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. 641.19, F.S.; providing that
123	health care providers providing services pursuant to
124	coverage provided under a health maintenance organization
125	contract are not employees or agents of the health
126	maintenance organization; providing exceptions; amending
127	s. 641.51, F.S.; proscribing a health maintenance
128	organization’s right to control the professional judgment
129	of a physician; providing that a health maintenance
130	organization shall not be vicariously liable for the
131	medical negligence of a health care provider; providing
132	exceptions; amending s. 766.106, F.S.; requiring the
133	inclusion of additional information in presuit notices
134	provided to defendants; extending the time period for the
135	presuit screening period; providing that liability is
136	deemed admitted when an offer is made by a defendant to
137	arbitrate providing conditions for causes of action for
138	bad faith against insurers providing coverage for medical
139	negligence; specifying consequences of failure to
140	cooperate on the part of any party during the presuit
141	investigation; providing factors to be considered with
142	respect to certain claims against bad faith against an
143	insurer; revising requirements for presuit notice and
144	insurer or self-insurer response to a claim; permitting
145	written questions during informal discovery; requiring a
146	claimant to execute a medical release to authorize
147	defendants in medical negligence actions to take unsworn
148	statements from a claimant's treating physicians;
149	providing for informal discovery without notice; imposing
150	limits on such statements; creating s. 766.1065, F.S.;
151	requiring parties to provide certain information to
152	parties without request; authorizing the issuance of
153	subpoenas without case numbers; requiring that parties and
154	certain experts be made available for deposition; creating
155	s. 766.1067, F.S.; providing for mandatory mediation in
156	medical negligence causes of action; creating s. 766.118,
157	F.S.; providing a limitation on noneconomic damages which
158	can be awarded in causes of action involving medical
159	negligence; creating s. 766.2015, F.S.; providing for the
160	award of prevailing party attorney’s fees and costs for
161	frivolous claims; amending s. 766.202, F.S.; redefining
162	the terms "economic damages," "medical expert,"
163	"noneconomic damages," and "periodic payment"; extending
164	the definitions of economic and noneconomic damages to
165	include any such damages recoverable under the Wrongful
166	Death Act or general law; providing requirements for
167	medical experts; providing for periodic payments for
168	future noneconomic damages; revising regulations of
169	periodic payments; amending s. 766.203, F.S.; providing
170	for discovery of opinions and statements tendered during
171	presuit investigation; amending s. 766.207, F.S.;
172	conforming provisions to the extension in the time period
173	for presuit investigation; providing for the applicability
174	of the Wrongful Death Act and general law to arbitration
175	awards; creating s. 766.213, F.S.; providing for the
176	termination of periodic payments for unincurred medical
177	expenses upon the death of the claimant; providing for the
178	payment of medical expenses incurred prior to the death of
179	the claimant; amending s. 768.041, F.S.; revising
180	requirements for setoffs against damages in medical
181	malpractice actions if there is a written release or
182	covenant not to sue; amending s. 768.77, F.S.; prescribing
183	a method for itemization of specific categories of damages
184	awarded in medical malpractice actions; amending s.
185	768.78, F.S.; correcting a cross reference; providing that
186	a defendant may elect to make lump sum payments rather
187	than periodic payments for either or both future economic
188	and noneconomic damages; authorizing the payment of
189	certain losses for a shorter period of time under certain
190	circumstances; providing for modification of periodic
191	payments or for requiring additional security by order of
192	the court under certain circumstances; amending ss.
193	766.112 and 768.81, F.S.; providing that a defendant's
194	liability for damages in medical negligence cases is
195	several only; creating s. 1004.08, F.S.; requiring patient
196	safety instruction for certain students in public schools,
197	colleges, and universities; creating s. 1004.085, F.S.;
198	requiring certain public schools to assist the Department
199	of Health in the development of information to be provided
200	to patients and their families on risks of treatment
201	options to assist in receiving informed consent; creating
202	s. 1005.07, F.S.; requiring patient safety instruction for
203	certain students in nonpublic schools, colleges, and
204	universities; creating s. 1005.075, F.S.; requiring
205	certain nonpublic schools to assist the Department of
206	Health in the development of information to be provided to
207	patients and their families on risks of treatment options
208	to assist in receiving informed consent; requiring the
209	Department of Health to study the efficacy and
210	constitutionality of medical review panels; requiring a
211	report; directing the Agency for Health Care
212	Administration to conduct or contract for a study to
213	determine what information to provide to the public
214	comparing hospitals, based on inpatient quality indicators
215	developed by the federal Agency for Healthcare Research
216	and Quality; requiring a report by the Agency for Health
217	Care Administration regarding the establishment of a
218	Patient Safety Authority; specifying elements of the
219	report; requiring the Office of Program Policy Analysis
220	and Government Accountability to study and report to the
221	Legislature on requirements for coverage by the Florida
222	Birth-Related Neurological Injury Compensation
223	Association; providing civil immunity for certain
224	participants in quality improvement processes; requiring
225	the Office of Program Policy Analysis and Government
226	Accountability and the Office of the Auditor General to
227	conduct an audit of the Department of Health's health care
228	practitioner disciplinary process and certain closed
229	claims and to report to the Legislature; creating a
230	workgroup to study the health care practitioner
231	disciplinary process; providing for workgroup membership;
232	providing that the workgroup deliver its report by January
233	1, 2004; providing restrictions on advertisements or other
234	similar public dissemination of information by or on
235	behalf of an attorney regarding issues of medical
236	malpractice; providing severability; providing legislative
237	findings and intent; amending s. 768.28, F.S.; revising
238	the definition of the term "officer, employee, or agent"
239	to include certain receiving facilities and employees or
240	agents of such facilities, providers of emergency medical
241	services and care, and certain hospitals for purposes of
242	limitation of liability in tort under certain
243	circumstances; providing that providers of emergency
244	medical services and care are deemed agents of the
245	Department of Health for certain purposes; requiring such
246	providers to indemnify the state for certain reasonable
247	defense and indemnity costs within certain limitations;
248	specifying certain persons as providers of emergency
249	medical services and care; defining emergency medical
250	services; providing severability; providing for
251	construction of the act in pari materia with laws enacted
252	during the 2003 Regular Session or the 2003 Special
253	Session A of the Legislature; providing an effective date.
254
255	Be It Enacted by the Legislature of the State of Florida:
256
257	Section 1. Findings.--
258	(1) The Legislature finds that Florida is in the midst of
259	a medical malpractice insurance crisis of unprecedented
260	magnitude.
261	(2) The Legislature finds that this crisis threatens the
262	quality and availability of health care for all Florida
263	citizens.
264	(3) The Legislature finds that the rapidly growing
265	population and the changing demographics of Florida make it
266	imperative that students continue to choose Florida as the place
267	they will receive their medical educations and practice
268	medicine.
269	(4) The Legislature finds that Florida is among the states
270	with the highest medical malpractice insurance premiums in the
271	nation.
272	(5) The Legislature finds that the cost of medical
273	malpractice insurance has increased dramatically during the past
274	decade and both the increase and the current cost are
275	substantially higher than the national average.
276	(6) The Legislature finds that the increase in medical
277	malpractice liability insurance rates is forcing physicians to
278	practice medicine without professional liability insurance, to
279	leave Florida, to not perform high-risk procedures, or to retire
280	early from the practice of medicine.
281	(7) The Legislature finds that there are certain elements
282	of damage presently recoverable that have no monetary value,
283	except on a purely arbitrary basis, while other elements of
284	damage are either easily measured on a monetary basis or reflect
285	ultimate monetary loss.
286	(8) The Governor created the Governor's Select Task Force
287	on Healthcare Professional Liability Insurance to study and make
288	recommendations to address these problems.
289	(9) The Legislature has reviewed the findings and
290	recommendations of the Governor's Select Task Force on
291	Healthcare Professional Liability Insurance.
292	(10) The Legislature finds that the Governor's Select Task
293	Force on Healthcare Professional Liability Insurance has
294	established that a medical malpractice crisis exists in the
295	State of Florida which can be alleviated by the adoption of
296	comprehensive legislatively enacted reforms.
297	(11) The Legislature finds that making high-quality health
298	care available to the citizens of this state is an overwhelming
299	public necessity.
300	(12) The Legislature finds that ensuring that physicians
301	continue to practice in Florida is an overwhelming public
302	necessity.
303	(13) The Legislature finds that ensuring the availability
304	of affordable professional liability insurance for physicians is
305	an overwhelming public necessity.
306	(14) The Legislature finds, based upon the findings and
307	recommendations of the Governor's Select Task Force on
308	Healthcare Professional Liability Insurance, the findings and
309	recommendations of various study groups throughout the nation,
310	and the experience of other states, that the overwhelming public
311	necessities of making quality health care available to the
312	citizens of this state, of ensuring that physicians continue to
313	practice in Florida, and of ensuring that those physicians have
314	the opportunity to purchase affordable professional liability
315	insurance cannot be met unless a cap on noneconomic damages in
316	an amount no higher than $250,000 is imposed.
317	(15) The Legislature finds that the high cost of medical
318	malpractice claims can be substantially alleviated by imposing a
319	limitation on noneconomic damages in medical malpractice
320	actions.
321	(16) The Legislature further finds that there is no
322	alternative measure of accomplishing such result without
323	imposing even greater limits upon the ability of persons to
324	recover damages for medical malpractice.
325	(17) The Legislature finds that the provisions of this act
326	are naturally and logically connected to each other and to the
327	purpose of making quality health care available to the citizens
328	of Florida.
329	(18) The Legislature finds that each of the provisions of
330	this act is necessary to alleviate the crisis relating to
331	medical malpractice insurance.
332	Section 2. Subsection (4) is added to section 46.015,
333	Florida Statutes, to read:
334	46.015 Release of parties.--
335	(4)(a) At trial pursuant to a suit filed under chapter 766
336	or pursuant to s. 766.209, if any defendant shows the court that
337	the plaintiff, or his or her legal representative, has delivered
338	a written release or covenant not to sue to any person in
339	partial satisfaction of the damages sued for, the court shall
340	setoff this amount from the total amount of the damages set
341	forth in the verdict and before entry of the final judgment.
342	(b) The amount of any set off under this subsection shall
343	include all sums received by the plaintiff, including economic
344	and noneconomic damages, costs, and attorney's fees.
345	Section 3. Subsection (7) of section 395.0191, Florida
346	Statutes, is amended to read:
347	395.0191 Staff membership and clinical privileges.--
348	(7) There shall be no monetary liability on the part of,
349	and no cause of action for injunctive relief ordamages shall
350	arise against, any licensed facility, its governing board or
351	governing board members, medical staff, or disciplinary board or
352	against its agents, investigators, witnesses, or employees, or
353	against any other person, for any action arising out of or
354	related to carrying out the provisions of this section, absent
355	taken in good faith and without intentional fraud in carrying
356	out the provisions of this section.
357	Section 4. Section 395.1012, Florida Statutes, is created
358	to read:
359	395.1012 Patient safety.--
360	(1) Each licensed facility shall adopt a patient safety
361	plan. A plan adopted to implement the requirements of 42 C.F.R.
362	s. 482.21 shall be deemed to comply with this requirement.
363	(2) Each licensed facility shall appoint a patient safety
364	officer and a patient safety committee, which shall include at
365	least one person who is neither employed by nor practicing in
366	the facility, for the purpose of promoting the health and safety
367	of patients, reviewing and evaluating the quality of patient
368	safety measures used by the facility, and assisting in the
369	implementation of the facility patient safety plan.
370	Section 5. Section 395.1051, Florida Statutes, is created
371	to read:
372	395.1051 Duty to notify patients.--Every licensed facility
373	shall inform each patient, or an individual identified pursuant
374	to s. 765.401(1), in person about unanticipated outcomes of care
375	that result in serious harm to the patient. Notification of
376	outcomes of care that result in harm to the patient under this
377	section shall not constitute an acknowledgement or admission of
378	liability, nor can it be introduced as evidence in any civil
379	lawsuit.
380	Section 6. Section 415.1111, Florida Statutes, is amended
381	to read:
382	415.1111 Civil actions.--A vulnerable adult who has been
383	abused, neglected, or exploited as specified in this chapter has
384	a cause of action against any perpetrator and may recover actual
385	and punitive damages for such abuse, neglect, or exploitation.
386	The action may be brought by the vulnerable adult, or that
387	person's guardian, by a person or organization acting on behalf
388	of the vulnerable adult with the consent of that person or that
389	person's guardian, or by the personal representative of the
390	estate of a deceased victim without regard to whether the cause
391	of death resulted from the abuse, neglect, or exploitation. The
392	action may be brought in any court of competent jurisdiction to
393	enforce such action and to recover actual and punitive damages
394	for any deprivation of or infringement on the rights of a
395	vulnerable adult. A party who prevails in any such action may be
396	entitled to recover reasonable attorney's fees, costs of the
397	action, and damages. The remedies provided in this section are
398	in addition to and cumulative with other legal and
399	administrative remedies available to a vulnerable adult.
400	Notwithstanding the foregoing, any civil action for damages
401	against any licensee or entity who establishes, controls,
402	conducts, manages, or operates a facility licensed under part II
403	of chapter 400 relating to its operation of the licensed
404	facility shall be brought pursuant to s. 400.023, or against any
405	licensee or entity who establishes, controls, conducts, manages,
406	or operates a facility licensed under part III of chapter 400
407	relating to its operation of the licensed facility shall be
408	brought pursuant to s. 400.429. Such licensee or entity shall
409	not be vicariously liable for the acts or omissions of its
410	employees or agents or any other third party in an action
411	brought under this section. Notwithstanding the provisions of
412	this section, any claim that qualifies as a claim for medical
413	malpractice, as defined in s. 766.106(1)(a), against any
414	licensee or entity who establishes, controls, conducts, manages,
415	or operates a facility licensed under chapter 395 shall be
416	brought pursuant to chapter 766.
417	Section 7. Paragraph (a) of subsection (1) of section
418	456.039, Florida Statutes, is amended to read:
419	456.039 Designated health care professionals; information
420	required for licensure.--
421	(1) Each person who applies for initial licensure as a
422	physician under chapter 458, chapter 459, chapter 460, or
423	chapter 461, except a person applying for registration pursuant
424	to ss. 458.345 and 459.021, must, at the time of application,
425	and each physician who applies for license renewal under chapter
426	458, chapter 459, chapter 460, or chapter 461, except a person
427	registered pursuant to ss. 458.345 and 459.021, must, in
428	conjunction with the renewal of such license and under
429	procedures adopted by the Department of Health, and in addition
430	to any other information that may be required from the
431	applicant, furnish the following information to the Department
432	of Health:
433	(a)1. The name of each medical school that the applicant
434	has attended, with the dates of attendance and the date of
435	graduation, and a description of all graduate medical education
436	completed by the applicant, excluding any coursework taken to
437	satisfy medical licensure continuing education requirements.
438	2. The name of each hospital at which the applicant has
439	privileges.
440	3. The address at which the applicant will primarily
441	conduct his or her practice.
442	4. Any certification that the applicant has received from
443	a specialty board that is recognized by the board to which the
444	applicant is applying.
445	5. The year that the applicant began practicing medicine.
446	6. Any appointment to the faculty of a medical school
447	which the applicant currently holds and an indication as to
448	whether the applicant has had the responsibility for graduate
449	medical education within the most recent 10 years.
450	7. A description of any criminal offense of which the
451	applicant has been found guilty, regardless of whether
452	adjudication of guilt was withheld, or to which the applicant
453	has pled guilty or nolo contendere. A criminal offense committed
454	in another jurisdiction which would have been a felony or
455	misdemeanor if committed in this state must be reported. If the
456	applicant indicates that a criminal offense is under appeal and
457	submits a copy of the notice for appeal of that criminal
458	offense, the department must state that the criminal offense is
459	under appeal if the criminal offense is reported in the
460	applicant's profile. If the applicant indicates to the
461	department that a criminal offense is under appeal, the
462	applicant must, upon disposition of the appeal, submit to the
463	department a copy of the final written order of disposition.
464	8. A description of any final disciplinary action taken
465	within the previous 10 years against the applicant by the agency
466	regulating the profession that the applicant is or has been
467	licensed to practice, whether in this state or in any other
468	jurisdiction, by a specialty board that is recognized by the
469	American Board of Medical Specialties, the American Osteopathic
470	Association, or a similar national organization, or by a
471	licensed hospital, health maintenance organization, prepaid
472	health clinic, ambulatory surgical center, or nursing home.
473	Disciplinary action includes resignation from or nonrenewal of
474	medical staff membership or the restriction of privileges at a
475	licensed hospital, health maintenance organization, prepaid
476	health clinic, ambulatory surgical center, or nursing home taken
477	in lieu of or in settlement of a pending disciplinary case
478	related to competence or character. If the applicant indicates
479	that the disciplinary action is under appeal and submits a copy
480	of the document initiating an appeal of the disciplinary action,
481	the department must state that the disciplinary action is under
482	appeal if the disciplinary action is reported in the applicant's
483	profile.
484	9. Relevant professional qualifications as defined by the
485	applicable board.
486	Section 8. Section 456.041, Florida Statutes, is amended
487	to read:
488	456.041 Practitioner profile; creation.--
489	(1)(a)Beginning July 1, 1999, the Department of Health
490	shall compile the information submitted pursuant to s. 456.039
491	into a practitioner profile of the applicant submitting the
492	information, except that the Department of Health may develop a
493	format to compile uniformly any information submitted under s.
494	456.039(4)(b). Beginning July 1, 2001, the Department of Health
495	may, and beginning July 1, 2004, shall,compile the information
496	submitted pursuant to s. 456.0391 into a practitioner profile of
497	the applicant submitting the information.
498	(b) Each practitioner licensed under chapter 458 or
499	chapter 459 must report to the Department of Health and the
500	Board of Medicine or the Board of Osteopathic Medicine,
501	respectively, all final disciplinary actions, sanctions by a
502	governmental agency or a facility or entity licensed under state
503	law, and claims or actions, as provided under s. 456.051, to
504	which he or she is subjected no later than 15 calendar days
505	after such action or sanction is imposed. Failure to submit the
506	requisite information within 15 calendar days in accordance with
507	this paragraph shall subject the practitioner to discipline by
508	the Board of Medicine or the Board of Osteopathic Medicine and a
509	fine of $100 for each day that the information is not submitted
510	after the expiration of the 15-day reporting period.
511	(c) Within 15 days after receiving a report under
512	paragraph (b), the department shall update the practitioner's
513	profile in accordance with the requirements of subsection (7).
514	(2) On the profile published under subsection (1), the
515	department shall indicate whetherifthe information provided
516	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
517	corroborated by a criminal history check conducted according to
518	this subsection. If the information provided under s.
519	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
520	criminal history check, the fact that the criminal history check
521	was performed need not be indicated on the profile.The
522	department, or the board having regulatory authority over the
523	practitioner acting on behalf of the department, shall
524	investigate any information received by the department or the
525	board when it has reasonable grounds to believe that the
526	practitioner has violated any law that relates to the
527	practitioner's practice.
528	(3) The Department of Health shallmayinclude in each
529	practitioner's practitioner profile that criminal information
530	that directly relates to the practitioner's ability to
531	competently practice his or her profession. The department must
532	include in each practitioner's practitioner profile the
533	following statement: "The criminal history information, if any
534	exists, may be incomplete; federal criminal history information
535	is not available to the public." The department shall provide in
536	each practitioner profile, for every final disciplinary action
537	taken against the practitioner, a narrative description, written
538	in plain English, that explains the administrative complaint
539	filed against the practitioner and the final disciplinary action
540	imposed on the practitioner. The department shall include a
541	hyperlink to each final order listed on its Internet website
542	report of dispositions of recent disciplinary actions taken
543	against practitioners.
544	(4) The Department of Health shall include, with respect
545	to a practitioner licensed under chapter 458 or chapter 459, a
546	statement of how the practitioner has elected to comply with the
547	financial responsibility requirements of s. 458.320 or s.
548	459.0085. The department shall include, with respect to
549	practitioners subject to s. 456.048, a statement of how the
550	practitioner has elected to comply with the financial
551	responsibility requirements of that section. The department
552	shall include, with respect to practitioners licensed under
553	chapter 458, chapter 459, or chapter 461, information relating
554	to liability actions which has been reported under s. 456.049 or
555	s. 627.912 within the previous 10 years for any paid claim of
556	$50,000 or morethat exceeds $5,000. Such claims information
557	shall be reported in the context of comparing an individual
558	practitioner's claims to the experience of other practitioners
559	within the same specialty, or profession if the practitioner is
560	not a specialist, to the extent such information is available to
561	the Department of Health. The department shall include a
562	hyperlink to all such comparison reports in such practitioner's
563	profile on its Internet website.If information relating to a
564	liability action is included in a practitioner's practitioner
565	profile, the profile must also include the following statement:
566	"Settlement of a claim may occur for a variety of reasons that
567	do not necessarily reflect negatively on the professional
568	competence or conduct of the practitioner. A payment in
569	settlement of a medical malpractice action or claim should not
570	be construed as creating a presumption that medical malpractice
571	has occurred."
572	(5) The Department of Health shallmay not include the
573	date of adisciplinary action taken by a licensed hospital or an
574	ambulatory surgical center, in accordance with the requirements
575	of s. 395.0193, in the practitioner profile. Any practitioner
576	disciplined under paragraph (1)(b) must report to the department
577	the date the disciplinary action was imposed. The department
578	shall state whether the action is related to professional
579	competence and whether it is related to the delivery of services
580	to a patient.
581	(6) The Department of Health may include in the
582	practitioner's practitioner profile any other information that
583	is a public record of any governmental entity and that relates
584	to a practitioner's ability to competently practice his or her
585	profession. However, the department must consult with the board
586	having regulatory authority over the practitioner before such
587	information is included in his or her profile.
588	(7) Upon the completion of a practitioner profile under
589	this section, the Department of Health shall furnish the
590	practitioner who is the subject of the profile a copy of it. The
591	practitioner has a period of 30 days in which to review the
592	profile and to correct any factual inaccuracies in it. The
593	Department of Health shall make the profile available to the
594	public at the end of the 30-day period. The department shall
595	make the profiles available to the public through the World Wide
596	Web and other commonly used means of distribution.
597	(8) The Department of Health shall provide in each profile
598	an easy-to-read explanation of any disciplinary action taken and
599	the reason the sanction or sanctions were imposed.
600	(9)(8)Making a practitioner profile available to the
601	public under this section does not constitute agency action for
602	which a hearing under s. 120.57 may be sought.
603	Section 9. Section 456.042, Florida Statutes, is amended
604	to read:
605	456.042 Practitioner profiles; update.--A practitioner
606	must submit updates of required information within 15 days after
607	the final activity that renders such information a fact.The
608	Department of Health shall update each practitioner's
609	practitioner profile periodically. An updated profile is subject
610	to the same requirements as an original profile with respect to
611	the period within which the practitioner may review the profile
612	for the purpose of correcting factual inaccuracies.
613	Section 10. Subsection (1) of section 456.049, Florida
614	Statutes, is amended, and subsection (3) is added to said
615	section, to read:
616	456.049 Health care practitioners; reports on professional
617	liability claims and actions.--
618	(1) Any practitioner of medicine licensed pursuant to the
619	provisions of chapter 458, practitioner of osteopathic medicine
620	licensed pursuant to the provisions of chapter 459, podiatric
621	physician licensed pursuant to the provisions of chapter 461, or
622	dentist licensed pursuant to the provisions of chapter 466 shall
623	report to the department any claim or action for damages for
624	personal injury alleged to have been caused by error, omission,
625	or negligence in the performance of such licensee's professional
626	services or based on a claimed performance of professional
627	services without consent if the claim was not covered by an
628	insurer required to report under s. 627.912 andthe claim
629	resulted in:
630	(a) A final judgment of $50,000 or more or, with respect
631	to a dentist licensed pursuant to chapter 466, a final judgment
632	of $25,000 or morein any amount.
633	(b) A settlement of $50,000 or more or, with respect to a
634	dentist licensed pursuant to chapter 466, a settlement of
635	$25,000 or morein any amount.
636	(c) A final disposition not resulting in payment on behalf
637	of the licensee.
638
639	Reports shall be filed with the department no later than 60 days
640	following the occurrence of any event listed in paragraph (a),
641	paragraph (b), or paragraph (c).
642	(3) The department shall forward the information collected
643	under this section to the Office of Insurance Regulation.
644	Section 11. Section 456.051, Florida Statutes, is amended
645	to read:
646	456.051 Reports of professional liability actions;
647	bankruptcies; Department of Health's responsibility to
648	provide.--
649	(1) The report of a claim or action for damages for
650	personal injury which is required to be provided to the
651	Department of Health under s. 456.049 or s. 627.912 is public
652	information except for the name of the claimant or injured
653	person, which remains confidential as provided in ss.
654	456.049(2)(d) and 627.912(2)(e). The Department of Health
655	shall, upon request, make such report available to any person.
656	The department shall make such report available as a part of the
657	practitioner's profile within 45 calendar days after receipt.
658	(2) Any information in the possession of the Department of
659	Health which relates to a bankruptcy proceeding by a
660	practitioner of medicine licensed under chapter 458, a
661	practitioner of osteopathic medicine licensed under chapter 459,
662	a podiatric physician licensed under chapter 461, or a dentist
663	licensed under chapter 466 is public information. The Department
664	of Health shall, upon request, make such information available
665	to any person. The department shall make such report available
666	as a part of the practitioner's profile within 45 calendar days
667	after receipt.
668	Section 12. Paragraph (a) of subsection (7) of section
669	456.057, Florida Statutes, is amended to read:
670	456.057 Ownership and control of patient records; report
671	or copies of records to be furnished.--
672	(7)(a)1. The department may obtain patient records
673	pursuant to a subpoena without written authorization from the
674	patient if the department and the probable cause panel of the
675	appropriate board, if any, find reasonable cause to believe that
676	a health care practitioner has excessively or inappropriately
677	prescribed any controlled substance specified in chapter 893 in
678	violation of this chapter or any professional practice act or
679	that a health care practitioner has practiced his or her
680	profession below that level of care, skill, and treatment
681	required as defined by this chapter or any professional practice
682	act and also find that appropriate, reasonable attempts were
683	made to obtain a patient release.
684	2. The department may obtain patient records and insurance
685	information pursuant to a subpoena without written authorization
686	from the patient if the department and the probable cause panel
687	of the appropriate board, if any, find reasonable cause to
688	believe that a health care practitioner has provided inadequate
689	medical care based on termination of insurance and also find
690	that appropriate, reasonable attempts were made to obtain a
691	patient release.
692	3. The department may obtain patient records, billing
693	records, insurance information, provider contracts, and all
694	attachments thereto pursuant to a subpoena without written
695	authorization from the patient if the department and probable
696	cause panel of the appropriate board, if any, find reasonable
697	cause to believe that a health care practitioner has submitted a
698	claim, statement, or bill using a billing code that would result
699	in payment greater in amount than would be paid using a billing
700	code that accurately describes the services performed, requested
701	payment for services that were not performed by that health care
702	practitioner, used information derived from a written report of
703	an automobile accident generated pursuant to chapter 316 to
704	solicit or obtain patients personally or through an agent
705	regardless of whether the information is derived directly from
706	the report or a summary of that report or from another person,
707	solicited patients fraudulently, received a kickback as defined
708	in s. 456.054, violated the patient brokering provisions of s.
709	817.505, or presented or caused to be presented a false or
710	fraudulent insurance claim within the meaning of s.
711	817.234(1)(a), and also find that, within the meaning of s.
712	817.234(1)(a), patient authorization cannot be obtained because
713	the patient cannot be located or is deceased, incapacitated, or
714	suspected of being a participant in the fraud or scheme, and if
715	the subpoena is issued for specific and relevant records.
716	4. Notwithstanding subparagraphs 1.-3., when the
717	department investigates a professional liability claim or
718	undertakes action pursuant to s. 456.049 or s. 627.912, the
719	department may obtain patient records pursuant to a subpoena
720	without written authorization from the patient if the patient
721	refuses to cooperate or attempts to obtain a patient release and
722	failure to obtain the patient records would be detrimental to
723	the investigation.
724	Section 13. Subsection (4) is added to section 456.063,
725	Florida Statutes, to read:
726	456.063 Sexual misconduct; disqualification for license,
727	certificate, or registration.--
728	(4) Each board, or the department if there is no board,
729	may adopt rules to implement the requirements for reporting
730	allegations of sexual misconduct, including rules to determine
731	the sufficiency of the allegations.
732	Section 14. Subsection (4) of section 456.072, Florida
733	Statutes, is amended to read:
734	456.072 Grounds for discipline; penalties; enforcement.--
735	(4) In anyaddition to any other discipline imposed
736	throughfinal order, or citation, entered on or after July 1,
737	2001, that imposes a penalty or other form of discipline
738	pursuant to this section or discipline imposed through final
739	order, or citation, entered on or after July 1, 2001,for a
740	violation of any practice act, the board, or the department when
741	there is no board, shall assess costs related to the
742	investigation and prosecution of the case, including costs
743	associated with an attorney's time. The amount of costs to be
744	assessed shall be determined by the board, or the department
745	when there is no board, following its consideration of an
746	affidavit of itemized costs and any written objections thereto.
747	In any case in whichwhere the board or the department imposesa
748	fine or assessment of costs imposed by the board or department
749	and the fine or assessmentis not paid within a reasonable time,
750	such reasonable time to be prescribed in the rules of the board,
751	or the department when there is no board, or in the order
752	assessing such fines or costs, the department or the Department
753	of Legal Affairs may contract for the collection of, or bring a
754	civil action to recover, the fine or assessment.
755	Section 15. Subsection (5) of section 456.073, Florida
756	Statutes, is amended to read:
757	456.073 Disciplinary proceedings.--Disciplinary
758	proceedings for each board shall be within the jurisdiction of
759	the department.
760	(5)(a)A formal hearing before an administrative law judge
761	from the Division of Administrative Hearings shall be held
762	pursuant to chapter 120 if there are any disputed issues of
763	material fact. The administrative law judge shall issue a
764	recommended order pursuant to chapter 120. If any party raises
765	an issue of disputed fact during an informal hearing, the
766	hearing shall be terminated and a formal hearing pursuant to
767	chapter 120 shall be held.
768	(b) Notwithstanding s. 120.569(2), the department shall
769	notify the Division of Administrative Hearings within 45 days
770	after receipt of a petition or request for a hearing that the
771	department has determined requires a formal hearing before an
772	administrative law judge.
773	Section 16. Subsections (1) and (2) of section 456.077,
774	Florida Statutes, are amended to read:
775	456.077 Authority to issue citations.--
776	(1) Notwithstanding s. 456.073, the board, or the
777	department if there is no board, shall adopt rules to permit the
778	issuance of citations. The citation shall be issued to the
779	subject and shall contain the subject's name and address, the
780	subject's license number if applicable, a brief factual
781	statement, the sections of the law allegedly violated, and the
782	penalty imposed. The citation must clearly state that the
783	subject may choose, in lieu of accepting the citation, to follow
784	the procedure under s. 456.073. If the subject disputes the
785	matter in the citation, the procedures set forth in s. 456.073
786	must be followed. However, if the subject does not dispute the
787	matter in the citation with the department within 30 days after
788	the citation is served, the citation becomes a publicfinal
789	order and does not constituteconstitutes discipline for a first
790	offense, but does constitute discipline for a second or
791	subsequent offense. The penalty shall be a fine or other
792	conditions as established by rule.
793	(2) The board, or the department if there is no board,
794	shall adopt rules designating violations for which a citation
795	may be issued. Such rules shall designate as citation violations
796	those violations for which there is no substantial threat to the
797	public health, safety, and welfare or no violation of standard
798	of care involving injury to a patient. Violations for which a
799	citation may be issued shall include violations of continuing
800	education requirements; failure to timely pay required fees and
801	fines; failure to comply with the requirements of ss. 381.026
802	and 381.0261 regarding the dissemination of information
803	regarding patient rights; failure to comply with advertising
804	requirements; failure to timely update practitioner profile and
805	credentialing files; failure to display signs, licenses, and
806	permits; failure to have required reference books available; and
807	all other violations that do not pose a direct and serious
808	threat to the health and safety of the patient or involve a
809	violation of standard of care that has resulted in injury to a
810	patient.
811	Section 17. Subsections (1) and (2) of section 456.078,
812	Florida Statutes, are amended to read:
813	456.078 Mediation.--
814	(1) Notwithstanding the provisions of s. 456.073, the
815	board, or the department when there is no board, shall adopt
816	rules to designate which violations of the applicable
817	professional practice act are appropriate for mediation. The
818	board, or the department when there is no board, shallmay
819	designate as mediation offenses those complaints where harm
820	caused by the licensee is economic in nature, except any act or
821	omission involving intentional misconduct,orcan be remedied by
822	the licensee, is not a standard of care violation involving any
823	type of injury to a patient, or does not result in an adverse
824	incident. For the purposes of this section, an "adverse
825	incident" means an event that results in:
826	(a) The death of a patient;
827	(b) Brain or spinal damage to a patient;
828	(c) The performance of a surgical procedure on the wrong
829	patient;
830	(d) The performance of a wrong-site surgical procedure;
831	(e) The performance of a surgical procedure that is
832	medically unnecessary or otherwise unrelated to the patient's
833	diagnosis or medical condition;
834	(f) The surgical repair of damage to a patient resulting
835	from a planned surgical procedure, which damage is not a
836	recognized specific risk as disclosed to the patient and
837	documented through the informed-consent process;
838	(g) The performance of a procedure to remove unplanned
839	foreign objects remaining from a surgical procedure; or
840	(h) The performance of any other surgical procedure that
841	breached the standard of care.
842	(2) After the department determines a complaint is legally
843	sufficient and the alleged violations are defined as mediation
844	offenses, the department or any agent of the department may
845	conduct informal mediation to resolve the complaint. If the
846	complainant and the subject of the complaint agree to a
847	resolution of a complaint within 14 days after contact by the
848	mediator, the mediator shall notify the department of the terms
849	of the resolution. The department or board shall take no further
850	action unless the complainant and the subject each fail to
851	record with the department an acknowledgment of satisfaction of
852	the terms of mediation within 60 days of the mediator's
853	notification to the department. A successful mediation shall not
854	constitute discipline.In the event the complainant and subject
855	fail to reach settlement terms or to record the required
856	acknowledgment, the department shall process the complaint
857	according to the provisions of s. 456.073.
858	Section 18. Section 456.085, Florida Statutes, is created
859	to read:
860	456.085 Duty to notify patients.--Every physician licensed
861	under chapter 458 or chapter 459 shall inform each patient, or
862	an individual identified pursuant to s. 765.401(1), in person
863	about unanticipated outcomes of care that result in serious harm
864	to the patient. Notification of outcomes of care that result in
865	harm to the patient under this section shall not constitute an
866	acknowledgement or admission of liability, nor can it be
867	introduced as evidence in any civil lawsuit.
868	Section 19. Present subsection (8) of section 458.320,
869	Florida Statutes, is renumbered as subsection (9), and a new
870	subsection (8) is added to said section, to read:
871	458.320 Financial responsibility.--
872	(8) Notwithstanding any other provision of this section,
873	the department shall suspend the license of any physician
874	against whom has been entered a final judgment, arbitration
875	award, or other order or who has entered into a settlement
876	agreement to pay damages arising out of a claim for medical
877	malpractice, if all appellate remedies have been exhausted and
878	payment up to the amounts required by this section has not been
879	made within 30 days after the entering of such judgment, award,
880	or order or agreement, until proof of payment is received by the
881	department or a payment schedule has been agreed upon by the
882	physician and the claimant and presented to the department. This
883	subsection does not apply to a physician who has met the
884	financial responsibility requirements in paragraphs (1)(b) and
885	(2)(b).
886	Section 20. Paragraph (t) of subsection (1) and subsection
887	(6) of section 458.331, Florida Statutes, are amended to read:
888	458.331 Grounds for disciplinary action; action by the
889	board and department.--
890	(1) The following acts constitute grounds for denial of a
891	license or disciplinary action, as specified in s. 456.072(2):
892	(t) Gross or repeated malpractice or the failure to
893	practice medicine with that level of care, skill, and treatment
894	which is recognized by a reasonably prudent similar physician as
895	being acceptable under similar conditions and circumstances. The
896	board shall give great weight to the provisions of s. 766.102
897	when enforcing this paragraph. As used in this paragraph,
898	"repeated malpractice" includes, but is not limited to, three or
899	more claims for medical malpractice within the previous 5-year
900	period resulting in indemnities being paid in excess of $50,000
901	$25,000each to the claimant in a judgment or settlement and
902	which incidents involved negligent conduct by the physician. As
903	used in this paragraph, "gross malpractice" or "the failure to
904	practice medicine with that level of care, skill, and treatment
905	which is recognized by a reasonably prudent similar physician as
906	being acceptable under similar conditions and circumstances,"
907	shall not be construed so as to require more than one instance,
908	event, or act. Nothing in this paragraph shall be construed to
909	require that a physician be incompetent to practice medicine in
910	order to be disciplined pursuant to this paragraph.
911	(6) Upon the department's receipt from an insurer or self-
912	insurer of a report of a closed claim against a physician
913	pursuant to s. 627.912 or from a health care practitioner of a
914	report pursuant to s. 456.049, or upon the receipt from a
915	claimant of a presuit notice against a physician pursuant to s.
916	766.106, the department shall review each report and determine
917	whether it potentially involved conduct by a licensee that is
918	subject to disciplinary action, in which case the provisions of
919	s. 456.073 shall apply. However, if it is reported that a
920	physician has had three or more claims with indemnities
921	exceeding $50,000$25,000each within the previous 5-year
922	period, the department shall investigate the occurrences upon
923	which the claims were based and determine if action by the
924	department against the physician is warranted.
925	Section 21. Section 458.3311, Florida Statutes, is created
926	to read:
927	458.3311 Emergency procedures for disciplinary
928	action.--Notwithstanding any other provision of law to the
929	contrary:
930	(1) Each physician must report to the Department of Health
931	any judgment for medical negligence levied against the
932	physician. The physician must make the report no later than 15
933	days after the exhaustion of the last opportunity for any party
934	to appeal the judgment or request a rehearing.
935	(2) No later than 30 days after a physician has, within a
936	60-month period, made three reports as required by subsection
937	(1), the Department of Health shall initiate an emergency
938	investigation and the Board of Medicine shall conduct an
939	emergency probable cause hearing to determine whether the
940	physician should be disciplined for a violation of s.
941	458.331(1)(t) or any other relevant provision of law.
942	Section 22. Present subsection (9) of section 459.0085,
943	Florida Statutes, is renumbered as subsection (10), and a new
944	subsection (9) is added to said section, to read:
945	459.0085 Financial responsibility.--
946	(9) Notwithstanding any other provision of this section,
947	the department shall suspend the license of any osteopathic
948	physician against whom has been entered a final judgment,
949	arbitration award, or other order or who has entered into a
950	settlement agreement to pay damages arising out of a claim for
951	medical malpractice, if all appellate remedies have been
952	exhausted and payment up to the amounts required by this section
953	has not been made within 30 days after the entering of such
954	judgment, award, or order or agreement, until proof of payment
955	is received by the department or a payment schedule has been
956	agreed upon by the osteopathic physician and the claimant and
957	presented to the department. This subsection does not apply to
958	an osteopathic physician who has met the financial
959	responsibility requirements in paragraphs (1)(b) and (2)(b).
960	Section 23. Paragraph (x) of subsection (1) and subsection
961	(6) of section 459.015, Florida Statutes, are amended to read:
962	459.015 Grounds for disciplinary action; action by the
963	board and department.--
964	(1) The following acts constitute grounds for denial of a
965	license or disciplinary action, as specified in s. 456.072(2):
966	(x) Gross or repeated malpractice or the failure to
967	practice osteopathic medicine with that level of care, skill,
968	and treatment which is recognized by a reasonably prudent
969	similar osteopathic physician as being acceptable under similar
970	conditions and circumstances. The board shall give great weight
971	to the provisions of s. 766.102 when enforcing this paragraph.
972	As used in this paragraph, "repeated malpractice" includes, but
973	is not limited to, three or more claims for medical malpractice
974	within the previous 5-year period resulting in indemnities being
975	paid in excess of $50,000$25,000each to the claimant in a
976	judgment or settlement and which incidents involved negligent
977	conduct by the osteopathic physician. As used in this paragraph,
978	"gross malpractice" or "the failure to practice osteopathic
979	medicine with that level of care, skill, and treatment which is
980	recognized by a reasonably prudent similar osteopathic physician
981	as being acceptable under similar conditions and circumstances"
982	shall not be construed so as to require more than one instance,
983	event, or act. Nothing in this paragraph shall be construed to
984	require that an osteopathic physician be incompetent to practice
985	osteopathic medicine in order to be disciplined pursuant to this
986	paragraph. A recommended order by an administrative law judge or
987	a final order of the board finding a violation under this
988	paragraph shall specify whether the licensee was found to have
989	committed "gross malpractice," "repeated malpractice," or
990	"failure to practice osteopathic medicine with that level of
991	care, skill, and treatment which is recognized as being
992	acceptable under similar conditions and circumstances," or any
993	combination thereof, and any publication by the board shall so
994	specify.
995	(6) Upon the department's receipt from an insurer or self-
996	insurer of a report of a closed claim against an osteopathic
997	physician pursuant to s. 627.912 or from a health care
998	practitioner of a report pursuant to s. 456.049, or upon the
999	receipt from a claimant of a presuit notice against an
1000	osteopathic physician pursuant to s. 766.106, the department
1001	shall review each report and determine whether it potentially
1002	involved conduct by a licensee that is subject to disciplinary
1003	action, in which case the provisions of s. 456.073 shall apply.
1004	However, if it is reported that an osteopathic physician has had
1005	three or more claims with indemnities exceeding $50,000$25,000
1006	each within the previous 5-year period, the department shall
1007	investigate the occurrences upon which the claims were based and
1008	determine if action by the department against the osteopathic
1009	physician is warranted.
1010	Section 24. Section 459.0151, Florida Statutes, is created
1011	to read:
1012	459.0151 Emergency procedures for disciplinary
1013	action.--Notwithstanding any other provision of law to the
1014	contrary:
1015	(1) Each osteopathic physician must report to the
1016	Department of Health any judgment for medical negligence levied
1017	against the physician. The osteopathic physician must make the
1018	report no later than 15 days after the exhaustion of the last
1019	opportunity for any party to appeal the judgment or request a
1020	rehearing.
1021	(2) No later than 30 days after an osteopathic physician
1022	has, within a 60-month period, made three reports as required by
1023	subsection (1), the Department of Health shall initiate an
1024	emergency investigation and the Board of Osteopathic Medicine
1025	shall conduct an emergency probable cause hearing to determine
1026	whether the physician should be disciplined for a violation of
1027	s. 459.015(1)(x) or any other relevant provision of law.
1028	Section 25. Paragraph (s) of subsection (1) and paragraph
1029	(a) of subsection (5) of section 461.013, Florida Statutes, are
1030	amended to read:
1031	461.013 Grounds for disciplinary action; action by the
1032	board; investigations by department.--
1033	(1) The following acts constitute grounds for denial of a
1034	license or disciplinary action, as specified in s. 456.072(2):
1035	(s) Gross or repeated malpractice or the failure to
1036	practice podiatric medicine at a level of care, skill, and
1037	treatment which is recognized by a reasonably prudent podiatric
1038	physician as being acceptable under similar conditions and
1039	circumstances. The board shall give great weight to the
1040	standards for malpractice in s. 766.102 in interpreting this
1041	section. As used in this paragraph, "repeated malpractice"
1042	includes, but is not limited to, three or more claims for
1043	medical malpractice within the previous 5-year period resulting
1044	in indemnities being paid in excess of $50,000$10,000each to
1045	the claimant in a judgment or settlement and which incidents
1046	involved negligent conduct by the podiatric physicians. As used
1047	in this paragraph, "gross malpractice" or "the failure to
1048	practice podiatric medicine with the level of care, skill, and
1049	treatment which is recognized by a reasonably prudent similar
1050	podiatric physician as being acceptable under similar conditions
1051	and circumstances" shall not be construed so as to require more
1052	than one instance, event, or act.
1053	(5)(a) Upon the department's receipt from an insurer or
1054	self-insurer of a report of a closed claim against a podiatric
1055	physician pursuant to s. 627.912, or upon the receipt from a
1056	claimant of a presuit notice against a podiatric physician
1057	pursuant to s. 766.106, the department shall review each report
1058	and determine whether it potentially involved conduct by a
1059	licensee that is subject to disciplinary action, in which case
1060	the provisions of s. 456.073 shall apply. However, if it is
1061	reported that a podiatric physician has had three or more claims
1062	with indemnities exceeding $50,000$25,000each within the
1063	previous 5-year period, the department shall investigate the
1064	occurrences upon which the claims were based and determine if
1065	action by the department against the podiatric physician is
1066	warranted.
1067	Section 26. Subsection (2) of section 624.462, Florida
1068	Statutes, is amended to read:
1069	624.462 Commercial self-insurance funds.--
1070	(2) As used in ss. 624.460-624.488, "commercial self-
1071	insurance fund" or "fund" means a group of members, operating
1072	individually and collectively through a trust or corporation,
1073	that must be:
1074	(a) Established by:
1075	1. A not-for-profit trade association, industry
1076	association, or professional association of employers or
1077	professionals which has a constitution or bylaws, which is
1078	incorporated under the laws of this state, and which has been
1079	organized for purposes other than that of obtaining or providing
1080	insurance and operated in good faith for a continuous period of
1081	1 year;
1082	2. A self-insurance trust fund organized pursuant to s.
1083	627.357 and maintained in good faith for a continuous period of
1084	1 year for purposes other than that of obtaining or providing
1085	insurance pursuant to this section. Each member of a commercial
1086	self-insurance trust fund established pursuant to this
1087	subsection must maintain membership in the self-insurance trust
1088	fund organized pursuant to s. 627.357; or
1089	3. A group of 10 or more health care providers, as defined
1090	in s. 627.351(4)(h); or
1091	4.3.A not-for-profit group comprised of no less than 10
1092	condominium associations as defined in s. 718.103(2), which is
1093	incorporated under the laws of this state, which restricts its
1094	membership to condominium associations only, and which has been
1095	organized and maintained in good faith for a continuous period
1096	of 1 year for purposes other than that of obtaining or providing
1097	insurance.
1098	(b)1. In the case of funds established pursuant to
1099	subparagraph (a)2. or subparagraph (a)4.3., operated pursuant to
1100	a trust agreement by a board of trustees which shall have
1101	complete fiscal control over the fund and which shall be
1102	responsible for all operations of the fund. The majority of the
1103	trustees shall be owners, partners, officers, directors, or
1104	employees of one or more members of the fund. The trustees
1105	shall have the authority to approve applications of members for
1106	participation in the fund and to contract with an authorized
1107	administrator or servicing company to administer the day-to-day
1108	affairs of the fund.
1109	2. In the case of funds established pursuant to
1110	subparagraph (a)1. or subparagraph (a)3., operated pursuant to a
1111	trust agreement by a board of trustees or as a corporation by a
1112	board of directors which board shall:
1113	a. Be responsible to members of the fund or beneficiaries
1114	of the trust or policyholders of the corporation;
1115	b. Appoint independent certified public accountants, legal
1116	counsel, actuaries, and investment advisers as needed;
1117	c. Approve payment of dividends to members;
1118	d. Approve changes in corporate structure; and
1119	e. Have the authority to contract with an administrator
1120	authorized under s. 626.88 to administer the day-to-day affairs
1121	of the fund including, but not limited to, marketing,
1122	underwriting, billing, collection, claims administration, safety
1123	and loss prevention, reinsurance, policy issuance, accounting,
1124	regulatory reporting, and general administration. The fees or
1125	compensation for services under such contract shall be
1126	comparable to the costs for similar services incurred by
1127	insurers writing the same lines of insurance, or where available
1128	such expenses as filed by boards, bureaus, and associations
1129	designated by insurers to file such data. A majority of the
1130	trustees or directors shall be owners, partners, officers,
1131	directors, or employees of one or more members of the fund.
1132	Section 27. Subsections (7), (8), and (9) are added to
1133	section 627.062, Florida Statutes, to read:
1134	627.062 Rate standards.--
1135	(7)(a) The provisions of this subsection apply only with
1136	respect to rates for medical malpractice insurance and shall
1137	control to the extent of any conflict with other provisions of
1138	this section.
1139	(b) Any portion of a judgment entered or settlement paid
1140	as a result of a statutory or common-law badfaith action and any
1141	portion of a judgment entered which awards punitive damages
1142	against an insurer may not be included in the insurer's rate
1143	base and shall not be used to justify a rate or rate change. Any
1144	common-law badfaith action identified as such and any portion of
1145	a settlement entered as a result of a statutory or portion of a
1146	settlement wherein an insurer agrees to pay specific punitive
1147	damages may not be used to justify a rate or rate change. The
1148	portion of the taxable costs and attorney's fees which is
1149	identified as being related to the bad faith and punitive
1150	damages in these judgments and settlements may not be included
1151	in the insurer's rate base and may not be utilized to justify a
1152	rate or rate change.
1153	(c) Upon reviewing a rate filing and determining whether
1154	the rate is excessive, inadequate, or unfairly discriminatory,
1155	the Office of Insurance Regulation shall consider, in accordance
1156	with generally accepted and reasonable actuarial techniques,
1157	past and present prospective loss experience, either using loss
1158	experience solely for this state or giving greater credibility
1159	to this state's loss data.
1160	(d) Rates shall be deemed excessive if, among other
1161	standards established by this section, the rate structure
1162	provides for replenishment of reserves or surpluses from
1163	premiums when the replenishment is attributable to investment
1164	losses.
1165	(e) The insurer must apply a discount or surcharge based
1166	on the health care provider's loss experience or shall establish
1167	an alternative method giving due consideration to the provider's
1168	loss experience. The insurer must include in the filing a copy
1169	of the surcharge or discount schedule or a description of the
1170	alternative method used and must provide a copy of such schedule
1171	or description, as approved by the office, to policyholders at
1172	the time of renewal and to prospective policyholders at the time
1173	of application for coverage.
1174	(8) Each insurer writing professional liability insurance
1175	coverage for medical negligence must make a rate filing under
1176	this section with the Office of Insurance Regulation at least
1177	once each calendar year.
1178	(9)(a) Medical malpractice insurance companies shall
1179	submit a rate filing effective January 1, 2004, to the Office of
1180	Insurance Regulation no earlier than 30 days, but no later than
1181	120 days, after the date upon which this act becomes law which
1182	reduces rates by a presumed factor that reflects the impact the
1183	changes contained in all medical malpractice legislation enacted
1184	by the Florida Legislature in 2003 will have on such rates, as
1185	determined by the Office of Insurance Regulation. In determining
1186	the presumed factor, the office shall use generally accepted
1187	actuarial techniques and standards provided in this section in
1188	determining the expected impact on losses, expenses, and
1189	investment income of the insurer. Inclusion in the presumed
1190	factor of the expected impact of such legislation shall be held
1191	in abeyance during the review of such measure's validity in any
1192	proceeding by a court of competent jurisdiction.
1193	(b) Any insurer or rating organization that contends that
1194	the rate provided for in subsection (1) is excessive,
1195	inadequate, or unfairly discriminatory shall separately state in
1196	its filing the rate it contends is appropriate and shall state
1197	with specificity the factors or data that it contends should be
1198	considered in order to produce such appropriate rate. The
1199	insurer or rating organization shall be permitted to use all of
1200	the generally accepted actuarial techniques provided in this
1201	section in making any filing pursuant to this subsection. The
1202	Office of Insurance Regulation shall review each such exception
1203	and approve or disapprove it prior to use. It shall be the
1204	insurer's burden to actuarially justify any deviations from the
1205	rates filed under subsection (1). Each insurer or rating
1206	organization shall include in the filing the expected impact of
1207	all malpractice legislation enacted by the Florida Legislature
1208	in 2003 on losses, expenses, and rates. If any provision of this
1209	act is held invalid by a court of competent jurisdiction, the
1210	department shall permit an adjustment of all rates filed under
1211	this section to reflect the impact of such holding on such rates
1212	so as to ensure that the rates are not excessive, inadequate, or
1213	unfairly discriminatory.
1214	Section 28. Section 627.0662, Florida Statutes, is created
1215	to read:
1216	627.0662 Excessive profits for medical liability insurance
1217	prohibited.--
1218	(1) As used in this section:
1219	(a) “Medical liability insurance” means insurance that is
1220	written on a professional liability insurance policy issued to a
1221	health care practitioner or on a liability insurance policy
1222	covering medical malpractice claims issued to a health care
1223	facility.
1224	(b) “Medical liability insurer” means any insurance
1225	company or group of insurance companies writing medical
1226	liability insurance in this state and does not include any self-
1227	insurance fund or other nonprofit entity writing such insurance.
1228	(2) Each medical liability insurer shall file with the
1229	Office of Insurance Regulation, prior to July 1 of each year on
1230	forms prescribed by the office, the following data for medical
1231	liability insurance business in this state. The data shall
1232	include both voluntary and joint underwriting association
1233	business, as follows:
1234	(a) Calendar-year earned premium.
1235	(b) Accident-year incurred losses and loss adjustment
1236	expenses.
1237	(c) The administrative and selling expenses incurred in
1238	this state or allocated to this state for the calendar year.
1239	(d) Policyholder dividends incurred during the applicable
1240	calendar year.
1241	(3)(a) Excessive profit has been realized if there has
1242	been an underwriting gain for the 3 most recent calendar-
1243	accident years combined which is greater than the anticipated
1244	underwriting profit plus 5 percent of earned premiums for those
1245	calendar-accident years.
1246	(b) As used in this subsection with respect to any 3-year
1247	period, “anticipated underwriting profit” means the sum of the
1248	dollar amounts obtained by multiplying, for each rate filing of
1249	the insurer group in effect during such period, the earned
1250	premiums applicable to such rate filing during such period by
1251	the percentage factor included in such rate filing for profit
1252	and contingencies, such percentage factor having been determined
1253	with due recognition to investment income from funds generated
1254	by business in this state. Separate calculations need not be
1255	made for consecutive rate filings containing the same percentage
1256	factor for profits and contingencies.
1257	(4) Each medical liability insurer shall also file a
1258	schedule of medical liability insurance loss in this state and
1259	loss adjustment experience for each of the 3 most recent
1260	accident years. The incurred losses and loss adjustment expenses
1261	shall be valued as of March 31 of the year following the close
1262	of the accident year, developed to an ultimate basis, and at two
1263	12-month intervals thereafter, each developed to an ultimate
1264	basis, to the extent that a total of three evaluations is
1265	provided for each accident year. The first year to be so
1266	reported shall be accident year 2004, such that the reporting of
1267	3 accident years will not take place until accident years 2005
1268	and 2006 have become available.
1269	(5) Each insurer group's underwriting gain or loss for
1270	each calendar-accident year shall be computed as follows: the
1271	sum of the accident-year incurred losses and loss adjustment
1272	expenses as of March 31 of the following year, developed to an
1273	ultimate basis, plus the administrative and selling expenses
1274	incurred in the calendar year, plus policyholder dividends
1275	applicable to the calendar year, shall be subtracted from the
1276	calendar-year earned premium to determine the underwriting gain
1277	or loss.
1278	(6) For the 3 most recent calendar-accident years, the
1279	underwriting gain or loss shall be compared to the anticipated
1280	underwriting profit.
1281	(7) If the medical liability insurer has realized an
1282	excessive profit, the office shall order a return of the
1283	excessive amounts to policyholders after affording the insurer
1284	an opportunity for hearing and otherwise complying with the
1285	requirements of chapter 120. Such excessive amounts shall be
1286	refunded to policyholders in all instances unless the insurer
1287	affirmatively demonstrates to the office that the refund of the
1288	excessive amounts will render the insurer or a member of the
1289	insurer group financially impaired or will render it insolvent.
1290	(8) The excessive amount shall be refunded to
1291	policyholders on a pro rata basis in relation to the final
1292	compilation year earned premiums to the voluntary medical
1293	liability insurance policyholders of record of the insurer group
1294	on December 31 of the final compilation year.
1295	(9) Any return of excessive profits to policyholders under
1296	this section shall be provided in the form of a cash refund or a
1297	credit towards the future purchase of insurance.
1298	(10)(a) Cash refunds to policyholders may be rounded to
1299	the nearest dollar.
1300	(b) Data in required reports to the office may be rounded
1301	to the nearest dollar.
1302	(c) Rounding, if elected by the insurer group, shall be
1303	applied consistently.
1304	(11)(a) Refunds to policyholders shall be completed as
1305	follows:
1306	1. If the insurer elects to make a cash refund, the refund
1307	shall be completed within 60 days after entry of a final order
1308	determining that excessive profits have been realized; or
1309	2. If the insurer elects to make refunds in the form of a
1310	credit to renewal policies, such credits shall be applied to
1311	policy renewal premium notices which are forwarded to insureds
1312	more than 60 calendar days after entry of a final order
1313	determining that excessive profits have been realized. If an
1314	insurer has made this election but an insured thereafter cancels
1315	his or her policy or otherwise allows the policy to terminate,
1316	the insurer group shall make a cash refund not later than 60
1317	days after termination of such coverage.
1318	(b) Upon completion of the renewal credits or refund
1319	payments, the insurer shall immediately certify to the office
1320	that the refunds have been made.
1321	(12) Any refund or renewal credit made pursuant to this
1322	section shall be treated as a policyholder dividend applicable
1323	to the year in which it is incurred, for purposes of reporting
1324	under this section for subsequent years.
1325	Section 29. Subsection (10) of section 627.357, Florida
1326	Statutes, is amended to read:
1327	627.357 Medical malpractice self-insurance.--
1328	(10)(a) An application to form a self-insurance fund under
1329	this section must be filed with the Office of Insurance
1330	Regulation.
1331	(b) The Office of Insurance Regulation must ensure that
1332	self-insurance funds remain solvent and provide insurance
1333	coverage purchased by participants. The Financial Services
1334	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
1335	to implement this subsectionA self-insurance fund may not be
1336	formed under this section after October 1, 1992.
1337	Section 30. Section 627.3575, Florida Statutes, is created
1338	to read:
1339	627.3575 Health Care Professional Liability Insurance
1340	Facility.--
1341	(1) FACILITY CREATED; PURPOSE; STATUS.--There is created
1342	the Health Care Professional Liability Insurance Facility. The
1343	facility is intended to meet ongoing availability and
1344	affordability problems relating to liability insurance for
1345	health care professionals by providing an affordable, self-
1346	supporting source of professional liability insurance coverage
1347	with a high deductible for those professionals who are willing
1348	and able to self-insure for smaller losses. The facility shall
1349	operate on a not-for-profit basis. The facility is self-funding
1350	and is intended to serve a public purpose but is not a state
1351	agency or program, and no activity of the facility shall create
1352	any state liability.
1353	(2) GOVERNANCE; POWERS.--
1354	(a) The facility shall operate under a seven-member board
1355	of governors consisting of the Secretary of Health, three
1356	members appointed by the Governor, and three members appointed
1357	by the Chief Financial Officer. The board shall be chaired by
1358	the Secretary of Health. The secretary shall serve by virtue of
1359	his or her office, and the other members of the board shall
1360	serve terms concurrent with the term of office of the official
1361	who appointed them. Any vacancy on the board shall be filled in
1362	the same manner as the original appointment. Members serve at
1363	the pleasure of the official who appointed them. Members are not
1364	eligible for compensation for their service on the board, but
1365	the facility may reimburse them for per diem and travel expenses
1366	at the same levels as are provided in s. 112.061 for state
1367	employees.
1368	(b) The facility shall have such powers as are necessary
1369	to operate as an insurer, including the power to:
1370	1. Sue and be sued.
1371	2. Hire such employees and retain such consultants,
1372	attorneys, actuaries, and other professionals as it deems
1373	appropriate.
1374	3. Contract with such service providers as it deems
1375	appropriate.
1376	4. Maintain offices appropriate to the conduct of its
1377	business.
1378	5. Take such other actions as are necessary or appropriate
1379	in fulfillment of its responsibilities under this section.
1380	(3) COVERAGE PROVIDED.--The facility shall provide
1381	liability insurance coverage for health care professionals. The
1382	facility shall allow policyholders to select only from policies
1383	with deductibles of $25,000 per claim, $50,000 per claim, and
1384	$100,000 per claim and with coverage limits of $250,000 per
1385	claim and $750,000 annual aggregate and $1 million per claim and
1386	$3 million annual aggregate. To the greatest extent possible,
1387	the terms and conditions of the policies shall be consistent
1388	with terms and conditions commonly used by professional
1389	liability insurers.
1390	(4) ELIGIBILITY; TERMINATION.--
1391	(a) Any health care professional is eligible for coverage
1392	provided by the facility if the professional at all times
1393	maintains either:
1394	1. An escrow account consisting of cash or assets eligible
1395	for deposit under s. 625.52 in an amount equal to the deductible
1396	amount of the policy; or
1397	2. An unexpired, irrevocable letter of credit, established
1398	pursuant to chapter 675, in an amount not less than the
1399	deductible amount of the policy. The letter of credit shall be
1400	payable to the health care professional as beneficiary upon
1401	presentment of a final judgment indicating liability and
1402	awarding damages to be paid by the physician or upon presentment
1403	of a settlement agreement signed by all parties to such
1404	agreement when such final judgment or settlement is a result of
1405	a claim arising out of the rendering of, or the failure to
1406	render, medical care and services. Such letter of credit shall
1407	be nonassignable and nontransferable. Such letter of credit
1408	shall be issued by any bank or savings association organized and
1409	existing under the laws of this state or any bank or savings
1410	association organized under the laws of the United States that
1411	has its principal place of business in this state or has a
1412	branch office which is authorized under the laws of this state
1413	or of the United States to receive deposits in this state.
1414	(b) The eligibility of a health care professional for
1415	coverage terminates upon:
1416	1. The failure of the professional to comply with
1417	paragraph (a);
1418	2. The failure of the professional to timely pay premiums
1419	or assessments; or
1420	3. The commission of any act of fraud in connection with
1421	the policy, as determined by the board of governors.
1422	(c) The board of governors, in its discretion, may
1423	reinstate the eligibility of a health care professional whose
1424	eligibility has terminated pursuant to paragraph (b) upon
1425	determining that the professional has come back into compliance
1426	with paragraph (a) or has paid the overdue premiums or
1427	assessments. Eligibility may be reinstated in the case of fraud
1428	only if the board determines that its initial determination of
1429	fraud was in error.
1430	(5) PREMIUMS; ASSESSMENTS.--
1431	(a) The facility shall charge the actuarially indicated
1432	rate for the coverage provided plus a component for debt service
1433	and shall retain the services of consulting actuaries to prepare
1434	its rate filings. The facility shall not provide dividends to
1435	policyholders, and, to the extent that premiums are more than
1436	the amount required to cover claims and expenses, such excess
1437	shall be retained by the facility for payment of future claims.
1438	In the event of dissolution of the facility, any amounts not
1439	required as a reserve for outstanding claims shall be
1440	transferred to the policyholders of record as of the last day of
1441	operation.
1442	(b) In the event that the premiums for a particular year,
1443	together with any investment income or reinsurance recoveries
1444	attributable to that year, are insufficient to pay losses
1445	arising out of claims accruing in that year, the facility shall
1446	levy assessments against all of the persons who were its
1447	policyholders in that year in a uniform percentage of premium.
1448	Each policyholder's assessment shall be such percentage of the
1449	premium that policyholder paid for coverage for the year to
1450	which the insufficiency is attributable.
1451	(c) The policyholder is personally liable for any
1452	assessment. The failure to timely pay an assessment is grounds
1453	for suspension or revocation of the policyholder's professional
1454	license by the appropriate licensing entity.
1455	(6) REGULATION; APPLICABILITY OF OTHER STATUTES.--
1456	(a) The facility shall operate pursuant to a plan of
1457	operation approved by order of the Office of Insurance
1458	Regulation of the Financial Services Commission. The board of
1459	governors may at any time adopt amendments to the plan of
1460	operation and submit the amendments to the Office of Insurance
1461	Regulation for approval.
1462	(b) The facility is subject to regulation by the Office of
1463	Insurance Regulation of the Financial Services Commission in the
1464	same manner as other insurers, except that, in recognition of
1465	the fact that its ability to levy assessments against its own
1466	policyholders is a substitute for the protections ordinarily
1467	afforded by such statutory requirements, the facility is exempt
1468	from statutory requirements relating to surplus as to
1469	policyholders.
1470	(c) The facility is not subject to part II of chapter 631,
1471	relating to the Florida Insurance Guaranty Association.
1472	(d) The Financial Service Commission may adopt rules to
1473	provide for the regulation of the facility consistent with the
1474	provisions of this section.
1475	(7) STARTUP PROVISIONS.--
1476	(a) It is the intent of the Legislature that the facility
1477	begin providing coverage no later than January 1, 2004.
1478	(b) The Governor and the Chief Financial Officer shall
1479	make their appointments to the board of governors of the
1480	facility no later than August 1, 2003. Until the board is
1481	appointed, the Secretary of Health may perform ministerial acts
1482	on behalf of the facility as chair of the board of governors.
1483	(c) Until the facility is able to hire permanent staff and
1484	enter into contracts for professional services, the office of
1485	the Secretary of Health shall provide support services to the
1486	facility.
1487	(d) In order to provide startup funds for the facility,
1488	the board of governors may incur debt or enter into agreements
1489	for lines of credit, provided that the sole source of funds for
1490	repayment of any debt is future premium revenues of the
1491	facility. The amount of such debt or lines of credit may not
1492	exceed $10 million.
1493	Section 31. Paragraph (c) of subsection (1) of section
1494	627.4147, Florida Statutes, is amended, and paragraph (d) is
1495	added to said subsection, to read:
1496	627.4147 Medical malpractice insurance contracts.--
1497	(1) In addition to any other requirements imposed by law,
1498	each self-insurance policy as authorized under s. 627.357 or
1499	insurance policy providing coverage for claims arising out of
1500	the rendering of, or the failure to render, medical care or
1501	services, including those of the Florida Medical Malpractice
1502	Joint Underwriting Association, shall include:
1503	(c)1. If the insurer is not leaving the state,a clause
1504	requiring the insurer or self-insurer to notify the insured no
1505	less than 60 days prior to the effective date of cancellation of
1506	the policy or contract and, in the event of a determination by
1507	the insurer or self-insurer not to renew the policy or contract,
1508	to notify the insured no less than 60 days prior to the end of
1509	the policy or contract period. If cancellation or nonrenewal is
1510	due to nonpayment or loss of license, 10 days' notice is
1511	required.
1512	2. If the insurer is leaving the state, a clause requiring
1513	the insurer or self-insurer to notify the insured no less than
1514	90 days prior to the effective date of cancellation of the
1515	policy or contract and, in the event of a determination by the
1516	insurer or self-insurer not to renew the policy or contract, to
1517	notify the insured no less than 90 days prior to the end of the
1518	policy or contract period. If cancellation or nonrenewal is due
1519	to nonpayment or loss of license, 10 days' notice is required.
1520	(d) A clause requiring the insurer or self-insurer to
1521	notify the insured no less than 60 days prior to the effective
1522	date of a rate increase. The provisions of s. 627.4133 shall
1523	apply to such notice and to the failure of the insurer to
1524	provide such notice to the extent not in conflict with this
1525	section.
1526	Section 32. Subsections (1) and (4) and paragraph (n) of
1527	subsection (2) of section 627.912, Florida Statutes, are amended
1528	to read:
1529	627.912 Professional liability claims and actions; reports
1530	by insurers.--
1531	(1)(a)Each self-insurer authorized under s. 627.357 and
1532	each insurer or joint underwriting association providing
1533	professional liability insurance to a practitioner of medicine
1534	licensed under chapter 458, to a practitioner of osteopathic
1535	medicine licensed under chapter 459, to a podiatric physician
1536	licensed under chapter 461, to a dentist licensed under chapter
1537	466, to a hospital licensed under chapter 395, to a crisis
1538	stabilization unit licensed under part IV of chapter 394, to a
1539	health maintenance organization certificated under part I of
1540	chapter 641, to clinics included in chapter 390, to an
1541	ambulatory surgical center as defined in s. 395.002, or to a
1542	member of The Florida Bar shall report in duplicate to the
1543	Department of Insurance any claim or action for damages for
1544	personal injuries claimed to have been caused by error,
1545	omission, or negligence in the performance of such insured's
1546	professional services or based on a claimed performance of
1547	professional services without consent, if the claim resulted in:
1548	1.(a)A final judgment in any amount.
1549	2.(b)A settlement in any amount.
1550
1551	Reports shall be filed with the department.
1552	(b) In addition to the requirements of paragraph (a), if
1553	the insured party is licensed under chapter 395, chapter 458,
1554	chapter 459, chapter 461, or chapter 466, the insurer shall
1555	report in duplicate to the Office of Insurance Regulation any
1556	other disposition of the claim, including, but not limited to, a
1557	dismissal. If the insured is licensed under chapter 458, chapter
1558	459, or chapter 461, any claim that resulted in a final judgment
1559	or settlement in the amount of $50,000 or more shall be reported
1560	to the Department of Health no later than 30 days following the
1561	occurrence of that event. If the insured is licensed under
1562	chapter 466, any claim that resulted in a final judgment or
1563	settlement in the amount of $25,000 or more shall be reported to
1564	the Department of Health no later than 30 days following the
1565	occurrence of that eventand, if the insured party is licensed
1566	under chapter 458, chapter 459, chapter 461, or chapter 466,
1567	with the Department of Health, no later than 30 days following
1568	the occurrence of any event listed in paragraph (a) or paragraph
1569	(b). The Department of Health shall review each report and
1570	determine whether any of the incidents that resulted in the
1571	claim potentially involved conduct by the licensee that is
1572	subject to disciplinary action, in which case the provisions of
1573	s. 456.073 shall apply. The Department of Health, as part of the
1574	annual report required by s. 456.026, shall publish annual
1575	statistics, without identifying licensees, on the reports it
1576	receives, including final action taken on such reports by the
1577	Department of Health or the appropriate regulatory board.
1578	(2) The reports required by subsection (1) shall contain:
1579	(n) Any other information required by the department to
1580	analyze and evaluate the nature, causes, location, cost, and
1581	damages involved in professional liability cases. The Financial
1582	Services Commission shall adopt by rule requirements for
1583	additional information to assist the Office of Insurance
1584	Regulation in its analysis and evaluation of the nature, causes,
1585	location, cost, and damages involved in professional liability
1586	cases reported by insurers under this section.
1587	(4) There shall be no liability on the part of, and no
1588	cause of action of any nature shall arise against, any insurer
1589	reporting hereunder or its agents or employees or the department
1590	or its employees for any action taken by them under this
1591	section. The department may impose a fine of $250 per day per
1592	case, but not to exceed a total of $10,000$1,000per case,
1593	against an insurer that violates the requirements of this
1594	section. This subsection applies to claims accruing on or after
1595	October 1, 1997.
1596	Section 33. Section 627.9121, Florida Statutes, is created
1597	to read:
1598	627.9121 Required reporting of claims; penalties.--Each
1599	entity that makes payment under a policy of insurance, self-
1600	insurance, or otherwise in settlement, partial settlement, or
1601	satisfaction of a judgment in a medical malpractice action or
1602	claim that is required to report information to the National
1603	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
1604	the same information to the Office of Insurance Regulation. The
1605	office shall include such information in the data that it
1606	compiles under s. 627.912. The office must compile and review
1607	the data collected pursuant to this section and must assess an
1608	administrative fine on any entity that fails to fully comply
1609	with such reporting requirements.
1610	Section 34. Subsections (12), (13), and (18) of section
1611	641.19, Florida Statutes, are amended to read:
1612	641.19 Definitions.--As used in this part, the term:
1613	(12) "Health maintenance contract" means any contract
1614	entered into by a health maintenance organization with a
1615	subscriber or group of subscribers to provide coverage for
1616	comprehensive health care services in exchange for a prepaid per
1617	capita or prepaid aggregate fixed sum.
1618	(13) "Health maintenance organization" means any
1619	organization authorized under this part which:
1620	(a) Provides, through arrangements with other persons,
1621	emergency care, inpatient hospital services, physician care
1622	including care provided by physicians licensed under chapters
1623	458, 459, 460, and 461, ambulatory diagnostic treatment, and
1624	preventive health care services.;
1625	(b) Provides, either directly or through arrangements with
1626	other persons, health care services to persons enrolled with
1627	such organization, on a prepaid per capita or prepaid aggregate
1628	fixed-sum basis.;
1629	(c) Provides, either directly or through arrangements with
1630	other persons, comprehensive health care services which
1631	subscribers are entitled to receive pursuant to a contract.;
1632	(d) Provides physician services, by physicians licensed
1633	under chapters 458, 459, 460, and 461, directly through
1634	physicians who are either employees or partners of such
1635	organization or under arrangements with a physician or any group
1636	of physicians.; and
1637	(e) If offering services through a managed care system,
1638	then the managed care system must be a system in which a primary
1639	physician licensed under chapter 458 or chapter 459 and chapters
1640	460 and 461 is designated for each subscriber upon request of a
1641	subscriber requesting service by a physician licensed under any
1642	of those chapters, and is responsible for coordinating the
1643	health care of the subscriber of the respectively requested
1644	service and for referring the subscriber to other providers of
1645	the same discipline when necessary. Each female subscriber may
1646	select as her primary physician an obstetrician/gynecologist who
1647	has agreed to serve as a primary physician and is in the health
1648	maintenance organization's provider network.
1649	(f) Except in cases in which the health care provider is
1650	an employee of the health maintenance organization, the fact
1651	that the health maintenance organization arranges for the
1652	provision of health care services under this chapter does not
1653	create an actual agency, apparent agency, or employer-employee
1654	relationship between the health care provider and the health
1655	maintenance organization for purposes of vicarious liability for
1656	the medical negligence of the health care provider.
1657	(18) "Subscriber" means an entity or individual who has
1658	contracted, or on whose behalf a contract has been entered into,
1659	with a health maintenance organization for health care coverage
1660	services or other persons who also receive health care coverage
1661	servicesas a result of the contract.
1662	Section 35. Subsection (3) of section 641.51, Florida
1663	Statutes, is amended to read:
1664	641.51 Quality assurance program; second medical opinion
1665	requirement.--
1666	(3) The health maintenance organization shall not have the
1667	right to control theprofessional judgment of a physician
1668	licensed under chapter 458, chapter 459, chapter 460, or chapter
1669	461 concerning the proper course of treatment of a subscriber
1670	shall not be subject to modification by the organization or its
1671	board of directors, officers, or administrators, unless the
1672	course of treatment prescribed is inconsistent with the
1673	prevailing standards of medical practice in the community.
1674	However, this subsection shall not be considered to restrict a
1675	utilization management program established by an organization or
1676	to affect an organization’s decision as to payment for covered
1677	services. Except in cases in which the health care provider is
1678	an employee of the health maintenance organization, the health
1679	maintenance organization shall not be vicariously liable for the
1680	medical negligence of the health care provider, whether such
1681	claim is alleged under a theory of actual agency, apparent
1682	agency, or employer-employee relationship.
1683	Section 36. Subsections (2), (3), (4), and (7) of section
1684	766.106, Florida Statutes, are amended, and subsections (13),
1685	(14), (15), and (16) are added to said section, to read:
1686	766.106 Notice before filing action for medical
1687	malpractice; presuit screening period; offers for admission of
1688	liability and for arbitration; informal discovery; review.--
1689	(2)(a)After completion of presuit investigation pursuant
1690	to s. 766.203 and prior to filing a claim for medical
1691	malpractice, a claimant shall notify each prospective defendant
1692	by certified mail, return receipt requested, of intent to
1693	initiate litigation for medical malpractice. Notice to each
1694	prospective defendant must include, if available, a list of all
1695	known health care providers seen by the claimant for the
1696	injuries complained of subsequent to the alleged act of
1697	malpractice, a list of all known health care providers during
1698	the 2-year period prior to the alleged act of malpractice who
1699	treated or evaluated the claimant, and copies of all of the
1700	medical records relied upon by the expert in signing the
1701	affidavit. The requirement of providing the list of known health
1702	care providers may not serve as grounds for imposing sanctions
1703	for failure to provide presuit discovery.
1704	(b)Following the initiation of a suit alleging medical
1705	malpractice with a court of competent jurisdiction, and service
1706	of the complaint upon a defendant, the claimant shall provide a
1707	copy of the complaint to the Department of Health. The
1708	requirement of providing the complaint to the Department of
1709	Health does not impair the claimant's legal rights or ability to
1710	seek relief for his or her claim. The Department of Health shall
1711	review each incident and determine whether it involved conduct
1712	by a licensee which is potentially subject to disciplinary
1713	action, in which case the provisions of s. 456.073 apply.
1714	(3)(a) No suit may be filed for a period of 18090days
1715	after notice is mailed to any prospective defendant. During the
1716	180-day90-dayperiod, the prospective defendant's insurer or
1717	self-insurer shall conduct a review to determine the liability
1718	of the defendant. Each insurer or self-insurer shall have a
1719	procedure for the prompt investigation, review, and evaluation
1720	of claims during the 180-day90-dayperiod. This procedure shall
1721	include one or more of the following:
1722	1. Internal review by a duly qualified claims adjuster;
1723	2. Creation of a panel comprised of an attorney
1724	knowledgeable in the prosecution or defense of medical
1725	malpractice actions, a health care provider trained in the same
1726	or similar medical specialty as the prospective defendant, and a
1727	duly qualified claims adjuster;
1728	3. A contractual agreement with a state or local
1729	professional society of health care providers, which maintains a
1730	medical review committee;
1731	4. Any other similar procedure which fairly and promptly
1732	evaluates the pending claim.
1733
1734	Each insurer or self-insurer shall investigate the claim in good
1735	faith, and both the claimant and prospective defendant shall
1736	cooperate with the insurer in good faith. If the insurer
1737	requires, a claimant shall appear before a pretrial screening
1738	panel or before a medical review committee and shall submit to a
1739	physical examination, if required. Unreasonable failure of any
1740	party to comply with this section justifies dismissal of claims
1741	or defenses. There shall be no civil liability for participation
1742	in a pretrial screening procedure if done without intentional
1743	fraud.
1744	(b) At or before the end of the 18090days, the insurer
1745	or self-insurer shall provide the claimant with a response:
1746	1. Rejecting the claim;
1747	2. Making a settlement offer; or
1748	3. Making an offer to arbitrate, in which case liability
1749	is deemed admitted and arbitration will be held onlyof
1750	admission of liability and for arbitrationon the issue of
1751	damages. This offer may be made contingent upon a limit of
1752	general damages.
1753	(c) The response shall be delivered to the claimant if not
1754	represented by counsel or to the claimant's attorney, by
1755	certified mail, return receipt requested. Failure of the
1756	prospective defendant or insurer or self-insurer to reply to the
1757	notice within 18090days after receipt shall be deemed a final
1758	rejection of the claim for purposes of this section.
1759	(d) Within 30 days afterofreceipt of a response by a
1760	prospective defendant, insurer, or self-insurer to a claimant
1761	represented by an attorney, the attorney shall advise the
1762	claimant in writing of the response, including:
1763	1. The exact nature of the response under paragraph (b).
1764	2. The exact terms of any settlement offer, or admission
1765	of liability and offer of arbitration on damages.
1766	3. The legal and financial consequences of acceptance or
1767	rejection of any settlement offer, or admission of liability,
1768	including the provisions of this section.
1769	4. An evaluation of the time and likelihood of ultimate
1770	success at trial on the merits of the claimant's action.
1771	5. An estimation of the costs and attorney's fees of
1772	proceeding through trial.
1773	(4) The notice of intent to initiate litigation shall be
1774	served within the time limits set forth in s. 95.11. However,
1775	during the 180-day90-dayperiod, the statute of limitations is
1776	tolled as to all potential defendants. Upon stipulation by the
1777	parties, the 180-day90-dayperiod may be extended and the
1778	statute of limitations is tolled during any such extension. Upon
1779	receiving notice of termination of negotiations in an extended
1780	period, the claimant shall have 60 days or the remainder of the
1781	period of the statute of limitations, whichever is greater,
1782	within which to file suit.
1783	(7) Informal discovery may be used by a party to obtain
1784	unsworn statements, the production of documents or things, and
1785	physical and mental examinations, as follows:
1786	(a) Unsworn statements.--Any party may require other
1787	parties to appear for the taking of an unsworn statement. Such
1788	statements may be used only for the purpose of presuit screening
1789	and are not discoverable or admissible in any civil action for
1790	any purpose by any party. A party desiring to take the unsworn
1791	statement of any party must give reasonable notice in writing to
1792	all parties. The notice must state the time and place for taking
1793	the statement and the name and address of the party to be
1794	examined. Unless otherwise impractical, the examination of any
1795	party must be done at the same time by all other parties. Any
1796	party may be represented by counsel at the taking of an unsworn
1797	statement. An unsworn statement may be recorded electronically,
1798	stenographically, or on videotape. The taking of unsworn
1799	statements is subject to the provisions of the Florida Rules of
1800	Civil Procedure and may be terminated for abuses.
1801	(b) Documents or things.--Any party may request discovery
1802	of documents or things. The documents or things must be
1803	produced, at the expense of the requesting party, within 20 days
1804	after the date of receipt of the request. A party is required to
1805	produce discoverable documents or things within that party's
1806	possession or control.
1807	(c) Physical and mental examinations.--A prospective
1808	defendant may require an injured prospective claimant to appear
1809	for examination by an appropriate health care provider. The
1810	defendant shall give reasonable notice in writing to all parties
1811	as to the time and place for examination. Unless otherwise
1812	impractical, a prospective claimant is required to submit to
1813	only one examination on behalf of all potential defendants. The
1814	practicality of a single examination must be determined by the
1815	nature of the potential claimant's condition, as it relates to
1816	the liability of each potential defendant. Such examination
1817	report is available to the parties and their attorneys upon
1818	payment of the reasonable cost of reproduction and may be used
1819	only for the purpose of presuit screening. Otherwise, such
1820	examination report is confidential and exempt from the
1821	provisions of s. 119.07(1) and s. 24(a), Art. I of the State
1822	Constitution.
1823	(d) Written questions.--Any party may request answers to
1824	written questions, the number of which may not exceed 30,
1825	including subparts. A response must be made within 20 days after
1826	receipt of the questions.
1827	(e) Informal discovery.--It is the intent of the
1828	Legislature that informal discovery may be conducted pursuant to
1829	this subsection by any party without notice to any other party,
1830	except that such informal discovery shall not infringe upon or
1831	violate such other party's physician-patient, attorney-client,
1832	psychotherapist-patient, or other such privilege of
1833	confidentiality as provided by law.
1834	(13) In matters relating to professional liability
1835	insurance coverage for medical negligence, an insurer shall not
1836	be held in bad faith for failure to timely pay its policy limits
1837	if it tenders its policy limits and meets all other conditions
1838	of settlement prior to the conclusion of the presuit screening
1839	period provided for in this section.
1840	(14) Failure to cooperate on the part of any party during
1841	the presuit investigation may be grounds to strike any claim
1842	made, or defense raised, by such party in suit.
1843	(15) In all matters relating to professional liability
1844	insurance coverage for medical negligence, and in determining
1845	whether the insurer acted fairly and honestly towards its
1846	insured with due regard for her or his interest during the
1847	presuit process or after a complaint has been filed, the
1848	following factors shall be considered, together with all other
1849	relevant facts and circumstances:
1850	(a) The insurer’s willingness to negotiate with the
1851	claimant;
1852	(b) The insurer’s consideration of the advice of its
1853	defense counsel;
1854	(c) The insurer’s proper investigation of the claim;
1855	(d) Whether the insurer informed the insured of the offer
1856	to settle within the limits of coverage, the right to retain
1857	personal counsel, and risk of litigation;
1858	(e) Whether the insured denied liability or requested that
1859	the case be defended; and
1860	(f) Whether the claimant imposed any condition, other than
1861	the tender of the policy limits, on the settlement of the claim.
1862	(16) The claimant must execute a medical information
1863	release that allows a defendant or his or her legal
1864	representative to obtain unsworn statements of the claimant's
1865	treating physicians, which statements must be limited to those
1866	areas that are potentially relevant to the claim of personal
1867	injury or wrongful death.
1868	Section 37. Section 766.1065, Florida Statutes, is created
1869	to read:
1870	766.1065 Mandatory staging of presuit investigation and
1871	mandatory mediation.--
1872	(1) Within 30 days after service of the presuit notice of
1873	intent to initiate medical malpractice litigation, each party
1874	shall voluntarily produce to all other parties, without being
1875	requested, any and all medical, hospital, health care, and
1876	employment records concerning the claimant in the disclosing
1877	party’s possession, custody, or control, and the disclosing
1878	party shall affirmatively certify in writing that the records
1879	produced include all records in that party’s possession,
1880	custody, or control or that the disclosing party has no medical,
1881	hospital, health care, or employment records concerning the
1882	claimant.
1883	(a) Subpoenas may be issued according to the Florida Rules
1884	of Civil Procedure as though suit had been filed for the limited
1885	purpose of obtaining copies of medical, hospital, health care,
1886	and employment records of the claimant. The party shall indicate
1887	on the subpoena that it is being issued in accordance with the
1888	presuit procedures of this section and shall not be required to
1889	include a case number.
1890	(b) Nothing in this section shall limit the ability of any
1891	party to use any other available form of presuit discovery
1892	available under this chapter or the Florida Rules of Civil
1893	Procedure.
1894	(2) Within 60 days after service of the presuit notice of
1895	intent to initiate medical malpractice litigation, all parties
1896	must be made available for a sworn deposition. Such deposition
1897	may not be used in a civil suit for medical negligence.
1898	(3) Within 120 days after service of the presuit notice of
1899	intent to initiate medical malpractice litigation, each party’s
1900	corroborating expert, who will otherwise be tendered as the
1901	expert complying with the affidavit provisions set forth in s.
1902	766.203, must be made available for a sworn deposition.
1903	(a) The expenses associated with the expert’s time and
1904	travel in preparing for and attending such deposition shall be
1905	the responsibility of the party retaining such expert.
1906	(b) An expert shall be deemed available for deposition if
1907	suitable accommodations can be made for appearance of said
1908	expert via real-time video technology.
1909	Section 38. Section 766.1067, Florida Statutes, is created
1910	to read:
1911	766.1067 Mandatory mediation after suit is filed.--Within
1912	120 days after suit being filed, unless such period is extended
1913	by mutual agreement of all parties, all parties shall attend in-
1914	person mandatory mediation in accordance with s. 44.102 if
1915	binding arbitration under s. 766.106 or s. 766.207 has not been
1916	agreed to by the parties. The Florida Rules of Civil Procedure
1917	shall apply to mediation held pursuant to this section.
1918	Section 39. Section 766.118, Florida Statutes, is created
1919	to read:
1920	766.118 Determination of noneconomic damages.--With
1921	respect to a cause of action for personal injury or wrongful
1922	death resulting from an occurrence of medical negligence,
1923	including actions pursuant to s. 766.209, damages recoverable
1924	for noneconomic losses to compensate for pain and suffering,
1925	inconvenience, physical impairment, mental anguish,
1926	disfigurement, loss of capacity for enjoyment of life, and all
1927	other noneconomic damages shall not exceed $250,000, regardless
1928	of the number of claimants or defendants involved in the action.
1929	Section 40. Section 766.2015, Florida Statutes, is created
1930	to read:
1931	766.2015 Frivolous claims.--
1932	(1) In any civil litigation resulting from a medical
1933	malpractice claim, the prevailing party, after judgment in the
1934	trial court and exhaustion of all appeals, if any, may receive
1935	his or her reasonable attorney’s fees and costs from the
1936	nonprevailing party if the court finds that there was a complete
1937	absence of a justiciable issue of either law or fact raised by
1938	the losing party or if the court finds bad faith on the part of
1939	the losing party.
1940	(2) The attorney for the prevailing party shall submit to
1941	the trial judge who presided over the civil case a sworn
1942	affidavit of his or her time spent on the case and the costs
1943	incurred by the prevailing party for all the motions, hearings,
1944	and appeals.
1945	(3) The trial judge may award the prevailing party the sum
1946	of reasonable costs incurred in the action plus a reasonable
1947	attorney's fee for the hours actually spent on the case as sworn
1948	to in an affidavit.
1949	(4) Any award of attorney’s fees or costs shall become a
1950	part of the judgment and shall be subject to execution as
1951	provided by law.
1952	Section 41. Subsections (3), (5), (7), and (8) of section
1953	766.202, Florida Statutes, are amended to read:
1954	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
1955	766.201-766.212, the term:
1956	(3) "Economic damages" means financial losses thatwhich
1957	would not have occurred but for the injury giving rise to the
1958	cause of action, including, but not limited to, past and future
1959	medical expenses and 80 percent of wage loss and loss of earning
1960	capacity, to the extent the claimant is entitled to recover such
1961	damages under general law, including the Wrongful Death Act.
1962	(5) "Medical expert" means a person familiar with the
1963	evaluation, diagnosis, or treatment of the medical condition at
1964	issue who:
1965	(a) Isduly and regularly engaged in the practice of his
1966	or her profession,whoholds a health care professional degree
1967	from a university or college,and has had special professional
1968	training and experience;or
1969	(b) Hasone possessed ofspecial health care knowledge or
1970	skill about the subject upon which he or she is called to
1971	testify or provide an opinion.
1972
1973	Such expert shall certify that he or she has similar credentials
1974	and expertise in the area of the defendant's particular practice
1975	or specialty, if the defendant is a specialist.
1976	(7) "Noneconomic damages" means nonfinancial losses which
1977	would not have occurred but for the injury giving rise to the
1978	cause of action, including pain and suffering, inconvenience,
1979	physical impairment, mental anguish, disfigurement, loss of
1980	capacity for enjoyment of life, and other nonfinancial losses,
1981	to the extent the claimant is entitled to recover such damages
1982	under general law, including the Wrongful Death Act.
1983	(8) "Periodic payment" means provision for the structuring
1984	of future economic and future noneconomic damages payments, in
1985	whole or in part, over a period of time, as follows:
1986	(a) A specific finding must be madeof the dollar amount
1987	of periodic payments which will compensate for these future
1988	damages after offset for collateral sources and after having
1989	been reduced to present valueshall be made. A periodic payment
1990	must be structured to last as long as the claimant livesThe
1991	total dollar amount of the periodic payments shall equal the
1992	dollar amount of all such future damages before any reduction to
1993	present value.
1994	(b) A defendant that elects to make periodic payments of
1995	either or both future economic and future noneconomic losses may
1996	contractually obligate a company that is authorized to do
1997	business in this state and rated by A.M. Best Company as "A+" or
1998	higher to make those periodic payments on its behalf. Upon a
1999	joint petition by the defendant and the company that is
2000	contractually obligated to make the periodic payments, the court
2001	shall discharge the defendant from any further obligations to
2002	the claimant for those future economic and future noneconomic
2003	damages that are to be paid by that company by periodic
2004	payments.
2005	(c) A bond or security may not be required of any
2006	defendant or company that is obligated to make periodic payments
2007	pursuant to this section; however, if, upon petition by a
2008	claimant who is receiving periodic payments pursuant to this
2009	section, the court finds that there is substantial, competent
2010	evidence that the defendant that is responsible for the periodic
2011	payments cannot adequately ensure full and continuous payments
2012	thereof or that the company that is obligated to make the
2013	payments has been rated by A.M. Best Company as "B+" or lower,
2014	and that doing so is in the best interest of the claimant, the
2015	court may require the defendant or the company that is obligated
2016	to make the periodic payments to provide such additional
2017	financial security as the court determines to be reasonable
2018	under the circumstances.
2019	(d) The provision for the periodic payments must specify
2020	the recipient or recipients of the payments, the address to
2021	which the payments are to be delivered, and theamount and
2022	intervals of the payments; however, in any one year, any payment
2023	or payments may not exceed the amount intended by the trier of
2024	fact to be awarded each year, offset for collateral sources. A
2025	periodic payment may not be accelerated, deferred, increased, or
2026	decreased, except by court order based upon the mutual consent
2027	and agreement of the claimant, the defendant, whether or not
2028	discharged, and the company that is obligated to make the
2029	periodic payments, if any; nor may the claimant sell, mortgage,
2030	encumber, or anticipate the periodic payments or any part
2031	thereof, by assignment or otherwise.The defendant shall be
2032	required to post a bond or security or otherwise to assure full
2033	payment of these damages awarded. A bond is not adequate unless
2034	it is written by a company authorized to do business in this
2035	state and is rated A+ by Best's. If the defendant is unable to
2036	adequately assure full payment of the damages, all damages,
2037	reduced to present value, shall be paid to the claimant in a
2038	lump sum. No bond may be canceled or be subject to cancellation
2039	unless at least 60 days' advance written notice is filed with
2040	the court and the claimant. Upon termination of periodic
2041	payments, the security, or so much as remains, shall be returned
2042	to the defendant.
2043	(c) The provision for payment of future damages by
2044	periodic payments shall specify the recipient or recipients of
2045	the payments, the dollar amounts of the payments, the interval
2046	between payments, and the number of payments or the period of
2047	time over which payments shall be made.
2048	Section 42. Subsections (2) and (3) of section 766.203,
2049	Florida Statutes, are amended to read:
2050	766.203 Presuit investigation of medical negligence claims
2051	and defenses by prospective parties.--
2052	(2) Prior to issuing notification of intent to initiate
2053	medical malpractice litigation pursuant to s. 766.106, the
2054	claimant shall conduct an investigation to ascertain that there
2055	are reasonable grounds to believe that:
2056	(a) Any named defendant in the litigation was negligent in
2057	the care or treatment of the claimant; and
2058	(b) Such negligence resulted in injury to the claimant.
2059
2060	Corroboration of reasonable grounds to initiate medical
2061	negligence litigation shall be provided by the claimant's
2062	submission of a verified written medical expert opinion from a
2063	medical expert as defined in s. 766.202(5), at the time the
2064	notice of intent to initiate litigation is mailed, which
2065	statement shall corroborate reasonable grounds to support the
2066	claim of medical negligence. This opinion and statement are
2067	subject to discovery.
2068	(3) Prior to issuing its response to the claimant's notice
2069	of intent to initiate litigation, during the time period for
2070	response authorized pursuant to s. 766.106, the defendant or the
2071	defendant's insurer or self-insurer shall conduct an
2072	investigation to ascertain whether there are reasonable grounds
2073	to believe that:
2074	(a) The defendant was negligent in the care or treatment
2075	of the claimant; and
2076	(b) Such negligence resulted in injury to the claimant.
2077
2078	Corroboration of lack of reasonable grounds for medical
2079	negligence litigation shall be provided with any response
2080	rejecting the claim by the defendant's submission of a verified
2081	written medical expert opinion from a medical expert as defined
2082	in s. 766.202(5), at the time the response rejecting the claim
2083	is mailed, which statement shall corroborate reasonable grounds
2084	for lack of negligent injury sufficient to support the response
2085	denying negligent injury. This opinion and statement are subject
2086	to discovery.
2087	Section 43. Subsections (2), (3), and (7) of section
2088	766.207, Florida Statutes, are amended to read:
2089	766.207 Voluntary binding arbitration of medical
2090	negligence claims.--
2091	(2) Upon the completion of presuit investigation with
2092	preliminary reasonable grounds for a medical negligence claim
2093	intact, the parties may elect to have damages determined by an
2094	arbitration panel. Such election may be initiated by either
2095	party by serving a request for voluntary binding arbitration of
2096	damages within 18090days after service of the claimant's
2097	notice of intent to initiate litigation upon the defendant. The
2098	evidentiary standards for voluntary binding arbitration of
2099	medical negligence claims shall be as provided in ss.
2100	120.569(2)(g) and 120.57(1)(c).
2101	(3) Upon receipt of a party's request for such
2102	arbitration, the opposing party may accept the offer of
2103	voluntary binding arbitration within 30 days. However, in no
2104	event shall the defendant be required to respond to the request
2105	for arbitration sooner than 18090days after service of the
2106	notice of intent to initiate litigation under s. 766.106. Such
2107	acceptance within the time period provided by this subsection
2108	shall be a binding commitment to comply with the decision of the
2109	arbitration panel. The liability of any insurer shall be subject
2110	to any applicable insurance policy limits.
2111	(7) Arbitration pursuant to this section shall preclude
2112	recourse to any other remedy by the claimant against any
2113	participating defendant, and shall be undertaken with the
2114	understanding that damages shall be awarded as provided by
2115	general law, including the Wrongful Death Act, subject to the
2116	following limitations:
2117	(a) Net economic damages shall be awardable, including,
2118	but not limited to, past and future medical expenses and 80
2119	percent of wage loss and loss of earning capacity, offset by any
2120	collateral source payments.
2121	(b) Noneconomic damages shall be limited to a maximum of
2122	$250,000 per incident, and shall be calculated on a percentage
2123	basis with respect to capacity to enjoy life, so that a finding
2124	that the claimant's injuries resulted in a 50-percent reduction
2125	in his or her capacity to enjoy life would warrant an award of
2126	not more than $125,000 noneconomic damages.
2127	(c) Damages for future economic losses shall be awarded to
2128	be paid by periodic payments pursuant to s. 766.202(8) and shall
2129	be offset by future collateral source payments.
2130	(d) Punitive damages shall not be awarded.
2131	(e) The defendant shall be responsible for the payment of
2132	interest on all accrued damages with respect to which interest
2133	would be awarded at trial.
2134	(f) The defendant shall pay the claimant's reasonable
2135	attorney's fees and costs, as determined by the arbitration
2136	panel, but in no event more than 15 percent of the award,
2137	reduced to present value.
2138	(g) The defendant shall pay all the costs of the
2139	arbitration proceeding and the fees of all the arbitrators other
2140	than the administrative law judge.
2141	(h) Each defendant who submits to arbitration under this
2142	section shall be jointly and severally liable for all damages
2143	assessed pursuant to this section.
2144	(i) The defendant's obligation to pay the claimant's
2145	damages shall be for the purpose of arbitration under this
2146	section only. A defendant's or claimant's offer to arbitrate
2147	shall not be used in evidence or in argument during any
2148	subsequent litigation of the claim following the rejection
2149	thereof.
2150	(j) The fact of making or accepting an offer to arbitrate
2151	shall not be admissible as evidence of liability in any
2152	collateral or subsequent proceeding on the claim.
2153	(k) Any offer by a claimant to arbitrate must be made to
2154	each defendant against whom the claimant has made a claim. Any
2155	offer by a defendant to arbitrate must be made to each claimant
2156	who has joined in the notice of intent to initiate litigation,
2157	as provided in s. 766.106. A defendant who rejects a claimant's
2158	offer to arbitrate shall be subject to the provisions of s.
2159	766.209(3). A claimant who rejects a defendant's offer to
2160	arbitrate shall be subject to the provisions of s. 766.209(4).
2161	(l) The hearing shall be conducted by all of the
2162	arbitrators, but a majority may determine any question of fact
2163	and render a final decision. The chief arbitrator shall decide
2164	all evidentiary matters.
2165
2166	The provisions of this subsection shall not preclude settlement
2167	at any time by mutual agreement of the parties.
2168	Section 44. Section 766.213, Florida Statutes, is created
2169	to read:
2170	766.213 Periodic payment of damages upon death of
2171	claimant.--Any portion of a periodic payment made pursuant to a
2172	settlement or jury award or pursuant to mediation or arbitration
2173	which is attributable to medical expenses that have not yet been
2174	incurred shall terminate upon the death of the claimant. Any
2175	outstanding medical expenses incurred prior to the death of the
2176	claimant shall be paid from that portion of the periodic payment
2177	attributable to medical expenses.
2178	Section 45. Subsection (4) is added to section 768.041,
2179	Florida Statutes, to read:
2180	768.041 Release or covenant not to sue.--
2181	(4)(a) At trial pursuant to a suit filed under chapter
2182	766, or at trial pursuant to s. 766.209, if any defendant shows
2183	the court that the plaintiff, or his or her legal
2184	representative, has delivered a written release or covenant not
2185	to sue to any person in partial satisfaction of the damages sued
2186	for, the court shall set off this amount from the total amount
2187	of the damages set forth in the verdict and before entry of the
2188	final judgment.
2189	(b) The amount of the setoff pursuant to this subsection
2190	shall include all sums received by the plaintiff, including
2191	economic and noneconomic damages, costs, and attorney's fees.
2192	Section 46. Section 768.77, Florida Statutes, is amended
2193	to read:
2194	768.77 Itemized verdict.--
2195	(1) Except as provided in subsection (2),in any action to
2196	which this part applies in which the trier of fact determines
2197	that liability exists on the part of the defendant, the trier of
2198	fact shall, as a part of the verdict, itemize the amounts to be
2199	awarded to the claimant into the following categories of
2200	damages:
2201	(a)(1)Amounts intended to compensate the claimant for
2202	economic losses;
2203	(b)(2)Amounts intended to compensate the claimant for
2204	noneconomic losses; and
2205	(c)(3)Amounts awarded to the claimant for punitive
2206	damages, if applicable.
2207	(2) In any action for damages based on personal injury or
2208	wrongful death arising out of medical malpractice, whether in
2209	tort or contract, to which this part applies in which the trier
2210	of fact determines that liability exists on the part of the
2211	defendant, the trier of fact shall, as a part of the verdict,
2212	itemize the amounts to be awarded to the claimant into the
2213	following categories of damages:
2214	(a) Amounts intended to compensate the claimant for:
2215	1. Past economic losses; and
2216	2. Future economic losses, not reduced to present value,
2217	and the number of years or part thereof which the award is
2218	intended to cover;
2219	(b) Amounts intended to compensate the claimant for:
2220	1. Past noneconomic losses; and
2221	2. Future noneconomic losses and the number of years or
2222	part thereof which the award is intended to cover; and
2223	(c) Amounts awarded to the claimant for punitive damages,
2224	if applicable.
2225	Section 47. Subsection (2) and paragraph (a) of subsection
2226	(1) of section 768.78, Florida Statutes, is amended to read:
2227	768.78 Alternative methods of payment of damage awards.--
2228	(1)(a) In any action to which this part applies in which
2229	the court determines that an award to compensate the claimant
2230	includes future economic losses which exceed $250,000, payment
2231	of amounts intended to compensate the claimant for these losses
2232	shall be made by one of the following means, unless an
2233	alternative method of payment of damages is provided in this
2234	section:
2235	1. The defendant may make a lump-sum payment for all
2236	damages so assessed, with future economic losses and expenses
2237	reduced to present value; or
2238	2. Subject to the provisions of this subsection, the court
2239	shall, at the request of either party, unless the court
2240	determines that manifest injustice would result to any party,
2241	enter a judgment ordering future economic damages, as itemized
2242	pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid in
2243	whole or in part by periodic payments rather than by a lump-sum
2244	payment.
2245	(2)(a) In any action for damages based on personal injury
2246	or wrongful death arising out of medical malpractice, whether in
2247	tort or contract, in which the trier of fact makes an award to
2248	compensate the claimant for future economic or future
2249	noneconomiclosses, payment of amounts intended to compensate
2250	the claimant for these futurelosses shall be made by one of the
2251	following means:
2252	1. The defendant may elect to make a lump-sum payment for
2253	either or both theall damages so assessed, with future economic
2254	and future noneconomic losses after offset for collateral
2255	sources and after having beenand expensesreduced to present
2256	value by the court based upon competent, substantial evidence
2257	presented to it by the parties; or
2258	2. The defendant, if determined by the court to be
2259	financially capable or adequately insured, may elect to use
2260	periodic payments to satisfy in whole or in part the assessed
2261	future economic and future noneconomic losses awarded by the
2262	trier of fact after offset for collateral sources for so long as
2263	the claimant lives or the condition for which the award was made
2264	persists, whichever period may be shorter, but without regard
2265	for the number of years awarded by the trier of fact. The court
2266	shall review and, unless clearly unresponsive to the future
2267	needs of the claimant, approve the amounts and schedule of the
2268	periodic payments proposed by the defendant.
2269	(b) A defendant that elects to make periodic payments of
2270	either or both future economic and future noneconomic losses may
2271	contractually obligate a company that is authorized to do
2272	business in this state and rated by A.M. Best Company as "A+" or
2273	higher to make those periodic payments on its behalf. Upon a
2274	joint petition by the defendant and the company that is
2275	contractually obligated to make the periodic payments, the court
2276	shall discharge the defendant from any further obligations to
2277	the claimant for those future economic and future noneconomic
2278	damages that are to be paid by that company by periodic
2279	payments.
2280	(c) Upon notice of a defendant's election to make periodic
2281	payments pursuant hereto, the claimant may request that the
2282	court modify the periodic payments to reasonably provide for
2283	attorney's fees; however, a court may not make any such
2284	modification that would increase the amount the defendant would
2285	have been obligated to pay had no such adjustment been made.
2286	(d) A bond or security may not be required of any
2287	defendant or company that is obligated to make periodic payments
2288	pursuant to this section; however, if, upon petition by a
2289	claimant who is receiving periodic payments pursuant to this
2290	section, the court finds that there is substantial, competent
2291	evidence that the defendant that is responsible for the periodic
2292	payments cannot adequately ensure full and continuous payments
2293	thereof or that the company that is obligated to make the
2294	payments has been rated by A.M. Best Company as "B+" or lower,
2295	and that doing so is in the best interest of the claimant, the
2296	court may require the defendant or the company that is obligated
2297	to make the periodic payments to provide such additional
2298	financial security as the court determines to be reasonable
2299	under the circumstances.
2300	(e) The provision for the periodic payments must specify
2301	the recipient or recipients of the payments, the address to
2302	which the payments are to be delivered, and the amount and
2303	intervals of the payments; however, in any one year, any payment
2304	or payments may not exceed the amount intended by the trier of
2305	fact to be awarded each year, offset for collateral sources. A
2306	periodic payment may not be accelerated, deferred, increased, or
2307	decreased, except by court order based upon the mutual consent
2308	and agreement of the claimant, the defendant, whether or not
2309	discharged, and the company that is obligated to make the
2310	periodic payments, if any; nor may the claimant sell, mortgage,
2311	encumber, or anticipate the periodic payments or any part
2312	thereof, by assignment or otherwise.
2313	(f) For purposes of this section, the term "periodic
2314	payment" means the payment of money or delivery of other
2315	property to the claimant at regular intervals.
2316	(g) It is the intent of the Legislature to authorize and
2317	encourage the payment of awards for future economic and future
2318	noneconomic losses by periodic payments to meet the continuing
2319	needs of the patient while eliminating the misdirection of such
2320	funds for purposes not intended by the trier of factcourt
2321	shall, at the request of either party, enter a judgment ordering
2322	future economic damages, as itemized pursuant to s. 768.77, to
2323	be paid by periodic payments rather than lump sum.
2324	(b) For purposes of this subsection, "periodic payment"
2325	means provision for the spreading of future economic damage
2326	payments, in whole or in part, over a period of time, as
2327	follows:
2328	1. A specific finding of the dollar amount of periodic
2329	payments which will compensate for these future damages after
2330	offset for collateral sources shall be made. The total dollar
2331	amount of the periodic payments shall equal the dollar amount of
2332	all such future damages before any reduction to present value.
2333	2. The defendant shall be required to post a bond or
2334	security or otherwise to assure full payment of these damages
2335	awarded. A bond is not adequate unless it is written by a
2336	company authorized to do business in this state and is rated A+
2337	by Best's. If the defendant is unable to adequately assure full
2338	payment of the damages, all damages, reduced to present value,
2339	shall be paid to the claimant in a lump sum. No bond may be
2340	canceled or be subject to cancellation unless at least 60 days'
2341	advance written notice is filed with the court and the claimant.
2342	Upon termination of periodic payments, the security, or so much
2343	as remains, shall be returned to the defendant.
2344	3. The provision for payment of future damages by periodic
2345	payments shall specify the recipient or recipients of the
2346	payments, the dollar amounts of the payments, the interval
2347	between payments, and the number of payments or the period of
2348	time over which payments shall be made.
2349	Section 48. Subsection (1) of section 766.112, Florida
2350	Statutes, is amended to read:
2351	766.112 Comparative fault.--
2352	(1) Notwithstanding any provision ofanything inlaw to
2353	the contrary, in an action for damages for personal injury or
2354	wrongful death arising out of medical malpractice, whether in
2355	contract or tort, when an apportionment of damages pursuant to
2356	this section is attributed to a teaching hospital as defined in
2357	s. 408.07, the court shall enter judgment against the teaching
2358	hospital on the basis of eachsuchparty's percentage of fault
2359	and not on the basis of the doctrine of joint and several
2360	liability.
2361	Section 49. Subsection (5) of section 768.81, Florida
2362	Statutes, is amended to read:
2363	768.81 Comparative fault.--
2364	(5) Notwithstanding any provision ofanything inlaw to
2365	the contrary, in an action for damages for personal injury or
2366	wrongful death arising out of medical malpractice, whether in
2367	contract or tort, when an apportionment of damages pursuant to
2368	this section is attributed to a teaching hospital as defined in
2369	s. 408.07, the court shall enter judgment against the teaching
2370	hospital on the basis of eachsuchparty's percentage of fault
2371	and not on the basis of the doctrine of joint and several
2372	liability.
2373	Section 50. Section 1004.08, Florida Statutes, is created
2374	to read:
2375	1004.08 Patient safety instructional requirements.--Every
2376	public school, college, and university that offers degrees in
2377	medicine, nursing, and allied health shall include in the
2378	curricula applicable to such degrees material on patient safety,
2379	including patient safety improvement. Materials shall include,
2380	but need not be limited to, effective communication and
2381	teamwork; epidemiology of patient injuries and medical errors;
2382	vigilance, attention, and fatigue; checklists and inspections;
2383	automation and technological and computer support; psychological
2384	factors in human error; and reporting systems.
2385	Section 51. Section 1004.085, Florida Statutes, is created
2386	to read:
2387	1004.085 Informed consent standardization project.--Every
2388	public school, college, and university that offers degrees in
2389	medicine, nursing, and allied health shall work with the
2390	Department of Health to develop bilingual, multimedia methods
2391	for communicating the risks of treatment options for medical
2392	procedures. Such materials shall be provided to patients and
2393	their families in an effort to educate them and to obtain the
2394	informed consent to prescribe a treatment procedure. The
2395	department shall develop a list of treatment procedures based on
2396	significance of risk and frequency of performance.
2397	Section 52. Section 1005.07, Florida Statutes, is created
2398	to read:
2399	1005.07 Patient safety instructional requirements.--Every
2400	nonpublic school, college, and university that offers degrees in
2401	medicine, nursing, and allied health shall include in the
2402	curricula applicable to such degrees material on patient safety,
2403	including patient safety improvement. Materials shall include,
2404	but need not be limited to, effective communication and
2405	teamwork; epidemiology of patient injuries and medical errors;
2406	vigilance, attention, and fatigue; checklists and inspections;
2407	automation and technological and computer support; psychological
2408	factors in human error; and reporting systems.
2409	Section 53. Section 1005.075, Florida Statutes, is created
2410	to read:
2411	1005.075 Informed consent standardization project.--Every
2412	nonpublic school, college, and university that offers degrees in
2413	medicine, nursing, and allied health shall work with the
2414	Department of Health to develop bilingual, multimedia methods
2415	for communicating the risks of treatment options for medical
2416	procedures. Such materials shall be provided to patients and
2417	their families in an effort to educate them and to obtain the
2418	informed consent to prescribe a treatment procedure. The
2419	department shall develop a list of treatment procedures based on
2420	significance of risk and frequency of performance.
2421	Section 54. (1) The Department of Health shall study and
2422	report to the Legislature as to whether medical review panels
2423	should be included as part of the presuit process in medical
2424	malpractice litigation. Medical review panels review a medical
2425	malpractice case during the presuit process and make judgments
2426	on the merits of the case based on established standards of care
2427	with the intent of reducing the number of frivolous claims. The
2428	panel's report could be used as admissible evidence at trial or
2429	for other purposes. The department's report should address:
2430	(a) Historical use of medical review panels and similar
2431	pretrial programs in this state, including the mediation panels
2432	created by chapter 75-9, Laws of Florida.
2433	(b) Constitutional issues relating to the use of medical
2434	review panels.
2435	(c) The use of medical review panels or similar programs
2436	in other states.
2437	(d) Whether medical review panels or similar panels should
2438	be created for use during the presuit process.
2439	(e) Other recommendations and information that the
2440	department deems appropriate.
2441	(f) In submitting its report with respect to (a)-(c), the
2442	Department should identify at a minimum:
2443	1. The percentage of medical malpractice claims submitted
2444	to the panels during the time period the panels were in
2445	existence.
2446	2. The percentage of claims that were settled while the
2447	panels were in existence and the percentage of claims that were
2448	settled in the 3 years prior to the establishment of such panels
2449	or, for each panel which no longer exists, 3 years after the
2450	dissolution of such panels.
2451	3. In those state where panels have been discontinued,
2452	whether additional safeguards have been implemented to avoid the
2453	filing of frivolous lawsuits and what those additional
2454	safeguards are.
2455	4. How the rates for medical malpractice insurance in
2456	states utilizing such panels compares with the rates in states
2457	not utilizing such panels.
2458	5. Whether, and to what extent, a finding by a panel is
2459	subject to review and the burden of proof required to overcome a
2460	finding by the panel.
2461	(2) If the department finds that medical review panels or
2462	a similar structure should be created in this state, it shall
2463	include draft legislation to implement its recommendations in
2464	its report.
2465	(3) The department shall submit its report to the Speaker
2466	of the House of Representatives and the President of the Senate
2467	no later than December 31, 2003.
2468	Section 55. (1) The Agency for Health Care Administration
2469	shall conduct or contract for a study to determine what
2470	information is most feasible to provide to the public comparing
2471	state-licensed hospitals on certain inpatient quality indicators
2472	developed by the federal Agency for Healthcare Research and
2473	Quality. Such indicators shall be designed to identify
2474	information about specific procedures performed in hospitals for
2475	which there is strong evidence of a link to quality of care. The
2476	Agency for Health Care Administration or the study contractor
2477	shall refer to the hospital quality reports published in New
2478	York and Texas as guides during the evaluation.
2479	(2) The following concepts shall be specifically addressed
2480	in the study report:
2481	(a) Whether hospital discharge data about services can be
2482	translated into understandable and meaningful information for
2483	the public.
2484	(b) Whether the following measures are useful consumer
2485	guides relating to care provided in state-licensed hospitals:
2486	1. Inpatient mortality for medical conditions;
2487	2. Inpatient mortality for procedures;
2488	3. Utilization of procedures for which there are questions
2489	of overuse, underuse, or misuse; and
2490	4. Volume of procedures for which there is evidence that a
2491	higher volume of procedures is associated with lower mortality.
2492	(c) Whether there are quality indicators that are
2493	particularly useful relative to the state's unique demographics.
2494	(d) Whether all hospitals should be included in the
2495	comparison.
2496	(e) The criteria for comparison.
2497	(f) Whether comparisons are best within metropolitan
2498	statistical areas or some other geographic configuration.
2499	(g) Identification of several Internet websites on which
2500	such a report should be published to achieve the broadest
2501	dissemination of the information.
2502	(3) The Agency for Health Care Administration shall
2503	consider the input of all interested parties, including
2504	hospitals, physicians, consumer organizations, and patients, and
2505	submit the final report to the Governor and the presiding
2506	officers of the Legislature by January 1, 2004.
2507	Section 56. Comprehensive study and report on the creation
2508	of a Patient Safety Authority.--
2509	(1) The Agency for Health Care Administration, in
2510	consultation with the Department of Health, is directed to study
2511	the need for, and the implementation requirements of,
2512	establishing a Patient Safety Authority. The authority would be
2513	responsible for performing activities and functions designed to
2514	improve patient safety and the quality of care delivered by
2515	health care facilities and health care practitioners.
2516	(2) In undertaking its study, the agency shall examine and
2517	evaluate a Patient Safety Authority that would, either directly
2518	or by contract:
2519	(a) Analyze information concerning adverse incidents
2520	reported to the Agency for Health Care Administration pursuant
2521	to s. 395.0197, Florida Statutes, for the purpose of
2522	recommending changes in practices and procedures that may be
2523	implemented by health care practitioners and health care
2524	facilities to prevent future adverse incidents.
2525	(b) Collect, analyze, and evaluate patient safety data
2526	submitted voluntarily by a health care practitioner or health
2527	care facility. The authority would communicate to health care
2528	practitioners and health care facilities changes in practices
2529	and procedures that may be implemented for the purpose of
2530	improving patient safety and preventing future patient safety
2531	events from resulting in serious injury or death. At a minimum,
2532	the authority would:
2533	1. Be designed and operated by an individual or entity
2534	with demonstrated expertise in health care quality data and
2535	systems analysis, health information management, systems
2536	thinking and analysis, human factors analysis, and
2537	identification of latent and active errors.
2538	2. Include procedures for ensuring its confidentiality,
2539	timeliness, and independence.
2540	(c) Foster the development of a statewide electronic
2541	infrastructure, which would be implemented in phases over a
2542	multiyear period, that is designed to improve patient care and
2543	the delivery and quality of health care services by health care
2544	facilities and practitioners. The electronic infrastructure
2545	would be a secure platform for communication and the sharing of
2546	clinical and other data, such as business data, among providers
2547	and between patients and providers. The electronic
2548	infrastructure would include a core electronic medical record.
2549	Health care providers would have access to individual electronic
2550	medical records, subject to the consent of the individual. The
2551	right, if any, of other entities, including health insurers and
2552	researchers, to access the records would need further
2553	examination and evaluation by the agency.
2554	(d)1. As a statewide goal of reducing the occurrence of
2555	medication error, inventory hospitals to determine the current
2556	status of implementation of computerized physician medication
2557	ordering systems, barcode point of care systems, or other
2558	technological patient safety implementation, and recommend a
2559	plan for expediting implementation statewide or, in hospitals
2560	where the agency determines that implementation of such systems
2561	is not practicable, alternative methods to reduce medication
2562	errors. The agency shall identify in its plan any barriers to
2563	statewide implementation and shall include recommendations to
2564	the Legislature of statutory changes that may be necessary to
2565	eliminate those barriers. The agency will review newly developed
2566	plans for compliance with statewide initiatives and to determine
2567	both the commitment of the health care facility staff and the
2568	capability of the facility to successfully coordinate and
2569	implement these plans, especially from a technological
2570	perspective.
2571	2. “Medication error” is any preventable event that may
2572	cause or lead to inappropriate medication use or patient harm
2573	while the medication is in the control of the health care
2574	professional, patient, or consumer. Such events may be related
2575	to professional practice, health care products, health care
2576	procedures, and health care systems, each of which may include
2577	the prescribing of medications and order communications; product
2578	labeling; product packaging; the nomenclature, compounding,
2579	dispensing, distribution, administration, and use of
2580	medications; and education and monitoring related thereto.
2581	(e) Implement paragraphs (c) and (d) as a demonstration
2582	project for Medicaid recipients.
2583	(f) Identify best practices and share this information
2584	with health care providers.
2585	(g) Engage in other activities that improve health care
2586	quality, improve the diagnosis and treatment of diseases and
2587	medical conditions, increase the efficiency of the delivery of
2588	health care services, increase administrative efficiency, and
2589	increase access to quality health care services.
2590	(3) The agency shall also consider ways in which a Patient
2591	Safety Authority would be able to facilitate the development of
2592	no-fault demonstration projects as means to reduce and prevent
2593	medical errors and promote patient safety.
2594	(4) The agency shall seek information and advice from and
2595	consult with hospitals, physicians, other health care providers,
2596	attorneys, consumers, and individuals involved with and
2597	knowledgeable about patient safety and quality-of-care
2598	initiatives.
2599	(5) In evaluating the need for, and the operation of, a
2600	Patient Safety Authority, the agency shall determine the costs
2601	of implementing and administering an authority and suggest
2602	funding sources and mechanisms.
2603	(6) The agency shall complete its study and issue a report
2604	to the Legislature by February 1, 2004. In its report, the
2605	agency shall include specific findings, recommendations, and
2606	proposed legislation.
2607	Section 57. The Office of Program Policy Analysis and
2608	Government Accountability shall complete a study of the
2609	eligibility requirements for a birth to be covered under the
2610	Florida Birth-Related Neurological Injury Compensation
2611	Association and submit a report to the Legislature by January 1,
2612	2004, recommending whether the statutory criteria for a claim to
2613	qualify for referral to the Florida Birth-Related Neurological
2614	Injury Compensation Association under s. 766.302, Florida
2615	Statutes, should be modified.
2616	Section 58. Civil immunity for members of or consultants
2617	to certain boards, committees, or other entities.--
2618	(1) Each member of, or health care professional consultant
2619	to, any committee, board, group, commission, or other entity
2620	shall be immune from civil liability for any act, decision,
2621	omission, or utterance done or made in performance of his or her
2622	duties while serving as a member of or consultant to such
2623	committee, board, group, commission, or other entity established
2624	and operated for purposes of quality improvement review,
2625	evaluation, and planning in a state-licensed health care
2626	facility. Such entities must function primarily to review,
2627	evaluate, or make recommendations relating to:
2628	(a) The duration of patient stays in health care
2629	facilities;
2630	(b) The professional services furnished with respect to
2631	the medical, dental, psychological, podiatric, chiropractic, or
2632	optometric necessity for such services;
2633	(c) The purpose of promoting the most efficient use of
2634	available health care facilities and services;
2635	(d) The adequacy or quality of professional services;
2636	(e) The competency and qualifications for professional
2637	staff privileges;
2638	(f) The reasonableness or appropriateness of charges made
2639	by or on behalf of health care facilities; or
2640	(g) Patient safety, including entering into contracts with
2641	patient safety organizations.
2642	(2) Such committee, board, group, commission, or other
2643	entity must be established in accordance with state law or in
2644	accordance with requirements of the Joint Commission on
2645	Accreditation of Healthcare Organizations, established and duly
2646	constituted by one or more public or licensed private hospitals
2647	or behavioral health agencies, or established by a governmental
2648	agency. To be protected by this section, the act, decision,
2649	omission, or utterance may not be made or done in bad faith or
2650	with malicious intent.
2651	Section 59. The Office of Program Policy Analysis and
2652	Government Accountability and the Office of the Auditor General
2653	must jointly conduct an audit of the Department of Health's
2654	health care practitioner disciplinary process and closed claims
2655	that are filed with the department under section 627.912,
2656	Florida Statutes. The Office of Program Policy Analysis and
2657	Government Accountability and the Office of the Auditor General
2658	shall submit a report to the Legislature by January 1, 2005.
2659	Section 60. No later than September 1, 2003, the
2660	Department of Health shall convene a workgroup to study the
2661	current healthcare practitioner disciplinary process. The
2662	workgroup shall include a representative of the Administrative
2663	Law section of The Florida Bar, a representative of the Health
2664	Law section of The Florida Bar, a representative of the Florida
2665	Medical Association, a representative of the Florida Osteopathic
2666	Medical Association, a representative of the Florida Dental
2667	Association, a member of the Florida Board of Medicine who has
2668	served on the probable cause panel, a member of the Board of
2669	Osteopathic Medicine who has served on the probable cause panel,
2670	and a member of the Board of Dentistry who has served on the
2671	probable cause panel. The workgroup shall also include one
2672	consumer member of the Board of Medicine. The Department of
2673	Health shall present the findings and recommendations to the
2674	Governor, the President of the Senate, and the Speaker of the
2675	House of Representatives no later than January 1, 2004. The
2676	sponsoring organizations shall assume the costs of their
2677	representatives.
2678	Section 61. In any advertisement or other similar public
2679	dissemination of information by or on behalf of an attorney
2680	regarding issues of medical malpractice, the attorney may not
2681	solicit any person to institute legal action or suggest that
2682	legal action be brought and shall be limited to providing a
2683	description of the areas of practice of the attorney, the
2684	attorney's address or business location, and a method for
2685	contacting the attorney.
2686	Section 62. (1) The Legislature finds and declares it to
2687	be of vital importance that emergency services and care be
2688	provided by hospitals, physicians, and emergency medical
2689	services providers to every person in need of such care. The
2690	Legislature finds that providers of emergency medical services
2691	and care are critical elements in responding to disaster and
2692	emergency situations that might affect our local communities,
2693	state, and country. The Legislature recognizes the importance of
2694	maintaining a viable system of providing for the emergency
2695	medical needs of residents of this state and visitors to this
2696	state. The Legislature and the Federal Government have required
2697	such providers of emergency medical services and care to provide
2698	emergency services and care to all persons who present
2699	themselves to hospitals seeking such care. The Legislature has
2700	further mandated that prehospital emergency medical treatment or
2701	transport may not be denied by emergency medical services
2702	providers to persons who have or are likely to have an emergency
2703	medical condition. Such governmental requirements have imposed a
2704	unilateral obligation for providers of emergency medical
2705	services and care to provide services to all persons seeking
2706	emergency care without ensuring payment or other consideration
2707	for provision of such care. The Legislature also recognizes that
2708	providers of emergency medical services and care provide a
2709	significant amount of uncompensated emergency medical care in
2710	furtherance of such governmental interest. A significant
2711	proportion of the residents of this state who are uninsured or
2712	are Medicaid or Medicare recipients are unable to access needed
2713	health care because health care providers fear the increased
2714	risk of medical malpractice liability. Such patients, in order
2715	to obtain medical care, are frequently forced to seek care
2716	through providers of emergency medical services and care.
2717	Providers of emergency medical services and care in this state
2718	have reported significant problems with both the availability
2719	and affordability of professional liability coverage. Medical
2720	malpractice liability insurance premiums have increased
2721	dramatically and a number of insurers have ceased providing
2722	medical malpractice coverage for emergency medical services and
2723	care in this state. This results in a functional unavailability
2724	of malpractice coverage for some providers of emergency medical
2725	services and care. The Legislature further finds that certain
2726	specialist physicians have resigned from serving on hospital
2727	staffs or have otherwise declined to provide on-call coverage to
2728	hospital emergency departments due to increased medical
2729	malpractice liability exposure created by treating such
2730	emergency department patients. It is the intent of the
2731	Legislature that hospitals, emergency medical services
2732	providers, and physicians be able to ensure that patients who
2733	might need emergency medical services treatment or
2734	transportation or who present themselves to hospitals for
2735	emergency medical services and care have access to such needed
2736	services.
2737	(2) The Legislature finds that access to quality,
2738	affordable health care for all Floridians is a necessary goal
2739	for this state and that teaching hospitals play an essential
2740	role in providing access to comprehensive health care services.
2741	The Legislature finds that access to quality health care at
2742	teaching hospitals is enhanced when teaching hospitals affiliate
2743	and coordinate their common endeavors with medical schools.
2744	These affiliations have proved to be an integral part of the
2745	delivery of more efficient and economical health care services
2746	to patients of teaching hospitals by offering quality graduate
2747	medical education programs to resident physicians who provide
2748	patient services at teaching hospitals and clinics owned by such
2749	hospitals. These affiliations ensure continued access to quality
2750	comprehensive health care services for Floridians and,
2751	therefore, should be encouraged in order to maintain and expand
2752	such services. The Legislature finds that when teaching
2753	hospitals affiliate or enter into contracts with medical schools
2754	to provide comprehensive health care services to patients of
2755	teaching hospitals, teaching hospitals greatly increase their
2756	exposure to claims arising out of alleged medical malpractice
2757	and other allegedly negligent acts because some teaching
2758	hospital employees and agents do not have the same level of
2759	protection against liability claims as colleges and universities
2760	with medical schools and their employees providing the same
2761	patient services to the same teaching hospital patients. The
2762	Legislature finds that the high cost of litigation, unequal
2763	liability exposure, and increased medical malpractice insurance
2764	premiums have adversely impacted the ability of some teaching
2765	hospitals to permit their employees to provide patient services
2766	to patients of teaching hospitals. This finding is consistent
2767	with the report issued in April 2002 by the American Medical
2768	Association declaring Florida to be one of 12 states in the
2769	midst of a medical liability insurance crisis. The crisis in the
2770	availability and affordability of medical malpractice insurance
2771	is a contributing factor in the reduction of access to quality
2772	health care in this state and has declined significantly. If no
2773	corrective action is taken, this health care crisis will lead to
2774	a continued reduction of patient services in teaching hospitals.
2775	The Legislature finds that the state's 6 teaching hospitals
2776	provide 70 percent of the state's graduate medical education as
2777	reported in the 2001-2002 Report on Graduate Medical Education
2778	in Florida: Findings and Recommendations and that the teaching
2779	hospitals ensure the state's future medical manpower. The
2780	Legislature finds that the public is better served and will
2781	benefit from corrective action to address the foregoing
2782	concerns. It is imperative that the legislature further the
2783	public benefit by conferring sovereign immunity upon teaching
2784	hospitals and their employees and agents when teaching hospitals
2785	elect to be agents of the Department of Health as providers of
2786	the state's graduate medical education. It is also the intent of
2787	the Legislature that employees of teaching hospitals providing
2788	patient services to patients of a teaching hospital be immune
2789	from lawsuits in the same manner and to the same extent as
2790	employees and agents of the state, its agencies and political
2791	subdivisions, and further, that they shall not be held
2792	personally liable in tort or named as a party defendant in an
2793	action while performing patient services except as provided in
2794	s. 768.28(9)(a).
2795	Section 63. Paragraph (b) of subsection (9) of section
2796	768.28, Florida Statutes, is amended to read:
2797	768.28 Waiver of sovereign immunity in tort actions;
2798	recovery limits; limitation on attorney fees; statute of
2799	limitations; exclusions; indemnification; risk management
2800	programs.--
2801	(9)
2802	(b) As used in this subsection, the term:
2803	1. "Employee" includes any volunteer firefighter.
2804	2. "Officer, employee, or agent" includes, but is not
2805	limited to:,
2806	a. Any receiving facility designated under chapter 394 and
2807	any persons operating as employees or agents of the receiving
2808	facility when providing emergency treatment to a person who
2809	presented himself or herself for examination and treatment in
2810	accordance with chapter 394.
2811	b.Any health care provider when providing services
2812	pursuant to s. 766.1115, any member of the Florida Health
2813	Services Corps, as defined in s. 381.0302, who provides
2814	uncompensated care to medically indigent persons referred by the
2815	Department of Health, and any public defender or her or his
2816	employee or agent, including, among others, an assistant public
2817	defender and an investigator.
2818	c. Any provider of emergency medical services and care
2819	acting pursuant to obligations imposed by s. 395.1041, s.
2820	395.401, or s. 401.45. Except for persons or entities that are
2821	otherwise covered under this section, providers of emergency
2822	medical services and care shall be considered agents of the
2823	Department of Health and shall indemnify the state for the
2824	reasonable costs of defense and indemnity payments, if any, up
2825	to the liability limits set forth in this chapter. For purposes
2826	of this sub-subparagraph:
2827	(I) The term "provider of emergency medical services and
2828	care" means all persons and entities covered under or providing
2829	services pursuant to obligations imposed by s. 395.1041, s.
2830	395.401, or s. 401.45, including, but not limited to:
2831	(A) An emergency medical services provider licensed under
2832	part III of chapter 401 and persons operating as employees or
2833	agents of such provider or an emergency medical technician or
2834	paramedic certified under part III of chapter 401.
2835	(B) A hospital licensed under chapter 395 and persons
2836	operating as employees or agents of such hospital.
2837	(C) A physician licensed under chapter 458, chapter 459,
2838	chapter 460, or chapter 461 or a dentist licensed under chapter
2839	466.
2840	(D) A physician assistant licensed under chapter 458 or
2841	chapter 459.
2842	(E) A registered nurse, nurse midwife, licensed practical
2843	nurse, or advanced registered nurse practitioner licensed or
2844	registered under part I of chapter 464.
2845	(F) A midwife licensed under chapter 467.
2846	(G) A health care professional association and employees
2847	or agents of the association or a corporate medical group and
2848	employees or agents of such group.
2849	(H) Any student or medical resident who is enrolled in an
2850	accredited program or licensed program that prepares the student
2851	for licensure or certification in any one of the professions
2852	listed in sub-sub-sub-subparagraphs (C)-(G), the program that
2853	prepares the student for licensure or certification, and the
2854	entity responsible for the training of the student or medical
2855	resident.
2856	(I) Any other person or entity that provides services
2857	pursuant to obligations imposed by s. 395.1041, s. 395.401, or
2858	s. 401.45.
2859	(II) The term "emergency medical services" means ambulance
2860	assessment, treatment, or transport services provided pursuant
2861	to obligations imposed by s. 395.1041 or s. 401.45; all
2862	screening, examination, and evaluation performed by a physician,
2863	hospital, or other person or entity acting pursuant to
2864	obligations imposed by s. 395.1041 or s. 395.401; and any care,
2865	treatment, surgery, or other medical services provided, as
2866	outpatient or inpatient, to relieve or eliminate an emergency
2867	medical condition, including all medical services to eliminate
2868	the likelihood that the emergency medical condition will
2869	deteriorate or recur without further medical attention within a
2870	reasonable period of time.
2871	d. Any hospital which is either:
2872	(I) A teaching hospital, as defined in s. 408.07;
2873	(II) A hospital participating under the provisions of s.
2874	381.0403; or
2875	(III) A hospital designated as a family practice teaching
2876	hospital under the provisions of s. 395.806:
2877
2878	and any employee or agent of such hospital who provides patient
2879	services to patients at the hospital facility or at a clinic or
2880	other facility owned and operated by the hospital, which
2881	hospital elects to be considered as an agent of the Department
2882	of Health and indemnifies the state for the reasonable costs of
2883	defense and indemnity payments, if any, up to the liability
2884	limits set forth in this chapter.
2885	Section 64. If any provision of this act or the
2886	application thereof to any person or circumstance is held
2887	invalid, the invalidity does not affect other provisions or
2888	applications of the act which can be given effect without the
2889	invalid provision or application, and to this end the provisions
2890	of this act are declared severable.
2891	Section 65. If any law amended by this act was also
2892	amended by a law enacted at the 2003 Regular Session of the
2893	Legislature or at the 2003 Special Session A of the Legislature,
2894	such laws shall be construed as if they had been enacted at the
2895	same session of the Legislature, and full effect shall be given
2896	to each if possible.
2897	Section 66. This act shall take effect upon becoming a law
2898	and shall apply to any cause of action accruing under chapter
2899	766, Florida Statutes, after that date, unless otherwise
2900	provided herein.
2901