HB 0015C, Engrossed 1 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing
3	legislative findings; amending s. 46.015, F.S.; providing
4	for a setoff of amounts received by a claimant in
5	settlements; authorizing settling defendants to assign
6	rights of contribution; amending s. 391.025, F.S.;
7	providing that the Children's Medical Services Act applies
8	to infants eligible for compensation under the Florida
9	Birth-Related Neurological Injury Compensation Plan;
10	amending s. 391.029, F.S.; providing that infants eligible
11	for compensation under the Florida Birth-Related
12	Neurological Injury Compensation Plan are eligible for the
13	Children's Medical Services program; requiring the plan to
14	reimburse the program for certain costs; creating s.
15	395.0056, F.S.; requiring the Agency for Health Care
16	Administration to review complaints submitted if the
17	defendant is a hospital; amending s. 395.0191, F.S.;
18	deleting requirement that persons act in good faith to
19	avoid liability or discipline for their actions regarding
20	the awarding of staff membership or clinical privileges;
21	amending s. 395.0197, F.S.; revising provisions relating
22	to internal risk management programs; requiring additional
23	reports to and by the Department of Health and the Agency
24	for Health Care Administration; repealing s. 395.0198,
25	F.S., relating to public records exemptions for
26	notification of adverse incidents; creating s. 395.1012,
27	F.S.; requiring hospitals, ambulatory surgical centers,
28	and mobile surgical facilities to establish patient safety
29	plans and committees; creating s. 395.1051, F.S.;
30	requiring certain facilities to notify patients about
31	adverse incidents under specified conditions; amending s.
32	415.1111, F.S.; providing that such section shall not
33	apply to actions involving allegations of medical
34	malpractice; amending s. 456.013, F.S.; requiring certain
35	information to be included in courses for health care
36	practitioners relating to prevention of medical errors;
37	amending s. 456.025, F.S.; eliminating certain
38	restrictions on the setting of licensure renewal fees for
39	health care practitioners; amending s. 456.039, F.S.;
40	providing additional information required to be furnished
41	to the Department of Health for licensure purposes;
42	amending s. 456.041, F.S.; requiring additional
43	information to be included in health care practitioner
44	profiles; providing for fines; revising requirements for
45	the reporting of paid liability claims; amending s.
46	456.042, F.S.; requiring health care practitioner profiles
47	to be updated within a specific time period; amending s.
48	456.049, F.S.; revising requirements for the reporting of
49	paid liability claims; amending s. 456.051, F.S.;
50	establishing the responsibility of the Department of
51	Health to provide reports of professional liability
52	actions and bankruptcies; requiring the department to
53	include such reports in a practitioner's profile within a
54	specified period; amending s. 456.057, F.S.; authorizing
55	the Department of Health to utilize subpoenas to obtain
56	patient records without patients' consent under certain
57	circumstances; creating s. 456.0575, F.S.; requiring
58	licensed health care practitioners to notify patients
59	about adverse incidents under certain conditions; amending
60	s. 456.072, F.S.; providing for determining the amount of
61	any costs to be assessed in a disciplinary proceeding;
62	prescribing the standard of proof in certain disciplinary
63	proceedings; amending s. 456.073, F.S.; authorizing the
64	Department of Health to investigate certain paid claims
65	made on behalf of practitioners licensed under ch. 458 or
66	ch. 459, F.S.; extending the time for the Department of
67	Health to refer a request for an administrative hearing;
68	providing that certain findings are findings of, not
69	findings of fact; amending s. 456.077, F.S.; revising
70	provisions relating to designation of certain citation
71	violations; amending s. 456.078, F.S.; revising provisions
72	relating to designation of certain mediation offenses;
73	amending s. 458.320, F.S., relating to financial
74	responsibility requirements for medical physicians;
75	requiring the department to suspend the license of a
76	medical physician who has not paid, up to the amounts
77	required by any applicable financial responsibility
78	provision, any outstanding judgment, arbitration award,
79	other order, or settlement; amending s. 458.331, F.S.;
80	increasing the amount of paid liability claims requiring
81	investigation by the Department of Health; revising the
82	definition of "repeated malpractice" to conform; requiring
83	the inclusion of certain findings in certain orders issued
84	by administrative law judges; revising the standards for
85	the burden of proof in an administrative action against a
86	physician; creating s. 458.3311, F.S.; establishing
87	emergency procedures for disciplinary actions; amending s.
88	459.0085, F.S., relating to financial responsibility
89	requirements for osteopathic physicians; requiring that
90	the department suspend the license of an osteopathic
91	physician who has not paid, up to the amounts required by
92	any applicable financial responsibility provision, any
93	outstanding judgment, arbitration award, other order, or
94	settlement; amending s. 459.015, F.S.; increasing the
95	amount of paid liability claims requiring investigation by
96	the Department of Health; revising the definition of
97	"repeated malpractice" to conform; revising the standards
98	for the burden of proof in an administrative action
99	against an osteopathic physician; creating s. 459.0151,
100	F.S.; establishing emergency procedures for disciplinary
101	actions; amending s. 460.413, F.S., relating to grounds
102	for disciplinary action against a chiropractic physician;
103	revising the standards for the burden of proof in an
104	administrative action against a chiropractic physician;
105	amending s. 461.013, F.S.; increasing the amount of paid
106	liability claims requiring investigation by the Department
107	of Health; revising the definition of "repeated
108	malpractice" to conform; amending s. 466.028, F.S.,
109	relating to grounds for disciplinary action against a
110	dentist or a dental hygienist; redefining the term "dental
111	malpractice"; revising the minimum amount of a claim
112	against a dentist which will trigger a departmental
113	investigation; amending s. 624.155, F.S.; providing that
114	an action for bad faith may not be brought against a
115	medical malpractice insurer if such insurer offers to pay
116	policy limits within a specified time period; providing
117	for factors to be considered in determining whether a
118	medical malpractice insurer has acted in bad faith;
119	providing a limitation on the amount of damages which may
120	be awarded to certain third parties in actions alleging
121	bad faith by a medical malpractice insurer; amending s.
122	624.462, F.S.; authorizing health care providers to form a
123	commercial self-insurance fund; amending s. 627.062, F.S.;
124	providing additional requirements for medical malpractice
125	insurance rate filings; providing that portions of
126	judgments and settlements entered against a medical
127	malpractice insurer for bad faith actions or for punitive
128	damages against the insurer, as well as related taxable
129	costs and attorney's fees, may not be included in an
130	insurer's rate base; providing for review of rate filings
131	by the Office of Insurance Regulation for excessive,
132	inadequate, or unfairly discriminatory rates; requiring
133	insurers to apply a discount based on the health care
134	provider's loss experience; requiring annual rate filings;
135	requiring medical malpractice insurers to make rate
136	filings effective January 1, 2004, which reflect the
137	impact of this act; providing requirements for rate
138	deviation by insurers; authorizing adjustments to filed
139	rates in the event a provision of this act is declared
140	invalid by a court of competent jurisdiction; amending s.
141	627.357, F.S.; deleting the prohibition against formation
142	of medical malpractice self-insurance funds; providing
143	requirements to form a self-insurance fund; providing
144	rulemaking authority to the Financial Services Commission;
145	creating s. 627.3575, F.S.; creating the Health Care
146	Professional Liability Insurance Facility; providing
147	purpose; providing for governance and powers; providing
148	eligibility requirements; providing for premiums and
149	assessments; providing for regulation; providing rule
150	adoption authority to the Financial Services Commission;
151	providing applicability; specifying duties of the
152	Department of Health; providing for debt and regulation
153	thereof; amending s. 627.4147, F.S.; deleting the
154	requirement that medical malpractice polices authorize the
155	insurer to admit liability without the consent of the
156	insured; requiring earlier notice of decisions to not
157	renew certain insurance policies to insureds under certain
158	circumstances; requiring prior notification of a rate
159	increase; amending s. 627.912, F.S.; requiring certain
160	claims information to be filed with the Office of
161	Insurance Regulation and the Department of Health;
162	providing for rulemaking by the Financial Services
163	Commission; increasing the limit on a fine; creating s.
164	627.9121, F.S.; requiring certain information relating to
165	medical malpractice to be reported to the Office of
166	Insurance Regulation; providing for enforcement; amending
167	s. 641.19, F.S.; providing that health care providers
168	providing services pursuant to coverage provided under a
169	health maintenance organization contract are not employees
170	or agents of the health maintenance organization;
171	providing exceptions; amending s. 641.51, F.S.;
172	proscribing a health maintenance organization’s right to
173	control the professional judgment of a physician;
174	providing that a health maintenance organization shall not
175	be vicariously liable for the medical negligence of a
176	health care provider; providing exceptions; amending s.
177	766.102, F.S; revising requirements for health care
178	providers providing expert testimony in medical negligence
179	actions; prohibiting contingency fees for an expert
180	witness; amending s. 766.106, F.S.; requiring the
181	inclusion of additional information in presuit notices
182	provided to defendants; extending the time period for the
183	presuit screening period; providing that liability is
184	deemed admitted when an offer is made by a defendant to
185	arbitrate; specifying consequences of failure to cooperate
186	on the part of any party during the presuit investigation;
187	revising requirements for presuit notice and insurer or
188	self-insurer response to a claim; permitting written
189	questions during informal discovery; requiring a claimant
190	to execute a medical release to authorize defendants in
191	medical negligence actions to take unsworn statements from
192	a claimant's treating physicians; imposing limits on such
193	statements; creating s. 766.1065, F.S.; requiring parties
194	to provide certain information to parties without request;
195	authorizing the issuance of subpoenas without case
196	numbers; requiring that parties and certain experts be
197	made available for deposition; creating s. 766.1067, F.S.;
198	providing for mandatory mediation in medical negligence
199	causes of action; creating s. 766.118, F.S.; providing
200	limitations on noneconomic damages which can be awarded in
201	causes of action involving medical negligence; amending s.
202	766.202, F.S.; redefining the terms "economic damages,"
203	"medical expert," "noneconomic damages," and "periodic
204	payment"; extending the definitions of economic and
205	noneconomic damages to include any such damages
206	recoverable under the Wrongful Death Act or general law;
207	providing for periodic payments for future noneconomic
208	damages; revising regulations of periodic payments;
209	amending s. 766.203, F.S.; providing for discovery of
210	opinions and statements tendered during presuit
211	investigation; amending s. 766.206, F.S.; providing for
212	dismissal of a claim under certain circumstances;
213	requiring the court to make certain reports concerning a
214	medical expert who fails to meet qualifications; providing
215	for retroactive application; amending s. 766.207, F.S.;
216	conforming provisions to the extension in the time period
217	for presuit investigation; providing for the applicability
218	of the Wrongful Death Act and general law to arbitration
219	awards; amending s. 766.209, F.S.; revising applicable
220	damages available in voluntary binding arbitration
221	relating to claims of medical negligence; creating s.
222	766.213, F.S.; providing for the termination of periodic
223	payments for unincurred medical expenses upon the death of
224	the claimant; providing for the payment of medical
225	expenses incurred prior to the death of the claimant;
226	amending s. 766.304, F.S.; providing that a claimant may
227	not receive compensation from the Florida Birth-Related
228	Neurological Injury Compensation Plan if damages are
229	provided pursuant to a settlement or a final judgment in a
230	civil action is entered; prohibiting the filing of civil
231	actions under certain circumstances; amending s. 766.305,
232	F.S.; revising the information required to be included in
233	a petition seeking recovery from the Florida Birth-Related
234	Neurological Injury Compensation Plan; revising
235	requirements for the service of such petitions; requiring
236	claimants to provide additional information to the Florida
237	Birth-Related Neurological Injury Compensation
238	Association; amending s. 766.31, F.S.; providing a death
239	benefit under the Florida Birth-Related Neurological
240	Injury Compensation Plan in lieu of funeral expenses;
241	amending s. 766.314, F.S.; correcting terminology;
242	authorizing certain hospitals to pay assessments on behalf
243	of certain health care professionals; providing for the
244	dates of coverage of a participating physician; amending
245	s. 768.041, F.S.; providing for a setoff of amounts
246	received by a claimant in settlements; authorizing
247	settling defendants to assign rights of contribution;
248	amending s. 768.13, F.S.; revising guidelines for immunity
249	from liability under the Good Samaritan Act; amending s.
250	768.28, F.S., relating to waiver of sovereign immunity in
251	tort actions; revising the definition of the term
252	"officer, employee, or agent"; providing such immunity to
253	certain colleges and universities affiliated with public
254	hospitals while providing patient services; amending s.
255	768.77, F.S.; prescribing a method for itemization of
256	specific categories of damages awarded in medical
257	malpractice actions; amending s. 768.78, F.S.; correcting
258	a cross reference; providing that a defendant may elect to
259	make lump sum payments rather than periodic payments for
260	either or both future economic and noneconomic damages;
261	authorizing the payment of certain losses for a shorter
262	period of time under certain circumstances; providing for
263	modification of periodic payments or for requiring
264	additional security by order of the court under certain
265	circumstances; amending ss. 766.112 and 768.81, F.S.;
266	providing that a defendant's liability for damages in
267	medical negligence cases is several only; creating s.
268	1004.08, F.S.; requiring patient safety instruction for
269	certain students in public schools, colleges, and
270	universities; creating s. 1005.07, F.S.; requiring patient
271	safety instruction for certain students in nonpublic
272	schools, colleges, and universities; amending s. 1006.20,
273	F.S.; requiring completion of a uniform participation
274	physical evaluation and history form incorporating
275	recommendations of the American Heart Association;
276	deleting revisions to procedures for students' physical
277	examinations; deleting provisions requiring practitioners
278	to certify that students are physically capable of
279	participating in interscholastic athletic competition;
280	defining the terms "patient safety data" and "patient
281	safety organization"; providing for use of patient safety
282	data by a patient safety organization; providing
283	limitations on use of patient safety data; providing for
284	protection of patient-identifying information; providing
285	for determination of whether the privilege applies as
286	asserted; providing that an employer may not take
287	retaliatory action against an employee who makes a good
288	faith report concerning patient safety data; requiring the
289	Division of Administrative Hearings to designate
290	administrative law judges who have special qualifications
291	for hearings involving certain health care practitioners;
292	requiring the Department of Health to study the efficacy
293	and constitutionality of medical review panels; requiring
294	a report; directing the Agency for Health Care
295	Administration to conduct or contract for a study to
296	determine what information to provide to the public
297	comparing hospitals, based on inpatient quality indicators
298	developed by the federal Agency for Healthcare Research
299	and Quality; requiring a report by the Agency for Health
300	Care Administration regarding the establishment of a
301	Patient Safety Authority; specifying elements of the
302	report; requiring the Office of Program Policy Analysis
303	and Government Accountability to study and report to the
304	Legislature on requirements for coverage by the Florida
305	Birth-Related Neurological Injury Compensation
306	Association; providing civil immunity for certain
307	participants in quality improvement processes; requiring
308	the Office of Program Policy Analysis and Government
309	Accountability and the Office of the Auditor General to
310	conduct an audit of the Department of Health's health care
311	practitioner disciplinary process and certain closed
312	claims and to report to the Legislature; creating a
313	workgroup to study the health care practitioner
314	disciplinary process; providing for workgroup membership;
315	providing that the workgroup deliver its report by January
316	1, 2004; providing legislative findings and intent;
317	providing a statement of legislative intent regarding the
318	change in the standard of proof in disciplinary cases
319	involving the suspension or revocation of a license;
320	providing that the practice of health care is a privilege,
321	not a right; providing that protecting patients overrides
322	purported property interest in the license of a health
323	care practitioner; providing that certain disciplinary
324	actions are remedial and protective, not penal; providing
325	that the Legislature specifically reverses case law to the
326	contrary; reenacting ss. 624.488, F.S., 628.6016, F.S.;
327	and s. 631.717, F.S., to incorporate by reference
328	amendments to s. 624.155, F.S.; providing severability;
329	providing for construction of the act in pari materia with
330	laws enacted during the 2003 Regular Session, the 2003
331	Special Session A, or the 2003 Special Session B of the
332	Legislature; providing an effective date.
333
334	Be It Enacted by the Legislature of the State of Florida:
335
336	Section 1. Findings.--
337	(1) The Legislature finds that Florida is in the midst of
338	a medical malpractice insurance crisis of unprecedented
339	magnitude.
340	(2) The Legislature finds that this crisis threatens the
341	quality and availability of health care for all Florida
342	citizens.
343	(3) The Legislature finds that the rapidly growing
344	population and the changing demographics of Florida make it
345	imperative that students continue to choose Florida as the place
346	they will receive their medical educations and practice
347	medicine.
348	(4) The Legislature finds that Florida is among the states
349	with the highest medical malpractice insurance premiums in the
350	nation.
351	(5) The Legislature finds that the cost of medical
352	malpractice insurance has increased dramatically during the past
353	decade and both the increase and the current cost are
354	substantially higher than the national average.
355	(6) The Legislature finds that the increase in medical
356	malpractice liability insurance rates is forcing physicians to
357	practice medicine without professional liability insurance, to
358	leave Florida, to not perform high-risk procedures, or to retire
359	early from the practice of medicine.
360	(7) The Legislature finds that there are certain elements
361	of damage presently recoverable that have no monetary value,
362	except on a purely arbitrary basis, while other elements of
363	damage are either easily measured on a monetary basis or reflect
364	ultimate monetary loss.
365	(8) The Governor created the Governor's Select Task Force
366	on Healthcare Professional Liability Insurance to study and make
367	recommendations to address these problems.
368	(9) The Legislature has reviewed the findings and
369	recommendations of the Governor's Select Task Force on
370	Healthcare Professional Liability Insurance.
371	(10) The Legislature finds that the Governor's Select Task
372	Force on Healthcare Professional Liability Insurance has
373	established that a medical malpractice crisis exists in the
374	State of Florida which can be alleviated by the adoption of
375	comprehensive legislatively enacted reforms.
376	(11) The Legislature finds that making high-quality health
377	care available to the citizens of this state is an overwhelming
378	public necessity.
379	(12) The Legislature finds that ensuring that physicians
380	continue to practice in Florida is an overwhelming public
381	necessity.
382	(13) The Legislature finds that ensuring the availability
383	of affordable professional liability insurance for physicians is
384	an overwhelming public necessity.
385	(14) The Legislature finds, based upon the findings and
386	recommendations of the Governor's Select Task Force on
387	Healthcare Professional Liability Insurance, the findings and
388	recommendations of various study groups throughout the nation,
389	and the experience of other states, that the overwhelming public
390	necessities of making quality health care available to the
391	citizens of this state, of ensuring that physicians continue to
392	practice in Florida, and of ensuring that those physicians have
393	the opportunity to purchase affordable professional liability
394	insurance cannot be met unless a cap on noneconomic damages is
395	imposed.
396	(15) The Legislature finds that the high cost of medical
397	malpractice claims can be substantially alleviated by imposing a
398	limitation on noneconomic damages in medical malpractice
399	actions.
400	(16) The Legislature further finds that there is no
401	alternative measure of accomplishing such result without
402	imposing even greater limits upon the ability of persons to
403	recover damages for medical malpractice.
404	(17) The Legislature finds that the provisions of this act
405	are naturally and logically connected to each other and to the
406	purpose of making quality health care available to the citizens
407	of Florida.
408	(18) The Legislature finds that each of the provisions of
409	this act is necessary to alleviate the crisis relating to
410	medical malpractice insurance.
411	Section 2. Subsection (4) is added to section 46.015,
412	Florida Statutes, to read:
413	46.015 Release of parties.--
414	(4)(a) At trial pursuant to a suit filed under chapter 766
415	or pursuant to s. 766.209, or in arbitration pursuant to s.
416	766.207, if any defendant shows the court that the plaintiff, or
417	his or her legal representative, has delivered a written release
418	or covenant not to sue to any person in partial satisfaction of
419	the damages resulting from the same injury or injuries, the
420	court shall set off this amount from the amount of any judgment
421	to which the plaintiff would otherwise be entitled at the time
422	of rendering judgment, regardless of whether the jury has
423	allocated fault to the settling defendant at trial.
424	(b) The amount of any setoff under this subsection shall
425	include all sums received by the plaintiff, including economic
426	and noneconomic damages, costs, and attorney's fees, and shall
427	be applied against the total damages, after reduction for any
428	comparative negligence of the plaintiff, rather than against the
429	apportioned damages caused by a particular defendant.
430	(c) A defendant entering into a settlement agreement with
431	a plaintiff may assign any right of contribution arising under
432	s. 768.31 as a consequence of having paid more than his or her
433	proportionate share of the entire liability.
434	Section 3. Subsection (1) of section 391.025, Florida
435	Statutes, is amended to read:
436	391.025 Applicability and scope.--
437	(1) This act applies to health services provided to
438	eligible individuals who are:
439	(a) Enrolled in the Medicaid program.;
440	(b) Enrolled in the Florida Kidcare program.; and
441	(c) Uninsured or underinsured, provided that they meet the
442	financial eligibility requirements established in this act, and
443	to the extent that resources are appropriated for their care.
444	(d) Infants who receive an award of compensation pursuant
445	to s. 766.31(1).
446	Section 4. Paragraph (f) is added to subsection (2) of
447	section 391.029, Florida Statutes, to read:
448	391.029 Program eligibility.--
449	(2) The following individuals are financially eligible for
450	the program:
451	(f) An infant who receives an award of compensation
452	pursuant to s. 766.31(1), provided the Florida Birth-Related
453	Neurological Injury Compensation Association shall reimburse the
454	Children's Medical Services Network the state's share of funding,
455	which funding shall be used to obtain matching federal funds
456	under Title XXI of the Social Security Act.
457
458	The department may continue to serve certain children with
459	special health care needs who are 21 years of age or older and
460	who were receiving services from the program prior to April 1,
461	1998. Such children may be served by the department until July
462	1, 2000.
463	Section 5. Section 395.0056, Florida Statutes, is created
464	to read:
465	395.0056 Litigation notice requirement.--Upon receipt of a
466	copy of a complaint filed against a hospital as a defendant in a
467	medical malpractice action as required by s. 766.106(2), the
468	agency shall:
469	(1) Review its adverse incident report files pertaining to
470	the licensed facility that is the subject of the complaint to
471	determine whether the facility timely complied with the
472	requirements of s. 395.0197.
473	(2) Review the incident that is the subject of the
474	complaint and determine whether it involved conduct by a
475	licensee which is potentially subject to disciplinary action.
476	Section 6. Subsection (7) of section 395.0191, Florida
477	Statutes, is amended to read:
478	395.0191 Staff membership and clinical privileges.--
479	(7) There shall be no monetary liability on the part of,
480	and no cause of action for injunctive relief ordamages shall
481	arise against, any licensed facility, its governing board or
482	governing board members, medical staff, or disciplinary board or
483	against its agents, investigators, witnesses, or employees, or
484	against any other person, for any action arising out of or
485	related to carrying out the provisions of this section, absent
486	taken in good faith and without intentional fraud in carrying
487	out the provisions of this section.
488	Section 7. Section 395.0197, Florida Statutes, is amended
489	to read:
490	395.0197 Internal risk management program.--
491	(1) Every licensed facility shall, as a part of its
492	administrative functions, establish an internal risk management
493	program that includes all of the following components:
494	(a) The investigation and analysis of the frequency and
495	causes of general categories and specific types of adverse
496	incidents to patients.
497	(b) The development of appropriate measures to minimize
498	the risk of adverse incidents to patients, including, but not
499	limited to:
500	1. Risk management and risk prevention education and
501	training of all nonphysician personnel as follows:
502	a. Such education and training of all nonphysician
503	personnel as part of their initial orientation; and
504	b. At least 1 hour of such education and training annually
505	for all personnel of the licensed facility working in clinical
506	areas and providing patient care, except those persons licensed
507	as health care practitioners who are required to complete
508	continuing education coursework pursuant to chapter 456 or the
509	respective practice act.
510	2. A prohibition, except when emergency circumstances
511	require otherwise, against a staff member of the licensed
512	facility attending a patient in the recovery room, unless the
513	staff member is authorized to attend the patient in the recovery
514	room and is in the company of at least one other person.
515	However, a licensed facility is exempt from the two-person
516	requirement if it has:
517	a. Live visual observation;
518	b. Electronic observation; or
519	c. Any other reasonable measure taken to ensure patient
520	protection and privacy.
521	3. A prohibition against an unlicensed person from
522	assisting or participating in any surgical procedure unless the
523	facility has authorized the person to do so following a
524	competency assessment, and such assistance or participation is
525	done under the direct and immediate supervision of a licensed
526	physician and is not otherwise an activity that may only be
527	performed by a licensed health care practitioner.
528	4. Development, implementation, and ongoing evaluation of
529	procedures, protocols, and systems to accurately identify
530	patients, planned procedures, and the correct site of the
531	planned procedure so as to minimize the performance of a
532	surgical procedure on the wrong patient, a wrong surgical
533	procedure, a wrong-site surgical procedure, or a surgical
534	procedure otherwise unrelated to the patient's diagnosis or
535	medical condition.
536	(c) The analysis of patient grievances that relate to
537	patient care and the quality of medical services.
538	(d) The development and implementation of an incident
539	reporting system based upon the affirmative duty of all health
540	care providers and all agents and employees of the licensed
541	health care facility to report adverse incidents to the risk
542	manager, or to his or her designee, within 3 business days after
543	their occurrence.
544	(2) The internal risk management program is the
545	responsibility of the governing board of the health care
546	facility. Each licensed facility shall hire a risk manager,
547	licensed under s. 395.10974, who is responsible for
548	implementation and oversight of such facility's internal risk
549	management program as required by this section. A risk manager
550	must not be made responsible for more than four internal risk
551	management programs in separate licensed facilities, unless the
552	facilities are under one corporate ownership or the risk
553	management programs are in rural hospitals.
554	(3) In addition to the programs mandated by this section,
555	other innovative approaches intended to reduce the frequency and
556	severity of medical malpractice and patient injury claims shall
557	be encouraged and their implementation and operation
558	facilitated. Such additional approaches may include extending
559	internal risk management programs to health care providers'
560	offices and the assuming of provider liability by a licensed
561	health care facility for acts or omissions occurring within the
562	licensed facility. Each licensed facility shall annually report
563	to the agency and the department the name and judgments entered
564	against each health care practitioner for which it assumes
565	liability. The agency and the department, in their respective
566	annual reports, shall include statistics that report the number
567	of licensed facilities that assume such liability and the number
568	of health care practitioners, by profession, for whom the
569	facilities assume liability.
570	(4) The agency shall adopt rules governing the
571	establishment of internal risk management programs to meet the
572	needs of individual licensed facilities. Each internal risk
573	management program shall include the use of incident reports to
574	be filed with an individual of responsibility who is competent
575	in risk management techniques in the employ of each licensed
576	facility, such as an insurance coordinator, or who is retained
577	by the licensed facility as a consultant. The individual
578	responsible for the risk management program shall have free
579	access to all medical records of the licensed facility. The
580	incident reports are part of the workpapers of the attorney
581	defending the licensed facility in litigation relating to the
582	licensed facility and are subject to discovery, but are not
583	admissible as evidence in court. A person filing an incident
584	report is not subject to civil suit by virtue of such incident
585	report. As a part of each internal risk management program, the
586	incident reports shall be used to develop categories of
587	incidents which identify problem areas. Once identified,
588	procedures shall be adjusted to correct the problem areas.
589	(5) For purposes of reporting to the agency pursuant to
590	this section, the term "adverse incident" means an event over
591	which health care personnel could exercise control and which is
592	associated in whole or in part with medical intervention, rather
593	than the condition for which such intervention occurred, and
594	which:
595	(a) Results in one of the following injuries:
596	1. Death;
597	2. Brain or spinal damage;
598	3. Permanent disfigurement;
599	4. Fracture or dislocation of bones or joints;
600	5. A resulting limitation of neurological, physical, or
601	sensory function which continues after discharge from the
602	facility;
603	6. Any condition that required specialized medical
604	attention or surgical intervention resulting from nonemergency
605	medical intervention, other than an emergency medical condition,
606	to which the patient has not given his or her informed consent;
607	or
608	7. Any condition that required the transfer of the
609	patient, within or outside the facility, to a unit providing a
610	more acute level of care due to the adverse incident, rather
611	than the patient's condition prior to the adverse incident;
612	(b) Was the performance of a surgical procedure on the
613	wrong patient, a wrong surgical procedure, a wrong-site surgical
614	procedure, or a surgical procedure otherwise unrelated to the
615	patient's diagnosis or medical condition;
616	(c) Required the surgical repair of damage resulting to a
617	patient from a planned surgical procedure, where the damage was
618	not a recognized specific risk, as disclosed to the patient and
619	documented through the informed-consent process; or
620	(d) Was a procedure to remove unplanned foreign objects
621	remaining from a surgical procedure.
622	(6)(a) Each licensed facility subject to this section
623	shall submit an annual report to the agency summarizing the
624	incident reports that have been filed in the facility for that
625	year. The report shall include:
626	1. The total number of adverse incidents.
627	2. A listing, by category, of the types of operations,
628	diagnostic or treatment procedures, or other actions causing the
629	injuries, and the number of incidents occurring within each
630	category.
631	3. A listing, by category, of the types of injuries caused
632	and the number of incidents occurring within each category.
633	4. A code number using the health care professional's
634	licensure number and a separate code number identifying all
635	other individuals directly involved in adverse incidents to
636	patients, the relationship of the individual to the licensed
637	facility, and the number of incidents in which each individual
638	has been directly involved. Each licensed facility shall
639	maintain names of the health care professionals and individuals
640	identified by code numbers for purposes of this section.
641	5. A description of all malpractice claims filed against
642	the licensed facility, including the total number of pending and
643	closed claims and the nature of the incident which led to, the
644	persons involved in, and the status and disposition of each
645	claim.
646	6. The name and judgments entered against each health care
647	practitioner for which the facility assumes liability pursuant
648	to subsection (3).
649
650	Each report shall update status and disposition for all prior
651	reports.
652	(b) The information reported to the agency pursuant to
653	paragraph (a) which relates to persons licensed under chapter
654	458, chapter 459, chapter 461, or chapter 466 shall be reviewed
655	by the agency. The agency shall determine whether any of the
656	incidents potentially involved conduct by a health care
657	professional who is subject to disciplinary action, in which
658	case the provisions of s. 456.073 shall apply.
659	(c) The report submitted to the agency shall also contain
660	the name and license number of the risk manager of the licensed
661	facility, a copy of its policy and procedures which govern the
662	measures taken by the facility and its risk manager to reduce
663	the risk of injuries and adverse incidents, and the results of
664	such measures. The annual report is confidential and is not
665	available to the public pursuant to s. 119.07(1) or any other
666	law providing access to public records. The annual report is not
667	discoverable or admissible in any civil or administrative
668	action, except in disciplinary proceedings by the agency or the
669	appropriate regulatory board. The annual report is not available
670	to the public as part of the record of investigation for and
671	prosecution in disciplinary proceedings made available to the
672	public by the agency or the appropriate regulatory board.
673	However, the agency or the appropriate regulatory board shall
674	make available, upon written request by a health care
675	professional against whom probable cause has been found, any
676	such records which form the basis of the determination of
677	probable cause.
678	(7) The licensed facility shall notify the agency no later
679	than 1 business day after the risk manager or his or her
680	designee has received a report pursuant to paragraph (1)(d) and
681	can determine within 1 business day that any of the following
682	adverse incidents has occurred, whether occurring in the
683	licensed facility or arising from health care prior to admission
684	in the licensed facility:
685	(a) The death of a patient;
686	(b) Brain or spinal damage to a patient;
687	(c) The performance of a surgical procedure on the wrong
688	patient;
689	(d) The performance of a wrong-site surgical procedure; or
690	(e) The performance of a wrong surgical procedure.
691
692	The notification must be made in writing and be provided by
693	facsimile device or overnight mail delivery. The notification
694	must include information regarding the identity of the affected
695	patient, the type of adverse incident, the initiation of an
696	investigation by the facility, and whether the events causing or
697	resulting in the adverse incident represent a potential risk to
698	other patients.
699	(7)(8)Any of the following adverse incidents, whether
700	occurring in the licensed facility or arising from health care
701	prior to admission in the licensed facility, shall be reported
702	by the facility to the agency within 15 calendar days after its
703	occurrence:
704	(a) The death of a patient;
705	(b) Brain or spinal damage to a patient;
706	(c) The performance of a surgical procedure on the wrong
707	patient;
708	(d) The performance of a wrong-site surgical procedure;
709	(e) The performance of a wrong surgical procedure;
710	(f) The performance of a surgical procedure that is
711	medically unnecessary or otherwise unrelated to the patient's
712	diagnosis or medical condition;
713	(g) The surgical repair of damage resulting to a patient
714	from a planned surgical procedure, where the damage is not a
715	recognized specific risk, as disclosed to the patient and
716	documented through the informed-consent process; or
717	(h) The performance of procedures to remove unplanned
718	foreign objects remaining from a surgical procedure.
719
720	The agency may grant extensions to this reporting requirement
721	for more than 15 days upon justification submitted in writing by
722	the facility administrator to the agency. The agency may require
723	an additional, final report. These reports shall not be
724	available to the public pursuant to s. 119.07(1) or any other
725	law providing access to public records, nor be discoverable or
726	admissible in any civil or administrative action, except in
727	disciplinary proceedings by the agency or the appropriate
728	regulatory board, nor shall they be available to the public as
729	part of the record of investigation for and prosecution in
730	disciplinary proceedings made available to the public by the
731	agency or the appropriate regulatory board. However, the agency
732	or the appropriate regulatory board shall make available, upon
733	written request by a health care professional against whom
734	probable cause has been found, any such records which form the
735	basis of the determination of probable cause. The agency may
736	investigate, as it deems appropriate, any such incident and
737	prescribe measures that must or may be taken in response to the
738	incident. The agency shall review each incident and determine
739	whether it potentially involved conduct by the health care
740	professional who is subject to disciplinary action, in which
741	case the provisions of s. 456.073 shall apply.
742	(8)(9)The agency shall publish on the agency's website,
743	no less than quarterly, a summary and trend analysis of adverse
744	incident reports received pursuant to this section, which shall
745	not include information that would identify the patient, the
746	reporting facility, or the health care practitioners involved.
747	The agency shall publish on the agency's website an annual
748	summary and trend analysis of all adverse incident reports and
749	malpractice claims information provided by facilities in their
750	annual reports, which shall not include information that would
751	identify the patient, the reporting facility, or the
752	practitioners involved. The purpose of the publication of the
753	summary and trend analysis is to promote the rapid dissemination
754	of information relating to adverse incidents and malpractice
755	claims to assist in avoidance of similar incidents and reduce
756	morbidity and mortality.
757	(9)(10)The internal risk manager of each licensed
758	facility shall:
759	(a) Investigate every allegation of sexual misconduct
760	which is made against a member of the facility's personnel who
761	has direct patient contact, when the allegation is that the
762	sexual misconduct occurred at the facility or on the grounds of
763	the facility.
764	(b) Report every allegation of sexual misconduct to the
765	administrator of the licensed facility.
766	(c) Notify the family or guardian of the victim, if a
767	minor, that an allegation of sexual misconduct has been made and
768	that an investigation is being conducted.
769	(d) Report to the Department of Health every allegation of
770	sexual misconduct, as defined in chapter 456 and the respective
771	practice act, by a licensed health care practitioner that
772	involves a patient.
773	(10)(11)Any witness who witnessed or who possesses actual
774	knowledge of the act that is the basis of an allegation of
775	sexual abuse shall:
776	(a) Notify the local police; and
777	(b) Notify the hospital risk manager and the
778	administrator.
779
780	For purposes of this subsection, "sexual abuse" means acts of a
781	sexual nature committed for the sexual gratification of anyone
782	upon, or in the presence of, a vulnerable adult, without the
783	vulnerable adult's informed consent, or a minor. "Sexual abuse"
784	includes, but is not limited to, the acts defined in s.
785	794.011(1)(h), fondling, exposure of a vulnerable adult's or
786	minor's sexual organs, or the use of the vulnerable adult or
787	minor to solicit for or engage in prostitution or sexual
788	performance. "Sexual abuse" does not include any act intended
789	for a valid medical purpose or any act which may reasonably be
790	construed to be a normal caregiving action.
791	(11)(12)A person who, with malice or with intent to
792	discredit or harm a licensed facility or any person, makes a
793	false allegation of sexual misconduct against a member of a
794	licensed facility's personnel is guilty of a misdemeanor of the
795	second degree, punishable as provided in s. 775.082 or s.
796	775.083.
797	(12)(13)In addition to any penalty imposed pursuant to
798	this section, the agency shall require a written plan of
799	correction from the facility. For a single incident or series of
800	isolated incidents that are nonwillful violations of the
801	reporting requirements of this section, the agency shall first
802	seek to obtain corrective action by the facility. If the
803	correction is not demonstrated within the timeframe established
804	by the agency or if there is a pattern of nonwillful violations
805	of this section, the agency may impose an administrative fine,
806	not to exceed $5,000 for any violation of the reporting
807	requirements of this section. The administrative fine for
808	repeated nonwillful violations shall not exceed $10,000 for any
809	violation. The administrative fine for each intentional and
810	willful violation may not exceed $25,000 per violation, per day.
811	The fine for an intentional and willful violation of this
812	section may not exceed $250,000. In determining the amount of
813	fine to be levied, the agency shall be guided by s.
814	395.1065(2)(b). This subsection does not apply to the notice
815	requirements under subsection (7).
816	(13)(14)The agency shall have access to all licensed
817	facility records necessary to carry out the provisions of this
818	section. The records obtained by the agency under subsection
819	(6), subsection (7) (8), or subsection (9) (10)are not
820	available to the public under s. 119.07(1), nor shall they be
821	discoverable or admissible in any civil or administrative
822	action, except in disciplinary proceedings by the agency or the
823	appropriate regulatory board, nor shall records obtained
824	pursuant to s. 456.071 be available to the public as part of the
825	record of investigation for and prosecution in disciplinary
826	proceedings made available to the public by the agency or the
827	appropriate regulatory board. However, the agency or the
828	appropriate regulatory board shall make available, upon written
829	request by a health care professional against whom probable
830	cause has been found, any such records which form the basis of
831	the determination of probable cause, except that, with respect
832	to medical review committee records, s. 766.101 controls.
833	(14)(15)The meetings of the committees and governing
834	board of a licensed facility held solely for the purpose of
835	achieving the objectives of risk management as provided by this
836	section shall not be open to the public under the provisions of
837	chapter 286. The records of such meetings are confidential and
838	exempt from s. 119.07(1), except as provided in subsection (13)
839	(14).
840	(15)(16)The agency shall review, as part of its licensure
841	inspection process, the internal risk management program at each
842	licensed facility regulated by this section to determine whether
843	the program meets standards established in statutes and rules,
844	whether the program is being conducted in a manner designed to
845	reduce adverse incidents, and whether the program is
846	appropriately reporting incidents under this section.
847	(16)(17)There shall be no monetary liability on the part
848	of, and no cause of action for damages shall arise against, any
849	risk manager, licensed under s. 395.10974, for the
850	implementation and oversight of the internal risk management
851	program in a facility licensed under this chapter or chapter 390
852	as required by this section, for any act or proceeding
853	undertaken or performed within the scope of the functions of
854	such internal risk management program if the risk manager acts
855	without intentional fraud.
856	(17)(18)A privilege against civil liability is hereby
857	granted to any licensed risk manager or licensed facility with
858	regard to information furnished pursuant to this chapter, unless
859	the licensed risk manager or facility acted in bad faith or with
860	malice in providing such information.
861	(18)(19)If the agency, through its receipt of any reports
862	required under this section or through any investigation, has a
863	reasonable belief that conduct by a staff member or employee of
864	a licensed facility is grounds for disciplinary action by the
865	appropriate regulatory board, the agency shall report this fact
866	to such regulatory board.
867	(19)(20)It shall be unlawful for any person to coerce,
868	intimidate, or preclude a risk manager from lawfully executing
869	his or her reporting obligations pursuant to this chapter. Such
870	unlawful action shall be subject to civil monetary penalties not
871	to exceed $10,000 per violation.
872	Section 8. Section 395.0198, Florida Statutes, is
873	repealed.
874	Section 9. Section 395.1012, Florida Statutes, is created
875	to read:
876	395.1012 Patient safety.--
877	(1) Each licensed facility shall adopt a patient safety
878	plan. A plan adopted to implement the requirements of 42 C.F.R.
879	s. 482.21 shall be deemed to comply with this requirement.
880	(2) Each licensed facility shall appoint a patient safety
881	officer and a patient safety committee, which shall include at
882	least one person who is neither employed by nor practicing in
883	the facility, for the purpose of promoting the health and safety
884	of patients, reviewing and evaluating the quality of patient
885	safety measures used by the facility, and assisting in the
886	implementation of the facility patient safety plan.
887	Section 10. Section 395.1051, Florida Statutes, is created
888	to read:
889	395.1051 Duty to notify patients.--Every licensed facility
890	shall inform each patient, or an individual identified pursuant
891	to s. 765.401(1), in person about adverse incidents that result
892	in serious harm to the patient. Notification of outcomes of care
893	that result in harm to the patient under this section shall not
894	constitute an acknowledgement or admission of liability, nor can
895	such notifications be introduced as evidence.
896	Section 11. Section 415.1111, Florida Statutes, is amended
897	to read:
898	415.1111 Civil actions.--A vulnerable adult who has been
899	abused, neglected, or exploited as specified in this chapter has
900	a cause of action against any perpetrator and may recover actual
901	and punitive damages for such abuse, neglect, or exploitation.
902	The action may be brought by the vulnerable adult, or that
903	person's guardian, by a person or organization acting on behalf
904	of the vulnerable adult with the consent of that person or that
905	person's guardian, or by the personal representative of the
906	estate of a deceased victim without regard to whether the cause
907	of death resulted from the abuse, neglect, or exploitation. The
908	action may be brought in any court of competent jurisdiction to
909	enforce such action and to recover actual and punitive damages
910	for any deprivation of or infringement on the rights of a
911	vulnerable adult. A party who prevails in any such action may be
912	entitled to recover reasonable attorney's fees, costs of the
913	action, and damages. The remedies provided in this section are
914	in addition to and cumulative with other legal and
915	administrative remedies available to a vulnerable adult.
916	Notwithstanding the foregoing, any civil action for damages
917	against any licensee or entity who establishes, controls,
918	conducts, manages, or operates a facility licensed under part II
919	of chapter 400 relating to its operation of the licensed
920	facility shall be brought pursuant to s. 400.023, or against any
921	licensee or entity who establishes, controls, conducts, manages,
922	or operates a facility licensed under part III of chapter 400
923	relating to its operation of the licensed facility shall be
924	brought pursuant to s. 400.429. Such licensee or entity shall
925	not be vicariously liable for the acts or omissions of its
926	employees or agents or any other third party in an action
927	brought under this section. Notwithstanding the provisions of
928	this section, any claim that qualifies as a claim for medical
929	malpractice, as defined in s. 766.106(1)(a), shall be brought
930	pursuant to chapter 766.
931	Section 12. Subsection (7) of section 456.013, Florida
932	Statutes, is amended to read:
933	456.013 Department; general licensing provisions.--
934	(7) The boards, or the department when there is no board,
935	shall require the completion of a 2-hour course relating to
936	prevention of medical errors as part of the licensure and
937	renewal process. The 2-hour course shall count towards the total
938	number of continuing education hours required for the
939	profession. The course shall be approved by the board or
940	department, as appropriate, andshall include a study of root-
941	cause analysis, error reduction and prevention, and patient
942	safety, and shall contain information relating to the five most
943	misdiagnosed conditions during the previous biennium, as
944	determined by the board or department. If the course is being
945	offered by a facility licensed pursuant to chapter 395 for its
946	employees, the board may approve up to 1 hour of the 2-hour
947	course to be specifically related to error reduction and
948	prevention methods used in that facility.
949	Section 13. Subsection (1) of section 456.025, Florida
950	Statutes, is amended to read:
951	456.025 Fees; receipts; disposition.--
952	(1) It is the intent of the Legislature that all costs of
953	regulating health care professions and practitioners shall be
954	borne solely by licensees and licensure applicants. It is also
955	the intent of the Legislature that fees should be reasonable and
956	not serve as a barrier to licensure. Moreover, it is the intent
957	of the Legislature that the department operate as efficiently as
958	possible and regularly report to the Legislature additional
959	methods to streamline operational costs. Therefore, the boards
960	in consultation with the department, or the department if there
961	is no board, shall, by rule, set renewal fees which:
962	(a) Shall be based on revenue projections prepared using
963	generally accepted accounting procedures;
964	(b) Shall be adequate to cover all expenses relating to
965	that board identified in the department's long-range policy
966	plan, as required by s. 456.005;
967	(c) Shall be reasonable, fair, and not serve as a barrier
968	to licensure;
969	(d) Shall be based on potential earnings from working
970	under the scope of the license;
971	(e) Shall be similar to fees imposed on similar licensure
972	types;
973	(f) Shall not be more than 10 percent greater than the fee
974	imposed for the previous biennium;
975	(f)(g)Shall not be more than 10 percent greater than the
976	actual cost to regulate that profession for the previous
977	biennium; and
978	(g)(h)Shall be subject to challenge pursuant to chapter
979	120.
980	Section 14. Paragraph (a) of subsection (1) of section
981	456.039, Florida Statutes, is amended to read:
982	456.039 Designated health care professionals; information
983	required for licensure.--
984	(1) Each person who applies for initial licensure as a
985	physician under chapter 458, chapter 459, chapter 460, or
986	chapter 461, except a person applying for registration pursuant
987	to ss. 458.345 and 459.021, must, at the time of application,
988	and each physician who applies for license renewal under chapter
989	458, chapter 459, chapter 460, or chapter 461, except a person
990	registered pursuant to ss. 458.345 and 459.021, must, in
991	conjunction with the renewal of such license and under
992	procedures adopted by the Department of Health, and in addition
993	to any other information that may be required from the
994	applicant, furnish the following information to the Department
995	of Health:
996	(a)1. The name of each medical school that the applicant
997	has attended, with the dates of attendance and the date of
998	graduation, and a description of all graduate medical education
999	completed by the applicant, excluding any coursework taken to
1000	satisfy medical licensure continuing education requirements.
1001	2. The name of each hospital at which the applicant has
1002	privileges.
1003	3. The address at which the applicant will primarily
1004	conduct his or her practice.
1005	4. Any certification that the applicant has received from
1006	a specialty board that is recognized by the board to which the
1007	applicant is applying.
1008	5. The year that the applicant began practicing medicine.
1009	6. Any appointment to the faculty of a medical school
1010	which the applicant currently holds and an indication as to
1011	whether the applicant has had the responsibility for graduate
1012	medical education within the most recent 10 years.
1013	7. A description of any criminal offense of which the
1014	applicant has been found guilty, regardless of whether
1015	adjudication of guilt was withheld, or to which the applicant
1016	has pled guilty or nolo contendere. A criminal offense committed
1017	in another jurisdiction which would have been a felony or
1018	misdemeanor if committed in this state must be reported. If the
1019	applicant indicates that a criminal offense is under appeal and
1020	submits a copy of the notice for appeal of that criminal
1021	offense, the department must state that the criminal offense is
1022	under appeal if the criminal offense is reported in the
1023	applicant's profile. If the applicant indicates to the
1024	department that a criminal offense is under appeal, the
1025	applicant must, upon disposition of the appeal, submit to the
1026	department a copy of the final written order of disposition.
1027	8. A description of any final disciplinary action taken
1028	within the previous 10 years against the applicant by the agency
1029	regulating the profession that the applicant is or has been
1030	licensed to practice, whether in this state or in any other
1031	jurisdiction, by a specialty board that is recognized by the
1032	American Board of Medical Specialties, the American Osteopathic
1033	Association, or a similar national organization, or by a
1034	licensed hospital, health maintenance organization, prepaid
1035	health clinic, ambulatory surgical center, or nursing home.
1036	Disciplinary action includes resignation from or nonrenewal of
1037	medical staff membership or the restriction of privileges at a
1038	licensed hospital, health maintenance organization, prepaid
1039	health clinic, ambulatory surgical center, or nursing home taken
1040	in lieu of or in settlement of a pending disciplinary case
1041	related to competence or character. If the applicant indicates
1042	that the disciplinary action is under appeal and submits a copy
1043	of the document initiating an appeal of the disciplinary action,
1044	the department must state that the disciplinary action is under
1045	appeal if the disciplinary action is reported in the applicant's
1046	profile.
1047	9. Relevant professional qualifications as defined by the
1048	applicable board.
1049	Section 15. Section 456.041, Florida Statutes, is amended
1050	to read:
1051	456.041 Practitioner profile; creation.--
1052	(1)(a)Beginning July 1, 1999, the Department of Health
1053	shall compile the information submitted pursuant to s. 456.039
1054	into a practitioner profile of the applicant submitting the
1055	information, except that the Department of Health may develop a
1056	format to compile uniformly any information submitted under s.
1057	456.039(4)(b). Beginning July 1, 2001, the Department of Health
1058	may, and beginning July 1, 2004, shall,compile the information
1059	submitted pursuant to s. 456.0391 into a practitioner profile of
1060	the applicant submitting the information.
1061	(b) Each practitioner licensed under chapter 458 or
1062	chapter 459 must report to the Department of Health and the
1063	Board of Medicine or the Board of Osteopathic Medicine,
1064	respectively, all final disciplinary actions, sanctions by a
1065	governmental agency or a facility or entity licensed under state
1066	law, and claims or actions, as provided under s. 456.051, to
1067	which he or she is subjected no later than 15 calendar days
1068	after such action or sanction is imposed. Failure to submit the
1069	requisite information within 15 calendar days in accordance with
1070	this paragraph shall subject the practitioner to discipline by
1071	the Board of Medicine or the Board of Osteopathic Medicine and a
1072	fine of $100 for each day that the information is not submitted
1073	after the expiration of the 15-day reporting period.
1074	(c) Within 15 days after receiving a report under
1075	paragraph (b), the department shall update the practitioner's
1076	profile in accordance with the requirements of subsection (7).
1077	(2) On the profile published under subsection (1), the
1078	department shall indicate whether ifthe information provided
1079	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
1080	corroborated by a criminal history check conducted according to
1081	this subsection. If the information provided under s.
1082	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
1083	criminal history check, the fact that the criminal history check
1084	was performed need not be indicated on the profile.The
1085	department, or the board having regulatory authority over the
1086	practitioner acting on behalf of the department, shall
1087	investigate any information received by the department or the
1088	board when it has reasonable grounds to believe that the
1089	practitioner has violated any law that relates to the
1090	practitioner's practice.
1091	(3) The Department of Health shall mayinclude in each
1092	practitioner's practitioner profile that criminal information
1093	that directly relates to the practitioner's ability to
1094	competently practice his or her profession. The department must
1095	include in each practitioner's practitioner profile the
1096	following statement: "The criminal history information, if any
1097	exists, may be incomplete; federal criminal history information
1098	is not available to the public." The department shall provide in
1099	each practitioner profile, for every final disciplinary action
1100	taken against the practitioner, a narrative description, written
1101	in plain English, that explains the administrative complaint
1102	filed against the practitioner and the final disciplinary action
1103	imposed on the practitioner. The department shall include a
1104	hyperlink to each final order listed on its Internet website
1105	report of dispositions of recent disciplinary actions taken
1106	against practitioners.
1107	(4) The Department of Health shall include, with respect
1108	to a practitioner licensed under chapter 458 or chapter 459, a
1109	statement of how the practitioner has elected to comply with the
1110	financial responsibility requirements of s. 458.320 or s.
1111	459.0085. The department shall include, with respect to
1112	practitioners subject to s. 456.048, a statement of how the
1113	practitioner has elected to comply with the financial
1114	responsibility requirements of that section. The department
1115	shall include, with respect to practitioners licensed under
1116	chapter 458, chapter 459, or chapter 461, information relating
1117	to liability actions which has been reported under s. 456.049 or
1118	s. 627.912 within the previous 10 years for any paid claim of
1119	$50,000 or more that exceeds $5,000. Such claims information
1120	shall be reported in the context of comparing an individual
1121	practitioner's claims to the experience of other practitioners
1122	within the same specialty, or profession if the practitioner is
1123	not a specialist, to the extent such information is available to
1124	the Department of Health. The department shall include a
1125	hyperlink to all such comparison reports in such practitioner's
1126	profile on its Internet website.If information relating to a
1127	liability action is included in a practitioner's practitioner
1128	profile, the profile must also include the following statement:
1129	"Settlement of a claim may occur for a variety of reasons that
1130	do not necessarily reflect negatively on the professional
1131	competence or conduct of the practitioner. A payment in
1132	settlement of a medical malpractice action or claim should not
1133	be construed as creating a presumption that medical malpractice
1134	has occurred."
1135	(5) The Department of Health shall may not include the
1136	date of adisciplinary action taken by a licensed hospital or an
1137	ambulatory surgical center, in accordance with the requirements
1138	of s. 395.0193, in the practitioner profile. Any practitioner
1139	disciplined under paragraph (1)(b) must report to the department
1140	the date the disciplinary action was imposed. The department
1141	shall state whether the action is related to professional
1142	competence and whether it is related to the delivery of services
1143	to a patient.
1144	(6) The Department of Health may include in the
1145	practitioner's practitioner profile any other information that
1146	is a public record of any governmental entity and that relates
1147	to a practitioner's ability to competently practice his or her
1148	profession. However, the department must consult with the board
1149	having regulatory authority over the practitioner before such
1150	information is included in his or her profile.
1151	(7) Upon the completion of a practitioner profile under
1152	this section, the Department of Health shall furnish the
1153	practitioner who is the subject of the profile a copy of it. The
1154	practitioner has a period of 30 days in which to review the
1155	profile and to correct any factual inaccuracies in it. The
1156	Department of Health shall make the profile available to the
1157	public at the end of the 30-day period. The department shall
1158	make the profiles available to the public through the World Wide
1159	Web and other commonly used means of distribution.
1160	(8) The Department of Health shall provide in each profile
1161	an easy-to-read explanation of any disciplinary action taken and
1162	the reason the sanction or sanctions were imposed.
1163	(9)(8)Making a practitioner profile available to the
1164	public under this section does not constitute agency action for
1165	which a hearing under s. 120.57 may be sought.
1166	Section 16. Section 456.042, Florida Statutes, is amended
1167	to read:
1168	456.042 Practitioner profiles; update.--A practitioner
1169	must submit updates of required information within 15 days after
1170	the final activity that renders such information a fact.The
1171	Department of Health shall update each practitioner's
1172	practitioner profile periodically. An updated profile is subject
1173	to the same requirements as an original profile with respect to
1174	the period within which the practitioner may review the profile
1175	for the purpose of correcting factual inaccuracies.
1176	Section 17. Subsection (1) of section 456.049, Florida
1177	Statutes, is amended, and subsection (3) is added to said
1178	section, to read:
1179	456.049 Health care practitioners; reports on professional
1180	liability claims and actions.--
1181	(1) Any practitioner of medicine licensed pursuant to the
1182	provisions of chapter 458, practitioner of osteopathic medicine
1183	licensed pursuant to the provisions of chapter 459, podiatric
1184	physician licensed pursuant to the provisions of chapter 461, or
1185	dentist licensed pursuant to the provisions of chapter 466 shall
1186	report to the department any claim or action for damages for
1187	personal injury alleged to have been caused by error, omission,
1188	or negligence in the performance of such licensee's professional
1189	services or based on a claimed performance of professional
1190	services without consent if the claim was not covered by an
1191	insurer required to report under s. 627.912 andthe claim
1192	resulted in:
1193	(a) A final judgment of $50,000 or more or, with respect
1194	to a dentist licensed pursuant to chapter 466, a final judgment
1195	of $25,000 or more in any amount.
1196	(b) A settlement of $50,000 or more or, with respect to a
1197	dentist licensed pursuant to chapter 466, a settlement of
1198	$25,000 or more in any amount.
1199	(c) A final disposition not resulting in payment on behalf
1200	of the licensee.
1201
1202	Reports shall be filed with the department no later than 60 days
1203	following the occurrence of any event listed in paragraph (a),
1204	paragraph (b), or paragraph (c).
1205	(3) The department shall forward the information collected
1206	under this section to the Office of Insurance Regulation.
1207	Section 18. Section 456.051, Florida Statutes, is amended
1208	to read:
1209	456.051 Reports of professional liability actions;
1210	bankruptcies; Department of Health's responsibility to
1211	provide.--
1212	(1) The report of a claim or action for damages for
1213	personal injury which is required to be provided to the
1214	Department of Health under s. 456.049 or s. 627.912 is public
1215	information except for the name of the claimant or injured
1216	person, which remains confidential as provided in ss.
1217	456.049(2)(d) and 627.912(2)(e). The Department of Health
1218	shall, upon request, make such report available to any person.
1219	The department shall make such report available as a part of the
1220	practitioner's profile within 45 calendar days after receipt.
1221	(2) Any information in the possession of the Department of
1222	Health which relates to a bankruptcy proceeding by a
1223	practitioner of medicine licensed under chapter 458, a
1224	practitioner of osteopathic medicine licensed under chapter 459,
1225	a podiatric physician licensed under chapter 461, or a dentist
1226	licensed under chapter 466 is public information. The Department
1227	of Health shall, upon request, make such information available
1228	to any person. The department shall make such report available
1229	as a part of the practitioner's profile within 45 calendar days
1230	after receipt.
1231	Section 19. Paragraph (a) of subsection (7) of section
1232	456.057, Florida Statutes, is amended to read:
1233	456.057 Ownership and control of patient records; report
1234	or copies of records to be furnished.--
1235	(7)(a)1. The department may obtain patient records
1236	pursuant to a subpoena without written authorization from the
1237	patient if the department and the probable cause panel of the
1238	appropriate board, if any, find reasonable cause to believe that
1239	a health care practitioner has excessively or inappropriately
1240	prescribed any controlled substance specified in chapter 893 in
1241	violation of this chapter or any professional practice act or
1242	that a health care practitioner has practiced his or her
1243	profession below that level of care, skill, and treatment
1244	required as defined by this chapter or any professional practice
1245	act and also find that appropriate, reasonable attempts were
1246	made to obtain a patient release.
1247	2. The department may obtain patient records and insurance
1248	information pursuant to a subpoena without written authorization
1249	from the patient if the department and the probable cause panel
1250	of the appropriate board, if any, find reasonable cause to
1251	believe that a health care practitioner has provided inadequate
1252	medical care based on termination of insurance and also find
1253	that appropriate, reasonable attempts were made to obtain a
1254	patient release.
1255	3. The department may obtain patient records, billing
1256	records, insurance information, provider contracts, and all
1257	attachments thereto pursuant to a subpoena without written
1258	authorization from the patient if the department and probable
1259	cause panel of the appropriate board, if any, find reasonable
1260	cause to believe that a health care practitioner has submitted a
1261	claim, statement, or bill using a billing code that would result
1262	in payment greater in amount than would be paid using a billing
1263	code that accurately describes the services performed, requested
1264	payment for services that were not performed by that health care
1265	practitioner, used information derived from a written report of
1266	an automobile accident generated pursuant to chapter 316 to
1267	solicit or obtain patients personally or through an agent
1268	regardless of whether the information is derived directly from
1269	the report or a summary of that report or from another person,
1270	solicited patients fraudulently, received a kickback as defined
1271	in s. 456.054, violated the patient brokering provisions of s.
1272	817.505, or presented or caused to be presented a false or
1273	fraudulent insurance claim within the meaning of s.
1274	817.234(1)(a), and also find that, within the meaning of s.
1275	817.234(1)(a), patient authorization cannot be obtained because
1276	the patient cannot be located or is deceased, incapacitated, or
1277	suspected of being a participant in the fraud or scheme, and if
1278	the subpoena is issued for specific and relevant records.
1279	4. Notwithstanding subparagraphs 1.-3., when the
1280	department investigates a professional liability claim or
1281	undertakes action pursuant to s. 456.049 or s. 627.912, the
1282	department may obtain patient records pursuant to a subpoena
1283	without written authorization from the patient if the patient
1284	refuses to cooperate or attempts to obtain a patient release and
1285	failure to obtain the patient records would be detrimental to
1286	the investigation.
1287	Section 20. Section 456.0575, Florida Statutes, is created
1288	to read:
1289	456.0575 Duty to notify patients.--Every licensed health
1290	care practitioner shall inform each patient, or an individual
1291	identified pursuant to s. 765.401(1), in person about adverse
1292	incidents that result in serious harm to the patient.
1293	Notification of outcomes of care that result in harm to the
1294	patient under this section shall not constitute an
1295	acknowledgement of admission of liability, nor can such
1296	notifications be introduced as evidence.
1297	Section 21. Subsection (4) of section 456.072, Florida
1298	Statutes, is amended, and subsection (7) is added to said
1299	section, to read:
1300	456.072 Grounds for discipline; penalties; enforcement.--
1301	(4) In addition to any other discipline imposed through
1302	final order, or citation, entered on or after July 1, 2001,
1303	pursuant to this section or discipline imposed through final
1304	order, or citation, entered on or after July 1, 2001, for a
1305	violation of any practice act, the board, or the department when
1306	there is no board, shall assess costs related to the
1307	investigation and prosecution of the case. Such costs related to
1308	the investigation and prosecution include, but are not limited
1309	to, salaries and benefits of personnel, costs related to the
1310	time spent by the attorney and other personnel working on the
1311	case, and any other expenses incurred by the department for the
1312	case. The board, or the department when there in no board, shall
1313	determine the amount of costs to be assessed after its
1314	consideration of an affidavit of itemized costs and any written
1315	objections thereto.In any case where the board or the
1316	department imposes a fine or assessment and the fine or
1317	assessment is not paid within a reasonable time, such reasonable
1318	time to be prescribed in the rules of the board, or the
1319	department when there is no board, or in the order assessing
1320	such fines or costs, the department or the Department of Legal
1321	Affairs may contract for the collection of, or bring a civil
1322	action to recover, the fine or assessment.
1323	(7) In any formal administrative hearing conducted under
1324	s. 120.57(1), the department shall establish grounds for the
1325	discipline of a licensee by the greater weight of the evidence.
1326	Section 22. Subsections (1) and (5) of section 456.073,
1327	Florida Statutes, as amended by section 1 of chapter 2003-27,
1328	Laws of Florida, are amended to read:
1329	456.073 Disciplinary proceedings.--Disciplinary
1330	proceedings for each board shall be within the jurisdiction of
1331	the department.
1332	(1) The department, for the boards under its jurisdiction,
1333	shall cause to be investigated any complaint that is filed
1334	before it if the complaint is in writing, signed by the
1335	complainant, and legally sufficient. A complaint filed by a
1336	state prisoner against a health care practitioner employed by or
1337	otherwise providing health care services within a facility of
1338	the Department of Corrections is not legally sufficient unless
1339	there is a showing that the prisoner complainant has exhausted
1340	all available administrative remedies within the state
1341	correctional system before filing the complaint. However, if the
1342	Department of Health determines after a preliminary inquiry of a
1343	state prisoner's complaint that the practitioner may present a
1344	serious threat to the health and safety of any individual who is
1345	not a state prisoner, the Department of Health may determine
1346	legal sufficiency and proceed with discipline. The Department of
1347	Health shall be notified within 15 days after the Department of
1348	Corrections disciplines or allows a health care practitioner to
1349	resign for an offense related to the practice of his or her
1350	profession. A complaint is legally sufficient if it contains
1351	ultimate facts that show that a violation of this chapter, of
1352	any of the practice acts relating to the professions regulated
1353	by the department, or of any rule adopted by the department or a
1354	regulatory board in the department has occurred. In order to
1355	determine legal sufficiency, the department may require
1356	supporting information or documentation. The department may
1357	investigate, and the department or the appropriate board may
1358	take appropriate final action on, a complaint even though the
1359	original complainant withdraws it or otherwise indicates a
1360	desire not to cause the complaint to be investigated or
1361	prosecuted to completion. The department may investigate an
1362	anonymous complaint if the complaint is in writing and is
1363	legally sufficient, if the alleged violation of law or rules is
1364	substantial, and if the department has reason to believe, after
1365	preliminary inquiry, that the violations alleged in the
1366	complaint are true. The department may investigate a complaint
1367	made by a confidential informant if the complaint is legally
1368	sufficient, if the alleged violation of law or rule is
1369	substantial, and if the department has reason to believe, after
1370	preliminary inquiry, that the allegations of the complainant are
1371	true. The department may initiate an investigation if it has
1372	reasonable cause to believe that a licensee or a group of
1373	licensees has violated a Florida statute, a rule of the
1374	department, or a rule of a board. The department may investigate
1375	information filed pursuant to s. 456.041(4) relating to
1376	liability actions with respect to practitioners licensed under
1377	chapter 458 or chapter 459 which have been reported under s.
1378	456.049 or s. 627.912 within the previous 6 years for any paid
1379	claim that exceeds $50,000.Except as provided in ss.
1380	458.331(9), 459.015(9), 460.413(5), and 461.013(6), when an
1381	investigation of any subject is undertaken, the department shall
1382	promptly furnish to the subject or the subject's attorney a copy
1383	of the complaint or document that resulted in the initiation of
1384	the investigation. The subject may submit a written response to
1385	the information contained in such complaint or document within
1386	20 days after service to the subject of the complaint or
1387	document. The subject's written response shall be considered by
1388	the probable cause panel. The right to respond does not prohibit
1389	the issuance of a summary emergency order if necessary to
1390	protect the public. However, if the secretary, or the
1391	secretary's designee, and the chair of the respective board or
1392	the chair of its probable cause panel agree in writing that such
1393	notification would be detrimental to the investigation, the
1394	department may withhold notification. The department may conduct
1395	an investigation without notification to any subject if the act
1396	under investigation is a criminal offense.
1397	(5)(a)A formal hearing before an administrative law judge
1398	from the Division of Administrative Hearings shall be held
1399	pursuant to chapter 120 if there are any disputed issues of
1400	material fact. The determination of whether a licensee has
1401	violated the laws and rules regulating the profession, including
1402	a determination of the reasonable standard of care, is a
1403	conclusion of law to be determined by the board, or department
1404	when there is no board, and is not a finding of fact to be
1405	determined by an administrative law judge.The administrative
1406	law judge shall issue a recommended order pursuant to chapter
1407	120. If any party raises an issue of disputed fact during an
1408	informal hearing, the hearing shall be terminated and a formal
1409	hearing pursuant to chapter 120 shall be held.
1410	(b) Notwithstanding s. 120.569(2), the department shall
1411	notify the Division of Administrative Hearings within 45 days
1412	after receipt of a petition or request for a hearing that the
1413	department has determined requires a formal hearing before an
1414	administrative law judge.
1415	Section 23. Subsections (1) and (2) of section 456.077,
1416	Florida Statutes, are amended to read:
1417	456.077 Authority to issue citations.--
1418	(1) Notwithstanding s. 456.073, the board, or the
1419	department if there is no board, shall adopt rules to permit the
1420	issuance of citations. The citation shall be issued to the
1421	subject and shall contain the subject's name and address, the
1422	subject's license number if applicable, a brief factual
1423	statement, the sections of the law allegedly violated, and the
1424	penalty imposed. The citation must clearly state that the
1425	subject may choose, in lieu of accepting the citation, to follow
1426	the procedure under s. 456.073. If the subject disputes the
1427	matter in the citation, the procedures set forth in s. 456.073
1428	must be followed. However, if the subject does not dispute the
1429	matter in the citation with the department within 30 days after
1430	the citation is served, the citation becomes a publicfinal
1431	order and does not constitute constitutes discipline for a first
1432	offense, but does constitute discipline for a second or
1433	subsequent offense. The penalty shall be a fine or other
1434	conditions as established by rule.
1435	(2) The board, or the department if there is no board,
1436	shall adopt rules designating violations for which a citation
1437	may be issued. Such rules shall designate as citation violations
1438	those violations for which there is no substantial threat to the
1439	public health, safety, and welfare or no violation of standard
1440	of care involving injury to a patient. Violations for which a
1441	citation may be issued shall include violations of continuing
1442	education requirements; failure to timely pay required fees and
1443	fines; failure to comply with the requirements of ss. 381.026
1444	and 381.0261 regarding the dissemination of information
1445	regarding patient rights; failure to comply with advertising
1446	requirements; failure to timely update practitioner profile and
1447	credentialing files; failure to display signs, licenses, and
1448	permits; failure to have required reference books available; and
1449	all other violations that do not pose a direct and serious
1450	threat to the health and safety of the patient or involve a
1451	violation of standard of care that has resulted in injury to a
1452	patient.
1453	Section 24. Subsections (1) and (2) of section 456.078,
1454	Florida Statutes, are amended to read:
1455	456.078 Mediation.--
1456	(1) Notwithstanding the provisions of s. 456.073, the
1457	board, or the department when there is no board, shall adopt
1458	rules to designate which violations of the applicable
1459	professional practice act are appropriate for mediation. The
1460	board, or the department when there is no board, shall may
1461	designate as mediation offenses those complaints where harm
1462	caused by the licensee is economic in nature, except any act or
1463	omission involving intentional misconduct, orcan be remedied by
1464	the licensee, is not a standard of care violation involving any
1465	type of injury to a patient, or does not result in an adverse
1466	incident. For the purposes of this section, an "adverse
1467	incident" means an event that results in:
1468	(a) The death of a patient;
1469	(b) Brain or spinal damage to a patient;
1470	(c) The performance of a surgical procedure on the wrong
1471	patient;
1472	(d) The performance of a wrong-site surgical procedure;
1473	(e) The performance of a surgical procedure that is
1474	medically unnecessary or otherwise unrelated to the patient's
1475	diagnosis or medical condition;
1476	(f) The surgical repair of damage to a patient resulting
1477	from a planned surgical procedure, which damage is not a
1478	recognized specific risk as disclosed to the patient and
1479	documented through the informed-consent process;
1480	(g) The performance of a procedure to remove unplanned
1481	foreign objects remaining from a surgical procedure; or
1482	(h) The performance of any other surgical procedure that
1483	breached the standard of care.
1484	(2) After the department determines a complaint is legally
1485	sufficient and the alleged violations are defined as mediation
1486	offenses, the department or any agent of the department may
1487	conduct informal mediation to resolve the complaint. If the
1488	complainant and the subject of the complaint agree to a
1489	resolution of a complaint within 14 days after contact by the
1490	mediator, the mediator shall notify the department of the terms
1491	of the resolution. The department or board shall take no further
1492	action unless the complainant and the subject each fail to
1493	record with the department an acknowledgment of satisfaction of
1494	the terms of mediation within 60 days of the mediator's
1495	notification to the department. A successful mediation shall not
1496	constitute discipline.In the event the complainant and subject
1497	fail to reach settlement terms or to record the required
1498	acknowledgment, the department shall process the complaint
1499	according to the provisions of s. 456.073.
1500	Section 25. Present subsection (8) of section 458.320,
1501	Florida Statutes, is renumbered as subsection (9), and a new
1502	subsection (8) is added to said section, to read:
1503	458.320 Financial responsibility.--
1504	(8) Notwithstanding any other provision of this section,
1505	the department shall suspend the license of any physician
1506	against whom has been entered a final judgment, arbitration
1507	award, or other order or who has entered into a settlement
1508	agreement to pay damages arising out of a claim for medical
1509	malpractice, if all appellate remedies have been exhausted and
1510	payment up to the amounts required by this section has not been
1511	made within 30 days after the entering of such judgment, award,
1512	or order or agreement, until proof of payment is received by the
1513	department or a payment schedule has been agreed upon by the
1514	physician and the claimant and presented to the department. This
1515	subsection does not apply to a physician who has met the
1516	financial responsibility requirements in paragraphs (1)(b) and
1517	(2)(b).
1518	Section 26. Paragraph (t) of subsection (1) and
1519	subsections (3) and (6) of section 458.331, Florida Statutes,
1520	are amended to read:
1521	458.331 Grounds for disciplinary action; action by the
1522	board and department.--
1523	(1) The following acts constitute grounds for denial of a
1524	license or disciplinary action, as specified in s. 456.072(2):
1525	(t) Gross or repeated malpractice or the failure to
1526	practice medicine with that level of care, skill, and treatment
1527	which is recognized by a reasonably prudent similar physician as
1528	being acceptable under similar conditions and circumstances. The
1529	board shall give great weight to the provisions of s. 766.102
1530	when enforcing this paragraph. As used in this paragraph,
1531	"repeated malpractice" includes, but is not limited to, three or
1532	more claims for medical malpractice within the previous 5-year
1533	period resulting in indemnities being paid in excess of $50,000
1534	$25,000each to the claimant in a judgment or settlement and
1535	which incidents involved negligent conduct by the physician. As
1536	used in this paragraph, "gross malpractice" or "the failure to
1537	practice medicine with that level of care, skill, and treatment
1538	which is recognized by a reasonably prudent similar physician as
1539	being acceptable under similar conditions and circumstances,"
1540	shall not be construed so as to require more than one instance,
1541	event, or act. Nothing in this paragraph shall be construed to
1542	require that a physician be incompetent to practice medicine in
1543	order to be disciplined pursuant to this paragraph. A
1544	recommended order by an administrative law judge or a final
1545	order of the board finding a violation under this paragraph
1546	shall specify whether the licensee was found to have committed
1547	"gross malpractice," "repeated malpractice," or "failure to
1548	practice medicine with that level of care, skill, and treatment
1549	which is recognized as being acceptable under similar conditions
1550	and circumstances," or any combination thereof, and any
1551	publication by the board must so specify.
1552	(3) In any administrative action against a physician which
1553	does not involve revocation or suspension of license, the
1554	division shall have the burden, by the greater weight of the
1555	evidence, to establish the existence of grounds for disciplinary
1556	action. The division shall establish grounds for revocation or
1557	suspension of license by clear and convincing evidence.
1558	(6) Upon the department's receipt from an insurer or self-
1559	insurer of a report of a closed claim against a physician
1560	pursuant to s. 627.912 or from a health care practitioner of a
1561	report pursuant to s. 456.049, or upon the receipt from a
1562	claimant of a presuit notice against a physician pursuant to s.
1563	766.106, the department shall review each report and determine
1564	whether it potentially involved conduct by a licensee that is
1565	subject to disciplinary action, in which case the provisions of
1566	s. 456.073 shall apply. However, if it is reported that a
1567	physician has had three or more claims with indemnities
1568	exceeding $50,000 $25,000each within the previous 5-year
1569	period, the department shall investigate the occurrences upon
1570	which the claims were based and determine if action by the
1571	department against the physician is warranted.
1572	Section 27. Section 458.3311, Florida Statutes, is created
1573	to read:
1574	458.3311 Emergency procedures for disciplinary
1575	action.--Notwithstanding any other provision of law to the
1576	contrary:
1577	(1) Each physician must report to the Department of Health
1578	any judgment for medical negligence levied against the
1579	physician. The physician must make the report no later than 15
1580	days after the exhaustion of the last opportunity for any party
1581	to appeal the judgment or request a rehearing.
1582	(2) No later than 30 days after a physician has, within a
1583	60-month period, made three reports as required by subsection
1584	(1), the Department of Health shall initiate an emergency
1585	investigation and the Board of Medicine shall conduct an
1586	emergency probable cause hearing to determine whether the
1587	physician should be disciplined for a violation of s.
1588	458.331(1)(t) or any other relevant provision of law.
1589	Section 28. Present subsection (9) of section 459.0085,
1590	Florida Statutes, is renumbered as subsection (10), and a new
1591	subsection (9) is added to said section, to read:
1592	459.0085 Financial responsibility.--
1593	(9) Notwithstanding any other provision of this section,
1594	the department shall suspend the license of any osteopathic
1595	physician against whom has been entered a final judgment,
1596	arbitration award, or other order or who has entered into a
1597	settlement agreement to pay damages arising out of a claim for
1598	medical malpractice, if all appellate remedies have been
1599	exhausted and payment up to the amounts required by this section
1600	has not been made within 30 days after the entering of such
1601	judgment, award, or order or agreement, until proof of payment
1602	is received by the department or a payment schedule has been
1603	agreed upon by the osteopathic physician and the claimant and
1604	presented to the department. This subsection does not apply to
1605	an osteopathic physician who has met the financial
1606	responsibility requirements in paragraphs (1)(b) and (2)(b).
1607	Section 29. Paragraph (x) of subsection (1) and
1608	subsections (3) and (6) of section 459.015, Florida Statutes,
1609	are amended to read:
1610	459.015 Grounds for disciplinary action; action by the
1611	board and department.--
1612	(1) The following acts constitute grounds for denial of a
1613	license or disciplinary action, as specified in s. 456.072(2):
1614	(x) Gross or repeated malpractice or the failure to
1615	practice osteopathic medicine with that level of care, skill,
1616	and treatment which is recognized by a reasonably prudent
1617	similar osteopathic physician as being acceptable under similar
1618	conditions and circumstances. The board shall give great weight
1619	to the provisions of s. 766.102 when enforcing this paragraph.
1620	As used in this paragraph, "repeated malpractice" includes, but
1621	is not limited to, three or more claims for medical malpractice
1622	within the previous 5-year period resulting in indemnities being
1623	paid in excess of $50,000 $25,000each to the claimant in a
1624	judgment or settlement and which incidents involved negligent
1625	conduct by the osteopathic physician. As used in this paragraph,
1626	"gross malpractice" or "the failure to practice osteopathic
1627	medicine with that level of care, skill, and treatment which is
1628	recognized by a reasonably prudent similar osteopathic physician
1629	as being acceptable under similar conditions and circumstances"
1630	shall not be construed so as to require more than one instance,
1631	event, or act. Nothing in this paragraph shall be construed to
1632	require that an osteopathic physician be incompetent to practice
1633	osteopathic medicine in order to be disciplined pursuant to this
1634	paragraph. A recommended order by an administrative law judge or
1635	a final order of the board finding a violation under this
1636	paragraph shall specify whether the licensee was found to have
1637	committed "gross malpractice," "repeated malpractice," or
1638	"failure to practice osteopathic medicine with that level of
1639	care, skill, and treatment which is recognized as being
1640	acceptable under similar conditions and circumstances," or any
1641	combination thereof, and any publication by the board shall so
1642	specify.
1643	(3) In any administrative action against a physician which
1644	does not involve revocation or suspension of license, the
1645	division shall have the burden, by the greater weight of the
1646	evidence, to establish the existence of grounds for disciplinary
1647	action. The division shall establish grounds for revocation or
1648	suspension of license by clear and convincing evidence.
1649	(6) Upon the department's receipt from an insurer or self-
1650	insurer of a report of a closed claim against an osteopathic
1651	physician pursuant to s. 627.912 or from a health care
1652	practitioner of a report pursuant to s. 456.049, or upon the
1653	receipt from a claimant of a presuit notice against an
1654	osteopathic physician pursuant to s. 766.106, the department
1655	shall review each report and determine whether it potentially
1656	involved conduct by a licensee that is subject to disciplinary
1657	action, in which case the provisions of s. 456.073 shall apply.
1658	However, if it is reported that an osteopathic physician has had
1659	three or more claims with indemnities exceeding $50,000 $25,000
1660	each within the previous 5-year period, the department shall
1661	investigate the occurrences upon which the claims were based and
1662	determine if action by the department against the osteopathic
1663	physician is warranted.
1664	Section 30. Section 459.0151, Florida Statutes, is created
1665	to read:
1666	459.0151 Emergency procedures for disciplinary
1667	action.--Notwithstanding any other provision of law to the
1668	contrary:
1669	(1) Each osteopathic physician must report to the
1670	Department of Health any judgment for medical negligence levied
1671	against the physician. The osteopathic physician must make the
1672	report no later than 15 days after the exhaustion of the last
1673	opportunity for any party to appeal the judgment or request a
1674	rehearing.
1675	(2) No later than 30 days after an osteopathic physician
1676	has, within a 60-month period, made three reports as required by
1677	subsection (1), the Department of Health shall initiate an
1678	emergency investigation and the Board of Osteopathic Medicine
1679	shall conduct an emergency probable cause hearing to determine
1680	whether the physician should be disciplined for a violation of
1681	s. 459.015(1)(x) or any other relevant provision of law.
1682	Section 31. Subsection (6) of section 460.413, Florida
1683	Statutes, is amended to read:
1684	460.413 Grounds for disciplinary action; action by board
1685	or department.--
1686	(6) In any administrative action against a chiropractic
1687	physician which does not involve revocation or suspension of
1688	license, the department shall have the burden, by the greater
1689	weight of the evidence, to establish the existence of grounds
1690	for disciplinary action. The department shall establish grounds
1691	for revocation or suspension of license by clear and convincing
1692	evidence.
1693	Section 32. Paragraph (s) of subsection (1) and paragraph
1694	(a) of subsection (5) of section 461.013, Florida Statutes, are
1695	amended to read:
1696	461.013 Grounds for disciplinary action; action by the
1697	board; investigations by department.--
1698	(1) The following acts constitute grounds for denial of a
1699	license or disciplinary action, as specified in s. 456.072(2):
1700	(s) Gross or repeated malpractice or the failure to
1701	practice podiatric medicine at a level of care, skill, and
1702	treatment which is recognized by a reasonably prudent podiatric
1703	physician as being acceptable under similar conditions and
1704	circumstances. The board shall give great weight to the
1705	standards for malpractice in s. 766.102 in interpreting this
1706	section. As used in this paragraph, "repeated malpractice"
1707	includes, but is not limited to, three or more claims for
1708	medical malpractice within the previous 5-year period resulting
1709	in indemnities being paid in excess of $50,000 $10,000each to
1710	the claimant in a judgment or settlement and which incidents
1711	involved negligent conduct by the podiatric physicians. As used
1712	in this paragraph, "gross malpractice" or "the failure to
1713	practice podiatric medicine with the level of care, skill, and
1714	treatment which is recognized by a reasonably prudent similar
1715	podiatric physician as being acceptable under similar conditions
1716	and circumstances" shall not be construed so as to require more
1717	than one instance, event, or act.
1718	(5)(a) Upon the department's receipt from an insurer or
1719	self-insurer of a report of a closed claim against a podiatric
1720	physician pursuant to s. 627.912, or upon the receipt from a
1721	claimant of a presuit notice against a podiatric physician
1722	pursuant to s. 766.106, the department shall review each report
1723	and determine whether it potentially involved conduct by a
1724	licensee that is subject to disciplinary action, in which case
1725	the provisions of s. 456.073 shall apply. However, if it is
1726	reported that a podiatric physician has had three or more claims
1727	with indemnities exceeding $50,000 $25,000each within the
1728	previous 5-year period, the department shall investigate the
1729	occurrences upon which the claims were based and determine if
1730	action by the department against the podiatric physician is
1731	warranted.
1732	Section 33. Paragraph (x) of subsection (1) of section
1733	466.028, Florida Statutes, is amended to read:
1734	466.028 Grounds for disciplinary action; action by the
1735	board.--
1736	(1) The following acts constitute grounds for denial of a
1737	license or disciplinary action, as specified in s. 456.072(2):
1738	(x) Being guilty of incompetence or negligence by failing
1739	to meet the minimum standards of performance in diagnosis and
1740	treatment when measured against generally prevailing peer
1741	performance, including, but not limited to, the undertaking of
1742	diagnosis and treatment for which the dentist is not qualified
1743	by training or experience or being guilty of dental malpractice.
1744	For purposes of this paragraph, it shall be legally presumed
1745	that a dentist is not guilty of incompetence or negligence by
1746	declining to treat an individual if, in the dentist's
1747	professional judgment, the dentist or a member of her or his
1748	clinical staff is not qualified by training and experience, or
1749	the dentist's treatment facility is not clinically satisfactory
1750	or properly equipped to treat the unique characteristics and
1751	health status of the dental patient, provided the dentist refers
1752	the patient to a qualified dentist or facility for appropriate
1753	treatment. As used in this paragraph, "dental malpractice"
1754	includes, but is not limited to, three or more claims within the
1755	previous 5-year period which resulted in indemnity being paid,
1756	or any single indemnity paid in excess of $25,000 $5,000in a
1757	judgment or settlement, as a result of negligent conduct on the
1758	part of the dentist.
1759	Section 34. Subsections (2) through (7) of section
1760	624.155, Florida Statutes, are renumbered as subsections (3)
1761	through (8), respectively, and a new subsection (2) is added to
1762	said section to read:
1763	624.155 Civil remedy.--
1764	(2) In all matters under this section relating to
1765	professional liability insurance coverage for medical
1766	negligence, and in determining whether the insurer acted fairly
1767	and honestly towards its insured with due regard for her or his
1768	interest:
1769	(a)1. An insurer shall not be held in bad faith for
1770	failure to pay its policy limits if it offers to pay policy
1771	limits by the earlier of either:
1772	a. The 365th day after service of the complaint in the
1773	medical negligence action upon the insured. The time period
1774	specified in this sub-subparagraph shall be extended by an
1775	additional 60 days upon motion of the insurer if the court finds
1776	that, at any time during such period and after the 305th day
1777	after service of the complaint, the claimant provided new
1778	information relating to the identity or testimony of any
1779	witnesses or the identity of any additional claimants or
1780	defendants. Such an extension may be ordered each time the
1781	claimant provides such new information after the 305th day after
1782	service of the complaint and before expiration of the time
1783	period provided in this sub-subparagraph, including any
1784	extensions thereof; or
1785	b. The 60th day after the conclusion of all of the
1786	following:
1787	(I) Deposition of all claimants named in the complaint or
1788	amended complaint.
1789	(II) Deposition of all defendants named in the complaint
1790	or amended complaint, including, in the case of a corporate
1791	defendant, deposition of a designated representative.
1792	(III) Deposition of all of the claimant’s expert
1793	witnesses.
1794	(IV) Deposition of treating physicians identified by the
1795	claimant as witnesses for trial.
1796	(V) Disclosure of witnesses and production of documents.
1797	(VI) Mediation.
1798	2. Either party may request that the court enter an order
1799	finding that the other party has unnecessarily or
1800	inappropriately delayed any of the events specified in sub-
1801	subparagraph 1.b. If the court finds that the claimant was
1802	responsible for such unnecessary or inappropriate delays, sub-
1803	subparagraph 1.a. shall not apply to the insurer’s offer to pay.
1804	If the court finds that the defendant or insurer was responsible
1805	for such unnecessary or inappropriate delays, sub-subparagraph
1806	1.b. shall not apply to the insurer’s offer to pay.
1807	3. The fact that the insurer did not offer to pay policy
1808	limits during the time periods specified in this paragraph is
1809	not presumptive evidence that the insurer acted in bad faith.
1810	(b) When paragraph (a) does not apply, the court, in
1811	determining whether an insurer has acted in bad faith, shall
1812	consider:
1813	1. The insurer’s willingness to negotiate with the
1814	claimant in anticipation of settlement.
1815	2. The insurer’s consideration of the advice of the
1816	insured’s defense counsel.
1817	3. The propriety of the insurer’s methods of investigating
1818	and evaluating the claim.
1819	4. Whether the insurer informed the insured of the offer
1820	to settle within the limits of coverage, the right to retain
1821	personal counsel, and the risk of litigation.
1822	5. Whether the insured denied liability or requested that
1823	the case be defended after the insurer fully advised the insured
1824	as to the facts and risks.
1825	6. Whether the claimant imposed any condition, other than
1826	the tender of the policy limits, on the settlement of the claim.
1827	7. Whether the claimant provided relevant information to
1828	the insurer on a timely basis.
1829	8. Whether and when other defendants in the case settled
1830	or were dismissed from the case.
1831	9. Whether there were multiple claimants seeking, in the
1832	aggregate, compensation in excess of policy limits from the
1833	defendant or the defendant’s insurer.
1834	10. Whether the insured misrepresented material facts to
1835	the insurer or made material omissions of fact to the insurer.
1836
1837	Upon motion of either party for good cause shown, the court may
1838	allow consideration of such additional factors as it determines
1839	to be relevant.
1840	(c) In an action under this section brought by any person
1841	other than the insured or a third-party claimant to whom the
1842	insured has assigned his or her cause of action under paragraph
1843	(d), damages may not exceed the lesser of:
1844	1. An amount equal to the insured’s policy limits; or
1845	2. An amount equal to the excess judgment in the action
1846	for medical negligence.
1847	(d) Nothing in this subsection shall be construed to
1848	prohibit an insured from assigning a cause of action to a third-
1849	party claimant for the insurer’s failure to act fairly and
1850	honestly towards its insured with due regard for the insured’s
1851	interest.
1852	(e) The award of damages under this subsection to all
1853	first-party claimants and third-party claimants combined shall
1854	not be in an aggregate amount exceeding the excess judgment.
1855	Section 35. Subsection (2) of section 624.462, Florida
1856	Statutes, is amended to read:
1857	624.462 Commercial self-insurance funds.--
1858	(2) As used in ss. 624.460-624.488, "commercial self-
1859	insurance fund" or "fund" means a group of members, operating
1860	individually and collectively through a trust or corporation,
1861	that must be:
1862	(a) Established by:
1863	1. A not-for-profit trade association, industry
1864	association, or professional association of employers or
1865	professionals which has a constitution or bylaws, which is
1866	incorporated under the laws of this state, and which has been
1867	organized for purposes other than that of obtaining or providing
1868	insurance and operated in good faith for a continuous period of
1869	1 year;
1870	2. A self-insurance trust fund organized pursuant to s.
1871	627.357 and maintained in good faith for a continuous period of
1872	1 year for purposes other than that of obtaining or providing
1873	insurance pursuant to this section. Each member of a commercial
1874	self-insurance trust fund established pursuant to this
1875	subsection must maintain membership in the self-insurance trust
1876	fund organized pursuant to s. 627.357; or
1877	3. A group of 10 or more health care providers, as defined
1878	in s. 627.351(4)(h); or
1879	4.3.A not-for-profit group comprised of no less than 10
1880	condominium associations as defined in s. 718.103(2), which is
1881	incorporated under the laws of this state, which restricts its
1882	membership to condominium associations only, and which has been
1883	organized and maintained in good faith for a continuous period
1884	of 1 year for purposes other than that of obtaining or providing
1885	insurance.
1886	(b)1. In the case of funds established pursuant to
1887	subparagraph (a)2. or subparagraph (a)4.3., operated pursuant to
1888	a trust agreement by a board of trustees which shall have
1889	complete fiscal control over the fund and which shall be
1890	responsible for all operations of the fund. The majority of the
1891	trustees shall be owners, partners, officers, directors, or
1892	employees of one or more members of the fund. The trustees
1893	shall have the authority to approve applications of members for
1894	participation in the fund and to contract with an authorized
1895	administrator or servicing company to administer the day-to-day
1896	affairs of the fund.
1897	2. In the case of funds established pursuant to
1898	subparagraph (a)1. or subparagraph (a)3., operated pursuant to a
1899	trust agreement by a board of trustees or as a corporation by a
1900	board of directors which board shall:
1901	a. Be responsible to members of the fund or beneficiaries
1902	of the trust or policyholders of the corporation;
1903	b. Appoint independent certified public accountants, legal
1904	counsel, actuaries, and investment advisers as needed;
1905	c. Approve payment of dividends to members;
1906	d. Approve changes in corporate structure; and
1907	e. Have the authority to contract with an administrator
1908	authorized under s. 626.88 to administer the day-to-day affairs
1909	of the fund including, but not limited to, marketing,
1910	underwriting, billing, collection, claims administration, safety
1911	and loss prevention, reinsurance, policy issuance, accounting,
1912	regulatory reporting, and general administration. The fees or
1913	compensation for services under such contract shall be
1914	comparable to the costs for similar services incurred by
1915	insurers writing the same lines of insurance, or where available
1916	such expenses as filed by boards, bureaus, and associations
1917	designated by insurers to file such data. A majority of the
1918	trustees or directors shall be owners, partners, officers,
1919	directors, or employees of one or more members of the fund.
1920	Section 36. Subsections (7), (8), and (9) are added to
1921	section 627.062, Florida Statutes, to read:
1922	627.062 Rate standards.--
1923	(7)(a) The provisions of this subsection apply only with
1924	respect to rates for medical malpractice insurance and shall
1925	control to the extent of any conflict with other provisions of
1926	this section.
1927	(b) Any portion of a judgment entered or settlement paid
1928	as a result of a statutory or common-law bad faith action and
1929	any portion of a judgment entered which awards punitive damages
1930	against an insurer may not be included in the insurer's rate
1931	base and shall not be used to justify a rate or rate change. Any
1932	common-law bad faith action identified as such and any portion
1933	of a settlement entered as a result of a statutory or portion of
1934	a settlement wherein an insurer agrees to pay specific punitive
1935	damages may not be used to justify a rate or rate change. The
1936	portion of the taxable costs and attorney's fees which is
1937	identified as being related to the bad faith and punitive
1938	damages in these judgments and settlements may not be included
1939	in the insurer's rate base and may not be utilized to justify a
1940	rate or rate change.
1941	(c) Upon reviewing a rate filing and determining whether
1942	the rate is excessive, inadequate, or unfairly discriminatory,
1943	the Office of Insurance Regulation shall consider, in accordance
1944	with generally accepted and reasonable actuarial techniques,
1945	past and present prospective loss experience, either using loss
1946	experience solely for this state or giving greater credibility
1947	to this state's loss data.
1948	(d) Rates shall be deemed excessive if, among other
1949	standards established by this section, the rate structure
1950	provides for replenishment of reserves or surpluses from
1951	premiums when the replenishment is attributable to investment
1952	losses.
1953	(e) The insurer must apply a discount or surcharge based
1954	on the health care provider's loss experience or shall establish
1955	an alternative method giving due consideration to the provider's
1956	loss experience. The insurer must include in the filing a copy
1957	of the surcharge or discount schedule or a description of the
1958	alternative method used and must provide a copy of such schedule
1959	or description, as approved by the office, to policyholders at
1960	the time of renewal and to prospective policyholders at the time
1961	of application for coverage.
1962	(8) Each insurer writing professional liability insurance
1963	coverage for medical negligence must make a rate filing under
1964	this section with the Office of Insurance Regulation at least
1965	once each calendar year.
1966	(9)(a) Medical malpractice insurance companies shall
1967	submit a rate filing effective January 1, 2004, to the Office of
1968	Insurance Regulation no earlier than 30 days, but no later than
1969	120 days, after the date upon which this act becomes law which
1970	reduces rates by a presumed factor that reflects the impact the
1971	changes contained in all medical malpractice legislation enacted
1972	by the Florida Legislature in 2003 will have on such rates, as
1973	determined by the Office of Insurance Regulation. In determining
1974	the presumed factor, the office shall use generally accepted
1975	actuarial techniques and standards provided in this section in
1976	determining the expected impact on losses, expenses, and
1977	investment income of the insurer. Inclusion in the presumed
1978	factor of the expected impact of such legislation shall be held
1979	in abeyance during the review of such measure's validity in any
1980	proceeding by a court of competent jurisdiction.
1981	(b) Any insurer or rating organization that contends that
1982	the rate provided for in paragraph (a) is excessive, inadequate,
1983	or unfairly discriminatory shall separately state in its filing
1984	the rate it contends is appropriate and shall state with
1985	specificity the factors or data that it contends should be
1986	considered in order to produce such appropriate rate. The
1987	insurer or rating organization shall be permitted to use all of
1988	the generally accepted actuarial techniques provided in this
1989	section in making any filing pursuant to this subsection. The
1990	Office of Insurance Regulation shall review each such exception
1991	and approve or disapprove it prior to use. It shall be the
1992	insurer's burden to actuarially justify any deviations from the
1993	rates filed under paragraph (a). Each insurer or rating
1994	organization shall include in the filing the expected impact of
1995	all malpractice legislation enacted by the Florida Legislature
1996	in 2003 on losses, expenses, and rates. If any provision of this
1997	act is held invalid by a court of competent jurisdiction, the
1998	department shall permit an adjustment of all rates filed under
1999	this section to reflect the impact of such holding on such rates
2000	so as to ensure that the rates are not excessive, inadequate, or
2001	unfairly discriminatory.
2002	Section 37. Subsection (10) of section 627.357, Florida
2003	Statutes, is amended to read:
2004	627.357 Medical malpractice self-insurance.--
2005	(10)(a) An application to form a self-insurance fund under
2006	this section must be filed with the Office of Insurance
2007	Regulation.
2008	(b) The Office of Insurance Regulation must ensure that
2009	self-insurance funds remain solvent and provide insurance
2010	coverage purchased by participants. The Financial Services
2011	Commission may adopt rules pursuant to ss. 120.536(1) and 120.54
2012	to implement this subsection A self-insurance fund may not be
2013	formed under this section after October 1, 1992.
2014	Section 38. Section 627.3575, Florida Statutes, is created
2015	to read:
2016	627.3575 Health Care Professional Liability Insurance
2017	Facility.--
2018	(1) FACILITY CREATED; PURPOSE; STATUS.--There is created
2019	the Health Care Professional Liability Insurance Facility. The
2020	facility is intended to meet ongoing availability and
2021	affordability problems relating to liability insurance for
2022	health care professionals by providing an affordable, self-
2023	supporting source of professional liability insurance coverage
2024	with a high deductible for those professionals who are willing
2025	and able to self-insure for smaller losses. The facility shall
2026	operate on a not-for-profit basis. The facility is self-funding
2027	and is intended to serve a public purpose but is not a state
2028	agency or program, and no activity of the facility shall create
2029	any state liability.
2030	(2) GOVERNANCE; POWERS.--
2031	(a) The facility shall operate under a seven-member board
2032	of governors consisting of the Secretary of Health, three
2033	members appointed by the Governor, and three members appointed
2034	by the Chief Financial Officer. The board shall be chaired by
2035	the Secretary of Health. The secretary shall serve by virtue of
2036	his or her office, and the other members of the board shall
2037	serve terms concurrent with the term of office of the official
2038	who appointed them. Any vacancy on the board shall be filled in
2039	the same manner as the original appointment. Members serve at
2040	the pleasure of the official who appointed them. Members are not
2041	eligible for compensation for their service on the board, but
2042	the facility may reimburse them for per diem and travel expenses
2043	at the same levels as are provided in s. 112.061 for state
2044	employees.
2045	(b) The facility shall have such powers as are necessary
2046	to operate as an insurer, including the power to:
2047	1. Sue and be sued.
2048	2. Hire such employees and retain such consultants,
2049	attorneys, actuaries, and other professionals as it deems
2050	appropriate.
2051	3. Contract with such service providers as it deems
2052	appropriate.
2053	4. Maintain offices appropriate to the conduct of its
2054	business.
2055	5. Take such other actions as are necessary or appropriate
2056	in fulfillment of its responsibilities under this section.
2057	(3) COVERAGE PROVIDED.--The facility shall provide
2058	liability insurance coverage for health care professionals. The
2059	facility shall allow policyholders to select only from policies
2060	with deductibles of $25,000 per claim, $50,000 per claim, and
2061	$100,000 per claim and with coverage limits of $250,000 per
2062	claim and $750,000 annual aggregate and $1 million per claim and
2063	$3 million annual aggregate. To the greatest extent possible,
2064	the terms and conditions of the policies shall be consistent
2065	with terms and conditions commonly used by professional
2066	liability insurers.
2067	(4) ELIGIBILITY; TERMINATION.--
2068	(a) Any health care professional is eligible for coverage
2069	provided by the facility if the professional at all times
2070	maintains either:
2071	1. An escrow account consisting of cash or assets eligible
2072	for deposit under s. 625.52 in an amount equal to the deductible
2073	amount of the policy; or
2074	2. An unexpired, irrevocable letter of credit, established
2075	pursuant to chapter 675, in an amount not less than the
2076	deductible amount of the policy. The letter of credit shall be
2077	payable to the health care professional as beneficiary upon
2078	presentment of a final judgment indicating liability and
2079	awarding damages to be paid by the physician or upon presentment
2080	of a settlement agreement signed by all parties to such
2081	agreement when such final judgment or settlement is a result of
2082	a claim arising out of the rendering of, or the failure to
2083	render, medical care and services. Such letter of credit shall
2084	be nonassignable and nontransferable. Such letter of credit
2085	shall be issued by any bank or savings association organized and
2086	existing under the laws of this state or any bank or savings
2087	association organized under the laws of the United States that
2088	has its principal place of business in this state or has a
2089	branch office which is authorized under the laws of this state
2090	or of the United States to receive deposits in this state.
2091	(b) The eligibility of a health care professional for
2092	coverage terminates upon:
2093	1. The failure of the professional to comply with
2094	paragraph (a);
2095	2. The failure of the professional to timely pay premiums
2096	or assessments; or
2097	3. The commission of any act of fraud in connection with
2098	the policy, as determined by the board of governors.
2099	(c) The board of governors, in its discretion, may
2100	reinstate the eligibility of a health care professional whose
2101	eligibility has terminated pursuant to paragraph (b) upon
2102	determining that the professional has come back into compliance
2103	with paragraph (a) or has paid the overdue premiums or
2104	assessments. Eligibility may be reinstated in the case of fraud
2105	only if the board determines that its initial determination of
2106	fraud was in error.
2107	(5) PREMIUMS; ASSESSMENTS.--
2108	(a) The facility shall charge the actuarially indicated
2109	rate for the coverage provided plus a component for debt service
2110	and shall retain the services of consulting actuaries to prepare
2111	its rate filings. The facility shall not provide dividends to
2112	policyholders, and, to the extent that premiums are more than
2113	the amount required to cover claims and expenses, such excess
2114	shall be retained by the facility for payment of future claims.
2115	In the event of dissolution of the facility, any amounts not
2116	required as a reserve for outstanding claims shall be
2117	transferred to the policyholders of record as of the last day of
2118	operation.
2119	(b) In the event that the premiums for a particular year,
2120	together with any investment income or reinsurance recoveries
2121	attributable to that year, are insufficient to pay losses
2122	arising out of claims accruing in that year, the facility shall
2123	levy assessments against all of the persons who were its
2124	policyholders in that year in a uniform percentage of premium.
2125	Each policyholder's assessment shall be such percentage of the
2126	premium that policyholder paid for coverage for the year to
2127	which the insufficiency is attributable.
2128	(c) The policyholder is personally liable for any
2129	assessment. The failure to timely pay an assessment is grounds
2130	for suspension or revocation of the policyholder's professional
2131	license by the appropriate licensing entity.
2132	(6) REGULATION; APPLICABILITY OF OTHER STATUTES.--
2133	(a) The facility shall operate pursuant to a plan of
2134	operation approved by order of the Office of Insurance
2135	Regulation of the Financial Services Commission. The board of
2136	governors may at any time adopt amendments to the plan of
2137	operation and submit the amendments to the Office of Insurance
2138	Regulation for approval.
2139	(b) The facility is subject to regulation by the Office of
2140	Insurance Regulation of the Financial Services Commission in the
2141	same manner as other insurers, except that, in recognition of
2142	the fact that its ability to levy assessments against its own
2143	policyholders is a substitute for the protections ordinarily
2144	afforded by such statutory requirements, the facility is exempt
2145	from statutory requirements relating to surplus as to
2146	policyholders.
2147	(c) The facility is not subject to part II of chapter 631,
2148	relating to the Florida Insurance Guaranty Association.
2149	(d) The Financial Service Commission may adopt rules to
2150	provide for the regulation of the facility consistent with the
2151	provisions of this section.
2152	(7) STARTUP PROVISIONS.--
2153	(a) It is the intent of the Legislature that the facility
2154	begin providing coverage no later than January 1, 2004.
2155	(b) The Governor and the Chief Financial Officer shall
2156	make their appointments to the board of governors of the
2157	facility no later than August 1, 2003. Until the board is
2158	appointed, the Secretary of Health may perform ministerial acts
2159	on behalf of the facility as chair of the board of governors.
2160	(c) Until the facility is able to hire permanent staff and
2161	enter into contracts for professional services, the office of
2162	the Secretary of Health shall provide support services to the
2163	facility.
2164	(d) In order to provide startup funds for the facility,
2165	the board of governors may incur debt or enter into agreements
2166	for lines of credit, provided that the sole source of funds for
2167	repayment of any debt is future premium revenues of the
2168	facility. The amount of such debt or lines of credit may not
2169	exceed $10 million.
2170	Section 39. Subsection (1) of section 627.4147, Florida
2171	Statutes, is amended to read:
2172	627.4147 Medical malpractice insurance contracts.--
2173	(1) In addition to any other requirements imposed by law,
2174	each self-insurance policy as authorized under s. 627.357 or
2175	insurance policy providing coverage for claims arising out of
2176	the rendering of, or the failure to render, medical care or
2177	services, including those of the Florida Medical Malpractice
2178	Joint Underwriting Association, shall include:
2179	(a) A clause requiring the insured to cooperate fully in
2180	the review process prescribed under s. 766.106 if a notice of
2181	intent to file a claim for medical malpractice is made against
2182	the insured.
2183	(b)1. Except as provided in subparagraph 2., a clause
2184	authorizing the insurer or self-insurer to determine, to make,
2185	and to conclude, without the permission of the insured, any
2186	offer of admission of liability and for arbitration pursuant to
2187	s. 766.106, settlement offer, or offer of judgment, if the offer
2188	is within the policy limits. It is against public policy for any
2189	insurance or self-insurance policy to contain a clause giving
2190	the insured the exclusive right to veto any offer for admission
2191	of liability and for arbitration made pursuant to s. 766.106,
2192	settlement offer, or offer of judgment, when such offer is
2193	within the policy limits. However, any offer of admission of
2194	liability, settlement offer, or offer of judgment made by an
2195	insurer or self-insurer shall be made in good faith and in the
2196	best interests of the insured.
2197	2.a. With respect to dentists licensed under chapter 466,
2198	a clause clearly stating whether or not the insured has the
2199	exclusive right to veto any offer of admission of liability and
2200	for arbitration pursuant to s. 766.106, settlement offer, or
2201	offer of judgment if the offer is within policy limits. An
2202	insurer or self-insurer shall not make or conclude, without the
2203	permission of the insured, any offer of admission of liability
2204	and for arbitration pursuant to s. 766.106, settlement offer, or
2205	offer of judgment, if such offer is outside the policy limits.
2206	However, any offer for admission of liability and for
2207	arbitration made under s. 766.106, settlement offer, or offer of
2208	judgment made by an insurer or self-insurer shall be made in
2209	good faith and in the best interest of the insured.
2210	b. If the policy contains a clause stating the insured
2211	does not have the exclusive right to veto any offer or admission
2212	of liability and for arbitration made pursuant to s. 766.106,
2213	settlement offer or offer of judgment, the insurer or self-
2214	insurer shall provide to the insured or the insured's legal
2215	representative by certified mail, return receipt requested, a
2216	copy of the final offer of admission of liability and for
2217	arbitration made pursuant to s. 766.106, settlement offer or
2218	offer of judgment and at the same time such offer is provided to
2219	the claimant. A copy of any final agreement reached between the
2220	insurer and claimant shall also be provided to the insurer or
2221	his or her legal representative by certified mail, return
2222	receipt requested not more than 10 days after affecting such
2223	agreement.
2224	(b)(c)A clause requiring the insurer or self-insurer to
2225	notify the insured no less than 90 60days prior to the
2226	effective date of cancellation of the policy or contract and, in
2227	the event of a determination by the insurer or self-insurer not
2228	to renew the policy or contract, to notify the insured no less
2229	than 90 60days prior to the end of the policy or contract
2230	period. If cancellation or nonrenewal is due to nonpayment or
2231	loss of license, 10 days' notice is required.
2232	(d) A clause requiring the insurer or self-insurer to
2233	notify the insured no less than 60 days prior to the effective
2234	date of a rate increase. The provisions of s. 627.4133 shall
2235	apply to such notice and to the failure of the insurer to
2236	provide such notice to the extent not in conflict with this
2237	section.
2238	Section 40. Subsections (1) and (4) and paragraph (n) of
2239	subsection (2) of section 627.912, Florida Statutes, are amended
2240	to read:
2241	627.912 Professional liability claims and actions; reports
2242	by insurers.--
2243	(1)(a)Each self-insurer authorized under s. 627.357 and
2244	each insurer or joint underwriting association providing
2245	professional liability insurance to a practitioner of medicine
2246	licensed under chapter 458, to a practitioner of osteopathic
2247	medicine licensed under chapter 459, to a podiatric physician
2248	licensed under chapter 461, to a dentist licensed under chapter
2249	466, to a hospital licensed under chapter 395, to a crisis
2250	stabilization unit licensed under part IV of chapter 394, to a
2251	health maintenance organization certificated under part I of
2252	chapter 641, to clinics included in chapter 390, to an
2253	ambulatory surgical center as defined in s. 395.002, or to a
2254	member of The Florida Bar shall report in duplicate to the
2255	Department of Insurance any claim or action for damages for
2256	personal injuries claimed to have been caused by error,
2257	omission, or negligence in the performance of such insured's
2258	professional services or based on a claimed performance of
2259	professional services without consent, if the claim resulted in:
2260	1.(a)A final judgment in any amount.
2261	2.(b)A settlement in any amount.
2262
2263	Reports shall be filed with the department.
2264	(b) In addition to the requirements of paragraph (a), if
2265	the insured party is licensed under chapter 395, chapter 458,
2266	chapter 459, chapter 461, or chapter 466, the insurer shall
2267	report in duplicate to the Office of Insurance Regulation any
2268	other disposition of the claim, including, but not limited to, a
2269	dismissal. If the insured is licensed under chapter 458, chapter
2270	459, or chapter 461, any claim that resulted in a final judgment
2271	or settlement in the amount of $50,000 or more shall be reported
2272	to the Department of Health no later than 30 days following the
2273	occurrence of that event. If the insured is licensed under
2274	chapter 466, any claim that resulted in a final judgment or
2275	settlement in the amount of $25,000 or more shall be reported to
2276	the Department of Health no later than 30 days following the
2277	occurrence of that event and, if the insured party is licensed
2278	under chapter 458, chapter 459, chapter 461, or chapter 466,
2279	with the Department of Health, no later than 30 days following
2280	the occurrence of any event listed in paragraph (a) or paragraph
2281	(b). The Department of Health shall review each report and
2282	determine whether any of the incidents that resulted in the
2283	claim potentially involved conduct by the licensee that is
2284	subject to disciplinary action, in which case the provisions of
2285	s. 456.073 shall apply. The Department of Health, as part of the
2286	annual report required by s. 456.026, shall publish annual
2287	statistics, without identifying licensees, on the reports it
2288	receives, including final action taken on such reports by the
2289	Department of Health or the appropriate regulatory board.
2290	(2) The reports required by subsection (1) shall contain:
2291	(n) Any other information required by the department to
2292	analyze and evaluate the nature, causes, location, cost, and
2293	damages involved in professional liability cases. The Financial
2294	Services Commission shall adopt by rule requirements for
2295	additional information to assist the Office of Insurance
2296	Regulation in its analysis and evaluation of the nature, causes,
2297	location, cost, and damages involved in professional liability
2298	cases reported by insurers under this section.
2299	(4) There shall be no liability on the part of, and no
2300	cause of action of any nature shall arise against, any insurer
2301	reporting hereunder or its agents or employees or the department
2302	or its employees for any action taken by them under this
2303	section. The department shall mayimpose a fine of $250 per day
2304	per case, but not to exceed a total of $10,000 $1,000per case,
2305	against an insurer that violates the requirements of this
2306	section. This subsection applies to claims accruing on or after
2307	October 1, 1997.
2308	Section 41. Section 627.9121, Florida Statutes, is created
2309	to read:
2310	627.9121 Required reporting of claims; penalties.--Each
2311	entity that makes payment under a policy of insurance, self-
2312	insurance, or otherwise in settlement, partial settlement, or
2313	satisfaction of a judgment in a medical malpractice action or
2314	claim that is required to report information to the National
2315	Practitioner Data Bank under 42 U.S.C. s. 11131 must also report
2316	the same information to the Office of Insurance Regulation. The
2317	office shall include such information in the data that it
2318	compiles under s. 627.912. The office must compile and review
2319	the data collected pursuant to this section and must assess an
2320	administrative fine on any entity that fails to fully comply
2321	with such reporting requirements.
2322	Section 42. Subsections (12), (13), and (18) of section
2323	641.19, Florida Statutes, are amended to read:
2324	641.19 Definitions.--As used in this part, the term:
2325	(12) "Health maintenance contract" means any contract
2326	entered into by a health maintenance organization with a
2327	subscriber or group of subscribers to provide coverage for
2328	comprehensive health care services in exchange for a prepaid per
2329	capita or prepaid aggregate fixed sum.
2330	(13) "Health maintenance organization" means any
2331	organization authorized under this part which:
2332	(a) Provides, through arrangements with other persons,
2333	emergency care, inpatient hospital services, physician care
2334	including care provided by physicians licensed under chapters
2335	458, 459, 460, and 461, ambulatory diagnostic treatment, and
2336	preventive health care services.;
2337	(b) Provides, either directly or through arrangements with
2338	other persons, health care services to persons enrolled with
2339	such organization, on a prepaid per capita or prepaid aggregate
2340	fixed-sum basis.;
2341	(c) Provides, either directly or through arrangements with
2342	other persons, comprehensive health care services which
2343	subscribers are entitled to receive pursuant to a contract.;
2344	(d) Provides physician services, by physicians licensed
2345	under chapters 458, 459, 460, and 461, directly through
2346	physicians who are either employees or partners of such
2347	organization or under arrangements with a physician or any group
2348	of physicians.; and
2349	(e) If offering services through a managed care system,
2350	then the managed care system must be a system in which a primary
2351	physician licensed under chapter 458 or chapter 459 and chapters
2352	460 and 461 is designated for each subscriber upon request of a
2353	subscriber requesting service by a physician licensed under any
2354	of those chapters, and is responsible for coordinating the
2355	health care of the subscriber of the respectively requested
2356	service and for referring the subscriber to other providers of
2357	the same discipline when necessary. Each female subscriber may
2358	select as her primary physician an obstetrician/gynecologist who
2359	has agreed to serve as a primary physician and is in the health
2360	maintenance organization's provider network.
2361	(f) Except in cases in which the health care provider is
2362	an employee of the health maintenance organization, the fact
2363	that the health maintenance organization arranges for the
2364	provision of health care services under this chapter does not
2365	create an actual agency, apparent agency, or employer-employee
2366	relationship between the health care provider and the health
2367	maintenance organization for purposes of vicarious liability for
2368	the medical negligence of the health care provider.
2369	(18) "Subscriber" means an entity or individual who has
2370	contracted, or on whose behalf a contract has been entered into,
2371	with a health maintenance organization for health care coverage
2372	services or other persons who also receive health care coverage
2373	servicesas a result of the contract.
2374	Section 43. Subsection (3) of section 641.51, Florida
2375	Statutes, is amended to read:
2376	641.51 Quality assurance program; second medical opinion
2377	requirement.--
2378	(3) The health maintenance organization shall not have the
2379	right to control theprofessional judgment of a physician
2380	licensed under chapter 458, chapter 459, chapter 460, or chapter
2381	461 concerning the proper course of treatment of a subscriber
2382	shall not be subject to modification by the organization or its
2383	board of directors, officers, or administrators, unless the
2384	course of treatment prescribed is inconsistent with the
2385	prevailing standards of medical practice in the community.
2386	However, this subsection shall not be considered to restrict a
2387	utilization management program established by an organization or
2388	to affect an organization’s decision as to payment for covered
2389	services. Except in cases in which the health care provider is
2390	an employee of the health maintenance organization, the health
2391	maintenance organization shall not be vicariously liable for the
2392	medical negligence of the health care provider, whether such
2393	claim is alleged under a theory of actual agency, apparent
2394	agency, or employer-employee relationship.
2395	Section 44. Section 766.102, Florida Statutes, is amended
2396	to read:
2397	766.102 Medical negligence; standards of recovery; expert
2398	witness.--
2399	(1) In any action for recovery of damages based on the
2400	death or personal injury of any person in which it is alleged
2401	that such death or injury resulted from the negligence of a
2402	health care provider as defined in s. 768.50(2)(b), the claimant
2403	shall have the burden of proving by the greater weight of
2404	evidence that the alleged actions of the health care provider
2405	represented a breach of the prevailing professional standard of
2406	care for that health care provider. The prevailing professional
2407	standard of care for a given health care provider shall be that
2408	level of care, skill, and treatment which, in light of all
2409	relevant surrounding circumstances, is recognized as acceptable
2410	and appropriate by reasonably prudent similar health care
2411	providers.
2412	(2)(a) If the health care provider whose negligence is
2413	claimed to have created the cause of action is not certified by
2414	the appropriate American board as being a specialist, is not
2415	trained and experienced in a medical specialty, or does not hold
2416	himself or herself out as a specialist, a "similar health care
2417	provider" is one who:
2418	1. Is licensed by the appropriate regulatory agency of
2419	this state;
2420	2. Is trained and experienced in the same discipline or
2421	school of practice; and
2422	3. Practices in the same or similar medical community.
2423	(b) If the health care provider whose negligence is
2424	claimed to have created the cause of action is certified by the
2425	appropriate American board as a specialist, is trained and
2426	experienced in a medical specialty, or holds himself or herself
2427	out as a specialist, a "similar health care provider" is one
2428	who:
2429	1. Is trained and experienced in the same specialty; and
2430	2. Is certified by the appropriate American board in the
2431	same specialty.
2432
2433	However, if any health care provider described in this paragraph
2434	is providing treatment or diagnosis for a condition which is not
2435	within his or her specialty, a specialist trained in the
2436	treatment or diagnosis for that condition shall be considered a
2437	"similar health care provider."
2438	(c) The purpose of this subsection is to establish a
2439	relative standard of care for various categories and
2440	classifications of health care providers. Any health care
2441	provider may testify as an expert in any action if he or she:
2442	1. Is a similar health care provider pursuant to paragraph
2443	(a) or paragraph (b); or
2444	2. Is not a similar health care provider pursuant to
2445	paragraph (a) or paragraph (b) but, to the satisfaction of the
2446	court, possesses sufficient training, experience, and knowledge
2447	as a result of practice or teaching in the specialty of the
2448	defendant or practice or teaching in a related field of
2449	medicine, so as to be able to provide such expert testimony as
2450	to the prevailing professional standard of care in a given field
2451	of medicine. Such training, experience, or knowledge must be as
2452	a result of the active involvement in the practice or teaching
2453	of medicine within the 5-year period before the incident giving
2454	rise to the claim.
2455	(2)(3)(a) If the injury is claimed to have resulted from
2456	the negligent affirmative medical intervention of the health
2457	care provider, the claimant must, in order to prove a breach of
2458	the prevailing professional standard of care, show that the
2459	injury was not within the necessary or reasonably foreseeable
2460	results of the surgical, medicinal, or diagnostic procedure
2461	constituting the medical intervention, if the intervention from
2462	which the injury is alleged to have resulted was carried out in
2463	accordance with the prevailing professional standard of care by
2464	a reasonably prudent similar health care provider.
2465	(b) The provisions of this subsection shall apply only
2466	when the medical intervention was undertaken with the informed
2467	consent of the patient in compliance with the provisions of s.
2468	766.103.
2469	(3)(4)The existence of a medical injury shall not create
2470	any inference or presumption of negligence against a health care
2471	provider, and the claimant must maintain the burden of proving
2472	that an injury was proximately caused by a breach of the
2473	prevailing professional standard of care by the health care
2474	provider. However, the discovery of the presence of a foreign
2475	body, such as a sponge, clamp, forceps, surgical needle, or
2476	other paraphernalia commonly used in surgical, examination, or
2477	diagnostic procedures, shall be prima facie evidence of
2478	negligence on the part of the health care provider.
2479	(4)(5)The Legislature is cognizant of the changing trends
2480	and techniques for the delivery of health care in this state and
2481	the discretion that is inherent in the diagnosis, care, and
2482	treatment of patients by different health care providers. The
2483	failure of a health care provider to order, perform, or
2484	administer supplemental diagnostic tests shall not be actionable
2485	if the health care provider acted in good faith and with due
2486	regard for the prevailing professional standard of care.
2487	(5) A person may not give expert testimony concerning the
2488	prevailing professional standard of care unless that person is a
2489	licensed health care provider and meets the following criteria:
2490	(a) If the party against whom or on whose behalf the
2491	testimony is offered is a specialist, the expert witness must:
2492	1. Specialize in the same specialty as the party against
2493	whom or on whose behalf the testimony is offered; or
2494	2. Specialize in a similar specialty that includes the
2495	evaluation, diagnosis, or treatment of the medical condition
2496	that is the subject of the claim and have prior experience
2497	treating similar patients.
2498	(b) Has devoted professional time during the 3 years
2499	immediately preceding the date of the occurrence that is the
2500	basis for the action to:
2501	1. The active clinical practice of, or consulting with
2502	respect to, the same or similar health profession as the health
2503	care provider against whom or on whose behalf the testimony is
2504	offered and, if that health care provider is a specialist, the
2505	active clinical practice of, or consulting with respect to, the
2506	same or similar specialty that includes the evaluation,
2507	diagnosis, or treatment of the medical condition that is the
2508	subject of the claim and have prior experience treating similar
2509	patients;
2510	2. The instruction of students in an accredited health
2511	professional school or accredited residency program in the same
2512	or similar health profession in which the health care provider
2513	against whom or on whose behalf the testimony is offered and, if
2514	that health care provider is a specialist, an accredited health
2515	professional school or accredited residency or clinical research
2516	program in the same or similar specialty; or
2517	3. A clinical research program that is affiliated with an
2518	accredited medical school or teaching hospital and that is in
2519	the same or similar health profession as the health care
2520	provider against whom or on whose behalf the testimony is
2521	offered and, if that health care provider is a specialist, a
2522	clinical research program that is affiliated with an accredited
2523	health professional school or accredited residency or clinical
2524	research program in the same or similar specialty.
2525	(c) If the party against whom or on whose behalf the
2526	testimony is offered is a general practitioner, the expert
2527	witness must have devoted professional time during the 5 years
2528	immediately preceding the date of the occurrence that is the
2529	basis for the action to:
2530	1. Active clinical practice or consultation as a general
2531	practitioner;
2532	2. Instruction of students in an accredited health
2533	professional school or accredited residency program in the
2534	general practice of medicine; or
2535	3. A clinical research program that is affiliated with an
2536	accredited medical school or teaching hospital and that is in
2537	the general practice of medicine.
2538	(6) A physician licensed under chapter 458 or chapter 459
2539	who qualifies as an expert witness under subsection (5) and who,
2540	by reason of active clinical practice or instruction of
2541	students, has knowledge of the applicable standard of care for
2542	nurses, nurse practitioners, certified registered nurse
2543	anesthetists, certified registered nurse midwives, physician
2544	assistants, or other medical support staff may give expert
2545	testimony in a medical malpractice action with respect to the
2546	standard of care of such medical support staff.
2547	(7) Notwithstanding subsection (5), in a medical
2548	malpractice action against a hospital, health care facility, or
2549	medical facility, a person may give expert testimony on the
2550	appropriate standard of care as to administrative and other
2551	nonclinical issues if the person has substantial knowledge, by
2552	virtue of his or her training and experience, concerning the
2553	standard of care among hospitals, health care facilities, or
2554	medical facilities of the same type as the hospital, health care
2555	facility, or medical facility whose acts or omissions are the
2556	subject of the testimony and which are located in the same or
2557	similar communities at the time of the alleged act giving rise
2558	to the cause of action.
2559	(8) If a health care provider described in subsection (5),
2560	subsection (6), or subsection (7) is providing evaluation,
2561	treatment, or diagnosis for a condition that is not within his
2562	or her specialty, a specialist trained in the evaluation,
2563	treatment, or diagnosis for that condition shall be considered a
2564	similar health care provider.
2565	(9)(6)(a) In any action for damages involving a claim of
2566	negligence against a physician licensed under chapter 458,
2567	osteopathic physician licensed under chapter 459, podiatric
2568	physician licensed under chapter 461, or chiropractic physician
2569	licensed under chapter 460 providing emergency medical services
2570	in a hospital emergency department, the court shall admit expert
2571	medical testimony only from physicians, osteopathic physicians,
2572	podiatric physicians, and chiropractic physicians who have had
2573	substantial professional experience within the preceding 5 years
2574	while assigned to provide emergency medical services in a
2575	hospital emergency department.
2576	(b) For the purposes of this subsection:
2577	1. The term "emergency medical services" means those
2578	medical services required for the immediate diagnosis and
2579	treatment of medical conditions which, if not immediately
2580	diagnosed and treated, could lead to serious physical or mental
2581	disability or death.
2582	2. "Substantial professional experience" shall be
2583	determined by the custom and practice of the manner in which
2584	emergency medical coverage is provided in hospital emergency
2585	departments in the same or similar localities where the alleged
2586	negligence occurred.
2587	(10) In any action alleging medical malpractice, an expert
2588	witness may not testify on a contingency fee basis.
2589	(11) Any attorney who proffers a person as an expert
2590	witness pursuant to this section must certify that such person
2591	has not been found guilty of fraud or perjury in any
2592	jurisdiction.
2593	(12) This section does not limit the power of the trial
2594	court to disqualify or qualify an expert witness on grounds
2595	other than the qualifications in this section.
2596	Section 45. Subsections (2), (3), (4), and (7) of section
2597	766.106, Florida Statutes, are amended, and subsections (13) and
2598	(14) are added to said section, to read:
2599	766.106 Notice before filing action for medical
2600	malpractice; presuit screening period; offers for admission of
2601	liability and for arbitration; informal discovery; review.--
2602	(2)(a)After completion of presuit investigation pursuant
2603	to s. 766.203 and prior to filing a claim for medical
2604	malpractice, a claimant shall notify each prospective defendant
2605	by certified mail, return receipt requested, of intent to
2606	initiate litigation for medical malpractice. Notice to each
2607	prospective defendant must include, if available, a list of all
2608	known health care providers seen by the claimant for the
2609	injuries complained of subsequent to the alleged act of
2610	malpractice, a list of all known health care providers during
2611	the 2-year period prior to the alleged act of malpractice who
2612	treated or evaluated the claimant, and copies of all of the
2613	medical records relied upon by the expert in signing the
2614	affidavit. The requirement of providing the list of known health
2615	care providers may not serve as grounds for imposing sanctions
2616	for failure to provide presuit discovery.
2617	(b)Following the initiation of a suit alleging medical
2618	malpractice with a court of competent jurisdiction, and service
2619	of the complaint upon a defendant, the claimant shall provide a
2620	copy of the complaint to the Department of Health. The
2621	requirement of providing the complaint to the Department of
2622	Health does not impair the claimant's legal rights or ability to
2623	seek relief for his or her claim. The Department of Health shall
2624	review each incident and determine whether it involved conduct
2625	by a licensee which is potentially subject to disciplinary
2626	action, in which case the provisions of s. 456.073 apply.
2627	(3)(a) No suit may be filed for a period of 120 90days
2628	after notice is mailed to any prospective defendant. During the
2629	120-day 90-dayperiod, the prospective defendant's insurer or
2630	self-insurer shall conduct a review to determine the liability
2631	of the defendant. Each insurer or self-insurer shall have a
2632	procedure for the prompt investigation, review, and evaluation
2633	of claims during the 120-day 90-dayperiod. This procedure shall
2634	include one or more of the following:
2635	1. Internal review by a duly qualified claims adjuster;
2636	2. Creation of a panel comprised of an attorney
2637	knowledgeable in the prosecution or defense of medical
2638	malpractice actions, a health care provider trained in the same
2639	or similar medical specialty as the prospective defendant, and a
2640	duly qualified claims adjuster;
2641	3. A contractual agreement with a state or local
2642	professional society of health care providers, which maintains a
2643	medical review committee;
2644	4. Any other similar procedure which fairly and promptly
2645	evaluates the pending claim.
2646
2647	Each insurer or self-insurer shall investigate the claim in good
2648	faith, and both the claimant and prospective defendant shall
2649	cooperate with the insurer in good faith. If the insurer
2650	requires, a claimant shall appear before a pretrial screening
2651	panel or before a medical review committee and shall submit to a
2652	physical examination, if required. Unreasonable failure of any
2653	party to comply with this section justifies dismissal of claims
2654	or defenses. There shall be no civil liability for participation
2655	in a pretrial screening procedure if done without intentional
2656	fraud.
2657	(b) At or before the end of the 120 90days, the insurer
2658	or self-insurer shall provide the claimant with a response:
2659	1. Rejecting the claim;
2660	2. Making a settlement offer; or
2661	3. Making an offer to arbitrate, in which case liability
2662	is deemed admitted and arbitration will be held only of
2663	admission of liability and for arbitrationon the issue of
2664	damages. This offer may be made contingent upon a limit of
2665	general damages.
2666	(c) The response shall be delivered to the claimant if not
2667	represented by counsel or to the claimant's attorney, by
2668	certified mail, return receipt requested. Failure of the
2669	prospective defendant or insurer or self-insurer to reply to the
2670	notice within 120 90days after receipt shall be deemed a final
2671	rejection of the claim for purposes of this section.
2672	(d) Within 30 days after ofreceipt of a response by a
2673	prospective defendant, insurer, or self-insurer to a claimant
2674	represented by an attorney, the attorney shall advise the
2675	claimant in writing of the response, including:
2676	1. The exact nature of the response under paragraph (b).
2677	2. The exact terms of any settlement offer, or admission
2678	of liability and offer of arbitration on damages.
2679	3. The legal and financial consequences of acceptance or
2680	rejection of any settlement offer, or admission of liability,
2681	including the provisions of this section.
2682	4. An evaluation of the time and likelihood of ultimate
2683	success at trial on the merits of the claimant's action.
2684	5. An estimation of the costs and attorney's fees of
2685	proceeding through trial.
2686	(4) The notice of intent to initiate litigation shall be
2687	served within the time limits set forth in s. 95.11. However,
2688	during the 120-day 90-dayperiod, the statute of limitations is
2689	tolled as to all potential defendants. Upon stipulation by the
2690	parties, the 120-day 90-dayperiod may be extended and the
2691	statute of limitations is tolled during any such extension. Upon
2692	receiving notice of termination of negotiations in an extended
2693	period, the claimant shall have 60 days or the remainder of the
2694	period of the statute of limitations, whichever is greater,
2695	within which to file suit.
2696	(7) Informal discovery may be used by a party to obtain
2697	unsworn statements, the production of documents or things, and
2698	physical and mental examinations, as follows:
2699	(a) Unsworn statements.--Any party may require other
2700	parties to appear for the taking of an unsworn statement. Such
2701	statements may be used only for the purpose of presuit screening
2702	and are not discoverable or admissible in any civil action for
2703	any purpose by any party. A party desiring to take the unsworn
2704	statement of any party must give reasonable notice in writing to
2705	all parties. The notice must state the time and place for taking
2706	the statement and the name and address of the party to be
2707	examined. Unless otherwise impractical, the examination of any
2708	party must be done at the same time by all other parties. Any
2709	party may be represented by counsel at the taking of an unsworn
2710	statement. An unsworn statement may be recorded electronically,
2711	stenographically, or on videotape. The taking of unsworn
2712	statements is subject to the provisions of the Florida Rules of
2713	Civil Procedure and may be terminated for abuses.
2714	(b) Documents or things.--Any party may request discovery
2715	of documents or things. The documents or things must be
2716	produced, at the expense of the requesting party, within 20 days
2717	after the date of receipt of the request. A party is required to
2718	produce discoverable documents or things within that party's
2719	possession or control.
2720	(c) Physical and mental examinations.--A prospective
2721	defendant may require an injured prospective claimant to appear
2722	for examination by an appropriate health care provider. The
2723	defendant shall give reasonable notice in writing to all parties
2724	as to the time and place for examination. Unless otherwise
2725	impractical, a prospective claimant is required to submit to
2726	only one examination on behalf of all potential defendants. The
2727	practicality of a single examination must be determined by the
2728	nature of the potential claimant's condition, as it relates to
2729	the liability of each potential defendant. Such examination
2730	report is available to the parties and their attorneys upon
2731	payment of the reasonable cost of reproduction and may be used
2732	only for the purpose of presuit screening. Otherwise, such
2733	examination report is confidential and exempt from the
2734	provisions of s. 119.07(1) and s. 24(a), Art. I of the State
2735	Constitution.
2736	(d) Written questions.--Any party may request answers to
2737	written questions, the number of which may not exceed 30,
2738	including subparts. A response must be made within 20 days after
2739	receipt of the questions.
2740	(13) Failure to cooperate on the part of any party during
2741	the presuit investigation may be grounds to strike any claim
2742	made, or defense raised, by such party in suit.
2743	(14) The claimant must execute a medical information
2744	release that allows a defendant or his or her legal
2745	representative to obtain unsworn statements of the claimant's
2746	treating physicians, which statements must be limited to those
2747	areas that are potentially relevant to the claim of personal
2748	injury or wrongful death. A defendant must give reasonable
2749	notice to the claimant before obtaining unsworn statements from
2750	a claimant's treating physician.
2751	Section 46. Section 766.1065, Florida Statutes, is created
2752	to read:
2753	766.1065 Mandatory staging of presuit investigation and
2754	mandatory mediation.--
2755	(1) Within 30 days after service of the presuit notice of
2756	intent to initiate medical malpractice litigation, each party
2757	shall voluntarily produce to all other parties, without being
2758	requested, any and all medical, hospital, health care, and
2759	employment records concerning the claimant in the disclosing
2760	party’s possession, custody, or control, and the disclosing
2761	party shall affirmatively certify in writing that the records
2762	produced include all records in that party’s possession,
2763	custody, or control or that the disclosing party has no medical,
2764	hospital, health care, or employment records concerning the
2765	claimant.
2766	(a) Subpoenas may be issued according to the Florida Rules
2767	of Civil Procedure as though suit had been filed for the limited
2768	purpose of obtaining copies of medical, hospital, health care,
2769	and employment records of the claimant. The party shall indicate
2770	on the subpoena that it is being issued in accordance with the
2771	presuit procedures of this section and shall not be required to
2772	include a case number.
2773	(b) Nothing in this section shall limit the ability of any
2774	party to use any other available form of presuit discovery
2775	available under this chapter or the Florida Rules of Civil
2776	Procedure.
2777	(2) Within 60 days after service of the presuit notice of
2778	intent to initiate medical malpractice litigation, all parties
2779	must be made available for a sworn deposition. Such deposition
2780	may not be used in a civil suit for medical negligence.
2781	(3) Within 90 days after service of the presuit notice of
2782	intent to initiate medical malpractice litigation, each party’s
2783	corroborating expert, who will otherwise be tendered as the
2784	expert complying with the affidavit provisions set forth in s.
2785	766.203, must be made available for a sworn deposition.
2786	(a) The expenses associated with the expert’s time and
2787	travel in preparing for and attending such deposition shall be
2788	the responsibility of the party retaining such expert.
2789	(b) An expert shall be deemed available for deposition if
2790	suitable accommodations can be made for appearance of said
2791	expert via real-time video technology.
2792	Section 47. Section 766.1067, Florida Statutes, is created
2793	to read:
2794	766.1067 Mandatory mediation after suit is filed.--Within
2795	120 days after suit being filed, unless such period is extended
2796	by mutual agreement of all parties, all parties shall attend in-
2797	person mandatory mediation in accordance with s. 44.102 if
2798	binding arbitration under s. 766.106 or s. 766.207 has not been
2799	agreed to by the parties. The Florida Rules of Civil Procedure
2800	shall apply to mediation held pursuant to this section.
2801	Section 48. Section 766.118, Florida Statutes, is created
2802	to read:
2803	766.118 Determination of noneconomic damages.--
2804	(1) With respect to a cause of action for personal injury
2805	or wrongful death arising from medical negligence by physicians
2806	licensed under chapter 458 or chapter 459, regardless of the
2807	number of such defendant physicians, noneconomic damages, as
2808	defined in s. 766.202(7), shall not exceed $250,000 per
2809	claimant, provided that the total noneconomic damages
2810	recoverable by all claimants from all such physicians shall not
2811	exceed $500,000.
2812	(2) With respect to a cause of action for personal injury
2813	or wrongful death arising from medical negligence by defendants
2814	other than physicians licensed under chapter 458 or chapter 459,
2815	regardless of the number of such nonphysician defendants,
2816	noneconomic damages, as defined in s. 766.202(7), shall not
2817	exceed $250,000 per claimant, provided that the total
2818	noneconomic damages recoverable by all claimants from all such
2819	nonphysician defendants shall not exceed $500,000.
2820	(3) Notwithstanding subsections (1) and (2), with respect
2821	to a cause of action for personal injury or wrongful death
2822	arising from medical negligence by physicians licensed under
2823	chapter 458 or chapter 459 providing emergency services and
2824	care, as defined in s. 395.002(10), regardless of the number of
2825	such defendant physicians, noneconomic damages, as defined in s.
2826	766.202(7), shall not exceed $100,000 per claimant, provided
2827	that the total noneconomic damages recoverable by all claimants
2828	from all such physicians shall not exceed $250,000.
2829	(4) Notwithstanding subsections (1) and (2), with respect
2830	to a cause of action for personal injury or wrongful death
2831	arising from medical negligence by defendants, other than
2832	physicians licensed under chapter 458 or chapter 459, providing
2833	emergency services and care pursuant to obligations imposed by
2834	ss. 395.1041 and 401.45, regardless of the number of such
2835	nonphysician defendants, noneconomic damages, as defined in s.
2836	766.202(7), shall not exceed $250,000 per claimant, provided
2837	that the total noneconomic damages recoverable by all claimants
2838	from all such nonphysician defendants shall not exceed $500,000.
2839	(5) For the purpose of determining the limitations on
2840	noneconomic damages set forth in this section, the term
2841	"physician licensed under chapter 458 or chapter 459" includes
2842	any person for whom a physician licensed under chapter 458 or
2843	chapter 459 is vicariously liable and any person whose liability
2844	is based solely on such person being vicariously liable for the
2845	actions of a physician licensed under chapter 458 or chapter 459
2846	or the actions of a person for whom a physician licensed under
2847	chapter 458 or chapter 459 is vicariously liable.
2848	(6) This section shall not apply to actions governed by s.
2849	768.28.
2850	Section 49. Subsections (3), (5), (7), and (8) of section
2851	766.202, Florida Statutes, are amended to read:
2852	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
2853	766.201-766.212, the term:
2854	(3) "Economic damages" means financial losses that which
2855	would not have occurred but for the injury giving rise to the
2856	cause of action, including, but not limited to, past and future
2857	medical expenses and 80 percent of wage loss and loss of earning
2858	capacity, to the extent the claimant is entitled to recover such
2859	damages under general law, including the Wrongful Death Act.
2860	(5) "Medical expert" means a person duly and regularly
2861	engaged in the practice of his or her profession who holds a
2862	health care professional degree from a university or college and
2863	who meets the requirements of an expert witness as set forth in
2864	s. 766.102 has had special professional training and experience
2865	or one possessed of special health care knowledge or skill about
2866	the subject upon which he or she is called to testify or provide
2867	an opinion.
2868	(7) "Noneconomic damages" means nonfinancial losses which
2869	would not have occurred but for the injury giving rise to the
2870	cause of action, including pain and suffering, inconvenience,
2871	physical impairment, mental anguish, disfigurement, loss of
2872	capacity for enjoyment of life, and other nonfinancial losses,
2873	to the extent the claimant is entitled to recover such damages
2874	under general law, including the Wrongful Death Act.
2875	(8) "Periodic payment" means provision for the structuring
2876	of future economic and future noneconomic damages payments, in
2877	whole or in part, over a period of time, as follows:
2878	(a) A specific finding must be madeof the dollar amount
2879	of periodic payments which will compensate for these future
2880	damages after offset for collateral sources and after having
2881	been reduced to present value shall be made. A periodic payment
2882	must be structured to last as long as the claimant lives The
2883	total dollar amount of the periodic payments shall equal the
2884	dollar amount of all such future damages before any reduction to
2885	present value.
2886	(b) A defendant that elects to make periodic payments of
2887	either or both future economic and future noneconomic losses may
2888	contractually obligate a company that is authorized to do
2889	business in this state to make those periodic payments on its
2890	behalf. Upon a joint petition by the defendant and the company
2891	that is contractually obligated to make the periodic payments,
2892	the court shall discharge the defendant from any further
2893	obligations to the claimant for those future economic and future
2894	noneconomic damages that are to be paid by that company by
2895	periodic payments.
2896	(c) A bond or security may not be required of any
2897	defendant or company that is obligated to make periodic payments
2898	pursuant to this section; however, if, upon petition by a
2899	claimant who is receiving periodic payments pursuant to this
2900	section, the court finds that there is substantial, competent
2901	evidence that the defendant or the company that is responsible
2902	for the periodic payments cannot adequately ensure full and
2903	continuous payments thereof, and that doing so is in the best
2904	interest of the claimant, the court may require the defendant or
2905	the company that is obligated to make the periodic payments to
2906	provide such additional financial security as the court
2907	determines to be reasonable under the circumstances.
2908	(d) The provision for the periodic payments must specify
2909	the recipient or recipients of the payments, the address to
2910	which the payments are to be delivered, and the amount and
2911	intervals of the payments; however, in any one year, any payment
2912	or payments may not exceed the amount intended by the trier of
2913	fact to be awarded each year, offset for collateral sources. A
2914	periodic payment may not be accelerated, deferred, increased, or
2915	decreased, except by court order based upon the mutual consent
2916	and agreement of the claimant, the defendant, whether or not
2917	discharged, and the company that is obligated to make the
2918	periodic payments, if any; nor may the claimant sell, mortgage,
2919	encumber, or anticipate the periodic payments or any part
2920	thereof, by assignment or otherwise. The defendant shall be
2921	required to post a bond or security or otherwise to assure full
2922	payment of these damages awarded. A bond is not adequate unless
2923	it is written by a company authorized to do business in this
2924	state and is rated A+ by Best's. If the defendant is unable to
2925	adequately assure full payment of the damages, all damages,
2926	reduced to present value, shall be paid to the claimant in a
2927	lump sum. No bond may be canceled or be subject to cancellation
2928	unless at least 60 days' advance written notice is filed with
2929	the court and the claimant. Upon termination of periodic
2930	payments, the security, or so much as remains, shall be returned
2931	to the defendant.
2932	(c) The provision for payment of future damages by
2933	periodic payments shall specify the recipient or recipients of
2934	the payments, the dollar amounts of the payments, the interval
2935	between payments, and the number of payments or the period of
2936	time over which payments shall be made.
2937	Section 50. Subsections (2) and (3) of section 766.203,
2938	Florida Statutes, are amended to read:
2939	766.203 Presuit investigation of medical negligence claims
2940	and defenses by prospective parties.--
2941	(2) Prior to issuing notification of intent to initiate
2942	medical malpractice litigation pursuant to s. 766.106, the
2943	claimant shall conduct an investigation to ascertain that there
2944	are reasonable grounds to believe that:
2945	(a) Any named defendant in the litigation was negligent in
2946	the care or treatment of the claimant; and
2947	(b) Such negligence resulted in injury to the claimant.
2948
2949	Corroboration of reasonable grounds to initiate medical
2950	negligence litigation shall be provided by the claimant's
2951	submission of a verified written medical expert opinion from a
2952	medical expert as defined in s. 766.202(5), at the time the
2953	notice of intent to initiate litigation is mailed, which
2954	statement shall corroborate reasonable grounds to support the
2955	claim of medical negligence. This opinion and statement are
2956	subject to discovery.
2957	(3) Prior to issuing its response to the claimant's notice
2958	of intent to initiate litigation, during the time period for
2959	response authorized pursuant to s. 766.106, the defendant or the
2960	defendant's insurer or self-insurer shall conduct an
2961	investigation to ascertain whether there are reasonable grounds
2962	to believe that:
2963	(a) The defendant was negligent in the care or treatment
2964	of the claimant; and
2965	(b) Such negligence resulted in injury to the claimant.
2966
2967	Corroboration of lack of reasonable grounds for medical
2968	negligence litigation shall be provided with any response
2969	rejecting the claim by the defendant's submission of a verified
2970	written medical expert opinion from a medical expert as defined
2971	in s. 766.202(5), at the time the response rejecting the claim
2972	is mailed, which statement shall corroborate reasonable grounds
2973	for lack of negligent injury sufficient to support the response
2974	denying negligent injury. This opinion and statement are subject
2975	to discovery.
2976	Section 51. Section 766.206, Florida Statutes, is amended
2977	to read:
2978	766.206 Presuit investigation of medical negligence claims
2979	and defenses by court.--
2980	(1) After the completion of presuit investigation by the
2981	parties pursuant to s. 766.203 and any informal discovery
2982	pursuant to s. 766.106, any party may file a motion in the
2983	circuit court requesting the court to determine whether the
2984	opposing party's claim or denial rests on a reasonable basis.
2985	(2) If the court finds that the notice of intent to
2986	initiate litigation mailed by the claimant is not in compliance
2987	with the reasonable investigation requirements of ss. 766.201-
2988	766.212, including a review of the claim and a verified written
2989	medical expert opinion by a medical expert as defined in s.
2990	766.202,the court shall dismiss the claim, and the person who
2991	mailed such notice of intent, whether the claimant or the
2992	claimant's attorney, shall be personally liable for all
2993	attorney's fees and costs incurred during the investigation and
2994	evaluation of the claim, including the reasonable attorney's
2995	fees and costs of the defendant or the defendant's insurer.
2996	(3) If the court finds that the response mailed by a
2997	defendant rejecting the claim is not in compliance with the
2998	reasonable investigation requirements of ss. 766.201-766.212,
2999	including a review of the claim and a verified written medical
3000	expert opinion by a medical expert as defined in s. 766.202, the
3001	court shall strike the defendant's pleading. response, andThe
3002	person who mailed such response, whether the defendant, the
3003	defendant's insurer, or the defendant's attorney, shall be
3004	personally liable for all attorney's fees and costs incurred
3005	during the investigation and evaluation of the claim, including
3006	the reasonable attorney's fees and costs of the claimant.
3007	(4) If the court finds that an attorney for the claimant
3008	mailed notice of intent to initiate litigation without
3009	reasonable investigation, or filed a medical negligence claim
3010	without first mailing such notice of intent which complies with
3011	the reasonable investigation requirements, or if the court finds
3012	that an attorney for a defendant mailed a response rejecting the
3013	claim without reasonable investigation, the court shall submit
3014	its finding in the matter to The Florida Bar for disciplinary
3015	review of the attorney. Any attorney so reported three or more
3016	times within a 5-year period shall be reported to a circuit
3017	grievance committee acting under the jurisdiction of the Supreme
3018	Court. If such committee finds probable cause to believe that
3019	an attorney has violated this section, such committee shall
3020	forward to the Supreme Court a copy of its finding.
3021	(5)(a) If the court finds that the corroborating written
3022	medical expert opinion attached to any notice of claim or intent
3023	or to any response rejecting a claim lacked reasonable
3024	investigation, or that the medical expert submitting the opinion
3025	did not meet the expert witness qualifications as set forth in
3026	s. 766.202(5),the court shall report the medical expert issuing
3027	such corroborating opinion to the Division of Medical Quality
3028	Assurance or its designee. If such medical expert is not a
3029	resident of the state, the division shall forward such report to
3030	the disciplining authority of that medical expert.
3031	(b) The court shall may refuse to consider the testimony
3032	or opinion attached to any notice of intent or to any response
3033	rejecting a claim of suchan expert who has been disqualified
3034	three times pursuant to this section.
3035	Section 52. Subsections (2), (3), and (7) of section
3036	766.207, Florida Statutes, are amended to read:
3037	766.207 Voluntary binding arbitration of medical
3038	negligence claims.--
3039	(2) Upon the completion of presuit investigation with
3040	preliminary reasonable grounds for a medical negligence claim
3041	intact, the parties may elect to have damages determined by an
3042	arbitration panel. Such election may be initiated by either
3043	party by serving a request for voluntary binding arbitration of
3044	damages within 120 90days after service of the claimant's
3045	notice of intent to initiate litigation upon the defendant. The
3046	evidentiary standards for voluntary binding arbitration of
3047	medical negligence claims shall be as provided in ss.
3048	120.569(2)(g) and 120.57(1)(c).
3049	(3) Upon receipt of a party's request for such
3050	arbitration, the opposing party may accept the offer of
3051	voluntary binding arbitration within 30 days. However, in no
3052	event shall the defendant be required to respond to the request
3053	for arbitration sooner than 120 90days after service of the
3054	notice of intent to initiate litigation under s. 766.106. Such
3055	acceptance within the time period provided by this subsection
3056	shall be a binding commitment to comply with the decision of the
3057	arbitration panel. The liability of any insurer shall be subject
3058	to any applicable insurance policy limits.
3059	(7) Arbitration pursuant to this section shall preclude
3060	recourse to any other remedy by the claimant against any
3061	participating defendant, and shall be undertaken with the
3062	understanding that damages shall be awarded as provided by
3063	general law, including the Wrongful Death Act, subject to the
3064	following limitations:
3065	(a) Net economic damages shall be awardable, including,
3066	but not limited to, past and future medical expenses and 80
3067	percent of wage loss and loss of earning capacity, offset by any
3068	collateral source payments.
3069	(b) Noneconomic damages shall be limited to a maximum of
3070	$250,000 per incident, and shall be calculated on a percentage
3071	basis with respect to capacity to enjoy life, so that a finding
3072	that the claimant's injuries resulted in a 50-percent reduction
3073	in his or her capacity to enjoy life would warrant an award of
3074	not more than $125,000 noneconomic damages.
3075	(c) Damages for future economic losses shall be awarded to
3076	be paid by periodic payments pursuant to s. 766.202(8) and shall
3077	be offset by future collateral source payments.
3078	(d) Punitive damages shall not be awarded.
3079	(e) The defendant shall be responsible for the payment of
3080	interest on all accrued damages with respect to which interest
3081	would be awarded at trial.
3082	(f) The defendant shall pay the claimant's reasonable
3083	attorney's fees and costs, as determined by the arbitration
3084	panel, but in no event more than 15 percent of the award,
3085	reduced to present value.
3086	(g) The defendant shall pay all the costs of the
3087	arbitration proceeding and the fees of all the arbitrators other
3088	than the administrative law judge.
3089	(h) Each defendant who submits to arbitration under this
3090	section shall be jointly and severally liable for all damages
3091	assessed pursuant to this section.
3092	(i) The defendant's obligation to pay the claimant's
3093	damages shall be for the purpose of arbitration under this
3094	section only. A defendant's or claimant's offer to arbitrate
3095	shall not be used in evidence or in argument during any
3096	subsequent litigation of the claim following the rejection
3097	thereof.
3098	(j) The fact of making or accepting an offer to arbitrate
3099	shall not be admissible as evidence of liability in any
3100	collateral or subsequent proceeding on the claim.
3101	(k) Any offer by a claimant to arbitrate must be made to
3102	each defendant against whom the claimant has made a claim. Any
3103	offer by a defendant to arbitrate must be made to each claimant
3104	who has joined in the notice of intent to initiate litigation,
3105	as provided in s. 766.106. A defendant who rejects a claimant's
3106	offer to arbitrate shall be subject to the provisions of s.
3107	766.209(3). A claimant who rejects a defendant's offer to
3108	arbitrate shall be subject to the provisions of s. 766.209(4).
3109	(l) The hearing shall be conducted by all of the
3110	arbitrators, but a majority may determine any question of fact
3111	and render a final decision. The chief arbitrator shall decide
3112	all evidentiary matters.
3113
3114	The provisions of this subsection shall not preclude settlement
3115	at any time by mutual agreement of the parties.
3116	Section 53. Paragraph (a) of subsection (3) of section
3117	766.209, Florida Statutes, is amended to read:
3118	766.209 Effects of failure to offer or accept voluntary
3119	binding arbitration.--
3120	(3) If the defendant refuses a claimant's offer of
3121	voluntary binding arbitration:
3122	(a) The claim shall proceed to trial without limitation on
3123	damages, and the claimant, upon proving medical negligence,
3124	shall be entitled to recover prejudgment interest, and
3125	reasonable attorney's fees up to 25 percent of the award reduced
3126	to present value. Noneconomic damages at trial are subject to
3127	the limitations in s. 766.118.
3128	Section 54. Section 766.213, Florida Statutes, is created
3129	to read:
3130	766.213 Periodic payment of damages upon death of
3131	claimant.--Any portion of a periodic payment made pursuant to a
3132	settlement or jury award or pursuant to mediation or arbitration
3133	which is attributable to medical expenses that have not yet been
3134	incurred shall terminate upon the death of the claimant. Any
3135	outstanding medical expenses incurred prior to the death of the
3136	claimant shall be paid from that portion of the periodic payment
3137	attributable to medical expenses.
3138	Section 55. Section 766.304, Florida Statutes, is amended
3139	to read:
3140	766.304 Administrative law judge to determine claims.--The
3141	administrative law judge shall hear and determine all claims
3142	filed pursuant to ss. 766.301-766.316 and shall exercise the
3143	full power and authority granted to her or him in chapter 120,
3144	as necessary, to carry out the purposes of such sections. The
3145	administrative law judge has exclusive jurisdiction to determine
3146	whether a claim filed under this act is compensable. No civil
3147	action may be brought until the determinations under s. 766.309
3148	have been made by the administrative law judge. If the
3149	administrative law judge determines that the claimant is
3150	entitled to compensation from the association, or if the
3151	claimant accepts an award issued pursuant to s. 766.31, no civil
3152	action may be brought or continued in violation of the
3153	exclusiveness of remedy provisions of s. 766.303. If it is
3154	determined that a claim filed under this act is not compensable,
3155	neither the doctrine of collateral estoppel nor res judicata
3156	shall prohibit the claimant from pursuing any and all civil
3157	remedies available under common law and statutory law. The
3158	findings of fact and conclusions of law of the administrative
3159	law judge shall not be admissible in any subsequent proceeding;
3160	however, the sworn testimony of any person and the exhibits
3161	introduced into evidence in the administrative case are
3162	admissible as impeachment in any subsequent civil action only
3163	against a party to the administrative proceeding, subject to the
3164	Rules of Evidence. An award action may not be awarded or paid
3165	brought under ss. 766.301-766.316 if the claimant recovers under
3166	a settlement or a final judgment is entered in a civil action.
3167	The division may adopt rules to promote the efficient
3168	administration of, and to minimize the cost associated with, the
3169	prosecution of claims.
3170	Section 56. Section 766.305, Florida Statutes, is amended
3171	to read:
3172	766.305 Filing of claims and responses; medical
3173	disciplinary review.--
3174	(1) All claims filed for compensation under the plan shall
3175	commence by the claimant filing with the division a petition
3176	seeking compensation. Such petition shall include the following
3177	information:
3178	(a) The name and address of the legal representative and
3179	the basis for her or his representation of the injured infant.
3180	(b) The name and address of the injured infant.
3181	(c) The name and address of any physician providing
3182	obstetrical services who was present at the birth and the name
3183	and address of the hospital at which the birth occurred.
3184	(d) A description of the disability for which the claim is
3185	made.
3186	(e) The time and place the injury occurred.
3187	(f) A brief statement of the facts and circumstances
3188	surrounding the injury and giving rise to the claim.
3189	(g) All available relevant medical records relating to the
3190	birth-related neurological injury, and an identification of any
3191	unavailable records known to the claimant and the reasons for
3192	their unavailability.
3193	(h) Appropriate assessments, evaluations, and prognoses,
3194	and such other records and documents as are reasonably necessary
3195	for the determination of the amount of compensation to be paid
3196	to, or on behalf of, the injured infant on account of the birth-
3197	related neurological injury.
3198	(i) Documentation of expenses and services incurred to
3199	date, which indicates any payment made for such expenses and
3200	services, and by whom.
3201	(j) Documentation of any applicable private or
3202	governmental source of services or reimbursement relative to the
3203	impairments.
3204	(2) The claimant shall furnish the division with as many
3205	copies of the petition as required for service upon the
3206	association, any physician and hospital named in the petition,
3207	and the Division of Medical Quality Assurance, along with a $15
3208	filing fee payable to the Division of Administrative Hearings.
3209	Upon receipt of the petition, the division shall immediately
3210	serve the association, by service upon the agent designated to
3211	accept service on behalf of the association, by registered or
3212	certified mail, and shall mail copies of the petition, by
3213	registered or certified mail, to any physician, health care
3214	provider, and hospital named in the petition, and furnish a copy
3215	by regular mail to the Division of Medical Quality Assurance,
3216	and the Agency for Health Care Administration.
3217	(3) The claimant shall furnish to the Florida Birth-Related
3218	Neurological Injury Compensation Association one copy of the
3219	following information which shall be filed with the association
3220	within 10 days after the filing of the petition as set forth in
3221	s. 766.305(1):
3222	(a) All available relevant medical records relating to the
3223	birth-related neurological injury and an identification of any
3224	unavailable records known to the claimant and the reasons for
3225	their unavailability.
3226	(b) Appropriate assessments, evaluations, and prognoses and
3227	such other records and documents as are reasonably necessary for
3228	the determination of the amount of compensation to be paid to, or
3229	on behalf of, the injured infant on account of the birth-related
3230	neurological injury.
3231	(c) Documentation of expenses and services incurred to
3232	date, which indicates any payment made for such expenses and
3233	services and by whom.
3234	(d) Documentation of any applicable private or governmental
3235	source of services or reimbursement relative to the impairments.
3236	The information contained in paragraphs (a)-(d) is confidential
3237	and exempt pursuant to the provisions of s. 766.315(5)(b).
3238	(4)(3)The association shall have 45 days from the date of
3239	service of a complete claim, filed pursuant to subsections (1)
3240	and (2), in which to file a response to the petition and to
3241	submit relevant written information relating to the issue of
3242	whether the injury alleged is a birth-related neurological
3243	injury.
3244	(5)(4)Upon receipt of such petition, the Division of
3245	Medical Quality Assurance shall review the information therein
3246	and determine whether it involved conduct by a physician
3247	licensed under chapter 458 or an osteopathic physician licensed
3248	under chapter 459 that is subject to disciplinary action, in
3249	which case the provisions of s. 456.073 shall apply.
3250	(6)(5)Upon receipt of such petition, the Agency for
3251	Health Care Administration shall investigate the claim, and if
3252	it determines that the injury resulted from, or was aggravated
3253	by, a breach of duty on the part of a hospital in violation of
3254	chapter 395, it shall take any such action consistent with its
3255	disciplinary authority as may be appropriate.
3256	(7)(6)Any claim which the association determines to be
3257	compensable may be accepted for compensation, provided that the
3258	acceptance is approved by the administrative law judge to whom
3259	the claim for compensation is assigned.
3260	Section 57. Subsection (1) of section 766.31, Florida
3261	Statutes, is amended to read:
3262	766.31 Administrative law judge awards for birth-related
3263	neurological injuries; notice of award.--
3264	(1) Upon determining that an infant has sustained a birth-
3265	related neurological injury and that obstetrical services were
3266	delivered by a participating physician at the birth, the
3267	administrative law judge shall make an award providing
3268	compensation for the following items relative to such injury:
3269	(a) Actual expenses for medically necessary and reasonable
3270	medical and hospital, habilitative and training, family
3271	residential or custodial care, professional residential, and
3272	custodial care and service, for medically necessary drugs,
3273	special equipment, and facilities, and for related travel.
3274	However, such expenses shall not include:
3275	1. Expenses for items or services that the infant has
3276	received, or is entitled to receive, under the laws of any state
3277	or the Federal Government, except to the extent such exclusion
3278	may be prohibited by federal law.
3279	2. Expenses for items or services that the infant has
3280	received, or is contractually entitled to receive, from any
3281	prepaid health plan, health maintenance organization, or other
3282	private insuring entity.
3283	3. Expenses for which the infant has received
3284	reimbursement, or for which the infant is entitled to receive
3285	reimbursement, under the laws of any state or the Federal
3286	Government, except to the extent such exclusion may be
3287	prohibited by federal law.
3288	4. Expenses for which the infant has received
3289	reimbursement, or for which the infant is contractually entitled
3290	to receive reimbursement, pursuant to the provisions of any
3291	health or sickness insurance policy or other private insurance
3292	program.
3293
3294	Expenses included under this paragraph shall be limited to
3295	reasonable charges prevailing in the same community for similar
3296	treatment of injured persons when such treatment is paid for by
3297	the injured person.
3298	(b)1. Periodic payments of an award to the parents or
3299	legal guardians of the infant found to have sustained a birth-
3300	related neurological injury, which award shall not exceed
3301	$100,000. However, at the discretion of the administrative law
3302	judge, such award may be made in a lump sum.
3303	2. A death benefit for the infant in an amount of $10,000
3304	Payment for funeral expenses not to exceed $1,500.
3305	(c) Reasonable expenses incurred in connection with the
3306	filing of a claim under ss. 766.301-766.316, including
3307	reasonable attorney's fees, which shall be subject to the
3308	approval and award of the administrative law judge. In
3309	determining an award for attorney's fees, the administrative law
3310	judge shall consider the following factors:
3311	1. The time and labor required, the novelty and difficulty
3312	of the questions involved, and the skill requisite to perform
3313	the legal services properly.
3314	2. The fee customarily charged in the locality for similar
3315	legal services.
3316	3. The time limitations imposed by the claimant or the
3317	circumstances.
3318	4. The nature and length of the professional relationship
3319	with the claimant.
3320	5. The experience, reputation, and ability of the lawyer
3321	or lawyers performing services.
3322	6. The contingency or certainty of a fee.
3323	Section 58. Subsection (4) and paragraph (a) of subsection
3324	(5) of section 766.314, Florida Statutes, are amended to read:
3325	766.314 Assessments; plan of operation.--
3326	(4) The following persons and entities shall pay into the
3327	association an initial assessment in accordance with the plan of
3328	operation:
3329	(a) On or before October 1, 1988, each hospital licensed
3330	under chapter 395 shall pay an initial assessment of $50 per
3331	infant delivered in the hospital during the prior calendar year,
3332	as reported to the Agency for Health Care Administration;
3333	provided, however, that a hospital owned or operated by the
3334	state or a county, special taxing district, or other political
3335	subdivision of the state shall not be required to pay the
3336	initial assessment or any assessment required by subsection (5).
3337	The term "infant delivered" includes live births and not
3338	stillbirths, but the term does not include infants delivered by
3339	employees or agents of the board of trustees of a state
3340	university Regentsor those born in a teaching hospital as
3341	defined in s. 408.07. The initial assessment and any assessment
3342	imposed pursuant to subsection (5) may not include any infant
3343	born to a charity patient (as defined by rule of the Agency for
3344	Health Care Administration) or born to a patient for whom the
3345	hospital receives Medicaid reimbursement, if the sum of the
3346	annual charges for charity patients plus the annual Medicaid
3347	contractuals of the hospital exceeds 10 percent of the total
3348	annual gross operating revenues of the hospital. The hospital is
3349	responsible for documenting, to the satisfaction of the
3350	association, the exclusion of any birth from the computation of
3351	the assessment. Upon demonstration of financial need by a
3352	hospital, the association may provide for installment payments
3353	of assessments.
3354	(b)1. On or before October 15, 1988, all physicians
3355	licensed pursuant to chapter 458 or chapter 459 as of October 1,
3356	1988, other than participating physicians, shall be assessed an
3357	initial assessment of $250, which must be paid no later than
3358	December 1, 1988.
3359	2. Any such physician who becomes licensed after September
3360	30, 1988, and before January 1, 1989, shall pay into the
3361	association an initial assessment of $250 upon licensure.
3362	3. Any such physician who becomes licensed on or after
3363	January 1, 1989, shall pay an initial assessment equal to the
3364	most recent assessment made pursuant to this paragraph,
3365	paragraph (5)(a), or paragraph (7)(b).
3366	4. However, if the physician is a physician specified in
3367	this subparagraph, the assessment is not applicable:
3368	a. A resident physician, assistant resident physician, or
3369	intern in an approved postgraduate training program, as defined
3370	by the Board of Medicine or the Board of Osteopathic Medicine by
3371	rule;
3372	b. A retired physician who has withdrawn from the practice
3373	of medicine but who maintains an active license as evidenced by
3374	an affidavit filed with the Department of Health. Prior to
3375	reentering the practice of medicine in this state, a retired
3376	physician as herein defined must notify the Board of Medicine or
3377	the Board of Osteopathic Medicine and pay the appropriate
3378	assessments pursuant to this section;
3379	c. A physician who holds a limited license pursuant to s.
3380	458.317 and who is not being compensated for medical services;
3381	d. A physician who is employed full time by the United
3382	States Department of Veterans Affairs and whose practice is
3383	confined to United States Department of Veterans Affairs
3384	hospitals; or
3385	e. A physician who is a member of the Armed Forces of the
3386	United States and who meets the requirements of s. 456.024.
3387	f. A physician who is employed full time by the State of
3388	Florida and whose practice is confined to state-owned
3389	correctional institutions, a county health department, or state-
3390	owned mental health or developmental services facilities, or who
3391	is employed full time by the Department of Health.
3392	(c) On or before December 1, 1988, each physician licensed
3393	pursuant to chapter 458 or chapter 459 who wishes to participate
3394	in the Florida Birth-Related Neurological Injury Compensation
3395	Plan and who otherwise qualifies as a participating physician
3396	under ss. 766.301-766.316 shall pay an initial assessment of
3397	$5,000. However, if the physician is either a resident
3398	physician, assistant resident physician, or intern in an
3399	approved postgraduate training program, as defined by the Board
3400	of Medicine or the Board of Osteopathic Medicine by rule, and is
3401	supervised in accordance with program requirements established
3402	by the Accreditation Council for Graduate Medical Education or
3403	the American Osteopathic Association by a physician who is
3404	participating in the plan, such resident physician, assistant
3405	resident physician, or intern is deemed to be a participating
3406	physician without the payment of the assessment. Participating
3407	physicians also include any employee of the board of trustees of
3408	a state university Regentswho has paid the assessment required
3409	by this paragraph and paragraph (5)(a), and any certified nurse
3410	midwife supervised by such employee. Participating physicians
3411	include any certified nurse midwife who has paid 50 percent of
3412	the physician assessment required by this paragraph and
3413	paragraph (5)(a) and who is supervised by a participating
3414	physician who has paid the assessment required by this paragraph
3415	and paragraph (5)(a). Supervision for nurse midwives shall
3416	require that the supervising physician will be easily available
3417	and have a prearranged plan of treatment for specified patient
3418	problems which the supervised certified nurse midwife may carry
3419	out in the absence of any complicating features. Any physician
3420	who elects to participate in such plan on or after January 1,
3421	1989, who was not a participating physician at the time of such
3422	election to participate and who otherwise qualifies as a
3423	participating physician under ss. 766.301-766.316 shall pay an
3424	additional initial assessment equal to the most recent
3425	assessment made pursuant to this paragraph, paragraph (5)(a), or
3426	paragraph (7)(b).
3427	(d) Any hospital located in any county with a gross
3428	population in excess of 1.1 million as of January 1, 2003, as
3429	determined by the Agency for Health Care Administration, pursuant
3430	to the Health Care Responsibility Act, may elect to pay the fee
3431	for the participating physician and the certified nurse midwife
3432	if the hospital first determines that the primary motivating
3433	purpose for making such payment is to ensure coverage for the
3434	hospital's patients under the provisions of ss. 766.301-766.316,
3435	provided no hospital may restrict any participating physician or
3436	certified nurse midwife, directly or indirectly, from being on
3437	the staff of hospitals other than the staff of the hospital
3438	making such payment. Each hospital shall file with the
3439	association an affidavit setting forth specifically the reasons
3440	why such hospital elected to make such payment on behalf of each
3441	participating physician and certified nurse midwife. The payments
3442	authorized pursuant to this paragraph shall be in addition to the
3443	assessment set forth in paragraph (5)(a).
3444	(5)(a) Beginning January 1, 1990, the persons and entities
3445	listed in paragraphs (4)(b) and (c), except those persons or
3446	entities who are specifically excluded from said provisions, as
3447	of the date determined in accordance with the plan of operation,
3448	taking into account persons licensed subsequent to the payment
3449	of the initial assessment, shall pay an annual assessment in the
3450	amount equal to the initial assessments provided in paragraphs
3451	(4)(b) and (c). If the payment of such annual assessment by a
3452	participating physician is received by the association by
3453	January 31 of any calendar year, the participating physician
3454	shall qualify as a participating physician for that entire
3455	calendar year. If the payment is received after January 31 of
3456	any calendar year, the participating physician shall only
3457	qualify as a participating physician for that calendar year from
3458	the date the payment was received by the association.On January
3459	1, 1991, and on each January 1 thereafter, the association shall
3460	determine the amount of additional assessments necessary
3461	pursuant to subsection (7), in the manner required by the plan
3462	of operation, subject to any increase determined to be necessary
3463	by the Department of Insurance pursuant to paragraph (7)(b). On
3464	July 1, 1991, and on each July 1 thereafter, the persons and
3465	entities listed in paragraphs (4)(b) and (c), except those
3466	persons or entities who are specifically excluded from said
3467	provisions, shall pay the additional assessments which were
3468	determined on January 1. Beginning January 1, 1990, the entities
3469	listed in paragraph (4)(a), including those licensed on or after
3470	October 1, 1988, shall pay an annual assessment of $50 per
3471	infant delivered during the prior calendar year. The additional
3472	assessments which were determined on January 1, 1991, pursuant
3473	to the provisions of subsection (7) shall not be due and payable
3474	by the entities listed in paragraph (4)(a) until July 1.
3475	Section 59. Subsection (4) is added to section 768.041,
3476	Florida Statutes, to read:
3477	768.041 Release or covenant not to sue.--
3478	(4)(a) At trial pursuant to a suit filed under chapter
3479	766, or at trial pursuant to s. 766.209, if any defendant shows
3480	the court that the plaintiff, or his or her legal
3481	representative, has delivered a written release or covenant not
3482	to sue to any person in partial satisfaction of damages
3483	resulting from the same injury or injuries, the court shall set
3484	off this amount from the amount of any judgment to which the
3485	plaintiff would otherwise be entitled at the time of rendering
3486	judgment, regardless of whether the jury has allocated fault to
3487	the settling defendant at trial.
3488	(b) The amount of the setoff must include all sums
3489	received by the plaintiff, including economic and noneconomic
3490	damages, costs, and attorney's fees, and shall be applied
3491	against the total damages, after reduction for any comparative
3492	negligence of the plaintiff, rather than against the apportioned
3493	damages caused by a particular defendant.
3494	(c) A defendant entering into a settlement agreement with
3495	a plaintiff may assign any right of contribution arising under
3496	section 768.31, as a consequence of having paid more than his or
3497	her proportionate share of the entire liability.
3498	Section 60. Subsection (2) of section 768.13, Florida
3499	Statutes, is amended to read:
3500	768.13 Good Samaritan Act; immunity from civil
3501	liability.--
3502	(2)(a) Any person, including those licensed to practice
3503	medicine, who gratuitously and in good faith renders emergency
3504	care or treatment either in direct response to emergency
3505	situations related to and arising out of a public health
3506	emergency declared pursuant to s. 381.00315, a state of
3507	emergency which has been declared pursuant to s. 252.36 or at
3508	the scene of an emergency outside of a hospital, doctor's
3509	office, or other place having proper medical equipment, without
3510	objection of the injured victim or victims thereof, shall not be
3511	held liable for any civil damages as a result of such care or
3512	treatment or as a result of any act or failure to act in
3513	providing or arranging further medical treatment where the
3514	person acts as an ordinary reasonably prudent person would have
3515	acted under the same or similar circumstances.
3516	(b)1. Any health care provider, including ahospital
3517	licensed under chapter 395, providing emergency services
3518	pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s.
3519	395.401, s. 395.1041, or s. 401.45 any employee of such hospital
3520	working in a clinical area within the facility and providing
3521	patient care, and any person licensed to practice medicine who
3522	in good faith renders medical care or treatment necessitated by
3523	a sudden, unexpected situation or occurrence resulting in a
3524	serious medical condition demanding immediate medical attention,
3525	for which the patient enters the hospital through its emergency
3526	room or trauma center, or necessitated by a public health
3527	emergency declared pursuant to s. 381.00315shall not be held
3528	liable for any civil damages as a result of such medical care or
3529	treatment unless such damages result from providing, or failing
3530	to provide, medical care or treatment under circumstances
3531	demonstrating a reckless disregard for the consequences so as to
3532	affect the life or health of another.
3533	2. The immunity provided by this paragraph applies does
3534	not applyto damages as a result of any act or omission of
3535	providing medical care or treatment, including diagnosis:
3536	a. Which occurs prior to the time afterthe patient is
3537	stabilized and is capable of receiving medical treatment as a
3538	nonemergency patient, unless surgery is required as a result of
3539	the emergency within a reasonable time after the patient is
3540	stabilized, in which case the immunity provided by this
3541	paragraph applies to any act or omission of providing medical
3542	care or treatment which occurs prior to the stabilization of the
3543	patient following the surgery.; or
3544	b. Which is related Unrelatedto the original medical
3545	emergency.
3546	3. For purposes of this paragraph, "reckless disregard" as
3547	it applies to a given health care provider rendering emergency
3548	medical services shall be such conduct that whicha health care
3549	provider knew or should have known, at the time such services
3550	were rendered, created an unreasonable risk of injury so as to
3551	affect the life or health of another, and such risk was
3552	substantially greater than that which is necessary to make the
3553	conduct negligent. would be likely to result in injury so as to
3554	affect the life or health of another, taking into account the
3555	following to the extent they may be present;
3556	a. The extent or serious nature of the circumstances
3557	prevailing.
3558	b. The lack of time or ability to obtain appropriate
3559	consultation.
3560	c. The lack of a prior patient-physician relationship.
3561	d. The inability to obtain an appropriate medical history
3562	of the patient.
3563	e. The time constraints imposed by coexisting emergencies.
3564	4. Every emergency care facility granted immunity under
3565	this paragraph shall accept and treat all emergency care
3566	patients within the operational capacity of such facility
3567	without regard to ability to pay, including patients transferred
3568	from another emergency care facility or other health care
3569	provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of
3570	an emergency care facility to comply with this subparagraph
3571	constitutes grounds for the department to initiate disciplinary
3572	action against the facility pursuant to chapter 395.
3573	(c) Any person who is licensed to practice medicine, while
3574	acting as a staff member or with professional clinical
3575	privileges at a nonprofit medical facility, other than a
3576	hospital licensed under chapter 395, or while performing health
3577	screening services, shall not be held liable for any civil
3578	damages as a result of care or treatment provided gratuitously
3579	in such capacity as a result of any act or failure to act in
3580	such capacity in providing or arranging further medical
3581	treatment, if such person acts as a reasonably prudent person
3582	licensed to practice medicine would have acted under the same or
3583	similar circumstances.
3584	Section 61. Paragraph (b) of subsection (9) of section
3585	768.28, Florida Statutes, is amended, and paragraph (e) is added
3586	to subsection (10) of said section, to read:
3587	768.28 Waiver of sovereign immunity in tort actions;
3588	recovery limits; limitation on attorney fees; statute of
3589	limitations; exclusions; indemnification; risk management
3590	programs.--
3591	(9)
3592	(b) As used in this subsection, the term:
3593	1. "Employee" includes any volunteer firefighter.
3594	2. "Officer, employee, or agent" includes, but is not
3595	limited to, any employee of a medical school or other health
3596	care practitioner training program in a college or university
3597	that enters into an affiliation agreement or contract to allow
3598	its employees to provide patient services to patients treated at
3599	a public statutory teaching hospital or other health care
3600	facility owned by a governmental entity or at other locations
3601	under contract with a governmental entity to provide patient
3602	services to patients at such facility pursuant to paragraph
3603	(10)(e); any faculty member or other health care professional,
3604	practitioner, or ancillary caregiver or employee of a college or
3605	university or its medical school that enters into an affiliation
3606	agreement or a contract to provide comprehensive health care
3607	services with a public hospital or its governmental owner, and
3608	who provides patient services to patients of a public hospital
3609	pursuant to paragraph (10)(e);any health care provider when
3610	providing services pursuant to s. 766.1115;,any member of the
3611	Florida Health Services Corps, as defined in s. 381.0302, who
3612	provides uncompensated care to medically indigent persons
3613	referred by the Department of Health;,and any public defender
3614	or her or his employee or agent, including, among others, an
3615	assistant public defender and an investigator.
3616	(10)
3617	(e) Any not-for-profit college or university with a
3618	medical, dental, or nursing school, or any other academic
3619	program of medical education that is accredited by any
3620	association, agency, council, commission, or accrediting body
3621	recognized by the state as a condition for licensure of its
3622	graduates, that has entered into an affiliation agreement or a
3623	contract to allow its faculty, its health care professionals,
3624	practitioners, and ancillary caregivers, and its employees to
3625	provide patient services to hospital patients treated at a
3626	public hospital shall, along with the employees of such medical
3627	or other school or program, be deemed agents of the governmental
3628	entity responsible for the public hospital for purposes of this
3629	section and shall be immune from liability for torts in the same
3630	manner and to the same extent as the state and its agencies and
3631	subdivisions while providing patient services. For the purpose
3632	of this paragraph, "public hospital" means a statutory teaching
3633	hospital or any other health care facility owned or used by the
3634	state or by a county, municipality, public authority, special
3635	taxing district with health care responsibilities, or other
3636	local governmental entity or at other locations under contract
3637	with the governmental entity. For the purpose of this paragraph,
3638	"patient services" includes comprehensive health care services
3639	as defined in s. 641.19, including related administrative
3640	services to patients of a public hospital and the supervision of
3641	interns, residents, and fellows providing patient services to
3642	patients of a public hospital and access to participation in
3643	medical research protocols. No such employee or agent of a
3644	college or university or their medical schools or other health
3645	care practitioner educational schools or programs shall be
3646	personally liable in tort or named as a party defendant in any
3647	action arising from the provision of services to patients in a
3648	public hospital, except as provided in paragraph (9)(a).
3649	Section 62. Section 768.77, Florida Statutes, is amended
3650	to read:
3651	768.77 Itemized verdict.--
3652	(1) Except as provided in subsection (2),in any action to
3653	which this part applies in which the trier of fact determines
3654	that liability exists on the part of the defendant, the trier of
3655	fact shall, as a part of the verdict, itemize the amounts to be
3656	awarded to the claimant into the following categories of
3657	damages:
3658	(a)(1)Amounts intended to compensate the claimant for
3659	economic losses;
3660	(b)(2)Amounts intended to compensate the claimant for
3661	noneconomic losses; and
3662	(c)(3)Amounts awarded to the claimant for punitive
3663	damages, if applicable.
3664	(2) In any action for damages based on personal injury or
3665	wrongful death arising out of medical malpractice, whether in
3666	tort or contract, to which this part applies in which the trier
3667	of fact determines that liability exists on the part of the
3668	defendant, the trier of fact shall, as a part of the verdict,
3669	itemize the amounts to be awarded to the claimant into the
3670	following categories of damages:
3671	(a) Amounts intended to compensate the claimant for:
3672	1. Past economic losses; and
3673	2. Future economic losses, not reduced to present value,
3674	and the number of years or part thereof which the award is
3675	intended to cover;
3676	(b) Amounts intended to compensate the claimant for:
3677	1. Past noneconomic losses; and
3678	2. Future noneconomic losses and the number of years or
3679	part thereof which the award is intended to cover; and
3680	(c) Amounts awarded to the claimant for punitive damages,
3681	if applicable.
3682	Section 63. Subsection (2) and paragraph (a) of subsection
3683	(1) of section 768.78, Florida Statutes, is amended to read:
3684	768.78 Alternative methods of payment of damage awards.--
3685	(1)(a) In any action to which this part applies in which
3686	the court determines that an award to compensate the claimant
3687	includes future economic losses which exceed $250,000, payment
3688	of amounts intended to compensate the claimant for these losses
3689	shall be made by one of the following means, unless an
3690	alternative method of payment of damages is provided in this
3691	section:
3692	1. The defendant may make a lump-sum payment for all
3693	damages so assessed, with future economic losses and expenses
3694	reduced to present value; or
3695	2. Subject to the provisions of this subsection, the court
3696	shall, at the request of either party, unless the court
3697	determines that manifest injustice would result to any party,
3698	enter a judgment ordering future economic damages, as itemized
3699	pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid in
3700	whole or in part by periodic payments rather than by a lump-sum
3701	payment.
3702	(2)(a) In any action for damages based on personal injury
3703	or wrongful death arising out of medical malpractice, whether in
3704	tort or contract, in which the trier of fact makes an award to
3705	compensate the claimant for future economic or future
3706	noneconomiclosses, payment of amounts intended to compensate
3707	the claimant for these futurelosses shall be made by one of the
3708	following means:
3709	1. The defendant may elect to make a lump-sum payment for
3710	either or both the all damages so assessed, with future economic
3711	and future noneconomic losses after offset for collateral
3712	sources and after having been and expensesreduced to present
3713	value by the court based upon competent, substantial evidence
3714	presented to it by the parties; or
3715	2. The defendant, if determined by the court to be
3716	financially capable or adequately insured, may elect to use
3717	periodic payments to satisfy in whole or in part the assessed
3718	future economic and future noneconomic losses awarded by the
3719	trier of fact after offset for collateral sources for so long as
3720	the claimant lives, but without regard for the number of years
3721	awarded by the trier of fact. The court shall review and approve
3722	the amounts and schedule of the periodic payments proposed by
3723	the defendant, or modify such amounts and schedule, so that they
3724	are fair and equitable to the claimant under all the facts and
3725	circumstances.
3726	(b) A defendant that elects to make periodic payments of
3727	either or both future economic and future noneconomic losses may
3728	contractually obligate a company that is authorized to do
3729	business in this state to make those periodic payments on its
3730	behalf. Upon a joint petition by the defendant and the company
3731	that is contractually obligated to make the periodic payments,
3732	the court shall discharge the defendant from any further
3733	obligations to the claimant for those future economic and future
3734	noneconomic damages that are to be paid by that company by
3735	periodic payments.
3736	(c) Upon notice of a defendant's election to make periodic
3737	payments pursuant hereto, the claimant may request that the
3738	court modify the periodic payments to reasonably provide for
3739	attorney's fees; however, a court may not make any such
3740	modification that would increase the amount the defendant would
3741	have been obligated to pay had no such adjustment been made.
3742	(d) A bond or security may not be required of any
3743	defendant or company that is obligated to make periodic payments
3744	pursuant to this section; however, if, upon petition by a
3745	claimant who is receiving periodic payments pursuant to this
3746	section, the court finds that there is substantial, competent
3747	evidence that the defendant or the company that is responsible
3748	for the periodic payments cannot adequately ensure full and
3749	continuous payments thereof, and that doing so is in the best
3750	interest of the claimant, the court may require the defendant or
3751	the company that is obligated to make the periodic payments to
3752	provide such additional financial security as the court
3753	determines to be reasonable under the circumstances.
3754	(e) The provision for the periodic payments must specify
3755	the recipient or recipients of the payments, the address to
3756	which the payments are to be delivered, and the amount and
3757	intervals of the payments; however, in any one year, any payment
3758	or payments may not exceed the amount intended by the trier of
3759	fact to be awarded each year, offset for collateral sources. A
3760	periodic payment may not be accelerated, deferred, increased, or
3761	decreased, except by court order based upon the mutual consent
3762	and agreement of the claimant, the defendant, whether or not
3763	discharged, and the company that is obligated to make the
3764	periodic payments, if any; nor may the claimant sell, mortgage,
3765	encumber, or anticipate the periodic payments or any part
3766	thereof, by assignment or otherwise.
3767	(f) For purposes of this section, the term "periodic
3768	payment" means the payment of money or delivery of other
3769	property to the claimant at regular intervals.
3770	(g) It is the intent of the Legislature to authorize and
3771	encourage the payment of awards for future economic and future
3772	noneconomic losses by periodic payments to meet the continuing
3773	needs of the patient while eliminating the misdirection of such
3774	funds for purposes not intended by the trier of fact court
3775	shall, at the request of either party, enter a judgment ordering
3776	future economic damages, as itemized pursuant to s. 768.77, to
3777	be paid by periodic payments rather than lump sum.
3778	(b) For purposes of this subsection, "periodic payment"
3779	means provision for the spreading of future economic damage
3780	payments, in whole or in part, over a period of time, as
3781	follows:
3782	1. A specific finding of the dollar amount of periodic
3783	payments which will compensate for these future damages after
3784	offset for collateral sources shall be made. The total dollar
3785	amount of the periodic payments shall equal the dollar amount of
3786	all such future damages before any reduction to present value.
3787	2. The defendant shall be required to post a bond or
3788	security or otherwise to assure full payment of these damages
3789	awarded. A bond is not adequate unless it is written by a
3790	company authorized to do business in this state and is rated A+
3791	by Best's. If the defendant is unable to adequately assure full
3792	payment of the damages, all damages, reduced to present value,
3793	shall be paid to the claimant in a lump sum. No bond may be
3794	canceled or be subject to cancellation unless at least 60 days'
3795	advance written notice is filed with the court and the claimant.
3796	Upon termination of periodic payments, the security, or so much
3797	as remains, shall be returned to the defendant.
3798	3. The provision for payment of future damages by periodic
3799	payments shall specify the recipient or recipients of the
3800	payments, the dollar amounts of the payments, the interval
3801	between payments, and the number of payments or the period of
3802	time over which payments shall be made.
3803	Section 64. Subsection (1) of section 766.112, Florida
3804	Statutes, is amended to read:
3805	766.112 Comparative fault.--
3806	(1) Notwithstanding any provision of anything inlaw to
3807	the contrary, in an action for damages for personal injury or
3808	wrongful death arising out of medical malpractice, whether in
3809	contract or tort, when an apportionment of damages pursuant to
3810	this section is attributed to a teaching hospital as defined in
3811	s. 408.07, the court shall enter judgment against the teaching
3812	hospital on the basis of each suchparty's percentage of fault
3813	and not on the basis of the doctrine of joint and several
3814	liability.
3815	Section 65. Subsection (5) of section 768.81, Florida
3816	Statutes, is amended to read:
3817	768.81 Comparative fault.--
3818	(5) Notwithstanding any provision of anything inlaw to
3819	the contrary, in an action for damages for personal injury or
3820	wrongful death arising out of medical malpractice, whether in
3821	contract or tort, when an apportionment of damages pursuant to
3822	this section is attributed to a teaching hospital as defined in
3823	s. 408.07, the court shall enter judgment against the teaching
3824	hospital on the basis of each suchparty's percentage of fault
3825	and not on the basis of the doctrine of joint and several
3826	liability.
3827	Section 66. Section 1004.08, Florida Statutes, is created
3828	to read:
3829	1004.08 Patient safety instructional requirements.--Every
3830	public school, college, and university that offers degrees in
3831	medicine, nursing, and allied health shall include in the
3832	curricula applicable to such degrees material on patient safety,
3833	including patient safety improvement. Materials shall include,
3834	but need not be limited to, effective communication and
3835	teamwork; epidemiology of patient injuries and medical errors;
3836	vigilance, attention, and fatigue; checklists and inspections;
3837	automation and technological and computer support; psychological
3838	factors in human error; and reporting systems.
3839	Section 67. Section 1005.07, Florida Statutes, is created
3840	to read:
3841	1005.07 Patient safety instructional requirements.--Every
3842	nonpublic school, college, and university that offers degrees in
3843	medicine, nursing, and allied health shall include in the
3844	curricula applicable to such degrees material on patient safety,
3845	including patient safety improvement. Materials shall include,
3846	but need not be limited to, effective communication and
3847	teamwork; epidemiology of patient injuries and medical errors;
3848	vigilance, attention, and fatigue; checklists and inspections;
3849	automation and technological and computer support; psychological
3850	factors in human error; and reporting systems.
3851	Section 68. Paragraph (c) of subsection (2) of section
3852	1006.20, Florida Statutes, as amended by section 2 of chapter
3853	2003-129, Laws of Florida, is amended to read:
3854	1006.20 Athletics in public K-12 schools.--
3855	(2) ADOPTION OF BYLAWS.--
3856	(c) The organization shall adopt bylaws that require all
3857	students participating in interscholastic athletic competition
3858	or who are candidates for an interscholastic athletic team to
3859	satisfactorily pass a medical evaluation each year prior to
3860	participating in interscholastic athletic competition or
3861	engaging in any practice, tryout, workout, or other physical
3862	activity associated with the student's candidacy for an
3863	interscholastic athletic team. Such medical evaluation can only
3864	be administered by a practitioner licensed under the provisions
3865	of chapter 458, chapter 459, chapter 460, or s. 464.012, and in
3866	good standing with the practitioner's regulatory board. The
3867	bylaws shall establish requirements for eliciting a student's
3868	medical history and performing the medical evaluation required
3869	under this paragraph, which shall include a physical assessment
3870	of the student's physical capabilities to participate in
3871	interscholastic athletic competition as contained in a uniform
3872	preparticipation physical evaluation and historyform. The
3873	evaluation form shall incorporate the recommendations of the
3874	American Heart Association for participation cardiovascular
3875	screening and shallprovide a place for the signature of the
3876	practitioner performing the evaluation with an attestation that
3877	each examination procedure listed on the form was performed by
3878	the practitioner or by someone under the direct supervision of
3879	the practitioner. The form shall also contain a place for the
3880	practitioner to indicate if a referral to another practitioner
3881	was made in lieu of completion of a certain examination
3882	procedure. The form shall provide a place for the practitioner
3883	to whom the student was referred to complete the remaining
3884	sections and attest to that portion of the examination. The
3885	preparticipation physical evaluation form shall advise students
3886	to complete a cardiovascular assessment and shall include
3887	information concerning alternative cardiovascular evaluation and
3888	diagnostic tests. Practitioners administering medical
3889	evaluations pursuant to this subsection must, at a minimum,
3890	solicit all information required by, and perform a physical
3891	assessment according to, the uniform preparticipation form
3892	referred to in this paragraph and must certify, based on the
3893	information provided and the physical assessment, that the
3894	student is physically capable of participating in
3895	interscholastic athletic competition. If the practitioner
3896	determines that there are any abnormal findings in the
3897	cardiovascular system, the student may not participate until a
3898	further cardiovascular assessment, which may include an EKG, is
3899	performed which indicates that the student is physically capable
3900	of participating in interscholastic athletic competition.
3901	Results of such medical evaluation must be provided to the
3902	school. No student shall be eligible to participate in any
3903	interscholastic athletic competition or engage in any practice,
3904	tryout, workout, or other physical activity associated with the
3905	student's candidacy for an interscholastic athletic team until
3906	the results of the medical evaluation clearing the student for
3907	participation have hasbeen received and approved by the school.
3908	Section 69. Patient safety data privilege.--
3909	(1) As used in this section, the term:
3910	(a) "Patient safety data" means reports made to patient
3911	safety organizations, including all health care data,
3912	interviews, memoranda, analyses, root cause analyses, products
3913	of quality assurance or quality improvement processes,
3914	corrective action plans, or information collected or created by
3915	a health care facility licensed under chapter 395 or a health
3916	care practitioner as defined in section 456.001(4), Florida
3917	Statutes, as a result of an occurrence related to the provision
3918	of health care services which exacerbates an existing medical
3919	condition or could result in injury, illness, or death.
3920	(b) "Patient safety organization" means any organization,
3921	group, or other entity that collects and analyzes patient safety
3922	data for the purpose of improving patient safety and health care
3923	outcomes and that is independent and not under the control of
3924	the entity that reports patient safety data.
3925	(2) Patient safety data shall not be subject to discovery
3926	or introduction into evidence in any civil or administrative
3927	action. However, information, documents, or records otherwise
3928	available from original sources are not immune from discovery or
3929	use in any civil or administrative action merely because they
3930	were also collected, analyzed, or presented to a patient safety
3931	organization. Any person who testifies before a patient safety
3932	organization or who is a member of such a group may not be
3933	prevented from testifying as to matters within his or her
3934	knowledge, but he or she may not be asked about his or her
3935	testimony before a patient safety organization or the opinions
3936	formed by him or her as a result of the hearings.
3937	(3) Unless otherwise provided by law, a patient safety
3938	organization shall promptly remove all patient-identifying
3939	information after receipt of a complete patient safety data
3940	report unless such organization is otherwise permitted by state
3941	or federal law to maintain such information. Patient safety
3942	organizations shall maintain the confidentiality of all patient-
3943	identifying information and may not disseminate such
3944	information, except as permitted by state or federal law.
3945	(4) The exchange of patient safety data among health care
3946	facilities licensed under chapter 395 or health care
3947	practitioners as defined in section 456.001 (4), Florida
3948	Statutes, or patient safety organizations which does not
3949	identify any patient shall not constitute a waiver of any
3950	privilege established in this section.
3951	(5) Reports of patient safety data to patient safety
3952	organizations does not abrogate obligations to make reports to
3953	the Department of Health, the Agency for Health Care
3954	Administration, or other state or federal regulatory agencies.
3955	(6) An employer may not take retaliatory action against an
3956	employee who in good faith makes a report of patient safety data
3957	to a patient safety organization.
3958	Section 70. The Division of Administrative Hearings shall
3959	designate at least two administrative law judges who shall
3960	specifically preside over actions involving the Department of
3961	Health or boards within the Department of Health. Each
3962	designated administrative law judge must be a member of The
3963	Florida Bar in good standing and must have legal, managerial, or
3964	clinical experience in issues related to health care or have
3965	attained board certification in health care law from The Florida
3966	Bar.
3967	Section 71. (1) The Department of Health shall study and
3968	report to the Legislature as to whether medical review panels
3969	should be included as part of the presuit process in medical
3970	malpractice litigation. Medical review panels review a medical
3971	malpractice case during the presuit process and make judgments
3972	on the merits of the case based on established standards of care
3973	with the intent of reducing the number of frivolous claims. The
3974	panel's report could be used as admissible evidence at trial or
3975	for other purposes. The department's report should address:
3976	(a) Historical use of medical review panels and similar
3977	pretrial programs in this state, including the mediation panels
3978	created by chapter 75-9, Laws of Florida.
3979	(b) Constitutional issues relating to the use of medical
3980	review panels.
3981	(c) The use of medical review panels or similar programs
3982	in other states.
3983	(d) Whether medical review panels or similar panels should
3984	be created for use during the presuit process.
3985	(e) Other recommendations and information that the
3986	department deems appropriate.
3987	(f) In submitting its report with respect to (a)-(c), the
3988	Department should identify at a minimum:
3989	1. The percentage of medical malpractice claims submitted
3990	to the panels during the time period the panels were in
3991	existence.
3992	2. The percentage of claims that were settled while the
3993	panels were in existence and the percentage of claims that were
3994	settled in the 3 years prior to the establishment of such panels
3995	or, for each panel which no longer exists, 3 years after the
3996	dissolution of such panels.
3997	3. In those state where panels have been discontinued,
3998	whether additional safeguards have been implemented to avoid the
3999	filing of frivolous lawsuits and what those additional
4000	safeguards are.
4001	4. How the rates for medical malpractice insurance in
4002	states utilizing such panels compares with the rates in states
4003	not utilizing such panels.
4004	5. Whether, and to what extent, a finding by a panel is
4005	subject to review and the burden of proof required to overcome a
4006	finding by the panel.
4007	(2) If the department finds that medical review panels or
4008	a similar structure should be created in this state, it shall
4009	include draft legislation to implement its recommendations in
4010	its report.
4011	(3) The department shall submit its report to the Speaker
4012	of the House of Representatives and the President of the Senate
4013	no later than December 31, 2003.
4014	Section 72. (1) The Agency for Health Care Administration
4015	shall conduct or contract for a study to determine what
4016	information is most feasible to provide to the public comparing
4017	state-licensed hospitals on certain inpatient quality indicators
4018	developed by the federal Agency for Healthcare Research and
4019	Quality. Such indicators shall be designed to identify
4020	information about specific procedures performed in hospitals for
4021	which there is strong evidence of a link to quality of care. The
4022	Agency for Health Care Administration or the study contractor
4023	shall refer to the hospital quality reports published in New
4024	York and Texas as guides during the evaluation.
4025	(2) The following concepts shall be specifically addressed
4026	in the study report:
4027	(a) Whether hospital discharge data about services can be
4028	translated into understandable and meaningful information for
4029	the public.
4030	(b) Whether the following measures are useful consumer
4031	guides relating to care provided in state-licensed hospitals:
4032	1. Inpatient mortality for medical conditions;
4033	2. Inpatient mortality for procedures;
4034	3. Utilization of procedures for which there are questions
4035	of overuse, underuse, or misuse; and
4036	4. Volume of procedures for which there is evidence that a
4037	higher volume of procedures is associated with lower mortality.
4038	(c) Whether there are quality indicators that are
4039	particularly useful relative to the state's unique demographics.
4040	(d) Whether all hospitals should be included in the
4041	comparison.
4042	(e) The criteria for comparison.
4043	(f) Whether comparisons are best within metropolitan
4044	statistical areas or some other geographic configuration.
4045	(g) Identify several websites to which such a report
4046	should be published to achieve the broadest dissemination of the
4047	information.
4048	(3) The Agency for Health Care Administration shall
4049	consider the input of all interested parties, including
4050	hospitals, physicians, consumer organizations, and patients, and
4051	submit the final report to the Governor and the presiding
4052	officers of the Legislature by January 1, 2004.
4053	Section 73. Comprehensive study and report on the creation
4054	of a Patient Safety Authority.--
4055	(1) The Agency for Health Care Administration, in
4056	consultation with the Department of Health, is directed to study
4057	the need for, and the implementation requirements of,
4058	establishing a Patient Safety Authority. The authority would be
4059	responsible for performing activities and functions designed to
4060	improve patient safety and the quality of care delivered by
4061	health care facilities and health care practitioners.
4062	(2) In undertaking its study, the agency shall examine and
4063	evaluate a Patient Safety Authority that would, either directly
4064	or by contract:
4065	(a) Analyze information concerning adverse incidents
4066	reported to the Agency for Health Care Administration pursuant
4067	to s. 395.0197, Florida Statutes, for the purpose of
4068	recommending changes in practices and procedures that may be
4069	implemented by health care practitioners and health care
4070	facilities to prevent future adverse incidents.
4071	(b) Collect, analyze, and evaluate patient safety data
4072	submitted voluntarily by a health care practitioner or health
4073	care facility. The authority would communicate to health care
4074	practitioners and health care facilities changes in practices
4075	and procedures that may be implemented for the purpose of
4076	improving patient safety and preventing future patient safety
4077	events from resulting in serious injury or death. At a minimum,
4078	the authority would:
4079	1. Be designed and operated by an individual or entity
4080	with demonstrated expertise in health care quality data and
4081	systems analysis, health information management, systems
4082	thinking and analysis, human factors analysis, and
4083	identification of latent and active errors.
4084	2. Include procedures for ensuring its confidentiality,
4085	timeliness, and independence.
4086	(c) Foster the development of a statewide electronic
4087	infrastructure, which would be implemented in phases over a
4088	multiyear period, that is designed to improve patient care and
4089	the delivery and quality of health care services by health care
4090	facilities and practitioners. The electronic infrastructure
4091	would be a secure platform for communication and the sharing of
4092	clinical and other data, such as business data, among providers
4093	and between patients and providers. The electronic
4094	infrastructure would include a core electronic medical record.
4095	Health care providers would have access to individual electronic
4096	medical records, subject to the consent of the individual. The
4097	right, if any, of other entities, including health insurers and
4098	researchers, to access the records would need further
4099	examination and evaluation by the agency.
4100	(d)1. As a statewide goal of reducing the occurrence of
4101	medication error, inventory hospitals to determine the current
4102	status of implementation of computerized physician medication
4103	ordering systems, barcode point of care systems, or other
4104	technological patient safety implementation, and recommend a
4105	plan for expediting implementation statewide or, in hospitals
4106	where the agency determines that implementation of such systems
4107	is not practicable, alternative methods to reduce medication
4108	errors. The agency shall identify in its plan any barriers to
4109	statewide implementation and shall include recommendations to
4110	the Legislature of statutory changes that may be necessary to
4111	eliminate those barriers. The agency will review newly developed
4112	plans for compliance with statewide initiatives and to determine
4113	both the commitment of the health care facility staff and the
4114	capability of the facility to successfully coordinate and
4115	implement these plans, especially from a technological
4116	perspective.
4117	2. “Medication error” is any preventable event that may
4118	cause or lead to inappropriate medication use or patient harm
4119	while the medication is in the control of the health care
4120	professional, patient, or consumer. Such events may be related
4121	to professional practice, health care products, health care
4122	procedures, and health care systems, each of which may include
4123	the prescribing of medications and order communications; product
4124	labeling; product packaging; the nomenclature, compounding,
4125	dispensing, distribution, administration, and use of
4126	medications; and education and monitoring related thereto.
4127	(e) Implement paragraphs (c) and (d) as a demonstration
4128	project for Medicaid recipients.
4129	(f) Identify best practices and share this information
4130	with health care providers.
4131	(g) Engage in other activities that improve health care
4132	quality, improve the diagnosis and treatment of diseases and
4133	medical conditions, increase the efficiency of the delivery of
4134	health care services, increase administrative efficiency, and
4135	increase access to quality health care services.
4136	(3) The agency shall also consider ways in which a Patient
4137	Safety Authority would be able to facilitate the development of
4138	no-fault demonstration projects as means to reduce and prevent
4139	medical errors and promote patient safety.
4140	(4) The agency shall seek information and advice from and
4141	consult with hospitals, physicians, other health care providers,
4142	attorneys, consumers, and individuals involved with and
4143	knowledgeable about patient safety and quality-of-care
4144	initiatives.
4145	(5) In evaluating the need for, and the operation of, a
4146	Patient Safety Authority, the agency shall determine the costs
4147	of implementing and administering an authority and suggest
4148	funding sources and mechanisms.
4149	(6) The agency shall complete its study and issue a report
4150	to the Legislature by February 1, 2004. In its report, the
4151	agency shall include specific findings, recommendations, and
4152	proposed legislation.
4153	Section 74. The Office of Program Policy Analysis and
4154	Government Accountability shall complete a study of the
4155	eligibility requirements for a birth to be covered under the
4156	Florida Birth-Related Neurological Injury Compensation
4157	Association and submit a report to the Legislature by January 1,
4158	2004, recommending whether the statutory criteria for a claim to
4159	qualify for referral to the Florida Birth-Related Neurological
4160	Injury Compensation Association under s. 766.302, Florida
4161	Statutes, should be modified.
4162	Section 75. Civil immunity for members of or consultants
4163	to certain boards, committees, or other entities.--
4164	(1) Each member of, or health care professional consultant
4165	to, any committee, board, group, commission, or other entity
4166	shall be immune from civil liability for any act, decision,
4167	omission, or utterance done or made in performance of his or her
4168	duties while serving as a member of or consultant to such
4169	committee, board, group, commission, or other entity established
4170	and operated for purposes of quality improvement review,
4171	evaluation, and planning in a state-licensed health care
4172	facility. Such entities must function primarily to review,
4173	evaluate, or make recommendations relating to:
4174	(a) The duration of patient stays in health care
4175	facilities;
4176	(b) The professional services furnished with respect to
4177	the medical, dental, psychological, podiatric, chiropractic, or
4178	optometric necessity for such services;
4179	(c) The purpose of promoting the most efficient use of
4180	available health care facilities and services;
4181	(d) The adequacy or quality of professional services;
4182	(e) The competency and qualifications for professional
4183	staff privileges;
4184	(f) The reasonableness or appropriateness of charges made
4185	by or on behalf of health care facilities; or
4186	(g) Patient safety, including entering into contracts with
4187	patient safety organizations.
4188	(2) Such committee, board, group, commission, or other
4189	entity must be established in accordance with state law or in
4190	accordance with requirements of the Joint Commission on
4191	Accreditation of Healthcare Organizations, established and duly
4192	constituted by one or more public or licensed private hospitals
4193	or behavioral health agencies, or established by a governmental
4194	agency. To be protected by this section, the act, decision,
4195	omission, or utterance may not be made or done in bad faith or
4196	with malicious intent.
4197	Section 76. The Office of Program Policy Analysis and
4198	Government Accountability and the Office of the Auditor General
4199	must jointly conduct an audit of the Department of Health's
4200	health care practitioner disciplinary process and closed claims
4201	that are filed with the department under section 627.912,
4202	Florida Statutes. The Office of Program Policy Analysis and
4203	Government Accountability and the Office of the Auditor General
4204	shall submit a report to the Legislature by January 1, 2005.
4205	Section 77. No later than September 1, 2003, the
4206	Department of Health shall convene a workgroup to study the
4207	current health care practitioner disciplinary process. The
4208	workgroup shall include a representative of the Administrative
4209	Law section of The Florida Bar, a representative of the Health
4210	Law section of The Florida Bar, a representative of the Florida
4211	Medical Association, a representative of the Florida Osteopathic
4212	Medical Association, a representative of the Florida Dental
4213	Association, a member of the Florida Board of Medicine who has
4214	served on the probable cause panel, a member of the Board of
4215	Osteopathic Medicine who has served on the probable cause panel,
4216	and a member of the Board of Dentistry who has served on the
4217	probable cause panel. The workgroup shall also include one
4218	consumer member of the Board of Medicine. The Department of
4219	Health shall present the findings and recommendations to the
4220	Governor, the President of the Senate, and the Speaker of the
4221	House of Representatives no later than January 1, 2004. The
4222	sponsoring organizations shall assume the costs of their
4223	representatives.
4224	Section 78. The Legislature finds and declares it to be of
4225	vital importance that emergency services and care be provided by
4226	hospitals, physicians, and emergency medical services providers
4227	to every person in need of such care. The Legislature finds that
4228	providers of emergency medical services and care are critical
4229	elements in responding to disaster and emergency situations that
4230	might affect our local communities, state, and country. The
4231	Legislature recognizes the importance of maintaining a viable
4232	system of providing for the emergency medical needs of residents
4233	of this state and visitors to this state. The Legislature and
4234	the Federal Government have required such providers of emergency
4235	medical services and care to provide emergency services and care
4236	to all persons who present themselves to hospitals seeking such
4237	care. The Legislature has further mandated that prehospital
4238	emergency medical treatment or transport may not be denied by
4239	emergency medical services providers to persons who have or are
4240	likely to have an emergency medical condition. Such governmental
4241	requirements have imposed a unilateral obligation for providers
4242	of emergency medical services and care to provide services to
4243	all persons seeking emergency care without ensuring payment or
4244	other consideration for provision of such care. The Legislature
4245	also recognizes that providers of emergency medical services and
4246	care provide a significant amount of uncompensated emergency
4247	medical care in furtherance of such governmental interest. A
4248	significant proportion of the residents of this state who are
4249	uninsured or are Medicaid or Medicare recipients are unable to
4250	access needed health care because health care providers fear the
4251	increased risk of medical malpractice liability. Such patients,
4252	in order to obtain medical care, are frequently forced to seek
4253	care through providers of emergency medical services and care.
4254	Providers of emergency medical services and care in this state
4255	have reported significant problems with both the availability
4256	and affordability of professional liability coverage. Medical
4257	malpractice liability insurance premiums have increased
4258	dramatically and a number of insurers have ceased providing
4259	medical malpractice coverage for emergency medical services and
4260	care in this state. This results in a functional unavailability
4261	of malpractice coverage for some providers of emergency medical
4262	services and care. The Legislature further finds that certain
4263	specialist physicians have resigned from serving on hospital
4264	staffs or have otherwise declined to provide on-call coverage to
4265	hospital emergency departments due to increased medical
4266	malpractice liability exposure created by treating such
4267	emergency department patients. It is the intent of the
4268	Legislature that hospitals, emergency medical services
4269	providers, and physicians be able to ensure that patients who
4270	might need emergency medical services treatment or
4271	transportation or who present themselves to hospitals for
4272	emergency medical services and care have access to such needed
4273	services.
4274	Section 79. Legislative intent.--The Legislature declares
4275	that reducing the burden of proof in medical disciplinary cases
4276	to the level of greater weight of the evidence is necessary to
4277	protect the health, safety, and welfare of medical patients in
4278	the state. The Legislature declares that there is an
4279	overwhelming public necessity to protect medical patients which
4280	far overrides any purported property interest in a license to
4281	practice in this state held by a licensed health care
4282	practitioner. Furthermore, the Legislature declares that it is a
4283	privilege, not a right, to practice as a health care
4284	professional in this state and that disciplinary action relating
4285	to scope of practice issues in particular is remedial and
4286	protective, not penal, in nature. The Legislature specifically
4287	reverses case law to the contrary.
4288	Section 80. For the purpose of incorporating the amendment
4289	to section 624.155, Florida Statutes, in references thereto,
4290	subsection (1) of section 624.488, Florida Statutes, is
4291	reenacted to read:
4292	624.488 Applicability of related laws.--In addition to
4293	other provisions of the code cited in ss. 624.460-624.488:
4294	(1) Sections 624.155, 624.308, 624.414, 624.415, and
4295	624.416(4); ss. 624.418-624.4211, except s. 624.418(2)(f); and
4296	s. 624.501;
4297
4298	apply to self-insurance funds. Only those sections of the code
4299	that are expressly and specifically cited in ss. 624.460-624.489
4300	apply to self-insurance funds.
4301	Section 81. For the purpose of incorporating the amendment
4302	to section 624.155, Florida Statutes, in references thereto,
4303	subsection (1) of section 628.6016, Florida Statutes, is
4304	reenacted to read:
4305	628.6016 Applicability of related laws.--In addition to
4306	other provisions of the code cited in ss. 628.6011-628.6018:
4307	(1) Sections 624.155, 624.308, 624.414, 624.415, and
4308	624.416(4); ss. 624.418-624.4211, except s. 624.418(2)(f); ss.
4309	624.464, 624.468(1), (2), (4), (6), and (11), 624.472, 624.473,
4310	624.474, 624.480, 624.482, 624.484, 624.486, and 624.501;
4311
4312	apply to assessable mutual insurers; however, ss. 628.255,
4313	628.411, and 628.421 do not apply. No section of the code not
4314	expressly and specifically cited in ss. 628.6011-628.6018
4315	applies to assessable mutual insurers. The term "assessable
4316	mutual insurer" shall be substituted for the term "commercial
4317	self-insurer" as appropriate.
4318	Section 82. For the purpose of incorporating the amendment
4319	to section 624.155, Florida Statutes, in references thereto,
4320	Subsection (11) of section 631.717, Florida Statutes, is
4321	reenacted to read:
4322	631.717 Powers and duties of the association.--
4323	(11) The association shall not be liable for any civil
4324	action under s. 624.155 arising from any acts alleged to have
4325	been committed by a member insurer prior to its liquidation;
4326	however, this subsection does not affect the association's
4327	obligation to pay valid claims presented to it.
4328	Section 83. If any provision of this act or the
4329	application thereof to any person or circumstance is held
4330	invalid, the invalidity does not affect other provisions or
4331	applications of the act which can be given effect without the
4332	invalid provision or application, and to this end the provisions
4333	of this act are declared severable.
4334	Section 84. If any law amended by this act was also
4335	amended by a law enacted at the 2003 Regular Session, the 2003
4336	Special Session A, or the 2003 Special Session B of the
4337	Legislature, such laws shall be construed as if they had been
4338	enacted at the same session of the Legislature, and full effect
4339	shall be given to each if possible.
4340	Section 85. This act shall take effect upon becoming a law
4341	and shall apply to any cause of action accruing under chapter
4342	766, Florida Statutes, after that date, unless otherwise
4343	provided herein, except that the amendments to section 624.155,
4344	Florida Statutes, provided in this act shall apply to any
4345	medical incident for which a notice of intent to initiate
4346	litigation is mailed on or after the effective date of this act.