HB 0001D 2003
1	A bill to be entitled
2	An act relating to medical incidents; providing
3	legislative findings; amending s. 391.025, F.S.; providing
4	that the Children's Medical Services Act applies to
5	infants receiving compensation under the Florida Birth-
6	Related Neurological Injury Compensation Plan; amending s.
7	391.029, F.S.; providing that infants receiving
8	compensation under the Florida Birth-Related Neurological
9	Injury Compensation Plan are eligible for the Children's
10	Medical Services program; requiring the plan to reimburse
11	the program for certain costs; creating s. 395.0056, F.S.;
12	requiring the Agency for Health Care Administration to
13	review complaints submitted if the defendant is a
14	hospital; amending s. 395.0191, F.S.; deleting requirement
15	that persons act in good faith to avoid liability or
16	discipline for their actions regarding the awarding of
17	staff membership or clinical privileges; amending s.
18	395.0197, F.S.; revising provisions relating to internal
19	risk management programs; requiring a system for
20	notification of patients that are the subject of an
21	adverse incident; requiring additional reports to and by
22	the Department of Health and the Agency for Health Care
23	Administration; repealing s. 395.0198, F.S., relating to
24	public records exemptions for notification of adverse
25	incidents; creating s. 395.1012, F.S.; requiring
26	hospitals, ambulatory surgical centers, and mobile
27	surgical facilities to establish patient safety plans,
28	officers, and committees; creating s. 395.1051, F.S.;
29	requiring certain facilities to notify patients about
30	adverse incidents under specified conditions; amending s.
31	456.013, F.S.; requiring certain information to be
32	included in courses for certain health care practitioners
33	relating to prevention of medical errors; amending s.
34	456.025, F.S.; eliminating certain restrictions on the
35	setting of licensure renewal fees for health care
36	practitioners; amending s. 456.039, F.S.; providing
37	additional information required to be furnished to the
38	Department of Health for licensure purposes; amending s.
39	456.041, F.S., relating to practitioner profiles;
40	requiring the Department of Health to compile certain
41	specified information in a practitioner profile;
42	establishing a timeframe for certain health care
43	practitioners to report specified information; providing
44	for disciplinary action and a fine for untimely
45	submissions; deleting provisions that provide that a
46	profile need not indicate whether a criminal history check
47	was performed to corroborate information in the profile;
48	authorizing the department or regulatory board to
49	investigate any information received; requiring the
50	department to provide an easy-to-read narrative
51	explanation concerning final disciplinary action taken
52	against a practitioner; requiring a hyperlink to each
53	final order on the department's website which provides
54	information about disciplinary actions; requiring the
55	department to provide a hyperlink to certain comparison
56	reports pertaining to claims experience; requiring the
57	department to include the date that a reported
58	disciplinary action was taken by a licensed facility and a
59	characterization of the practitioner's conduct that
60	resulted in the action; deleting provisions requiring the
61	department to consult with a regulatory board before
62	including certain information in a health care
63	practitioner's profile; providing for a penalty for
64	failure to comply with the timeframe for verifying and
65	correcting a practitioner profile; requiring the
66	department to add a statement to a practitioner profile
67	when the profile information has not been verified by the
68	practitioner; requiring the department to provide, in the
69	practitioner profile, an explanation of disciplinary
70	action taken and the reason for sanctions imposed;
71	requiring the department to include a hyperlink to a
72	practitioner's website when requested; providing that
73	practitioners licensed under ch. 458 or ch. 459, F.S.,
74	shall have claim information concerning an indemnity
75	payment greater than a specified amount posted in the
76	practitioner profile; amending s. 456.042, F.S.; providing
77	for the update of practitioner profiles; designating a
78	timeframe within which a practitioner must submit new
79	information to update his or her profile; amending s.
80	456.049, F.S.; revising requirements for the reporting of
81	claims; providing that such reports shall be made to the
82	Office of Insurance Regulation rather than the Department
83	of Health; amending s. 456.051, F.S.; establishing the
84	responsibility of the Department of Health to provide
85	reports of professional liability actions and
86	bankruptcies; requiring the department to include such
87	reports in a practitioner's profile within a specified
88	period; deleting an obsolete cross reference; amending s.
89	456.057, F.S.; authorizing the Department of Health to
90	utilize subpoenas to obtain patient records without
91	patients' consent under certain circumstances; creating s.
92	456.0575, F.S.; requiring licensed health care
93	practitioners to notify patients about adverse incidents
94	under certain conditions; amending s. 456.072, F.S.;
95	providing for determining the amount of any costs to be
96	assessed in a disciplinary proceeding; amending s.
97	456.073, F.S.; authorizing the Department of Health to
98	investigate certain paid claims made on behalf of
99	practitioners licensed under ch. 458 or ch. 459, F.S.;
100	extending the time for the Department of Health to refer a
101	request for an administrative hearing; providing that
102	certain findings are not findings of fact and reserving
103	such determinations to the regulatory boards or the
104	Department of Health when there is no board; eliminating
105	the requirement for certain formal hearings; amending s.
106	456.077, F.S.; revising provisions relating to designation
107	of certain citation violations; amending s. 456.078, F.S.;
108	revising provisions relating to designation of certain
109	mediation offenses; amending s. 458.320, F.S., relating to
110	financial responsibility requirements for medical
111	physicians; requiring maintenance of financial
112	responsibility as a condition of licensure of physicians;
113	providing for payment of any outstanding judgments or
114	settlements pending at the time a physician is suspended
115	by the Department of Health; requiring the department to
116	suspend the license of a medical physician who has not
117	paid, up to the amounts required by any applicable
118	financial responsibility provision, any outstanding
119	judgment, arbitration award, other order, or settlement;
120	prohibiting the expenditure of certain funds for defense
121	expenditures; correcting a cross reference; amending s.
122	458.331, F.S., relating to grounds for disciplinary action
123	against a physician; redefining the term "repeated
124	malpractice"; revising the minimum amount of a claim
125	against a licensee which will trigger a departmental
126	investigation; requiring administrative orders issued by
127	an administrative law judge or the Board of Medicine for
128	certain practice violations by physicians to specify
129	certain information; conforming terminology; creating s.
130	458.3311, F.S.; establishing emergency procedures for
131	disciplinary actions; amending s. 459.0085, F.S., relating
132	to financial responsibility requirements for osteopathic
133	physicians; requiring maintenance of financial
134	responsibility as a condition of licensure of osteopathic
135	physicians; providing for payment of any outstanding
136	judgments or settlements pending at the time an
137	osteopathic physician is suspended by the Department of
138	Health; requiring that the department suspend the license
139	of an osteopathic physician who has not paid, up to the
140	amounts required by any applicable financial
141	responsibility provision, any outstanding judgment,
142	arbitration award, other order, or settlement; prohibiting
143	the expenditure of certain funds for defense expenditures;
144	correcting a cross reference; amending s. 459.015, F.S.;
145	increasing the amount of paid liability claims requiring
146	investigation by the Department of Health; revising the
147	definition of "repeated malpractice" to conform; creating
148	s. 459.0151, F.S.; establishing emergency procedures for
149	disciplinary actions; amending s. 461.013, F.S., relating
150	to grounds for disciplinary action against a podiatric
151	physician; redefining the term "repeated malpractice";
152	amending the minimum amount of a claim against such a
153	physician which will trigger a department investigation;
154	requiring administrative orders issued by an
155	administrative law judge or board for certain practice
156	violations by physicians to specify certain information;
157	conforming terminology; creating s. 461.0131, F.S.;
158	establishing emergency procedures for disciplinary
159	actions; amending s. 466.028, F.S., relating to grounds
160	for disciplinary action against a dentist or a dental
161	hygienist; redefining the term "dental malpractice";
162	revising the minimum amount of a claim against a dentist
163	which will trigger a departmental investigation; amending
164	s. 624.462, F.S.; authorizing health care providers to
165	form a commercial self-insurance fund; correcting a cross
166	reference; amending s. 627.062, F.S.; providing that an
167	insurer may not require arbitration of a rate filing for
168	medical malpractice insurance; providing additional
169	requirements for medical malpractice insurance rate
170	filings; providing that portions of judgments and
171	settlements entered against a medical malpractice insurer
172	for bad faith actions or for punitive damages against the
173	insurer, as well as related taxable costs and attorney's
174	fees, may not be included in an insurer's rate base;
175	providing for review of rate filings by the Office of
176	Insurance Regulation for excessive, inadequate, or
177	unfairly discriminatory rates; requiring insurers to apply
178	a discount or surcharge based on the health care
179	provider's loss experience; requiring annual rate filings;
180	requiring medical malpractice insurers to make rate
181	filings which take effect no later than January 1, 2004,
182	and which reflect the impact of medical malpractice
183	legislation enacted during the 2003 Special Session D of
184	the Legislature; providing for retroactive application of
185	such rate filings; providing requirements for rate
186	deviation by insurers; authorizing adjustments to filed
187	rates in the event any provision of medical malpractice
188	legislation enacted during the 2003 Special Session D of
189	the Legislature is declared invalid by a court of
190	competent jurisdiction; providing that certain rates for
191	medical malpractice insurance shall remain in effect until
192	the effective date of a new rate filing approved under
193	this section; providing an exception to the applicability
194	of ch. 120, F.S., and s. 287.057, F.S., in certain rate
195	filing; amending s. 627.357, F.S.; requiring the Financial
196	Services Commission to adopt rules that ensure the
197	solvency of a trust fund; deleting the prohibition against
198	formation of medical malpractice self-insurance funds;
199	amending s. 627.4147, F.S.; requiring earlier notice of
200	decisions to cancel or not renew certain insurance
201	policies to insureds under certain circumstances;
202	requiring prior notification of a rate increase;
203	conforming terminology; creating s. 627.41495, F.S.;
204	providing for consumer participation in review of medical
205	malpractice insurance rate changes; providing for public
206	inspection; amending s. 627.912, F.S.; revising the
207	medical negligence closed claim reports that must be filed
208	with the Office of Insurance Regulation; applying such
209	requirements to additional persons and entities; providing
210	the Department of Health with access to such reports;
211	requiring the Department of Health to review such reports
212	and to determine whether it potentially involves conduct
213	subject to discipline; providing for the mandatory
214	imposition of a fine or disciplinary action for failing to
215	report; increasing the maximum fine which may be imposed;
216	requiring reports to obtain additional information;
217	authorizing the Financial Services Commission to adopt
218	rules; requiring the Office of Insurance Regulation to
219	prepare summaries of closed claim reports of prior years
220	and to prepare an annual report and analysis of closed
221	claim and insurer financial reports; amending s. 641.19,
222	F.S.; revising definitions to provide that health care
223	providers providing services pursuant to coverage provided
224	under a health maintenance organization contract are not
225	employees or agents of the health maintenance
226	organization; providing exceptions; amending s. 641.51,
227	F.S.; proscribing a health maintenance organization’s
228	right to control the professional judgment of a physician;
229	providing that a health maintenance organization shall not
230	be vicariously liable for the medical negligence of a
231	health care provider; providing exceptions; amending s.
232	766.102, F.S.; correcting a cross reference; revising
233	requirements for health care providers who offer
234	corroborating medical expert opinion and expert testimony
235	in medical negligence actions; prohibiting contingency
236	fees for an expert witness; requiring certification that
237	an expert witness has not previously been found guilty of
238	fraud or perjury; amending s. 766.106, F.S.; defining the
239	term "claims for medical negligence;" deleting provisions
240	relating to voluntary arbitration in conflict with s.
241	766.207, F.S.; providing that liability is deemed admitted
242	when an offer is made by a defendant to arbitrate;
243	revising requirements for presuit notice and for an
244	insurer's or self-insurer's response to a claim; requiring
245	that a claimant provide the Agency for Health Care
246	Administration with a copy of the complaint alleging
247	medical negligence; requiring the agency to review such
248	complaints for licensure noncompliance; permitting written
249	questions during informal discovery; requiring a claimant
250	to execute a medical information release to authorize
251	defendants in medical negligence actions to take unsworn
252	statements from a claimant's treating physicians; imposing
253	limits on such statements; providing that the claimant or
254	the claimant's representative has the right to be present
255	when such statements are taken; amending s. 766.108, F.S.;
256	providing for mandatory mediation in medical negligence
257	causes of action under certain circumstances; conforming
258	terminology; creating s. 766.118, F.S.; providing
259	definitions; providing limitations on noneconomic damages
260	which can be awarded in causes of action involving medical
261	negligence; providing applicability with respect to
262	comparative fault and setoff reductions; providing for
263	nonapplicability; creating s. 766.1185, F.S.; providing
264	that an action for bad faith may not be brought against a
265	medical malpractice insurer if such insurer offers to pay
266	policy limits within a specified time period; providing
267	for factors to be considered in determining whether a
268	medical malpractice insurer has acted in bad faith;
269	amending s. 766.202, F.S.; defining "health care
270	provider"; redefining the terms "claimant," "economic
271	damages," "medical expert," and "noneconomic damages";
272	extending the definitions of economic and noneconomic
273	damages to include any such damages recoverable under the
274	Wrongful Death Act or general law; creating s. 766.2021,
275	F.S.; limiting the amount of damages which may be
276	recovered against insurers, prepaid limited health service
277	organizations, health maintenance organizations, or
278	prepaid health clinics; amending s. 766.203, F.S.;
279	providing for discovery of opinions and statements
280	tendered during presuit investigation; correcting cross
281	references; conforming terminology; amending s. 766.206,
282	F.S.; providing for dismissal of a claim under certain
283	circumstances; requiring the court to make certain reports
284	concerning a medical expert who fails to meet
285	qualifications; amending s. 766.207, F.S.; providing for
286	the applicability of the Wrongful Death Act and general
287	law to arbitration awards; correcting a cross reference;
288	amending s. 766.209, F.S.; revising applicable damages
289	available in voluntary binding arbitration relating to
290	claims of medical negligence; correcting a cross
291	reference; amending s. 766.304, F.S.; providing that a
292	claimant may not receive compensation from the Florida
293	Birth-Related Neurological Injury Compensation Plan if
294	damages are provided pursuant to a settlement or a final
295	judgment in a civil action is entered; prohibiting the
296	filing of civil actions under certain circumstances;
297	amending s. 766.305, F.S.; revising the information
298	required to be included in a petition seeking recovery
299	from the Florida Birth-Related Neurological Injury
300	Compensation Plan; revising requirements for the service
301	of such petitions; requiring claimants to provide certain
302	information to the Florida Birth-Related Neurological
303	Injury Compensation Association; amending s. 766.309,
304	F.S.; authorizing bifurcation of certain proceedings;
305	providing for an interlocutory appeal; amending s. 766.31,
306	F.S.; providing a death benefit under the Florida Birth-
307	Related Neurological Injury Compensation Plan in lieu of
308	funeral expenses; providing that claimants are not liable
309	for certain expenses under certain circumstances; amending
310	s. 766.314, F.S.; correcting terminology; authorizing
311	certain hospitals to pay assessments on behalf of certain
312	health care professionals; providing for the dates of
313	coverage of a participating physician; creating s.
314	768.0981, F.S.; providing that insurers, prepaid limited
315	health service organizations, health maintenance
316	organizations, or prepaid health clinics shall not be held
317	liable for medical negligence of health care contractors
318	unless the entity expressly directed or exercised actual
319	control over the action resulting in injury; amending s.
320	768.13, F.S.; revising guidelines for immunity from
321	liability under the Good Samaritan Act; amending s.
322	768.28, F.S.; providing that certain health care
323	practitioners acting under contract with the board of
324	trustees of a state university are considered agents of
325	the state for the application of the doctrine of sovereign
326	immunity; providing for indemnification of the state by
327	such practitioners; amending s. 768.77, F.S.; prescribing
328	a method for itemization of specific categories of damages
329	awarded in medical negligence actions; creating s.
330	1004.08, F.S.; requiring patient safety instruction for
331	certain students in public schools, colleges, and
332	universities; creating s. 1005.07, F.S.; requiring patient
333	safety instruction for certain students in nonpublic
334	schools, colleges, and universities; amending s. 1006.20,
335	F.S.; requiring completion of a uniform preparticipation
336	physical evaluation and history form incorporating
337	recommendations of the American Heart Association;
338	deleting provisions requiring practitioners to certify
339	that students are physically capable of participating in
340	interscholastic athletic competition; defining the terms
341	"patient safety data" and "patient safety organization";
342	providing for use of patient safety data by a patient
343	safety organization; providing limitations on use of
344	patient safety data; providing for protection of patient-
345	identifying information; providing for determination of
346	whether the privilege applies as asserted; providing that
347	an employer may not take retaliatory action against an
348	employee who makes a good faith report concerning patient
349	safety data; requiring the Division of Administrative
350	Hearings to designate administrative law judges who have
351	special qualifications for hearings involving certain
352	health care practitioners; requiring the Department of
353	Health to study the efficacy and constitutionality of
354	medical review panels; requiring a report; directing the
355	Agency for Health Care Administration to conduct or
356	contract for a study to determine what information to
357	provide to the public comparing hospitals, based on
358	inpatient quality indicators developed by the federal
359	Agency for Healthcare Research and Quality; requiring a
360	report; requiring a study and report by the Agency for
361	Health Care Administration regarding the establishment of
362	a patient safety entity; specifying elements of the
363	report; requiring the Office of Program Policy Analysis
364	and Government Accountability to study and report to the
365	Legislature on requirements for coverage by the Florida
366	Birth-Related Neurological Injury Compensation
367	Association; providing civil immunity for certain
368	participants in quality improvement processes; requiring
369	the Office of Program Policy Analysis and Government
370	Accountability and the Office of the Auditor General to
371	conduct an audit of the Department of Health's health care
372	practitioner disciplinary process and certain closed
373	claims and to report to the Legislature; creating a
374	workgroup to study the health care practitioner
375	disciplinary process; providing for workgroup membership;
376	requiring a report; providing legislative findings and
377	intent regarding provision of emergency medical services
378	and care; requiring that a specific statement be included
379	in each final settlement statement relating to medical
380	negligence actions; requiring the Office of Program Policy
381	Analysis and Government Accountability to study the
382	feasibility and merits of authorizing the Public Counsel
383	to participate in insurance rate filings for medical
384	malpractice insurance; providing appropriations;
385	reenacting and amending s. 458.319(5)(b), F.S., to
386	incorporate by reference amendments to s. 456.039, F.S.;
387	amending ss. 163.01, 456.048, 624.461, and 627.733, F.S.;
388	correcting cross references; amending ss. 766.112,
389	766.113, 766.201, 766.303, and 768.21, F.S.; conforming
390	terminology; preserving sovereign immunity and the
391	abrogation of certain joint and several liability;
392	providing severability; providing applicability; providing
393	for construction of the act in pari materia with laws
394	enacted during the 2003 Regular Session or a 2003 special
395	session of the Legislature; providing effective dates.
396
397	Be It Enacted by the Legislature of the State of Florida:
398
399	Section 1. Findings.--
400	(1) The Legislature finds that Florida is in the midst of
401	a medical malpractice insurance crisis of unprecedented
402	magnitude.
403	(2) The Legislature finds that this crisis threatens the
404	quality and availability of health care for all Florida
405	citizens.
406	(3) The Legislature finds that the rapidly growing
407	population and the changing demographics of Florida make it
408	imperative that students continue to choose Florida as the place
409	they will receive their medical educations and practice
410	medicine.
411	(4) The Legislature finds that Florida is among the states
412	with the highest medical malpractice insurance premiums in the
413	nation.
414	(5) The Legislature finds that the cost of medical
415	malpractice insurance has increased dramatically during the past
416	decade and both the increase and the current cost are
417	substantially higher than the national average.
418	(6) The Legislature finds that the increase in medical
419	malpractice liability insurance rates is forcing physicians to
420	practice medicine without professional liability insurance, to
421	leave Florida, to not perform high-risk procedures, or to retire
422	early from the practice of medicine.
423	(7) The Legislature finds that there are certain elements
424	of damage presently recoverable that have no monetary value,
425	except on a purely arbitrary basis, while other elements of
426	damage are either easily measured on a monetary basis or reflect
427	ultimate monetary loss.
428	(8) The Governor created the Governor's Select Task Force
429	on Healthcare Professional Liability Insurance to study and make
430	recommendations to address these problems.
431	(9) The Legislature has reviewed the findings and
432	recommendations of the Governor's Select Task Force on
433	Healthcare Professional Liability Insurance.
434	(10) The Legislature finds that the Governor's Select Task
435	Force on Healthcare Professional Liability Insurance has
436	established that a medical malpractice insurance crisis exists
437	in the State of Florida which can be alleviated by the adoption
438	of comprehensive legislatively enacted reforms.
439	(11) The Legislature finds that making high-quality health
440	care available to the citizens of this state is an overwhelming
441	public necessity.
442	(12) The Legislature finds that ensuring that physicians
443	continue to practice in Florida is an overwhelming public
444	necessity.
445	(13) The Legislature finds that ensuring the availability
446	of affordable professional liability insurance for physicians is
447	an overwhelming public necessity.
448	(14) The Legislature finds, based upon the findings and
449	recommendations of the Governor's Select Task Force on
450	Healthcare Professional Liability Insurance, the findings and
451	recommendations of various study groups throughout the nation,
452	and the experience of other states, that the overwhelming public
453	necessities of making quality health care available to the
454	citizens of this state, of ensuring that physicians continue to
455	practice in Florida, and of ensuring that those physicians have
456	the opportunity to purchase affordable professional liability
457	insurance cannot be met unless a cap on noneconomic damages is
458	imposed.
459	(15) The Legislature finds that the high cost of medical
460	negligence claims can be substantially alleviated by imposing a
461	limitation on noneconomic damages in medical negligence actions.
462	(16) The Legislature further finds that there is no
463	alternative measure of accomplishing such result without
464	imposing even greater limits upon the ability of persons to
465	recover damages for medical negligence.
466	(17) The Legislature finds that the provisions of this act
467	are naturally and logically connected to each other and to the
468	purpose of making quality health care available to the citizens
469	of Florida.
470	(18) The Legislature finds that each of the provisions of
471	this act is necessary to alleviate the crisis relating to
472	medical malpractice insurance.
473	Section 2. Subsection (1) of section 391.025, Florida
474	Statutes, is amended to read:
475	391.025 Applicability and scope.--
476	(1) This act applies to health services provided to
477	eligible individuals who are:
478	(a) Enrolled in the Medicaid program.;
479	(b) Enrolled in the Florida Kidcare program.; and
480	(c) Uninsured or underinsured, provided that they meet the
481	financial eligibility requirements established in this act, and
482	to the extent that resources are appropriated for their care.
483	(d) Infants who receive an award of compensation pursuant
484	to s. 766.31(1).
485	Section 3. Paragraph (f) is added to subsection (2) of
486	section 391.029, Florida Statutes, to read:
487	391.029 Program eligibility.--
488	(2) The following individuals are financially eligible for
489	the program:
490	(f) An infant who receives an award of compensation
491	pursuant to s. 766.31(1), provided the Florida Birth-Related
492	Neurological Injury Compensation Association shall reimburse the
493	Children's Medical Services Network the state's share of funding,
494	which funding shall be used to obtain matching federal funds
495	under Title XXI of the Social Security Act.
496
497	The department may continue to serve certain children with
498	special health care needs who are 21 years of age or older and
499	who were receiving services from the program prior to April 1,
500	1998. Such children may be served by the department until July
501	1, 2000.
502	Section 4. Section 395.0056, Florida Statutes, is created
503	to read:
504	395.0056 Litigation notice requirement.--Upon receipt of a
505	copy of a complaint filed against a hospital as a defendant in a
506	medical negligence action as required by s. 766.106(2), the
507	agency shall:
508	(1) Review its adverse incident report files pertaining to
509	the licensed facility that is the subject of the complaint to
510	determine whether the facility timely complied with the
511	requirements of s. 395.0197.
512	(2) Review the incident that is the subject of the
513	complaint and determine whether it involved conduct by a
514	licensee which is potentially subject to disciplinary action.
515	Section 5. Subsection (7) of section 395.0191, Florida
516	Statutes, is amended to read:
517	395.0191 Staff membership and clinical privileges.--
518	(7) There shall be no monetary liability on the part of,
519	and no cause of action for injunctive relief ordamages shall
520	arise against, any licensed facility, its governing board or
521	governing board members, medical staff, or disciplinary board or
522	against its agents, investigators, witnesses, or employees, or
523	against any other person, for any action arising out of or
524	related to carrying out the provisions of this section, absent
525	taken in good faith and without intentional fraud in carrying
526	out the provisions of this section.
527	Section 6. Section 395.0197, Florida Statutes, is amended
528	to read:
529	395.0197 Internal risk management program.--
530	(1) Every licensed facility shall, as a part of its
531	administrative functions, establish an internal risk management
532	program that includes all of the following components:
533	(a) The investigation and analysis of the frequency and
534	causes of general categories and specific types of adverse
535	incidents to patients.
536	(b) The development of appropriate measures to minimize
537	the risk of adverse incidents to patients, including, but not
538	limited to:
539	1. Risk management and risk prevention education and
540	training of all nonphysician personnel as follows:
541	a. Such education and training of all nonphysician
542	personnel as part of their initial orientation; and
543	b. At least 1 hour of such education and training annually
544	for all personnel of the licensed facility working in clinical
545	areas and providing patient care, except those persons licensed
546	as health care practitioners who are required to complete
547	continuing education coursework pursuant to chapter 456 or the
548	respective practice act.
549	2. A prohibition, except when emergency circumstances
550	require otherwise, against a staff member of the licensed
551	facility attending a patient in the recovery room, unless the
552	staff member is authorized to attend the patient in the recovery
553	room and is in the company of at least one other person.
554	However, a licensed facility is exempt from the two-person
555	requirement if it has:
556	a. Live visual observation;
557	b. Electronic observation; or
558	c. Any other reasonable measure taken to ensure patient
559	protection and privacy.
560	3. A prohibition against an unlicensed person from
561	assisting or participating in any surgical procedure unless the
562	facility has authorized the person to do so following a
563	competency assessment, and such assistance or participation is
564	done under the direct and immediate supervision of a licensed
565	physician and is not otherwise an activity that may only be
566	performed by a licensed health care practitioner.
567	4. Development, implementation, and ongoing evaluation of
568	procedures, protocols, and systems to accurately identify
569	patients, planned procedures, and the correct site of the
570	planned procedure so as to minimize the performance of a
571	surgical procedure on the wrong patient, a wrong surgical
572	procedure, a wrong-site surgical procedure, or a surgical
573	procedure otherwise unrelated to the patient's diagnosis or
574	medical condition.
575	(c) The analysis of patient grievances that relate to
576	patient care and the quality of medical services.
577	(d) A system for informing a patient or an individual
578	identified pursuant to s. 765.401(1) that the patient was the
579	subject of an adverse incident as defined in subsection (5).
580	Such notice shall be given by an appropriately trained person
581	designated by the licensed facility as soon as practicable to
582	allow the patient an opportunity to minimize damage or injury.
583	(e)(d)The development and implementation of an incident
584	reporting system based upon the affirmative duty of all health
585	care providers and all agents and employees of the licensed
586	health care facility to report adverse incidents to the risk
587	manager, or to his or her designee, within 3 business days after
588	their occurrence.
589	(2) The internal risk management program is the
590	responsibility of the governing board of the health care
591	facility. Each licensed facility shall hire a risk manager,
592	licensed under s. 395.10974, who is responsible for
593	implementation and oversight of such facility's internal risk
594	management program as required by this section. A risk manager
595	must not be made responsible for more than four internal risk
596	management programs in separate licensed facilities, unless the
597	facilities are under one corporate ownership or the risk
598	management programs are in rural hospitals.
599	(3) In addition to the programs mandated by this section,
600	other innovative approaches intended to reduce the frequency and
601	severity of medical malpractice and patient injury claims shall
602	be encouraged and their implementation and operation
603	facilitated. Such additional approaches may include extending
604	internal risk management programs to health care providers'
605	offices and the assuming of provider liability by a licensed
606	health care facility for acts or omissions occurring within the
607	licensed facility. Each licensed facility shall annually report
608	to the agency and the department the name and judgments entered
609	against each health care practitioner for which it assumes
610	liability. The agency and the department, in their respective
611	annual reports, shall include statistics that report the number
612	of licensed facilities that assume such liability and the number
613	of health care practitioners, by profession, for whom the
614	facilities assume liability.
615	(4) The agency shall adopt rules governing the
616	establishment of internal risk management programs to meet the
617	needs of individual licensed facilities. Each internal risk
618	management program shall include the use of incident reports to
619	be filed with an individual of responsibility who is competent
620	in risk management techniques in the employ of each licensed
621	facility, such as an insurance coordinator, or who is retained
622	by the licensed facility as a consultant. The individual
623	responsible for the risk management program shall have free
624	access to all medical records of the licensed facility. The
625	incident reports are part of the workpapers of the attorney
626	defending the licensed facility in litigation relating to the
627	licensed facility and are subject to discovery, but are not
628	admissible as evidence in court. A person filing an incident
629	report is not subject to civil suit by virtue of such incident
630	report. As a part of each internal risk management program, the
631	incident reports shall be used to develop categories of
632	incidents which identify problem areas. Once identified,
633	procedures shall be adjusted to correct the problem areas.
634	(5) For purposes of reporting to the agency pursuant to
635	this section, the term "adverse incident" means an event over
636	which health care personnel could exercise control and which is
637	associated in whole or in part with medical intervention, rather
638	than the condition for which such intervention occurred, and
639	which:
640	(a) Results in one of the following injuries:
641	1. Death;
642	2. Brain or spinal damage;
643	3. Permanent disfigurement;
644	4. Fracture or dislocation of bones or joints;
645	5. A resulting limitation of neurological, physical, or
646	sensory function which continues after discharge from the
647	facility;
648	6. Any condition that required specialized medical
649	attention or surgical intervention resulting from nonemergency
650	medical intervention, other than an emergency medical condition,
651	to which the patient has not given his or her informed consent;
652	or
653	7. Any condition that required the transfer of the
654	patient, within or outside the facility, to a unit providing a
655	more acute level of care due to the adverse incident, rather
656	than the patient's condition prior to the adverse incident;
657	(b) Was the performance of a surgical procedure on the
658	wrong patient, a wrong surgical procedure, a wrong-site surgical
659	procedure, or a surgical procedure otherwise unrelated to the
660	patient's diagnosis or medical condition;
661	(c) Required the surgical repair of damage resulting to a
662	patient from a planned surgical procedure, where the damage was
663	not a recognized specific risk, as disclosed to the patient and
664	documented through the informed-consent process; or
665	(d) Was a procedure to remove unplanned foreign objects
666	remaining from a surgical procedure.
667	(6)(a) Each licensed facility subject to this section
668	shall submit an annual report to the agency summarizing the
669	incident reports that have been filed in the facility for that
670	year. The report shall include:
671	1. The total number of adverse incidents.
672	2. A listing, by category, of the types of operations,
673	diagnostic or treatment procedures, or other actions causing the
674	injuries, and the number of incidents occurring within each
675	category.
676	3. A listing, by category, of the types of injuries caused
677	and the number of incidents occurring within each category.
678	4. A code number using the health care professional's
679	licensure number and a separate code number identifying all
680	other individuals directly involved in adverse incidents to
681	patients, the relationship of the individual to the licensed
682	facility, and the number of incidents in which each individual
683	has been directly involved. Each licensed facility shall
684	maintain names of the health care professionals and individuals
685	identified by code numbers for purposes of this section.
686	5. A description of all malpractice claims filed against
687	the licensed facility, including the total number of pending and
688	closed claims and the nature of the incident which led to, the
689	persons involved in, and the status and disposition of each
690	claim.
691
692	Each report shall update status and disposition for all prior
693	reports.
694	(b) The information reported to the agency pursuant to
695	paragraph (a) which relates to persons licensed under chapter
696	458, chapter 459, chapter 461, or chapter 466 shall be reviewed
697	by the agency. The agency shall determine whether any of the
698	incidents potentially involved conduct by a health care
699	professional who is subject to disciplinary action, in which
700	case the provisions of s. 456.073 shall apply.
701	(c) The report submitted to the agency shall also contain
702	the name and license number of the risk manager of the licensed
703	facility, a copy of its policy and procedures which govern the
704	measures taken by the facility and its risk manager to reduce
705	the risk of injuries and adverse incidents, and the results of
706	such measures. The annual report is confidential and is not
707	available to the public pursuant to s. 119.07(1) or any other
708	law providing access to public records. The annual report is not
709	discoverable or admissible in any civil or administrative
710	action, except in disciplinary proceedings by the agency or the
711	appropriate regulatory board. The annual report is not available
712	to the public as part of the record of investigation for and
713	prosecution in disciplinary proceedings made available to the
714	public by the agency or the appropriate regulatory board.
715	However, the agency or the appropriate regulatory board shall
716	make available, upon written request by a health care
717	professional against whom probable cause has been found, any
718	such records which form the basis of the determination of
719	probable cause.
720	(7) The licensed facility shall notify the agency no later
721	than 1 business day after the risk manager or his or her
722	designee has received a report pursuant to paragraph (1)(d) and
723	can determine within 1 business day that any of the following
724	adverse incidents has occurred, whether occurring in the
725	licensed facility or arising from health care prior to admission
726	in the licensed facility:
727	(a) The death of a patient;
728	(b) Brain or spinal damage to a patient;
729	(c) The performance of a surgical procedure on the wrong
730	patient;
731	(d) The performance of a wrong-site surgical procedure; or
732	(e) The performance of a wrong surgical procedure.
733
734	The notification must be made in writing and be provided by
735	facsimile device or overnight mail delivery. The notification
736	must include information regarding the identity of the affected
737	patient, the type of adverse incident, the initiation of an
738	investigation by the facility, and whether the events causing or
739	resulting in the adverse incident represent a potential risk to
740	other patients.
741	(7)(8)Any of the following adverse incidents, whether
742	occurring in the licensed facility or arising from health care
743	prior to admission in the licensed facility, shall be reported
744	by the facility to the agency within 15 calendar days after its
745	occurrence:
746	(a) The death of a patient;
747	(b) Brain or spinal damage to a patient;
748	(c) The performance of a surgical procedure on the wrong
749	patient;
750	(d) The performance of a wrong-site surgical procedure;
751	(e) The performance of a wrong surgical procedure;
752	(f) The performance of a surgical procedure that is
753	medically unnecessary or otherwise unrelated to the patient's
754	diagnosis or medical condition;
755	(g) The surgical repair of damage resulting to a patient
756	from a planned surgical procedure, where the damage is not a
757	recognized specific risk, as disclosed to the patient and
758	documented through the informed-consent process; or
759	(h) The performance of procedures to remove unplanned
760	foreign objects remaining from a surgical procedure.
761
762	The agency may grant extensions to this reporting requirement
763	for more than 15 days upon justification submitted in writing by
764	the facility administrator to the agency. The agency may require
765	an additional, final report. These reports shall not be
766	available to the public pursuant to s. 119.07(1) or any other
767	law providing access to public records, nor be discoverable or
768	admissible in any civil or administrative action, except in
769	disciplinary proceedings by the agency or the appropriate
770	regulatory board, nor shall they be available to the public as
771	part of the record of investigation for and prosecution in
772	disciplinary proceedings made available to the public by the
773	agency or the appropriate regulatory board. However, the agency
774	or the appropriate regulatory board shall make available, upon
775	written request by a health care professional against whom
776	probable cause has been found, any such records which form the
777	basis of the determination of probable cause. The agency may
778	investigate, as it deems appropriate, any such incident and
779	prescribe measures that must or may be taken in response to the
780	incident. The agency shall review each incident and determine
781	whether it potentially involved conduct by the health care
782	professional who is subject to disciplinary action, in which
783	case the provisions of s. 456.073 shall apply.
784	(8)(9)The agency shall publish on the agency's website,
785	no less than quarterly, a summary and trend analysis of adverse
786	incident reports received pursuant to this section, which shall
787	not include information that would identify the patient, the
788	reporting facility, or the health care practitioners involved.
789	The agency shall publish on the agency's website an annual
790	summary and trend analysis of all adverse incident reports and
791	malpractice claims information provided by facilities in their
792	annual reports, which shall not include information that would
793	identify the patient, the reporting facility, or the
794	practitioners involved. The purpose of the publication of the
795	summary and trend analysis is to promote the rapid dissemination
796	of information relating to adverse incidents and malpractice
797	claims to assist in avoidance of similar incidents and reduce
798	morbidity and mortality.
799	(9)(10)The internal risk manager of each licensed
800	facility shall:
801	(a) Investigate every allegation of sexual misconduct
802	which is made against a member of the facility's personnel who
803	has direct patient contact, when the allegation is that the
804	sexual misconduct occurred at the facility or on the grounds of
805	the facility.
806	(b) Report every allegation of sexual misconduct to the
807	administrator of the licensed facility.
808	(c) Notify the family or guardian of the victim, if a
809	minor, that an allegation of sexual misconduct has been made and
810	that an investigation is being conducted.
811	(d) Report to the Department of Health every allegation of
812	sexual misconduct, as defined in chapter 456 and the respective
813	practice act, by a licensed health care practitioner that
814	involves a patient.
815	(10)(11)Any witness who witnessed or who possesses actual
816	knowledge of the act that is the basis of an allegation of
817	sexual abuse shall:
818	(a) Notify the local police; and
819	(b) Notify the hospital risk manager and the
820	administrator.
821
822	For purposes of this subsection, "sexual abuse" means acts of a
823	sexual nature committed for the sexual gratification of anyone
824	upon, or in the presence of, a vulnerable adult, without the
825	vulnerable adult's informed consent, or a minor. "Sexual abuse"
826	includes, but is not limited to, the acts defined in s.
827	794.011(1)(h), fondling, exposure of a vulnerable adult's or
828	minor's sexual organs, or the use of the vulnerable adult or
829	minor to solicit for or engage in prostitution or sexual
830	performance. "Sexual abuse" does not include any act intended
831	for a valid medical purpose or any act which may reasonably be
832	construed to be a normal caregiving action.
833	(11)(12)A person who, with malice or with intent to
834	discredit or harm a licensed facility or any person, makes a
835	false allegation of sexual misconduct against a member of a
836	licensed facility's personnel is guilty of a misdemeanor of the
837	second degree, punishable as provided in s. 775.082 or s.
838	775.083.
839	(12)(13)In addition to any penalty imposed pursuant to
840	this section, the agency shall require a written plan of
841	correction from the facility. For a single incident or series of
842	isolated incidents that are nonwillful violations of the
843	reporting requirements of this section, the agency shall first
844	seek to obtain corrective action by the facility. If the
845	correction is not demonstrated within the timeframe established
846	by the agency or if there is a pattern of nonwillful violations
847	of this section, the agency may impose an administrative fine,
848	not to exceed $5,000 for any violation of the reporting
849	requirements of this section. The administrative fine for
850	repeated nonwillful violations shall not exceed $10,000 for any
851	violation. The administrative fine for each intentional and
852	willful violation may not exceed $25,000 per violation, per day.
853	The fine for an intentional and willful violation of this
854	section may not exceed $250,000. In determining the amount of
855	fine to be levied, the agency shall be guided by s.
856	395.1065(2)(b). This subsection does not apply to the notice
857	requirements under subsection (7).
858	(13)(14)The agency shall have access to all licensed
859	facility records necessary to carry out the provisions of this
860	section. The records obtained by the agency under subsection
861	(6), subsection (7) (8), or subsection (9) (10)are not
862	available to the public under s. 119.07(1), nor shall they be
863	discoverable or admissible in any civil or administrative
864	action, except in disciplinary proceedings by the agency or the
865	appropriate regulatory board, nor shall records obtained
866	pursuant to s. 456.071 be available to the public as part of the
867	record of investigation for and prosecution in disciplinary
868	proceedings made available to the public by the agency or the
869	appropriate regulatory board. However, the agency or the
870	appropriate regulatory board shall make available, upon written
871	request by a health care professional against whom probable
872	cause has been found, any such records which form the basis of
873	the determination of probable cause, except that, with respect
874	to medical review committee records, s. 766.101 controls.
875	(14)(15)The meetings of the committees and governing
876	board of a licensed facility held solely for the purpose of
877	achieving the objectives of risk management as provided by this
878	section shall not be open to the public under the provisions of
879	chapter 286. The records of such meetings are confidential and
880	exempt from s. 119.07(1), except as provided in subsection (13)
881	(14).
882	(15)(16)The agency shall review, as part of its licensure
883	inspection process, the internal risk management program at each
884	licensed facility regulated by this section to determine whether
885	the program meets standards established in statutes and rules,
886	whether the program is being conducted in a manner designed to
887	reduce adverse incidents, and whether the program is
888	appropriately reporting incidents under this section.
889	(16)(17)There shall be no monetary liability on the part
890	of, and no cause of action for damages shall arise against, any
891	risk manager, licensed under s. 395.10974, for the
892	implementation and oversight of the internal risk management
893	program in a facility licensed under this chapter or chapter 390
894	as required by this section, for any act or proceeding
895	undertaken or performed within the scope of the functions of
896	such internal risk management program if the risk manager acts
897	without intentional fraud.
898	(17)(18)A privilege against civil liability is hereby
899	granted to any licensed risk manager or licensed facility with
900	regard to information furnished pursuant to this chapter, unless
901	the licensed risk manager or facility acted in bad faith or with
902	malice in providing such information.
903	(18)(19)If the agency, through its receipt of any reports
904	required under this section or through any investigation, has a
905	reasonable belief that conduct by a staff member or employee of
906	a licensed facility is grounds for disciplinary action by the
907	appropriate regulatory board, the agency shall report this fact
908	to such regulatory board.
909	(19)(20)It shall be unlawful for any person to coerce,
910	intimidate, or preclude a risk manager from lawfully executing
911	his or her reporting obligations pursuant to this chapter. Such
912	unlawful action shall be subject to civil monetary penalties not
913	to exceed $10,000 per violation.
914	Section 7. Section 395.0198, Florida Statutes, is
915	repealed.
916	Section 8. Section 395.1012, Florida Statutes, is created
917	to read:
918	395.1012 Patient safety.--
919	(1) Each licensed facility shall adopt a patient safety
920	plan. A plan adopted to implement the requirements of 42 C.F.R.
921	s. 482.21 shall be deemed to comply with this requirement.
922	(2) Each licensed facility shall appoint a patient safety
923	officer and a patient safety committee, which shall include at
924	least one person who is neither employed by nor practicing in
925	the facility, for the purpose of promoting the health and safety
926	of patients, reviewing and evaluating the quality of patient
927	safety measures used by the facility, and assisting in the
928	implementation of the facility patient safety plan.
929	Section 9. Section 395.1051, Florida Statutes, is created
930	to read:
931	395.1051 Duty to notify patients.--An appropriately
932	trained person designated by each licensed facility shall inform
933	each patient, or an individual identified pursuant to s.
934	765.401(1), in person about adverse incidents that result in
935	serious harm to the patient. Notification of outcomes of care
936	that result in harm to the patient under this section shall not
937	constitute an acknowledgement or admission of liability, nor can
938	such notifications be introduced as evidence.
939	Section 10. Subsection (7) of section 456.013, Florida
940	Statutes, is amended to read:
941	456.013 Department; general licensing provisions.--
942	(7) The boards, or the department when there is no board,
943	shall require the completion of a 2-hour course relating to
944	prevention of medical errors as part of the licensure and
945	renewal process. The 2-hour course shall count towards the total
946	number of continuing education hours required for the
947	profession. The course shall be approved by the board or
948	department, as appropriate, and shall include a study of root-
949	cause analysis, error reduction and prevention, and patient
950	safety. In addition, the course approved by the Board of
951	Medicine and the Board of Osteopathic Medicine shall include
952	information relating to the five most misdiagnosed conditions
953	during the previous biennium, as determined by the board.If the
954	course is being offered by a facility licensed pursuant to
955	chapter 395 for its employees, the board may approve up to 1
956	hour of the 2-hour course to be specifically related to error
957	reduction and prevention methods used in that facility.
958	Section 11. Subsection (1) of section 456.025, Florida
959	Statutes, is amended to read:
960	456.025 Fees; receipts; disposition.--
961	(1) It is the intent of the Legislature that all costs of
962	regulating health care professions and practitioners shall be
963	borne solely by licensees and licensure applicants. It is also
964	the intent of the Legislature that fees should be reasonable and
965	not serve as a barrier to licensure. Moreover, it is the intent
966	of the Legislature that the department operate as efficiently as
967	possible and regularly report to the Legislature additional
968	methods to streamline operational costs. Therefore, the boards
969	in consultation with the department, or the department if there
970	is no board, shall, by rule, set renewal fees which:
971	(a) Shall be based on revenue projections prepared using
972	generally accepted accounting procedures;
973	(b) Shall be adequate to cover all expenses relating to
974	that board identified in the department's long-range policy
975	plan, as required by s. 456.005;
976	(c) Shall be reasonable, fair, and not serve as a barrier
977	to licensure;
978	(d) Shall be based on potential earnings from working
979	under the scope of the license;
980	(e) Shall be similar to fees imposed on similar licensure
981	types;
982	(f) Shall not be more than 10 percent greater than the fee
983	imposed for the previous biennium;
984	(f)(g)Shall not be more than 10 percent greater than the
985	actual cost to regulate that profession for the previous
986	biennium; and
987	(g)(h)Shall be subject to challenge pursuant to chapter
988	120.
989	Section 12. Paragraph (a) of subsection (1) of section
990	456.039, Florida Statutes, is amended to read:
991	456.039 Designated health care professionals; information
992	required for licensure.--
993	(1) Each person who applies for initial licensure as a
994	physician under chapter 458, chapter 459, chapter 460, or
995	chapter 461, except a person applying for registration pursuant
996	to ss. 458.345 and 459.021, must, at the time of application,
997	and each physician who applies for license renewal under chapter
998	458, chapter 459, chapter 460, or chapter 461, except a person
999	registered pursuant to ss. 458.345 and 459.021, must, in
1000	conjunction with the renewal of such license and under
1001	procedures adopted by the Department of Health, and in addition
1002	to any other information that may be required from the
1003	applicant, furnish the following information to the Department
1004	of Health:
1005	(a)1. The name of each medical school that the applicant
1006	has attended, with the dates of attendance and the date of
1007	graduation, and a description of all graduate medical education
1008	completed by the applicant, excluding any coursework taken to
1009	satisfy medical licensure continuing education requirements.
1010	2. The name of each hospital at which the applicant has
1011	privileges.
1012	3. The address at which the applicant will primarily
1013	conduct his or her practice.
1014	4. Any certification that the applicant has received from
1015	a specialty board that is recognized by the board to which the
1016	applicant is applying.
1017	5. The year that the applicant began practicing medicine.
1018	6. Any appointment to the faculty of a medical school
1019	which the applicant currently holds and an indication as to
1020	whether the applicant has had the responsibility for graduate
1021	medical education within the most recent 10 years.
1022	7. A description of any criminal offense of which the
1023	applicant has been found guilty, regardless of whether
1024	adjudication of guilt was withheld, or to which the applicant
1025	has pled guilty or nolo contendere. A criminal offense committed
1026	in another jurisdiction which would have been a felony or
1027	misdemeanor if committed in this state must be reported. If the
1028	applicant indicates that a criminal offense is under appeal and
1029	submits a copy of the notice for appeal of that criminal
1030	offense, the department must state that the criminal offense is
1031	under appeal if the criminal offense is reported in the
1032	applicant's profile. If the applicant indicates to the
1033	department that a criminal offense is under appeal, the
1034	applicant must, upon disposition of the appeal, submit to the
1035	department a copy of the final written order of disposition.
1036	8. A description of any final disciplinary action taken
1037	within the previous 10 years against the applicant by the agency
1038	regulating the profession that the applicant is or has been
1039	licensed to practice, whether in this state or in any other
1040	jurisdiction, by a specialty board that is recognized by the
1041	American Board of Medical Specialties, the American Osteopathic
1042	Association, or a similar national organization, or by a
1043	licensed hospital, health maintenance organization, prepaid
1044	health clinic, ambulatory surgical center, or nursing home.
1045	Disciplinary action includes resignation from or nonrenewal of
1046	medical staff membership or the restriction of privileges at a
1047	licensed hospital, health maintenance organization, prepaid
1048	health clinic, ambulatory surgical center, or nursing home taken
1049	in lieu of or in settlement of a pending disciplinary case
1050	related to competence or character. If the applicant indicates
1051	that the disciplinary action is under appeal and submits a copy
1052	of the document initiating an appeal of the disciplinary action,
1053	the department must state that the disciplinary action is under
1054	appeal if the disciplinary action is reported in the applicant's
1055	profile.
1056	9. Relevant professional qualifications as defined by the
1057	applicable board.
1058	Section 13. Section 456.041, Florida Statutes, is amended
1059	to read:
1060	456.041 Practitioner profile; creation.--
1061	(1)(a) Beginning July 1, 1999,The Department of Health
1062	shall compile the information submitted pursuant to s. 456.039
1063	into a practitioner profile of the applicant submitting the
1064	information, except that the Department of Health shall may
1065	develop a format to compile uniformly any information submitted
1066	under s. 456.039(4)(b). Beginning July 1, 2001, the Department
1067	of Health may compile the information submitted pursuant to s.
1068	456.0391 into a practitioner profile of the applicant submitting
1069	the information.
1070	(b) Within 30 calendar days after receiving an update of
1071	information required for the practitioner's profile, the
1072	department shall update the practitioner's profile in accordance
1073	with the requirements of subsection (7).
1074	(2) On the profile published under subsection (1), the
1075	department shall indicate whether ifthe information provided
1076	under s. 456.039(1)(a)7. or s. 456.0391(1)(a)7. is or isnot
1077	corroborated by a criminal history check conducted according to
1078	this subsection. If the information provided under s.
1079	456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the
1080	criminal history check, the fact that the criminal history check
1081	was performed need not be indicated on the profile.The
1082	department, or the board having regulatory authority over the
1083	practitioner acting on behalf of the department, shall
1084	investigate any information received by the department or the
1085	board when it has reasonable grounds to believe that the
1086	practitioner has violated any law that relates to the
1087	practitioner's practice.
1088	(3) The Department of Health shall mayinclude in each
1089	practitioner's practitioner profile that criminal information
1090	that directly relates to the practitioner's ability to
1091	competently practice his or her profession. The department must
1092	include in each practitioner's practitioner profile the
1093	following statement: "The criminal history information, if any
1094	exists, may be incomplete; federal criminal history information
1095	is not available to the public." The department shall provide in
1096	each practitioner profile, for every final disciplinary action
1097	taken against the practitioner, an easy-to-read narrative
1098	description that explains the administrative complaint filed
1099	against the practitioner and the final disciplinary action
1100	imposed on the practitioner. The department shall include a
1101	hyperlink to each final order listed in its Internet website
1102	report of dispositions of recent disciplinary actions taken
1103	against practitioners.
1104	(4) The Department of Health shall include, with respect
1105	to a practitioner licensed under chapter 458 or chapter 459, a
1106	statement of how the practitioner has elected to comply with the
1107	financial responsibility requirements of s. 458.320 or s.
1108	459.0085. The department shall include, with respect to
1109	practitioners subject to s. 456.048, a statement of how the
1110	practitioner has elected to comply with the financial
1111	responsibility requirements of that section. The department
1112	shall include, with respect to practitioners licensed under
1113	chapter 458, chapter 459, orchapter 461, information relating
1114	to liability actions which has been reported under s. 456.049 or
1115	s. 627.912 within the previous 10 years for any paid claim that
1116	exceeds $5,000. The department shall include, with respect to
1117	practitioners licensed under chapter 458 or chapter 459,
1118	information relating to liability actions which has been
1119	reported under ss. 456.049 and 627.912 within the previous 10
1120	years for any paid claim that exceeds $100,000.Such claims
1121	information shall be reported in the context of comparing an
1122	individual practitioner's claims to the experience of other
1123	practitioners within the same specialty, or profession if the
1124	practitioner is not a specialist, to the extent such information
1125	is available to the Department of Health. The department must
1126	provide a hyperlink in such practitioner's profile to all such
1127	comparison reports.If information relating to a liability
1128	action is included in a practitioner's practitioner profile, the
1129	profile must also include the following statement: "Settlement
1130	of a claim may occur for a variety of reasons that do not
1131	necessarily reflect negatively on the professional competence or
1132	conduct of the practitioner. A payment in settlement of a
1133	medical malpractice action or claim should not be construed as
1134	creating a presumption that medical malpractice has occurred."
1135	(5) The Department of Health shall may not include the
1136	date of a hospital or ambulatory surgical centerdisciplinary
1137	action taken by a licensed hospital or an ambulatory surgical
1138	center, in accordance with the requirements of s. 395.0193,in
1139	the practitioner profile. The department shall state whether the
1140	action related to professional competence and whether it related
1141	to the delivery of services to a patient.
1142	(6) The Department of Health may include in the
1143	practitioner's practitioner profile any other information that
1144	is a public record of any governmental entity and that relates
1145	to a practitioner's ability to competently practice his or her
1146	profession. However, the department must consult with the board
1147	having regulatory authority over the practitioner before such
1148	information is included in his or her profile.
1149	(7) Upon the completion of a practitioner profile under
1150	this section, the Department of Health shall furnish the
1151	practitioner who is the subject of the profile a copy of it for
1152	review and verification. The practitioner has a period of 30
1153	days in which to review and verify the contents ofthe profile
1154	and to correct any factual inaccuracies in it. The Department of
1155	Health shall make the profile available to the public at the end
1156	of the 30-day period regardless of whether the practitioner has
1157	provided verification of the profile content. A practitioner
1158	shall be subject to a fine of up to $100 per day for failure to
1159	verify the profile contents and to correct any factual errors in
1160	his or her profile within the 30-day period. The department
1161	shall make the profiles available to the public through the
1162	World Wide Web and other commonly used means of distribution.
1163	The department must include the following statement, in boldface
1164	type, in each profile that has not been reviewed by the
1165	practitioner to which it applies: "The practitioner has not
1166	verified the information contained in this profile."
1167	(8) The Department of Health must provide in each profile
1168	an easy-to-read explanation of any disciplinary action taken and
1169	the reason the sanction or sanctions were imposed.
1170	(9) The Department of Health may provide one link in each
1171	profile to a practitioner's professional Internet website if the
1172	practitioner requests that such a link be included in his or her
1173	profile.
1174	(10)(8)Making a practitioner profile available to the
1175	public under this section does not constitute agency action for
1176	which a hearing under s. 120.57 may be sought.
1177	Section 14. Section 456.042, Florida Statutes, is amended
1178	to read:
1179	456.042 Practitioner profiles; update.--A practitioner
1180	must submit updates of required information within 15 days after
1181	the final activity that renders such information a fact.The
1182	Department of Health shall update each practitioner's
1183	practitioner profile periodically. An updated profile is subject
1184	to the same requirements as an original profile with respect to
1185	the period within which the practitioner may review the profile
1186	for the purpose of correcting factual inaccuracies.
1187	Section 15. Section 456.049, Florida Statutes, is amended
1188	to read:
1189	456.049 Health care practitioners; reports on professional
1190	liability claims and actions.--
1191	(1)Any practitioner of medicine licensed pursuant to the
1192	provisions of chapter 458, practitioner of osteopathic medicine
1193	licensed pursuant to the provisions of chapter 459, podiatric
1194	physician licensed pursuant to the provisions of chapter 461, or
1195	dentist licensed pursuant to the provisions of chapter 466 shall
1196	report to the Office of Insurance Regulation departmentany
1197	claim or action for damages for personal injury alleged to have
1198	been caused by error, omission, or negligence in the performance
1199	of such licensee's professional services or based on a claimed
1200	performance of professional services without consent pursuant to
1201	if the claim was not covered by an insurer required to report
1202	under s. 627.912 and the claim resulted in:
1203	(a) A final judgment in any amount.
1204	(b) A settlement in any amount.
1205	(c) A final disposition not resulting in payment on behalf
1206	of the licensee.
1207
1208	Reports shall be filed with the department no later than 60 days
1209	following the occurrence of any event listed in paragraph (a),
1210	paragraph (b), or paragraph (c).
1211	(2) Reports shall contain:
1212	(a) The name and address of the licensee.
1213	(b) The date of the occurrence which created the claim.
1214	(c) The date the claim was reported to the licensee.
1215	(d) The name and address of the injured person. This
1216	information is confidential and exempt from s. 119.07(1) and
1217	shall not be disclosed by the department without the injured
1218	person's consent. This information may be used by the department
1219	for purposes of identifying multiple or duplicate claims arising
1220	out of the same occurrence.
1221	(e) The date of suit, if filed.
1222	(f) The injured person's age and sex.
1223	(g) The total number and names of all defendants involved
1224	in the claim.
1225	(h) The date and amount of judgment or settlement, if any,
1226	including the itemization of the verdict, together with a copy
1227	of the settlement or judgment.
1228	(i) In the case of a settlement, such information as the
1229	department may require with regard to the injured person's
1230	incurred and anticipated medical expense, wage loss, and other
1231	expenses.
1232	(j) The loss adjustment expense paid to defense counsel,
1233	and all other allocated loss adjustment expense paid.
1234	(k) The date and reason for final disposition, if no
1235	judgment or settlement.
1236	(l) A summary of the occurrence which created the claim,
1237	which shall include:
1238	1. The name of the institution, if any, and the location
1239	within such institution, at which the injury occurred.
1240	2. The final diagnosis for which treatment was sought or
1241	rendered, including the patient's actual condition.
1242	3. A description of the misdiagnosis made, if any, of the
1243	patient's actual condition.
1244	4. The operation or the diagnostic or treatment procedure
1245	causing the injury.
1246	5. A description of the principal injury giving rise to
1247	the claim.
1248	6. The safety management steps that have been taken by the
1249	licensee to make similar occurrences or injuries less likely in
1250	the future.
1251	(m) Any other information required by the department to
1252	analyze and evaluate the nature, causes, location, cost, and
1253	damages involved in professional liability cases.
1254	Section 16. Section 456.051, Florida Statutes, is amended
1255	to read:
1256	456.051 Reports of professional liability actions;
1257	bankruptcies; Department of Health's responsibility to
1258	provide.--
1259	(1) The report of a claim or action for damages for
1260	personal injury which is required to be provided to the
1261	Department of Health under s. 456.049 or s. 627.912 is public
1262	information except for the name of the claimant or injured
1263	person, which remains confidential as provided in s. ss.
1264	456.049(2)(d) and627.912(2)(e). The Department of Health shall,
1265	upon request, make such report available to any person. The
1266	department shall make such report available as a part of the
1267	practitioner's profile within 30 calendar days after receipt.
1268	(2) Any information in the possession of the Department of
1269	Health which relates to a bankruptcy proceeding by a
1270	practitioner of medicine licensed under chapter 458, a
1271	practitioner of osteopathic medicine licensed under chapter 459,
1272	a podiatric physician licensed under chapter 461, or a dentist
1273	licensed under chapter 466 is public information. The Department
1274	of Health shall, upon request, make such information available
1275	to any person. The department shall make such report available
1276	as a part of the practitioner's profile within 30 calendar days
1277	after receipt.
1278	Section 17. Paragraph (a) of subsection (7) of section
1279	456.057, Florida Statutes, is amended to read:
1280	456.057 Ownership and control of patient records; report
1281	or copies of records to be furnished.--
1282	(7)(a)1. The department may obtain patient records
1283	pursuant to a subpoena without written authorization from the
1284	patient if the department and the probable cause panel of the
1285	appropriate board, if any, find reasonable cause to believe that
1286	a health care practitioner has excessively or inappropriately
1287	prescribed any controlled substance specified in chapter 893 in
1288	violation of this chapter or any professional practice act or
1289	that a health care practitioner has practiced his or her
1290	profession below that level of care, skill, and treatment
1291	required as defined by this chapter or any professional practice
1292	act and also find that appropriate, reasonable attempts were
1293	made to obtain a patient release.
1294	2. The department may obtain patient records and insurance
1295	information pursuant to a subpoena without written authorization
1296	from the patient if the department and the probable cause panel
1297	of the appropriate board, if any, find reasonable cause to
1298	believe that a health care practitioner has provided inadequate
1299	medical care based on termination of insurance and also find
1300	that appropriate, reasonable attempts were made to obtain a
1301	patient release.
1302	3. The department may obtain patient records, billing
1303	records, insurance information, provider contracts, and all
1304	attachments thereto pursuant to a subpoena without written
1305	authorization from the patient if the department and probable
1306	cause panel of the appropriate board, if any, find reasonable
1307	cause to believe that a health care practitioner has submitted a
1308	claim, statement, or bill using a billing code that would result
1309	in payment greater in amount than would be paid using a billing
1310	code that accurately describes the services performed, requested
1311	payment for services that were not performed by that health care
1312	practitioner, used information derived from a written report of
1313	an automobile accident generated pursuant to chapter 316 to
1314	solicit or obtain patients personally or through an agent
1315	regardless of whether the information is derived directly from
1316	the report or a summary of that report or from another person,
1317	solicited patients fraudulently, received a kickback as defined
1318	in s. 456.054, violated the patient brokering provisions of s.
1319	817.505, or presented or caused to be presented a false or
1320	fraudulent insurance claim within the meaning of s.
1321	817.234(1)(a), and also find that, within the meaning of s.
1322	817.234(1)(a), patient authorization cannot be obtained because
1323	the patient cannot be located or is deceased, incapacitated, or
1324	suspected of being a participant in the fraud or scheme, and if
1325	the subpoena is issued for specific and relevant records.
1326	4. Notwithstanding subparagraphs 1.-3., when the
1327	department investigates a professional liability claim or
1328	undertakes action pursuant to s. 456.049 or s. 627.912, the
1329	department may obtain patient records pursuant to a subpoena
1330	without written authorization from the patient if the patient
1331	refuses to cooperate or the department attempts to obtain a
1332	patient release and the failure to obtain the patient records
1333	would be detrimental to the investigation.
1334	Section 18. Section 456.0575, Florida Statutes, is created
1335	to read:
1336	456.0575 Duty to notify patients.--Every licensed health
1337	care practitioner shall inform each patient, or an individual
1338	identified pursuant to s. 765.401(1), in person about adverse
1339	incidents that result in serious harm to the patient.
1340	Notification of outcomes of care that result in harm to the
1341	patient under this section shall not constitute an
1342	acknowledgement of admission of liability, nor can such
1343	notifications be introduced as evidence.
1344	Section 19. Subsection (4) of section 456.072, Florida
1345	Statutes, is amended to read:
1346	456.072 Grounds for discipline; penalties; enforcement.--
1347	(4) In addition to any other discipline imposed through
1348	final order, or citation, entered on or after July 1, 2001,
1349	pursuant to this section or discipline imposed through final
1350	order, or citation, entered on or after July 1, 2001, for a
1351	violation of any practice act, the board, or the department when
1352	there is no board, shall assess costs related to the
1353	investigation and prosecution of the case. Such costs related to
1354	the investigation and prosecution include, but are not limited
1355	to, salaries and benefits of personnel, costs related to the
1356	time spent by the attorney and other personnel working on the
1357	case, and any other expenses incurred by the department for the
1358	case. The board, or the department when there in no board, shall
1359	determine the amount of costs to be assessed after its
1360	consideration of an affidavit of itemized costs and any written
1361	objections thereto.In any case where the board or the
1362	department imposes a fine or assessment and the fine or
1363	assessment is not paid within a reasonable time, such reasonable
1364	time to be prescribed in the rules of the board, or the
1365	department when there is no board, or in the order assessing
1366	such fines or costs, the department or the Department of Legal
1367	Affairs may contract for the collection of, or bring a civil
1368	action to recover, the fine or assessment.
1369	Section 20. Subsections (1) and (5) of section 456.073,
1370	Florida Statutes, as amended by section 1 of chapter 2003-27,
1371	Laws of Florida, are amended to read:
1372	456.073 Disciplinary proceedings.--Disciplinary
1373	proceedings for each board shall be within the jurisdiction of
1374	the department.
1375	(1) The department, for the boards under its jurisdiction,
1376	shall cause to be investigated any complaint that is filed
1377	before it if the complaint is in writing, signed by the
1378	complainant, and legally sufficient. A complaint filed by a
1379	state prisoner against a health care practitioner employed by or
1380	otherwise providing health care services within a facility of
1381	the Department of Corrections is not legally sufficient unless
1382	there is a showing that the prisoner complainant has exhausted
1383	all available administrative remedies within the state
1384	correctional system before filing the complaint. However, if the
1385	Department of Health determines after a preliminary inquiry of a
1386	state prisoner's complaint that the practitioner may present a
1387	serious threat to the health and safety of any individual who is
1388	not a state prisoner, the Department of Health may determine
1389	legal sufficiency and proceed with discipline. The Department of
1390	Health shall be notified within 15 days after the Department of
1391	Corrections disciplines or allows a health care practitioner to
1392	resign for an offense related to the practice of his or her
1393	profession. A complaint is legally sufficient if it contains
1394	ultimate facts that show that a violation of this chapter, of
1395	any of the practice acts relating to the professions regulated
1396	by the department, or of any rule adopted by the department or a
1397	regulatory board in the department has occurred. In order to
1398	determine legal sufficiency, the department may require
1399	supporting information or documentation. The department may
1400	investigate, and the department or the appropriate board may
1401	take appropriate final action on, a complaint even though the
1402	original complainant withdraws it or otherwise indicates a
1403	desire not to cause the complaint to be investigated or
1404	prosecuted to completion. The department may investigate an
1405	anonymous complaint if the complaint is in writing and is
1406	legally sufficient, if the alleged violation of law or rules is
1407	substantial, and if the department has reason to believe, after
1408	preliminary inquiry, that the violations alleged in the
1409	complaint are true. The department may investigate a complaint
1410	made by a confidential informant if the complaint is legally
1411	sufficient, if the alleged violation of law or rule is
1412	substantial, and if the department has reason to believe, after
1413	preliminary inquiry, that the allegations of the complainant are
1414	true. The department may initiate an investigation if it has
1415	reasonable cause to believe that a licensee or a group of
1416	licensees has violated a Florida statute, a rule of the
1417	department, or a rule of a board. Notwithstanding subsection
1418	(13), the department may investigate information filed pursuant
1419	to s. 456.041(4) relating to liability actions with respect to
1420	practitioners licensed under chapter 458 or chapter 459 which
1421	have been reported under s. 456.049 or s. 627.912 within the
1422	previous 6 years for any paid claim that exceeds $50,000.Except
1423	as provided in ss. 458.331(9), 459.015(9), 460.413(5), and
1424	461.013(6), when an investigation of any subject is undertaken,
1425	the department shall promptly furnish to the subject or the
1426	subject's attorney a copy of the complaint or document that
1427	resulted in the initiation of the investigation. The subject may
1428	submit a written response to the information contained in such
1429	complaint or document within 20 days after service to the
1430	subject of the complaint or document. The subject's written
1431	response shall be considered by the probable cause panel. The
1432	right to respond does not prohibit the issuance of a summary
1433	emergency order if necessary to protect the public. However, if
1434	the secretary, or the secretary's designee, and the chair of the
1435	respective board or the chair of its probable cause panel agree
1436	in writing that such notification would be detrimental to the
1437	investigation, the department may withhold notification. The
1438	department may conduct an investigation without notification to
1439	any subject if the act under investigation is a criminal
1440	offense.
1441	(5)(a)A formal hearing before an administrative law judge
1442	from the Division of Administrative Hearings shall be held
1443	pursuant to chapter 120 if there are any disputed issues of
1444	material fact. The determination of whether a licensee has
1445	violated the laws and rules regulating the profession, including
1446	a determination of the reasonable standard of care, is a
1447	conclusion of law to be determined by the board, or department
1448	when there is no board, and is not a finding of fact to be
1449	determined by an administrative law judge.The administrative
1450	law judge shall issue a recommended order pursuant to chapter
1451	120. If any party raises an issue of disputed fact during an
1452	informal hearing, the hearing shall be terminated and a formal
1453	hearing pursuant to chapter 120 shall be held.
1454	(b) Notwithstanding s. 120.569(2), the department shall
1455	notify the Division of Administrative Hearings within 45 days
1456	after receipt of a petition or request for a hearing that the
1457	department has determined requires a formal hearing before an
1458	administrative law judge.
1459	Section 21. Subsections (1) and (2) of section 456.077,
1460	Florida Statutes, are amended to read:
1461	456.077 Authority to issue citations.--
1462	(1) Notwithstanding s. 456.073, the board, or the
1463	department if there is no board, shall adopt rules to permit the
1464	issuance of citations. The citation shall be issued to the
1465	subject and shall contain the subject's name and address, the
1466	subject's license number if applicable, a brief factual
1467	statement, the sections of the law allegedly violated, and the
1468	penalty imposed. The citation must clearly state that the
1469	subject may choose, in lieu of accepting the citation, to follow
1470	the procedure under s. 456.073. If the subject disputes the
1471	matter in the citation, the procedures set forth in s. 456.073
1472	must be followed. However, if the subject does not dispute the
1473	matter in the citation with the department within 30 days after
1474	the citation is served, the citation becomes a publicfinal
1475	order and does not constitute constitutes discipline for a first
1476	offense, but does constitute discipline for a second or
1477	subsequent offense. The penalty shall be a fine or other
1478	conditions as established by rule.
1479	(2) The board, or the department if there is no board,
1480	shall adopt rules designating violations for which a citation
1481	may be issued. Such rules shall designate as citation violations
1482	those violations for which there is no substantial threat to the
1483	public health, safety, and welfare or no violation of standard
1484	of care involving injury to a patient. Violations for which a
1485	citation may be issued shall include violations of continuing
1486	education requirements; failure to timely pay required fees and
1487	fines; failure to comply with the requirements of ss. 381.026
1488	and 381.0261 regarding the dissemination of information
1489	regarding patient rights; failure to comply with advertising
1490	requirements; failure to timely update practitioner profile and
1491	credentialing files; failure to display signs, licenses, and
1492	permits; failure to have required reference books available; and
1493	all other violations that do not pose a direct and serious
1494	threat to the health and safety of the patient or involve a
1495	violation of standard of care that has resulted in injury to a
1496	patient.
1497	Section 22. Subsections (1) and (2) of section 456.078,
1498	Florida Statutes, are amended to read:
1499	456.078 Mediation.--
1500	(1) Notwithstanding the provisions of s. 456.073, the
1501	board, or the department when there is no board, shall adopt
1502	rules to designate which violations of the applicable
1503	professional practice act are appropriate for mediation. The
1504	board, or the department when there is no board, shall may
1505	designate as mediation offenses those complaints where harm
1506	caused by the licensee is economic in nature, except any act or
1507	omission involving intentional misconduct, orcan be remedied by
1508	the licensee, is not a standard-of-care violation involving any
1509	type of injury to a patient, or does not result in an adverse
1510	incident. For the purposes of this section, an "adverse
1511	incident" means an event that results in:
1512	(a) The death of a patient;
1513	(b) Brain or spinal damage to a patient;
1514	(c) The performance of a surgical procedure on the wrong
1515	patient;
1516	(d) The performance of a wrong-site surgical procedure;
1517	(e) The performance of a surgical procedure that is
1518	medically unnecessary or otherwise unrelated to the patient's
1519	diagnosis or medical condition;
1520	(f) The surgical repair of damage to a patient resulting
1521	from a planned surgical procedure, which damage is not a
1522	recognized specific risk as disclosed to the patient and
1523	documented through the informed-consent process;
1524	(g) The performance of a procedure to remove unplanned
1525	foreign objects remaining from a surgical procedure; or
1526	(h) The performance of any other surgical procedure that
1527	breached the standard of care.
1528	(2) After the department determines a complaint is legally
1529	sufficient and the alleged violations are defined as mediation
1530	offenses, the department or any agent of the department may
1531	conduct informal mediation to resolve the complaint. If the
1532	complainant and the subject of the complaint agree to a
1533	resolution of a complaint within 14 days after contact by the
1534	mediator, the mediator shall notify the department of the terms
1535	of the resolution. The department or board shall take no further
1536	action unless the complainant and the subject each fail to
1537	record with the department an acknowledgment of satisfaction of
1538	the terms of mediation within 60 days of the mediator's
1539	notification to the department. A successful mediation shall not
1540	constitute discipline.In the event the complainant and subject
1541	fail to reach settlement terms or to record the required
1542	acknowledgment, the department shall process the complaint
1543	according to the provisions of s. 456.073.
1544	Section 23. Effective upon this act becoming a law and
1545	applying to claims accruing on or after that date, section
1546	458.320, Florida Statutes, is amended to read:
1547	458.320 Financial responsibility.--
1548	(1) As a condition of licensing and maintaining an active
1549	license,and prior to the issuance or renewal of an active
1550	license or reactivation of an inactive license for the practice
1551	of medicine, an applicant must shallby one of the following
1552	methods demonstrate to the satisfaction of the board and the
1553	department financial responsibility to pay claims and costs
1554	ancillary thereto arising out of the rendering of, or the
1555	failure to render, medical care or services:
1556	(a) Establishing and maintaining an escrow account
1557	consisting of cash or assets eligible for deposit in accordance
1558	with s. 625.52 in the per claim amounts specified in paragraph
1559	(b). The required escrow amount set forth in this paragraph may
1560	not be used for litigation costs or attorney's fees for the
1561	defense of any medical negligence claim.
1562	(b) Obtaining and maintaining professional liability
1563	coverage in an amount not less than $100,000 per claim, with a
1564	minimum annual aggregate of not less than $300,000, from an
1565	authorized insurer as defined under s. 624.09, from a surplus
1566	lines insurer as defined under s. 626.914(2), from a risk
1567	retention group as defined under s. 627.942, from the Joint
1568	Underwriting Association established under s. 627.351(4), or
1569	through a plan of self-insurance as provided in s. 627.357. The
1570	required coverage amount set forth in this paragraph may not be
1571	used for litigation costs or attorney's fees for the defense of
1572	any medical negligence claim.
1573	(c) Obtaining and maintaining an unexpired, irrevocable
1574	letter of credit, established pursuant to chapter 675, in an
1575	amount not less than $100,000 per claim, with a minimum
1576	aggregate availability of credit of not less than $300,000. The
1577	letter of credit must shallbe payable to the physician as
1578	beneficiary upon presentment of a final judgment indicating
1579	liability and awarding damages to be paid by the physician or
1580	upon presentment of a settlement agreement signed by all parties
1581	to such agreement when such final judgment or settlement is a
1582	result of a claim arising out of the rendering of, or the
1583	failure to render, medical care and services. The letter of
1584	credit may not be used for litigation costs or attorney's fees
1585	for the defense of any medical negligence claim. The Suchletter
1586	of credit must shall be nonassignable and nontransferable. The
1587	Such letter of credit must shallbe issued by any bank or
1588	savings association organized and existing under the laws of
1589	this state or any bank or savings association organized under
1590	the laws of the United States which thathas its principal place
1591	of business in this state or has a branch office that whichis
1592	authorized under the laws of this state or of the United States
1593	to receive deposits in this state.
1594	(2) Physicians who perform surgery in an ambulatory
1595	surgical center licensed under chapter 395 and,as a continuing
1596	condition of hospital staff privileges, physicians who have with
1597	staff privileges must shall also be required toestablish
1598	financial responsibility by one of the following methods:
1599	(a) Establishing and maintaining an escrow account
1600	consisting of cash or assets eligible for deposit in accordance
1601	with s. 625.52 in the per claim amounts specified in paragraph
1602	(b). The required escrow amount set forth in this paragraph may
1603	not be used for litigation costs or attorney's fees for the
1604	defense of any medical negligence claim.
1605	(b) Obtaining and maintaining professional liability
1606	coverage in an amount not less than $250,000 per claim, with a
1607	minimum annual aggregate of not less than $750,000 from an
1608	authorized insurer as defined under s. 624.09, from a surplus
1609	lines insurer as defined under s. 626.914(2), from a risk
1610	retention group as defined under s. 627.942, from the Joint
1611	Underwriting Association established under s. 627.351(4),
1612	through a plan of self-insurance as provided in s. 627.357, or
1613	through a plan of self-insurance that whichmeets the conditions
1614	specified for satisfying financial responsibility in s. 766.110.
1615	The required coverage amount set forth in this paragraph may not
1616	be used for litigation costs or attorney's fees for the defense
1617	of any medical negligence claim.
1618	(c) Obtaining and maintaining an unexpired irrevocable
1619	letter of credit, established pursuant to chapter 675, in an
1620	amount not less than $250,000 per claim, with a minimum
1621	aggregate availability of credit of not less than $750,000. The
1622	letter of credit must shallbe payable to the physician as
1623	beneficiary upon presentment of a final judgment indicating
1624	liability and awarding damages to be paid by the physician or
1625	upon presentment of a settlement agreement signed by all parties
1626	to such agreement when such final judgment or settlement is a
1627	result of a claim arising out of the rendering of, or the
1628	failure to render, medical care and services. The letter of
1629	credit may not be used for litigation costs or attorney's fees
1630	for the defense of any medical negligence claim. The Suchletter
1631	of credit must shall be nonassignable and nontransferable. The
1632	Such letter of credit must shallbe issued by any bank or
1633	savings association organized and existing under the laws of
1634	this state or any bank or savings association organized under
1635	the laws of the United States which thathas its principal place
1636	of business in this state or has a branch office that whichis
1637	authorized under the laws of this state or of the United States
1638	to receive deposits in this state.
1639
1640	This subsection shall be inclusive of the coverage in subsection
1641	(1).
1642	(3)(a) The financial responsibility requirements of
1643	subsections (1) and (2) shall apply to claims for incidents that
1644	occur on or after January 1, 1987, or the initial date of
1645	licensure in this state, whichever is later.
1646	(b)Meeting the financial responsibility requirements of
1647	this section or the criteria for any exemption from such
1648	requirements must shallbe established at the time of issuance
1649	or renewal of a license on or after January 1, 1987.
1650	(b)(c)Any person may, at any time, submit to the
1651	department a request for an advisory opinion regarding such
1652	person's qualifications for exemption.
1653	(4)(a) Each insurer, self-insurer, risk retention group,
1654	or Joint Underwriting Association must shallpromptly notify the
1655	department of cancellation or nonrenewal of insurance required
1656	by this section. Unless the physician demonstrates that he or
1657	she is otherwise in compliance with the requirements of this
1658	section, the department shall suspend the license of the
1659	physician pursuant to ss. 120.569 and 120.57 and notify all
1660	health care facilities licensed under chapter 395 of such
1661	action. Any suspension under this subsection remains shall
1662	remainin effect until the physician demonstrates compliance
1663	with the requirements of this section. If any judgments or
1664	settlements are pending at the time of suspension, those
1665	judgments or settlements must be paid in accordance with this
1666	section unless otherwise mutually agreed to in writing by the
1667	parties. This paragraph does not abrogate a judgment debtor's
1668	obligation to satisfy the entire amount of any judgment, except
1669	that a license suspended under paragraph (5)(g) shall not be
1670	reinstated until the physician demonstrates compliance with the
1671	requirements of that provision.
1672	(b) If financial responsibility requirements are met by
1673	maintaining an escrow account or letter of credit as provided in
1674	this section, upon the entry of an adverse final judgment
1675	arising from a medical malpractice arbitration award, from a
1676	claim of medical malpractice either in contract or tort, or from
1677	noncompliance with the terms of a settlement agreement arising
1678	from a claim of medical malpractice either in contract or tort,
1679	the licensee shall pay the entire amount of the judgment
1680	together with all accrued interest, or the amount maintained in
1681	the escrow account or provided in the letter of credit as
1682	required by this section, whichever is less, within 60 days
1683	after the date such judgment became final and subject to
1684	execution, unless otherwise mutually agreed to in writing by the
1685	parties. If timely payment is not made by the physician, the
1686	department shall suspend the license of the physician pursuant
1687	to procedures set forth in subparagraphs (5)(g)3., 4., and 5.
1688	Nothing in this paragraph shall abrogate a judgment debtor's
1689	obligation to satisfy the entire amount of any judgment.
1690	(5) The requirements of subsections (1), (2), and (3) do
1691	shallnot apply to:
1692	(a) Any person licensed under this chapter who practices
1693	medicine exclusively as an officer, employee, or agent of the
1694	Federal Government or of the state or its agencies or its
1695	subdivisions. For the purposes of this subsection, an agent of
1696	the state, its agencies, or its subdivisions is a person who is
1697	eligible for coverage under any self-insurance or insurance
1698	program authorized by the provisions of s. 768.28(16)(15).
1699	(b) Any person whose license has become inactive under
1700	this chapter and who is not practicing medicine in this state.
1701	Any person applying for reactivation of a license must show
1702	either that such licensee maintained tail insurance coverage
1703	that whichprovided liability coverage for incidents that
1704	occurred on or after January 1, 1987, or the initial date of
1705	licensure in this state, whichever is later, and incidents that
1706	occurred before the date on which the license became inactive;
1707	or such licensee must submit an affidavit stating that such
1708	licensee has no unsatisfied medical malpractice judgments or
1709	settlements at the time of application for reactivation.
1710	(c) Any person holding a limited license pursuant to s.
1711	458.317 and practicing under the scope of such limited license.
1712	(d) Any person licensed or certified under this chapter
1713	who practices only in conjunction with his or her teaching
1714	duties at an accredited medical school or in its main teaching
1715	hospitals. Such person may engage in the practice of medicine to
1716	the extent that such practice is incidental to and a necessary
1717	part of duties in connection with the teaching position in the
1718	medical school.
1719	(e) Any person holding an active license under this
1720	chapter who is not practicing medicine in this state. If such
1721	person initiates or resumes any practice of medicine in this
1722	state, he or she must notify the department of such activity and
1723	fulfill the financial responsibility requirements of this
1724	section before resuming the practice of medicine in this state.
1725	(f) Any person holding an active license under this
1726	chapter who meets all of the following criteria:
1727	1. The licensee has held an active license to practice in
1728	this state or another state or some combination thereof for more
1729	than 15 years.
1730	2. The licensee has either retired from the practice of
1731	medicine or maintains a part-time practice of no more than 1,000
1732	patient contact hours per year.
1733	3. The licensee has had no more than two claims for
1734	medical malpractice resulting in an indemnity exceeding $25,000
1735	within the previous 5-year period.
1736	4. The licensee has not been convicted of, or pled guilty
1737	or nolo contendere to, any criminal violation specified in this
1738	chapter or the medical practice act of any other state.
1739	5. The licensee has not been subject within the last 10
1740	years of practice to license revocation or suspension for any
1741	period of time; probation for a period of 3 years or longer; or
1742	a fine of $500 or more for a violation of this chapter or the
1743	medical practice act of another jurisdiction. The regulatory
1744	agency's acceptance of a physician's relinquishment of a
1745	license, stipulation, consent order, or other settlement,
1746	offered in response to or in anticipation of the filing of
1747	administrative charges against the physician's license,
1748	constitutes shall be construed asaction against the physician's
1749	license for the purposes of this paragraph.
1750	6. The licensee has submitted a form supplying necessary
1751	information as required by the department and an affidavit
1752	affirming compliance with the provisions ofthis paragraph.
1753	7. The licensee must shallsubmit biennially to the
1754	department certification stating compliance with the provisions
1755	of this paragraph. The licensee must shall, upon request,
1756	demonstrate to the department information verifying compliance
1757	with this paragraph.
1758
1759	A licensee who meets the requirements of this paragraph must
1760	shall be required either topost notice in the form of a sign
1761	prominently displayed in the reception area and clearly
1762	noticeable by all patients or provide a written statement to any
1763	person to whom medical services are being provided. The Such
1764	sign or statement must read as follows shall state that: "Under
1765	Florida law, physicians are generally required to carry medical
1766	malpractice insurance or otherwise demonstrate financial
1767	responsibility to cover potential claims for medical
1768	malpractice. However, certain part-time physicians who meet
1769	state requirements are exempt from the financial responsibility
1770	law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO
1771	CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided
1772	pursuant to Florida law."
1773	(g) Any person holding an active license under this
1774	chapter who agrees to meet all of the following criteria:
1775	1. Upon the entry of an adverse final judgment arising
1776	from a medical malpractice arbitration award, from a claim of
1777	medical malpractice either in contract or tort, or from
1778	noncompliance with the terms of a settlement agreement arising
1779	from a claim of medical malpractice either in contract or tort,
1780	the licensee shall pay the judgment creditor the lesser of the
1781	entire amount of the judgment with all accrued interest or
1782	either $100,000, if the physician is licensed pursuant to this
1783	chapter but does not maintain hospital staff privileges, or
1784	$250,000, if the physician is licensed pursuant to this chapter
1785	and maintains hospital staff privileges, within 60 days after
1786	the date such judgment became final and subject to execution,
1787	unless otherwise mutually agreed to in writing by the parties.
1788	Such adverse final judgment shall include any cross-claim,
1789	counterclaim, or claim for indemnity or contribution arising
1790	from the claim of medical malpractice. Upon notification of the
1791	existence of an unsatisfied judgment or payment pursuant to this
1792	subparagraph, the department shall notify the licensee by
1793	certified mail that he or she shall be subject to disciplinary
1794	action unless, within 30 days from the date of mailing, he or
1795	she either:
1796	a. Shows proof that the unsatisfied judgment has been paid
1797	in the amount specified in this subparagraph; or
1798	b. Furnishes the department with a copy of a timely filed
1799	notice of appeal and either:
1800	(I) A copy of a supersedeas bond properly posted in the
1801	amount required by law; or
1802	(II) An order from a court of competent jurisdiction
1803	staying execution on the final judgment pending disposition of
1804	the appeal.
1805	2. The Department of Health shall issue an emergency order
1806	suspending the license of any licensee who, after 30 days
1807	following receipt of a notice from the Department of Health, has
1808	failed to: satisfy a medical malpractice claim against him or
1809	her; furnish the Department of Health a copy of a timely filed
1810	notice of appeal; furnish the Department of Health a copy of a
1811	supersedeas bond properly posted in the amount required by law;
1812	or furnish the Department of Health an order from a court of
1813	competent jurisdiction staying execution on the final judgment
1814	pending disposition of the appeal.
1815	3. Upon the next meeting of the probable cause panel of
1816	the board following 30 days after the date of mailing the notice
1817	of disciplinary action to the licensee, the panel shall make a
1818	determination of whether probable cause exists to take
1819	disciplinary action against the licensee pursuant to
1820	subparagraph 1.
1821	4. If the board determines that the factual requirements
1822	of subparagraph 1. are met, it shall take disciplinary action as
1823	it deems appropriate against the licensee. Such disciplinary
1824	action shall include, at a minimum, probation of the license
1825	with the restriction that the licensee must make payments to the
1826	judgment creditor on a schedule determined by the board to be
1827	reasonable and within the financial capability of the physician.
1828	Notwithstanding any other disciplinary penalty imposed, the
1829	disciplinary penalty may include suspension of the license for a
1830	period not to exceed 5 years. In the event that an agreement to
1831	satisfy a judgment has been met, the board shall remove any
1832	restriction on the license.
1833	5. The licensee has completed a form supplying necessary
1834	information as required by the department.
1835
1836	A licensee who meets the requirements of this paragraph must
1837	shall be required either topost notice in the form of a sign
1838	prominently displayed in the reception area and clearly
1839	noticeable by all patients or toprovide a written statement to
1840	any person to whom medical services are being provided. The Such
1841	sign or statement must read as follows shall state: "Under
1842	Florida law, physicians are generally required to carry medical
1843	malpractice insurance or otherwise demonstrate financial
1844	responsibility to cover potential claims for medical
1845	malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL
1846	MALPRACTICE INSURANCE. This is permitted under Florida law
1847	subject to certain conditions. Florida law imposes penalties
1848	against noninsured physicians who fail to satisfy adverse
1849	judgments arising from claims of medical malpractice. This
1850	notice is provided pursuant to Florida law."
1851	(6) Any deceptive, untrue, or fraudulent representation by
1852	the licensee with respect to any provision of this section shall
1853	result in permanent disqualification from any exemption to
1854	mandated financial responsibility as provided in this section
1855	and shall constitute grounds for disciplinary action under s.
1856	458.331.
1857	(7) Any licensee who relies on any exemption from the
1858	financial responsibility requirement shall notify the
1859	department, in writing, of any change of circumstance regarding
1860	his or her qualifications for such exemption and shall
1861	demonstrate that he or she is in compliance with the
1862	requirements of this section.
1863	(8) Notwithstanding any other provision of this section,
1864	the department shall suspend the license of any physician
1865	against whom has been entered a final judgment, arbitration
1866	award, or other order or who has entered into a settlement
1867	agreement to pay damages arising out of a claim for medical
1868	malpractice, if all appellate remedies have been exhausted and
1869	payment up to the amounts required by this section has not been
1870	made within 30 days after the entering of such judgment, award,
1871	or order or agreement, until proof of payment is received by the
1872	department or a payment schedule has been agreed upon by the
1873	physician and the claimant and presented to the department. This
1874	subsection does not apply to a physician who has met the
1875	financial responsibility requirements in paragraphs (1)(b) and
1876	(2)(b).
1877	(9)(8)The board shall adopt rules to implement the
1878	provisions of this section.
1879	Section 24. Paragraph (t) of subsection (1) and subsection
1880	(6) of section 458.331, Florida Statutes, are amended to read:
1881	458.331 Grounds for disciplinary action; action by the
1882	board and department.--
1883	(1) The following acts constitute grounds for denial of a
1884	license or disciplinary action, as specified in s. 456.072(2):
1885	(t) Gross or repeated malpractice or the failure to
1886	practice medicine with that level of care, skill, and treatment
1887	which is recognized by a reasonably prudent similar physician as
1888	being acceptable under similar conditions and circumstances. The
1889	board shall give great weight to the provisions of s. 766.102
1890	when enforcing this paragraph. As used in this paragraph,
1891	"repeated malpractice" includes, but is not limited to, three or
1892	more claims for medical malpractice within the previous 5-year
1893	period resulting in indemnities being paid in excess of $50,000
1894	$25,000each to the claimant in a judgment or settlement and
1895	which incidents involved negligent conduct by the physician. As
1896	used in this paragraph, "gross malpractice" or "the failure to
1897	practice medicine with that level of care, skill, and treatment
1898	which is recognized by a reasonably prudent similar physician as
1899	being acceptable under similar conditions and circumstances,"
1900	shall not be construed so as to require more than one instance,
1901	event, or act. Nothing in this paragraph shall be construed to
1902	require that a physician be incompetent to practice medicine in
1903	order to be disciplined pursuant to this paragraph. A
1904	recommended order by an administrative law judge or a final
1905	order of the board finding a violation under this paragraph
1906	shall specify whether the licensee was found to have committed
1907	"gross malpractice," "repeated malpractice," or "failure to
1908	practice medicine with that level of care, skill, and treatment
1909	which is recognized as being acceptable under similar conditions
1910	and circumstances," or any combination thereof, and any
1911	publication by the board must so specify.
1912	(6) Upon the department's receipt from an insurer or self-
1913	insurer of a report of a closed claim against a physician
1914	pursuant to s. 627.912 or from a health care practitioner of a
1915	report pursuant to s. 456.049, or upon the receipt from a
1916	claimant of a presuit notice against a physician pursuant to s.
1917	766.106, the department shall review each report and determine
1918	whether it potentially involved conduct by a licensee that is
1919	subject to disciplinary action, in which case the provisions of
1920	s. 456.073 shall apply. However, if it is reported that a
1921	physician has had three or more claims with indemnities
1922	exceeding $50,000 $25,000each within the previous 5-year
1923	period, the department shall investigate the occurrences upon
1924	which the claims were based and determine if action by the
1925	department against the physician is warranted.
1926	Section 25. Section 458.3311, Florida Statutes, is created
1927	to read:
1928	458.3311 Emergency procedures for disciplinary
1929	action.--Notwithstanding any other provision of law to the
1930	contrary, no later than 30 days after a third report of a
1931	professional liability claim against a licensed physician has
1932	been submitted, within a 60-month period, as required by ss.
1933	456.049 and 627.912, the Department of Health shall initiate an
1934	emergency investigation and the Board of Medicine shall conduct
1935	an emergency probable cause hearing to determine whether the
1936	physician should be disciplined for a violation of s.
1937	458.331(1)(t) or any other relevant provision of law.
1938	Section 26. Effective upon this act becoming a law and
1939	applying to claims accruing on or after that date, section
1940	459.0085, Florida Statutes, is amended to read:
1941	459.0085 Financial responsibility.--
1942	(1) As a condition of licensing and maintaining an active
1943	license,and prior to the issuance or renewal of an active
1944	license or reactivation of an inactive license for the practice
1945	of osteopathic medicine, an applicant must shallby one of the
1946	following methods demonstrate to the satisfaction of the board
1947	and the department financial responsibility to pay claims and
1948	costs ancillary thereto arising out of the rendering of, or the
1949	failure to render, medical care or services:
1950	(a) Establishing and maintaining an escrow account
1951	consisting of cash or assets eligible for deposit in accordance
1952	with s. 625.52 in the per-claim amounts specified in paragraph
1953	(b). The required escrow amount set forth in this paragraph may
1954	not be used for litigation costs or attorney's fees for the
1955	defense of any medical negligence claim.
1956	(b) Obtaining and maintaining professional liability
1957	coverage in an amount not less than $100,000 per claim, with a
1958	minimum annual aggregate of not less than $300,000, from an
1959	authorized insurer as defined under s. 624.09, from a surplus
1960	lines insurer as defined under s. 626.914(2), from a risk
1961	retention group as defined under s. 627.942, from the Joint
1962	Underwriting Association established under s. 627.351(4), or
1963	through a plan of self-insurance as provided in s. 627.357. The
1964	required coverage amount set forth in this paragraph may not be
1965	used for litigation costs or attorney's fees for the defense of
1966	any medical negligence claim.
1967	(c) Obtaining and maintaining an unexpired, irrevocable
1968	letter of credit, established pursuant to chapter 675, in an
1969	amount not less than $100,000 per claim, with a minimum
1970	aggregate availability of credit of not less than $300,000. The
1971	letter of credit must shallbe payable to the osteopathic
1972	physician as beneficiary upon presentment of a final judgment
1973	indicating liability and awarding damages to be paid by the
1974	osteopathic physician or upon presentment of a settlement
1975	agreement signed by all parties to such agreement when such
1976	final judgment or settlement is a result of a claim arising out
1977	of the rendering of, or the failure to render, medical care and
1978	services. The letter of credit may not be used for litigation
1979	costs or attorney's fees for the defense of any medical
1980	negligence claim. The Such letter of credit must shallbe
1981	nonassignable and nontransferable. The Such letter of credit
1982	must shallbe issued by any bank or savings association
1983	organized and existing under the laws of this state or any bank
1984	or savings association organized under the laws of the United
1985	States which thathas its principal place of business in this
1986	state or has a branch office that whichis authorized under the
1987	laws of this state or of the United States to receive deposits
1988	in this state.
1989	(2) Osteopathic physicians who perform surgery in an
1990	ambulatory surgical center licensed under chapter 395 and,as a
1991	continuing condition of hospital staff privileges, osteopathic
1992	physicians who have with staff privileges must shall also be
1993	required toestablish financial responsibility by one of the
1994	following methods:
1995	(a) Establishing and maintaining an escrow account
1996	consisting of cash or assets eligible for deposit in accordance
1997	with s. 625.52 in the per-claim amounts specified in paragraph
1998	(b). The required escrow amount set forth in this paragraph may
1999	not be used for litigation costs or attorney's fees for the
2000	defense of any medical negligence claim.
2001	(b) Obtaining and maintaining professional liability
2002	coverage in an amount not less than $250,000 per claim, with a
2003	minimum annual aggregate of not less than $750,000 from an
2004	authorized insurer as defined under s. 624.09, from a surplus
2005	lines insurer as defined under s. 626.914(2), from a risk
2006	retention group as defined under s. 627.942, from the Joint
2007	Underwriting Association established under s. 627.351(4),
2008	through a plan of self-insurance as provided in s. 627.357, or
2009	through a plan of self-insurance that whichmeets the conditions
2010	specified for satisfying financial responsibility in s. 766.110.
2011	The required coverage amount set forth in this paragraph may not
2012	be used for litigation costs or attorney's fees for the defense
2013	of any medical negligence claim.
2014	(c) Obtaining and maintaining an unexpired, irrevocable
2015	letter of credit, established pursuant to chapter 675, in an
2016	amount not less than $250,000 per claim, with a minimum
2017	aggregate availability of credit of not less than $750,000. The
2018	letter of credit must shallbe payable to the osteopathic
2019	physician as beneficiary upon presentment of a final judgment
2020	indicating liability and awarding damages to be paid by the
2021	osteopathic physician or upon presentment of a settlement
2022	agreement signed by all parties to such agreement when such
2023	final judgment or settlement is a result of a claim arising out
2024	of the rendering of, or the failure to render, medical care and
2025	services. The letter of credit may not be used for litigation
2026	costs or attorney's fees for the defense of any medical
2027	negligence claim. The Such letter of credit must shallbe
2028	nonassignable and nontransferable. The Such letter of credit
2029	must shallbe issued by any bank or savings association
2030	organized and existing under the laws of this state or any bank
2031	or savings association organized under the laws of the United
2032	States which thathas its principal place of business in this
2033	state or has a branch office that whichis authorized under the
2034	laws of this state or of the United States to receive deposits
2035	in this state.
2036
2037	This subsection shall be inclusive of the coverage in subsection
2038	(1).
2039	(3)(a) The financial responsibility requirements of
2040	subsections (1) and (2) shall apply to claims for incidents that
2041	occur on or after January 1, 1987, or the initial date of
2042	licensure in this state, whichever is later.
2043	(b)Meeting the financial responsibility requirements of
2044	this section or the criteria for any exemption from such
2045	requirements must shallbe established at the time of issuance
2046	or renewal of a license on or after January 1, 1987.
2047	(b)(c)Any person may, at any time, submit to the
2048	department a request for an advisory opinion regarding such
2049	person's qualifications for exemption.
2050	(4)(a) Each insurer, self-insurer, risk retention group,
2051	or joint underwriting association must shallpromptly notify the
2052	department of cancellation or nonrenewal of insurance required
2053	by this section. Unless the osteopathic physician demonstrates
2054	that he or she is otherwise in compliance with the requirements
2055	of this section, the department shall suspend the license of the
2056	osteopathic physician pursuant to ss. 120.569 and 120.57 and
2057	notify all health care facilities licensed under chapter 395,
2058	part IV of chapter 394, or part I of chapter 641 of such action.
2059	Any suspension under this subsection remains shall remainin
2060	effect until the osteopathic physician demonstrates compliance
2061	with the requirements of this section. If any judgments or
2062	settlements are pending at the time of suspension, those
2063	judgments or settlements must be paid in accordance with this
2064	section unless otherwise mutually agreed to in writing by the
2065	parties. This paragraph does not abrogate a judgment debtor's
2066	obligation to satisfy the entire amount of any judgment except
2067	that a license suspended under paragraph (5)(g) shall not be
2068	reinstated until the osteopathic physician demonstrates
2069	compliance with the requirements of that provision.
2070	(b) If financial responsibility requirements are met by
2071	maintaining an escrow account or letter of credit as provided in
2072	this section, upon the entry of an adverse final judgment
2073	arising from a medical malpractice arbitration award, from a
2074	claim of medical malpractice either in contract or tort, or from
2075	noncompliance with the terms of a settlement agreement arising
2076	from a claim of medical malpractice either in contract or tort,
2077	the licensee shall pay the entire amount of the judgment
2078	together with all accrued interest or the amount maintained in
2079	the escrow account or provided in the letter of credit as
2080	required by this section, whichever is less, within 60 days
2081	after the date such judgment became final and subject to
2082	execution, unless otherwise mutually agreed to in writing by the
2083	parties. If timely payment is not made by the osteopathic
2084	physician, the department shall suspend the license of the
2085	osteopathic physician pursuant to procedures set forth in
2086	subparagraphs(5)(g)3., 4., and 5. Nothing in this paragraph
2087	shall abrogate a judgment debtor's obligation to satisfy the
2088	entire amount of any judgment.
2089	(5) The requirements of subsections (1), (2), and (3) do
2090	shallnot apply to:
2091	(a) Any person licensed under this chapter who practices
2092	medicine exclusively as an officer, employee, or agent of the
2093	Federal Government or of the state or its agencies or its
2094	subdivisions. For the purposes of this subsection, an agent of
2095	the state, its agencies, or its subdivisions is a person who is
2096	eligible for coverage under any self-insurance or insurance
2097	program authorized by the provisions of s. 768.28(16)(15).
2098	(b) Any person whose license has become inactive under
2099	this chapter and who is not practicing medicine in this state.
2100	Any person applying for reactivation of a license must show
2101	either that such licensee maintained tail insurance coverage
2102	that whichprovided liability coverage for incidents that
2103	occurred on or after January 1, 1987, or the initial date of
2104	licensure in this state, whichever is later, and incidents that
2105	occurred before the date on which the license became inactive;
2106	or such licensee must submit an affidavit stating that such
2107	licensee has no unsatisfied medical malpractice judgments or
2108	settlements at the time of application for reactivation.
2109	(c) Any person holding a limited license pursuant to s.
2110	459.0075 and practicing under the scope of such limited license.
2111	(d) Any person licensed or certified under this chapter
2112	who practices only in conjunction with his or her teaching
2113	duties at a college of osteopathic medicine. Such person may
2114	engage in the practice of osteopathic medicine to the extent
2115	that such practice is incidental to and a necessary part of
2116	duties in connection with the teaching position in the college
2117	of osteopathic medicine.
2118	(e) Any person holding an active license under this
2119	chapter who is not practicing osteopathic medicine in this
2120	state. If such person initiates or resumes any practice of
2121	osteopathic medicine in this state, he or she must notify the
2122	department of such activity and fulfill the financial
2123	responsibility requirements of this section before resuming the
2124	practice of osteopathic medicine in this state.
2125	(f) Any person holding an active license under this
2126	chapter who meets all of the following criteria:
2127	1. The licensee has held an active license to practice in
2128	this state or another state or some combination thereof for more
2129	than 15 years.
2130	2. The licensee has either retired from the practice of
2131	osteopathic medicine or maintains a part-time practice of
2132	osteopathic medicine of no more than 1,000 patient contact hours
2133	per year.
2134	3. The licensee has had no more than two claims for
2135	medical malpractice resulting in an indemnity exceeding $25,000
2136	within the previous 5-year period.
2137	4. The licensee has not been convicted of, or pled guilty
2138	or nolo contendere to, any criminal violation specified in this
2139	chapter or the practice act of any other state.
2140	5. The licensee has not been subject within the last 10
2141	years of practice to license revocation or suspension for any
2142	period of time, probation for a period of 3 years or longer, or
2143	a fine of $500 or more for a violation of this chapter or the
2144	medical practice act of another jurisdiction. The regulatory
2145	agency's acceptance of an osteopathic physician's relinquishment
2146	of a license, stipulation, consent order, or other settlement,
2147	offered in response to or in anticipation of the filing of
2148	administrative charges against the osteopathic physician's
2149	license, constitutes shall be construed asaction against the
2150	physician's license for the purposes of this paragraph.
2151	6. The licensee has submitted a form supplying necessary
2152	information as required by the department and an affidavit
2153	affirming compliance with the provisions ofthis paragraph.
2154	7. The licensee must shallsubmit biennially to the
2155	department a certification stating compliance with the
2156	provisions of this paragraph. The licensee must shall, upon
2157	request, demonstrate to the department information verifying
2158	compliance with this paragraph.
2159
2160	A licensee who meets the requirements of this paragraph must
2161	shall be required either topost notice in the form of a sign
2162	prominently displayed in the reception area and clearly
2163	noticeable by all patients or toprovide a written statement to
2164	any person to whom medical services are being provided. The Such
2165	sign or statement must read as follows shall state that: "Under
2166	Florida law, osteopathic physicians are generally required to
2167	carry medical malpractice insurance or otherwise demonstrate
2168	financial responsibility to cover potential claims for medical
2169	malpractice. However, certain part-time osteopathic physicians
2170	who meet state requirements are exempt from the financial
2171	responsibility law. YOUR OSTEOPATHIC PHYSICIAN MEETS THESE
2172	REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE
2173	INSURANCE. This notice is provided pursuant to Florida law."
2174	(g) Any person holding an active license under this
2175	chapter who agrees to meet all of the following criteria:
2176	1. Upon the entry of an adverse final judgment arising
2177	from a medical malpractice arbitration award, from a claim of
2178	medical malpractice either in contract or tort, or from
2179	noncompliance with the terms of a settlement agreement arising
2180	from a claim of medical malpractice either in contract or tort,
2181	the licensee shall pay the judgment creditor the lesser of the
2182	entire amount of the judgment with all accrued interest or
2183	either $100,000, if the osteopathic physician is licensed
2184	pursuant to this chapter but does not maintain hospital staff
2185	privileges, or $250,000, if the osteopathic physician is
2186	licensed pursuant to this chapter and maintains hospital staff
2187	privileges, within 60 days after the date such judgment became
2188	final and subject to execution, unless otherwise mutually agreed
2189	to in writing by the parties. Such adverse final judgment shall
2190	include any cross-claim, counterclaim, or claim for indemnity or
2191	contribution arising from the claim of medical malpractice. Upon
2192	notification of the existence of an unsatisfied judgment or
2193	payment pursuant to this subparagraph, the department shall
2194	notify the licensee by certified mail that he or she shall be
2195	subject to disciplinary action unless, within 30 days from the
2196	date of mailing, the licensee either:
2197	a. Shows proof that the unsatisfied judgment has been paid
2198	in the amount specified in this subparagraph; or
2199	b. Furnishes the department with a copy of a timely filed
2200	notice of appeal and either:
2201	(I) A copy of a supersedeas bond properly posted in the
2202	amount required by law; or
2203	(II) An order from a court of competent jurisdiction
2204	staying execution on the final judgment, pending disposition of
2205	the appeal.
2206	2. The Department of Health shall issue an emergency order
2207	suspending the license of any licensee who, after 30 days
2208	following receipt of a notice from the Department of Health, has
2209	failed to: satisfy a medical malpractice claim against him or
2210	her; furnish the Department of Health a copy of a timely filed
2211	notice of appeal; furnish the Department of Health a copy of a
2212	supersedeas bond properly posted in the amount required by law;
2213	or furnish the Department of Health an order from a court of
2214	competent jurisdiction staying execution on the final judgment
2215	pending disposition of the appeal.
2216	3. Upon the next meeting of the probable cause panel of
2217	the board following 30 days after the date of mailing the notice
2218	of disciplinary action to the licensee, the panel shall make a
2219	determination of whether probable cause exists to take
2220	disciplinary action against the licensee pursuant to
2221	subparagraph 1.
2222	4. If the board determines that the factual requirements
2223	of subparagraph 1. are met, it shall take disciplinary action as
2224	it deems appropriate against the licensee. Such disciplinary
2225	action shall include, at a minimum, probation of the license
2226	with the restriction that the licensee must make payments to the
2227	judgment creditor on a schedule determined by the board to be
2228	reasonable and within the financial capability of the
2229	osteopathic physician. Notwithstanding any other disciplinary
2230	penalty imposed, the disciplinary penalty may include suspension
2231	of the license for a period not to exceed 5 years. In the event
2232	that an agreement to satisfy a judgment has been met, the board
2233	shall remove any restriction on the license.
2234	5. The licensee has completed a form supplying necessary
2235	information as required by the department.
2236
2237	A licensee who meets the requirements of this paragraph must
2238	shall be required either topost notice in the form of a sign
2239	prominently displayed in the reception area and clearly
2240	noticeable by all patients or toprovide a written statement to
2241	any person to whom medical services are being provided. The Such
2242	sign or statement must read as follows shall state: "Under
2243	Florida law, osteopathic physicians are generally required to
2244	carry medical malpractice insurance or otherwise demonstrate
2245	financial responsibility to cover potential claims for medical
2246	malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO CARRY
2247	MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida
2248	law subject to certain conditions. Florida law imposes strict
2249	penalties against noninsured osteopathic physicians who fail to
2250	satisfy adverse judgments arising from claims of medical
2251	malpractice. This notice is provided pursuant to Florida law."
2252	(6) Any deceptive, untrue, or fraudulent representation by
2253	the licensee with respect to any provision of this section shall
2254	result in permanent disqualification from any exemption to
2255	mandated financial responsibility as provided in this section
2256	and shall constitute grounds for disciplinary action under s.
2257	459.015.
2258	(7) Any licensee who relies on any exemption from the
2259	financial responsibility requirement shall notify the department
2260	in writing of any change of circumstance regarding his or her
2261	qualifications for such exemption and shall demonstrate that he
2262	or she is in compliance with the requirements of this section.
2263	(8) If a physician is either a resident physician,
2264	assistant resident physician, or intern in an approved
2265	postgraduate training program, as defined by the board's rules,
2266	and is supervised by a physician who is participating in the
2267	Florida Birth-Related Neurological Injury Compensation Plan,
2268	such resident physician, assistant resident physician, or intern
2269	is deemed to be a participating physician without the payment of
2270	the assessment set forth in s. 766.314(4).
2271	(9) Notwithstanding any other provision of this section,
2272	the department shall suspend the license of any osteopathic
2273	physician against whom has been entered a final judgment,
2274	arbitration award, or other order or who has entered into a
2275	settlement agreement to pay damages arising out of a claim for
2276	medical negligence, if all appellate remedies have been
2277	exhausted and payment up to the amounts required by this section
2278	has not been made within 30 days after the entering of such
2279	judgment, award, or order or agreement, until proof of payment
2280	is received by the department or a payment schedule has been
2281	agreed upon by the osteopathic physician and the claimant and
2282	presented to the department. This subsection does not apply to
2283	an osteopathic physician who has met the financial
2284	responsibility requirements in paragraphs (1)(b) and (2)(b).
2285	(10)(9)The board shall adopt rules to implement the
2286	provisions of this section.
2287	Section 27. Paragraph (x) of subsection (1) and subsection
2288	(6) of section 459.015, Florida Statutes, are amended to read:
2289	459.015 Grounds for disciplinary action; action by the
2290	board and department.--
2291	(1) The following acts constitute grounds for denial of a
2292	license or disciplinary action, as specified in s. 456.072(2):
2293	(x) Gross or repeated malpractice or the failure to
2294	practice osteopathic medicine with that level of care, skill,
2295	and treatment which is recognized by a reasonably prudent
2296	similar osteopathic physician as being acceptable under similar
2297	conditions and circumstances. The board shall give great weight
2298	to the provisions of s. 766.102 when enforcing this paragraph.
2299	As used in this paragraph, "repeated malpractice" includes, but
2300	is not limited to, three or more claims for medical malpractice
2301	within the previous 5-year period resulting in indemnities being
2302	paid in excess of $50,000 $25,000each to the claimant in a
2303	judgment or settlement and which incidents involved negligent
2304	conduct by the osteopathic physician. As used in this paragraph,
2305	"gross malpractice" or "the failure to practice osteopathic
2306	medicine with that level of care, skill, and treatment which is
2307	recognized by a reasonably prudent similar osteopathic physician
2308	as being acceptable under similar conditions and circumstances"
2309	shall not be construed so as to require more than one instance,
2310	event, or act. Nothing in this paragraph shall be construed to
2311	require that an osteopathic physician be incompetent to practice
2312	osteopathic medicine in order to be disciplined pursuant to this
2313	paragraph. A recommended order by an administrative law judge or
2314	a final order of the board finding a violation under this
2315	paragraph shall specify whether the licensee was found to have
2316	committed "gross malpractice," "repeated malpractice," or
2317	"failure to practice osteopathic medicine with that level of
2318	care, skill, and treatment which is recognized as being
2319	acceptable under similar conditions and circumstances," or any
2320	combination thereof, and any publication by the board shall so
2321	specify.
2322	(6) Upon the department's receipt from an insurer or self-
2323	insurer of a report of a closed claim against an osteopathic
2324	physician pursuant to s. 627.912 or from a health care
2325	practitioner of a report pursuant to s. 456.049, or upon the
2326	receipt from a claimant of a presuit notice against an
2327	osteopathic physician pursuant to s. 766.106, the department
2328	shall review each report and determine whether it potentially
2329	involved conduct by a licensee that is subject to disciplinary
2330	action, in which case the provisions of s. 456.073 shall apply.
2331	However, if it is reported that an osteopathic physician has had
2332	three or more claims with indemnities exceeding $50,000 $25,000
2333	each within the previous 5-year period, the department shall
2334	investigate the occurrences upon which the claims were based and
2335	determine if action by the department against the osteopathic
2336	physician is warranted.
2337	Section 28. Section 459.0151, Florida Statutes, is created
2338	to read:
2339	459.0151 Emergency procedures for disciplinary
2340	action.--Notwithstanding any other provision of law to the
2341	contrary, no later than 30 days after a third report of a
2342	professional liability claim against a licensed osteopathic
2343	physician has been submitted, within a 60-month period, as
2344	required by ss. 456.049 and 627.912, the Department of Health
2345	shall initiate an emergency investigation and the Board of
2346	Osteopathic Medicine shall conduct an emergency probable cause
2347	hearing to determine whether the physician should be disciplined
2348	for a violation of s. 459.015(1)(x) or any other relevant
2349	provision of law.
2350	Section 29. Paragraph (s) of subsection (1) and paragraph
2351	(a) of subsection (5) of section 461.013, Florida Statutes, are
2352	amended to read:
2353	461.013 Grounds for disciplinary action; action by the
2354	board; investigations by department.--
2355	(1) The following acts constitute grounds for denial of a
2356	license or disciplinary action, as specified in s. 456.072(2):
2357	(s) Gross or repeated malpractice or the failure to
2358	practice podiatric medicine at a level of care, skill, and
2359	treatment which is recognized by a reasonably prudent podiatric
2360	physician as being acceptable under similar conditions and
2361	circumstances. The board shall give great weight to the
2362	standards for negligence malpracticein s. 766.102 in
2363	interpreting this section. As used in this paragraph, "repeated
2364	malpractice" includes, but is not limited to, three or more
2365	claims for medical malpractice within the previous 5-year period
2366	resulting in indemnities being paid in excess of $50,000 $10,000
2367	each to the claimant in a judgment or settlement and which
2368	incidents involved negligent conduct by the podiatric
2369	physicians. As used in this paragraph, "gross malpractice" or
2370	"the failure to practice podiatric medicine with the level of
2371	care, skill, and treatment which is recognized by a reasonably
2372	prudent similar podiatric physician as being acceptable under
2373	similar conditions and circumstances" shall not be construed so
2374	as to require more than one instance, event, or act. A
2375	recommended order by an administrative law judge or a final
2376	order of the board finding a violation under this paragraph
2377	shall specify whether the licensee was found to have committed
2378	"gross malpractice," "repeated malpractice," or "failure to
2379	practice podiatric medicine with that level of care, skill, and
2380	treatment which is recognized as being acceptable under similar
2381	conditions and circumstances," or any combination thereof, and
2382	any publication by the board must so specify.
2383	(5)(a) Upon the department's receipt from an insurer or
2384	self-insurer of a report of a closed claim against a podiatric
2385	physician pursuant to s. 627.912, or upon the receipt from a
2386	claimant of a presuit notice against a podiatric physician
2387	pursuant to s. 766.106, the department shall review each report
2388	and determine whether it potentially involved conduct by a
2389	licensee that is subject to disciplinary action, in which case
2390	the provisions of s. 456.073 shall apply. However, if it is
2391	reported that a podiatric physician has had three or more claims
2392	with indemnities exceeding $50,000 $25,000each within the
2393	previous 5-year period, the department shall investigate the
2394	occurrences upon which the claims were based and determine if
2395	action by the department against the podiatric physician is
2396	warranted.
2397	Section 30. Section 461.0131, Florida Statutes, is created
2398	to read:
2399	461.0131 Emergency procedures for disciplinary
2400	action.--Notwithstanding any other provision of law to the
2401	contrary, no later than 30 days after a third report of a
2402	professional liability claim against a licensed podiatric
2403	physician has been submitted, within a 60-month period, as
2404	required by ss. 456.049 and 627.912, the Department of Health
2405	shall initiate an emergency investigation and the Board of
2406	Podiatric Medicine shall conduct an emergency probable cause
2407	hearing to determine whether the physician should be disciplined
2408	for a violation of s. 461.013(1)(s) or any other relevant
2409	provision of law.
2410	Section 31. Paragraph (x) of subsection (1) of section
2411	466.028, Florida Statutes, is amended to read:
2412	466.028 Grounds for disciplinary action; action by the
2413	board.--
2414	(1) The following acts constitute grounds for denial of a
2415	license or disciplinary action, as specified in s. 456.072(2):
2416	(x) Being guilty of incompetence or negligence by failing
2417	to meet the minimum standards of performance in diagnosis and
2418	treatment when measured against generally prevailing peer
2419	performance, including, but not limited to, the undertaking of
2420	diagnosis and treatment for which the dentist is not qualified
2421	by training or experience or being guilty of dental malpractice.
2422	For purposes of this paragraph, it shall be legally presumed
2423	that a dentist is not guilty of incompetence or negligence by
2424	declining to treat an individual if, in the dentist's
2425	professional judgment, the dentist or a member of her or his
2426	clinical staff is not qualified by training and experience, or
2427	the dentist's treatment facility is not clinically satisfactory
2428	or properly equipped to treat the unique characteristics and
2429	health status of the dental patient, provided the dentist refers
2430	the patient to a qualified dentist or facility for appropriate
2431	treatment. As used in this paragraph, "dental malpractice"
2432	includes, but is not limited to, three or more claims within the
2433	previous 5-year period which resulted in indemnity being paid,
2434	or any single indemnity paid in excess of $25,000 $5,000in a
2435	judgment or settlement, as a result of negligent conduct on the
2436	part of the dentist.
2437	Section 32. Subsections (2), (3), and (6) of section
2438	624.462, Florida Statutes, are amended to read:
2439	624.462 Commercial self-insurance funds.--
2440	(2) As used in ss. 624.460-624.488, "commercial self-
2441	insurance fund" or "fund" means a group of members, operating
2442	individually and collectively through a trust or corporation,
2443	that must be:
2444	(a) Established by:
2445	1. A not-for-profit trade association, industry
2446	association, or professional association of employers or
2447	professionals which has a constitution or bylaws, which is
2448	incorporated under the laws of this state, and which has been
2449	organized for purposes other than that of obtaining or providing
2450	insurance and operated in good faith for a continuous period of
2451	1 year;
2452	2. A self-insurance trust fund organized pursuant to s.
2453	627.357 and maintained in good faith for a continuous period of
2454	1 year for purposes other than that of obtaining or providing
2455	insurance pursuant to this section. Each member of a commercial
2456	self-insurance trust fund established pursuant to this
2457	subsection must maintain membership in the self-insurance trust
2458	fund organized pursuant to s. 627.357; or
2459	3. A group of 10 or more health care providers, as defined
2460	in s. 627.351(4)(h), for purposes of providing medical
2461	malpractice coverage; or
2462	4.3.A not-for-profit group comprised of no less than 10
2463	condominium associations as defined in s. 718.103(2), which is
2464	incorporated under the laws of this state, which restricts its
2465	membership to condominium associations only, and which has been
2466	organized and maintained in good faith for a continuous period
2467	of 1 year for purposes other than that of obtaining or providing
2468	insurance.
2469	(b)1. In the case of funds established pursuant to
2470	subparagraph (a)2. or subparagraph (a)4.3., operated pursuant to
2471	a trust agreement by a board of trustees which shall have
2472	complete fiscal control over the fund and which shall be
2473	responsible for all operations of the fund. The majority of the
2474	trustees shall be owners, partners, officers, directors, or
2475	employees of one or more members of the fund. The trustees
2476	shall have the authority to approve applications of members for
2477	participation in the fund and to contract with an authorized
2478	administrator or servicing company to administer the day-to-day
2479	affairs of the fund.
2480	2. In the case of funds established pursuant to
2481	subparagraph (a)1. or subparagraph (a)3., operated pursuant to a
2482	trust agreement by a board of trustees or as a corporation by a
2483	board of directors which board shall:
2484	a. Be responsible to members of the fund or beneficiaries
2485	of the trust or policyholders of the corporation;
2486	b. Appoint independent certified public accountants, legal
2487	counsel, actuaries, and investment advisers as needed;
2488	c. Approve payment of dividends to members;
2489	d. Approve changes in corporate structure; and
2490	e. Have the authority to contract with an administrator
2491	authorized under s. 626.88 to administer the day-to-day affairs
2492	of the fund including, but not limited to, marketing,
2493	underwriting, billing, collection, claims administration, safety
2494	and loss prevention, reinsurance, policy issuance, accounting,
2495	regulatory reporting, and general administration. The fees or
2496	compensation for services under such contract shall be
2497	comparable to the costs for similar services incurred by
2498	insurers writing the same lines of insurance, or where available
2499	such expenses as filed by boards, bureaus, and associations
2500	designated by insurers to file such data. A majority of the
2501	trustees or directors shall be owners, partners, officers,
2502	directors, or employees of one or more members of the fund.
2503	(3) Each member of a commercial self-insurance trust fund
2504	established pursuant to this section, except a fund established
2505	pursuant to subparagraph (2)(a)3.,must maintain membership in
2506	the association or self-insurance trust fund established under
2507	s. 627.357. Membership in a not-for-profit trade association,
2508	industry association, or professional association of employers
2509	or professionals for the purpose of obtaining or providing
2510	insurance shall be in accordance with the constitution or bylaws
2511	of the association, and the dues, fees, or other costs of
2512	membership shall not be different for members obtaining
2513	insurance from the commercial self-insurance fund. The
2514	association shall not be liable for any actions of the fund nor
2515	shall it have any responsibility for establishing or enforcing
2516	any policy of the commercial self-insurance fund. Fees,
2517	services, and other aspects of the relationship between the
2518	association and the fund shall be subject to contractual
2519	agreement.
2520	(6) A governmental self-insurance pool created pursuant to
2521	s. 768.28(16)(15)shall not be considered a commercial self-
2522	insurance fund.
2523	Section 33. Paragraph (a) of subsection (6) of section
2524	627.062, Florida Statutes, as amended by section 1064 of chapter
2525	2003-261, Laws of Florida, is amended, and subsections (7) and
2526	(8) are added to said section, to read:
2527	627.062 Rate standards.--
2528	(6)(a) After any action with respect to a rate filing that
2529	constitutes agency action for purposes of the Administrative
2530	Procedure Act, except for a rate filing for medical malpractice
2531	insurance,an insurer may, in lieu of demanding a hearing under
2532	s. 120.57, require arbitration of the rate filing. Arbitration
2533	shall be conducted by a board of arbitrators consisting of an
2534	arbitrator selected by the office, an arbitrator selected by the
2535	insurer, and an arbitrator selected jointly by the other two
2536	arbitrators. Each arbitrator must be certified by the American
2537	Arbitration Association. A decision is valid only upon the
2538	affirmative vote of at least two of the arbitrators. No
2539	arbitrator may be an employee of any insurance regulator or
2540	regulatory body or of any insurer, regardless of whether or not
2541	the employing insurer does business in this state. The office
2542	and the insurer must treat the decision of the arbitrators as
2543	the final approval of a rate filing. Costs of arbitration shall
2544	be paid by the insurer.
2545	(7)(a) The provisions of this subsection apply only with
2546	respect to rates for medical malpractice insurance and shall
2547	control to the extent of any conflict with other provisions of
2548	this section.
2549	(b) Any portion of a judgment entered or settlement paid
2550	as a result of a statutory or common-law bad faith action and
2551	any portion of a judgment entered which awards punitive damages
2552	against an insurer may not be included in the insurer's rate
2553	base and shall not be used to justify a rate or rate change. Any
2554	common-law bad faith action identified as such and any portion
2555	of a settlement entered as a result of a statutory bad faith
2556	action or portion of a settlement wherein an insurer agrees to
2557	pay specific punitive damages may not be used to justify a rate
2558	or rate change. The portion of the taxable costs and attorney's
2559	fees which is identified as being related to the bad faith and
2560	punitive damages in these judgments and settlements may not be
2561	included in the insurer's rate base and may not be utilized to
2562	justify a rate or rate change.
2563	(c) Upon reviewing a rate filing and determining whether
2564	the rate is excessive, inadequate, or unfairly discriminatory,
2565	the office shall consider, in accordance with generally accepted
2566	and reasonable actuarial techniques, past and present
2567	prospective loss experience, either using loss experience solely
2568	for this state or giving greater credibility to this state's
2569	loss data after applying actuarially sound methods of assigning
2570	credibility to such data.
2571	(d) Rates shall be deemed excessive if, among other
2572	standards established by this section, the rate structure
2573	provides for replenishment of reserves or surpluses from
2574	premiums when the replenishment is attributable to investment
2575	losses.
2576	(e) The insurer must apply a discount or surcharge based
2577	on the health care provider's loss experience or shall establish
2578	an alternative method giving due consideration to the provider's
2579	loss experience. The insurer must include in the filing a copy
2580	of the surcharge or discount schedule or a description of the
2581	alternative method used and must provide a copy of such schedule
2582	or description, as approved by the office, to policyholders at
2583	the time of renewal and to prospective policyholders at the time
2584	of application for coverage.
2585	(f) Each medical malpractice insurer must make a rate
2586	filing under this section, sworn to by at least two executive
2587	officers of the insurer, at least once each calendar year.
2588	(8)(a)1. No later than 60 days after the effective date of
2589	medical malpractice legislation enacted during the 2003 Special
2590	Session D of the Florida Legislature, the office shall calculate
2591	a presumed factor that reflects the impact the changes contained
2592	in such legislation will have on rates for medical malpractice
2593	insurance and shall issue a notice informing all insurers
2594	writing medical malpractice coverage of such presumed factor. In
2595	determining the presumed factor, the office shall use generally
2596	accepted actuarial techniques and standards provided in this
2597	section in determining the expected impact on losses, expenses,
2598	and investment income of the insurer. To the extent that the
2599	operation of a provision of any medical malpractice legislation
2600	enacted during the 2003 Special Session D of the Florida
2601	Legislature is stayed pending a constitutional challenge, the
2602	impact of that provision shall not be included in the
2603	calculation of a presumed factor under this subparagraph.
2604	2. No later than 60 days after the office issues its
2605	notice of the presumed rate change factor under subparagraph 1.,
2606	each insurer writing medical malpractice coverage in this state
2607	shall submit to the office a rate filing for medical malpractice
2608	insurance, which will take effect no later than January 1, 2004,
2609	and apply retroactively to policies issued or renewed on or
2610	after the effective date of medical malpractice legislation
2611	enacted during the 2003 Special Session D of the Florida
2612	Legislature. Except as authorized under paragraph (b), the
2613	filing shall reflect an overall rate reduction at least as great
2614	as the presumed factor determined under subparagraph 1. With
2615	respect to policies issued or renewed on or after the effective
2616	date of such legislation and prior to the effective date of the
2617	rate filing required by this subsection, the office shall order
2618	the insurer to make a refund of the amount that was charged in
2619	excess of the rate that is approved.
2620	(b) Any insurer or rating organization that contends that
2621	the rate provided for in paragraph (a) is excessive, inadequate,
2622	or unfairly discriminatory shall separately state in its filing
2623	the rate it contends is appropriate and shall state with
2624	specificity the factors or data that it contends should be
2625	considered in order to produce such appropriate rate. The
2626	insurer or rating organization shall be permitted to use all of
2627	the generally accepted actuarial techniques provided in this
2628	section in making any filing pursuant to this subsection. The
2629	office shall review each such exception and approve or
2630	disapprove it prior to use. It shall be the insurer's burden to
2631	actuarially justify any deviations from the rates required to be
2632	filed under paragraph (a). The insurer making a filing under
2633	this paragraph shall include in the filing the expected impact
2634	of all malpractice legislation enacted during the 2003 Special
2635	Session D of the Florida Legislature on losses, expenses, and
2636	rates.
2637	(c) If any provision of medical malpractice legislation
2638	enacted during the 2003 Special Session D of the Florida
2639	Legislature is held invalid by a court of competent
2640	jurisdiction, the office shall permit an adjustment of all
2641	medical malpractice rates filed under this section to reflect
2642	the impact of such holding on such rates so as to ensure that
2643	the rates are not excessive, inadequate, or unfairly
2644	discriminatory.
2645	(d) Rates approved on or before July 1, 2003, for medical
2646	malpractice insurance shall remain in effect until the effective
2647	date of a new rate filing approved under this subsection.
2648	(e) The calculation and notice by the office of the
2649	presumed factor pursuant to paragraph (a) is not an order or
2650	rule that is subject to chapter 120. If the office enters into a
2651	contract with an independent consultant to assist the office in
2652	calculating the presumed factor, such contract shall not be
2653	subject to the competitive solicitation requirements of s.
2654	287.057.
2655	Section 34. Subsections (6) and (10) of section 627.357,
2656	Florida Statutes, as amended by section 1107 of chapter 2003-
2657	261, Laws of Florida, are amended to read:
2658	627.357 Medical malpractice self-insurance.--
2659	(6) The commission shall adopt rules to implement this
2660	section, including rules that ensure that a trust fund remains
2661	solvent andmaintains a sufficient reserve to cover contingent
2662	liabilities under subsection (7) in the event of its
2663	dissolution.
2664	(10) A self-insurance fund may not be formed under this
2665	section after October 1, 1992.
2666	Section 35. Subsection (1) of section 627.4147, Florida
2667	Statutes, is amended to read:
2668	627.4147 Medical malpractice insurance contracts.--
2669	(1) In addition to any other requirements imposed by law,
2670	each self-insurance policy as authorized under s. 627.357 or s.
2671	624.462or insurance policy providing coverage for claims
2672	arising out of the rendering of, or the failure to render,
2673	medical care or services, including those of the Florida Medical
2674	Malpractice Joint Underwriting Association, shall include:
2675	(a) A clause requiring the insured to cooperate fully in
2676	the review process prescribed under s. 766.106 if a notice of
2677	intent to file a claim for medical negligence malpracticeis
2678	made against the insured.
2679	(b)1. Except as provided in subparagraph 2., a clause
2680	authorizing the insurer or self-insurer to determine, to make,
2681	and to conclude, without the permission of the insured, any
2682	offer of admission of liability and for arbitration pursuant to
2683	s. 766.106, settlement offer, or offer of judgment, if the offer
2684	is within the policy limits. It is against public policy for any
2685	insurance or self-insurance policy to contain a clause giving
2686	the insured the exclusive right to veto any offer for admission
2687	of liability and for arbitration made pursuant to s. 766.106,
2688	settlement offer, or offer of judgment, when such offer is
2689	within the policy limits. However, any offer of admission of
2690	liability, settlement offer, or offer of judgment made by an
2691	insurer or self-insurer shall be made in good faith and in the
2692	best interests of the insured.
2693	2.a. With respect to dentists licensed under chapter 466,
2694	a clause clearly stating whether or not the insured has the
2695	exclusive right to veto any offer of admission of liability and
2696	for arbitration pursuant to s. 766.106, settlement offer, or
2697	offer of judgment if the offer is within policy limits. An
2698	insurer or self-insurer shall not make or conclude, without the
2699	permission of the insured, any offer of admission of liability
2700	and for arbitration pursuant to s. 766.106, settlement offer, or
2701	offer of judgment, if such offer is outside the policy limits.
2702	However, any offer for admission of liability and for
2703	arbitration made under s. 766.106, settlement offer, or offer of
2704	judgment made by an insurer or self-insurer shall be made in
2705	good faith and in the best interest of the insured.
2706	b. If the policy contains a clause stating the insured
2707	does not have the exclusive right to veto any offer or admission
2708	of liability and for arbitration made pursuant to s. 766.106,
2709	settlement offer or offer of judgment, the insurer or self-
2710	insurer shall provide to the insured or the insured's legal
2711	representative by certified mail, return receipt requested, a
2712	copy of the final offer of admission of liability and for
2713	arbitration made pursuant to s. 766.106, settlement offer or
2714	offer of judgment and at the same time such offer is provided to
2715	the claimant. A copy of any final agreement reached between the
2716	insurer and claimant shall also be provided to the insurer or
2717	his or her legal representative by certified mail, return
2718	receipt requested not more than 10 days after affecting such
2719	agreement.
2720	(c) A clause requiring the insurer or self-insurer to
2721	notify the insured no less than 90 60days prior to the
2722	effective date of cancellation of the policy or contract and, in
2723	the event of a determination by the insurer or self-insurer not
2724	to renew the policy or contract, to notify the insured no less
2725	than 90 60days prior to the end of the policy or contract
2726	period. If cancellation or nonrenewal is due to nonpayment or
2727	loss of license, 10 days' notice is required.
2728	(d) A clause requiring the insurer or self-insurer to
2729	notify the insured no less than 60 days prior to the effective
2730	date of a rate increase. The provisions of s. 627.4133 shall
2731	apply to such notice and to the failure of the insurer to
2732	provide such notice to the extent not in conflict with this
2733	section.
2734	Section 36. Section 627.41495, Florida Statutes, is
2735	created to read:
2736	627.41495 Public notice of medical malpractice rate
2737	filings.--
2738	(1) Upon the filing of a proposed rate change by a
2739	medical malpractice insurer or self-insurance fund, which filing
2740	would result in an average statewide increase of 25 percent, or
2741	more, pursuant to standards determined by the office, the insurer
2742	or self-insurance fund shall mail notice of such filing to each
2743	of its policyholders or members.
2744	(2) The rate filing shall be available for public
2745	inspection.
2746	Section 37. Section 627.912, Florida Statutes, as amended
2747	by section 1226 of chapter 2003-261, Laws of Florida, is amended
2748	to read:
2749	627.912 Professional liability claims and actions; reports
2750	by insurers and health care providers; annual report by
2751	office.--
2752	(1)(a)Each self-insurer authorized under s. 627.357 and
2753	each commercial self-insurance fund authorized under s. 624.462,
2754	authorized insurer, surplus lines insurer, risk retention group,
2755	and orjoint underwriting association providing professional
2756	liability insurance to a practitioner of medicine licensed under
2757	chapter 458, to a practitioner of osteopathic medicine licensed
2758	under chapter 459, to a podiatric physician licensed under
2759	chapter 461, to a dentist licensed under chapter 466, to a
2760	hospital licensed under chapter 395, to a crisis stabilization
2761	unit licensed under part IV of chapter 394, to a health
2762	maintenance organization certificated under part I of chapter
2763	641, to clinics included in chapter 390, orto an ambulatory
2764	surgical center as defined in s. 395.002, and each insurer
2765	providing professional liability insurance orto a member of The
2766	Florida Bar shall report in duplicateto the office any claim or
2767	action for damages for personal injuries claimed to have been
2768	caused by error, omission, or negligence in the performance of
2769	such insured's professional services or based on a claimed
2770	performance of professional services without consent, if the
2771	claim resulted in:
2772	1.(a)A final judgment in any amount.
2773	2.(b)A settlement in any amount.
2774	3. A final disposition of a medical negligence claim
2775	resulting in no indemnity payment on behalf of the insured.
2776	(b) Each health care practitioner and health care facility
2777	listed in paragraph (a) must report any claim or action for
2778	damages as described in paragraph (a) if the claim is not
2779	otherwise required to be reported by an insurer or other
2780	insuring entity.
2781
2782	Reports under this subsection shall be filed with the office
2783	and, if the insured party is licensed under chapter 458, chapter
2784	459, chapter 461, or chapter 466, with the Department of Health,
2785	no later than 30 days following the occurrence of any event
2786	listed in paragraph (a) or paragraph (b). The Department of
2787	Health shall review each report and determine whether any of the
2788	incidents that resulted in the claim potentially involved
2789	conduct by the licensee that is subject to disciplinary action,
2790	in which case the provisions of s. 456.073 shall apply. The
2791	Department of Health, as part of the annual report required by
2792	s. 456.026, shall publish annual statistics, without identifying
2793	licensees, on the reports it receives, including final action
2794	taken on such reports by the Department of Health or the
2795	appropriate regulatory board.
2796	(2) The reports required by subsection (1) shall contain:
2797	(a) The name, address, health care provider professional
2798	license number,and specialty coverage of the insured.
2799	(b) The insured's policy number.
2800	(c) The date of the occurrence which created the claim.
2801	(d) The date the claim was reported to the insurer or
2802	self-insurer.
2803	(e) The name and address of the injured person. This
2804	information is confidential and exempt from the provisions of s.
2805	119.07(1), and must not be disclosed by the office without the
2806	injured person's consent, except for disclosure by the office to
2807	the Department of Health. This information may be used by the
2808	office for purposes of identifying multiple or duplicate claims
2809	arising out of the same occurrence.
2810	(f) The date of suit, if filed.
2811	(g) The injured person's age and sex.
2812	(h) The total number, and names, and health care provider
2813	professional license numbersof all defendants involved in the
2814	claim.
2815	(i) The date and amount of judgment or settlement, if any,
2816	including the itemization of the verdict, together with a copy
2817	of the settlement or judgment.
2818	(j) In the case of a settlement, such information as the
2819	office may require with regard to the injured person's incurred
2820	and anticipated medical expense, wage loss, and other expenses.
2821	(k) The loss adjustment expense paid to defense counsel,
2822	and all other allocated loss adjustment expense paid.
2823	(l) The date and reason for final disposition, if no
2824	judgment or settlement.
2825	(m) A summary of the occurrence which created the claim,
2826	which shall include:
2827	1. The name of the institution, if any, and the location
2828	within the institution at which the injury occurred.
2829	2. The final diagnosis for which treatment was sought or
2830	rendered, including the patient's actual condition.
2831	3. A description of the misdiagnosis made, if any, of the
2832	patient's actual condition.
2833	4. The operation, diagnostic, or treatment procedure
2834	causing the injury.
2835	5. A description of the principal injury giving rise to
2836	the claim.
2837	6. The safety management steps that have been taken by the
2838	insured to make similar occurrences or injuries less likely in
2839	the future.
2840	(n) Any other information required by the commission, by
2841	rule, office to assist the office in its analysis and evaluation
2842	of analyze and evaluatethe nature, causes, location, cost, and
2843	damages involved in professional liability cases.
2844	(3) Upon request by the Department of Health,The office
2845	shall provide the Department of Health with electronic access to
2846	all anyinformation received under this section related to
2847	persons licensed under chapter 458, chapter 459, chapter 461, or
2848	chapter 466. The Department of Health shall review each report
2849	and determine whether any of the incidents that resulted in the
2850	claim potentially involved conduct by the licensee that is
2851	subject to disciplinary action, in which case the provisions of
2852	s. 456.073 shall apply. For purposes of safety management, the
2853	office shall annually provide the Department of Health with
2854	copies of the reports in cases resulting in an indemnity being
2855	paid to the claimants.
2856	(4) There shall be no liability on the part of, and no
2857	cause of action of any nature shall arise against, any person or
2858	entity insurerreporting hereunder or its agents or employees or
2859	the office or its employees for any action taken by them under
2860	this section. The office shall mayimpose a fine of $250 per day
2861	per case, but not to exceed a total of $10,000 $1,000per case,
2862	against an insurer, commercial self-insurance fund, medical
2863	malpractice self-insurance fund, or risk retention groupthat
2864	violates the requirements of this section, except that the
2865	office may impose a fine of $250 per day per case, not to exceed
2866	a total of $1,000 per case, against an insurer providing
2867	professional liability insurance to a member of the Florida Bar,
2868	which insurer violates the provisions of this section. If a
2869	health care practitioner or health care facility violates the
2870	requirements of this section, it shall be considered a violation
2871	of the chapter or act under which the practitioner or facility
2872	is licensed and shall be grounds for a fine or disciplinary
2873	action as such other violations of the chapter or act. This
2874	subsection applies to claims accruing on or after October 1,
2875	1997.
2876	(5) Any self-insurance program established under s.
2877	1004.24 shall report in duplicateto the office any claim or
2878	action for damages for personal injuries claimed to have been
2879	caused by error, omission, or negligence in the performance of
2880	professional services provided by the state university board of
2881	trustees through an employee or agent of the state university
2882	board of trustees, including practitioners of medicine licensed
2883	under chapter 458, practitioners of osteopathic medicine
2884	licensed under chapter 459, podiatric physicians licensed under
2885	chapter 461, and dentists licensed under chapter 466, or based
2886	on a claimed performance of professional services without
2887	consent if the claim resulted in a final judgment in any amount,
2888	or a settlement in any amount. The reports required by this
2889	subsection shall contain the information required by subsection
2890	(3) and the name, address, and specialty of the employee or
2891	agent of the state university board of trustees whose
2892	performance or professional services is alleged in the claim or
2893	action to have caused personal injury.
2894	(6)(a) The office shall prepare statistical summaries of
2895	the closed claims reports for medical negligence filed pursuant
2896	to this section, for each year that such reports have been
2897	filed, and make such summaries and closed claim reports
2898	available on the Internet by July 1, 2005.
2899	(b) The office shall prepare an annual report by October 1
2900	of each year, beginning in 2004, which shall be available on the
2901	Internet, that summarizes and analyzes the closed claim reports
2902	for medical negligence filed pursuant to this section and the
2903	annual financial reports filed by insurers writing medical
2904	malpractice insurance in this state. The report must include an
2905	analysis of closed claim reports of prior years, in order to
2906	show trends in the frequency and amount of claims payments, the
2907	itemization of economic and noneconomic damages, the nature of
2908	the errant conduct, and such other information as the office
2909	determines is illustrative of the trends in closed claims. The
2910	report must also analyze the state of the medical malpractice
2911	insurance market in Florida, including an analysis of the
2912	financial reports of those insurers with a combined market share
2913	of at least 80 percent of the net written premium in the state
2914	for medical malpractice insurance for the prior calendar year,
2915	including a loss ratio analysis for medical malpractice
2916	insurance written in Florida and a profitability analysis of
2917	each such insurer. The report shall compare the ratios for
2918	medical malpractice in Florida to those of other states, based
2919	on financial reports filed with the National Association of
2920	Insurance Commissioners and such other information as the office
2921	deems relevant.
2922	(c) The annual report shall also include a summary of the
2923	rate filings for medical malpractice insurance that have been
2924	approved by the office for the prior calendar year, including an
2925	analysis of the trend of direct and incurred losses as compared
2926	to prior years.
2927	Section 38. Subsections (11), (12), and (17) of section
2928	641.19, Florida Statutes, as amended by section 1555 of chapter
2929	2003-261, Laws of Florida, are amended to read:
2930	641.19 Definitions.--As used in this part, the term:
2931	(11) "Health maintenance contract" means any contract
2932	entered into by a health maintenance organization with a
2933	subscriber or group of subscribers to provide coverage for
2934	comprehensive health care services in exchange for a prepaid per
2935	capita or prepaid aggregate fixed sum.
2936	(12) "Health maintenance organization" means any
2937	organization authorized under this part which:
2938	(a) Provides, through arrangements with other persons,
2939	emergency care, inpatient hospital services, physician care
2940	including care provided by physicians licensed under chapters
2941	458, 459, 460, and 461, ambulatory diagnostic treatment, and
2942	preventive health care services.;
2943	(b) Provides, either directly or through arrangements with
2944	other persons, health care services to persons enrolled with
2945	such organization, on a prepaid per capita or prepaid aggregate
2946	fixed-sum basis.;
2947	(c) Provides, either directly or through arrangements with
2948	other persons, comprehensive health care services which
2949	subscribers are entitled to receive pursuant to a contract.;
2950	(d) Provides physician services, by physicians licensed
2951	under chapters 458, 459, 460, and 461, directly through
2952	physicians who are either employees or partners of such
2953	organization or under arrangements with a physician or any group
2954	of physicians.; and
2955	(e) If offering services through a managed care system,
2956	has then the managed care system must bea system in which a
2957	primary physician licensed under chapter 458, or chapter 459,
2958	chapter and chapters 460, or chapter and461 is designated for
2959	each subscriber upon request of a subscriber requesting service
2960	by a physician licensed under any of those chapters, and is
2961	responsible for coordinating the health care of the subscriber
2962	of the respectively requested service and for referring the
2963	subscriber to other providers of the same discipline when
2964	necessary. Each female subscriber may select as her primary
2965	physician an obstetrician/gynecologist who has agreed to serve
2966	as a primary physician and is in the health maintenance
2967	organization's provider network.
2968
2969	Except in cases in which the health care provider is an employee
2970	of the health maintenance organization, the fact that the health
2971	maintenance organization arranges for the provision of health
2972	care services under this chapter does not create an actual
2973	agency, apparent agency, or employer-employee relationship
2974	between the health care provider and the health maintenance
2975	organization for purposes of vicarious liability for the medical
2976	negligence of the health care provider.
2977	(17) "Subscriber" means an entity or individual who has
2978	contracted, or on whose behalf a contract has been entered into,
2979	with a health maintenance organization for health care coverage
2980	services or other persons who also receive health care coverage
2981	servicesas a result of the contract.
2982	Section 39. Subsection (3) of section 641.51, Florida
2983	Statutes, is amended to read:
2984	641.51 Quality assurance program; second medical opinion
2985	requirement.--
2986	(3) The health maintenance organization shall not have the
2987	right to control theprofessional judgment of a physician
2988	licensed under chapter 458, chapter 459, chapter 460, or chapter
2989	461 concerning the proper course of treatment of a subscriber
2990	shall not be subject to modification by the organization or its
2991	board of directors, officers, or administrators, unless the
2992	course of treatment prescribed is inconsistent with the
2993	prevailing standards of medical practice in the community.
2994	However, this subsection shall not be considered to restrict a
2995	utilization management program established by an organization or
2996	to affect an organization’s decision as to payment for covered
2997	services. Except in cases in which the health care provider is
2998	an employee of the health maintenance organization, the health
2999	maintenance organization shall not be vicariously liable for the
3000	medical negligence of the health care provider, whether such
3001	claim is alleged under a theory of actual agency, apparent
3002	agency, or employer-employee relationship.
3003	Section 40. Section 766.102, Florida Statutes, is amended
3004	to read:
3005	766.102 Medical negligence; standards of recovery; expert
3006	witness.--
3007	(1) In any action for recovery of damages based on the
3008	death or personal injury of any person in which it is alleged
3009	that such death or injury resulted from the negligence of a
3010	health care provider as defined in s. 766.202(4) 768.50(2)(b),
3011	the claimant shall have the burden of proving by the greater
3012	weight of evidence that the alleged actions of the health care
3013	provider represented a breach of the prevailing professional
3014	standard of care for that health care provider. The prevailing
3015	professional standard of care for a given health care provider
3016	shall be that level of care, skill, and treatment which, in
3017	light of all relevant surrounding circumstances, is recognized
3018	as acceptable and appropriate by reasonably prudent similar
3019	health care providers.
3020	(2)(a) If the health care provider whose negligence is
3021	claimed to have created the cause of action is not certified by
3022	the appropriate American board as being a specialist, is not
3023	trained and experienced in a medical specialty, or does not hold
3024	himself or herself out as a specialist, a "similar health care
3025	provider" is one who:
3026	1. Is licensed by the appropriate regulatory agency of
3027	this state;
3028	2. Is trained and experienced in the same discipline or
3029	school of practice; and
3030	3. Practices in the same or similar medical community.
3031	(b) If the health care provider whose negligence is
3032	claimed to have created the cause of action is certified by the
3033	appropriate American board as a specialist, is trained and
3034	experienced in a medical specialty, or holds himself or herself
3035	out as a specialist, a "similar health care provider" is one
3036	who:
3037	1. Is trained and experienced in the same specialty; and
3038	2. Is certified by the appropriate American board in the
3039	same specialty.
3040
3041	However, if any health care provider described in this paragraph
3042	is providing treatment or diagnosis for a condition which is not
3043	within his or her specialty, a specialist trained in the
3044	treatment or diagnosis for that condition shall be considered a
3045	"similar health care provider."
3046	(c) The purpose of this subsection is to establish a
3047	relative standard of care for various categories and
3048	classifications of health care providers. Any health care
3049	provider may testify as an expert in any action if he or she:
3050	1. Is a similar health care provider pursuant to paragraph
3051	(a) or paragraph (b); or
3052	2. Is not a similar health care provider pursuant to
3053	paragraph (a) or paragraph (b) but, to the satisfaction of the
3054	court, possesses sufficient training, experience, and knowledge
3055	as a result of practice or teaching in the specialty of the
3056	defendant or practice or teaching in a related field of
3057	medicine, so as to be able to provide such expert testimony as
3058	to the prevailing professional standard of care in a given field
3059	of medicine. Such training, experience, or knowledge must be as
3060	a result of the active involvement in the practice or teaching
3061	of medicine within the 5-year period before the incident giving
3062	rise to the claim.
3063	(2)(3)(a) If the injury is claimed to have resulted from
3064	the negligent affirmative medical intervention of the health
3065	care provider, the claimant must, in order to prove a breach of
3066	the prevailing professional standard of care, show that the
3067	injury was not within the necessary or reasonably foreseeable
3068	results of the surgical, medicinal, or diagnostic procedure
3069	constituting the medical intervention, if the intervention from
3070	which the injury is alleged to have resulted was carried out in
3071	accordance with the prevailing professional standard of care by
3072	a reasonably prudent similar health care provider.
3073	(b) The provisions of this subsection shall apply only
3074	when the medical intervention was undertaken with the informed
3075	consent of the patient in compliance with the provisions of s.
3076	766.103.
3077	(3)(4)The existence of a medical injury shall not create
3078	any inference or presumption of negligence against a health care
3079	provider, and the claimant must maintain the burden of proving
3080	that an injury was proximately caused by a breach of the
3081	prevailing professional standard of care by the health care
3082	provider. However, the discovery of the presence of a foreign
3083	body, such as a sponge, clamp, forceps, surgical needle, or
3084	other paraphernalia commonly used in surgical, examination, or
3085	diagnostic procedures, shall be prima facie evidence of
3086	negligence on the part of the health care provider.
3087	(4)(5)The Legislature is cognizant of the changing trends
3088	and techniques for the delivery of health care in this state and
3089	the discretion that is inherent in the diagnosis, care, and
3090	treatment of patients by different health care providers. The
3091	failure of a health care provider to order, perform, or
3092	administer supplemental diagnostic tests shall not be actionable
3093	if the health care provider acted in good faith and with due
3094	regard for the prevailing professional standard of care.
3095	(5) A person may not give expert testimony concerning the
3096	prevailing professional standard of care unless that person is a
3097	licensed health care provider and meets the following criteria:
3098	(a) If the health care provider against whom or on whose
3099	behalf the testimony is offered is a specialist, the expert
3100	witness must:
3101	1. Specialize in the same specialty as the health care
3102	provider against whom or on whose behalf the testimony is
3103	offered; or specialize in a similar specialty that includes the
3104	evaluation, diagnosis, or treatment of the medical condition
3105	that is the subject of the claim and have prior experience
3106	treating similar patients; and
3107	2. Have devoted professional time during the 3 years
3108	immediately preceding the date of the occurrence that is the
3109	basis for the action to:
3110	a. The active clinical practice of, or consulting with
3111	respect to, the same or similar specialty that includes the
3112	evaluation, diagnosis, or treatment of the medical condition
3113	that is the subject of the claim and have prior experience
3114	treating similar patients;
3115	b. The instruction of students in an accredited health
3116	professional school or accredited residency or clinical research
3117	program in the same or similar specialty; or
3118	c. A clinical research program that is affiliated with an
3119	accredited health professional school or accredited residency or
3120	clinical research program in the same or similar specialty.
3121	(b) If the health care provider against whom or on whose
3122	behalf the testimony is offered is a general practitioner, the
3123	expert witness must have devoted professional time during the 5
3124	years immediately preceding the date of the occurrence that is
3125	the basis for the action to:
3126	1. Active clinical practice or consultation as a general
3127	practitioner;
3128	2. The instruction of students in an accredited health
3129	professional school or accredited residency program in the
3130	general practice of medicine; or
3131	3. A clinical research program that is affiliated with an
3132	accredited medical school or teaching hospital and that is in
3133	the general practice of medicine.
3134	(c) If the health care provider against whom or on whose
3135	behalf the testimony is offered is a health care provider other
3136	than a specialist or a general practitioner, the expert witness
3137	must have devoted professional time during the 3 years
3138	immediately preceding the date of the occurrence that is the
3139	basis for the action to:
3140	1. The active clinical practice of, or consulting with
3141	respect to, the same or similar health profession as the health
3142	care provider against whom or on whose behalf the testimony is
3143	offered;
3144	2. The instruction of students in an accredited health
3145	professional school or accredited residency program in the same
3146	or similar health profession in which the health care provider
3147	against whom or on whose behalf the testimony is offered; or
3148	3. A clinical research program that is affiliated with an
3149	accredited medical school or teaching hospital and that is in
3150	the same or similar health profession as the health care
3151	provider against whom or on whose behalf the testimony is
3152	offered.
3153	(6) A physician licensed under chapter 458 or chapter 459
3154	who qualifies as an expert witness under subsection (5) and who,
3155	by reason of active clinical practice or instruction of
3156	students, has knowledge of the applicable standard of care for
3157	nurses, nurse practitioners, certified registered nurse
3158	anesthetists, certified registered nurse midwives, physician
3159	assistants, or other medical support staff may give expert
3160	testimony in a medical negligence action with respect to the
3161	standard of care of such medical support staff.
3162	(7) Notwithstanding subsection (5), in a medical
3163	negligence action against a hospital, health care facility, or
3164	medical facility, a person may give expert testimony on the
3165	appropriate standard of care as to administrative and other
3166	nonclinical issues if the person has substantial knowledge, by
3167	virtue of his or her training and experience, concerning the
3168	standard of care among hospitals, health care facilities, or
3169	medical facilities of the same type as the hospital, health care
3170	facility, or medical facility whose acts or omissions are the
3171	subject of the testimony and which are located in the same or
3172	similar communities at the time of the alleged act giving rise
3173	to the cause of action.
3174	(8) If a health care provider described in subsection (5),
3175	subsection (6), or subsection (7) is providing evaluation,
3176	treatment, or diagnosis for a condition that is not within his
3177	or her specialty, a specialist trained in the evaluation,
3178	treatment, or diagnosis for that condition shall be considered a
3179	similar health care provider.
3180	(9)(6)(a) In any action for damages involving a claim of
3181	negligence against a physician licensed under chapter 458,
3182	osteopathic physician licensed under chapter 459, podiatric
3183	physician licensed under chapter 461, or chiropractic physician
3184	licensed under chapter 460 providing emergency medical services
3185	in a hospital emergency department, the court shall admit expert
3186	medical testimony only from physicians, osteopathic physicians,
3187	podiatric physicians, and chiropractic physicians who have had
3188	substantial professional experience within the preceding 5 years
3189	while assigned to provide emergency medical services in a
3190	hospital emergency department.
3191	(b) For the purposes of this subsection:
3192	1. The term "emergency medical services" means those
3193	medical services required for the immediate diagnosis and
3194	treatment of medical conditions which, if not immediately
3195	diagnosed and treated, could lead to serious physical or mental
3196	disability or death.
3197	2. "Substantial professional experience" shall be
3198	determined by the custom and practice of the manner in which
3199	emergency medical coverage is provided in hospital emergency
3200	departments in the same or similar localities where the alleged
3201	negligence occurred.
3202	(10) In any action alleging medical negligence, an expert
3203	witness may not testify on a contingency-fee basis.
3204	(11) Any attorney who proffers a person as an expert
3205	witness pursuant to this section must certify that such person
3206	has not been found guilty of fraud or perjury in any
3207	jurisdiction.
3208	(12) This section does not limit the power of the trial
3209	court to disqualify or qualify an expert witness on grounds
3210	other than the qualifications in this section.
3211	Section 41. Section 766.106, Florida Statutes, is amended
3212	to read:
3213	766.106 Notice before filing action for medical negligence
3214	malpractice; presuit screening period; offers for admission of
3215	liability and for arbitration; informal discovery; review.--
3216	(1) DEFINITIONS.--As used in this section:
3217	(a) "Claim for medical negligence" or "claim for medical
3218	malpractice" means a claim arising out of the rendering of, or
3219	the failure to render, medical care or services.
3220	(b) "Self-insurer" means any self-insurer authorized under
3221	s. 627.357 or any uninsured prospective defendant.
3222	(c) "Insurer" includes the Joint Underwriting Association.
3223	(2) PRESUIT NOTICE.--
3224	(a)After completion of presuit investigation pursuant to
3225	s. 766.203(2) and prior to filing a complaint claim for medical
3226	negligence malpractice, a claimant shall notify each prospective
3227	defendant by certified mail, return receipt requested, of intent
3228	to initiate litigation for medical negligence malpractice.
3229	Notice to each prospective defendant must include, if available,
3230	a list of all known health care providers seen by the claimant
3231	for the injuries complained of subsequent to the alleged act of
3232	negligence, all known health care providers during the 2-year
3233	period prior to the alleged act of negligence who treated or
3234	evaluated the claimant, and copies of all of the medical records
3235	relied upon by the expert in signing the affidavit. The
3236	requirement of providing the list of known health care providers
3237	may not serve as grounds for imposing sanctions for failure to
3238	provide presuit discovery.
3239	(b) Following the initiation of a suit alleging medical
3240	negligence malpracticewith a court of competent jurisdiction,
3241	and service of the complaint upon a defendant, the claimant
3242	shall provide a copy of the complaint to the Department of
3243	Health and, if the complaint involves a facility licensed under
3244	chapter 395, the Agency for Health Care Administration. The
3245	requirement of providing the complaint to the Department of
3246	Health or the Agency for Health Care Administrationdoes not
3247	impair the claimant's legal rights or ability to seek relief for
3248	his or her claim for medical negligence. The Department of
3249	Health or the Agency for Health Care Administrationshall review
3250	each incident that is the subject of the complaintand determine
3251	whether it involved conduct by a licensee which is potentially
3252	subject to disciplinary action, in which case, for a licensed
3253	health care practitioner, the provisions of s. 456.073 apply,
3254	and for a licensed facility, the provisions of part I of chapter
3255	395 apply.
3256	(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.--
3257	(a) No suit may be filed for a period of 90 days after
3258	notice is mailed to any prospective defendant. During the 90-day
3259	period, the prospective defendant or thedefendant's insurer or
3260	self-insurer shall conduct a review as provided in s. 766.203(3)
3261	to determine the liability of the defendant. Each insurer or
3262	self-insurer shall have a procedure for the prompt
3263	investigation, review, and evaluation of claims during the 90-
3264	day period. This procedure shall include one or more of the
3265	following:
3266	1. Internal review by a duly qualified claims adjuster;
3267	2. Creation of a panel comprised of an attorney
3268	knowledgeable in the prosecution or defense of medical
3269	negligence malpracticeactions, a health care provider trained
3270	in the same or similar medical specialty as the prospective
3271	defendant, and a duly qualified claims adjuster;
3272	3. A contractual agreement with a state or local
3273	professional society of health care providers, which maintains a
3274	medical review committee;
3275	4. Any other similar procedure which fairly and promptly
3276	evaluates the pending claim.
3277
3278	Each insurer or self-insurer shall investigate the claim in good
3279	faith, and both the claimant and prospective defendant shall
3280	cooperate with the insurer in good faith. If the insurer
3281	requires, a claimant shall appear before a pretrial screening
3282	panel or before a medical review committee and shall submit to a
3283	physical examination, if required. Unreasonable failure of any
3284	party to comply with this section justifies dismissal of claims
3285	or defenses. There shall be no civil liability for participation
3286	in a pretrial screening procedure if done without intentional
3287	fraud.
3288	(b) At or before the end of the 90 days, the prospective
3289	defendant or the prospective defendant'sinsurer or self-insurer
3290	shall provide the claimant with a response:
3291	1. Rejecting the claim;
3292	2. Making a settlement offer; or
3293	3. Making an offer to arbitrate, in which case liability
3294	is deemed admitted and arbitration will be held only of
3295	admission of liability and for arbitrationon the issue of
3296	damages. This offer may be made contingent upon a limit of
3297	general damages.
3298	(c) The response shall be delivered to the claimant if not
3299	represented by counsel or to the claimant's attorney, by
3300	certified mail, return receipt requested. Failure of the
3301	prospective defendant or insurer or self-insurer to reply to the
3302	notice within 90 days after receipt shall be deemed a final
3303	rejection of the claim for purposes of this section.
3304	(d) Within 30 days after ofreceipt of a response by a
3305	prospective defendant, insurer, or self-insurer to a claimant
3306	represented by an attorney, the attorney shall advise the
3307	claimant in writing of the response, including:
3308	1. The exact nature of the response under paragraph (b).
3309	2. The exact terms of any settlement offer, or admission
3310	of liability and offer of arbitration on damages.
3311	3. The legal and financial consequences of acceptance or
3312	rejection of any settlement offer, or admission of liability,
3313	including the provisions of this section.
3314	4. An evaluation of the time and likelihood of ultimate
3315	success at trial on the merits of the claimant's action.
3316	5. An estimation of the costs and attorney's fees of
3317	proceeding through trial.
3318	(4) SERVICE OF PRESUIT NOTICE AND TOLLING.--The notice of
3319	intent to initiate litigation shall be served within the time
3320	limits set forth in s. 95.11. However, during the 90-day period,
3321	the statute of limitations is tolled as to all potential
3322	defendants. Upon stipulation by the parties, the 90-day period
3323	may be extended and the statute of limitations is tolled during
3324	any such extension. Upon receiving notice of termination of
3325	negotiations in an extended period, the claimant shall have 60
3326	days or the remainder of the period of the statute of
3327	limitations, whichever is greater, within which to file suit.
3328	(5) DISCOVERY AND ADMISSIBILITY.--No statement,
3329	discussion, written document, report, or other work product
3330	generated by the presuit screening process is discoverable or
3331	admissible in any civil action for any purpose by the opposing
3332	party. All participants, including, but not limited to,
3333	physicians, investigators, witnesses, and employees or
3334	associates of the defendant, are immune from civil liability
3335	arising from participation in the presuit screening process.
3336	(6) INFORMAL DISCOVERY.--
3337	(a) Upon receipt by a prospective defendant of a notice of
3338	claim, the parties shall make discoverable information available
3339	without formal discovery. Failure to do so is grounds for
3340	dismissal of claims or defenses ultimately asserted.
3341	(b)(7)Informal discovery may be used by a party to obtain
3342	unsworn statements, the production of documents or things, and
3343	physical and mental examinations, and answers to written
3344	questions,as follows:
3345	1.(a)Unsworn statements.--Any party may require other
3346	parties to appear for the taking of an unsworn statement. Such
3347	statements may be used only for the purpose of presuit screening
3348	and are not discoverable or admissible in any civil action for
3349	any purpose by any party. A party desiring to take the unsworn
3350	statement of any party must give reasonable notice in writing to
3351	all parties. The notice must state the time and place for taking
3352	the statement and the name and address of the party to be
3353	examined. Unless otherwise impractical, the examination of any
3354	party must be done at the same time by all other parties. Any
3355	party may be represented by counsel at the taking of an unsworn
3356	statement. An unsworn statement may be recorded electronically,
3357	stenographically, or on videotape. The taking of unsworn
3358	statements is subject to the provisions of the Florida Rules of
3359	Civil Procedure and may be terminated for abuses.
3360	2.(b)Documents or things.--Any party may request
3361	discovery of documents or things. The documents or things must
3362	be produced, at the expense of the requesting party, within 20
3363	days after the date of receipt of the request. A party is
3364	required to produce discoverable documents or things within that
3365	party's possession or control. Medical records shall be produced
3366	as provided in s. 766.204.
3367	3.(c)Physical and mental examinations.--A prospective
3368	defendant may require an injured prospectiveclaimant to appear
3369	for examination by an appropriate health care provider. The
3370	prospectivedefendant shall give reasonable notice in writing to
3371	all parties as to the time and place for examination. Unless
3372	otherwise impractical, a prospectiveclaimant is required to
3373	submit to only one examination on behalf of all potential
3374	defendants. The practicality of a single examination must be
3375	determined by the nature of the potential claimant's condition,
3376	as it relates to the liability of each prospective potential
3377	defendant. Such examination report is available to the parties
3378	and their attorneys upon payment of the reasonable cost of
3379	reproduction and may be used only for the purpose of presuit
3380	screening. Otherwise, such examination report is confidential
3381	and exempt from the provisions of s. 119.07(1) and s. 24(a),
3382	Art. I of the State Constitution.
3383	4. Written questions.--Any party may request answers to
3384	written questions, which may not exceed 30, including subparts.
3385	A response must be made within 20 days after receipt of the
3386	questions.
3387	5. Medical information release.--The claimant must execute
3388	a medical information release that allows a prospective
3389	defendant or his or her legal representative to take unsworn
3390	statements of the claimant's treating physicians. The statements
3391	must be limited to those areas that are potentially relevant to
3392	the claim of personal injury or wrongful death. Subject to the
3393	procedural requirements of subparagraph 1., a prospective
3394	defendant may take unsworn statements from a claimant's treating
3395	physicians. The claimant or the claimant's legal representative
3396	has the right to be present during the taking of such unsworn
3397	statements.
3398	(c)(8)Each request for and notice concerning informal
3399	presuit discovery pursuant to this section must be in writing,
3400	and a copy thereof must be sent to all parties. Such a request
3401	or notice must bear a certificate of service identifying the
3402	name and address of the person to whom the request or notice is
3403	served, the date of the request or notice, and the manner of
3404	service thereof.
3405	(d)(9)Copies of any documents produced in response to the
3406	request of any party must be served upon all other parties. The
3407	party serving the documents or his or her attorney shall
3408	identify, in a notice accompanying the documents, the name and
3409	address of the parties to whom the documents were served, the
3410	date of service, the manner of service, and the identity of the
3411	document served.
3412	(7) SANCTIONS.--Failure to cooperate on the part of any
3413	party during the presuit investigation may be grounds to strike
3414	any claim made, or defense raised, by such party in suit.
3415	(10) If a prospective defendant makes an offer to admit
3416	liability and for arbitration on the issue of damages, the
3417	claimant has 50 days from the date of receipt of the offer to
3418	accept or reject it. The claimant shall respond in writing to
3419	the insurer or self-insurer by certified mail, return receipt
3420	requested. If the claimant rejects the offer, he or she may then
3421	file suit. Acceptance of the offer of admission of liability and
3422	for arbitration waives recourse to any other remedy by the
3423	parties, and the claimant's written acceptance of the offer
3424	shall so state.
3425	(a) If rejected, the offer to admit liability and for
3426	arbitration on damages is not admissible in any subsequent
3427	litigation. Upon rejection of the offer to admit liability and
3428	for arbitration, the claimant has 60 days or the remainder of
3429	the period of the statute of limitations, whichever period is
3430	greater, in which to file suit.
3431	(b) If the offer to admit liability and for arbitration on
3432	damages is accepted, the parties have 30 days from the date of
3433	acceptance to settle the amount of damages. If the parties have
3434	not reached agreement after 30 days, they shall proceed to
3435	binding arbitration to determine the amount of damages as
3436	follows:
3437	1. Each party shall identify his or her arbitrator to the
3438	opposing party not later than 35 days after the date of
3439	acceptance.
3440	2. The two arbitrators shall, within 1 week after they are
3441	notified of their appointment, agree upon a third arbitrator. If
3442	they cannot agree on a third arbitrator, selection of the third
3443	arbitrator shall be in accordance with chapter 682.
3444	3. Not later than 30 days after the selection of a third
3445	arbitrator, the parties shall file written arguments with each
3446	arbitrator and with each other indicating total damages.
3447	4. Unless otherwise determined by the arbitration panel,
3448	within 10 days after the receipt of such arguments, unless the
3449	parties have agreed to a settlement, there shall be a 1-day
3450	hearing, at which formal rules of evidence and the rules of
3451	civil procedure shall not apply, during which each party shall
3452	present evidence as to damages. Each party shall identify the
3453	total dollar amount which he or she feels should be awarded.
3454	5. No later than 2 weeks after the hearing, the
3455	arbitrators shall notify the parties of their determination of
3456	the total award. The court shall have jurisdiction to enforce
3457	any award or agreement for periodic payment of future damages.
3458	(11) If there is more than one prospective defendant, the
3459	claimant shall provide the notice of claim and follow the
3460	procedures in this section for each defendant. If an offer to
3461	admit liability and for arbitration is accepted, the procedures
3462	shall be initiated separately for each defendant, unless
3463	multiple offers are made by more than one prospective defendant
3464	and are accepted and the parties agree to consolidated
3465	arbitration. Any agreement for consolidated arbitration shall be
3466	filed with the court. No offer by any prospective defendant to
3467	admit liability and for arbitration is admissible in any civil
3468	action.
3469	(12) To the extent not inconsistent with this part, the
3470	provisions of chapter 682, the Florida Arbitration Code, shall
3471	be applicable to such proceedings.
3472	Section 42. Section 766.108, Florida Statutes, is amended
3473	to read:
3474	766.108 Mandatory mediation and mandatorysettlement
3475	conference in medical negligence malpracticeactions.--
3476	(1) Within 120 days after the suit is filed, unless such
3477	period is extended by mutual agreement of all parties, all
3478	parties shall attend in-person mandatory mediation in accordance
3479	with s. 44.102 if binding arbitration under s. 766.207 has not
3480	been agreed to by the parties. The Florida Rules of Civil
3481	Procedure shall apply to mediation held pursuant to this
3482	section.
3483	(2)(a)(1)In any action for damages based on personal
3484	injury or wrongful death arising out of medical negligence
3485	malpractice, whether in tort or contract, the court shall
3486	require a settlement conference at least 3 weeks before the date
3487	set for trial.
3488	(b)(2)Attorneys who will conduct the trial, parties, and
3489	persons with authority to settle shall attend the settlement
3490	conference held before the court unless excused by the court for
3491	good cause.
3492	Section 43. Section 766.118, Florida Statutes, is created
3493	to read:
3494	766.118 Determination of noneconomic damages.--
3495	(1) DEFINITIONS.--As used in this section:
3496	(a) "Catastrophic injury" means a permanent impairment
3497	constituted by:
3498	1. Spinal cord injury involving severe paralysis of an
3499	arm, a leg, or the trunk;
3500	2. Amputation of an arm, a hand, a foot, or a leg
3501	involving the effective loss of use of that appendage;
3502	3. Severe brain or closed-head injury as evidenced by:
3503	a. Severe sensory or motor disturbances;
3504	b. Severe communication disturbances;
3505	c. Severe complex integrated disturbances of cerebral
3506	function;
3507	d. Severe episodic neurological disorders; or
3508	e. Other severe brain and closed-head injury conditions at
3509	least as severe in nature as any condition provided in sub-
3510	subparagraphs a.-d.;
3511	4. Second-degree or third-degree burns to 25 percent or
3512	more of the total body surface or third-degree burns to 5
3513	percent or more of the face and hands;
3514	5. Blindness, defined as a complete and total loss of
3515	vision; or
3516	6. Loss of reproductive organs which results in an
3517	inability to procreate.
3518	(b) "Noneconomic damages" means noneconomic damages as
3519	defined in s. 766.202(8).
3520	(c) "Practitioner" means any person licensed under chapter
3521	458, chapter 459, chapter 460, chapter 461, chapter 462, chapter
3522	463, chapter 466, chapter 467, or chapter 486 or certified under
3523	s. 464.012. "Practitioner" also means any association,
3524	corporation, firm, partnership, or other business entity under
3525	which such practitioner practices or any employee of such
3526	practitioner or entity acting in the scope of his or her
3527	employment. For the purpose of determining the limitations on
3528	noneconomic damages set forth in this section, the term
3529	"practitioner" includes any person or entity for whom a
3530	practitioner is vicariously liable and any person or entity
3531	whose liability is based solely on such person being vicariously
3532	liable for the actions of a practitioner.
3533	(2) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
3534	PRACTITIONERS.--
3535	(a) With respect to a cause of action for personal injury
3536	or wrongful death arising from medical negligence of
3537	practitioners, regardless of the number of such practitioner
3538	defendants, noneconomic damages shall not exceed $500,000 per
3539	claimant. No practitioner shall be liable for more than $500,000
3540	in noneconomic damages under this paragraph, regardless of the
3541	number of claimants.
3542	(b) Notwithstanding paragraph (a), if the negligence
3543	resulted in a permanent vegetative state or death, the total
3544	noneconomic damages recoverable by a claimant under this
3545	subsection, regardless of the number of such practitioner
3546	defendants, shall not exceed $1 million. If the negligence did
3547	not result in a permanent vegetative state or death, the patient
3548	injured by medical negligence of a practitioner may recover
3549	noneconomic damages not to exceed $1 million if:
3550	1. The trial court determines that a manifest injustice
3551	would occur unless increased noneconomic damages are awarded,
3552	based on a finding that because of the special circumstances of
3553	the case the noneconomic harm sustained by the injured patient
3554	was particularly severe; and
3555	2. The trier of fact determines that the defendant's
3556	negligence caused a catastrophic injury to the patient.
3557	(c) The total noneconomic damages recoverable by all
3558	claimants from all practitioner defendants under this subsection
3559	shall not exceed $1 million in the aggregate.
3560	(3) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
3561	NONPRACTITIONERS.--
3562	(a) With respect to a cause of action for personal injury
3563	or wrongful death arising from medical negligence of
3564	nonpractitioner defendants, regardless of the number of such
3565	nonpractitioner defendants, noneconomic damages shall not exceed
3566	$750,000 per claimant.
3567	(b) Notwithstanding paragraph (a), if the negligence
3568	resulted in a permanent vegetative state or death, the total
3569	noneconomic damages recoverable by a claimant under this
3570	subsection, regardless of the number of such nonpractitioner
3571	defendants, shall not exceed $1.5 million. If the negligence did
3572	not result in a permanent vegetative state or death, the patient
3573	injured by medical negligence of a nonpractitioner may recover
3574	noneconomic damages not to exceed $1.5 million if:
3575	1. The trial court determines that a manifest injustice
3576	would occur unless increased noneconomic damages are awarded,
3577	based on a finding that because of the special circumstances of
3578	the case the noneconomic harm sustained by the injured patient
3579	was particularly severe; and
3580	2. The trier of fact determines that the defendant's
3581	negligence caused a catastrophic injury to the patient.
3582	(c) Nonpractitioner defendants are subject to the cap on
3583	noneconomic damages provided in this subsection regardless of
3584	the theory of liability, including vicarious liability.
3585	(d) The total noneconomic damages recoverable by all
3586	claimants from all nonpractitioner defendants under this
3587	subsection shall not exceed $1.5 million in the aggregate.
3588	(4) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
3589	PRACTITIONERS PROVIDING EMERGENCY SERVICES AND
3590	CARE.--Notwithstanding subsections (2) and (3), with respect to
3591	a cause of action for personal injury or wrongful death arising
3592	from medical negligence of practitioners providing emergency
3593	services and care, as defined in s. 395.002(10), or providing
3594	services as provided in s. 401.265, to persons with whom the
3595	practitioner does not have a then-existing health care
3596	practitioner-patient relationship for the medical condition for
3597	which such services and care are being provided:
3598	(a) Regardless of the number of such practitioner
3599	defendants, noneconomic damages shall not exceed $150,000 per
3600	claimant.
3601	(b) Notwithstanding paragraph (a), the total noneconomic
3602	damages recoverable by all claimants from all such practitioner
3603	defendants shall not exceed $300,000.
3604	(5) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
3605	NONPRACTITIONERS PROVIDING EMERGENCY SERVICES AND
3606	CARE.--Notwithstanding subsections (2) and (3), with respect to
3607	a cause of action for personal injury or wrongful death arising
3608	from medical negligence of defendants other than practitioners
3609	providing emergency services and care pursuant to obligations
3610	imposed by ss. 395.1041 and 401.45 to persons with whom the
3611	treating practitioner does not have a then-existing health care
3612	practitioner-patient relationship for the medical condition for
3613	which such services and care are being provided:
3614	(a) Regardless of the number of such nonpractitioner
3615	defendants, noneconomic damages shall not exceed $750,000 per
3616	claimant.
3617	(b) Notwithstanding paragraph (a), the total noneconomic
3618	damages recoverable by all claimants from all such
3619	nonpractitioner defendants shall not exceed $1.5 million.
3620	(c) Nonpractitioner defendants may receive a full setoff
3621	for payments made by practitioner defendants.
3622	(6) SETOFF.--In any case in which the jury verdict for
3623	noneconomic damages exceeds the limits established by this
3624	section, the trial court shall reduce the award for noneconomic
3625	damages within the same category of defendants in accordance
3626	with this section after making any reduction for comparative
3627	fault as required by s. 768.81 but before application of a
3628	setoff in accordance with ss. 46.015 and 768.041. In the event
3629	of a prior settlement or settlements involving one or more
3630	defendants subject to the limitations of the same subsection
3631	applicable to a defendant remaining at trial, the court shall
3632	make such reductions within the same category of defendants as
3633	are necessary to ensure that the total amount of noneconomic
3634	damages recovered by the claimant does not exceed the aggregate
3635	limit established by the applicable subsection. This subsection
3636	is not intended to change current law relating to the setoff of
3637	economic damages.
3638	(7) ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.--This
3639	section does not apply to actions governed by s. 768.28.
3640	Section 44. Section 766.1185, Florida Statutes, is created
3641	to read:
3642	766.1185 Bad faith actions involving claims relating to
3643	claims of medical negligence.--In all actions for bad faith
3644	against a medical malpractice insurer relating to professional
3645	liability insurance coverage for medical negligence, and in
3646	determining whether the insurer could and should have settled
3647	the claim within the policy limits had it acted fairly and
3648	honestly towards its insured with due regard for her or his
3649	interest, whether brought under statute or common law:
3650	(1)(a) An insurer shall not be held liable in bad faith
3651	for failure to pay its policy limits if it tenders its policy
3652	limits and meets other reasonable conditions of settlement by
3653	the earlier of either:
3654	1. The 210th day after service of the complaint in the
3655	medical negligence action upon the insured. The time period in
3656	this subparagraph shall be extended by an additional 60 days if
3657	the court in the bad faith action finds that, at any time during
3658	such period and after the 150th day after service of the
3659	complaint, the claimant provided new information previously
3660	unavailable to the insurer relating to the identity or testimony
3661	of any material witnesses or the identity or any additional
3662	claimants or defendants, if such disclosure materially alters
3663	the risk to the insured of an excess judgment; or
3664	2. The 60th day after the conclusion of all of the
3665	following:
3666	a. Deposition of all claimants named in the complaint or
3667	amended complaint.
3668	b. Deposition of all defendants named in the complaint or
3669	amended complaint, including, in the case of a corporate
3670	defendant, deposition of a designated representative.
3671	c. Deposition of all of the claimant’s expert witnesses.
3672	d. Disclosure of witnesses and production of documents.
3673	e. Mediation.
3674	(b) Either party may request that the court enter an order
3675	finding that the other party has unnecessarily or
3676	inappropriately delayed any of the events specified in
3677	subparagraph (a)2. If the court finds that the claimant was
3678	responsible for such unnecessary or inappropriate delays,
3679	subparagraph (a)1. shall not apply. If the court finds that the
3680	defendant was responsible for such unnecessary or inappropriate
3681	delays, subparagraph (a)2. shall not apply.
3682	(c) The fact that the insurer did not tender policy limits
3683	during the time periods specified in this subsection does not
3684	create any presumption with respect to the issue of whether the
3685	insurer acted in bad faith.
3686	(2) When subsection (1) does not apply, the court, in
3687	determining whether an insurer has acted in bad faith, shall
3688	consider:
3689	(a) The insurer’s willingness to negotiate with the
3690	claimant in anticipation of settlement.
3691	(b) The propriety of the insurer’s methods of
3692	investigating and evaluating the claim.
3693	(c) Whether the insurer informed the insured of the offer
3694	to settle within the limits of coverage, the right to retain
3695	personal counsel, and the risk of litigation.
3696	(d) Whether the insured denied liability or requested that
3697	the case be defended after the insurer fully advised the insured
3698	as to the facts and risks.
3699	(e) Whether the claimant imposed any condition, other than
3700	the tender of policy limits, on the settlement of the claim.
3701	(f) Whether the claimant provided relevant information to
3702	the insurer on a timely basis.
3703	(g) Whether and when other defendants in the case settled
3704	or were dismissed from the case.
3705	(h) Whether there were multiple claimants seeking, in the
3706	aggregate, compensation in excess of policy limits from the
3707	defendant or the defendant's insurer.
3708	(i) Whether the insured misrepresented material facts to
3709	the insurer or made material omissions of fact to the insurer.
3710
3711	Upon motion of either party, the court may allow consideration
3712	of such additional factors as it determines to be relevant.
3713	(3) Nothing in this section shall be construed to prohibit
3714	an insured from assigning a cause of action to a third-party
3715	claimant for the insurer's failure to act fairly and honestly
3716	towards its insured with due regard for the insured's interest.
3717	(4) An insurer that tenders policy limits shall be
3718	entitled to a release of its insured if the claimant accepts the
3719	tender.
3720	(5) The provisions of s. 624.155 shall be applicable in
3721	all cases brought pursuant to that section unless specifically
3722	controlled by this section.
3723	Section 45. Section 766.202, Florida Statutes, is amended
3724	to read:
3725	766.202 Definitions; ss. 766.201-766.212.--As used in ss.
3726	766.201-766.212, the term:
3727	(1) "Claimant" means any person who has a cause of action
3728	for damages based on personal injury or wrongful deatharising
3729	from medical negligence.
3730	(2) "Collateral sources" means any payments made to the
3731	claimant, or made on his or her behalf, by or pursuant to:
3732	(a) The United States Social Security Act; any federal,
3733	state, or local income disability act; or any other public
3734	programs providing medical expenses, disability payments, or
3735	other similar benefits, except as prohibited by federal law.
3736	(b) Any health, sickness, or income disability insurance;
3737	automobile accident insurance that provides health benefits or
3738	income disability coverage; and any other similar insurance
3739	benefits, except life insurance benefits available to the
3740	claimant, whether purchased by him or her or provided by others.
3741	(c) Any contract or agreement of any group, organization,
3742	partnership, or corporation to provide, pay for, or reimburse
3743	the costs of hospital, medical, dental, or other health care
3744	services.
3745	(d) Any contractual or voluntary wage continuation plan
3746	provided by employers or by any other system intended to provide
3747	wages during a period of disability.
3748	(3) "Economic damages" means financial losses that which
3749	would not have occurred but for the injury giving rise to the
3750	cause of action, including, but not limited to, past and future
3751	medical expenses and 80 percent of wage loss and loss of earning
3752	capacity, to the extent the claimant is entitled to recover such
3753	damages under general law, including the Wrongful Death Act.
3754	(4) "Health care provider" means any hospital, ambulatory
3755	surgical center, or mobile surgical facility as defined and
3756	licensed under chapter 395; any birth center licensed under
3757	chapter 383; any person licensed under chapter 458, chapter 459,
3758	chapter 460, chapter 461, chapter 462, chapter 463, part I of
3759	chapter 464, chapter 466, chapter 467, or chapter 486; any
3760	clinical lab licensed under chapter 483; a health maintenance
3761	organization certificated under part I of chapter 641; a blood
3762	bank; a plasma center; an industrial clinic; a renal dialysis
3763	facility; or a professional association partnership,
3764	corporation, joint venture, or other association for
3765	professional activity by health care providers.
3766	(5)(4)"Investigation" means that an attorney has reviewed
3767	the case against each and every potential defendant and has
3768	consulted with a medical expert and has obtained a written
3769	opinion from said expert.
3770	(6)(5)"Medical expert" means a person duly and regularly
3771	engaged in the practice of his or her profession who holds a
3772	health care professional degree from a university or college and
3773	who meets the requirements of an expert witness as set forth in
3774	s. 766.102 has had special professional training and experience
3775	or one possessed of special health care knowledge or skill about
3776	the subject upon which he or she is called to testify or provide
3777	an opinion.
3778	(7)(6)"Medical negligence" means medical malpractice,
3779	whether grounded in tort or in contract.
3780	(8)(7) "Noneconomic damages" means nonfinancial losses
3781	that whichwould not have occurred but for the injury giving
3782	rise to the cause of action, including pain and suffering,
3783	inconvenience, physical impairment, mental anguish,
3784	disfigurement, loss of capacity for enjoyment of life, and other
3785	nonfinancial losses, to the extent the claimant is entitled to
3786	recover such damages under general law, including the Wrongful
3787	Death Act.
3788	(9)(8)"Periodic payment" means provision for the
3789	structuring of future economic damages payments, in whole or in
3790	part, over a period of time, as follows:
3791	(a) A specific finding of the dollar amount of periodic
3792	payments which will compensate for these future damages after
3793	offset for collateral sources shall be made. The total dollar
3794	amount of the periodic payments shall equal the dollar amount of
3795	all such future damages before any reduction to present value.
3796	(b) The defendant shall be required to post a bond or
3797	security or otherwise to assure full payment of these damages
3798	awarded. A bond is not adequate unless it is written by a
3799	company authorized to do business in this state and is rated A+
3800	by Best's. If the defendant is unable to adequately assure full
3801	payment of the damages, all damages, reduced to present value,
3802	shall be paid to the claimant in a lump sum. No bond may be
3803	canceled or be subject to cancellation unless at least 60 days'
3804	advance written notice is filed with the court and the claimant.
3805	Upon termination of periodic payments, the security, or so much
3806	as remains, shall be returned to the defendant.
3807	(c) The provision for payment of future damages by
3808	periodic payments shall specify the recipient or recipients of
3809	the payments, the dollar amounts of the payments, the interval
3810	between payments, and the number of payments or the period of
3811	time over which payments shall be made.
3812	Section 46. Section 766.2021, Florida Statutes, is created
3813	to read:
3814	766.2021 Limitation on damages against insurers, prepaid
3815	limited health service organizations, health maintenance
3816	organizations, or prepaid health clinics.--An entity licensed or
3817	certificated under chapter 624, chapter 636, or chapter 641
3818	shall not be liable for the medical negligence of a health care
3819	provider with whom the licensed or certificated entity has
3820	entered into a contract in any amount greater than the amount of
3821	damages that may be imposed by law directly upon the health care
3822	provider, and any suits against such entity shall be subject to
3823	all provisions and requirements of evidence in this chapter and
3824	other requirements imposed by law in connection with suits
3825	against health care providers for medical negligence.
3826	Section 47. Section 766.203, Florida Statutes, is amended
3827	to read:
3828	766.203 Presuit investigation of medical negligence claims
3829	and defenses by prospective parties.--
3830	(1) APPLICATION OF PRESUIT INVESTIGATION.--Presuit
3831	investigation of medical negligence claims and defenses pursuant
3832	to this section and ss. 766.204-766.206 shall apply to all
3833	medical negligence, including dental negligence,claims and
3834	defenses. This shall include:
3835	(a) Rights of action under s. 768.19 and defenses thereto.
3836	(b) Rights of action involving the state or its agencies
3837	or subdivisions, or the officers, employees, or agents thereof,
3838	pursuant to s. 768.28 and defenses thereto.
3839	(2) PRESUIT INVESTIGATION BY CLAIMANT.--Prior to issuing
3840	notification of intent to initiate medical negligence
3841	malpracticelitigation pursuant to s. 766.106, the claimant
3842	shall conduct an investigation to ascertain that there are
3843	reasonable grounds to believe that:
3844	(a) Any named defendant in the litigation was negligent in
3845	the care or treatment of the claimant; and
3846	(b) Such negligence resulted in injury to the claimant.
3847
3848	Corroboration of reasonable grounds to initiate medical
3849	negligence litigation shall be provided by the claimant's
3850	submission of a verified written medical expert opinion from a
3851	medical expert as defined in s. 766.202(6)(5), at the time the
3852	notice of intent to initiate litigation is mailed, which
3853	statement shall corroborate reasonable grounds to support the
3854	claim of medical negligence.
3855	(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.--Prior
3856	to issuing its response to the claimant's notice of intent to
3857	initiate litigation, during the time period for response
3858	authorized pursuant to s. 766.106, the prospectivedefendant or
3859	the defendant's insurer or self-insurer shall conduct an
3860	investigation as provided in s. 766.106(3)to ascertain whether
3861	there are reasonable grounds to believe that:
3862	(a) The defendant was negligent in the care or treatment
3863	of the claimant; and
3864	(b) Such negligence resulted in injury to the claimant.
3865
3866	Corroboration of lack of reasonable grounds for medical
3867	negligence litigation shall be provided with any response
3868	rejecting the claim by the defendant's submission of a verified
3869	written medical expert opinion from a medical expert as defined
3870	in s. 766.202(6)(5), at the time the response rejecting the
3871	claim is mailed, which statement shall corroborate reasonable
3872	grounds for lack of negligent injury sufficient to support the
3873	response denying negligent injury.
3874	(4) PRESUIT MEDICAL EXPERT OPINION.--The medical expert
3875	opinions and statements required by this section are subject to
3876	discovery. The opinionsshall specify whether any previous
3877	opinion by the same medical expert has been disqualified and if
3878	so the name of the court and the case number in which the ruling
3879	was issued.
3880	Section 48. Section 766.206, Florida Statutes, is amended
3881	to read:
3882	766.206 Presuit investigation of medical negligence claims
3883	and defenses by court.--
3884	(1) After the completion of presuit investigation by the
3885	parties pursuant to s. 766.203 and any informal discovery
3886	pursuant to s. 766.106, any party may file a motion in the
3887	circuit court requesting the court to determine whether the
3888	opposing party's claim or denial rests on a reasonable basis.
3889	(2) If the court finds that the notice of intent to
3890	initiate litigation mailed by the claimant is not in compliance
3891	with the reasonable investigation requirements of ss. 766.201-
3892	766.212, including a review of the claim and a verified written
3893	medical expert opinion by a medical expert as defined in s.
3894	766.202,the court shall dismiss the claim, and the person who
3895	mailed such notice of intent, whether the claimant or the
3896	claimant's attorney, shall be personally liable for all
3897	attorney's fees and costs incurred during the investigation and
3898	evaluation of the claim, including the reasonable attorney's
3899	fees and costs of the defendant or the defendant's insurer.
3900	(3) If the court finds that the response mailed by a
3901	defendant rejecting the claim is not in compliance with the
3902	reasonable investigation requirements of ss. 766.201-766.212,
3903	including a review of the claim and a verified written medical
3904	expert opinion by a medical expert as defined in s. 766.202, the
3905	court shall strike the defendant's pleading. response, andThe
3906	person who mailed such response, whether the defendant, the
3907	defendant's insurer, or the defendant's attorney, shall be
3908	personally liable for all attorney's fees and costs incurred
3909	during the investigation and evaluation of the claim, including
3910	the reasonable attorney's fees and costs of the claimant.
3911	(4) If the court finds that an attorney for the claimant
3912	mailed notice of intent to initiate litigation without
3913	reasonable investigation, or filed a medical negligence claim
3914	without first mailing such notice of intent which complies with
3915	the reasonable investigation requirements, or if the court finds
3916	that an attorney for a defendant mailed a response rejecting the
3917	claim without reasonable investigation, the court shall submit
3918	its finding in the matter to The Florida Bar for disciplinary
3919	review of the attorney. Any attorney so reported three or more
3920	times within a 5-year period shall be reported to a circuit
3921	grievance committee acting under the jurisdiction of the Supreme
3922	Court. If such committee finds probable cause to believe that an
3923	attorney has violated this section, such committee shall forward
3924	to the Supreme Court a copy of its finding.
3925	(5)(a) If the court finds that the corroborating written
3926	medical expert opinion attached to any notice of claim or intent
3927	or to any response rejecting a claim lacked reasonable
3928	investigation, or that the medical expert submitting the opinion
3929	did not meet the expert witness qualifications as set forth in
3930	s. 766.202(5),the court shall report the medical expert issuing
3931	such corroborating opinion to the Division of Medical Quality
3932	Assurance or its designee. If such medical expert is not a
3933	resident of the state, the division shall forward such report to
3934	the disciplining authority of that medical expert.
3935	(b) The court shall may refuse to consider the testimony
3936	or opinion attached to any notice of intent or to any response
3937	rejecting a claim of suchan expert who has been disqualified
3938	three times pursuant to this section.
3939	Section 49. Subsection (7) of section 766.207, Florida
3940	Statutes, is amended to read:
3941	766.207 Voluntary binding arbitration of medical
3942	negligence claims.--
3943	(7) Arbitration pursuant to this section shall preclude
3944	recourse to any other remedy by the claimant against any
3945	participating defendant,and shall be undertaken with the
3946	understanding that damages shall be awarded as provided by
3947	general law, including the Wrongful Death Act, subject to the
3948	following limitations:
3949	(a) Net economic damages shall be awardable, including,
3950	but not limited to, past and future medical expenses and 80
3951	percent of wage loss and loss of earning capacity, offset by any
3952	collateral source payments.
3953	(b) Noneconomic damages shall be limited to a maximum of
3954	$250,000 per incident, and shall be calculated on a percentage
3955	basis with respect to capacity to enjoy life, so that a finding
3956	that the claimant's injuries resulted in a 50-percent reduction
3957	in his or her capacity to enjoy life would warrant an award of
3958	not more than $125,000 noneconomic damages.
3959	(c) Damages for future economic losses shall be awarded to
3960	be paid by periodic payments pursuant to s. 766.202(9)(8)and
3961	shall be offset by future collateral source payments.
3962	(d) Punitive damages shall not be awarded.
3963	(e) The defendant shall be responsible for the payment of
3964	interest on all accrued damages with respect to which interest
3965	would be awarded at trial.
3966	(f) The defendant shall pay the claimant's reasonable
3967	attorney's fees and costs, as determined by the arbitration
3968	panel, but in no event more than 15 percent of the award,
3969	reduced to present value.
3970	(g) The defendant shall pay all the costs of the
3971	arbitration proceeding and the fees of all the arbitrators other
3972	than the administrative law judge.
3973	(h) Each defendant who submits to arbitration under this
3974	section shall be jointly and severally liable for all damages
3975	assessed pursuant to this section.
3976	(i) The defendant's obligation to pay the claimant's
3977	damages shall be for the purpose of arbitration under this
3978	section only. A defendant's or claimant's offer to arbitrate
3979	shall not be used in evidence or in argument during any
3980	subsequent litigation of the claim following the rejection
3981	thereof.
3982	(j) The fact of making or accepting an offer to arbitrate
3983	shall not be admissible as evidence of liability in any
3984	collateral or subsequent proceeding on the claim.
3985	(k) Any offer by a claimant to arbitrate must be made to
3986	each defendant against whom the claimant has made a claim. Any
3987	offer by a defendant to arbitrate must be made to each claimant
3988	who has joined in the notice of intent to initiate litigation,
3989	as provided in s. 766.106. A defendant who rejects a claimant's
3990	offer to arbitrate shall be subject to the provisions of s.
3991	766.209(3). A claimant who rejects a defendant's offer to
3992	arbitrate shall be subject to the provisions of s. 766.209(4).
3993	(l) The hearing shall be conducted by all of the
3994	arbitrators, but a majority may determine any question of fact
3995	and render a final decision. The chief arbitrator shall decide
3996	all evidentiary matters.
3997
3998	The provisions of this subsection shall not preclude settlement
3999	at any time by mutual agreement of the parties.
4000	Section 50. Paragraph (a) of subsection (3) and paragraph
4001	(c) of subsection (4) of section 766.209, Florida Statutes, are
4002	amended to read:
4003	766.209 Effects of failure to offer or accept voluntary
4004	binding arbitration.--
4005	(3) If the defendant refuses a claimant's offer of
4006	voluntary binding arbitration:
4007	(a) The claim shall proceed to trial without limitation on
4008	damages, and the claimant, upon proving medical negligence,
4009	shall be entitled to recover damages subject to the limitations
4010	in s. 766.118,prejudgment interest, and reasonable attorney's
4011	fees up to 25 percent of the award reduced to present value.
4012	(4) If the claimant rejects a defendant's offer to enter
4013	voluntary binding arbitration:
4014	(c) Damages for future economic losses shall be awarded to
4015	be paid by periodic payments pursuant to s. 766.202(9)(8), and
4016	shall be offset by future collateral source payments.
4017	Section 51. Section 766.304, Florida Statutes, is amended
4018	to read:
4019	766.304 Administrative law judge to determine claims.--The
4020	administrative law judge shall hear and determine all claims
4021	filed pursuant to ss. 766.301-766.316 and shall exercise the
4022	full power and authority granted to her or him in chapter 120,
4023	as necessary, to carry out the purposes of such sections. The
4024	administrative law judge has exclusive jurisdiction to determine
4025	whether a claim filed under this act is compensable. No civil
4026	action may be brought until the determinations under s. 766.309
4027	have been made by the administrative law judge. If the
4028	administrative law judge determines that the claimant is
4029	entitled to compensation from the association, or if the
4030	claimant accepts an award issued pursuant to s. 766.31, no civil
4031	action may be brought or continued in violation of the
4032	exclusiveness of remedy provisions of s. 766.303. If it is
4033	determined that a claim filed under this act is not compensable,
4034	neither the doctrine of collateral estoppel nor res judicata
4035	shall prohibit the claimant from pursuing any and all civil
4036	remedies available under common law and statutory law. The
4037	findings of fact and conclusions of law of the administrative
4038	law judge shall not be admissible in any subsequent proceeding;
4039	however, the sworn testimony of any person and the exhibits
4040	introduced into evidence in the administrative case are
4041	admissible as impeachment in any subsequent civil action only
4042	against a party to the administrative proceeding, subject to the
4043	Rules of Evidence. An award action may not be awarded or paid
4044	brought under ss. 766.301-766.316 if the claimant recovers under
4045	a settlement or a final judgment is entered in a civil action.
4046	The division may adopt rules to promote the efficient
4047	administration of, and to minimize the cost associated with, the
4048	prosecution of claims.
4049	Section 52. Section 766.305, Florida Statutes, is amended
4050	to read:
4051	766.305 Filing of claims and responses; medical
4052	disciplinary review.--
4053	(1) All claims filed for compensation under the plan shall
4054	commence by the claimant filing with the division a petition
4055	seeking compensation. Such petition shall include the following
4056	information:
4057	(a) The name and address of the legal representative and
4058	the basis for her or his representation of the injured infant.
4059	(b) The name and address of the injured infant.
4060	(c) The name and address of any physician providing
4061	obstetrical services who was present at the birth and the name
4062	and address of the hospital at which the birth occurred.
4063	(d) A description of the disability for which the claim is
4064	made.
4065	(e) The time and place the injury occurred.
4066	(f) A brief statement of the facts and circumstances
4067	surrounding the injury and giving rise to the claim.
4068	(g) All available relevant medical records relating to the
4069	birth-related neurological injury, and an identification of any
4070	unavailable records known to the claimant and the reasons for
4071	their unavailability.
4072	(h) Appropriate assessments, evaluations, and prognoses,
4073	and such other records and documents as are reasonably necessary
4074	for the determination of the amount of compensation to be paid
4075	to, or on behalf of, the injured infant on account of the birth-
4076	related neurological injury.
4077	(i) Documentation of expenses and services incurred to
4078	date, which indicates any payment made for such expenses and
4079	services, and by whom.
4080	(j) Documentation of any applicable private or
4081	governmental source of services or reimbursement relative to the
4082	impairments.
4083	(2) The claimant shall furnish the division with as many
4084	copies of the petition as required for service upon the
4085	association, any physician and hospital named in the petition,
4086	and the Division of Medical Quality Assurance, along with a $15
4087	filing fee payable to the Division of Administrative Hearings.
4088	Upon receipt of the petition, the division shall immediately
4089	serve the association, by service upon the agent designated to
4090	accept service on behalf of the association, by registered or
4091	certified mail, and shall mail copies of the petition, by
4092	registered or certified mail, to any physician, health care
4093	provider, and hospital named in the petition, and furnish a copy
4094	by regular mail to the Division of Medical Quality Assurance,
4095	and the Agency for Health Care Administration.
4096	(3) The claimant shall furnish to the Florida Birth-Related
4097	Neurological Injury Compensation Association one copy of the
4098	following information, which shall be filed with the association
4099	within 10 days after the filing of the petition as set forth in
4100	subsection (1):
4101	(a) All available relevant medical records relating to the
4102	birth-related neurological injury and an identification of any
4103	unavailable records known to the claimant and the reasons for
4104	their unavailability.
4105	(b) Appropriate assessments, evaluations, and prognoses and
4106	such other records and documents as are reasonably necessary for
4107	the determination of the amount of compensation to be paid to, or
4108	on behalf of, the injured infant on account of the birth-related
4109	neurological injury.
4110	(c) Documentation of expenses and services incurred to
4111	date, which indicates any payment made for such expenses and
4112	services and by whom.
4113	(d) Documentation of any applicable private or governmental
4114	source of services or reimbursement relative to the impairments.
4115
4116	The information contained in paragraphs (a)-(d) is confidential
4117	and exempt pursuant to the provisions of s. 766.315(5)(b).
4118	(4)(3)The association shall have 45 days from the date of
4119	service of a complete claim, filed pursuant to subsections (1)
4120	and (2), in which to file a response to the petition and to
4121	submit relevant written information relating to the issue of
4122	whether the injury alleged is a birth-related neurological
4123	injury.
4124	(5)(4)Upon receipt of such petition, the Division of
4125	Medical Quality Assurance shall review the information therein
4126	and determine whether it involved conduct by a physician
4127	licensed under chapter 458 or an osteopathic physician licensed
4128	under chapter 459 that is subject to disciplinary action, in
4129	which case the provisions of s. 456.073 shall apply.
4130	(6)(5)Upon receipt of such petition, the Agency for
4131	Health Care Administration shall investigate the claim, and if
4132	it determines that the injury resulted from, or was aggravated
4133	by, a breach of duty on the part of a hospital in violation of
4134	chapter 395, it shall take any such action consistent with its
4135	disciplinary authority as may be appropriate.
4136	(7)(6)Any claim which the association determines to be
4137	compensable may be accepted for compensation, provided that the
4138	acceptance is approved by the administrative law judge to whom
4139	the claim for compensation is assigned.
4140	Section 53. Subsection (4) is added to section 766.309,
4141	Florida Statutes, to read:
4142	766.309 Determination of claims; presumption; findings of
4143	administrative law judge binding on participants.--
4144	(4) If it is in the interest of judicial economy or if
4145	requested by the claimant, the administrative law judge may
4146	bifurcate the proceeding, first addressing compensability and
4147	notice pursuant to s. 766.316 and then addressing an award
4148	pursuant to s. 766.31, if any, in a separate proceeding. The
4149	administrative law judge may issue a final order on
4150	compensability and notice which is subject to appeal under s.
4151	766.311 prior to issuance of an award pursuant to s. 766.31.
4152	Section 54. Subsection (1) of section 766.31, Florida
4153	Statutes, is amended to read:
4154	766.31 Administrative law judge awards for birth-related
4155	neurological injuries; notice of award.--
4156	(1) Upon determining that an infant has sustained a birth-
4157	related neurological injury and that obstetrical services were
4158	delivered by a participating physician at the birth, the
4159	administrative law judge shall make an award providing
4160	compensation for the following items relative to such injury:
4161	(a) Actual expenses for medically necessary and reasonable
4162	medical and hospital, habilitative and training, family
4163	residential or custodial care, professional residential, and
4164	custodial care and service, for medically necessary drugs,
4165	special equipment, and facilities, and for related travel.
4166	However, such expenses shall not include:
4167	1. Expenses for items or services that the infant has
4168	received, or is entitled to receive, under the laws of any state
4169	or the Federal Government, except to the extent such exclusion
4170	may be prohibited by federal law.
4171	2. Expenses for items or services that the infant has
4172	received, or is contractually entitled to receive, from any
4173	prepaid health plan, health maintenance organization, or other
4174	private insuring entity.
4175	3. Expenses for which the infant has received
4176	reimbursement, or for which the infant is entitled to receive
4177	reimbursement, under the laws of any state or the Federal
4178	Government, except to the extent such exclusion may be
4179	prohibited by federal law.
4180	4. Expenses for which the infant has received
4181	reimbursement, or for which the infant is contractually entitled
4182	to receive reimbursement, pursuant to the provisions of any
4183	health or sickness insurance policy or other private insurance
4184	program.
4185
4186	Expenses included under this paragraph shall be limited to
4187	reasonable charges prevailing in the same community for similar
4188	treatment of injured persons when such treatment is paid for by
4189	the injured person.
4190	(b)1. Periodic payments of an award to the parents or
4191	legal guardians of the infant found to have sustained a birth-
4192	related neurological injury, which award shall not exceed
4193	$100,000. However, at the discretion of the administrative law
4194	judge, such award may be made in a lump sum.
4195	2. A death benefit for the infant in an amount of $10,000
4196	Payment for funeral expenses not to exceed $1,500.
4197	(c) Reasonable expenses incurred in connection with the
4198	filing of a claim under ss. 766.301-766.316, including
4199	reasonable attorney's fees, which shall be subject to the
4200	approval and award of the administrative law judge. In
4201	determining an award for attorney's fees, the administrative law
4202	judge shall consider the following factors:
4203	1. The time and labor required, the novelty and difficulty
4204	of the questions involved, and the skill requisite to perform
4205	the legal services properly.
4206	2. The fee customarily charged in the locality for similar
4207	legal services.
4208	3. The time limitations imposed by the claimant or the
4209	circumstances.
4210	4. The nature and length of the professional relationship
4211	with the claimant.
4212	5. The experience, reputation, and ability of the lawyer
4213	or lawyers performing services.
4214	6. The contingency or certainty of a fee.
4215
4216	Should there be a final determination of compensability and the
4217	claimants accept the award under this section, the claimants
4218	shall not be liable for any expenses, including attorney's fees,
4219	incurred in connection with the filing of a claim under ss.
4220	766.301-766.316 other than those awarded under this section.
4221	Section 55. Subsection (4) of section 766.314, Florida
4222	Statutes, as amended by section 4 of chapter 2003-258, Laws of
4223	Florida, and paragraph (a) of subsection (5) of said section, as
4224	amended by section 1901 of chapter 2003-261, Laws of Florida,
4225	are amended to read:
4226	766.314 Assessments; plan of operation.--
4227	(4) The following persons and entities shall pay into the
4228	association an initial assessment in accordance with the plan of
4229	operation:
4230	(a) On or before October 1, 1988, each hospital licensed
4231	under chapter 395 shall pay an initial assessment of $50 per
4232	infant delivered in the hospital during the prior calendar year,
4233	as reported to the Agency for Health Care Administration;
4234	provided, however, that a hospital owned or operated by the
4235	state or a county, special taxing district, or other political
4236	subdivision of the state shall not be required to pay the
4237	initial assessment or any assessment required by subsection (5).
4238	The term "infant delivered" includes live births and not
4239	stillbirths, but the term does not include infants delivered by
4240	employees or agents of the board of trustees of a state
4241	university Regents, those born in a teaching hospital as defined
4242	in s. 408.07, or those born in a teaching hospital as defined in
4243	s. 395.806 that have been deemed by the association as being
4244	exempt from assessments since fiscal year 1997 to fiscal year
4245	2001. The initial assessment and any assessment imposed pursuant
4246	to subsection (5) may not include any infant born to a charity
4247	patient (as defined by rule of the Agency for Health Care
4248	Administration) or born to a patient for whom the hospital
4249	receives Medicaid reimbursement, if the sum of the annual
4250	charges for charity patients plus the annual Medicaid
4251	contractuals of the hospital exceeds 10 percent of the total
4252	annual gross operating revenues of the hospital. The hospital is
4253	responsible for documenting, to the satisfaction of the
4254	association, the exclusion of any birth from the computation of
4255	the assessment. Upon demonstration of financial need by a
4256	hospital, the association may provide for installment payments
4257	of assessments.
4258	(b)1. On or before October 15, 1988, all physicians
4259	licensed pursuant to chapter 458 or chapter 459 as of October 1,
4260	1988, other than participating physicians, shall be assessed an
4261	initial assessment of $250, which must be paid no later than
4262	December 1, 1988.
4263	2. Any such physician who becomes licensed after September
4264	30, 1988, and before January 1, 1989, shall pay into the
4265	association an initial assessment of $250 upon licensure.
4266	3. Any such physician who becomes licensed on or after
4267	January 1, 1989, shall pay an initial assessment equal to the
4268	most recent assessment made pursuant to this paragraph,
4269	paragraph (5)(a), or paragraph (7)(b).
4270	4. However, if the physician is a physician specified in
4271	this subparagraph, the assessment is not applicable:
4272	a. A resident physician, assistant resident physician, or
4273	intern in an approved postgraduate training program, as defined
4274	by the Board of Medicine or the Board of Osteopathic Medicine by
4275	rule;
4276	b. A retired physician who has withdrawn from the practice
4277	of medicine but who maintains an active license as evidenced by
4278	an affidavit filed with the Department of Health. Prior to
4279	reentering the practice of medicine in this state, a retired
4280	physician as herein defined must notify the Board of Medicine or
4281	the Board of Osteopathic Medicine and pay the appropriate
4282	assessments pursuant to this section;
4283	c. A physician who holds a limited license pursuant to s.
4284	458.317 and who is not being compensated for medical services;
4285	d. A physician who is employed full time by the United
4286	States Department of Veterans Affairs and whose practice is
4287	confined to United States Department of Veterans Affairs
4288	hospitals; or
4289	e. A physician who is a member of the Armed Forces of the
4290	United States and who meets the requirements of s. 456.024.
4291	f. A physician who is employed full time by the State of
4292	Florida and whose practice is confined to state-owned
4293	correctional institutions, a county health department, or state-
4294	owned mental health or developmental services facilities, or who
4295	is employed full time by the Department of Health.
4296	(c) On or before December 1, 1988, each physician licensed
4297	pursuant to chapter 458 or chapter 459 who wishes to participate
4298	in the Florida Birth-Related Neurological Injury Compensation
4299	Plan and who otherwise qualifies as a participating physician
4300	under ss. 766.301-766.316 shall pay an initial assessment of
4301	$5,000. However, if the physician is either a resident
4302	physician, assistant resident physician, or intern in an
4303	approved postgraduate training program, as defined by the Board
4304	of Medicine or the Board of Osteopathic Medicine by rule, and is
4305	supervised in accordance with program requirements established
4306	by the Accreditation Council for Graduate Medical Education or
4307	the American Osteopathic Association by a physician who is
4308	participating in the plan, such resident physician, assistant
4309	resident physician, or intern is deemed to be a participating
4310	physician without the payment of the assessment. Participating
4311	physicians also include any employee of the board of trustees of
4312	a state university Regentswho has paid the assessment required
4313	by this paragraph and paragraph (5)(a), and any certified nurse
4314	midwife supervised by such employee. Participating physicians
4315	include any certified nurse midwife who has paid 50 percent of
4316	the physician assessment required by this paragraph and
4317	paragraph (5)(a) and who is supervised by a participating
4318	physician who has paid the assessment required by this paragraph
4319	and paragraph (5)(a). Supervision for nurse midwives shall
4320	require that the supervising physician will be easily available
4321	and have a prearranged plan of treatment for specified patient
4322	problems which the supervised certified nurse midwife may carry
4323	out in the absence of any complicating features. Any physician
4324	who elects to participate in such plan on or after January 1,
4325	1989, who was not a participating physician at the time of such
4326	election to participate and who otherwise qualifies as a
4327	participating physician under ss. 766.301-766.316 shall pay an
4328	additional initial assessment equal to the most recent
4329	assessment made pursuant to this paragraph, paragraph (5)(a), or
4330	paragraph (7)(b).
4331	(d) Any hospital located in any county with a gross
4332	population in excess of 1.1 million as of January 1, 2003, as
4333	determined by the Agency for Health Care Administration, pursuant
4334	to the Health Care Responsibility Act, may elect to pay the
4335	assessment for the participating physician and the certified
4336	nurse midwife if the hospital first determines that the primary
4337	motivating purpose for making such payment is to ensure coverage
4338	for the hospital's patients under the provisions of ss. 766.301-
4339	766.316, provided no hospital may restrict any participating
4340	physician or certified nurse midwife, directly or indirectly,
4341	from being on the staff of hospitals other than the staff of the
4342	hospital making such payment. Each hospital shall file with the
4343	association an affidavit setting forth specifically the reasons
4344	why such hospital elected to make such payment on behalf of each
4345	participating physician and certified nurse midwife. The payments
4346	authorized pursuant to this paragraph shall be in addition to the
4347	assessment set forth in paragraph (5)(a).
4348	(5)(a) Beginning January 1, 1990, the persons and entities
4349	listed in paragraphs (4)(b) and (c), except those persons or
4350	entities who are specifically excluded from said provisions, as
4351	of the date determined in accordance with the plan of operation,
4352	taking into account persons licensed subsequent to the payment
4353	of the initial assessment, shall pay an annual assessment in the
4354	amount equal to the initial assessments provided in paragraphs
4355	(4)(b) and (c). If the payment of such annual assessment by a
4356	participating physician is received by the association by
4357	January 31 of any calendar year, the participating physician
4358	shall qualify as a participating physician for that entire
4359	calendar year. If the payment is received after January 31 of
4360	any calendar year, the participating physician shall only
4361	qualify as a participating physician for that calendar year from
4362	the date the payment was received by the association.On January
4363	1, 1991, and on each January 1 thereafter, the association shall
4364	determine the amount of additional assessments necessary
4365	pursuant to subsection (7), in the manner required by the plan
4366	of operation, subject to any increase determined to be necessary
4367	by the Office of Insurance Regulation pursuant to paragraph
4368	(7)(b). On July 1, 1991, and on each July 1 thereafter, the
4369	persons and entities listed in paragraphs (4)(b) and (c), except
4370	those persons or entities who are specifically excluded from
4371	said provisions, shall pay the additional assessments which were
4372	determined on January 1. Beginning January 1, 1990, the entities
4373	listed in paragraph (4)(a), including those licensed on or after
4374	October 1, 1988, shall pay an annual assessment of $50 per
4375	infant delivered during the prior calendar year. The additional
4376	assessments which were determined on January 1, 1991, pursuant
4377	to the provisions of subsection (7) shall not be due and payable
4378	by the entities listed in paragraph (4)(a) until July 1.
4379	Section 56. Section 768.0981, Florida Statutes, is created
4380	to read:
4381	768.0981 Limitation on actions against insurers, prepaid
4382	limited health service organizations, health maintenance
4383	organizations, or prepaid health clinics.--An entity licensed or
4384	certificated under chapter 624, chapter 636, or chapter 641
4385	shall not be liable for the medical negligence of a health care
4386	provider with whom the licensed or certificated entity has
4387	entered into a contract, other than an employee of such licensed
4388	or certificated entity, unless the licensed or certificated
4389	entity expressly directs or exercises actual control over the
4390	specific conduct that caused injury.
4391	Section 57. Subsection (2) of section 768.13, Florida
4392	Statutes, is amended to read:
4393	768.13 Good Samaritan Act; immunity from civil
4394	liability.--
4395	(2)(a) Any person, including those licensed to practice
4396	medicine, who gratuitously and in good faith renders emergency
4397	care or treatment either in direct response to emergency
4398	situations related to and arising out of a public health
4399	emergency declared pursuant to s. 381.00315, a state of
4400	emergency which has been declared pursuant to s. 252.36 or at
4401	the scene of an emergency outside of a hospital, doctor's
4402	office, or other place having proper medical equipment, without
4403	objection of the injured victim or victims thereof, shall not be
4404	held liable for any civil damages as a result of such care or
4405	treatment or as a result of any act or failure to act in
4406	providing or arranging further medical treatment where the
4407	person acts as an ordinary reasonably prudent person would have
4408	acted under the same or similar circumstances.
4409	(b)1. Any health care provider, including ahospital
4410	licensed under chapter 395, providing emergency services
4411	pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s.
4412	395.401, s. 395.1041, or s. 401.45 any employee of such hospital
4413	working in a clinical area within the facility and providing
4414	patient care, and any person licensed to practice medicine who
4415	in good faith renders medical care or treatment necessitated by
4416	a sudden, unexpected situation or occurrence resulting in a
4417	serious medical condition demanding immediate medical attention,
4418	for which the patient enters the hospital through its emergency
4419	room or trauma center, or necessitated by a public health
4420	emergency declared pursuant to s. 381.00315shall not be held
4421	liable for any civil damages as a result of such medical care or
4422	treatment unless such damages result from providing, or failing
4423	to provide, medical care or treatment under circumstances
4424	demonstrating a reckless disregard for the consequences so as to
4425	affect the life or health of another.
4426	2. The immunity provided by this paragraph applies does
4427	not applyto damages as a result of any act or omission of
4428	providing medical care or treatment, including diagnosis:
4429	a. Which occurs prior to the time afterthe patient is
4430	stabilized and is capable of receiving medical treatment as a
4431	nonemergency patient, unless surgery is required as a result of
4432	the emergency within a reasonable time after the patient is
4433	stabilized, in which case the immunity provided by this
4434	paragraph applies to any act or omission of providing medical
4435	care or treatment which occurs prior to the stabilization of the
4436	patient following the surgery.; or
4437	b. Which is related Unrelatedto the original medical
4438	emergency.
4439	3. For purposes of this paragraph, "reckless disregard" as
4440	it applies to a given health care provider rendering emergency
4441	medical services shall be such conduct that whicha health care
4442	provider knew or should have known, at the time such services
4443	were rendered, created an unreasonable risk of injury so as to
4444	affect the life or health of another, and such risk was
4445	substantially greater than that which is necessary to make the
4446	conduct negligent. would be likely to result in injury so as to
4447	affect the life or health of another, taking into account the
4448	following to the extent they may be present;
4449	a. The extent or serious nature of the circumstances
4450	prevailing.
4451	b. The lack of time or ability to obtain appropriate
4452	consultation.
4453	c. The lack of a prior patient-physician relationship.
4454	d. The inability to obtain an appropriate medical history
4455	of the patient.
4456	e. The time constraints imposed by coexisting emergencies.
4457	4. Every emergency care facility granted immunity under
4458	this paragraph shall accept and treat all emergency care
4459	patients within the operational capacity of such facility
4460	without regard to ability to pay, including patients transferred
4461	from another emergency care facility or other health care
4462	provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of
4463	an emergency care facility to comply with this subparagraph
4464	constitutes grounds for the department to initiate disciplinary
4465	action against the facility pursuant to chapter 395.
4466	(c)1. Any health care practitioner as defined in s.
4467	456.001(4) who is in a hospital attending to a patient of his or
4468	her practice or for business or personal reasons unrelated to
4469	direct patient care, and who voluntarily responds to provide
4470	care or treatment to a patient with whom at that time the
4471	practitioner does not have a then-existing health care patient-
4472	practitioner relationship, and when such care or treatment is
4473	necessitated by a sudden or unexpected situation or by an
4474	occurrence that demands immediate medical attention, shall not
4475	be held liable for any civil damages as a result of any act or
4476	omission relative to that care or treatment, unless that care or
4477	treatment is proven to amount to conduct that is willful and
4478	wanton and would likely result in injury so as to affect the
4479	life or health of another.
4480	2. The immunity provided by this paragraph does not apply
4481	to damages as a result of any act or omission of providing
4482	medical care or treatment unrelated to the original situation
4483	that demanded immediate medical attention.
4484	3. For purposes of this paragraph, the Legislature's
4485	intent is to encourage health care practitioners to provide
4486	necessary emergency care to all persons without fear of
4487	litigation as described in this paragraph.
4488	(c) Any person who is licensed to practice medicine, while
4489	acting as a staff member or with professional clinical
4490	privileges at a nonprofit medical facility, other than a
4491	hospital licensed under chapter 395, or while performing health
4492	screening services, shall not be held liable for any civil
4493	damages as a result of care or treatment provided gratuitously
4494	in such capacity as a result of any act or failure to act in
4495	such capacity in providing or arranging further medical
4496	treatment, if such person acts as a reasonably prudent person
4497	licensed to practice medicine would have acted under the same or
4498	similar circumstances.
4499	Section 58. Present subsections (12) through (19) of
4500	section 768.28, Florida Statutes, as amended by section 9 of
4501	chapter 2003-159, Laws of Florida, section 1903 of chapter 2003-
4502	261, Laws of Florida, and section 1 of chapter 2003-290, Laws of
4503	Florida, are renumbered as subsections (13) through (20),
4504	respectively, and a new subsection (12) is added to said section
4505	to read:
4506	768.28 Waiver of sovereign immunity in tort actions;
4507	recovery limits; limitation on attorney fees; statute of
4508	limitations; exclusions; indemnification; risk management
4509	programs.--
4510	(12)(a) A health care practitioner, as defined in s.
4511	456.001(4), who has contractually agreed to act as an agent of a
4512	state university board of trustees to provide medical services
4513	to a student athlete for participation in or as a result of
4514	intercollegiate athletics, to include team practices, training,
4515	and competitions, shall be considered an agent of the respective
4516	state university board of trustees for the purposes of this
4517	section while acting within the scope of and pursuant to
4518	guidelines established in that contract. The contract shall
4519	provide for the indemnification of the state by the agent for
4520	any liabilities incurred up to the limits set forth in this
4521	chapter.
4522	(b) This subsection shall not be construed as designating
4523	persons providing contracted health care services to athletes as
4524	employees or agents of a state university board of trustees for
4525	the purposes of chapter 440.
4526	Section 59. Section 768.77, Florida Statutes, is amended
4527	to read:
4528	768.77 Itemized verdict.--
4529	(1) Except as provided in subsection (2),in any action to
4530	which this part applies in which the trier of fact determines
4531	that liability exists on the part of the defendant, the trier of
4532	fact shall, as a part of the verdict, itemize the amounts to be
4533	awarded to the claimant into the following categories of
4534	damages:
4535	(a)(1)Amounts intended to compensate the claimant for
4536	economic losses;
4537	(b)(2)Amounts intended to compensate the claimant for
4538	noneconomic losses; and
4539	(c)(3)Amounts awarded to the claimant for punitive
4540	damages, if applicable.
4541	(2) In any action for damages based on personal injury or
4542	wrongful death arising out of medical negligence, whether in
4543	tort or contract, to which this part applies in which the trier
4544	of fact determines that liability exists on the part of the
4545	defendant, the trier of fact shall, as a part of the verdict,
4546	itemize the amounts to be awarded to the claimant into the
4547	following categories of damages:
4548	(a) Amounts intended to compensate the claimant for:
4549	1. Past economic losses; and
4550	2. Future economic losses, not reduced to present value,
4551	and the number of years or part thereof which the award is
4552	intended to cover;
4553	(b) Amounts intended to compensate the claimant for:
4554	1. Past noneconomic losses; and
4555	2. Future noneconomic losses and the number of years or
4556	part thereof which the award is intended to cover; and
4557	(c) Amounts awarded to the claimant for punitive damages,
4558	if applicable.
4559	Section 60. Section 1004.08, Florida Statutes, is created
4560	to read:
4561	1004.08 Patient safety instructional requirements.--Every
4562	public school, college, and university that offers degrees in
4563	medicine, nursing, and allied health shall include in the
4564	curricula applicable to such degrees material on patient safety,
4565	including patient safety improvement. Materials shall include,
4566	but need not be limited to, effective communication and
4567	teamwork; epidemiology of patient injuries and medical errors;
4568	vigilance, attention, and fatigue; checklists and inspections;
4569	automation and technological and computer support; psychological
4570	factors in human error; and reporting systems.
4571	Section 61. Section 1005.07, Florida Statutes, is created
4572	to read:
4573	1005.07 Patient safety instructional requirements.--Every
4574	nonpublic school, college, and university that offers degrees in
4575	medicine, nursing, and allied health shall include in the
4576	curricula applicable to such degrees material on patient safety,
4577	including patient safety improvement. Materials shall include,
4578	but need not be limited to, effective communication and
4579	teamwork; epidemiology of patient injuries and medical errors;
4580	vigilance, attention, and fatigue; checklists and inspections;
4581	automation and technological and computer support; psychological
4582	factors in human error; and reporting systems.
4583	Section 62. Paragraph (c) of subsection (2) of section
4584	1006.20, Florida Statutes, as amended by section 2 of chapter
4585	2003-129, Laws of Florida, is amended to read:
4586	1006.20 Athletics in public K-12 schools.--
4587	(2) ADOPTION OF BYLAWS.--
4588	(c) The organization shall adopt bylaws that require all
4589	students participating in interscholastic athletic competition
4590	or who are candidates for an interscholastic athletic team to
4591	satisfactorily pass a medical evaluation each year prior to
4592	participating in interscholastic athletic competition or
4593	engaging in any practice, tryout, workout, or other physical
4594	activity associated with the student's candidacy for an
4595	interscholastic athletic team. Such medical evaluation can only
4596	be administered by a practitioner licensed under the provisions
4597	of chapter 458, chapter 459, chapter 460, or s. 464.012, and in
4598	good standing with the practitioner's regulatory board. The
4599	bylaws shall establish requirements for eliciting a student's
4600	medical history and performing the medical evaluation required
4601	under this paragraph, which shall include a physical assessment
4602	of the student's physical capabilities to participate in
4603	interscholastic athletic competition as contained in a uniform
4604	preparticipation physical evaluation and historyform. The
4605	evaluation form shall incorporate the recommendations of the
4606	American Heart Association for participation cardiovascular
4607	screening and shallprovide a place for the signature of the
4608	practitioner performing the evaluation with an attestation that
4609	each examination procedure listed on the form was performed by
4610	the practitioner or by someone under the direct supervision of
4611	the practitioner. The form shall also contain a place for the
4612	practitioner to indicate if a referral to another practitioner
4613	was made in lieu of completion of a certain examination
4614	procedure. The form shall provide a place for the practitioner
4615	to whom the student was referred to complete the remaining
4616	sections and attest to that portion of the examination. The
4617	preparticipation physical evaluation form shall advise students
4618	to complete a cardiovascular assessment and shall include
4619	information concerning alternative cardiovascular evaluation and
4620	diagnostic tests. Practitioners administering medical
4621	evaluations pursuant to this subsection must, at a minimum,
4622	solicit all information required by, and perform a physical
4623	assessment according to, the uniform preparticipation form
4624	referred to in this paragraph and must certify, based on the
4625	information provided and the physical assessment, that the
4626	student is physically capable of participating in
4627	interscholastic athletic competition. If the practitioner
4628	determines that there are any abnormal findings in the
4629	cardiovascular system, the student may not participate until a
4630	further cardiovascular assessment, which may include an EKG, is
4631	performed which indicates that the student is physically capable
4632	of participating in interscholastic athletic competition.
4633	Results of such medical evaluation must be provided to the
4634	school. No student shall be eligible to participate in any
4635	interscholastic athletic competition or engage in any practice,
4636	tryout, workout, or other physical activity associated with the
4637	student's candidacy for an interscholastic athletic team until
4638	the results of the medical evaluation have clearing the student
4639	for participation hasbeen received and approved by the school.
4640	Section 63. Patient safety data privilege.--
4641	(1) As used in this section, the term:
4642	(a) "Patient safety data" means reports made to patient
4643	safety organizations, including all health care data,
4644	interviews, memoranda, analyses, root cause analyses, products
4645	of quality assurance or quality improvement processes,
4646	corrective action plans, or information collected or created by
4647	a health care facility licensed under chapter 395, Florida
4648	Statutes, or a health care practitioner as defined in s.
4649	456.001(4), Florida Statutes, as a result of an occurrence
4650	related to the provision of health care services which
4651	exacerbates an existing medical condition or could result in
4652	injury, illness, or death.
4653	(b) "Patient safety organization" means any organization,
4654	group, or other entity that collects and analyzes patient safety
4655	data for the purpose of improving patient safety and health care
4656	outcomes and that is independent and not under the control of
4657	the entity that reports patient safety data.
4658	(2) Patient safety data shall not be subject to discovery
4659	or introduction into evidence in any civil or administrative
4660	action. However, information, documents, or records otherwise
4661	available from original sources are not immune from discovery or
4662	use in any civil or administrative action merely because they
4663	were also collected, analyzed, or presented to a patient safety
4664	organization. Any person who testifies before a patient safety
4665	organization or who is a member of such a group may not be
4666	prevented from testifying as to matters within his or her
4667	knowledge, but he or she may not be asked about his or her
4668	testimony before a patient safety organization or the opinions
4669	formed by him or her as a result of the hearings.
4670	(3) Unless otherwise provided by law, a patient safety
4671	organization shall promptly remove all patient-identifying
4672	information after receipt of a complete patient safety data
4673	report unless such organization is otherwise permitted by state
4674	or federal law to maintain such information. Patient safety
4675	organizations shall maintain the confidentiality of all patient-
4676	identifying information and may not disseminate such
4677	information, except as permitted by state or federal law.
4678	(4) The exchange of patient safety data among health care
4679	facilities licensed under chapter 395, Florida Statutes, or
4680	health care practitioners as defined in s. 456.001(4), Florida
4681	Statutes, or patient safety organizations which does not
4682	identify any patient shall not constitute a waiver of any
4683	privilege established in this section.
4684	(5) Reports of patient safety data to patient safety
4685	organizations do not abrogate obligations to make reports to the
4686	Department of Health, the Agency for Health Care Administration,
4687	or other state or federal regulatory agencies.
4688	(6) An employer may not take retaliatory action against an
4689	employee who in good faith makes a report of patient safety data
4690	to a patient safety organization.
4691	Section 64. The Division of Administrative Hearings shall
4692	designate at least two administrative law judges who shall
4693	specifically preside over actions involving the Department of
4694	Health or boards within the Department of Health. Each
4695	designated administrative law judge must be a member of The
4696	Florida Bar in good standing and must have legal, managerial, or
4697	clinical experience in issues related to health care or have
4698	attained board certification in health care law from The Florida
4699	Bar.
4700	Section 65. (1) The Department of Health shall study and
4701	report to the Legislature as to whether medical review panels
4702	should be included as part of the presuit process in medical
4703	negligence litigation. Medical review panels review a medical
4704	negligence case during the presuit process and make judgments on
4705	the merits of the case based on established standards of care
4706	with the intent of reducing the number of frivolous claims. The
4707	panel's report could be used as admissible evidence at trial or
4708	for other purposes. The department's report should address:
4709	(a) Historical use of medical review panels and similar
4710	pretrial programs in this state, including the mediation panels
4711	created by chapter 75-9, Laws of Florida.
4712	(b) Constitutional issues relating to the use of medical
4713	review panels.
4714	(c) The use of medical review panels or similar programs
4715	in other states.
4716	(d) Whether medical review panels or similar panels should
4717	be created for use during the presuit process.
4718	(e) Other recommendations and information that the
4719	department deems appropriate.
4720	(f) In submitting its report with respect to paragraphs
4721	(a)-(c), the department should identify at a minimum:
4722	1. The percentage of medical negligence claims submitted
4723	to the panels during the time period the panels were in
4724	existence.
4725	2. The percentage of claims that were settled while the
4726	panels were in existence and the percentage of claims that were
4727	settled in the 3 years prior to the establishment of such panels
4728	or, for each panel which no longer exists, 3 years after the
4729	dissolution of such panels.
4730	3. In those state where panels have been discontinued,
4731	whether additional safeguards have been implemented to avoid the
4732	filing of frivolous lawsuits and what those additional
4733	safeguards are.
4734	4. How the rates for medical malpractice insurance in
4735	states utilizing such panels compares with the rates in states
4736	not utilizing such panels.
4737	5. Whether, and to what extent, a finding by a panel is
4738	subject to review and the burden of proof required to overcome a
4739	finding by the panel.
4740	(2) If the department finds that medical review panels or
4741	a similar structure should be created in this state, it shall
4742	include draft legislation to implement its recommendations in
4743	its report.
4744	(3) The department shall submit its report to the Speaker
4745	of the House of Representatives and the President of the Senate
4746	no later than December 31, 2003.
4747	Section 66. (1) The Agency for Health Care Administration
4748	shall conduct or contract for a study to determine what
4749	information is most feasible to provide to the public comparing
4750	state-licensed hospitals on certain inpatient quality indicators
4751	developed by the federal Agency for Healthcare Research and
4752	Quality. Such indicators shall be designed to identify
4753	information about specific procedures performed in hospitals for
4754	which there is strong evidence of a link to quality of care. The
4755	Agency for Health Care Administration or the study contractor
4756	shall refer to the hospital quality reports published in New
4757	York and Texas as guides during the evaluation.
4758	(2) The following concepts shall be specifically addressed
4759	in the study report:
4760	(a) Whether hospital discharge data about services can be
4761	translated into understandable and meaningful information for
4762	the public.
4763	(b) Whether the following measures are useful consumer
4764	guides relating to care provided in state-licensed hospitals:
4765	1. Inpatient mortality for medical conditions.
4766	2. Inpatient mortality for procedures.
4767	3. Utilization of procedures for which there are questions
4768	of overuse, underuse, or misuse.
4769	4. Volume of procedures for which there is evidence that a
4770	higher volume of procedures is associated with lower mortality.
4771	(c) Whether there are quality indicators that are
4772	particularly useful relative to the state's unique demographics.
4773	(d) Whether all hospitals should be included in the
4774	comparison.
4775	(e) The criteria for comparison.
4776	(f) Whether comparisons are best within metropolitan
4777	statistical areas or some other geographic configuration.
4778	(g) The identification of several Internet websites to
4779	which such a report should be published to achieve the broadest
4780	dissemination of the information.
4781	(3) The Agency for Health Care Administration shall
4782	consider the input of all interested parties, including
4783	hospitals, physicians, consumer organizations, and patients, and
4784	submit a final report to the Governor, the President of the
4785	Senate, and the Speaker of the House of Representatives by
4786	January 1, 2004.
4787	Section 67. Comprehensive study and report on the creation
4788	of a patient safety entity.--
4789	(1) The Agency for Health Care Administration, in
4790	consultation with the Department of Health and existing patient
4791	safety centers, is directed to study the need for, and the
4792	implementation requirements of, establishing a patient safety
4793	entity. The entity would be responsible for performing
4794	activities and functions designed to improve patient safety and
4795	the quality of care delivered by health care facilities and
4796	health care practitioners.
4797	(2) In undertaking its study, the agency shall examine and
4798	evaluate a patient safety entity that would, either directly or
4799	by contract or through a consortium of university-based patient
4800	safety centers:
4801	(a) Analyze data, reports, records, memoranda, or analyses
4802	concerning adverse incidents reported to the Agency for Health
4803	Care Administration pursuant to s. 395.0197, Florida Statutes,
4804	for the purpose of recommending changes in practices and
4805	procedures that may be implemented by health care practitioners
4806	and health care facilities to prevent future adverse incidents.
4807	(b) Collect, analyze, and evaluate patient safety data
4808	submitted voluntarily by a health care practitioner or health
4809	care facility. The entity would communicate to health care
4810	practitioners and health care facilities changes in practices
4811	and procedures that may be implemented for the purpose of
4812	improving patient safety and preventing future patient safety
4813	events from resulting in serious injury or death. At a minimum,
4814	the entity would:
4815	1. Be designed and operated by an individual or entity
4816	with demonstrated expertise in health care quality data and
4817	systems analysis, health information management, systems
4818	thinking and analysis, human factors analysis, and
4819	identification of latent and active errors.
4820	2. Include procedures for ensuring its confidentiality,
4821	timeliness, and independence.
4822	(c) Foster the development of a statewide electronic
4823	infrastructure, which would be implemented in phases over a
4824	multiyear period, that is designed to improve patient care and
4825	the delivery and quality of health care services by health care
4826	facilities and practitioners. The electronic infrastructure
4827	would be a secure platform for communication and the sharing of
4828	clinical and other data, such as business data, among providers
4829	and between patients and providers. The electronic
4830	infrastructure would include a "core" electronic medical record.
4831	Health care providers would have access to individual electronic
4832	medical records, subject to the consent of the individual. The
4833	right, if any, of other entities, including health insurers and
4834	researchers, to access the records would need further
4835	examination and evaluation by the agency.
4836	(d) As a statewide goal of reducing the occurrence of
4837	medication error, inventory hospitals to determine the current
4838	status of implementation of computerized physician medication
4839	ordering systems, barcode point of care systems, or other
4840	technological patient safety implementation, and recommend a
4841	plan for expediting implementation statewide or, in hospitals
4842	where the agency determines that implementation of such systems
4843	is not practicable, alternative methods to reduce medication
4844	errors. The agency shall identify in its plan any barriers to
4845	statewide implementation and shall include recommendations to
4846	the Legislature of statutory changes that may be necessary to
4847	eliminate those barriers.
4848	(e) Identify best practices and share this information
4849	with health care providers.
4850	(f) Engage in other activities that improve health care
4851	quality, improve the diagnosis and treatment of diseases and
4852	medical conditions, increase the efficiency of the delivery of
4853	health care services, increase administrative efficiency, and
4854	increase access to quality health care services.
4855	(3) The agency shall also consider ways in which a patient
4856	safety entity would be able to facilitate the development of no-
4857	fault demonstration projects as means to reduce and prevent
4858	medical errors and promote patient safety.
4859	(4) The agency shall seek information and advice from and
4860	consult with hospitals, physicians, other health care providers,
4861	attorneys, consumers, and individuals involved with and
4862	knowledgeable about patient safety and quality-of-care
4863	initiatives.
4864	(5) In evaluating the need for, and the operation of, a
4865	patient safety entity, the agency shall determine the costs of
4866	implementing and administering an entity and suggest funding
4867	sources and mechanisms.
4868	(6) The agency shall complete its study and issue a report
4869	to the Legislature by February 1, 2004. In its report, the
4870	agency shall include specific findings, recommendations, and
4871	proposed legislation.
4872	Section 68. The Office of Program Policy Analysis and
4873	Government Accountability shall complete a study of the
4874	eligibility requirements for a birth to be covered under the
4875	Florida Birth-Related Neurological Injury Compensation
4876	Association and submit a report to the Legislature by January 1,
4877	2004, recommending whether the statutory criteria for a claim to
4878	qualify for referral to the Florida Birth-Related Neurological
4879	Injury Compensation Association under s. 766.302, Florida
4880	Statutes, should be modified.
4881	Section 69. Civil immunity for members of or consultants
4882	to certain boards, committees, or other entities.--
4883	(1) Each member of, or health care professional consultant
4884	to, any committee, board, group, commission, or other entity
4885	shall be immune from civil liability for any act, decision,
4886	omission, or utterance done or made in performance of his or her
4887	duties while serving as a member of or consultant to such
4888	committee, board, group, commission, or other entity established
4889	and operated for purposes of quality improvement review,
4890	evaluation, and planning in a state-licensed health care
4891	facility. Such entities must function primarily to review,
4892	evaluate, or make recommendations relating to:
4893	(a) The duration of patient stays in health care
4894	facilities;
4895	(b) The professional services furnished with respect to
4896	the medical, dental, psychological, podiatric, chiropractic, or
4897	optometric necessity for such services;
4898	(c) The purpose of promoting the most efficient use of
4899	available health care facilities and services;
4900	(d) The adequacy or quality of professional services;
4901	(e) The competency and qualifications for professional
4902	staff privileges;
4903	(f) The reasonableness or appropriateness of charges made
4904	by or on behalf of health care facilities; or
4905	(g) Patient safety, including entering into contracts with
4906	patient safety organizations.
4907	(2) Such committee, board, group, commission, or other
4908	entity must be established in accordance with state law or in
4909	accordance with requirements of the Joint Commission on
4910	Accreditation of Healthcare Organizations, established and duly
4911	constituted by one or more public or licensed private hospitals
4912	or behavioral health agencies, or established by a governmental
4913	agency. To be protected by this section, the act, decision,
4914	omission, or utterance may not be made or done in bad faith or
4915	with malicious intent.
4916	Section 70. The Office of Program Policy Analysis and
4917	Government Accountability and the Office of the Auditor General
4918	must jointly conduct an audit of the Department of Health's
4919	health care practitioner disciplinary process and closed claims
4920	that are filed with the department under s. 627.912, Florida
4921	Statutes. The Office of Program Policy Analysis and Government
4922	Accountability and the Office of the Auditor General shall
4923	submit a report to the Legislature by January 1, 2005.
4924	Section 71. No later than September 1, 2003, the
4925	Department of Health shall convene a workgroup to study the
4926	current health care practitioner disciplinary process. The
4927	workgroup shall include a representative of the Administrative
4928	Law section of The Florida Bar, a representative of the Health
4929	Law section of The Florida Bar, a representative of the Florida
4930	Medical Association, a representative of the Florida Osteopathic
4931	Medical Association, a representative of the Florida Dental
4932	Association, a member of the Florida Board of Medicine who has
4933	served on a probable cause panel, a member of the Board of
4934	Osteopathic Medicine who has served on a probable cause panel,
4935	and a member of the Board of Dentistry who has served on a
4936	probable cause panel. The workgroup shall also include one
4937	consumer member of the Board of Medicine. The Department of
4938	Health shall present the findings and recommendations to the
4939	Governor, the President of the Senate, and the Speaker of the
4940	House of Representatives no later than January 1, 2004. The
4941	sponsoring organizations shall assume the costs of their
4942	representatives.
4943	Section 72. The Legislature finds and declares it to be of
4944	vital importance that emergency services and care be provided by
4945	hospitals, physicians, and emergency medical services providers
4946	to every person in need of such care. The Legislature finds that
4947	providers of emergency medical services and care are critical
4948	elements in responding to disaster and emergency situations that
4949	might affect our local communities, state, and country. The
4950	Legislature recognizes the importance of maintaining a viable
4951	system of providing for the emergency medical needs of residents
4952	of this state and visitors to this state. The Legislature and
4953	the Federal Government have required such providers of emergency
4954	medical services and care to provide emergency services and care
4955	to all persons who present themselves to hospitals seeking such
4956	care. The Legislature has further mandated that prehospital
4957	emergency medical treatment or transport may not be denied by
4958	emergency medical services providers to persons who have or are
4959	likely to have an emergency medical condition. Such governmental
4960	requirements have imposed a unilateral obligation for providers
4961	of emergency medical services and care to provide services to
4962	all persons seeking emergency care without ensuring payment or
4963	other consideration for provision of such care. The Legislature
4964	also recognizes that providers of emergency medical services and
4965	care provide a significant amount of uncompensated emergency
4966	medical care in furtherance of such governmental interest. A
4967	significant proportion of the residents of this state who are
4968	uninsured or are Medicaid or Medicare recipients are unable to
4969	access needed health care because health care providers fear the
4970	increased risk of medical malpractice liability. Such patients,
4971	in order to obtain medical care, are frequently forced to seek
4972	care through providers of emergency medical services and care.
4973	Providers of emergency medical services and care in this state
4974	have reported significant problems with both the availability
4975	and affordability of professional liability coverage. Medical
4976	malpractice liability insurance premiums have increased
4977	dramatically and a number of insurers have ceased providing
4978	medical malpractice coverage for emergency medical services and
4979	care in this state. This results in a functional unavailability
4980	of malpractice coverage for some providers of emergency medical
4981	services and care. The Legislature further finds that certain
4982	specialist physicians have resigned from serving on hospital
4983	staffs or have otherwise declined to provide on-call coverage to
4984	hospital emergency departments due to increased medical
4985	malpractice liability exposure created by treating such
4986	emergency department patients. It is the intent of the
4987	Legislature that hospitals, emergency medical services
4988	providers, and physicians be able to ensure that patients who
4989	might need emergency medical services treatment or
4990	transportation or who present themselves to hospitals for
4991	emergency medical services and care have access to such needed
4992	services.
4993	Section 73. Each final settlement statement relating to
4994	medical negligence shall include the following statement: "The
4995	decision to settle a case may reflect the economic
4996	practicalities pertaining to the cost of litigation and is not,
4997	alone, an admission that the insured failed to meet the required
4998	standard of care applicable to the patient's treatment. The
4999	decision to settle a case may be made by the insurance company
5000	without consulting its client for input, unless otherwise
5001	provided by the insurance policy."
5002	Section 74. The Office of Program Policy Analysis and
5003	Government Accountability shall study the feasibility and merits
5004	of authorizing the Public Counsel to examine insurance rate
5005	filings for medical malpractice insurance submitted to the
5006	Office of Insurance Regulation, to make recommendations to the
5007	office regarding such rate filings, and to represent the public
5008	in any hearing related to such rate filings. The study must
5009	include an evaluation of the effectiveness of the current
5010	authority of the Office of Insurance Consumer Advocate to
5011	perform such functions and comparable functions exercised in
5012	other states.
5013	Section 75. The sum of $687,786 is appropriated from the
5014	Medical Quality Assurance Trust Fund to the Department of
5015	Health, and seven positions are authorized, for the purpose of
5016	implementing this act during the 2003-2004 fiscal year. The sum
5017	of $1,629,994 is appropriated from the Health Care Trust Fund to
5018	the Agency for Health Care Administration, and eleven positions
5019	are authorized, for the purpose of implementing this act during
5020	the 2003-2004 fiscal year.
5021	Section 76. The sum of $1,450,000 is appropriated from the
5022	Insurance Regulatory Trust Fund in the Department of Financial
5023	Services to the Office of Insurance Regulation for the purpose
5024	of implementing this act during the 2003-2004 fiscal year.
5025	Section 77. For the purpose of incorporating the amendment
5026	to section 456.039, Florida Statutes, in references thereto,
5027	paragraph (b) of subsection (5) of section 458.319, Florida
5028	Statutes, is reenacted and amended to read:
5029	458.319 Renewal of license.--
5030	(5)
5031	(b) At any time during the licensee's legislative term of
5032	office and during the period of 60 days after the licensee
5033	ceases to be a member of the Legislature, the licensee may file
5034	a completed renewal application that shall consist solely of:
5035	1. A license renewal fee of $250 for each year the
5036	licensee's license renewal has been continued and extended
5037	pursuant to the terms of this subsection since the last
5038	otherwise regularly scheduled biennial renewal year and each
5039	year during which the renewed license shall be effective until
5040	the next regularly scheduled biennial renewal date;
5041	2. Documentation of the completion by the licensee of 10
5042	hours of continuing medical education credits for each year from
5043	the effective date of the last renewed license for the licensee
5044	until the year in which the application is filed;
5045	3. The information from the licensee expressly required in
5046	s. 456.039(1)(a)1.-8.and (b), and (4)(a), (b), and (c).
5047	Section 78. Paragraph (h) of subsection (3) of section
5048	163.01, Florida Statutes, is amended to read:
5049	163.01 Florida Interlocal Cooperation Act of 1969.--
5050	(3) As used in this section:
5051	(h) "Local government liability pool" means a reciprocal
5052	insurer as defined in s. 629.021 or any self-insurance program
5053	created pursuant to s. 768.28(16)(15), formed and controlled by
5054	counties or municipalities of this state to provide liability
5055	insurance coverage for counties, municipalities, or other public
5056	agencies of this state, which pool may contract with other
5057	parties for the purpose of providing claims administration,
5058	processing, accounting, and other administrative facilities.
5059	Section 79. Paragraph (a) of subsection (2) of section
5060	456.048, Florida Statutes, is amended to read:
5061	456.048 Financial responsibility requirements for certain
5062	health care practitioners.--
5063	(2) The board or department may grant exemptions upon
5064	application by practitioners meeting any of the following
5065	criteria:
5066	(a) Any person licensed under chapter 457, chapter 460,
5067	chapter 461, s. 464.012, chapter 466, or chapter 467 who
5068	practices exclusively as an officer, employee, or agent of the
5069	Federal Government or of the state or its agencies or its
5070	subdivisions. For the purposes of this subsection, an agent of
5071	the state, its agencies, or its subdivisions is a person who is
5072	eligible for coverage under any self-insurance or insurance
5073	program authorized by the provisions of s. 768.28(16)(15)or who
5074	is a volunteer under s. 110.501(1).
5075	Section 80. Section 624.461, Florida Statutes, is amended
5076	to read:
5077	624.461 Definition.--For the purposes of the Florida
5078	Insurance Code, "self-insurance fund" means both commercial
5079	self-insurance funds organized under s. 624.462 and group self-
5080	insurance funds organized under s. 624.4621. The term "self-
5081	insurance fund" does not include a governmental self-insurance
5082	pool created under s. 768.28(16)(15).
5083	Section 81. Paragraph (b) of subsection (3) of section
5084	627.733, Florida Statutes, is amended to read:
5085	627.733 Required security.--
5086	(3) Such security shall be provided:
5087	(b) By any other method authorized by s. 324.031(2), (3),
5088	or (4) and approved by the Department of Highway Safety and
5089	Motor Vehicles as affording security equivalent to that afforded
5090	by a policy of insurance or by self-insuring as authorized by s.
5091	768.28(16)(15). The person filing such security shall have all
5092	of the obligations and rights of an insurer under ss. 627.730-
5093	627.7405.
5094	Section 82. Section 766.112, Florida Statutes, is amended
5095	to read:
5096	766.112 Comparative fault.--
5097	(1) Notwithstanding anything in law to the contrary, in an
5098	action for damages for personal injury or wrongful death arising
5099	out of medical negligence malpractice, whether in contract or
5100	tort, when an apportionment of damages pursuant to this section
5101	is attributed to a teaching hospital as defined in s. 408.07,
5102	the court shall enter judgment against the teaching hospital on
5103	the basis of such party's percentage of fault and not on the
5104	basis of the doctrine of joint and several liability.
5105	(2) In an action for damages for personal injury or
5106	wrongful death arising out of medical negligence malpractice,
5107	whether in contract or tort, when an apportionment of damages
5108	pursuant to s. 768.81 is attributed to a board of trustees of a
5109	state university, the court shall enter judgment against the
5110	board of trustees on the basis of the board's percentage of
5111	fault and not on the basis of the doctrine of joint and several
5112	liability. The sole remedy available to a claimant to collect a
5113	judgment or settlement against a board of trustees, subject to
5114	the provisions of this subsection, shall be pursuant to s.
5115	768.28.
5116	Section 83. Section 766.113, Florida Statutes, is amended
5117	to read:
5118	766.113 Settlement agreements; prohibition on restricting
5119	disclosure to Division of Medical Quality Assurance.--A
5120	settlement agreement involving a claim for medical negligence
5121	malpracticeshall not prohibit any party to the agreement from
5122	discussing with or reporting to the Division of Medical Quality
5123	Assurance the events giving rise to the claim.
5124	Section 84. Paragraphs (c) and (d) of subsection (1) of
5125	section 766.201, Florida Statutes, are amended to read:
5126	766.201 Legislative findings and intent.--
5127	(1) The Legislature makes the following findings:
5128	(c) The average cost of defending a medical negligence
5129	malpracticeclaim has escalated in the past decade to the point
5130	where it has become imperative to control such cost in the
5131	interests of the public need for quality medical services.
5132	(d) The high cost of medical negligence malpracticeclaims
5133	in the state can be substantially alleviated by requiring early
5134	determination of the merit of claims, by providing for early
5135	arbitration of claims, thereby reducing delay and attorney's
5136	fees, and by imposing reasonable limitations on damages, while
5137	preserving the right of either party to have its case heard by a
5138	jury.
5139	Section 85. Subsection (2) of section 766.303, Florida
5140	Statutes, is amended to read:
5141	766.303 Florida Birth-Related Neurological Injury
5142	Compensation Plan; exclusiveness of remedy.--
5143	(2) The rights and remedies granted by this plan on
5144	account of a birth-related neurological injury shall exclude all
5145	other rights and remedies of such infant, her or his personal
5146	representative, parents, dependents, and next of kin, at common
5147	law or otherwise, against any person or entity directly involved
5148	with the labor, delivery, or immediate postdelivery
5149	resuscitation during which such injury occurs, arising out of or
5150	related to a medical negligence malpracticeclaim with respect
5151	to such injury; except that a civil action shall not be
5152	foreclosed where there is clear and convincing evidence of bad
5153	faith or malicious purpose or willful and wanton disregard of
5154	human rights, safety, or property, provided that such suit is
5155	filed prior to and in lieu of payment of an award under ss.
5156	766.301-766.316. Such suit shall be filed before the award of
5157	the division becomes conclusive and binding as provided for in
5158	s. 766.311.
5159	Section 86. Subsection (8) of section 768.21, Florida
5160	Statutes, is amended to read:
5161	768.21 Damages.--All potential beneficiaries of a recovery
5162	for wrongful death, including the decedent's estate, shall be
5163	identified in the complaint, and their relationships to the
5164	decedent shall be alleged. Damages may be awarded as follows:
5165	(8) The damages specified in subsection (3) shall not be
5166	recoverable by adult children and the damages specified in
5167	subsection (4) shall not be recoverable by parents of an adult
5168	child with respect to claims for medical negligence malpractice
5169	as defined by s. 766.106(1).
5170	Section 87. Nothing in this act constitutes a waiver of
5171	sovereign immunity under s. 768.28, Florida Statutes, or
5172	contravenes the abrogation of joint and several liability
5173	contained in s. 766.112, Florida Statutes.
5174	Section 88. If any provision of this act or the
5175	application thereof to any person or circumstance is held
5176	invalid, the invalidity does not affect other provisions or
5177	applications of the act which can be given effect without the
5178	invalid provision or application, and to this end the provisions
5179	of this act are declared severable.
5180	Section 89. It is the intent of the Legislature to apply
5181	the provisions of this act to prior medical incidents to the
5182	extent such application is not prohibited by the state or
5183	federal constitution, except that the amendments to chapter 766,
5184	Florida Statutes, provided in this act shall apply only to any
5185	medical incident for which a notice of intent to initiate
5186	litigation is mailed on or after the effective date of this act.
5187	Section 90. If any law amended by this act was also
5188	amended by a law enacted at the 2003 Regular Session or a 2003
5189	special session of the Legislature, such laws shall be construed
5190	as if they had been enacted at the same session of the
5191	Legislature, and full effect shall be given to each if possible.
5192	Section 91. Except as otherwise provided herein, this act
5193	shall take effect September 15, 2003.