as a part of the verdict, itemize the amounts to be
2085	awarded to the claimant into the following categories of
2086	damages:
2087	(a)(1)Amounts intended to compensate the claimant for
2088	economic losses;
2089	(b)(2)Amounts intended to compensate the claimant for
2090	noneconomic losses; and
2091	(c)(3)Amounts awarded to the claimant for punitive
2092	damages, if applicable.
2093	(2) In any action for damages based on personal injury or
2094	wrongful death arising out of medical malpractice, whether in
2095	tort or contract, to which this part applies in which the trier
2096	of fact determines that liability exists on the part of the
2097	defendant, the trier of fact shall, as a part of the verdict,
2098	itemize the amounts to be awarded to the claimant into the
2099	following categories of damages:
2100	(a) Amounts intended to compensate the claimant for:
2101	1. Past economic losses; and
2102	2. Future economic losses, not reduced to present value,
2103	and the number of years or part thereof which the award is
2104	intended to cover;
2105	(b) Amounts intended to compensate the claimant for:
2106	1. Past noneconomic losses; and
2107	2. Future noneconomic losses and the number of years or
2108	part thereof which the award is intended to cover; and
2109	(c) Amounts awarded to the claimant for punitive damages,
2110	if applicable.
2111	Section 44. Subsection (2) and paragraph (a) of subsection
2112	(1) of section 768.78, Florida Statutes, is amended to read:
2113	768.78 Alternative methods of payment of damage awards.--
2114	(1)(a) In any action to which this part applies in which
2115	the court determines that an award to compensate the claimant
2116	includes future economic losses which exceed $250,000, payment
2117	of amounts intended to compensate the claimant for these losses
2118	shall be made by one of the following means, unless an
2119	alternative method of payment of damages is provided in this
2120	section:
2121	1. The defendant may make a lump-sum payment for all
2122	damages so assessed, with future economic losses and expenses
2123	reduced to present value; or
2124	2. Subject to the provisions of this subsection, the court
2125	shall, at the request of either party, unless the court
2126	determines that manifest injustice would result to any party,
2127	enter a judgment ordering future economic damages, as itemized
2128	pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid in
2129	whole or in part by periodic payments rather than by a lump-sum
2130	payment.
2131	(2)(a) In any action for damages based on personal injury
2132	or wrongful death arising out of medical malpractice, whether in
2133	tort or contract, in which the trier of fact makes an award to
2134	compensate the claimant for future economic or future
2135	noneconomiclosses, payment of amounts intended to compensate
2136	the claimant for these futurelosses shall be made by one of the
2137	following means:
2138	1. The defendant may elect to make a lump-sum payment for
2139	either or both theall damages so assessed, with future economic
2140	and future noneconomic losses after offset for collateral
2141	sources and after having beenand expensesreduced to present
2142	value by the court based upon competent, substantial evidence
2143	presented to it by the parties; or
2144	2. The defendant, if determined by the court to be
2145	financially capable or adequately insured, may elect to use
2146	periodic payments to satisfy in whole or in part the assessed
2147	future economic and future noneconomic losses awarded by the
2148	trier of fact after offset for collateral sources for so long as
2149	the claimant lives or the condition for which the award was made
2150	persists, whichever period may be shorter, but without regard
2151	for the number of years awarded by the trier of fact. The court
2152	shall review and, unless clearly unresponsive to the future
2153	needs of the claimant, approve the amounts and schedule of the
2154	periodic payments proposed by the defendant. Upon motion of the
2155	defendant, whether or not discharged from any obligation to make
2156	the payments pursuant to paragraph (b), and the establishment by
2157	substantial, competent evidence of either the death of the
2158	claimant or that the condition for which the award was made no
2159	longer persists, the court shall enter an order terminating the
2160	periodic payments effective as of the date of the death of the
2161	claimant or the date the condition for which the award was made
2162	no longer persisted.
2163	(b) A defendant that elects to make periodic payments of
2164	either or both future economic and future noneconomic losses may
2165	contractually obligate a company that is authorized to do
2166	business in this state and rated by A.M. Best Company as "A+" or
2167	higher to make those periodic payments on its behalf. Upon a
2168	joint petition by the defendant and the company that is
2169	contractually obligated to make the periodic payments, the court
2170	shall discharge the defendant from any further obligations to
2171	the claimant for those future economic and future noneconomic
2172	damages that are to be paid by that company by periodic
2173	payments.
2174	(c) Upon notice of a defendant's election to make periodic
2175	payments pursuant hereto, the claimant may request that the
2176	court modify the periodic payments to reasonably provide for
2177	attorney's fees; however, a court may not make any such
2178	modification that would increase the amount the defendant would
2179	have been obligated to pay had no such adjustment been made.
2180	(d) A bond or security may not be required of any
2181	defendant or company that is obligated to make periodic payments
2182	pursuant to this section; however, if, upon petition by a
2183	claimant who is receiving periodic payments pursuant to this
2184	section, the court finds that there is substantial, competent
2185	evidence that the defendant that is responsible for the periodic
2186	payments cannot adequately ensure full and continuous payments
2187	thereof or that the company that is obligated to make the
2188	payments has been rated by A.M. Best Company as "B+" or lower,
2189	and that doing so is in the best interest of the claimant, the
2190	court may require the defendant or the company that is obligated
2191	to make the periodic payments to provide such additional
2192	financial security as the court determines to be reasonable
2193	under the circumstances.
2194	(e) The provision for the periodic payments must specify
2195	the recipient or recipients of the payments, the address to
2196	which the payments are to be delivered, and the amount and
2197	intervals of the payments; however, in any one year, any payment
2198	or payments may not exceed the amount intended by the trier of
2199	fact to be awarded each year, offset for collateral sources. A
2200	periodic payment may not be accelerated, deferred, increased, or
2201	decreased, except by court order based upon the mutual consent
2202	and agreement of the claimant, the defendant, whether or not
2203	discharged, and the company that is obligated to make the
2204	periodic payments, if any; nor may the claimant sell, mortgage,
2205	encumber, or anticipate the periodic payments or any part
2206	thereof, by assignment or otherwise.
2207	(f) For purposes of this section, the term "periodic
2208	payment" means the payment of money or delivery of other
2209	property to the claimant at regular intervals.
2210	(g) It is the intent of the Legislature to authorize and
2211	encourage the payment of awards for future economic and future
2212	noneconomic losses by periodic payments to meet the continuing
2213	needs of the patient while eliminating the misdirection of such
2214	funds for purposes not intended by the trier of factcourt
2215	shall, at the request of either party, enter a judgment ordering
2216	future economic damages, as itemized pursuant to s. 768.77, to
2217	be paid by periodic payments rather than lump sum.
2218	(b) For purposes of this subsection, "periodic payment"
2219	means provision for the spreading of future economic damage
2220	payments, in whole or in part, over a period of time, as
2221	follows:
2222	1. A specific finding of the dollar amount of periodic
2223	payments which will compensate for these future damages after
2224	offset for collateral sources shall be made. The total dollar
2225	amount of the periodic payments shall equal the dollar amount of
2226	all such future damages before any reduction to present value.
2227	2. The defendant shall be required to post a bond or
2228	security or otherwise to assure full payment of these damages
2229	awarded. A bond is not adequate unless it is written by a
2230	company authorized to do business in this state and is rated A+
2231	by Best's. If the defendant is unable to adequately assure full
2232	payment of the damages, all damages, reduced to present value,
2233	shall be paid to the claimant in a lump sum. No bond may be
2234	canceled or be subject to cancellation unless at least 60 days'
2235	advance written notice is filed with the court and the claimant.
2236	Upon termination of periodic payments, the security, or so much
2237	as remains, shall be returned to the defendant.
2238	3. The provision for payment of future damages by periodic
2239	payments shall specify the recipient or recipients of the
2240	payments, the dollar amounts of the payments, the interval
2241	between payments, and the number of payments or the period of
2242	time over which payments shall be made.
2243	Section 45. Subsection (5) of section 768.81, Florida
2244	Statutes, is amended to read:
2245	768.81 Comparative fault.--
2246	(5) Notwithstanding anything in law to the contrary, in an
2247	action for damages for personal injury or wrongful death arising
2248	out of medical malpractice, whether in contract or tort, when an
2249	apportionment of damages pursuant to this section is attributed
2250	to a teaching hospital as defined in s. 408.07,the court shall
2251	enter judgment against the teaching hospital on the basis of
2252	eachsuchparty's percentage of fault and not on the basis of
2253	the doctrine of joint and several liability.
2254	Section 46. Section 1004.08, Florida Statutes, is created
2255	to read:
2256	1004.08 Patient safety instructional requirements.--Every
2257	public school, college, and university that offers degrees in
2258	medicine, nursing, and allied health shall include in the
2259	curricula applicable to such degrees material on patient safety,
2260	including patient safety improvement. Materials shall include,
2261	but need not be limited to, effective communication and
2262	teamwork; epidemiology of patient injuries and medical errors;
2263	vigilance, attention, and fatigue; checklists and inspections;
2264	automation and technological and computer support; psychological
2265	factors in human error; and reporting systems.
2266	Section 47. Section 1005.07, Florida Statutes, is created
2267	to read:
2268	1005.07 Patient safety instructional requirements.--Every
2269	nonpublic school, college, and university that offers degrees in
2270	medicine, nursing, and allied health shall include in the
2271	curricula applicable to such degrees material on patient safety,
2272	including patient safety improvement. Materials shall include,
2273	but need not be limited to, effective communication and
2274	teamwork; epidemiology of patient injuries and medical errors;
2275	vigilance, attention, and fatigue; checklists and inspections;
2276	automation and technological and computer support; psychological
2277	factors in human error; and reporting systems.
2278	Section 48. (1) The Department of Health shall study and
2279	report to the Legislature as to whether medical review panels
2280	should be included as part of the presuit process in medical
2281	malpractice litigation. Medical review panels review a medical
2282	malpractice case during the presuit process and make judgments
2283	on the merits of the case based on established standards of care
2284	with the intent of reducing the number of frivolous claims. The
2285	panel's report could be used as admissible evidence at trial or
2286	for other purposes. The department's report should address:
2287	(a) Historical use of medical review panels and similar
2288	pretrial programs in this state, including the mediation panels
2289	created by chapter 75-9, Laws of Florida.
2290	(b) Constitutional issues relating to the use of medical
2291	review panels.
2292	(c) The use of medical review panels or similar programs
2293	in other states.
2294	(d) Whether medical review panels or similar panels should
2295	be created for use during the presuit process.
2296	(e) Other recommendations and information that the
2297	department deems appropriate.
2298	(f) In submitting its report with respect to (a)-(c), the
2299	Department should identify at a minimum:
2300	1. The percentage of medical malpractice claims submitted
2301	to the panels during the time period the panels were in
2302	existence.
2303	2. The percentage of claims that were settled while the
2304	panels were in existence and the percentage of claims that were
2305	settled in the 3 years prior to the establishment of such panels
2306	or, for each panel which no longer exists, 3 years after the
2307	dissolution of such panels.
2308	3. In those state where panels have been discontinued,
2309	whether additional safeguards have been implemented to avoid the
2310	filing of frivolous lawsuits and what those additional
2311	safeguards are.
2312	4. How the rates for medical malpractice insurance in
2313	states utilizing such panels compares with the rates in states
2314	not utilizing such panels.
2315	5. Whether, and to what extent, a finding by a panel is
2316	subject to review and the burden of proof required to overcome a
2317	finding by the panel.
2318	(2) If the department finds that medical review panels or
2319	a similar structure should be created in this state, it shall
2320	include draft legislation to implement its recommendations in
2321	its report.
2322	(3) The department shall submit its report to the Speaker
2323	of the House of Representatives and the President of the Senate
2324	no later than December 31, 2003.
2325	Section 49. (1) The Agency for Health Care Administration
2326	shall conduct or contract for a study to determine what
2327	information is most feasible to provide to the public comparing
2328	state-licensed hospitals on certain inpatient quality indicators
2329	developed by the federal Agency for Healthcare Research and
2330	Quality. Such indicators shall be designed to identify
2331	information about specific procedures performed in hospitals for
2332	which there is strong evidence of a link to quality of care. The
2333	Agency for Health Care Administration or the study contractor
2334	shall refer to the hospital quality reports published in New
2335	York and Texas as guides during the evaluation.
2336	(2) The following concepts shall be specifically addressed
2337	in the study report:
2338	(a) Whether hospital discharge data about services can be
2339	translated into understandable and meaningful information for
2340	the public.
2341	(b) Whether the following measures are useful consumer
2342	guides relating to care provided in state-licensed hospitals:
2343	1. Inpatient mortality for medical conditions;
2344	2. Inpatient mortality for procedures;
2345	3. Utilization of procedures for which there are questions
2346	of overuse, underuse, or misuse; and
2347	4. Volume of procedures for which there is evidence that a
2348	higher volume of procedures is associated with lower mortality.
2349	(c) Whether there are quality indicators that are
2350	particularly useful relative to the state's unique demographics.
2351	(d) Whether all hospitals should be included in the
2352	comparison.
2353	(e) The criteria for comparison.
2354	(f) Whether comparisons are best within metropolitan
2355	statistical areas or some other geographic configuration.
2356	(g) Identification of several Internet websites on which
2357	such a report should be published to achieve the broadest
2358	dissemination of the information.
2359	(3) The Agency for Health Care Administration shall
2360	consider the input of all interested parties, including
2361	hospitals, physicians, consumer organizations, and patients, and
2362	submit the final report to the Governor and the presiding
2363	officers of the Legislature by January 1, 2004.
2364	Section 50. Comprehensive study and report on the creation
2365	of a Patient Safety Authority.--
2366	(1) The Agency for Health Care Administration, in
2367	consultation with the Department of Health, is directed to study
2368	the need for, and the implementation requirements of,
2369	establishing a Patient Safety Authority. The authority would be
2370	responsible for performing activities and functions designed to
2371	improve patient safety and the quality of care delivered by
2372	health care facilities and health care practitioners.
2373	(2) In undertaking its study, the agency shall examine and
2374	evaluate a Patient Safety Authority that would, either directly
2375	or by contract:
2376	(a) Analyze information concerning adverse incidents
2377	reported to the Agency for Health Care Administration pursuant
2378	to s. 395.0197, Florida Statutes, for the purpose of
2379	recommending changes in practices and procedures that may be
2380	implemented by health care practitioners and health care
2381	facilities to prevent future adverse incidents.
2382	(b) Collect, analyze, and evaluate patient safety data
2383	submitted voluntarily by a health care practitioner or health
2384	care facility. The authority would communicate to health care
2385	practitioners and health care facilities changes in practices
2386	and procedures that may be implemented for the purpose of
2387	improving patient safety and preventing future patient safety
2388	events from resulting in serious injury or death. At a minimum,
2389	the authority would:
2390	1. Be designed and operated by an individual or entity
2391	with demonstrated expertise in health care quality data and
2392	systems analysis, health information management, systems
2393	thinking and analysis, human factors analysis, and
2394	identification of latent and active errors.
2395	2. Include procedures for ensuring its confidentiality,
2396	timeliness, and independence.
2397	(c) Foster the development of a statewide electronic
2398	infrastructure, which would be implemented in phases over a
2399	multiyear period, that is designed to improve patient care and
2400	the delivery and quality of health care services by health care
2401	facilities and practitioners. The electronic infrastructure
2402	would be a secure platform for communication and the sharing of
2403	clinical and other data, such as business data, among providers
2404	and between patients and providers. The electronic
2405	infrastructure would include a core electronic medical record.
2406	Health care providers would have access to individual electronic
2407	medical records, subject to the consent of the individual. The
2408	right, if any, of other entities, including health insurers and
2409	researchers, to access the records would need further
2410	examination and evaluation by the agency.
2411	(d) Foster the use of computerized physician medication
2412	ordering systems by hospitals that do not have such systems and
2413	develop protocols for these systems.
2414	(e) Implement paragraphs (c) and (d) as a demonstration
2415	project for Medicaid recipients.
2416	(f) Identify best practices and share this information
2417	with health care providers.
2418	(g) Engage in other activities that improve health care
2419	quality, improve the diagnosis and treatment of diseases and
2420	medical conditions, increase the efficiency of the delivery of
2421	health care services, increase administrative efficiency, and
2422	increase access to quality health care services.
2423	(3) The agency shall also consider ways in which a Patient
2424	Safety Authority would be able to facilitate the development of
2425	no-fault demonstration projects as means to reduce and prevent
2426	medical errors and promote patient safety.
2427	(4) The agency shall seek information and advice from and
2428	consult with hospitals, physicians, other health care providers,
2429	attorneys, consumers, and individuals involved with and
2430	knowledgeable about patient safety and quality-of-care
2431	initiatives.
2432	(5) In evaluating the need for, and the operation of, a
2433	Patient Safety Authority, the agency shall determine the costs
2434	of implementing and administering an authority and suggest
2435	funding sources and mechanisms.
2436	(6) The agency shall complete its study and issue a report
2437	to the Legislature by February 1, 2004. In its report, the
2438	agency shall include specific findings, recommendations, and
2439	proposed legislation.
2440	Section 51. The Office of Program Policy Analysis and
2441	Government Accountability shall complete a study of the
2442	eligibility requirements for a birth to be covered under the
2443	Florida Birth-Related Neurological Injury Compensation
2444	Association and submit a report to the Legislature by January 1,
2445	2004, recommending whether the statutory criteria for a claim to
2446	qualify for referral to the Florida Birth-Related Neurological
2447	Injury Compensation Association under s. 766.302, Florida
2448	Statutes, should be modified.
2449	Section 52. Civil immunity for members of or consultants
2450	to certain boards, committees, or other entities.--
2451	(1) Each member of, or health care professional consultant
2452	to, any committee, board, group, commission, or other entity
2453	shall be immune from civil liability for any act, decision,
2454	omission, or utterance done or made in performance of his or her
2455	duties while serving as a member of or consultant to such
2456	committee, board, group, commission, or other entity established
2457	and operated for purposes of quality improvement review,
2458	evaluation, and planning in a state-licensed health care
2459	facility. Such entities must function primarily to review,
2460	evaluate, or make recommendations relating to:
2461	(a) The duration of patient stays in health care
2462	facilities;
2463	(b) The professional services furnished with respect to
2464	the medical, dental, psychological, podiatric, chiropractic, or
2465	optometric necessity for such services;
2466	(c) The purpose of promoting the most efficient use of
2467	available health care facilities and services;
2468	(d) The adequacy or quality of professional services;
2469	(e) The competency and qualifications for professional
2470	staff privileges;
2471	(f) The reasonableness or appropriateness of charges made
2472	by or on behalf of health care facilities; or
2473	(g) Patient safety, including entering into contracts with
2474	patient safety organizations.
2475	(2) Such committee, board, group, commission, or other
2476	entity must be established in accordance with state law or in
2477	accordance with requirements of the Joint Commission on
2478	Accreditation of Healthcare Organizations, established and duly
2479	constituted by one or more public or licensed private hospitals
2480	or behavioral health agencies, or established by a governmental
2481	agency. To be protected by this section, the act, decision,
2482	omission, or utterance may not be made or done in bad faith or
2483	with malicious intent.
2484	Section 53. The Office of Program Policy Analysis and
2485	Government Accountability and the Office of the Auditor General
2486	must jointly conduct an audit of the Department of Health's
2487	health care practitioner disciplinary process and closed claims
2488	that are filed with the department under section 627.912,
2489	Florida Statutes. The Office of Program Policy Analysis and
2490	Government Accountability and the Office of the Auditor General
2491	shall submit a report to the Legislature by January 1, 2005.
2492	Section 54. No later than September 1, 2003, the
2493	Department of Health shall convene a workgroup to study the
2494	current healthcare practitioner disciplinary process. The
2495	workgroup shall include a representative of the Administrative
2496	Law section of The Florida Bar, a representative of the Health
2497	Law section of The Florida Bar, a representative of the Florida
2498	Medical Association, a representative of the Florida Osteopathic
2499	Medical Association, a representative of the Florida Dental
2500	Association, a member of the Florida Board of Medicine who has
2501	served on the probable cause panel, a member of the Board of
2502	Osteopathic Medicine who has served on the probable cause panel,
2503	and a member of the Board of Dentistry who has served on the
2504	probable cause panel. The workgroup shall also include one
2505	consumer member of the Board of Medicine. The Department of
2506	Health shall present the findings and recommendations to the
2507	Governor, the President of the Senate, and the Speaker of the
2508	House of Representatives no later than January 1, 2004. The
2509	sponsoring organizations shall assume the costs of their
2510	representatives.
2511	Section 55. If any provision of this act or the
2512	application thereof to any person or circumstance is held
2513	invalid, the invalidity does not affect other provisions or
2514	applications of the act which can be given effect without the
2515	invalid provision or application, and to this end the provisions
2516	of this act are declared severable.
2517	Section 56. If any law amended by this act was also
2518	amended by a law enacted at the 2003 Regular Session of the
2519	Legislature or at the 2003 Special Session A of the Legislature,
2520	such laws shall be construed as if they had been enacted at the
2521	same session of the Legislature, and full effect shall be given
2522	to each if possible.
2523	Section 57. This act shall take effect upon becoming law
2524	and shall apply to any action arising from a medical malpractice
2525	claim initiated by a notice of intent to litigate received by a
2526	potential defendant in a medical malpractice case on or after
2527	that date.