Senate Bill sb0002De1

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    CS for SB 2-D                            First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to medical incidents; providing

  3         legislative findings; creating s. 395.0056,

  4         F.S.; requiring the Agency for Health Care

  5         Administration to review complaints submitted

  6         if the defendant is a hospital; amending s.

  7         395.0191, F.S.; deleting a requirement that

  8         persons act in good faith to avoid liability or

  9         discipline for their actions regarding the

10         awarding of staff membership or clinical

11         privileges; amending s. 395.0197, F.S.,

12         relating to internal risk management programs;

13         requiring a system for notifying patients that

14         they are the subject of an adverse incident;

15         requiring that an appropriately trained person

16         give notice; requiring licensed facilities to

17         annually report certain information about

18         health care practitioners for whom they assume

19         liability; requiring the Agency for Health Care

20         Administration and the Department of Health to

21         annually publish statistics about licensed

22         facilities that assume liability for health

23         care practitioners; repealing the requirement

24         that licensed facilities notify the agency

25         within 1 business day of the occurrence of

26         certain adverse incidents; repealing s.

27         395.0198, F.S., which provides a public records

28         exemption for adverse incident notifications;

29         creating s. 395.1012, F.S.; requiring

30         facilities to adopt a patient safety plan;

31         providing requirements for a patient safety


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    CS for SB 2-D                            First Engrossed (ntc)



 1         plan; requiring facilities to appoint a patient

 2         safety officer and a patient safety committee

 3         and providing duties for the patient safety

 4         officer and committee; creating s. 395.1051,

 5         F.S.; requiring certain facilities to notify

 6         patients about adverse incidents under

 7         specified conditions; creating s. 456.0575,

 8         F.S.; requiring licensed health care

 9         practitioners to notify patients about adverse

10         incidents under certain conditions; providing

11         civil immunity for certain participants in

12         quality improvement processes; defining the

13         terms "patient safety data" and "patient safety

14         organization"; providing for use of patient

15         safety data by a patient safety organization;

16         providing limitations on use of patient safety

17         data; providing for protection of

18         patient-identifying information; providing for

19         determination of whether the privilege applies

20         as asserted; providing that an employer may not

21         take retaliatory action against an employee who

22         makes a good-faith report concerning patient

23         safety data; amending s. 456.013, F.S.;

24         requiring, as a condition of licensure and

25         license renewal, that physicians and physician

26         assistants complete continuing education

27         relating to misdiagnosed conditions as part of

28         a continuing education course on prevention of

29         medical errors; amending s. 456.025, F.S.;

30         eliminating certain restrictions on the setting

31         of licensure renewal fees for health care


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    CS for SB 2-D                            First Engrossed (ntc)



 1         practitioners; amending s. 456.039, F.S.;

 2         revising requirements for the information

 3         furnished to the Department of Health for

 4         licensure purposes; amending s. 456.041, F.S.,

 5         relating to practitioner profiles; requiring

 6         the Department of Health to compile certain

 7         specified information in a practitioner

 8         profile; establishing a timeframe within which

 9         certain health care practitioners must report

10         specified information; providing for

11         disciplinary action and a fine for untimely

12         submissions; deleting provisions that provide

13         that a profile need not indicate whether a

14         criminal history check was performed to

15         corroborate information in the profile;

16         authorizing the department or regulatory board

17         to investigate any information received;

18         requiring the department to provide an

19         easy-to-read narrative explanation concerning

20         final disciplinary action taken against a

21         practitioner; requiring a hyperlink to each

22         final order on the department's website which

23         provides information about disciplinary

24         actions; requiring the department to provide a

25         hyperlink to certain comparison reports

26         pertaining to claims experience; requiring the

27         department to include the date that a reported

28         disciplinary action was taken by a licensed

29         facility and a characterization of the

30         practitioner's conduct that resulted in the

31         action; deleting provisions requiring the


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    CS for SB 2-D                            First Engrossed (ntc)



 1         department to consult with a regulatory board

 2         before including certain information in a

 3         health care practitioner's profile; providing a

 4         penalty for failure to comply with the

 5         timeframe for verifying and correcting a

 6         practitioner profile; requiring the department

 7         to add a statement to a practitioner profile

 8         when the profile information has not been

 9         verified by the practitioner; requiring the

10         department to provide, in the practitioner

11         profile, an explanation of disciplinary action

12         taken and the reason for sanctions imposed;

13         requiring the department to include a hyperlink

14         to a practitioner's website when requested;

15         providing that practitioners licensed under ch.

16         458 or ch. 459, F.S., shall have claim

17         information concerning an indemnity payment

18         greater than a specified amount posted in the

19         practitioner profile; amending s. 456.042,

20         F.S.; providing for the update of practitioner

21         profiles; designating a timeframe within which

22         a practitioner must submit new information to

23         update his or her profile; amending s. 456.049,

24         F.S., relating to practitioner reports on

25         professional liability claims and actions;

26         revising requirements for a practitioner to

27         report claims or actions for medical

28         malpractice; amending s. 456.051, F.S.;

29         establishing the responsibility of the

30         Department of Health to provide reports of

31         professional liability actions and


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    CS for SB 2-D                            First Engrossed (ntc)



 1         bankruptcies; requiring the department to

 2         include such reports in a practitioner's

 3         profile within a specified period; amending s.

 4         456.057, F.S.; allowing the department to

 5         obtain patient records by subpoena without the

 6         patient's written authorization, in specified

 7         circumstances; amending s. 456.072, F.S.;

 8         providing for determining the amount of any

 9         costs to be assessed in a disciplinary

10         proceeding; amending s. 456.073, F.S.;

11         authorizing the Department of Health to

12         investigate certain paid claims made on behalf

13         of practitioners licensed under ch. 458 or ch.

14         459, F.S.; amending procedures for certain

15         disciplinary proceedings; providing a deadline

16         for raising issues of material fact; providing

17         a deadline relating to notice of receipt of a

18         request for a formal hearing; excepting gross

19         or repeated malpractice and standard-of-care

20         violations from the 6-year limitation on

21         investigation or filing of an administrative

22         complaint; amending s. 456.077, F.S.; providing

23         a presumption related to an undisputed

24         citation; revising requirements under which the

25         Department of Health may issue citations as an

26         alternative to disciplinary procedures against

27         certain licensed health care practitioners;

28         amending s. 456.078, F.S.; revising standards

29         for determining which violations of the

30         applicable professional practice act are

31         appropriate for mediation; amending s. 458.320,


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    CS for SB 2-D                            First Engrossed (ntc)



 1         F.S., relating to financial responsibility

 2         requirements for medical physicians; requiring

 3         maintenance of financial responsibility as a

 4         condition of licensure of medical physicians;

 5         providing for payment of any outstanding

 6         judgments or settlements pending at the time a

 7         physician is suspended by the Department of

 8         Health; requiring the department to suspend the

 9         license of a medical physician who has not

10         paid, up to the amounts required by any

11         applicable financial responsibility provision,

12         any outstanding judgment, arbitration award,

13         other order, or settlement; amending s.

14         459.0085, F.S., relating to financial

15         responsibility requirements for osteopathic

16         physicians; requiring maintenance of financial

17         responsibility as a condition of licensure of

18         osteopathic physicians; providing for payment

19         of any outstanding judgments or settlements

20         pending at the time an osteopathic physician is

21         suspended by the Department of Health;

22         requiring that the department suspend the

23         license of an osteopathic physician who has not

24         paid, up to the amounts required by any

25         applicable financial responsibility provision,

26         any outstanding judgment, arbitration award,

27         other order, or settlement; amending s.

28         458.331, F.S., relating to grounds for

29         disciplinary action against a physician;

30         redefining the term "repeated malpractice";

31         revising the minimum amount of a claim against


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    CS for SB 2-D                            First Engrossed (ntc)



 1         a licensee which will trigger a departmental

 2         investigation; requiring that administrative

 3         orders issued by an administrative law judge or

 4         board for certain practice violations by

 5         physicians specify certain information;

 6         creating s. 458.3311, F.S.; establishing

 7         emergency procedures for disciplinary actions;

 8         amending s. 459.015, F.S., relating to grounds

 9         for disciplinary action against an osteopathic

10         physician; redefining the term "repeated

11         malpractice"; amending conditions that

12         necessitate a departmental investigation of an

13         osteopathic physician; revising the minimum

14         amount of a claim against a licensee which will

15         trigger a departmental investigation; creating

16         s. 459.0151, F.S.; establishing emergency

17         procedures for disciplinary actions; amending

18         s. 461.013, F.S., relating to grounds for

19         disciplinary action against a podiatric

20         physician; redefining the term "repeated

21         malpractice"; amending the minimum amount of a

22         claim against such a physician which will

23         trigger a departmental investigation; requiring

24         that administrative orders issued by an

25         administrative law judge or board for certain

26         practice violations by physicians specify

27         certain information; creating s. 461.0131,

28         F.S.; establishing emergency procedures for

29         disciplinary actions; amending s. 466.028,

30         F.S., relating to grounds for disciplinary

31         action against a dentist or a dental hygienist;


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    CS for SB 2-D                            First Engrossed (ntc)



 1         redefining the term "dental malpractice";

 2         revising the minimum amount of a claim against

 3         a dentist which will trigger a departmental

 4         investigation; requiring that the Division of

 5         Administrative Hearings designate

 6         administrative law judges who have special

 7         qualifications for hearings involving certain

 8         health care practitioners; creating ss. 1004.08

 9         and 1005.07, F.S.; requiring schools, colleges,

10         and universities to include material on patient

11         safety in their curricula if the institution

12         awards specified degrees; directing the Agency

13         for Health Care Administration to conduct or

14         contract for a study to determine what

15         information to provide to the public comparing

16         hospitals, based on inpatient quality

17         indicators developed by the federal Agency for

18         Healthcare Research and Quality; requiring the

19         Agency for Health Care Administration to

20         conduct a study on patient safety; requiring a

21         report and submission of findings to the

22         Legislature; requiring the Office of Program

23         Policy Analysis and Government Accountability

24         and the Office of the Auditor General to

25         conduct an audit of the health care

26         practitioner disciplinary process and closed

27         claims and report to the Legislature; creating

28         a workgroup to study the health care

29         practitioner disciplinary process; providing

30         for workgroup membership; providing that the

31         workgroup deliver its report by January 1,


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    CS for SB 2-D                            First Engrossed (ntc)



 1         2004; amending s. 624.462, F.S.; authorizing

 2         health care providers to form a commercial

 3         self-insurance fund; amending s. 627.062, F.S.;

 4         prohibiting the submission of medical

 5         malpractice insurance rate filings to

 6         arbitration; providing additional requirements

 7         for medical malpractice insurance rate filings;

 8         providing that portions of judgments and

 9         settlements entered against a medical

10         malpractice insurer for bad-faith actions or

11         for punitive damages against the insurer, as

12         well as related taxable costs and attorney's

13         fees, may not be included in an insurer's base

14         rate; providing for review of rate filings by

15         the Office of Insurance Regulation for

16         excessive, inadequate, or unfairly

17         discriminatory rates; requiring insurers to

18         apply a discount based on the health care

19         provider's loss experience; requiring the

20         Office of Insurance Regulation to calculate a

21         presumed factor that reflects the impact of

22         medical malpractice legislation on rates;

23         requiring insurers to make a rate filing

24         reflecting such presumed factor; allowing for

25         deviations; requiring that rates remain in

26         effect until new rate filings are approved;

27         requiring that the Office of Program Policy

28         Analysis and Government Accountability study

29         the feasibility of authorizing the Office of

30         the Public Counsel to represent the public in

31         medical malpractice rate hearings; amending s.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         627.357, F.S.; providing guidelines for the

 2         formation and regulation of certain

 3         self-insurance funds; amending s. 627.4147,

 4         F.S.; revising certain notification criteria

 5         for medical and osteopathic physicians;

 6         requiring prior notification of a rate

 7         increase; creating s. 627.41495, F.S.;

 8         providing for notice to policyholders of

 9         certain medical malpractice rate filings;

10         amending s. 627.912, F.S.; revising

11         requirements for the medical malpractice closed

12         claim reports that must be filed with the

13         Office of Insurance Regulation; applying such

14         requirements to additional persons and

15         entities; providing for access by the

16         Department of Health to such reports; providing

17         for the imposition of a fine or disciplinary

18         action for failing to report; requiring that

19         reports obtain additional information;

20         authorizing the Financial Services Commission

21         to adopt rules; requiring that the Office of

22         Insurance Regulation prepare summaries of

23         closed claim reports of prior years and prepare

24         an annual report and analysis of closed claim

25         and insurer financial reports; amending s.

26         641.19, F.S.; revising definitions; providing

27         that health care providers providing services

28         pursuant to coverage provided under a health

29         maintenance organization contract are not

30         employees or agents of the health maintenance

31         organization; providing exceptions; amending s.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         641.51, F.S.; proscribing a health maintenance

 2         organization's right to control the

 3         professional judgment of a physician; providing

 4         that a health maintenance organization shall

 5         not be vicariously liable for the medical

 6         negligence of a health care provider; providing

 7         exceptions; amending s. 766.102, F.S; revising

 8         requirements for health care providers who

 9         offer corroborating medical expert opinion and

10         expert testimony in medical negligence actions;

11         prohibiting contingency fees for an expert

12         witness; requiring certification that an expert

13         witness not previously have been found guilty

14         of fraud or perjury; amending s. 766.106, F.S.;

15         specifying sanctions for failure to cooperate

16         with presuit investigations; requiring the

17         execution of medical release to allow taking of

18         unsworn statements from claimant's treating

19         physicians; imposing limits on use of such

20         statements; deleting provisions relating to

21         voluntary arbitration in conflict with s.

22         766.207, F.S.; revising requirements for

23         presuit notice and for an insurer's or

24         self-insurer's response to a claim; requiring

25         that a claimant provide the Agency for Health

26         Care Administration with a copy of the

27         complaint alleging medical negligence against

28         licensed facilities; requiring that the agency

29         review such complaints for licensure

30         noncompliance; permitting written questions

31         during informal discovery; amending s. 766.108,


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    CS for SB 2-D                            First Engrossed (ntc)



 1         F.S.; providing for mandatory mediation;

 2         amending ss. 766.1115, 766.112, 766.113,

 3         766.201, 766.303, 768.21, F.S.; revising

 4         references to "medical malpractice" to "medical

 5         negligence"; amending s. 766.113, F.S.;

 6         requiring that a specific statement be included

 7         in all medical negligence settlement

 8         agreements; creating s. 766.118, F.S.; limiting

 9         noneconomic damages in medical negligence

10         actions; providing legislative findings and

11         intent regarding provision of emergency medical

12         services and care; creating s. 766.1185, F.S.;

13         providing that an action for bad faith may not

14         be brought against a medical malpractice

15         insurer if such insurer offers to pay policy

16         limits and meets other specified conditions of

17         settlement within a specified time period;

18         providing for factors to be considered in

19         determining whether a medical malpractice

20         insurer has acted in bad faith; providing for

21         the delivery of a copy of an amended witness

22         list to the insurer of a defendant health care

23         provider; providing a limitation on the amount

24         of damages which may be awarded to certain

25         third parties in actions alleging bad faith by

26         a medical malpractice insurer; amending s.

27         766.202, F.S.; redefining the terms "economic

28         damages," "medical expert," and "noneconomic

29         damages"; defining the term "health care

30         provider"; creating s. 766.2021, F.S.;

31         providing a limitation on damages against


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    CS for SB 2-D                            First Engrossed (ntc)



 1         insurers, prepaid limited health service

 2         organizations, health maintenance

 3         organizations, or prepaid health clinics for

 4         medical negligence of contracted health care

 5         providers; requiring actions against such

 6         entities to be brought pursuant to ch. 766,

 7         F.S.; amending s. 766.203, F.S.; providing for

 8         discovery of presuit medical expert opinion;

 9         amending s. 766.206, F.S.; providing for

10         dismissal of a claim under certain

11         circumstances; requiring the court to make

12         certain reports concerning a medical expert who

13         fails to meet qualifications; amending s.

14         766.207, F.S.; providing for the applicability

15         of the Wrongful Death Act and general law to

16         arbitration awards; amending s. 766.209, F.S.;

17         revising applicable damages available in

18         voluntary binding arbitration relating to

19         claims of medical negligence; creating s.

20         768.0981, F.S.; providing a limitation on

21         damages arising from vicarious liability for

22         insurers, prepaid limited health service

23         organizations, health maintenance

24         organizations, and prepaid health clinics for

25         actions of a health care provider; amending s.

26         768.13, F.S.; revising guidelines for immunity

27         from liability under the "Good Samaritan Act";

28         amending s. 768.28, F.S.; providing that health

29         care practitioners furnishing medical services

30         to student athletes for intercollegiate

31         athletics under specified circumstances will be


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    CS for SB 2-D                            First Engrossed (ntc)



 1         considered agents of a state university board

 2         of trustees; amending s. 768.77, F.S.;

 3         prescribing a method for itemization of

 4         specific categories of damages awarded in

 5         medical malpractice actions; preserving

 6         sovereign immunity and the abrogation of

 7         certain joint and several liability; amending

 8         s. 1006.20, F.S.; requiring completion of a

 9         uniform participation physical evaluation and

10         history form incorporating recommendations of

11         the American Heart Association; deleting

12         revisions to procedures for students' physical

13         examinations; requiring the Department of

14         Health to study the efficacy and

15         constitutionality of medical review panels;

16         requiring a report; amending s. 391.025, F.S.;

17         adding infants receiving compensation awards as

18         eligible for Children's Medical Services health

19         services; amending s. 391.029, F.S.; providing

20         financial eligibility criteria for Children's

21         Medical Services; amending s. 766.304, F.S.;

22         limiting the use of civil actions when

23         claimants accept awards from the Florida

24         Birth-Related Neurological Injury Compensation

25         Plan; amending s. 766.305, F.S.; deleting a

26         requirement for provision of certain

27         information in a petition filed with the

28         Florida Birth-Related Neurological Injury

29         Compensation Plan; providing for service of

30         copies of such petition to certain

31         participants; requiring that a claimant provide


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    CS for SB 2-D                            First Engrossed (ntc)



 1         the Florida Birth-Related Neurological Injury

 2         Compensation Association with certain

 3         information within 10 days after filing such

 4         petition; amending s. 766.309, F.S.; allowing

 5         for claims against the association to be

 6         bifurcated; amending s. 766.31, F.S.; providing

 7         for a death benefit for an infant in the amount

 8         of $10,000; limiting liability of the claimant

 9         for expenses and attorney's fees; amending s.

10         766.314, F.S.; revising obsolete terms;

11         providing procedures by which hospitals in

12         certain counties may pay the annual fees for

13         participating physicians and nurse midwives;

14         providing for annually assessing participating

15         physicians; requiring that the Office of

16         Program Policy Analysis and Government

17         Accountability study and report to the

18         Legislature on requirements for coverage by the

19         Florida Birth-Related Neurological Injury

20         Compensation Association; providing

21         appropriations and authorizing positions;

22         providing for construction of the act in pari

23         materia with laws enacted during the 2003

24         Regular Session or a 2003 special session of

25         the Legislature; providing for severability;

26         providing effective dates.

27  

28  Be It Enacted by the Legislature of the State of Florida:

29  

30         Section 1.  Findings.--

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (1)  The Legislature finds that Florida is in the midst

 2  of a medical malpractice insurance crisis of unprecedented

 3  magnitude.

 4         (2)  The Legislature finds that this crisis threatens

 5  the quality and availability of health care for all Florida

 6  citizens.

 7         (3)  The Legislature finds that the rapidly growing

 8  population and the changing demographics of Florida make it

 9  imperative that students continue to choose Florida as the

10  place they will receive their medical educations and practice

11  medicine.

12         (4)  The Legislature finds that Florida is among the

13  states with the highest medical malpractice insurance premiums

14  in the nation.

15         (5)  The Legislature finds that the cost of medical

16  malpractice insurance has increased dramatically during the

17  past decade and both the increase and the current cost are

18  substantially higher than the national average.

19         (6)  The Legislature finds that the increase in medical

20  malpractice liability insurance rates is forcing physicians to

21  practice medicine without professional liability insurance, to

22  leave Florida, to not perform high-risk procedures, or to

23  retire early from the practice of medicine.

24         (7)  The Legislature finds that there are certain

25  elements of damage presently recoverable that have no monetary

26  value, except on a purely arbitrary basis, while other

27  elements of damage are either easily measured on a monetary

28  basis or reflect ultimate monetary loss.

29         (8)  The Governor created the Governor's Select Task

30  Force on Healthcare Professional Liability Insurance to study

31  and make recommendations to address these problems.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (9)  The Legislature has reviewed the findings and

 2  recommendations of the Governor's Select Task Force on

 3  Healthcare Professional Liability Insurance.

 4         (10)  The Legislature finds that the Governor's Select

 5  Task Force on Healthcare Professional Liability Insurance has

 6  established that a medical malpractice crisis exists in the

 7  State of Florida which can be alleviated by the adoption of

 8  comprehensive legislatively enacted reforms.

 9         (11)  The Legislature finds that making high-quality

10  health care available to the citizens of this state is an

11  overwhelming public necessity.

12         (12)  The Legislature finds that ensuring that

13  physicians continue to practice in Florida is an overwhelming

14  public necessity.

15         (13)  The Legislature finds that ensuring the

16  availability of affordable professional liability insurance

17  for physicians is an overwhelming public necessity.

18         (14)  The Legislature finds, based upon the findings

19  and recommendations of the Governor's Select Task Force on

20  Healthcare Professional Liability Insurance, the findings and

21  recommendations of various study groups throughout the nation,

22  and the experience of other states, that the overwhelming

23  public necessities of making quality health care available to

24  the citizens of this state, of ensuring that physicians

25  continue to practice in Florida, and of ensuring that those

26  physicians have the opportunity to purchase affordable

27  professional liability insurance cannot be met unless a cap on

28  noneconomic damages is imposed.

29         (15)  The Legislature finds that the high cost of

30  medical malpractice claims can be substantially alleviated by

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  imposing a limitation on noneconomic damages in medical

 2  malpractice actions.

 3         (16)  The Legislature further finds that there is no

 4  alternative measure of accomplishing such result without

 5  imposing even greater limits upon the ability of persons to

 6  recover damages for medical malpractice.

 7         (17)  The Legislature finds that the provisions of this

 8  act are naturally and logically connected to each other and to

 9  the purpose of making quality health care available to the

10  citizens of Florida.

11         (18)  The Legislature finds that each of the provisions

12  of this act is necessary to alleviate the crisis relating to

13  medical malpractice insurance.

14         Section 2.  Section 395.0056, Florida Statutes, is

15  created to read:

16         395.0056  Litigation notice requirement.--Upon receipt

17  of a copy of a complaint filed against a hospital as a

18  defendant in a medical malpractice action as required by s.

19  766.106(2), the agency shall:

20         (1)  Review its adverse incident report files

21  pertaining to the licensed facility that is the subject of the

22  complaint to determine whether the facility timely complied

23  with the requirements of s. 395.0197; and

24         (2)  Review the incident that is the subject of the

25  complaint and determine whether it involved conduct by a

26  licensee which is potentially subject to disciplinary action.

27         Section 3.  Subsection (7) of section 395.0191, Florida

28  Statutes, is amended to read:

29         395.0191  Staff membership and clinical privileges.--

30         (7)  There shall be no monetary liability on the part

31  of, and no cause of action for injunctive relief or damages


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    CS for SB 2-D                            First Engrossed (ntc)



 1  shall arise against, any licensed facility, its governing

 2  board or governing board members, medical staff, or

 3  disciplinary board or against its agents, investigators,

 4  witnesses, or employees, or against any other person, for any

 5  action arising out of or related to carrying out the

 6  provisions of this section, absent taken in good faith and

 7  without intentional fraud in carrying out the provisions of

 8  this section.

 9         Section 4.  Subsections (1), (3), (7), (8), (9), (10),

10  (11), (12), (13), (14), and (15) of section 395.0197, Florida

11  Statutes, are amended to read:

12         395.0197  Internal risk management program.--

13         (1)  Every licensed facility shall, as a part of its

14  administrative functions, establish an internal risk

15  management program that includes all of the following

16  components:

17         (a)  The investigation and analysis of the frequency

18  and causes of general categories and specific types of adverse

19  incidents to patients.

20         (b)  The development of appropriate measures to

21  minimize the risk of adverse incidents to patients, including,

22  but not limited to:

23         1.  Risk management and risk prevention education and

24  training of all nonphysician personnel as follows:

25         a.  Such education and training of all nonphysician

26  personnel as part of their initial orientation; and

27         b.  At least 1 hour of such education and training

28  annually for all personnel of the licensed facility working in

29  clinical areas and providing patient care, except those

30  persons licensed as health care practitioners who are required

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  to complete continuing education coursework pursuant to

 2  chapter 456 or the respective practice act.

 3         2.  A prohibition, except when emergency circumstances

 4  require otherwise, against a staff member of the licensed

 5  facility attending a patient in the recovery room, unless the

 6  staff member is authorized to attend the patient in the

 7  recovery room and is in the company of at least one other

 8  person.  However, a licensed facility is exempt from the

 9  two-person requirement if it has:

10         a.  Live visual observation;

11         b.  Electronic observation; or

12         c.  Any other reasonable measure taken to ensure

13  patient protection and privacy.

14         3.  A prohibition against an unlicensed person from

15  assisting or participating in any surgical procedure unless

16  the facility has authorized the person to do so following a

17  competency assessment, and such assistance or participation is

18  done under the direct and immediate supervision of a licensed

19  physician and is not otherwise an activity that may only be

20  performed by a licensed health care practitioner.

21         4.  Development, implementation, and ongoing evaluation

22  of procedures, protocols, and systems to accurately identify

23  patients, planned procedures, and the correct site of the

24  planned procedure so as to minimize the performance of a

25  surgical procedure on the wrong patient, a wrong surgical

26  procedure, a wrong-site surgical procedure, or a surgical

27  procedure otherwise unrelated to the patient's diagnosis or

28  medical condition.

29         (c)  The analysis of patient grievances that relate to

30  patient care and the quality of medical services.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (d)  A system for informing a patient or an individual

 2  identified pursuant to s. 765.401(1) that the patient was the

 3  subject of an adverse incident, as defined in subsection (5).

 4  Such notice shall be given by an appropriately trained person

 5  designated by the licensed facility as soon as practicable to

 6  allow the patient an opportunity to minimize damage or injury.

 7         (e)(d)  The development and implementation of an

 8  incident reporting system based upon the affirmative duty of

 9  all health care providers and all agents and employees of the

10  licensed health care facility to report adverse incidents to

11  the risk manager, or to his or her designee, within 3 business

12  days after their occurrence.

13         (3)  In addition to the programs mandated by this

14  section, other innovative approaches intended to reduce the

15  frequency and severity of medical malpractice and patient

16  injury claims shall be encouraged and their implementation and

17  operation facilitated. Such additional approaches may include

18  extending internal risk management programs to health care

19  providers' offices and the assuming of provider liability by a

20  licensed health care facility for acts or omissions occurring

21  within the licensed facility. Each licensed facility shall

22  annually report to the agency and the Department of Health the

23  name and judgments entered against each health care

24  practitioner for which it assumes liability. The agency and

25  Department of Health, in their respective annual reports,

26  shall include statistics that report the number of licensed

27  facilities that assume such liability and the number of health

28  care practitioners, by profession, for whom they assume

29  liability.

30         (7)  The licensed facility shall notify the agency no

31  later than 1 business day after the risk manager or his or her


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    CS for SB 2-D                            First Engrossed (ntc)



 1  designee has received a report pursuant to paragraph (1)(d)

 2  and can determine within 1 business day that any of the

 3  following adverse incidents has occurred, whether occurring in

 4  the licensed facility or arising from health care prior to

 5  admission in the licensed facility:

 6         (a)  The death of a patient;

 7         (b)  Brain or spinal damage to a patient;

 8         (c)  The performance of a surgical procedure on the

 9  wrong patient;

10         (d)  The performance of a wrong-site surgical

11  procedure; or

12         (e)  The performance of a wrong surgical procedure.

13  

14  The notification must be made in writing and be provided by

15  facsimile device or overnight mail delivery. The notification

16  must include information regarding the identity of the

17  affected patient, the type of adverse incident, the initiation

18  of an investigation by the facility, and whether the events

19  causing or resulting in the adverse incident represent a

20  potential risk to other patients.

21         (7)(8)  Any of the following adverse incidents, whether

22  occurring in the licensed facility or arising from health care

23  prior to admission in the licensed facility, shall be reported

24  by the facility to the agency within 15 calendar days after

25  its occurrence:

26         (a)  The death of a patient;

27         (b)  Brain or spinal damage to a patient;

28         (c)  The performance of a surgical procedure on the

29  wrong patient;

30         (d)  The performance of a wrong-site surgical

31  procedure;


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (e)  The performance of a wrong surgical procedure;

 2         (f)  The performance of a surgical procedure that is

 3  medically unnecessary or otherwise unrelated to the patient's

 4  diagnosis or medical condition;

 5         (g)  The surgical repair of damage resulting to a

 6  patient from a planned surgical procedure, where the damage is

 7  not a recognized specific risk, as disclosed to the patient

 8  and documented through the informed-consent process; or

 9         (h)  The performance of procedures to remove unplanned

10  foreign objects remaining from a surgical procedure.

11  

12  The agency may grant extensions to this reporting requirement

13  for more than 15 days upon justification submitted in writing

14  by the facility administrator to the agency. The agency may

15  require an additional, final report. These reports shall not

16  be available to the public pursuant to s. 119.07(1) or any

17  other law providing access to public records, nor be

18  discoverable or admissible in any civil or administrative

19  action, except in disciplinary proceedings by the agency or

20  the appropriate regulatory board, nor shall they be available

21  to the public as part of the record of investigation for and

22  prosecution in disciplinary proceedings made available to the

23  public by the agency or the appropriate regulatory board.

24  However, the agency or the appropriate regulatory board shall

25  make available, upon written request by a health care

26  professional against whom probable cause has been found, any

27  such records which form the basis of the determination of

28  probable cause.  The agency may investigate, as it deems

29  appropriate, any such incident and prescribe measures that

30  must or may be taken in response to the incident. The agency

31  shall review each incident and determine whether it


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    CS for SB 2-D                            First Engrossed (ntc)



 1  potentially involved conduct by the health care professional

 2  who is subject to disciplinary action, in which case the

 3  provisions of s. 456.073 shall apply.

 4         (8)(9)  The agency shall publish on the agency's

 5  website, no less than quarterly, a summary and trend analysis

 6  of adverse incident reports received pursuant to this section,

 7  which shall not include information that would identify the

 8  patient, the reporting facility, or the health care

 9  practitioners involved. The agency shall publish on the

10  agency's website an annual summary and trend analysis of all

11  adverse incident reports and malpractice claims information

12  provided by facilities in their annual reports, which shall

13  not include information that would identify the patient, the

14  reporting facility, or the practitioners involved.  The

15  purpose of the publication of the summary and trend analysis

16  is to promote the rapid dissemination of information relating

17  to adverse incidents and malpractice claims to assist in

18  avoidance of similar incidents and reduce morbidity and

19  mortality.

20         (9)(10)  The internal risk manager of each licensed

21  facility shall:

22         (a)  Investigate every allegation of sexual misconduct

23  which is made against a member of the facility's personnel who

24  has direct patient contact, when the allegation is that the

25  sexual misconduct occurred at the facility or on the grounds

26  of the facility.

27         (b)  Report every allegation of sexual misconduct to

28  the administrator of the licensed facility.

29         (c)  Notify the family or guardian of the victim, if a

30  minor, that an allegation of sexual misconduct has been made

31  and that an investigation is being conducted.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (d)  Report to the Department of Health every

 2  allegation of sexual misconduct, as defined in chapter 456 and

 3  the respective practice act, by a licensed health care

 4  practitioner that involves a patient.

 5         (10)(11)  Any witness who witnessed or who possesses

 6  actual knowledge of the act that is the basis of an allegation

 7  of sexual abuse shall:

 8         (a)  Notify the local police; and

 9         (b)  Notify the hospital risk manager and the

10  administrator.

11  

12  For purposes of this subsection, "sexual abuse" means acts of

13  a sexual nature committed for the sexual gratification of

14  anyone upon, or in the presence of, a vulnerable adult,

15  without the vulnerable adult's informed consent, or a minor.

16  "Sexual abuse" includes, but is not limited to, the acts

17  defined in s. 794.011(1)(h), fondling, exposure of a

18  vulnerable adult's or minor's sexual organs, or the use of the

19  vulnerable adult or minor to solicit for or engage in

20  prostitution or sexual performance. "Sexual abuse" does not

21  include any act intended for a valid medical purpose or any

22  act which may reasonably be construed to be a normal

23  caregiving action.

24         (11)(12)  A person who, with malice or with intent to

25  discredit or harm a licensed facility or any person, makes a

26  false allegation of sexual misconduct against a member of a

27  licensed facility's personnel is guilty of a misdemeanor of

28  the second degree, punishable as provided in s. 775.082 or s.

29  775.083.

30         (12)(13)  In addition to any penalty imposed pursuant

31  to this section, the agency shall require a written plan of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  correction from the facility.  For a single incident or series

 2  of isolated incidents that are nonwillful violations of the

 3  reporting requirements of this section, the agency shall first

 4  seek to obtain corrective action by the facility.  If the

 5  correction is not demonstrated within the timeframe

 6  established by the agency or if there is a pattern of

 7  nonwillful violations of this section, the agency may impose

 8  an administrative fine, not to exceed $5,000 for any violation

 9  of the reporting requirements of this section.  The

10  administrative fine for repeated nonwillful violations shall

11  not exceed $10,000 for any violation.  The administrative fine

12  for each intentional and willful violation may not exceed

13  $25,000 per violation, per day.  The fine for an intentional

14  and willful violation of this section may not exceed $250,000.

15  In determining the amount of fine to be levied, the agency

16  shall be guided by s. 395.1065(2)(b). This subsection does not

17  apply to the notice requirements under subsection (7).

18         (13)(14)  The agency shall have access to all licensed

19  facility records necessary to carry out the provisions of this

20  section.  The records obtained by the agency under subsection

21  (6), subsection (7) (8), or subsection (9) (10) are not

22  available to the public under s. 119.07(1), nor shall they be

23  discoverable or admissible in any civil or administrative

24  action, except in disciplinary proceedings by the agency or

25  the appropriate regulatory board, nor shall records obtained

26  pursuant to s. 456.071 be available to the public as part of

27  the record of investigation for and prosecution in

28  disciplinary proceedings made available to the public by the

29  agency or the appropriate regulatory board. However, the

30  agency or the appropriate regulatory board shall make

31  available, upon written request by a health care professional


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    CS for SB 2-D                            First Engrossed (ntc)



 1  against whom probable cause has been found, any such records

 2  which form the basis of the determination of probable cause,

 3  except that, with respect to medical review committee records,

 4  s. 766.101 controls.

 5         (14)(15)  The meetings of the committees and governing

 6  board of a licensed facility held solely for the purpose of

 7  achieving the objectives of risk management as provided by

 8  this section shall not be open to the public under the

 9  provisions of chapter 286. The records of such meetings are

10  confidential and exempt from s. 119.07(1), except as provided

11  in subsection (13) (14).

12         Section 5.  Section 395.0198, Florida Statutes, is

13  repealed.

14         Section 6.  Section 395.1012, Florida Statutes, is

15  created to read:

16         395.1012  Patient safety.--

17         (1)  Each licensed facility must adopt a patient safety

18  plan. A plan adopted to implement the requirements of 42

19  C.F.R. part 482.21 shall be deemed to comply with this

20  requirement.

21         (2)  Each licensed facility shall appoint a patient

22  safety officer and a patient safety committee, which shall

23  include at least one person who is neither employed by nor

24  practicing in the facility, for the purpose of promoting the

25  health and safety of patients, reviewing and evaluating the

26  quality of patient safety measures used by the facility, and

27  assisting in the implementation of the facility patient safety

28  plan.

29         Section 7.  Section 395.1051, Florida Statutes, is

30  created to read:

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         395.1051  Duty to notify patients.--An appropriately

 2  trained person designated by each licensed facility shall

 3  inform each patient, or an individual identified pursuant to

 4  s. 765.401(1), in person about adverse incidents that result

 5  in serious harm to the patient. Notification of outcomes of

 6  care that result in harm to the patient under this section

 7  shall not constitute an acknowledgement or admission of

 8  liability, nor can it be introduced as evidence.

 9         Section 8.  Section 456.0575, Florida Statutes, is

10  created to read:

11         456.0575  Duty to notify patients.--Every licensed

12  health care practitioner shall inform each patient, or an

13  individual identified pursuant to s. 765.401(1), in person

14  about adverse incidents that result in serious harm to the

15  patient. Notification of outcomes of care that result in harm

16  to the patient under this section shall not constitute an

17  acknowledgement of admission of liability, nor can such

18  notifications be introduced as evidence.

19         Section 9.  Civil immunity for members of or

20  consultants to certain boards, committees, or other

21  entities.--

22         (1)  Each member of, or health care professional

23  consultant to, any committee, board, group, commission, or

24  other entity shall be immune from civil liability for any act,

25  decision, omission, or utterance done or made in performance

26  of his duties while serving as a member of or consultant to

27  such committee, board, group, commission, or other entity

28  established and operated for purposes of quality improvement

29  review, evaluation, and planning in a state-licensed health

30  care facility. Such entities must function primarily to

31  review, evaluate, or make recommendations relating to:


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (a)  The duration of patient stays in health care

 2  facilities;

 3         (b)  The professional services furnished with respect

 4  to the medical, dental, psychological, podiatric,

 5  chiropractic, or optometric necessity for such services;

 6         (c)  The purpose of promoting the most efficient use of

 7  available health care facilities and services;

 8         (d)  The adequacy or quality of professional services;

 9         (e)  The competency and qualifications for professional

10  staff privileges;

11         (f)  The reasonableness or appropriateness of charges

12  made by or on behalf of health care facilities; or

13         (g)  Patient safety, including entering into contracts

14  with patient safety organizations.

15         (2)  Such committee, board, group, commission, or other

16  entity must be established in accordance with state law or in

17  accordance with requirements of the Joint Commission on

18  Accreditation of Healthcare Organizations, established and

19  duly constituted by one or more public or licensed private

20  hospitals or behavioral health agencies, or established by a

21  governmental agency. To be protected by this section, the act,

22  decision, omission, or utterance may not be made or done in

23  bad faith or with malicious intent.

24         Section 10.  Patient safety data privilege.--

25         (1)  As used in this section, the term:

26         (a)  "Patient safety data" means reports made to

27  patient safety organizations, including all health care data,

28  interviews, memoranda, analyses, root cause analyses, products

29  of quality assurance or quality improvement processes,

30  corrective action plans, or information collected or created

31  by a health care facility licensed under chapter 395, Florida


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    CS for SB 2-D                            First Engrossed (ntc)



 1  Statutes, or a health care practitioner as defined in section

 2  456.001(4), Florida Statutes, as a result of an occurrence

 3  related to the provision of health care services which

 4  exacerbates an existing medical condition or could result in

 5  injury, illness, or death.

 6         (b)  "Patient safety organization" means any

 7  organization, group, or other entity that collects and

 8  analyzes patient safety data for the purpose of improving

 9  patient safety and health care outcomes and that is

10  independent and not under the control of the entity that

11  reports patient safety data.

12         (2)  Patient safety data shall not be subject to

13  discovery or introduction into evidence in any civil or

14  administrative action. However, information, documents, or

15  records otherwise available from original sources are not

16  immune from discovery or use in any civil or administrative

17  action merely because they were also collected, analyzed, or

18  presented to a patient safety organization. Any person who

19  testifies before a patient safety organization or who is a

20  member of such a group may not be prevented from testifying as

21  to matters within his or her knowledge, but he or she may not

22  be asked about his or her testimony before a patient safety

23  organization or the opinions formed by him or her as a result

24  of the hearings.

25         (3)  Unless otherwise provided by law, a patient safety

26  organization shall promptly remove all patient-identifying

27  information after receipt of a complete patient safety data

28  report unless such organization is otherwise permitted by

29  state or federal law to maintain such information. Patient

30  safety organizations shall maintain the confidentiality of all

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  patient-identifying information and may not disseminate such

 2  information, except as permitted by state or federal law.

 3         (4)  The exchange of patient safety data among health

 4  care facilities licensed under chapter 395, Florida Statutes,

 5  or health care practitioners as defined in section 456.001(4),

 6  Florida Statutes, or patient safety organizations which does

 7  not identify any patient shall not constitute a waiver of any

 8  privilege established in this section.

 9         (5)  Reports of patient safety data to patient safety

10  organizations do not abrogate obligations to make reports to

11  the Department of Health, the Agency for Health Care

12  Administration, or other state or federal regulatory agencies.

13         (6)  An employer may not take retaliatory action

14  against an employee who in good faith makes a report of

15  patient safety data to a patient safety organization.

16         Section 11.  Subsection (7) of section 456.013, Florida

17  Statutes, is amended to read:

18         456.013  Department; general licensing provisions.--

19         (7)  The boards, or the department when there is no

20  board, shall require the completion of a 2-hour course

21  relating to prevention of medical errors as part of the

22  licensure and renewal process. The 2-hour course shall count

23  towards the total number of continuing education hours

24  required for the profession. The course shall be approved by

25  the board or department, as appropriate, and shall include a

26  study of root-cause analysis, error reduction and prevention,

27  and patient safety. In addition, the course approved by the

28  Board of Medicine and the Board of Osteopathic Medicine shall

29  include information relating to the five most misdiagnosed

30  conditions during the previous biennium, as determined by the

31  board. If the course is being offered by a facility licensed


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    CS for SB 2-D                            First Engrossed (ntc)



 1  pursuant to chapter 395 for its employees, the board may

 2  approve up to 1 hour of the 2-hour course to be specifically

 3  related to error reduction and prevention methods used in that

 4  facility.

 5         Section 12.  Subsection (1) of section 456.025, Florida

 6  Statutes, is amended to read:

 7         456.025  Fees; receipts; disposition.--

 8         (1)  It is the intent of the Legislature that all costs

 9  of regulating health care professions and practitioners shall

10  be borne solely by licensees and licensure applicants. It is

11  also the intent of the Legislature that fees should be

12  reasonable and not serve as a barrier to licensure. Moreover,

13  it is the intent of the Legislature that the department

14  operate as efficiently as possible and regularly report to the

15  Legislature additional methods to streamline operational

16  costs. Therefore, the boards in consultation with the

17  department, or the department if there is no board, shall, by

18  rule, set renewal fees which:

19         (a)  Shall be based on revenue projections prepared

20  using generally accepted accounting procedures;

21         (b)  Shall be adequate to cover all expenses relating

22  to that board identified in the department's long-range policy

23  plan, as required by s. 456.005;

24         (c)  Shall be reasonable, fair, and not serve as a

25  barrier to licensure;

26         (d)  Shall be based on potential earnings from working

27  under the scope of the license;

28         (e)  Shall be similar to fees imposed on similar

29  licensure types;

30         (f)  Shall not be more than 10 percent greater than the

31  fee imposed for the previous biennium;


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (f)(g)  Shall not be more than 10 percent greater than

 2  the actual cost to regulate that profession for the previous

 3  biennium; and

 4         (g)(h)  Shall be subject to challenge pursuant to

 5  chapter 120.

 6         Section 13.  Paragraph (a) of subsection (1) of section

 7  456.039, Florida Statutes, is amended to read:

 8         456.039  Designated health care professionals;

 9  information required for licensure.--

10         (1)  Each person who applies for initial licensure as a

11  physician under chapter 458, chapter 459, chapter 460, or

12  chapter 461, except a person applying for registration

13  pursuant to ss. 458.345 and 459.021, must, at the time of

14  application, and each physician who applies for license

15  renewal under chapter 458, chapter 459, chapter 460, or

16  chapter 461, except a person registered pursuant to ss.

17  458.345 and 459.021, must, in conjunction with the renewal of

18  such license and under procedures adopted by the Department of

19  Health, and in addition to any other information that may be

20  required from the applicant, furnish the following information

21  to the Department of Health:

22         (a)1.  The name of each medical school that the

23  applicant has attended, with the dates of attendance and the

24  date of graduation, and a description of all graduate medical

25  education completed by the applicant, excluding any coursework

26  taken to satisfy medical licensure continuing education

27  requirements.

28         2.  The name of each hospital at which the applicant

29  has privileges.

30         3.  The address at which the applicant will primarily

31  conduct his or her practice.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         4.  Any certification that the applicant has received

 2  from a specialty board that is recognized by the board to

 3  which the applicant is applying.

 4         5.  The year that the applicant began practicing

 5  medicine.

 6         6.  Any appointment to the faculty of a medical school

 7  which the applicant currently holds and an indication as to

 8  whether the applicant has had the responsibility for graduate

 9  medical education within the most recent 10 years.

10         7.  A description of any criminal offense of which the

11  applicant has been found guilty, regardless of whether

12  adjudication of guilt was withheld, or to which the applicant

13  has pled guilty or nolo contendere.  A criminal offense

14  committed in another jurisdiction which would have been a

15  felony or misdemeanor if committed in this state must be

16  reported. If the applicant indicates that a criminal offense

17  is under appeal and submits a copy of the notice for appeal of

18  that criminal offense, the department must state that the

19  criminal offense is under appeal if the criminal offense is

20  reported in the applicant's profile. If the applicant

21  indicates to the department that a criminal offense is under

22  appeal, the applicant must, upon disposition of the appeal,

23  submit to the department a copy of the final written order of

24  disposition.

25         8.  A description of any final disciplinary action

26  taken within the previous 10 years against the applicant by

27  the agency regulating the profession that the applicant is or

28  has been licensed to practice, whether in this state or in any

29  other jurisdiction, by a specialty board that is recognized by

30  the American Board of Medical Specialties, the American

31  Osteopathic Association, or a similar national organization,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  or by a licensed hospital, health maintenance organization,

 2  prepaid health clinic, ambulatory surgical center, or nursing

 3  home. Disciplinary action includes resignation from or

 4  nonrenewal of medical staff membership or the restriction of

 5  privileges at a licensed hospital, health maintenance

 6  organization, prepaid health clinic, ambulatory surgical

 7  center, or nursing home taken in lieu of or in settlement of a

 8  pending disciplinary case related to competence or character.

 9  If the applicant indicates that the disciplinary action is

10  under appeal and submits a copy of the document initiating an

11  appeal of the disciplinary action, the department must state

12  that the disciplinary action is under appeal if the

13  disciplinary action is reported in the applicant's profile.

14         9.  Relevant professional qualifications as defined by

15  the applicable board.

16         Section 14.  Section 456.041, Florida Statutes, is

17  amended to read:

18         456.041  Practitioner profile; creation.--

19         (1)(a)  Beginning July 1, 1999, The Department of

20  Health shall compile the information submitted pursuant to s.

21  456.039 into a practitioner profile of the applicant

22  submitting the information, except that the Department of

23  Health shall may develop a format to compile uniformly any

24  information submitted under s. 456.039(4)(b). Beginning July

25  1, 2001, the Department of Health may compile the information

26  submitted pursuant to s. 456.0391 into a practitioner profile

27  of the applicant submitting the information.

28         (b)  Within 30 calendar days after receiving an update

29  of information required for the practitioner's profile, the

30  department shall update the practitioner's profile in

31  accordance with the requirements of subsection (7).


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (2)  On the profile published under subsection (1), the

 2  department shall indicate if the information provided under s.

 3  456.039(1)(a)7. or s. 456.0391(1)(a)7. is or is not

 4  corroborated by a criminal history check conducted according

 5  to this subsection. If the information provided under s.

 6  456.039(1)(a)7. or s. 456.0391(1)(a)7. is corroborated by the

 7  criminal history check, the fact that the criminal history

 8  check was performed need not be indicated on the profile. The

 9  department, or the board having regulatory authority over the

10  practitioner acting on behalf of the department, shall

11  investigate any information received by the department or the

12  board when it has reasonable grounds to believe that the

13  practitioner has violated any law that relates to the

14  practitioner's practice.

15         (3)  The Department of Health shall may include in each

16  practitioner's practitioner profile that criminal information

17  that directly relates to the practitioner's ability to

18  competently practice his or her profession.  The department

19  must include in each practitioner's practitioner profile the

20  following statement:  "The criminal history information, if

21  any exists, may be incomplete; federal criminal history

22  information is not available to the public." The department

23  shall provide in each practitioner profile, for every final

24  disciplinary action taken against the practitioner, an

25  easy-to-read narrative description that explains the

26  administrative complaint filed against the practitioner and

27  the final disciplinary action imposed on the practitioner. The

28  department shall include a hyperlink to each final order

29  listed in its website report of dispositions of recent

30  disciplinary actions taken against practitioners.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (4)  The Department of Health shall include, with

 2  respect to a practitioner licensed under chapter 458 or

 3  chapter 459, a statement of how the practitioner has elected

 4  to comply with the financial responsibility requirements of s.

 5  458.320 or s. 459.0085. The department shall include, with

 6  respect to practitioners subject to s. 456.048, a statement of

 7  how the practitioner has elected to comply with the financial

 8  responsibility requirements of that section. The department

 9  shall include, with respect to practitioners licensed under

10  chapter 458, chapter 459, or chapter 461, information relating

11  to liability actions which has been reported under s. 456.049

12  or s. 627.912 within the previous 10 years for any paid claim

13  that exceeds $5,000. The department shall include, with

14  respect to practitioners licensed under chapter 458 or chapter

15  459, information relating to liability actions which has been

16  reported under ss. 456.049 and 627.912 within the previous 10

17  years for any paid claim that exceeds $100,000. Such claims

18  information shall be reported in the context of comparing an

19  individual practitioner's claims to the experience of other

20  practitioners within the same specialty, or profession if the

21  practitioner is not a specialist, to the extent such

22  information is available to the Department of Health. The

23  department must provide a hyperlink in such practitioner's

24  profile to all such comparison reports. If information

25  relating to a liability action is included in a practitioner's

26  practitioner profile, the profile must also include the

27  following statement: "Settlement of a claim may occur for a

28  variety of reasons that do not necessarily reflect negatively

29  on the professional competence or conduct of the practitioner.

30  A payment in settlement of a medical malpractice action or

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  claim should not be construed as creating a presumption that

 2  medical malpractice has occurred."

 3         (5)  The Department of Health shall may not include the

 4  date of a hospital or ambulatory surgical center disciplinary

 5  action taken by a licensed hospital or an ambulatory surgical

 6  center, in accordance with the requirements of s. 395.0193, in

 7  the practitioner profile. The department shall state whether

 8  the action related to professional competence and whether it

 9  related to the delivery of services to a patient.

10         (6)  The Department of Health may include in the

11  practitioner's practitioner profile any other information that

12  is a public record of any governmental entity and that relates

13  to a practitioner's ability to competently practice his or her

14  profession.  However, the department must consult with the

15  board having regulatory authority over the practitioner before

16  such information is included in his or her profile.

17         (7)  Upon the completion of a practitioner profile

18  under this section, the Department of Health shall furnish the

19  practitioner who is the subject of the profile a copy of it

20  for review and verification. The practitioner has a period of

21  30 days in which to review and verify the contents of the

22  profile and to correct any factual inaccuracies in it. The

23  Department of Health shall make the profile available to the

24  public at the end of the 30-day period regardless of whether

25  the practitioner has provided verification of the profile

26  content. A practitioner shall be subject to a fine of up to

27  $100 per day for failure to verify the profile contents and to

28  correct any factual errors in his or her profile within the

29  30-day period. The department shall make the profiles

30  available to the public through the World Wide Web and other

31  commonly used means of distribution. The department must


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    CS for SB 2-D                            First Engrossed (ntc)



 1  include the following statement, in boldface type, in each

 2  profile that has not been reviewed by the practitioner to

 3  which it applies: "The practitioner has not verified the

 4  information contained in this profile."

 5         (8)  The Department of Health must provide in each

 6  profile an easy-to-read explanation of any disciplinary action

 7  taken and the reason the sanction or sanctions were imposed.

 8         (9)  The Department of Health may provide one link in

 9  each profile to a practitioner's professional website if the

10  practitioner requests that such a link be included in his or

11  her profile.

12         (10)(8)  Making a practitioner profile available to the

13  public under this section does not constitute agency action

14  for which a hearing under s. 120.57 may be sought.

15         Section 15.  Section 456.042, Florida Statutes, is

16  amended to read:

17         456.042  Practitioner profiles; update.--A practitioner

18  must submit updates of required information within 15 days

19  after the final activity that renders such information a fact.

20  The Department of Health shall update each practitioner's

21  practitioner profile periodically. An updated profile is

22  subject to the same requirements as an original profile with

23  respect to the period within which the practitioner may review

24  the profile for the purpose of correcting factual

25  inaccuracies.

26         Section 16.  Section 456.049, Florida Statutes, is

27  amended to read:

28         456.049  Health care practitioners; reports on

29  professional liability claims and actions.--

30         (1)  Any practitioner of medicine licensed pursuant to

31  the provisions of chapter 458, practitioner of osteopathic


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    CS for SB 2-D                            First Engrossed (ntc)



 1  medicine licensed pursuant to the provisions of chapter 459,

 2  podiatric physician licensed pursuant to the provisions of

 3  chapter 461, or dentist licensed pursuant to the provisions of

 4  chapter 466 shall report to the Office of Insurance Regulation

 5  department any claim or action for damages for personal injury

 6  alleged to have been caused by error, omission, or negligence

 7  in the performance of such licensee's professional services or

 8  based on a claimed performance of professional services

 9  without consent pursuant to if the claim was not covered by an

10  insurer required to report under s. 627.912. and the claim

11  resulted in:

12         (a)  A final judgment in any amount.

13         (b)  A settlement in any amount.

14         (c)  A final disposition not resulting in payment on

15  behalf of the licensee.

16  

17  Reports shall be filed with the department no later than 60

18  days following the occurrence of any event listed in paragraph

19  (a), paragraph (b), or paragraph (c).

20         (2)  Reports shall contain:

21         (a)  The name and address of the licensee.

22         (b)  The date of the occurrence which created the

23  claim.

24         (c)  The date the claim was reported to the licensee.

25         (d)  The name and address of the injured person.  This

26  information is confidential and exempt from s. 119.07(1) and

27  shall not be disclosed by the department without the injured

28  person's consent.  This information may be used by the

29  department for purposes of identifying multiple or duplicate

30  claims arising out of the same occurrence.

31         (e)  The date of suit, if filed.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (f)  The injured person's age and sex.

 2         (g)  The total number and names of all defendants

 3  involved in the claim.

 4         (h)  The date and amount of judgment or settlement, if

 5  any, including the itemization of the verdict, together with a

 6  copy of the settlement or judgment.

 7         (i)  In the case of a settlement, such information as

 8  the department may require with regard to the injured person's

 9  incurred and anticipated medical expense, wage loss, and other

10  expenses.

11         (j)  The loss adjustment expense paid to defense

12  counsel, and all other allocated loss adjustment expense paid.

13         (k)  The date and reason for final disposition, if no

14  judgment or settlement.

15         (l)  A summary of the occurrence which created the

16  claim, which shall include:

17         1.  The name of the institution, if any, and the

18  location within such institution, at which the injury

19  occurred.

20         2.  The final diagnosis for which treatment was sought

21  or rendered, including the patient's actual condition.

22         3.  A description of the misdiagnosis made, if any, of

23  the patient's actual condition.

24         4.  The operation or the diagnostic or treatment

25  procedure causing the injury.

26         5.  A description of the principal injury giving rise

27  to the claim.

28         6.  The safety management steps that have been taken by

29  the licensee to make similar occurrences or injuries less

30  likely in the future.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (m)  Any other information required by the department

 2  to analyze and evaluate the nature, causes, location, cost,

 3  and damages involved in professional liability cases.

 4         Section 17.  Section 456.051, Florida Statutes, is

 5  amended to read:

 6         456.051  Reports of professional liability actions;

 7  bankruptcies; Department of Health's responsibility to

 8  provide.--

 9         (1)  The report of a claim or action for damages for

10  personal injury which is required to be provided to the

11  Department of Health under s. 456.049 or s. 627.912 is public

12  information except for the name of the claimant or injured

13  person, which remains confidential as provided in ss.

14  456.049(2)(d) and 627.912(2)(e).  The Department of Health

15  shall, upon request, make such report available to any person.

16  The department shall make such report available as a part of

17  the practitioner's profile within 30 calendar days after

18  receipt.

19         (2)  Any information in the possession of the

20  Department of Health which relates to a bankruptcy proceeding

21  by a practitioner of medicine licensed under chapter 458, a

22  practitioner of osteopathic medicine licensed under chapter

23  459, a podiatric physician licensed under chapter 461, or a

24  dentist licensed under chapter 466 is public information. The

25  Department of Health shall, upon request, make such

26  information available to any person. The department shall make

27  such report available as a part of the practitioner's profile

28  within 30 calendar days after receipt.

29         Section 18.  Paragraph (a) of subsection (7) of section

30  456.057, Florida Statutes, is amended to read:

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         456.057  Ownership and control of patient records;

 2  report or copies of records to be furnished.--

 3         (7)(a)1.  The department may obtain patient records

 4  pursuant to a subpoena without written authorization from the

 5  patient if the department and the probable cause panel of the

 6  appropriate board, if any, find reasonable cause to believe

 7  that a health care practitioner has excessively or

 8  inappropriately prescribed any controlled substance specified

 9  in chapter 893 in violation of this chapter or any

10  professional practice act or that a health care practitioner

11  has practiced his or her profession below that level of care,

12  skill, and treatment required as defined by this chapter or

13  any professional practice act and also find that appropriate,

14  reasonable attempts were made to obtain a patient release.

15         2.  The department may obtain patient records and

16  insurance information pursuant to a subpoena without written

17  authorization from the patient if the department and the

18  probable cause panel of the appropriate board, if any, find

19  reasonable cause to believe that a health care practitioner

20  has provided inadequate medical care based on termination of

21  insurance and also find that appropriate, reasonable attempts

22  were made to obtain a patient release.

23         3.  The department may obtain patient records, billing

24  records, insurance information, provider contracts, and all

25  attachments thereto pursuant to a subpoena without written

26  authorization from the patient if the department and probable

27  cause panel of the appropriate board, if any, find reasonable

28  cause to believe that a health care practitioner has submitted

29  a claim, statement, or bill using a billing code that would

30  result in payment greater in amount than would be paid using a

31  billing code that accurately describes the services performed,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  requested payment for services that were not performed by that

 2  health care practitioner, used information derived from a

 3  written report of an automobile accident generated pursuant to

 4  chapter 316 to solicit or obtain patients personally or

 5  through an agent regardless of whether the information is

 6  derived directly from the report or a summary of that report

 7  or from another person, solicited patients fraudulently,

 8  received a kickback as defined in s. 456.054, violated the

 9  patient brokering provisions of s. 817.505, or presented or

10  caused to be presented a false or fraudulent insurance claim

11  within the meaning of s. 817.234(1)(a), and also find that,

12  within the meaning of s. 817.234(1)(a), patient authorization

13  cannot be obtained because the patient cannot be located or is

14  deceased, incapacitated, or suspected of being a participant

15  in the fraud or scheme, and if the subpoena is issued for

16  specific and relevant records.

17         4.  Notwithstanding subparagraphs 1.-3., when the

18  department investigates a professional liability claim or

19  undertakes action pursuant to s. 456.049 or s. 627.912, the

20  department may obtain patient records pursuant to a subpoena

21  without written authorization from the patient if the patient

22  refuses to cooperate or if the department attempts to obtain a

23  patient release and the failure to obtain the patient records

24  would be detrimental to the investigation.

25         Section 19.  Subsection (4) of section 456.072, Florida

26  Statutes, as amended by section 6 of chapter 2003-411, Laws of

27  Florida, is amended to read:

28         456.072  Grounds for discipline; penalties;

29  enforcement.--

30         (4)  In addition to any other discipline imposed

31  through final order, or citation, entered on or after July 1,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  2001, pursuant to this section or discipline imposed through

 2  final order, or citation, entered on or after July 1, 2001,

 3  for a violation of any practice act, the board, or the

 4  department when there is no board, shall assess costs related

 5  to the investigation and prosecution of the case. Such costs

 6  related to the investigation and prosecution include, but are

 7  not limited to, salaries and benefits of personnel, costs

 8  related to the time spent by the attorney and other personnel

 9  working on the case, and any other expenses incurred by the

10  department for the case. The board, or the department when

11  there in no board, shall determine the amount of costs to be

12  assessed after its consideration of an affidavit of itemized

13  costs and any written objections thereto. In any case where

14  the board or the department imposes a fine or assessment and

15  the fine or assessment is not paid within a reasonable time,

16  such reasonable time to be prescribed in the rules of the

17  board, or the department when there is no board, or in the

18  order assessing such fines or costs, the department or the

19  Department of Legal Affairs may contract for the collection

20  of, or bring a civil action to recover, the fine or

21  assessment.

22         Section 20.  Subsections (1) and (5) of section

23  456.073, Florida Statutes, as amended by section 1 of chapter

24  2003-27, Laws of Florida, are amended to read:

25         456.073  Disciplinary proceedings.--Disciplinary

26  proceedings for each board shall be within the jurisdiction of

27  the department.

28         (1)  The department, for the boards under its

29  jurisdiction, shall cause to be investigated any complaint

30  that is filed before it if the complaint is in writing, signed

31  by the complainant, and legally sufficient. A complaint filed


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    CS for SB 2-D                            First Engrossed (ntc)



 1  by a state prisoner against a health care practitioner

 2  employed by or otherwise providing health care services within

 3  a facility of the Department of Corrections is not legally

 4  sufficient unless there is a showing that the prisoner

 5  complainant has exhausted all available administrative

 6  remedies within the state correctional system before filing

 7  the complaint. However, if the Department of Health determines

 8  after a preliminary inquiry of a state prisoner's complaint

 9  that the practitioner may present a serious threat to the

10  health and safety of any individual who is not a state

11  prisoner, the Department of Health may determine legal

12  sufficiency and proceed with discipline. The Department of

13  Health shall be notified within 15 days after the Department

14  of Corrections disciplines or allows a health care

15  practitioner to resign for an offense related to the practice

16  of his or her profession. A complaint is legally sufficient if

17  it contains ultimate facts that show that a violation of this

18  chapter, of any of the practice acts relating to the

19  professions regulated by the department, or of any rule

20  adopted by the department or a regulatory board in the

21  department has occurred. In order to determine legal

22  sufficiency, the department may require supporting information

23  or documentation. The department may investigate, and the

24  department or the appropriate board may take appropriate final

25  action on, a complaint even though the original complainant

26  withdraws it or otherwise indicates a desire not to cause the

27  complaint to be investigated or prosecuted to completion. The

28  department may investigate an anonymous complaint if the

29  complaint is in writing and is legally sufficient, if the

30  alleged violation of law or rules is substantial, and if the

31  department has reason to believe, after preliminary inquiry,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  that the violations alleged in the complaint are true. The

 2  department may investigate a complaint made by a confidential

 3  informant if the complaint is legally sufficient, if the

 4  alleged violation of law or rule is substantial, and if the

 5  department has reason to believe, after preliminary inquiry,

 6  that the allegations of the complainant are true. The

 7  department may initiate an investigation if it has reasonable

 8  cause to believe that a licensee or a group of licensees has

 9  violated a Florida statute, a rule of the department, or a

10  rule of a board. Notwithstanding subsection (13), the

11  department may investigate information filed pursuant to s.

12  456.041(4) relating to liability actions with respect to

13  practitioners licensed under chapter 458 or chapter 459 which

14  have been reported under s. 456.049 or s. 627.912 within the

15  previous 6 years for any paid claim that exceeds $50,000.

16  Except as provided in ss. 458.331(9), 459.015(9), 460.413(5),

17  and 461.013(6), when an investigation of any subject is

18  undertaken, the department shall promptly furnish to the

19  subject or the subject's attorney a copy of the complaint or

20  document that resulted in the initiation of the investigation.

21  The subject may submit a written response to the information

22  contained in such complaint or document within 20 days after

23  service to the subject of the complaint or document. The

24  subject's written response shall be considered by the probable

25  cause panel. The right to respond does not prohibit the

26  issuance of a summary emergency order if necessary to protect

27  the public. However, if the secretary, or the secretary's

28  designee, and the chair of the respective board or the chair

29  of its probable cause panel agree in writing that such

30  notification would be detrimental to the investigation, the

31  department may withhold notification. The department may


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    CS for SB 2-D                            First Engrossed (ntc)



 1  conduct an investigation without notification to any subject

 2  if the act under investigation is a criminal offense.

 3         (5)  A formal hearing before an administrative law

 4  judge from the Division of Administrative Hearings shall be

 5  held pursuant to chapter 120 if there are any disputed issues

 6  of material fact. The determination of whether or not a

 7  licensee has violated the laws and rules regulating the

 8  profession, including a determination of the reasonable

 9  standard of care, is a conclusion of law to be determined by

10  the board, or department when there is no board, and is not a

11  finding of fact to be determined by an administrative law

12  judge. The administrative law judge shall issue a recommended

13  order pursuant to chapter 120. Notwithstanding s. 120.569(2),

14  the department shall notify the division within 45 days after

15  receipt of a petition or request for a formal hearing. If any

16  party raises an issue of disputed fact during an informal

17  hearing, the hearing shall be terminated and a formal hearing

18  pursuant to chapter 120 shall be held.

19         Section 21.  Subsections (1) and (2) of section

20  456.077, Florida Statutes, are amended to read:

21         456.077  Authority to issue citations.--

22         (1)  Notwithstanding s. 456.073, the board, or the

23  department if there is no board, shall adopt rules to permit

24  the issuance of citations. The citation shall be issued to the

25  subject and shall contain the subject's name and address, the

26  subject's license number if applicable, a brief factual

27  statement, the sections of the law allegedly violated, and the

28  penalty imposed. The citation must clearly state that the

29  subject may choose, in lieu of accepting the citation, to

30  follow the procedure under s. 456.073. If the subject disputes

31  the matter in the citation, the procedures set forth in s.


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    CS for SB 2-D                            First Engrossed (ntc)



 1  456.073 must be followed. However, if the subject does not

 2  dispute the matter in the citation with the department within

 3  30 days after the citation is served, the citation becomes a

 4  public final order and does not constitute constitutes

 5  discipline for a first offense, but does constitute discipline

 6  for a second or subsequent offense. The penalty shall be a

 7  fine or other conditions as established by rule.

 8         (2)  The board, or the department if there is no board,

 9  shall adopt rules designating violations for which a citation

10  may be issued. Such rules shall designate as citation

11  violations those violations for which there is no substantial

12  threat to the public health, safety, and welfare or no

13  violation of standard of care involving injury to a patient.

14  Violations for which a citation may be issued shall include

15  violations of continuing education requirements; failure to

16  timely pay required fees and fines; failure to comply with the

17  requirements of ss. 381.026 and 381.0261 regarding the

18  dissemination of information regarding patient rights; failure

19  to comply with advertising requirements; failure to timely

20  update practitioner profile and credentialing files; failure

21  to display signs, licenses, and permits; failure to have

22  required reference books available; and all other violations

23  that do not pose a direct and serious threat to the health and

24  safety of the patient or involve a violation of standard of

25  care that has resulted in injury to a patient.

26         Section 22.  Section 456.078, Florida Statutes, is

27  amended to read:

28         456.078  Mediation.--

29         (1)  Notwithstanding the provisions of s. 456.073, the

30  board, or the department when there is no board, shall adopt

31  rules to designate which violations of the applicable


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    CS for SB 2-D                            First Engrossed (ntc)



 1  professional practice act are appropriate for mediation. The

 2  board, or the department when there is no board, shall may

 3  designate as mediation offenses those complaints where harm

 4  caused by the licensee:

 5         (a)  Is economic in nature except any act or omission

 6  involving intentional misconduct; or

 7         (b)  Can be remedied by the licensee;.

 8         (c)  Is not a standard of care violation involving any

 9  type of injury to a patient; or

10         (d)  Does not result in an adverse incident.

11         (2)  For the purposes of this section, an "adverse

12  incident" means an event that results in:

13         (a)  The death of a patient;

14         (b)  Brain or spinal damage to a patient;

15         (c)  The performance of a surgical procedure on the

16  wrong patient;

17         (d)  The performance of a wrong-site surgical

18  procedure;

19         (e)  The performance of a surgical procedure that is

20  medically unnecessary or otherwise unrelated to the patient's

21  diagnosis or medical condition;

22         (f)  The surgical repair of damage to a patient

23  resulting from a planned surgical procedure, which damage is

24  not a recognized specific risk as disclosed to the patient and

25  documented through the informed-consent process;

26         (g)  The performance of a procedure to remove unplanned

27  foreign objects remaining from a surgical procedure; or

28         (h)  The performance of any other surgical procedure

29  that breached the standard of care.

30         (3)(2)  After the department determines a complaint is

31  legally sufficient and the alleged violations are defined as


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    CS for SB 2-D                            First Engrossed (ntc)



 1  mediation offenses, the department or any agent of the

 2  department may conduct informal mediation to resolve the

 3  complaint. If the complainant and the subject of the complaint

 4  agree to a resolution of a complaint within 14 days after

 5  contact by the mediator, the mediator shall notify the

 6  department of the terms of the resolution. The department or

 7  board shall take no further action unless the complainant and

 8  the subject each fail to record with the department an

 9  acknowledgment of satisfaction of the terms of mediation

10  within 60 days of the mediator's notification to the

11  department. A successful mediation shall not constitute

12  discipline. In the event the complainant and subject fail to

13  reach settlement terms or to record the required

14  acknowledgment, the department shall process the complaint

15  according to the provisions of s. 456.073.

16         (4)(3)  Conduct or statements made during mediation are

17  inadmissible in any proceeding pursuant to s. 456.073.

18  Further, any information relating to the mediation of a case

19  shall be subject to the confidentiality provisions of s.

20  456.073.

21         (5)(4)  No licensee shall go through the mediation

22  process more than three times without approval of the

23  department. The department may consider the subject and dates

24  of the earlier complaints in rendering its decision. Such

25  decision shall not be considered a final agency action for

26  purposes of chapter 120.

27         (6)(5)  Any board created on or after January 1, 1995,

28  shall have 6 months to adopt rules designating which

29  violations are appropriate for mediation, after which time the

30  department shall have exclusive authority to adopt rules

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  pursuant to this section. A board shall have continuing

 2  authority to amend its rules adopted pursuant to this section.

 3         Section 23.  Effective upon this act becoming a law and

 4  applying to claims accruing on or after that date, section

 5  458.320, Florida Statutes, is amended to read:

 6         458.320  Financial responsibility.--

 7         (1)  As a condition of licensing and maintaining an

 8  active license, and prior to the issuance or renewal of an

 9  active license or reactivation of an inactive license for the

10  practice of medicine, an applicant must shall by one of the

11  following methods demonstrate to the satisfaction of the board

12  and the department financial responsibility to pay claims and

13  costs ancillary thereto arising out of the rendering of, or

14  the failure to render, medical care or services:

15         (a)  Establishing and maintaining an escrow account

16  consisting of cash or assets eligible for deposit in

17  accordance with s. 625.52 in the per claim amounts specified

18  in paragraph (b). The required escrow amount set forth in this

19  paragraph may not be used for litigation costs or attorney's

20  fees for the defense of any medical malpractice claim.

21         (b)  Obtaining and maintaining professional liability

22  coverage in an amount not less than $100,000 per claim, with a

23  minimum annual aggregate of not less than $300,000, from an

24  authorized insurer as defined under s. 624.09, from a surplus

25  lines insurer as defined under s. 626.914(2), from a risk

26  retention group as defined under s. 627.942, from the Joint

27  Underwriting Association established under s. 627.351(4), or

28  through a plan of self-insurance as provided in s. 627.357.

29  The required coverage amount set forth in this paragraph may

30  not be used for litigation costs or attorney's fees for the

31  defense of any medical malpractice claim.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (c)  Obtaining and maintaining an unexpired,

 2  irrevocable letter of credit, established pursuant to chapter

 3  675, in an amount not less than $100,000 per claim, with a

 4  minimum aggregate availability of credit of not less than

 5  $300,000. The letter of credit must shall be payable to the

 6  physician as beneficiary upon presentment of a final judgment

 7  indicating liability and awarding damages to be paid by the

 8  physician or upon presentment of a settlement agreement signed

 9  by all parties to such agreement when such final judgment or

10  settlement is a result of a claim arising out of the rendering

11  of, or the failure to render, medical care and services. The

12  letter of credit may not be used for litigation costs or

13  attorney's fees for the defense of any medical malpractice

14  claim. The Such letter of credit must shall be nonassignable

15  and nontransferable. Such letter of credit must shall be

16  issued by any bank or savings association organized and

17  existing under the laws of this state or any bank or savings

18  association organized under the laws of the United States

19  which that has its principal place of business in this state

20  or has a branch office that which is authorized under the laws

21  of this state or of the United States to receive deposits in

22  this state.

23         (2)  Physicians who perform surgery in an ambulatory

24  surgical center licensed under chapter 395 and, as a

25  continuing condition of hospital staff privileges, physicians

26  who have with staff privileges must shall also be required to

27  establish financial responsibility by one of the following

28  methods:

29         (a)  Establishing and maintaining an escrow account

30  consisting of cash or assets eligible for deposit in

31  accordance with s. 625.52 in the per claim amounts specified


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    CS for SB 2-D                            First Engrossed (ntc)



 1  in paragraph (b). The required escrow amount set forth in this

 2  paragraph may not be used for litigation costs or attorney's

 3  fees for the defense of any medical malpractice claim.

 4         (b)  Obtaining and maintaining professional liability

 5  coverage in an amount not less than $250,000 per claim, with a

 6  minimum annual aggregate of not less than $750,000 from an

 7  authorized insurer as defined under s. 624.09, from a surplus

 8  lines insurer as defined under s. 626.914(2), from a risk

 9  retention group as defined under s. 627.942, from the Joint

10  Underwriting Association established under s. 627.351(4),

11  through a plan of self-insurance as provided in s. 627.357, or

12  through a plan of self-insurance which meets the conditions

13  specified for satisfying financial responsibility in s.

14  766.110. The required coverage amount set forth in this

15  paragraph may not be used for litigation costs or attorney's

16  fees for the defense of any medical malpractice claim.

17         (c)  Obtaining and maintaining an unexpired irrevocable

18  letter of credit, established pursuant to chapter 675, in an

19  amount not less than $250,000 per claim, with a minimum

20  aggregate availability of credit of not less than $750,000.

21  The letter of credit must shall be payable to the physician as

22  beneficiary upon presentment of a final judgment indicating

23  liability and awarding damages to be paid by the physician or

24  upon presentment of a settlement agreement signed by all

25  parties to such agreement when such final judgment or

26  settlement is a result of a claim arising out of the rendering

27  of, or the failure to render, medical care and services. The

28  letter of credit may not be used for litigation costs or

29  attorney's fees for the defense of any medical malpractice

30  claim. The Such letter of credit must shall be nonassignable

31  and nontransferable. The Such letter of credit must shall be


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    CS for SB 2-D                            First Engrossed (ntc)



 1  issued by any bank or savings association organized and

 2  existing under the laws of this state or any bank or savings

 3  association organized under the laws of the United States

 4  which that has its principal place of business in this state

 5  or has a branch office that which is authorized under the laws

 6  of this state or of the United States to receive deposits in

 7  this state.

 8  

 9  This subsection shall be inclusive of the coverage in

10  subsection (1).

11         (3)(a)  The financial responsibility requirements of

12  subsections (1) and (2) shall apply to claims for incidents

13  that occur on or after January 1, 1987, or the initial date of

14  licensure in this state, whichever is later.

15         (b)  Meeting the financial responsibility requirements

16  of this section or the criteria for any exemption from such

17  requirements must shall be established at the time of issuance

18  or renewal of a license on or after January 1, 1987.

19         (b)(c)  Any person may, at any time, submit to the

20  department a request for an advisory opinion regarding such

21  person's qualifications for exemption.

22         (4)(a)  Each insurer, self-insurer, risk retention

23  group, or Joint Underwriting Association must shall promptly

24  notify the department of cancellation or nonrenewal of

25  insurance required by this section. Unless the physician

26  demonstrates that he or she is otherwise in compliance with

27  the requirements of this section, the department shall suspend

28  the license of the physician pursuant to ss. 120.569 and

29  120.57 and notify all health care facilities licensed under

30  chapter 395 of such action. Any suspension under this

31  subsection remains shall remain in effect until the physician


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    CS for SB 2-D                            First Engrossed (ntc)



 1  demonstrates compliance with the requirements of this section.

 2  If any judgments or settlements are pending at the time of

 3  suspension, those judgments or settlements must be paid in

 4  accordance with this section unless otherwise mutually agreed

 5  to in writing by the parties. This paragraph does not abrogate

 6  a judgment debtor's obligation to satisfy the entire amount of

 7  any judgment, except that a license suspended under paragraph

 8  (5)(g) shall not be reinstated until the physician

 9  demonstrates compliance with the requirements of that

10  provision.

11         (b)  If financial responsibility requirements are met

12  by maintaining an escrow account or letter of credit as

13  provided in this section, upon the entry of an adverse final

14  judgment arising from a medical malpractice arbitration award,

15  from a claim of medical malpractice either in contract or

16  tort, or from noncompliance with the terms of a settlement

17  agreement arising from a claim of medical malpractice either

18  in contract or tort, the licensee shall pay the entire amount

19  of the judgment together with all accrued interest, or the

20  amount maintained in the escrow account or provided in the

21  letter of credit as required by this section, whichever is

22  less, within 60 days after the date such judgment became final

23  and subject to execution, unless otherwise mutually agreed to

24  in writing by the parties.  If timely payment is not made by

25  the physician, the department shall suspend the license of the

26  physician pursuant to procedures set forth in subparagraphs

27  (5)(g)3., 4., and 5.  Nothing in this paragraph shall abrogate

28  a judgment debtor's obligation to satisfy the entire amount of

29  any judgment.

30         (5)  The requirements of subsections (1), (2), and (3)

31  do shall not apply to:


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (a)  Any person licensed under this chapter who

 2  practices medicine exclusively as an officer, employee, or

 3  agent of the Federal Government or of the state or its

 4  agencies or its subdivisions. For the purposes of this

 5  subsection, an agent of the state, its agencies, or its

 6  subdivisions is a person who is eligible for coverage under

 7  any self-insurance or insurance program authorized by the

 8  provisions of s. 768.28(15).

 9         (b)  Any person whose license has become inactive under

10  this chapter and who is not practicing medicine in this state.

11  Any person applying for reactivation of a license must show

12  either that such licensee maintained tail insurance coverage

13  which provided liability coverage for incidents that occurred

14  on or after January 1, 1987, or the initial date of licensure

15  in this state, whichever is later, and incidents that occurred

16  before the date on which the license became inactive; or such

17  licensee must submit an affidavit stating that such licensee

18  has no unsatisfied medical malpractice judgments or

19  settlements at the time of application for reactivation.

20         (c)  Any person holding a limited license pursuant to

21  s. 458.317 and practicing under the scope of such limited

22  license.

23         (d)  Any person licensed or certified under this

24  chapter who practices only in conjunction with his or her

25  teaching duties at an accredited medical school or in its main

26  teaching hospitals.  Such person may engage in the practice of

27  medicine to the extent that such practice is incidental to and

28  a necessary part of duties in connection with the teaching

29  position in the medical school.

30         (e)  Any person holding an active license under this

31  chapter who is not practicing medicine in this state.  If such


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    CS for SB 2-D                            First Engrossed (ntc)



 1  person initiates or resumes any practice of medicine in this

 2  state, he or she must notify the department of such activity

 3  and fulfill the financial responsibility requirements of this

 4  section before resuming the practice of medicine in this

 5  state.

 6         (f)  Any person holding an active license under this

 7  chapter who meets all of the following criteria:

 8         1.  The licensee has held an active license to practice

 9  in this state or another state or some combination thereof for

10  more than 15 years.

11         2.  The licensee has either retired from the practice

12  of medicine or maintains a part-time practice of no more than

13  1,000 patient contact hours per year.

14         3.  The licensee has had no more than two claims for

15  medical malpractice resulting in an indemnity exceeding

16  $25,000 within the previous 5-year period.

17         4.  The licensee has not been convicted of, or pled

18  guilty or nolo contendere to, any criminal violation specified

19  in this chapter or the medical practice act of any other

20  state.

21         5.  The licensee has not been subject within the last

22  10 years of practice to license revocation or suspension for

23  any period of time; probation for a period of 3 years or

24  longer; or a fine of $500 or more for a violation of this

25  chapter or the medical practice act of another jurisdiction.

26  The regulatory agency's acceptance of a physician's

27  relinquishment of a license, stipulation, consent order, or

28  other settlement, offered in response to or in anticipation of

29  the filing of administrative charges against the physician's

30  license, constitutes shall be construed as action against the

31  physician's license for the purposes of this paragraph.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         6.  The licensee has submitted a form supplying

 2  necessary information as required by the department and an

 3  affidavit affirming compliance with the provisions of this

 4  paragraph.

 5         7.  The licensee must shall submit biennially to the

 6  department certification stating compliance with the

 7  provisions of this paragraph. The licensee must shall, upon

 8  request, demonstrate to the department information verifying

 9  compliance with this paragraph.

10  

11  A licensee who meets the requirements of this paragraph must

12  shall be required either to post notice in the form of a sign

13  prominently displayed in the reception area and clearly

14  noticeable by all patients or provide a written statement to

15  any person to whom medical services are being provided. The

16  Such sign or statement must read as follows shall state that:

17  "Under Florida law, physicians are generally required to carry

18  medical malpractice insurance or otherwise demonstrate

19  financial responsibility to cover potential claims for medical

20  malpractice.  However, certain part-time physicians who meet

21  state requirements are exempt from the financial

22  responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND

23  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This

24  notice is provided pursuant to Florida law."

25         (g)  Any person holding an active license under this

26  chapter who agrees to meet all of the following criteria:

27         1.  Upon the entry of an adverse final judgment arising

28  from a medical malpractice arbitration award, from a claim of

29  medical malpractice either in contract or tort, or from

30  noncompliance with the terms of a settlement agreement arising

31  from a claim of medical malpractice either in contract or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  tort, the licensee shall pay the judgment creditor the lesser

 2  of the entire amount of the judgment with all accrued interest

 3  or either $100,000, if the physician is licensed pursuant to

 4  this chapter but does not maintain hospital staff privileges,

 5  or $250,000, if the physician is licensed pursuant to this

 6  chapter and maintains hospital staff privileges, within 60

 7  days after the date such judgment became final and subject to

 8  execution, unless otherwise mutually agreed to in writing by

 9  the parties.  Such adverse final judgment shall include any

10  cross-claim, counterclaim, or claim for indemnity or

11  contribution arising from the claim of medical malpractice.

12  Upon notification of the existence of an unsatisfied judgment

13  or payment pursuant to this subparagraph, the department shall

14  notify the licensee by certified mail that he or she shall be

15  subject to disciplinary action unless, within 30 days from the

16  date of mailing, he or she either:

17         a.  Shows proof that the unsatisfied judgment has been

18  paid in the amount specified in this subparagraph; or

19         b.  Furnishes the department with a copy of a timely

20  filed notice of appeal and either:

21         (I)  A copy of a supersedeas bond properly posted in

22  the amount required by law; or

23         (II)  An order from a court of competent jurisdiction

24  staying execution on the final judgment pending disposition of

25  the appeal.

26         2.  The Department of Health shall issue an emergency

27  order suspending the license of any licensee who, after 30

28  days following receipt of a notice from the Department of

29  Health, has failed to: satisfy a medical malpractice claim

30  against him or her; furnish the Department of Health a copy of

31  a timely filed notice of appeal; furnish the Department of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  Health a copy of a supersedeas bond properly posted in the

 2  amount required by law; or furnish the Department of Health an

 3  order from a court of competent jurisdiction staying execution

 4  on the final judgment pending disposition of the appeal.

 5         3.  Upon the next meeting of the probable cause panel

 6  of the board following 30 days after the date of mailing the

 7  notice of disciplinary action to the licensee, the panel shall

 8  make a determination of whether probable cause exists to take

 9  disciplinary action against the licensee pursuant to

10  subparagraph 1.

11         4.  If the board determines that the factual

12  requirements of subparagraph 1. are met, it shall take

13  disciplinary action as it deems appropriate against the

14  licensee. Such disciplinary action shall include, at a

15  minimum, probation of the license with the restriction that

16  the licensee must make payments to the judgment creditor on a

17  schedule determined by the board to be reasonable and within

18  the financial capability of the physician. Notwithstanding any

19  other disciplinary penalty imposed, the disciplinary penalty

20  may include suspension of the license for a period not to

21  exceed 5 years.  In the event that an agreement to satisfy a

22  judgment has been met, the board shall remove any restriction

23  on the license.

24         5.  The licensee has completed a form supplying

25  necessary information as required by the department.

26  

27  A licensee who meets the requirements of this paragraph shall

28  be required either to post notice in the form of a sign

29  prominently displayed in the reception area and clearly

30  noticeable by all patients or to provide a written statement

31  to any person to whom medical services are being provided.


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    CS for SB 2-D                            First Engrossed (ntc)



 1  Such sign or statement shall state: "Under Florida law,

 2  physicians are generally required to carry medical malpractice

 3  insurance or otherwise demonstrate financial responsibility to

 4  cover potential claims for medical malpractice. YOUR DOCTOR

 5  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This

 6  is permitted under Florida law subject to certain conditions.

 7  Florida law imposes penalties against noninsured physicians

 8  who fail to satisfy adverse judgments arising from claims of

 9  medical malpractice.  This notice is provided pursuant to

10  Florida law."

11         (6)  Any deceptive, untrue, or fraudulent

12  representation by the licensee with respect to any provision

13  of this section shall result in permanent disqualification

14  from any exemption to mandated financial responsibility as

15  provided in this section and shall constitute grounds for

16  disciplinary action under s. 458.331.

17         (7)  Any licensee who relies on any exemption from the

18  financial responsibility requirement shall notify the

19  department, in writing, of any change of circumstance

20  regarding his or her qualifications for such exemption and

21  shall demonstrate that he or she is in compliance with the

22  requirements of this section.

23         (8)  Notwithstanding any other provision of this

24  section, the department shall suspend the license of any

25  physician against whom has been entered a final judgment,

26  arbitration award, or other order or who has entered into a

27  settlement agreement to pay damages arising out of a claim for

28  medical malpractice, if all appellate remedies have been

29  exhausted and payment up to the amounts required by this

30  section has not been made within 30 days after the entering of

31  such judgment, award, or order or agreement, until proof of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  payment is received by the department or a payment schedule

 2  has been agreed upon by the physician and the claimant and

 3  presented to the department. This subsection does not apply to

 4  a physician who has met the financial responsibility

 5  requirements in paragraphs (1)(b) and (2)(b).

 6         (9)(8)  The board shall adopt rules to implement the

 7  provisions of this section.

 8         Section 24.  Effective upon this act becoming a law and

 9  applying to claims accruing on or after that date, section

10  459.0085, Florida Statutes, is amended to read:

11         459.0085  Financial responsibility.--

12         (1)  As a condition of licensing and maintaining an

13  active license, and prior to the issuance or renewal of an

14  active license or reactivation of an inactive license for the

15  practice of osteopathic medicine, an applicant must shall by

16  one of the following methods demonstrate to the satisfaction

17  of the board and the department financial responsibility to

18  pay claims and costs ancillary thereto arising out of the

19  rendering of, or the failure to render, medical care or

20  services:

21         (a)  Establishing and maintaining an escrow account

22  consisting of cash or assets eligible for deposit in

23  accordance with s. 625.52 in the per-claim amounts specified

24  in paragraph (b). The required escrow amount set forth in this

25  paragraph may not be used for litigation costs or attorney's

26  fees for the defense of any medical malpractice claim.

27         (b)  Obtaining and maintaining professional liability

28  coverage in an amount not less than $100,000 per claim, with a

29  minimum annual aggregate of not less than $300,000, from an

30  authorized insurer as defined under s. 624.09, from a surplus

31  lines insurer as defined under s. 626.914(2), from a risk


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    CS for SB 2-D                            First Engrossed (ntc)



 1  retention group as defined under s. 627.942, from the Joint

 2  Underwriting Association established under s. 627.351(4), or

 3  through a plan of self-insurance as provided in s. 627.357.

 4  The required coverage amount set forth in this paragraph may

 5  not be used for litigation costs or attorney's fees for the

 6  defense of any medical malpractice claim.

 7         (c)  Obtaining and maintaining an unexpired,

 8  irrevocable letter of credit, established pursuant to chapter

 9  675, in an amount not less than $100,000 per claim, with a

10  minimum aggregate availability of credit of not less than

11  $300,000. The letter of credit must shall be payable to the

12  osteopathic physician as beneficiary upon presentment of a

13  final judgment indicating liability and awarding damages to be

14  paid by the osteopathic physician or upon presentment of a

15  settlement agreement signed by all parties to such agreement

16  when such final judgment or settlement is a result of a claim

17  arising out of the rendering of, or the failure to render,

18  medical care and services. The letter of credit may not be

19  used for litigation costs or attorney's fees for the defense

20  of any medical malpractice claim. The Such letter of credit

21  must shall be nonassignable and nontransferable.  Such letter

22  of credit must shall be issued by any bank or savings

23  association organized and existing under the laws of this

24  state or any bank or savings association organized under the

25  laws of the United States which that has its principal place

26  of business in this state or has a branch office that which is

27  authorized under the laws of this state or of the United

28  States to receive deposits in this state.

29         (2)  Osteopathic physicians who perform surgery in an

30  ambulatory surgical center licensed under chapter 395 and, as

31  a continuing condition of hospital staff privileges,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  osteopathic physicians who have with staff privileges must

 2  shall also be required to establish financial responsibility

 3  by one of the following methods:

 4         (a)  Establishing and maintaining an escrow account

 5  consisting of cash or assets eligible for deposit in

 6  accordance with s. 625.52 in the per-claim amounts specified

 7  in paragraph (b). The required escrow amount set forth in this

 8  paragraph may not be used for litigation costs or attorney's

 9  fees for the defense of any medical malpractice claim.

10         (b)  Obtaining and maintaining professional liability

11  coverage in an amount not less than $250,000 per claim, with a

12  minimum annual aggregate of not less than $750,000 from an

13  authorized insurer as defined under s. 624.09, from a surplus

14  lines insurer as defined under s. 626.914(2), from a risk

15  retention group as defined under s. 627.942, from the Joint

16  Underwriting Association established under s. 627.351(4),

17  through a plan of self-insurance as provided in s. 627.357, or

18  through a plan of self-insurance that which meets the

19  conditions specified for satisfying financial responsibility

20  in s. 766.110. The required coverage amount set forth in this

21  paragraph may not be used for litigation costs or attorney's

22  fees for the defense of any medical malpractice claim.

23         (c)  Obtaining and maintaining an unexpired,

24  irrevocable letter of credit, established pursuant to chapter

25  675, in an amount not less than $250,000 per claim, with a

26  minimum aggregate availability of credit of not less than

27  $750,000. The letter of credit must shall be payable to the

28  osteopathic physician as beneficiary upon presentment of a

29  final judgment indicating liability and awarding damages to be

30  paid by the osteopathic physician or upon presentment of a

31  settlement agreement signed by all parties to such agreement


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    CS for SB 2-D                            First Engrossed (ntc)



 1  when such final judgment or settlement is a result of a claim

 2  arising out of the rendering of, or the failure to render,

 3  medical care and services. The letter of credit may not be

 4  used for litigation costs or attorney's fees for the defense

 5  of any medical malpractice claim. The Such letter of credit

 6  must shall be nonassignable and nontransferable. The Such

 7  letter of credit must shall be issued by any bank or savings

 8  association organized and existing under the laws of this

 9  state or any bank or savings association organized under the

10  laws of the United States which that has its principal place

11  of business in this state or has a branch office that which is

12  authorized under the laws of this state or of the United

13  States to receive deposits in this state.

14  

15  This subsection shall be inclusive of the coverage in

16  subsection (1).

17         (3)(a)  The financial responsibility requirements of

18  subsections (1) and (2) shall apply to claims for incidents

19  that occur on or after January 1, 1987, or the initial date of

20  licensure in this state, whichever is later.

21         (b)  Meeting the financial responsibility requirements

22  of this section or the criteria for any exemption from such

23  requirements must shall be established at the time of issuance

24  or renewal of a license on or after January 1, 1987.

25         (b)(c)  Any person may, at any time, submit to the

26  department a request for an advisory opinion regarding such

27  person's qualifications for exemption.

28         (4)(a)  Each insurer, self-insurer, risk retention

29  group, or joint underwriting association must shall promptly

30  notify the department of cancellation or nonrenewal of

31  insurance required by this section. Unless the osteopathic


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    CS for SB 2-D                            First Engrossed (ntc)



 1  physician demonstrates that he or she is otherwise in

 2  compliance with the requirements of this section, the

 3  department shall suspend the license of the osteopathic

 4  physician pursuant to ss. 120.569 and 120.57 and notify all

 5  health care facilities licensed under chapter 395, part IV of

 6  chapter 394, or part I of chapter 641 of such action. Any

 7  suspension under this subsection remains shall remain in

 8  effect until the osteopathic physician demonstrates compliance

 9  with the requirements of this section. If any judgments or

10  settlements are pending at the time of suspension, those

11  judgments or settlements must be paid in accordance with this

12  section unless otherwise mutually agreed to in writing by the

13  parties. This paragraph does not abrogate a judgment debtor's

14  obligation to satisfy the entire amount of any judgment except

15  that a license suspended under paragraph (5)(g) shall not be

16  reinstated until the osteopathic physician demonstrates

17  compliance with the requirements of that provision.

18         (b)  If financial responsibility requirements are met

19  by maintaining an escrow account or letter of credit as

20  provided in this section, upon the entry of an adverse final

21  judgment arising from a medical malpractice arbitration award,

22  from a claim of medical malpractice either in contract or

23  tort, or from noncompliance with the terms of a settlement

24  agreement arising from a claim of medical malpractice either

25  in contract or tort, the licensee shall pay the entire amount

26  of the judgment together with all accrued interest or the

27  amount maintained in the escrow account or provided in the

28  letter of credit as required by this section, whichever is

29  less, within 60 days after the date such judgment became final

30  and subject to execution, unless otherwise mutually agreed to

31  in writing by the parties. If timely payment is not made by


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    CS for SB 2-D                            First Engrossed (ntc)



 1  the osteopathic physician, the department shall suspend the

 2  license of the osteopathic physician pursuant to procedures

 3  set forth in subparagraphs (5)(g)3., 4., and 5. Nothing in

 4  this paragraph shall abrogate a judgment debtor's obligation

 5  to satisfy the entire amount of any judgment.

 6         (5)  The requirements of subsections (1), (2), and (3)

 7  do shall not apply to:

 8         (a)  Any person licensed under this chapter who

 9  practices medicine exclusively as an officer, employee, or

10  agent of the Federal Government or of the state or its

11  agencies or its subdivisions.  For the purposes of this

12  subsection, an agent of the state, its agencies, or its

13  subdivisions is a person who is eligible for coverage under

14  any self-insurance or insurance program authorized by the

15  provisions of s. 768.28(15).

16         (b)  Any person whose license has become inactive under

17  this chapter and who is not practicing medicine in this state.

18  Any person applying for reactivation of a license must show

19  either that such licensee maintained tail insurance coverage

20  that which provided liability coverage for incidents that

21  occurred on or after January 1, 1987, or the initial date of

22  licensure in this state, whichever is later, and incidents

23  that occurred before the date on which the license became

24  inactive; or such licensee must submit an affidavit stating

25  that such licensee has no unsatisfied medical malpractice

26  judgments or settlements at the time of application for

27  reactivation.

28         (c)  Any person holding a limited license pursuant to

29  s. 459.0075 and practicing under the scope of such limited

30  license.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (d)  Any person licensed or certified under this

 2  chapter who practices only in conjunction with his or her

 3  teaching duties at a college of osteopathic medicine.  Such

 4  person may engage in the practice of osteopathic medicine to

 5  the extent that such practice is incidental to and a necessary

 6  part of duties in connection with the teaching position in the

 7  college of osteopathic medicine.

 8         (e)  Any person holding an active license under this

 9  chapter who is not practicing osteopathic medicine in this

10  state. If such person initiates or resumes any practice of

11  osteopathic medicine in this state, he or she must notify the

12  department of such activity and fulfill the financial

13  responsibility requirements of this section before resuming

14  the practice of osteopathic medicine in this state.

15         (f)  Any person holding an active license under this

16  chapter who meets all of the following criteria:

17         1.  The licensee has held an active license to practice

18  in this state or another state or some combination thereof for

19  more than 15 years.

20         2.  The licensee has either retired from the practice

21  of osteopathic medicine or maintains a part-time practice of

22  osteopathic medicine of no more than 1,000 patient contact

23  hours per year.

24         3.  The licensee has had no more than two claims for

25  medical malpractice resulting in an indemnity exceeding

26  $25,000 within the previous 5-year period.

27         4.  The licensee has not been convicted of, or pled

28  guilty or nolo contendere to, any criminal violation specified

29  in this chapter or the practice act of any other state.

30         5.  The licensee has not been subject within the last

31  10 years of practice to license revocation or suspension for


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 1  any period of time, probation for a period of 3 years or

 2  longer, or a fine of $500 or more for a violation of this

 3  chapter or the medical practice act of another jurisdiction.

 4  The regulatory agency's acceptance of an osteopathic

 5  physician's relinquishment of a license, stipulation, consent

 6  order, or other settlement, offered in response to or in

 7  anticipation of the filing of administrative charges against

 8  the osteopathic physician's license, constitutes shall be

 9  construed as action against the physician's license for the

10  purposes of this paragraph.

11         6.  The licensee has submitted a form supplying

12  necessary information as required by the department and an

13  affidavit affirming compliance with the provisions of this

14  paragraph.

15         7.  The licensee must shall submit biennially to the

16  department a certification stating compliance with the

17  provisions of this paragraph. The licensee must shall, upon

18  request, demonstrate to the department information verifying

19  compliance with this paragraph.

20  

21  A licensee who meets the requirements of this paragraph must

22  shall be required either to post notice in the form of a sign

23  prominently displayed in the reception area and clearly

24  noticeable by all patients or to provide a written statement

25  to any person to whom medical services are being provided. The

26  Such sign or statement must read as follows shall state that:

27  "Under Florida law, osteopathic physicians are generally

28  required to carry medical malpractice insurance or otherwise

29  demonstrate financial responsibility to cover potential claims

30  for medical malpractice. However, certain part-time

31  osteopathic physicians who meet state requirements are exempt


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    CS for SB 2-D                            First Engrossed (ntc)



 1  from the financial responsibility law. YOUR OSTEOPATHIC

 2  PHYSICIAN MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO

 3  CARRY MEDICAL MALPRACTICE INSURANCE.  This notice is provided

 4  pursuant to Florida law."

 5         (g)  Any person holding an active license under this

 6  chapter who agrees to meet all of the following criteria.

 7         1.  Upon the entry of an adverse final judgment arising

 8  from a medical malpractice arbitration award, from a claim of

 9  medical malpractice either in contract or tort, or from

10  noncompliance with the terms of a settlement agreement arising

11  from a claim of medical malpractice either in contract or

12  tort, the licensee shall pay the judgment creditor the lesser

13  of the entire amount of the judgment with all accrued interest

14  or either $100,000, if the osteopathic physician is licensed

15  pursuant to this chapter but does not maintain hospital staff

16  privileges, or $250,000, if the osteopathic physician is

17  licensed pursuant to this chapter and maintains hospital staff

18  privileges, within 60 days after the date such judgment became

19  final and subject to execution, unless otherwise mutually

20  agreed to in writing by the parties. Such adverse final

21  judgment shall include any cross-claim, counterclaim, or claim

22  for indemnity or contribution arising from the claim of

23  medical malpractice. Upon notification of the existence of an

24  unsatisfied judgment or payment pursuant to this subparagraph,

25  the department shall notify the licensee by certified mail

26  that he or she shall be subject to disciplinary action unless,

27  within 30 days from the date of mailing, the licensee either:

28         a.  Shows proof that the unsatisfied judgment has been

29  paid in the amount specified in this subparagraph; or

30         b.  Furnishes the department with a copy of a timely

31  filed notice of appeal and either:


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 1         (I)  A copy of a supersedeas bond properly posted in

 2  the amount required by law; or

 3         (II)  An order from a court of competent jurisdiction

 4  staying execution on the final judgment, pending disposition

 5  of the appeal.

 6         2.  The Department of Health shall issue an emergency

 7  order suspending the license of any licensee who, after 30

 8  days following receipt of a notice from the Department of

 9  Health, has failed to: satisfy a medical malpractice claim

10  against him or her; furnish the Department of Health a copy of

11  a timely filed notice of appeal; furnish the Department of

12  Health a copy of a supersedeas bond properly posted in the

13  amount required by law; or furnish the Department of Health an

14  order from a court of competent jurisdiction staying execution

15  on the final judgment pending disposition of the appeal.

16         3.  Upon the next meeting of the probable cause panel

17  of the board following 30 days after the date of mailing the

18  notice of disciplinary action to the licensee, the panel shall

19  make a determination of whether probable cause exists to take

20  disciplinary action against the licensee pursuant to

21  subparagraph 1.

22         4.  If the board determines that the factual

23  requirements of subparagraph 1. are met, it shall take

24  disciplinary action as it deems appropriate against the

25  licensee. Such disciplinary action shall include, at a

26  minimum, probation of the license with the restriction that

27  the licensee must make payments to the judgment creditor on a

28  schedule determined by the board to be reasonable and within

29  the financial capability of the osteopathic physician.

30  Notwithstanding any other disciplinary penalty imposed, the

31  disciplinary penalty may include suspension of the license for


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 1  a period not to exceed 5 years.  In the event that an

 2  agreement to satisfy a judgment has been met, the board shall

 3  remove any restriction on the license.

 4         5.  The licensee has completed a form supplying

 5  necessary information as required by the department.

 6  

 7  A licensee who meets the requirements of this paragraph shall

 8  be required either to post notice in the form of a sign

 9  prominently displayed in the reception area and clearly

10  noticeable by all patients or to provide a written statement

11  to any person to whom medical services are being provided.

12  Such sign or statement shall state: "Under Florida law,

13  osteopathic physicians are generally required to carry medical

14  malpractice insurance or otherwise demonstrate financial

15  responsibility to cover potential claims for medical

16  malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO

17  CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under

18  Florida law subject to certain conditions.  Florida law

19  imposes strict penalties against noninsured osteopathic

20  physicians who fail to satisfy adverse judgments arising from

21  claims of medical malpractice. This notice is provided

22  pursuant to Florida law."

23         (6)  Any deceptive, untrue, or fraudulent

24  representation by the licensee with respect to any provision

25  of this section shall result in permanent disqualification

26  from any exemption to mandated financial responsibility as

27  provided in this section and shall constitute grounds for

28  disciplinary action under s. 459.015.

29         (7)  Any licensee who relies on any exemption from the

30  financial responsibility requirement shall notify the

31  department in writing of any change of circumstance regarding


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 1  his or her qualifications for such exemption and shall

 2  demonstrate that he or she is in compliance with the

 3  requirements of this section.

 4         (8)  If a physician is either a resident physician,

 5  assistant resident physician, or intern in an approved

 6  postgraduate training program, as defined by the board's

 7  rules, and is supervised by a physician who is participating

 8  in the Florida Birth-Related Neurological Injury Compensation

 9  Plan, such resident physician, assistant resident physician,

10  or intern is deemed to be a participating physician without

11  the payment of the assessment set forth in s. 766.314(4).

12         (9)  Notwithstanding any other provision of this

13  section, the department shall suspend the license of any

14  osteopathic physician against whom has been entered a final

15  judgment, arbitration award, or other order or who has entered

16  into a settlement agreement to pay damages arising out of a

17  claim for medical malpractice, if all appellate remedies have

18  been exhausted and payment up to the amounts required by this

19  section has not been made within 30 days after the entering of

20  such judgment, award, or order or agreement, until proof of

21  payment is received by the department or a payment schedule

22  has been agreed upon by the osteopathic physician and the

23  claimant and presented to the department. This subsection does

24  not apply to an osteopathic physician who has met the

25  financial responsibility requirements in paragraphs (1)(b) and

26  (2)(b).

27         (10)(9)  The board shall adopt rules to implement the

28  provisions of this section.

29         Section 25.  Paragraph (t) of subsection (1) and

30  subsection (6) of section 458.331, Florida Statutes, are

31  amended to read:


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 1         458.331  Grounds for disciplinary action; action by the

 2  board and department.--

 3         (1)  The following acts constitute grounds for denial

 4  of a license or disciplinary action, as specified in s.

 5  456.072(2):

 6         (t)  Gross or repeated malpractice or the failure to

 7  practice medicine with that level of care, skill, and

 8  treatment which is recognized by a reasonably prudent similar

 9  physician as being acceptable under similar conditions and

10  circumstances.  The board shall give great weight to the

11  provisions of s. 766.102 when enforcing this paragraph.  As

12  used in this paragraph, "repeated malpractice" includes, but

13  is not limited to, three or more claims for medical

14  malpractice within the previous 5-year period resulting in

15  indemnities being paid in excess of $50,000 $25,000 each to

16  the claimant in a judgment or settlement and which incidents

17  involved negligent conduct by the physician. As used in this

18  paragraph, "gross malpractice" or "the failure to practice

19  medicine with that level of care, skill, and treatment which

20  is recognized by a reasonably prudent similar physician as

21  being acceptable under similar conditions and circumstances,"

22  shall not be construed so as to require more than one

23  instance, event, or act.  Nothing in this paragraph shall be

24  construed to require that a physician be incompetent to

25  practice medicine in order to be disciplined pursuant to this

26  paragraph. A recommended order by an administrative law judge

27  or a final order of the board finding a violation under this

28  paragraph shall specify whether the licensee was found to have

29  committed "gross malpractice," "repeated malpractice," or

30  "failure to practice medicine with that level of care, skill,

31  and treatment which is recognized as being acceptable under


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 1  similar conditions and circumstances," or any combination

 2  thereof, and any publication by the board must so specify.

 3         (6)  Upon the department's receipt from an insurer or

 4  self-insurer of a report of a closed claim against a physician

 5  pursuant to s. 627.912 or from a health care practitioner of a

 6  report pursuant to s. 456.049, or upon the receipt from a

 7  claimant of a presuit notice against a physician pursuant to

 8  s. 766.106, the department shall review each report and

 9  determine whether it potentially involved conduct by a

10  licensee that is subject to disciplinary action, in which case

11  the provisions of s. 456.073 shall apply. However, if it is

12  reported that a physician has had three or more claims with

13  indemnities exceeding $50,000 $25,000 each within the previous

14  5-year period, the department shall investigate the

15  occurrences upon which the claims were based and determine if

16  action by the department against the physician is warranted.

17         Section 26.  Section 458.3311, Florida Statutes, is

18  created to read:

19         458.3311  Emergency procedures for disciplinary

20  action.--Notwithstanding any other provision of law to the

21  contrary, no later than 30 days after a third report of a

22  professional liability claim against a licensed physician has

23  been submitted, within a 60-month period, as required by ss.

24  456.049 and 627.912, the Department of Health shall initiate

25  an emergency investigation and the Board of Medicine shall

26  conduct an emergency probable cause hearing to determine

27  whether the physician should be disciplined for a violation of

28  s. 458.331(1)(t) or any other relevant provision of law.

29         Section 27.  Paragraph (x) of subsection (1) and

30  subsection (6) of section 459.015, Florida Statutes, are

31  amended to read:


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 1         459.015  Grounds for disciplinary action; action by the

 2  board and department.--

 3         (1)  The following acts constitute grounds for denial

 4  of a license or disciplinary action, as specified in s.

 5  456.072(2):

 6         (x)  Gross or repeated malpractice or the failure to

 7  practice osteopathic medicine with that level of care, skill,

 8  and treatment which is recognized by a reasonably prudent

 9  similar osteopathic physician as being acceptable under

10  similar conditions and circumstances. The board shall give

11  great weight to the provisions of s. 766.102 when enforcing

12  this paragraph. As used in this paragraph, "repeated

13  malpractice" includes, but is not limited to, three or more

14  claims for medical malpractice within the previous 5-year

15  period resulting in indemnities being paid in excess of

16  $50,000 $25,000 each to the claimant in a judgment or

17  settlement and which incidents involved negligent conduct by

18  the osteopathic physician. As used in this paragraph, "gross

19  malpractice" or "the failure to practice osteopathic medicine

20  with that level of care, skill, and treatment which is

21  recognized by a reasonably prudent similar osteopathic

22  physician as being acceptable under similar conditions and

23  circumstances" shall not be construed so as to require more

24  than one instance, event, or act. Nothing in this paragraph

25  shall be construed to require that an osteopathic physician be

26  incompetent to practice osteopathic medicine in order to be

27  disciplined pursuant to this paragraph.  A recommended order

28  by an administrative law judge or a final order of the board

29  finding a violation under this paragraph shall specify whether

30  the licensee was found to have committed "gross malpractice,"

31  "repeated malpractice," or "failure to practice osteopathic


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    CS for SB 2-D                            First Engrossed (ntc)



 1  medicine with that level of care, skill, and treatment which

 2  is recognized as being acceptable under similar conditions and

 3  circumstances," or any combination thereof, and any

 4  publication by the board shall so specify.

 5         (6)  Upon the department's receipt from an insurer or

 6  self-insurer of a report of a closed claim against an

 7  osteopathic physician pursuant to s. 627.912 or from a health

 8  care practitioner of a report pursuant to s. 456.049, or upon

 9  the receipt from a claimant of a presuit notice against an

10  osteopathic physician pursuant to s. 766.106, the department

11  shall review each report and determine whether it potentially

12  involved conduct by a licensee that is subject to disciplinary

13  action, in which case the provisions of s. 456.073 shall

14  apply.  However, if it is reported that an osteopathic

15  physician has had three or more claims with indemnities

16  exceeding $50,000 $25,000 each within the previous 5-year

17  period, the department shall investigate the occurrences upon

18  which the claims were based and determine if action by the

19  department against the osteopathic physician is warranted.

20         Section 28.  Section 459.0151, Florida Statutes, is

21  created to read:

22         459.0151  Emergency procedures for disciplinary

23  action.--Notwithstanding any other provision of law to the

24  contrary, no later than 30 days after a third report of a

25  professional liability claim against a licensed osteopathic

26  physician has been submitted, within a 60-month period, as

27  required by ss. 456.049 and 627.912, the Department of Health

28  shall initiate an emergency investigation and the Board of

29  Osteopathic Medicine shall conduct an emergency probable cause

30  hearing to determine whether the physician should be

31  


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 1  disciplined for a violation of s. 459.015(1)(x) or any other

 2  relevant provision of law.

 3         Section 29.  Paragraph (s) of subsection (1) and

 4  paragraph (a) of subsection (5) of section 461.013, Florida

 5  Statutes, are amended to read:

 6         461.013  Grounds for disciplinary action; action by the

 7  board; investigations by department.--

 8         (1)  The following acts constitute grounds for denial

 9  of a license or disciplinary action, as specified in s.

10  456.072(2):

11         (s)  Gross or repeated malpractice or the failure to

12  practice podiatric medicine at a level of care, skill, and

13  treatment which is recognized by a reasonably prudent

14  podiatric physician as being acceptable under similar

15  conditions and circumstances.  The board shall give great

16  weight to the standards for malpractice in s. 766.102 in

17  interpreting this section. As used in this paragraph,

18  "repeated malpractice" includes, but is not limited to, three

19  or more claims for medical malpractice within the previous

20  5-year period resulting in indemnities being paid in excess of

21  $50,000 $10,000 each to the claimant in a judgment or

22  settlement and which incidents involved negligent conduct by

23  the podiatric physicians. As used in this paragraph, "gross

24  malpractice" or "the failure to practice podiatric medicine

25  with the level of care, skill, and treatment which is

26  recognized by a reasonably prudent similar podiatric physician

27  as being acceptable under similar conditions and

28  circumstances" shall not be construed so as to require more

29  than one instance, event, or act. A recommended order by an

30  administrative law judge or a final order of the board finding

31  a violation under this paragraph shall specify whether the


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 1  licensee was found to have committed "gross malpractice,"

 2  "repeated malpractice," or "failure to practice podiatric

 3  medicine with that level of care, skill, and treatment which

 4  is recognized as being acceptable under similar conditions and

 5  circumstances," or any combination thereof, and any

 6  publication by the board must so specify.

 7         (5)(a)  Upon the department's receipt from an insurer

 8  or self-insurer of a report of a closed claim against a

 9  podiatric physician pursuant to s. 627.912, or upon the

10  receipt from a claimant of a presuit notice against a

11  podiatric physician pursuant to s. 766.106, the department

12  shall review each report and determine whether it potentially

13  involved conduct by a licensee that is subject to disciplinary

14  action, in which case the provisions of s. 456.073 shall

15  apply. However, if it is reported that a podiatric physician

16  has had three or more claims with indemnities exceeding

17  $50,000 $25,000 each within the previous 5-year period, the

18  department shall investigate the occurrences upon which the

19  claims were based and determine if action by the department

20  against the podiatric physician is warranted.

21         Section 30.  Section 461.0131, Florida Statutes, is

22  created to read:

23         461.0131  Emergency procedures for disciplinary

24  action.--Notwithstanding any other provision of law to the

25  contrary, no later than 30 days after a third report of a

26  professional liability claim against a licensed podiatric

27  physician has been submitted, within a 60-month period, as

28  required by ss. 456.049 and 627.912, the Department of Health

29  shall initiate an emergency investigation and the Board of

30  Podiatric Medicine shall conduct an emergency probable cause

31  hearing to determine whether the physician should be


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 1  disciplined for a violation of s. 461.013(1)(s) or any other

 2  relevant provision of law.

 3         Section 31.  Paragraph (x) of subsection (1) of section

 4  466.028, Florida Statutes, is amended to read:

 5         466.028  Grounds for disciplinary action; action by the

 6  board.--

 7         (1)  The following acts constitute grounds for denial

 8  of a license or disciplinary action, as specified in s.

 9  456.072(2):

10         (x)  Being guilty of incompetence or negligence by

11  failing to meet the minimum standards of performance in

12  diagnosis and treatment when measured against generally

13  prevailing peer performance, including, but not limited to,

14  the undertaking of diagnosis and treatment for which the

15  dentist is not qualified by training or experience or being

16  guilty of dental malpractice. For purposes of this paragraph,

17  it shall be legally presumed that a dentist is not guilty of

18  incompetence or negligence by declining to treat an individual

19  if, in the dentist's professional judgment, the dentist or a

20  member of her or his clinical staff is not qualified by

21  training and experience, or the dentist's treatment facility

22  is not clinically satisfactory or properly equipped to treat

23  the unique characteristics and health status of the dental

24  patient, provided the dentist refers the patient to a

25  qualified dentist or facility for appropriate treatment.  As

26  used in this paragraph, "dental malpractice" includes, but is

27  not limited to, three or more claims within the previous

28  5-year period which resulted in indemnity being paid, or any

29  single indemnity paid in excess of $25,000 $5,000 in a

30  judgment or settlement, as a result of negligent conduct on

31  the part of the dentist.


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 1         Section 32.  The Division of Administrative Hearings

 2  shall designate at least two administrative law judges who

 3  shall specifically preside over actions involving the

 4  Department of Health or boards within the Department of

 5  Health. Each designated administrative law judge must be a

 6  member of The Florida Bar in good standing and must have

 7  legal, managerial, or clinical experience in issues related to

 8  health care or have attained board certification in health

 9  care law from The Florida Bar.

10         Section 33.  Section 1004.08, Florida Statutes, is

11  created to read:

12         1004.08  Patient safety instructional

13  requirements.--Each public school, college, and university

14  that offers degrees in medicine, nursing, or allied health

15  shall include in the curricula applicable to such degrees

16  material on patient safety, including patient safety

17  improvement. Materials shall include, but need not be limited

18  to, effective communication and teamwork; epidemiology of

19  patient injuries and medical errors; medical injuries;

20  vigilance, attention, and fatigue; checklists and inspections;

21  automation, technological, and computer support; psychological

22  factors in human error; and reporting systems.

23         Section 34.  Section 1005.07, Florida Statutes, is

24  created to read:

25         1005.07  Patient safety instructional

26  requirements.--Each private school, college, and university

27  that offers degrees in medicine, nursing, and allied health

28  shall include in the curricula applicable to such degrees

29  material on patient safety, including patient safety

30  improvement. Materials shall include, but need not be limited

31  to, effective communication and teamwork; epidemiology of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  patient injuries and medical errors; medical injuries;

 2  vigilance, attention, and fatigue; checklists and inspections;

 3  automation, technological, and computer support; psychological

 4  factors in human error; and reporting systems.

 5         Section 35.  (1)  The Agency for Health Care

 6  Administration shall conduct or contract for a study to

 7  determine what information is most feasible to provide to the

 8  public comparing state-licensed hospitals on certain inpatient

 9  quality indicators developed by the federal Agency for

10  Healthcare Research and Quality. Such indicators shall be

11  designed to identify information about specific procedures

12  performed in hospitals for which there is strong evidence of a

13  link to quality of care. The Agency for Health Care

14  Administration or the study contractor shall refer to the

15  hospital quality reports published in New York and Texas as

16  guides during the evaluation.

17         (2)  The following concepts shall be specifically

18  addressed in the study report:

19         (a)  Whether hospital discharge data about services can

20  be translated into understandable and meaningful information

21  for the public.

22         (b)  Whether the following measures are useful consumer

23  guides relating to care provided in state-licensed hospitals:

24         1.  Inpatient mortality for medical conditions;

25         2.  Inpatient mortality for procedures;

26         3.  Utilization of procedures for which there are

27  questions of overuse, underuse, or misuse; and

28         4.  Volume of procedures for which there is evidence

29  that a higher volume of procedures is associated with lower

30  mortality.

31  


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 1         (c)  Whether there are quality indicators that are

 2  particularly useful relative to the state's unique

 3  demographics.

 4         (d)  Whether all hospitals should be included in the

 5  comparison.

 6         (e)  The criteria for comparison.

 7         (f)  Whether comparisons are best within metropolitan

 8  statistical areas or some other geographic configuration.

 9         (g)  Identification of several websites to which such a

10  report should be published to achieve the broadest

11  dissemination of the information.

12         (3)  The Agency for Health Care Administration shall

13  consider the input of all interested parties, including

14  hospitals, physicians, consumer organizations, and patients,

15  and submit the final report to the Governor and the presiding

16  officers of the Legislature by January 1, 2004.

17         Section 36.  Comprehensive study and report on the

18  establishment of a Patient Safety Authority.--

19         (1)  The Agency for Health Care Administration, in

20  consultation with the Department of Health and existing

21  patient safety centers in the state universities, is directed

22  to study the implementation requirements of establishing a

23  statewide Patient Safety Authority. The authority would be

24  responsible for performing activities and functions designed

25  to improve patient safety and the quality of care delivered by

26  health care facilities and health care practitioners.

27         (2)  In undertaking the study, the agency shall examine

28  and evaluate a Patient Safety Authority that would, either

29  directly, by contract, or through a consortium of

30  university-based patient safety centers:

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (a)  Analyze patient safety data and quality and

 2  patient safety indicators, including information concerning

 3  adverse incidents reported to the Agency for Health Care

 4  Administration pursuant to section 395.0197, Florida Statutes,

 5  for the purpose of recommending changes in practices and

 6  procedures which may be implemented by health care

 7  practitioners and health care facilities to improve health

 8  care quality and prevent future adverse incidents.

 9         (b)  Collect, analyze, and evaluate patient safety data

10  submitted voluntarily by a health care practitioner or health

11  care facility. The authority would communicate to health care

12  practitioners and health care facilities changes in practices

13  and procedures which may be implemented for the purpose of

14  improving patient safety and preventing future patient safety

15  events from resulting in serious injury or death.

16         (c)  Foster the development of a statewide electronic

17  infrastructure that may be implemented in phases over a

18  multiyear period and that is designed to improve patient care

19  and the delivery and quality of health care services by health

20  care facilities and practitioners. The electronic

21  infrastructure shall be a secure platform for communication

22  and the sharing of clinical and other data, such as business

23  data, among providers and between patients and providers. The

24  electronic infrastructure would include a core electronic

25  medical record. Health care providers shall have access to

26  individual electronic medical records, subject to the consent

27  of the individual. The right, if any, of other entities,

28  including health insurers and researchers, to access the

29  records must be examined and evaluated by the agency.

30         (d)  As a statewide goal of reducing the occurrence of

31  medication errors, inventory hospitals to determine the


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    CS for SB 2-D                            First Engrossed (ntc)



 1  current status of implementation of computerized physician

 2  order entry systems, barcode point of care systems, or other

 3  technological patient safety systems and recommend a plan for

 4  expediting implementation statewide or, in hospitals where the

 5  agency determines that implementation of such systems is not

 6  practicable, alternative methods to reduce medication errors.

 7  The agency shall identify in its plan any barriers to

 8  statewide implementation and shall include recommendations to

 9  the Legislature of statutory changes that may be necessary to

10  eliminate those barriers.

11         (e)  Identify best practices and share this information

12  with health care providers.

13         (f)  Assess the patient safety culture at volunteering

14  hospitals and recommend methods to improve the working

15  environment as it relates to patient safety at these

16  hospitals.

17         (g)  Develop core competencies in patient safety that

18  can be incorporated into the curriculums in Florida's schools

19  of medicine, nursing, and allied health.

20         (h)  Provide continuing medical education regarding

21  patient safety to practicing physicians, nurses, and other

22  health care providers.

23         (i)  Engage in other activities that improve health

24  care quality, improve the diagnosis and treatment of diseases

25  and medical conditions, increase the efficiency of the

26  delivery of health care services, increase administrative

27  efficiency, and increase access to quality health care

28  services.

29         (3)  The agency shall also consider ways in which a

30  Patient Safety Authority could facilitate the development of

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  no-fault demonstration projects as a means of reducing and

 2  preventing medical errors and promoting patient safety.

 3         (4)  The agency shall seek information and advice from

 4  and consult with hospitals, physicians, other health care

 5  providers, attorneys, consumers, and individuals involved with

 6  and knowledgeable about patient safety and quality-of-care

 7  initiatives.

 8         (5)  In evaluating the operation of a Patient Safety

 9  Authority, the agency shall determine the costs of

10  implementing and administering an authority and suggest

11  funding sources and mechanisms. At a minimum, the entity

12  should:

13         1.  Be designed and operated by an individual or entity

14  with demonstrated expertise in health care quality data and

15  systems analysis, health information management, systems

16  thinking and analysis, human factors analysis, and

17  identification of latent and active errors.

18         2.  Include procedures for ensuring its

19  confidentiality, timeliness, and independence.

20         (6)  The agency shall complete its study and issue a

21  report to the Legislature by February 1, 2004. In its report,

22  the agency shall include specific findings, recommendations,

23  and proposed legislation.

24         Section 37.  The Office of Program Policy Analysis and

25  Government Accountability and the Office of the Auditor

26  General must jointly conduct an audit of the Department of

27  Health's health care practitioner disciplinary process and

28  closed claims that are filed with the department under section

29  627.912, Florida Statutes. The Office of Program Policy

30  Analysis and Government Accountability and the Office of the

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  Auditor General shall submit a report to the Legislature by

 2  January 1, 2005.

 3         Section 38.  No later than September 1, 2003, the

 4  Department of Health shall convene a workgroup to study the

 5  current healthcare practitioner disciplinary process. The

 6  workgroup shall include a representative of the Administrative

 7  Law section of The Florida Bar, a representative of the Health

 8  Law section of The Florida Bar, a representative of the

 9  Florida Medical Association, a representative of the Florida

10  Osteopathic Medical Association, a representative of the

11  Florida Dental Association, a member of the Florida Board of

12  Medicine who has served on the probable cause panel, a member

13  of the Board of Osteopathic Medicine who has served on the

14  probable cause panel, and a member of the Board of Dentistry

15  who has served on the probable cause panel. The workgroup

16  shall also include one consumer member of the Board of

17  Medicine. The Department of Health shall present the findings

18  and recommendations to the Governor, the President of the

19  Senate, and the Speaker of the House of Representatives no

20  later than January 1, 2004. Each sponsoring organization shall

21  assume the costs of its representative.

22         Section 39.  Subsections (2) and (3) of section

23  624.462, Florida Statutes, are amended to read:

24         624.462  Commercial self-insurance funds.--

25         (2)  As used in ss. 624.460-624.488, "commercial

26  self-insurance fund" or "fund" means a group of members,

27  operating individually and collectively through a trust or

28  corporation, that must be:

29         (a)  Established by:

30         1.  A not-for-profit trade association, industry

31  association, or professional association of employers or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  professionals which has a constitution or bylaws, which is

 2  incorporated under the laws of this state, and which has been

 3  organized for purposes other than that of obtaining or

 4  providing insurance and operated in good faith for a

 5  continuous period of 1 year;

 6         2.  A self-insurance trust fund organized pursuant to

 7  s. 627.357 and maintained in good faith for a continuous

 8  period of 1 year for purposes other than that of obtaining or

 9  providing insurance pursuant to this section.  Each member of

10  a commercial self-insurance trust fund established pursuant to

11  this subsection must maintain membership in the self-insurance

12  trust fund organized pursuant to s. 627.357; or

13         3.  A group of 10 or more health care providers, as

14  defined in s. 627.351(4)(h), for purposes of providing medical

15  malpractice coverage; or

16         4.3.  A not-for-profit group comprised of no less than

17  10 condominium associations as defined in s. 718.103(2), which

18  is incorporated under the laws of this state, which restricts

19  its membership to condominium associations only, and which has

20  been organized and maintained in good faith for a continuous

21  period of 1 year for purposes other than that of obtaining or

22  providing insurance.

23         (b)1.  In the case of funds established pursuant to

24  subparagraph (a)2. or subparagraph (a)4. subparagraph (a)3.,

25  operated pursuant to a trust agreement by a board of trustees

26  which shall have complete fiscal control over the fund and

27  which shall be responsible for all operations of the fund.

28  The majority of the trustees shall be owners, partners,

29  officers, directors, or employees of one or more members of

30  the fund.  The trustees shall have the authority to approve

31  applications of members for participation in the fund and to


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    CS for SB 2-D                            First Engrossed (ntc)



 1  contract with an authorized administrator or servicing company

 2  to administer the day-to-day affairs of the fund.

 3         2.  In the case of funds established pursuant to

 4  subparagraph (a)1. or subparagraph (a)3., operated pursuant to

 5  a trust agreement by a board of trustees or as a corporation

 6  by a board of directors which board shall:

 7         a.  Be responsible to members of the fund or

 8  beneficiaries of the trust or policyholders of the

 9  corporation;

10         b.  Appoint independent certified public accountants,

11  legal counsel, actuaries, and investment advisers as needed;

12         c.  Approve payment of dividends to members;

13         d.  Approve changes in corporate structure; and

14         e.  Have the authority to contract with an

15  administrator authorized under s. 626.88 to administer the

16  day-to-day affairs of the fund including, but not limited to,

17  marketing, underwriting, billing, collection, claims

18  administration, safety and loss prevention, reinsurance,

19  policy issuance, accounting, regulatory reporting, and general

20  administration.  The fees or compensation for services under

21  such contract shall be comparable to the costs for similar

22  services incurred by insurers writing the same lines of

23  insurance, or where available such expenses as filed by

24  boards, bureaus, and associations designated by insurers to

25  file such data. A majority of the trustees or directors shall

26  be owners, partners, officers, directors, or employees of one

27  or more members of the fund.

28         (3)  Each member of a commercial self-insurance trust

29  fund established pursuant to this section, except a fund

30  established pursuant to subparagraph (2)(a)3., must maintain

31  membership in the association or self-insurance trust fund


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    CS for SB 2-D                            First Engrossed (ntc)



 1  established under s. 627.357. Membership in a not-for-profit

 2  trade association, industry association, or professional

 3  association of employers or professionals for the purpose of

 4  obtaining or providing insurance shall be in accordance with

 5  the constitution or bylaws of the association, and the dues,

 6  fees, or other costs of membership shall not be different for

 7  members obtaining insurance from the commercial self-insurance

 8  fund.  The association shall not be liable for any actions of

 9  the fund nor shall it have any responsibility for establishing

10  or enforcing any policy of the commercial self-insurance fund.

11  Fees, services, and other aspects of the relationship between

12  the association and the fund shall be subject to contractual

13  agreement.

14         Section 40.  Paragraph (a) of subsection (6) of section

15  627.062, Florida Statutes, as amended by section 1064 of

16  chapter 2003-261, Laws of Florida, is amended, and subsections

17  (7) and (8) are added to that section, to read:

18         627.062  Rate standards.--

19         (6)(a)  After any action with respect to a rate filing

20  that constitutes agency action for purposes of the

21  Administrative Procedure Act, except for a rate filing for

22  medical malpractice, an insurer may, in lieu of demanding a

23  hearing under s. 120.57, require arbitration of the rate

24  filing. Arbitration shall be conducted by a board of

25  arbitrators consisting of an arbitrator selected by the

26  department, an arbitrator selected by the insurer, and an

27  arbitrator selected jointly by the other two arbitrators. Each

28  arbitrator must be certified by the American Arbitration

29  Association. A decision is valid only upon the affirmative

30  vote of at least two of the arbitrators. No arbitrator may be

31  an employee of any insurance regulator or regulatory body or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  of any insurer, regardless of whether or not the employing

 2  insurer does business in this state. The department and the

 3  insurer must treat the decision of the arbitrators as the

 4  final approval of a rate filing. Costs of arbitration shall be

 5  paid by the insurer.

 6         (7)(a)  The provisions of this subsection apply only

 7  with respect to rates for medical malpractice insurance and

 8  shall control to the extent of any conflict with other

 9  provisions of this section.

10         (b)  Any portion of a judgment entered or settlement

11  paid as a result of a statutory or common law, bad-faith

12  action and any portion of a judgment entered which awards

13  punitive damages against an insurer may not be included in the

14  insurer's rate base, and shall not be used to justify a rate

15  or rate change. Any common law bad-faith action identified as

16  such, any portion of a settlement entered as a result of a

17  statutory or common law action, or any portion of a settlement

18  wherein an insurer agrees to pay specific punitive damages may

19  not be used to justify a rate or rate change. The portion of

20  the taxable costs and attorney's fees which is identified as

21  being related to the bad faith and punitive damages in these

22  judgments and settlements may not be included in the insurer's

23  rate base and may not be utilized to justify a rate or rate

24  change.

25         (c)  Upon reviewing a rate filing and determining

26  whether the rate is excessive, inadequate, or unfairly

27  discriminatory, the office shall consider, in accordance with

28  generally accepted and reasonable actuarial techniques, past

29  and present prospective loss experience, either using loss

30  experience solely for this state or giving greater credibility

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  to this state's loss data after applying actuarially sound

 2  methods of assigning credibility to such data.

 3         (d)  Rates shall be deemed excessive if, among other

 4  standards established by this section, the rate structure

 5  provides for replenishment of reserves or surpluses from

 6  premiums when the replenishment is attributable to investment

 7  losses.

 8         (e)  The insurer must apply a discount or surcharge

 9  based on the health care provider's loss experience or shall

10  establish an alternative method giving due consideration to

11  the provider's loss experience. The insurer must include in

12  the filing a copy of the surcharge or discount schedule or a

13  description of the alternative method used, and must provide a

14  copy of such schedule or description, as approved by the

15  office, to policyholders at the time of renewal and to

16  prospective policyholders at the time of application for

17  coverage.

18         (f)  Each medical malpractice insurer must make a rate

19  filing under this section, sworn to by at least two executive

20  officers of the insurer, at least once each calendar year.

21         (8)(a)1.  No later than 60 days after the effective

22  date of medical malpractice legislation enacted during the

23  2003 Special Session D of the Florida Legislature, the office

24  shall calculate a presumed factor that reflects the impact

25  that the changes contained in such legislation will have on

26  rates for medical malpractice insurance and shall issue a

27  notice informing all insurers writing medical malpractice

28  coverage of such presumed factor. In determining the presumed

29  factor, the office shall use generally accepted actuarial

30  techniques and standards provided in this section in

31  determining the expected impact on losses, expenses, and


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    CS for SB 2-D                            First Engrossed (ntc)



 1  investment income of the insurer. To the extent that the

 2  operation of a provision of medical malpractice legislation

 3  enacted during the 2003 Special Session D of the Florida

 4  Legislature is stayed pending a constitutional challenge, the

 5  impact of that provision shall not be included in the

 6  calculation of a presumed factor under this subparagraph.

 7         2.  No later than 60 days after the office issues its

 8  notice of the presumed rate change factor under subparagraph

 9  1., each insurer writing medical malpractice coverage in this

10  state shall submit to the office a rate filing for medical

11  malpractice insurance, which will take effect no later than

12  January 1, 2004, and apply retroactively to policies issued or

13  renewed on or after the effective date of medical malpractice

14  legislation enacted during the 2003 Special Session D of the

15  Florida Legislature. Except as authorized under paragraph (b),

16  the filing shall reflect an overall rate reduction at least as

17  great as the presumed factor determined under subparagraph 1.

18  With respect to policies issued on or after the effective date

19  of such legislation and prior to the effective date of the

20  rate filing required by this subsection, the office shall

21  order the insurer to make a refund of the amount that was

22  charged in excess of the rate that is approved.

23         (b)  Any insurer or rating organization that contends

24  that the rate provided for in paragraph (a) is excessive,

25  inadequate, or unfairly discriminatory shall separately state

26  in its filing the rate it contends is appropriate and shall

27  state with specificity the factors or data that it contends

28  should be considered in order to produce such appropriate

29  rate. The insurer or rating organization shall be permitted to

30  use all of the generally accepted actuarial techniques

31  provided in this section in making any filing pursuant to this


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    CS for SB 2-D                            First Engrossed (ntc)



 1  subsection. The office shall review each such exception and

 2  approve or disapprove it prior to use. It shall be the

 3  insurer's burden to actuarially justify any deviations from

 4  the rates required to be filed under paragraph (a). The

 5  insurer making a filing under this paragraph shall include in

 6  the filing the expected impact of medical malpractice

 7  legislation enacted during the 2003 Special Session D of the

 8  Florida Legislature on losses, expenses, and rates.

 9         (c)  If any provision of medical malpractice

10  legislation enacted during the 2003 Special Session D of the

11  Florida Legislature is held invalid by a court of competent

12  jurisdiction, the office shall permit an adjustment of all

13  medical malpractice rates filed under this section to reflect

14  the impact of such holding on such rates so as to ensure that

15  the rates are not excessive, inadequate, or unfairly

16  discriminatory.

17         (d)  Rates approved on or before July 1, 2003, for

18  medical malpractice insurance shall remain in effect until the

19  effective date of a new rate filing approved under this

20  subsection.

21         (e)  The calculation and notice by the office of the

22  presumed factor pursuant to paragraph (a) is not an order or

23  rule that is subject to chapter 120. If the office enters into

24  a contract with an independent consultant to assist the office

25  in calculating the presumed factor, such contract shall not be

26  subject to the competitive solicitation requirements of s.

27  287.057.

28         Section 41.  The Office of Program Policy Analysis and

29  Government Accountability shall study the feasibility and

30  merits of authorizing the Public Counsel to examine insurance

31  rate filings for medical malpractice submitted to the Office


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    CS for SB 2-D                            First Engrossed (ntc)



 1  of Insurance Regulation, to make recommendations to the office

 2  regarding such rate filings, and to represent the public in

 3  any hearing related to such rate filings. The study must

 4  include an evaluation of the effectiveness of the current

 5  authority of the Office of the Insurance Consumer Advocate to

 6  perform such functions and comparable functions exercised in

 7  other states.

 8         Section 42.  Subsections (6) and (10) of section

 9  627.357, Florida Statutes, as amended by section 1107 of

10  chapter 2003-261, Laws of Florida, are amended to read:

11         627.357  Medical malpractice self-insurance.--

12         (6)  The commission shall adopt rules to implement this

13  section, including rules that ensure that a trust fund remains

14  solvent and maintains a sufficient reserve to cover contingent

15  liabilities under subsection (7) in the event of its

16  dissolution.

17         (10)  A self-insurance fund may not be formed under

18  this section after October 1, 1992.

19         Section 43.  Effective October 1, 2003, section

20  627.4147, Florida Statutes, is amended to read:

21         627.4147  Medical malpractice insurance contracts.--

22         (1)  In addition to any other requirements imposed by

23  law, each self-insurance policy as authorized under s. 627.357

24  or s. 624.462 or insurance policy providing coverage for

25  claims arising out of the rendering of, or the failure to

26  render, medical care or services, including those of the

27  Florida Medical Malpractice Joint Underwriting Association,

28  shall include:

29         (a)  A clause requiring the insured to cooperate fully

30  in the review process prescribed under s. 766.106 if a notice

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  of intent to file a claim for medical malpractice is made

 2  against the insured.

 3         (b)1.  Except as provided in subparagraph 2., a clause

 4  authorizing the insurer or self-insurer to determine, to make,

 5  and to conclude, without the permission of the insured, any

 6  offer of admission of liability and for arbitration pursuant

 7  to s. 766.106, settlement offer, or offer of judgment, if the

 8  offer is within the policy limits. It is against public policy

 9  for any insurance or self-insurance policy to contain a clause

10  giving the insured the exclusive right to veto any offer for

11  admission of liability and for arbitration made pursuant to s.

12  766.106, settlement offer, or offer of judgment, when such

13  offer is within the policy limits. However, any offer of

14  admission of liability, settlement offer, or offer of judgment

15  made by an insurer or self-insurer shall be made in good faith

16  and in the best interests of the insured.

17         2.a.  With respect to dentists licensed under chapter

18  466, a clause clearly stating whether or not the insured has

19  the exclusive right to veto any offer of admission of

20  liability and for arbitration pursuant to s. 766.106,

21  settlement offer, or offer of judgment if the offer is within

22  policy limits. An insurer or self-insurer shall not make or

23  conclude, without the permission of the insured, any offer of

24  admission of liability and for arbitration pursuant to s.

25  766.106, settlement offer, or offer of judgment, if such offer

26  is outside the policy limits. However, any offer for admission

27  of liability and for arbitration made under s. 766.106,

28  settlement offer, or offer of judgment made by an insurer or

29  self-insurer shall be made in good faith and in the best

30  interest of the insured.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         b.  If the policy contains a clause stating the insured

 2  does not have the exclusive right to veto any offer or

 3  admission of liability and for arbitration made pursuant to s.

 4  766.106, settlement offer or offer of judgment, the insurer or

 5  self-insurer shall provide to the insured or the insured's

 6  legal representative by certified mail, return receipt

 7  requested, a copy of the final offer of admission of liability

 8  and for arbitration made pursuant to s. 766.106, settlement

 9  offer or offer of judgment and at the same time such offer is

10  provided to the claimant. A copy of any final agreement

11  reached between the insurer and claimant shall also be

12  provided to the insurer or his or her legal representative by

13  certified mail, return receipt requested not more than 10 days

14  after affecting such agreement.

15         (c)  A clause requiring the insurer or self-insurer to

16  notify the insured no less than 90 60 days prior to the

17  effective date of cancellation of the policy or contract and,

18  in the event of a determination by the insurer or self-insurer

19  not to renew the policy or contract, to notify the insured no

20  less than 90 60 days prior to the end of the policy or

21  contract period. If cancellation or nonrenewal is due to

22  nonpayment or loss of license, 10 days' notice is required.

23         (d)  A clause requiring the insurer or self-insurer to

24  notify the insured no less than 60 days prior to the effective

25  date of a rate increase. The provisions of s. 627.4133 shall

26  apply to such notice and to the failure of the insurer to

27  provide such notice to the extent not in conflict with this

28  section.

29         (2)  Each insurer covered by this section may require

30  the insured to be a member in good standing, i.e., not subject

31  to expulsion or suspension, of a duly recognized state or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  local professional society of health care providers which

 2  maintains a medical review committee. No professional society

 3  shall expel or suspend a member solely because he or she

 4  participates in a health maintenance organization licensed

 5  under part I of chapter 641.

 6         (3)  This section shall apply to all policies issued or

 7  renewed after October 1, 2003 1985.

 8         Section 44.  Section 627.41495, Florida Statutes, is

 9  created to read:

10         627.41495  Public notice of medical malpractice rate

11  filings.--

12         (1)  Upon the filing of a proposed rate change by a

13  medical malpractice insurer or self-insurance fund, which

14  filing would result in an average statewide increase of 25

15  percent or more, pursuant to standards determined by the

16  office, the insurer or self-insurance fund shall mail notice

17  of such filing to each of its policyholders or members.

18         (2)  The rate filing shall be available for public

19  inspection.

20         Section 45.  Section 627.912, Florida Statutes, as

21  amended by section 1226 of chapter 2003-261, Laws of Florida,

22  is amended to read:

23         627.912  Professional liability claims and actions;

24  reports by insurers and health care providers; annual report

25  by office.--

26         (1)(a)  Each self-insurer authorized under s. 627.357

27  and each commercial self-insurance fund authorized under s.

28  624.462, authorized insurer, surplus lines insurer, risk

29  retention group, and or joint underwriting association

30  providing professional liability insurance to a practitioner

31  of medicine licensed under chapter 458, to a practitioner of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  osteopathic medicine licensed under chapter 459, to a

 2  podiatric physician licensed under chapter 461, to a dentist

 3  licensed under chapter 466, to a hospital licensed under

 4  chapter 395, to a crisis stabilization unit licensed under

 5  part IV of chapter 394, to a health maintenance organization

 6  certificated under part I of chapter 641, to clinics included

 7  in chapter 390, or to an ambulatory surgical center as defined

 8  in s. 395.002, and each insurer providing professional

 9  liability insurance or to a member of The Florida Bar shall

10  report in duplicate to the office any claim or action for

11  damages for personal injuries claimed to have been caused by

12  error, omission, or negligence in the performance of such

13  insured's professional services or based on a claimed

14  performance of professional services without consent, if the

15  claim resulted in:

16         1.(a)  A final judgment in any amount.

17         2.(b)  A settlement in any amount.

18         3.  A final disposition of a medical malpractice claim

19  resulting in no indemnity payment on behalf of the insured.

20         (b)  Each health care practitioner and health care

21  facility listed in paragraph (a) must report any claim or

22  action for damages as described in paragraph (a), if the claim

23  is not otherwise required to be reported by an insurer or

24  other insuring entity.

25  

26  Reports under this subsection shall be filed with the office

27  and, if the insured party is licensed under chapter 458,

28  chapter 459, chapter 461, or chapter 466, with the Department

29  of Health, no later than 30 days following the occurrence of

30  any event listed in paragraph (a) or paragraph (b). The

31  Department of Health shall review each report and determine


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    CS for SB 2-D                            First Engrossed (ntc)



 1  whether any of the incidents that resulted in the claim

 2  potentially involved conduct by the licensee that is subject

 3  to disciplinary action, in which case the provisions of s.

 4  456.073 shall apply. The Department of Health, as part of the

 5  annual report required by s. 456.026, shall publish annual

 6  statistics, without identifying licensees, on the reports it

 7  receives, including final action taken on such reports by the

 8  Department of Health or the appropriate regulatory board.

 9         (2)  The reports required by subsection (1) shall

10  contain:

11         (a)  The name, address, health care provider

12  professional license number, and specialty coverage of the

13  insured.

14         (b)  The insured's policy number.

15         (c)  The date of the occurrence which created the

16  claim.

17         (d)  The date the claim was reported to the insurer or

18  self-insurer.

19         (e)  The name and address of the injured person. This

20  information is confidential and exempt from the provisions of

21  s. 119.07(1), and must not be disclosed by the office without

22  the injured person's consent, except for disclosure by the

23  office to the Department of Health. This information may be

24  used by the office for purposes of identifying multiple or

25  duplicate claims arising out of the same occurrence.

26         (f)  The date of suit, if filed.

27         (g)  The injured person's age and sex.

28         (h)  The total number, and names, and health care

29  provider professional license numbers of all defendants

30  involved in the claim.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (i)  The date and amount of judgment or settlement, if

 2  any, including the itemization of the verdict, together with a

 3  copy of the settlement or judgment.

 4         (j)  In the case of a settlement, such information as

 5  the office may require with regard to the injured person's

 6  incurred and anticipated medical expense, wage loss, and other

 7  expenses.

 8         (k)  The loss adjustment expense paid to defense

 9  counsel, and all other allocated loss adjustment expense paid.

10         (l)  The date and reason for final disposition, if no

11  judgment or settlement.

12         (m)  A summary of the occurrence which created the

13  claim, which shall include:

14         1.  The name of the institution, if any, and the

15  location within the institution at which the injury occurred.

16         2.  The final diagnosis for which treatment was sought

17  or rendered, including the patient's actual condition.

18         3.  A description of the misdiagnosis made, if any, of

19  the patient's actual condition.

20         4.  The operation, diagnostic, or treatment procedure

21  causing the injury.

22         5.  A description of the principal injury giving rise

23  to the claim.

24         6.  The safety management steps that have been taken by

25  the insured to make similar occurrences or injuries less

26  likely in the future.

27         (n)  Any other information required by the commission,

28  by rule, office to assist the office in its analysis and

29  evaluation of analyze and evaluate the nature, causes,

30  location, cost, and damages involved in professional liability

31  cases.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (3)  Upon request by the Department of Health, The

 2  office shall provide the Department of Health with electronic

 3  access to all any information received under this section

 4  related to persons licensed under chapter 458, chapter 459,

 5  chapter 461, or chapter 466. The Department of Health shall

 6  review each report and determine whether any of the incidents

 7  that resulted in the claim potentially involved conduct by the

 8  licensee that is subject to disciplinary action, in which case

 9  the provisions of s. 456.073 shall apply. For purposes of

10  safety management, the office shall annually provide the

11  Department of Health with copies of the reports in cases

12  resulting in an indemnity being paid to the claimants.

13         (4)  There shall be no liability on the part of, and no

14  cause of action of any nature shall arise against, any person

15  or entity insurer reporting hereunder or its agents or

16  employees or the office or its employees for any action taken

17  by them under this section.  The office shall may impose a

18  fine of $250 per day per case, but not to exceed a total of

19  $10,000 $1,000 per case, against an insurer, commercial

20  self-insurance fund, medical malpractice self-insurance fund,

21  or risk retention group that violates the requirements of this

22  section, except that the office may impose a fine of $250 per

23  day per case, not to exceed a total of $1,000 per case,

24  against an insurer providing professional liability insurance

25  to a member of The Florida Bar, which insurer violates the

26  provisions of this section. If a healthcare practitioner or

27  health care facility violates the requirements of this

28  section, it shall be considered a violation of the chapter or

29  act under which the practitioner or facility is licensed and

30  shall be grounds for a fine or disciplinary action as such

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  other violations of the chapter or act. This subsection

 2  applies to claims accruing on or after October 1, 1997.

 3         (5)  Any self-insurance program established under s.

 4  1004.24 shall report in duplicate to the office any claim or

 5  action for damages for personal injuries claimed to have been

 6  caused by error, omission, or negligence in the performance of

 7  professional services provided by the state university board

 8  of trustees through an employee or agent of the state

 9  university board of trustees, including practitioners of

10  medicine licensed under chapter 458, practitioners of

11  osteopathic medicine licensed under chapter 459, podiatric

12  physicians licensed under chapter 461, and dentists licensed

13  under chapter 466, or based on a claimed performance of

14  professional services without consent if the claim resulted in

15  a final judgment in any amount, or a settlement in any amount.

16  The reports required by this subsection shall contain the

17  information required by subsection (3) and the name, address,

18  and specialty of the employee or agent of the state university

19  board of trustees whose performance or professional services

20  is alleged in the claim or action to have caused personal

21  injury.

22         (6)(a)  The office shall prepare statistical summaries

23  of the closed claims reports for medical malpractice filed

24  pursuant to this section, for each year that such reports have

25  been filed, and make such summaries and closed claim reports

26  available on the Internet by July 1, 2005.

27         (b)  The office shall prepare an annual report by

28  October 1 of each year, beginning in 2004, which shall be

29  available on the Internet, which summarizes and analyzes the

30  closed claim reports for medical malpractice filed pursuant to

31  this section and the annual financial reports filed by


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    CS for SB 2-D                            First Engrossed (ntc)



 1  insurers writing medical malpractice insurance in this state.

 2  The report must include an analysis of closed claim reports of

 3  prior years, in order to show trends in the frequency and

 4  amount of claims payments, the itemization of economic and

 5  noneconomic damages, the nature of the errant conduct, and

 6  such other information as the office determines is

 7  illustrative of the trends in closed claims. The report must

 8  also analyze the state of the medical malpractice insurance

 9  market in Florida, including an analysis of the financial

10  reports of those insurers with a combined market share of at

11  least 80 percent of the net written premium in the state for

12  medical malpractice for the prior calendar year, including a

13  loss ratio analysis for medical malpractice written in Florida

14  and a profitability analysis of each such insurer. The report

15  shall compare the ratios for medical malpractice in Florida

16  compared to other states, based on financial reports filed

17  with the National Association of Insurance Commissioners and

18  such other information as the office deems relevant.

19         (c)  The annual report shall also include a summary of

20  the rate filings for medical malpractice which have been

21  approved by the office for the prior calendar year, including

22  an analysis of the trend of direct and incurred losses as

23  compared to prior years.

24         (7)  The commission may adopt rules requiring persons

25  and entities required to report pursuant to this section to

26  also report data related to the frequency and severity of open

27  claims for the reporting period, amounts reserved for incurred

28  claims, changes in reserves from the previous reporting

29  period, and other information considered relevant to the

30  ability of the office to monitor losses and claims development

31  in the Florida medical malpractice insurance market.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         Section 46.  Subsections (11), (12), and (17) of

 2  section 641.19, Florida Statutes, as amended by section 1555

 3  of chapter 2003-261, Laws of Florida, are amended to read:

 4         641.19  Definitions.--As used in this part, the term:

 5         (11)  "Health maintenance contract" means any contract

 6  entered into by a health maintenance organization with a

 7  subscriber or group of subscribers to provide coverage for

 8  comprehensive health care services in exchange for a prepaid

 9  per capita or prepaid aggregate fixed sum.

10         (12)  "Health maintenance organization" means any

11  organization authorized under this part which:

12         (a)  Provides, through arrangements with other persons,

13  emergency care, inpatient hospital services, physician care

14  including care provided by physicians licensed under chapters

15  458, 459, 460, and 461, ambulatory diagnostic treatment, and

16  preventive health care services.;

17         (b)  Provides, either directly or through arrangements

18  with other persons, health care services to persons enrolled

19  with such organization, on a prepaid per capita or prepaid

20  aggregate fixed-sum basis.;

21         (c)  Provides, either directly or through arrangements

22  with other persons, comprehensive health care services which

23  subscribers are entitled to receive pursuant to a contract.;

24         (d)  Provides physician services, by physicians

25  licensed under chapters 458, 459, 460, and 461, directly

26  through physicians who are either employees or partners of

27  such organization or under arrangements with a physician or

28  any group of physicians.; and

29         (e)  If offering services through a managed care

30  system, has then the managed care system must be a system in

31  which a primary physician licensed under chapter 458, or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  chapter 459, chapter and chapters 460, or chapter and 461 is

 2  designated for each subscriber upon request of a subscriber

 3  requesting service by a physician licensed under any of those

 4  chapters, and is responsible for coordinating the health care

 5  of the subscriber of the respectively requested service and

 6  for referring the subscriber to other providers of the same

 7  discipline when necessary.  Each female subscriber may select

 8  as her primary physician an obstetrician/gynecologist who has

 9  agreed to serve as a primary physician and is in the health

10  maintenance organization's provider network.

11  

12  Except in cases in which the health care provider is an

13  employee of the health maintenance organization, the fact that

14  the health maintenance organization arranges for the provision

15  of health care services under this chapter does not create an

16  actual agency, apparent agency, or employer-employee

17  relationship between the health care provider and the health

18  maintenance organization for purposes of vicarious liability

19  for the medical negligence of the health care provider.

20         (17)  "Subscriber" means an entity or individual who

21  has contracted, or on whose behalf a contract has been entered

22  into, with a health maintenance organization for health care

23  coverage services or other persons who also receive health

24  care coverage services as a result of the contract.

25         Section 47.  Subsection (3) of section 641.51, Florida

26  Statutes, is amended to read:

27         641.51  Quality assurance program; second medical

28  opinion requirement.--

29         (3)  The health maintenance organization shall not have

30  the right to control the professional judgment of a physician

31  licensed under chapter 458, chapter 459, chapter 460, or


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    CS for SB 2-D                            First Engrossed (ntc)



 1  chapter 461 concerning the proper course of treatment of a

 2  subscriber shall not be subject to modification by the

 3  organization or its board of directors, officers, or

 4  administrators, unless the course of treatment prescribed is

 5  inconsistent with the prevailing standards of medical practice

 6  in the community.  However, this subsection shall not be

 7  considered to restrict a utilization management program

 8  established by an organization or to affect an organization's

 9  decision as to payment for covered services. Except in cases

10  in which the health care provider is an employee of the health

11  maintenance organization, the health maintenance organization

12  shall not be vicariously liable for the medical negligence of

13  the health care provider, whether such claim is alleged under

14  a theory of actual agency, apparent agency, or

15  employer-employee relationship.

16         Section 48.  Section 766.102, Florida Statutes, is

17  amended to read:

18         766.102  Medical negligence; standards of recovery;

19  expert witness.--

20         (1)  In any action for recovery of damages based on the

21  death or personal injury of any person in which it is alleged

22  that such death or injury resulted from the negligence of a

23  health care provider as defined in s. 766.202(4) s.

24  768.50(2)(b), the claimant shall have the burden of proving by

25  the greater weight of evidence that the alleged actions of the

26  health care provider represented a breach of the prevailing

27  professional standard of care for that health care provider.

28  The prevailing professional standard of care for a given

29  health care provider shall be that level of care, skill, and

30  treatment which, in light of all relevant surrounding

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  circumstances, is recognized as acceptable and appropriate by

 2  reasonably prudent similar health care providers.

 3         (2)(a)  If the health care provider whose negligence is

 4  claimed to have created the cause of action is not certified

 5  by the appropriate American board as being a specialist, is

 6  not trained and experienced in a medical specialty, or does

 7  not hold himself or herself out as a specialist, a "similar

 8  health care provider" is one who:

 9         1.  Is licensed by the appropriate regulatory agency of

10  this state;

11         2.  Is trained and experienced in the same discipline

12  or school of practice; and

13         3.  Practices in the same or similar medical community.

14         (b)  If the health care provider whose negligence is

15  claimed to have created the cause of action is certified by

16  the appropriate American board as a specialist, is trained and

17  experienced in a medical specialty, or holds himself or

18  herself out as a specialist, a "similar health care provider"

19  is one who:

20         1.  Is trained and experienced in the same specialty;

21  and

22         2.  Is certified by the appropriate American board in

23  the same specialty.

24  

25  However, if any health care provider described in this

26  paragraph is providing treatment or diagnosis for a condition

27  which is not within his or her specialty, a specialist trained

28  in the treatment or diagnosis for that condition shall be

29  considered a "similar health care provider."

30         (c)  The purpose of this subsection is to establish a

31  relative standard of care for various categories and


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    CS for SB 2-D                            First Engrossed (ntc)



 1  classifications of health care providers.  Any health care

 2  provider may testify as an expert in any action if he or she:

 3         1.  Is a similar health care provider pursuant to

 4  paragraph (a) or paragraph (b); or

 5         2.  Is not a similar health care provider pursuant to

 6  paragraph (a) or paragraph (b) but, to the satisfaction of the

 7  court, possesses sufficient training, experience, and

 8  knowledge as a result of practice or teaching in the specialty

 9  of the defendant or practice or teaching in a related field of

10  medicine, so as to be able to provide such expert testimony as

11  to the prevailing professional standard of care in a given

12  field of medicine.  Such training, experience, or knowledge

13  must be as a result of the active involvement in the practice

14  or teaching of medicine within the 5-year period before the

15  incident giving rise to the claim.

16         (2)(3)(a)  If the injury is claimed to have resulted

17  from the negligent affirmative medical intervention of the

18  health care provider, the claimant must, in order to prove a

19  breach of the prevailing professional standard of care, show

20  that the injury was not within the necessary or reasonably

21  foreseeable results of the surgical, medicinal, or diagnostic

22  procedure constituting the medical intervention, if the

23  intervention from which the injury is alleged to have resulted

24  was carried out in accordance with the prevailing professional

25  standard of care by a reasonably prudent similar health care

26  provider.

27         (b)  The provisions of this subsection shall apply only

28  when the medical intervention was undertaken with the informed

29  consent of the patient in compliance with the provisions of s.

30  766.103.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (3)(4)  The existence of a medical injury shall not

 2  create any inference or presumption of negligence against a

 3  health care provider, and the claimant must maintain the

 4  burden of proving that an injury was proximately caused by a

 5  breach of the prevailing professional standard of care by the

 6  health care provider. However, the discovery of the presence

 7  of a foreign body, such as a sponge, clamp, forceps, surgical

 8  needle, or other paraphernalia commonly used in surgical,

 9  examination, or diagnostic procedures, shall be prima facie

10  evidence of negligence on the part of the health care

11  provider.

12         (4)(5)  The Legislature is cognizant of the changing

13  trends and techniques for the delivery of health care in this

14  state and the discretion that is inherent in the diagnosis,

15  care, and treatment of patients by different health care

16  providers.  The failure of a health care provider to order,

17  perform, or administer supplemental diagnostic tests shall not

18  be actionable if the health care provider acted in good faith

19  and with due regard for the prevailing professional standard

20  of care.

21         (5)  A person may not give expert testimony concerning

22  the prevailing professional standard of care unless that

23  person is a licensed health care provider and meets the

24  following criteria:

25         (a)  If the health care provider against whom or on

26  whose behalf the testimony is offered is a specialist, the

27  expert witness must:

28         1.  Specialize in the same specialty as the health care

29  provider against whom or on whose behalf the testimony is

30  offered; or specialize in a similar specialty that includes

31  the evaluation, diagnosis, or treatment of the medical


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    CS for SB 2-D                            First Engrossed (ntc)



 1  condition that is the subject of the claim and have prior

 2  experience treating similar patients; and

 3         2.  Have devoted professional time during the 3 years

 4  immediately preceding the date of the occurrence that is the

 5  basis for the action to:

 6         a.  The active clinical practice of, or consulting with

 7  respect to, the same or similar specialty that includes the

 8  evaluation, diagnosis, or treatment of the medical condition

 9  that is the subject of the claim and have prior experience

10  treating similar patients;

11         b.  Instruction of students in an accredited health

12  professional school or accredited residency or clinical

13  research program in the same or similar specialty; or

14         c.  A clinical research program that is affiliated with

15  an accredited health professional school or accredited

16  residency or clinical research program in the same or similar

17  speciality.

18         (b)  If the health care provider against whom or on

19  whose behalf the testimony is offered is a general

20  practitioner, the expert witness must have devoted

21  professional time during the 5 years immediately preceding the

22  date of the occurrence that is the basis for the action to:

23         1.  The active clinical practice or consultation as a

24  general practitioner;

25         2.  The instruction of students in an accredited health

26  professional school or accredited residency program in the

27  general practice of medicine; or

28         3.  A clinical research program that is affiliated with

29  an accredited medical school or teaching hospital and that is

30  in the general practice of medicine.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (c)  If the health care provider against whom or on

 2  whose behalf the testimony is offered is a health care

 3  provider other than a specialist or a general practitioner,

 4  the expert witness must have devoted professional time during

 5  the 3 years immediately preceding the date of the occurrence

 6  that is the basis for the action to:

 7         1.  The active clinical practice of, or consulting with

 8  respect to, the same or similar health profession as the

 9  health care provider against whom or on whose behalf the

10  testimony is offered;

11         2.  The instruction of students in an accredited health

12  professional school or accredited residency program in the

13  same or similar health profession in which the health care

14  provider against whom or on whose behalf the testimony is

15  offered; or

16         3.  A clinical research program that is affiliated with

17  an accredited medical school or teaching hospital and that is

18  in the same or similar health profession as the health care

19  provider against whom or on whose behalf the testimony is

20  offered.

21         (6)  A physician licensed under chapter 458 or chapter

22  459 who qualifies as an expert witness under subsection (5)

23  and who, by reason of active clinical practice or instruction

24  of students, has knowledge of the applicable standard of care

25  for nurses, nurse practitioners, certified registered nurse

26  anesthetists, certified registered nurse midwives, physician

27  assistants, or other medical support staff may give expert

28  testimony in a medical negligence action with respect to the

29  standard of care of such medical support staff.

30         (7)  Notwithstanding subsection (5), in a medical

31  negligence action against a hospital, a health care facility,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  or medical facility, a person may give expert testimony on the

 2  appropriate standard of care as to administrative and other

 3  nonclinical issues if the person has substantial knowledge, by

 4  virtue of his or her training and experience, concerning the

 5  standard of care among hospitals, health care facilities, or

 6  medical facilities of the same type as the hospital, health

 7  care facility, or medical facility whose acts or omissions are

 8  the subject of the testimony and which are located in the same

 9  or similar communities at the time of the alleged act giving

10  rise to the cause of action.

11         (8)  If a health care provider described in subsection

12  (5), subsection (6), or subsection (7) is providing

13  evaluation, treatment, or diagnosis for a condition that is

14  not within his or her specialty, a specialist trained in the

15  evaluation, treatment, or diagnosis for that condition shall

16  be considered a similar health care provider.

17         (9)(6)(a)  In any action for damages involving a claim

18  of negligence against a physician licensed under chapter 458,

19  osteopathic physician licensed under chapter 459, podiatric

20  physician licensed under chapter 461, or chiropractic

21  physician licensed under chapter 460 providing emergency

22  medical services in a hospital emergency department, the court

23  shall admit expert medical testimony only from physicians,

24  osteopathic physicians, podiatric physicians, and chiropractic

25  physicians who have had substantial professional experience

26  within the preceding 5 years while assigned to provide

27  emergency medical services in a hospital emergency department.

28         (b)  For the purposes of this subsection:

29         1.  The term "emergency medical services" means those

30  medical services required for the immediate diagnosis and

31  treatment of medical conditions which, if not immediately


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    CS for SB 2-D                            First Engrossed (ntc)



 1  diagnosed and treated, could lead to serious physical or

 2  mental disability or death.

 3         2.  "Substantial professional experience" shall be

 4  determined by the custom and practice of the manner in which

 5  emergency medical coverage is provided in hospital emergency

 6  departments in the same or similar localities where the

 7  alleged negligence occurred.

 8         (10)  In any action alleging medical negligence, an

 9  expert witness may not testify on a contingency fee basis.

10         (11)  Any attorney who proffers a person as an expert

11  witness pursuant to this section must certify that such person

12  has not been found guilty of fraud or perjury in any

13  jurisdiction.

14         (12)  This section does not limit the power of the

15  trial court to disqualify or qualify an expert witness on

16  grounds other than the qualifications in this section.

17         Section 49.  Section 766.106, Florida Statutes, is

18  amended to read:

19         766.106  Notice before filing action for medical

20  negligence malpractice; presuit screening period; offers for

21  admission of liability and for arbitration; informal

22  discovery; review.--

23         (1)  DEFINITIONS.--As used in this section, the term:

24         (a)  "Claim for medical negligence malpractice" or

25  "claim for medical malpractice" means a claim, arising out of

26  the rendering of, or the failure to render, medical care or

27  services.

28         (b)  "Self-insurer" means any self-insurer authorized

29  under s. 627.357 or any uninsured prospective defendant.

30         (c)  "Insurer" includes the Joint Underwriting

31  Association.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (2)  PRESUIT NOTICE.--

 2         (a)  After completion of presuit investigation pursuant

 3  to s. 766.203(2) s. 766.203 and prior to filing a complaint

 4  claim for medical negligence malpractice, a claimant shall

 5  notify each prospective defendant by certified mail, return

 6  receipt requested, of intent to initiate litigation for

 7  medical negligence malpractice. Notice to each prospective

 8  defendant must include, if available, a list of all known

 9  health care providers seen by the claimant for the injuries

10  complained of subsequent to the alleged act of negligence, all

11  known health care providers during the 2-year period prior to

12  the alleged act of negligence who treated or evaluated the

13  claimant, and copies of all of the medical records relied upon

14  by the expert in signing the affidavit. The requirement of

15  providing the list of known health care providers may not

16  serve as grounds for imposing sanctions for failure to provide

17  presuit discovery.

18         (b)  Following the initiation of a suit alleging

19  medical negligence malpractice with a court of competent

20  jurisdiction, and service of the complaint upon a defendant,

21  the claimant shall provide a copy of the complaint to the

22  Department of Health and, if the complaint involves a facility

23  licensed under chapter 395, the Agency for Health Care

24  Administration. The requirement of providing the complaint to

25  the Department of Health or the Agency for Health Care

26  Administration does not impair the claimant's legal rights or

27  ability to seek relief for his or her claim. The Department of

28  Health or the Agency for Health Care Administration shall

29  review each incident that is the subject of the complaint and

30  determine whether it involved conduct by a licensee which is

31  potentially subject to disciplinary action, in which case, for


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    CS for SB 2-D                            First Engrossed (ntc)



 1  a licensed health care practitioner, the provisions of s.

 2  456.073 apply and, for a licensed facility, the provisions of

 3  part I of chapter 395 apply.

 4         (3)  PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.--

 5         (a)  No suit may be filed for a period of 90 days after

 6  notice is mailed to any prospective defendant. During the

 7  90-day period, the prospective defendant or the defendant's

 8  insurer or self-insurer shall conduct a review as provided in

 9  s. 766.203(3) to determine the liability of the defendant.

10  Each insurer or self-insurer shall have a procedure for the

11  prompt investigation, review, and evaluation of claims during

12  the 90-day period.  This procedure shall include one or more

13  of the following:

14         1.  Internal review by a duly qualified claims

15  adjuster;

16         2.  Creation of a panel comprised of an attorney

17  knowledgeable in the prosecution or defense of medical

18  negligence malpractice actions, a health care provider trained

19  in the same or similar medical specialty as the prospective

20  defendant, and a duly qualified claims adjuster;

21         3.  A contractual agreement with a state or local

22  professional society of health care providers, which maintains

23  a medical review committee;

24         4.  Any other similar procedure which fairly and

25  promptly evaluates the pending claim.

26  

27  Each insurer or self-insurer shall investigate the claim in

28  good faith, and both the claimant and prospective defendant

29  shall cooperate with the insurer in good faith.  If the

30  insurer requires, a claimant shall appear before a pretrial

31  screening panel or before a medical review committee and shall


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    CS for SB 2-D                            First Engrossed (ntc)



 1  submit to a physical examination, if required.  Unreasonable

 2  failure of any party to comply with this section justifies

 3  dismissal of claims or defenses. There shall be no civil

 4  liability for participation in a pretrial screening procedure

 5  if done without intentional fraud.

 6         (b)  At or before the end of the 90 days, the

 7  prospective defendant or the prospective defendant's insurer

 8  or self-insurer shall provide the claimant with a response:

 9         1.  Rejecting the claim;

10         2.  Making a settlement offer; or

11         3.  Making an offer to arbitrate in which liability is

12  deemed admitted and arbitration will be held only of admission

13  of liability and for arbitration on the issue of damages. This

14  offer may be made contingent upon a limit of general damages.

15         (c)  The response shall be delivered to the claimant if

16  not represented by counsel or to the claimant's attorney, by

17  certified mail, return receipt requested.  Failure of the

18  prospective defendant or insurer or self-insurer to reply to

19  the notice within 90 days after receipt shall be deemed a

20  final rejection of the claim for purposes of this section.

21         (d)  Within 30 days of receipt of a response by a

22  prospective defendant, insurer, or self-insurer to a claimant

23  represented by an attorney, the attorney shall advise the

24  claimant in writing of the response, including:

25         1.  The exact nature of the response under paragraph

26  (b).

27         2.  The exact terms of any settlement offer, or

28  admission of liability and offer of arbitration on damages.

29         3.  The legal and financial consequences of acceptance

30  or rejection of any settlement offer, or admission of

31  liability, including the provisions of this section.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         4.  An evaluation of the time and likelihood of

 2  ultimate success at trial on the merits of the claimant's

 3  action.

 4         5.  An estimation of the costs and attorney's fees of

 5  proceeding through trial.

 6         (4)  SERVICE OF PRESUIT NOTICE AND TOLLING.--The notice

 7  of intent to initiate litigation shall be served within the

 8  time limits set forth in s. 95.11.  However, during the 90-day

 9  period, the statute of limitations is tolled as to all

10  potential defendants. Upon stipulation by the parties, the

11  90-day period may be extended and the statute of limitations

12  is tolled during any such extension.  Upon receiving notice of

13  termination of negotiations in an extended period, the

14  claimant shall have 60 days or the remainder of the period of

15  the statute of limitations, whichever is greater, within which

16  to file suit.

17         (5)  DISCOVERY AND ADMISSIBILITY.--No statement,

18  discussion, written document, report, or other work product

19  generated by the presuit screening process is discoverable or

20  admissible in any civil action for any purpose by the opposing

21  party. All participants, including, but not limited to,

22  physicians, investigators, witnesses, and employees or

23  associates of the defendant, are immune from civil liability

24  arising from participation in the presuit screening process.

25         (6)  INFORMAL DISCOVERY.--

26         (a)  Upon receipt by a prospective defendant of a

27  notice of claim, the parties shall make discoverable

28  information available without formal discovery. Failure to do

29  so is grounds for dismissal of claims or defenses ultimately

30  asserted.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (b)(7)  Informal discovery may be used by a party to

 2  obtain unsworn statements, the production of documents or

 3  things, and physical and mental examinations, as follows:

 4         1.(a)  Unsworn statements.--Any party may require other

 5  parties to appear for the taking of an unsworn statement. Such

 6  statements may be used only for the purpose of presuit

 7  screening and are not discoverable or admissible in any civil

 8  action for any purpose by any party. A party desiring to take

 9  the unsworn statement of any party must give reasonable notice

10  in writing to all parties.  The notice must state the time and

11  place for taking the statement and the name and address of the

12  party to be examined.  Unless otherwise impractical, the

13  examination of any party must be done at the same time by all

14  other parties.  Any party may be represented by counsel at the

15  taking of an unsworn statement.  An unsworn statement may be

16  recorded electronically, stenographically, or on videotape.

17  The taking of unsworn statements is subject to the provisions

18  of the Florida Rules of Civil Procedure and may be terminated

19  for abuses.

20         2.(b)  Documents or things.--Any party may request

21  discovery of documents or things.  The documents or things

22  must be produced, at the expense of the requesting party,

23  within 20 days after the date of receipt of the request.  A

24  party is required to produce discoverable documents or things

25  within that party's possession or control. Medical records

26  shall be produced as provided in s.766.204.

27         3.(c)  Physical and mental examinations.--A prospective

28  defendant may require an injured prospective claimant to

29  appear for examination by an appropriate health care provider.

30  The prospective defendant shall give reasonable notice in

31  writing to all parties as to the time and place for


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    CS for SB 2-D                            First Engrossed (ntc)



 1  examination. Unless otherwise impractical, a prospective

 2  claimant is required to submit to only one examination on

 3  behalf of all potential defendants. The practicality of a

 4  single examination must be determined by the nature of the

 5  potential claimant's condition, as it relates to the liability

 6  of each prospective potential defendant. Such examination

 7  report is available to the parties and their attorneys upon

 8  payment of the reasonable cost of reproduction and may be used

 9  only for the purpose of presuit screening. Otherwise, such

10  examination report is confidential and exempt from the

11  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

12  Constitution.

13         4.  Written questions.--Any party may request answers

14  to written questions, the number of which may not exceed 30,

15  including subparts. A response must be made within 20 days

16  after receipt of the questions.

17         5.  Medical information release.--The claimant must

18  execute a medical information release that allows a

19  prospective defendant or his or her legal representative to

20  take unsworn statements of the claimant's treating physicians.

21  The statements must be limited to those areas that are

22  potentially relevant to the claim of personal injury or

23  wrongful death. Subject to the procedural requirements of

24  subparagraph 1., a prospective defendant may take unsworn

25  statements from a claimant's treating physicians. Reasonable

26  notice and opportunity to be heard must be given to the

27  claimant or the claimant's legal representative. The claimant

28  or claimant's legal representative has the right to attend the

29  taking of such unsworn statements.

30         (c)(8)  Each request for and notice concerning informal

31  presuit discovery pursuant to this section must be in writing,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  and a copy thereof must be sent to all parties.  Such a

 2  request or notice must bear a certificate of service

 3  identifying the name and address of the person to whom the

 4  request or notice is served, the date of the request or

 5  notice, and the manner of service thereof.

 6         (d)(9)  Copies of any documents produced in response to

 7  the request of any party must be served upon all other

 8  parties. The party serving the documents or his or her

 9  attorney shall identify, in a notice accompanying the

10  documents, the name and address of the parties to whom the

11  documents were served, the date of service, the manner of

12  service, and the identity of the document served.

13         (7)  SANCTIONS.--Failure to cooperate on the part of

14  any party during the presuit investigation may be grounds to

15  strike any claim made, or defense raised, by such party in

16  suit.

17         (10)  If a prospective defendant makes an offer to

18  admit liability and for arbitration on the issue of damages,

19  the claimant has 50 days from the date of receipt of the offer

20  to accept or reject it.  The claimant shall respond in writing

21  to the insurer or self-insurer by certified mail, return

22  receipt requested.  If the claimant rejects the offer, he or

23  she may then file suit. Acceptance of the offer of admission

24  of liability and for arbitration waives recourse to any other

25  remedy by the parties, and the claimant's written acceptance

26  of the offer shall so state.

27         (a)  If rejected, the offer to admit liability and for

28  arbitration on damages is not admissible in any subsequent

29  litigation.  Upon rejection of the offer to admit liability

30  and for arbitration, the claimant has 60 days or the remainder

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  of the period of the statute of limitations, whichever period

 2  is greater, in which to file suit.

 3         (b)  If the offer to admit liability and for

 4  arbitration on damages is accepted, the parties have 30 days

 5  from the date of acceptance to settle the amount of damages.

 6  If the parties have not reached agreement after 30 days, they

 7  shall proceed to binding arbitration to determine the amount

 8  of damages as follows:

 9         1.  Each party shall identify his or her arbitrator to

10  the opposing party not later than 35 days after the date of

11  acceptance.

12         2.  The two arbitrators shall, within 1 week after they

13  are notified of their appointment, agree upon a third

14  arbitrator. If they cannot agree on a third arbitrator,

15  selection of the third arbitrator shall be in accordance with

16  chapter 682.

17         3.  Not later than 30 days after the selection of a

18  third arbitrator, the parties shall file written arguments

19  with each arbitrator and with each other indicating total

20  damages.

21         4.  Unless otherwise determined by the arbitration

22  panel, within 10 days after the receipt of such arguments,

23  unless the parties have agreed to a settlement, there shall be

24  a 1-day hearing, at which formal rules of evidence and the

25  rules of civil procedure shall not apply, during which each

26  party shall present evidence as to damages. Each party shall

27  identify the total dollar amount which he or she feels should

28  be awarded.

29         5.  No later than 2 weeks after the hearing, the

30  arbitrators shall notify the parties of their determination of

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  the total award. The court shall have jurisdiction to enforce

 2  any award or agreement for periodic payment of future damages.

 3         (11)  If there is more than one prospective defendant,

 4  the claimant shall provide the notice of claim and follow the

 5  procedures in this section for each defendant.  If an offer to

 6  admit liability and for arbitration is accepted, the

 7  procedures shall be initiated separately for each defendant,

 8  unless multiple offers are made by more than one prospective

 9  defendant and are accepted and the parties agree to

10  consolidated arbitration. Any agreement for consolidated

11  arbitration shall be filed with the court. No offer by any

12  prospective defendant to admit liability and for arbitration

13  is admissible in any civil action.

14         (12)  To the extent not inconsistent with this part,

15  the provisions of chapter 682, the Florida Arbitration Code,

16  shall be applicable to such proceedings.

17         Section 50.  Section 766.108, Florida Statutes, is

18  amended to read:

19         766.108  Mandatory mediation and mandatory settlement

20  conference in medical negligence malpractice actions.--

21         (1)  Within 120 days after the suit is filed, unless

22  such period is extended by mutual agreement of all parties,

23  all parties shall attend in-person mandatory mediation in

24  accordance with s. 44.102 if binding arbitration under s.

25  766.207 has not been agreed to by the parties. The Florida

26  Rules of Civil Procedure shall apply to mediation held

27  pursuant to this section.

28         (2)(a)(1)  In any action for damages based on personal

29  injury or wrongful death arising out of medical malpractice,

30  whether in tort or contract, the court shall require a

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  settlement conference at least 3 weeks before the date set for

 2  trial.

 3         (b)(2)  Attorneys who will conduct the trial, parties,

 4  and persons with authority to settle shall attend the

 5  settlement conference held before the court unless excused by

 6  the court for good cause.

 7         Section 51.  Subsection (2) of section 766.1115,

 8  Florida Statutes, as amended by section 1900 of chapter

 9  2003-261, Laws of Florida, is amended to read:

10         766.1115  Health care providers; creation of agency

11  relationship with governmental contractors.--

12         (2)  FINDINGS AND INTENT.--The Legislature finds that a

13  significant proportion of the residents of this state who are

14  uninsured or Medicaid recipients are unable to access needed

15  health care because health care providers fear the increased

16  risk of medical negligence malpractice liability. It is the

17  intent of the Legislature that access to medical care for

18  indigent residents be improved by providing governmental

19  protection to health care providers who offer free quality

20  medical services to underserved populations of the state.

21  Therefore, it is the intent of the Legislature to ensure that

22  health care professionals who contract to provide such

23  services as agents of the state are provided sovereign

24  immunity.

25         Section 52.  Section 766.112, Florida Statutes, is

26  amended to read:

27         766.112  Comparative fault.--

28         (1)  Notwithstanding anything in law to the contrary,

29  in an action for damages for personal injury or wrongful death

30  arising out of medical negligence malpractice, whether in

31  contract or tort, when an apportionment of damages pursuant to


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    CS for SB 2-D                            First Engrossed (ntc)



 1  this section is attributed to a teaching hospital as defined

 2  in s. 408.07, the court shall enter judgment against the

 3  teaching hospital on the basis of such party's percentage of

 4  fault and not on the basis of the doctrine of joint and

 5  several liability.

 6         (2)  In an action for damages for personal injury or

 7  wrongful death arising out of medical negligence malpractice,

 8  whether in contract or tort, when an apportionment of damages

 9  pursuant to s. 768.81 is attributed to a board of trustees of

10  a state university, the court shall enter judgment against the

11  board of trustees on the basis of the board's percentage of

12  fault and not on the basis of the doctrine of joint and

13  several liability. The sole remedy available to a claimant to

14  collect a judgment or settlement against a board of trustees,

15  subject to the provisions of this subsection, shall be

16  pursuant to s. 768.28.

17         Section 53.  Section 766.113, Florida Statutes, is

18  amended to read:

19         766.113  Settlement agreements; prohibition on

20  restricting disclosure to Division of Medical Quality

21  Assurance.--

22         (1)  Each final settlement agreement relating to

23  medical negligence shall include the following statement: "The

24  decision to settle a case may reflect the economic

25  practicalities pertaining to the cost of litigation and is

26  not, alone, an admission that the insured failed to meet the

27  required standard of care applicable to the patient's

28  treatment. The decision to settle a case may be made by the

29  insurance company without consulting its client for input,

30  unless otherwise provided by the insurance policy."

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (2)  A settlement agreement involving a claim for

 2  medical negligence malpractice shall not prohibit any party to

 3  the agreement from discussing with or reporting to the

 4  Division of Medical Quality Assurance the events giving rise

 5  to the claim.

 6         Section 54.  Section 766.118, Florida Statutes, is

 7  created to read:

 8         766.118  Determination of noneconomic damages.--

 9         (1)  DEFINITIONS.--As used in this section, the term:

10         (a)  "Catastrophic injury" means a permanent impairment

11  constituted by:

12         1.  Spinal cord injury involving severe paralysis of an

13  arm, a leg, or the trunk;

14         2.  Amputation of an arm, a hand, a foot, or a leg

15  involving the effective loss of use of that appendage;

16         3.  Severe brain or closed-head injury as evidenced by:

17         a.  Severe sensory or motor disturbances;

18         b.  Severe communication disturbances;

19         c.  Severe complex integrated disturbances of cerebral

20  function;

21         d.  Severe episodic neurological disorders; or

22         e.  Other severe brain and closed-head injury

23  conditions at least as severe in nature as any condition

24  provided in sub-subparagraphs a.-d.;

25         4.  Second-degree or third-degree burns of 25 percent

26  or more of the total body surface or third-degree burns of 5

27  percent or more to the face and hands;

28         5.  Blindness, defined as a complete and total loss of

29  vision; or

30         6.  Loss of reproductive organs which results in an

31  inability to procreate.


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (b)  "Noneconomic damages" means noneconomic damages as

 2  defined in s. 766.202(8).

 3         (c)  "Practitioner" means any person licensed under

 4  chapter 458, chapter 459, chapter 460, chapter 461, chapter

 5  462, chapter 463, chapter 466, chapter 467, or chapter 486 or

 6  certified under s. 464.012. "Practitioner" also means any

 7  association, corporation, firm, partnership, or other business

 8  entity under which such practitioner practices or any employee

 9  of such practitioner or entity acting in the scope of his or

10  her employment. For the purpose of determining the limitations

11  on noneconomic damages set forth in this section, the term

12  "practitioner" includes any person or entity for whom a

13  practitioner is vicariously liable and any person or entity

14  whose liability is based solely on such person or entity being

15  vicariously liable for the actions of a practitioner.

16         (2)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE

17  OF PRACTITIONERS.--

18         (a)  With respect to a cause of action for personal

19  injury or wrongful death arising from medical negligence of

20  practitioners, regardless of the number of such practitioner

21  defendants, noneconomic damages shall not exceed $500,000 per

22  claimant. No practitioner shall be liable for more than

23  $500,000 in noneconomic damages, regardless of the number of

24  claimants.

25         (b)  Notwithstanding paragraph (a), if the negligence

26  resulted in a permanent vegetative state or death, the total

27  noneconomic damages recoverable from all practitioners,

28  regardless of the number of claimants, under this paragraph

29  shall not exceed $1 million. In cases that do not involve

30  death or permanent vegetative state, the patient injured by

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  medical negligence may recover noneconomic damages not to

 2  exceed $1 million if:

 3         1.  The trial court determines that a manifest

 4  injustice would occur unless increased noneconomic damages are

 5  awarded, based on a finding that because of the special

 6  circumstances of the case, the noneconomic harm sustained by

 7  the injured patient was particularly severe; and

 8         2.  The trier of fact determines that the defendant's

 9  negligence caused a catastrophic injury to the patient.

10         (c)  The total noneconomic damages recoverable by all

11  claimants from all practitioner defendants under this

12  subsection shall not exceed $1 million in the aggregate.

13         (3)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE

14  OF NONPRACTITIONER DEFENDANTS.--

15         (a)  With respect to a cause of action for personal

16  injury or wrongful death arising from medical negligence of

17  nonpractitioners, regardless of the number of such

18  nonpractitioner defendants, noneconomic damages shall not

19  exceed $750,000 per claimant.

20         (b)  Notwithstanding paragraph (a), if the negligence

21  resulted in a permanent vegetative state or death, the total

22  noneconomic damages recoverable by such claimant from all

23  nonpractitioner defendants under this paragraph shall not

24  exceed $1.5 million. The patient injured by medical negligence

25  of a nonpractitioner defendant may recover noneconomic damages

26  not to exceed $1.5 million if:

27         1.  The trial court determines that a manifest

28  injustice would occur unless increased noneconomic damages are

29  awarded, based on a finding that because of the special

30  circumstances of the case, the noneconomic harm sustained by

31  the injured patient was particularly severe; and


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    CS for SB 2-D                            First Engrossed (ntc)



 1         2.  The trier of fact determines that the defendant's

 2  negligence caused a catastrophic injury to the patient.

 3         (c)  Nonpractitioner defendants are subject to the cap

 4  on noneconomic damages provided in this subsection regardless

 5  of the theory of liability, including vicarious liability.

 6         (d)  The total noneconomic damages recoverable by all

 7  claimants from all nonpractitioner defendants under this

 8  subsection shall not exceed $1.5 million in the aggregate.

 9         (4)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE

10  OF PRACTITIONERS PROVIDING EMERGENCY SERVICES AND

11  CARE.--Notwithstanding subsections (2) and (3), with respect

12  to a cause of action for personal injury or wrongful death

13  arising from medical negligence of practitioners providing

14  emergency services and care, as defined in s. 395.002(10), or

15  providing services as provided in s. 401.265, or providing

16  services pursuant to obligations imposed by 42 U.S.C. s.

17  1395dd to persons with whom the practitioner does not have a

18  then-existing health care patient-practitioner relationship

19  for that medical condition:

20         (a)  Regardless of the number of such practitioner

21  defendants, noneconomic damages shall not exceed $150,000 per

22  claimant.

23         (b)  Notwithstanding paragraph (a), the total

24  noneconomic damages recoverable by all claimants from all such

25  practitioners shall not exceed $300,000.

26  

27  The limitation provided by this subsection applies only to

28  noneconomic damages awarded as a result of any act or omission

29  of providing medical care or treatment, including diagnosis

30  that occurs prior to the time the patient is stabilized and is

31  capable of receiving medical treatment as a nonemergency


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    CS for SB 2-D                            First Engrossed (ntc)



 1  patient, unless surgery is required as a result of the

 2  emergency within a reasonable time after the patient is

 3  stabilized, in which case the limitation provided by this

 4  subsection applies to any act or omission of providing medical

 5  care or treatment which occurs prior to the stabilization of

 6  the patient following the surgery.

 7         (5)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE

 8  OF NONPRACTITIONER DEFENDANTS PROVIDING EMERGENCY SERVICES AND

 9  CARE.--Notwithstanding subsections (2) and (3), with respect

10  to a cause of action for personal injury or wrongful death

11  arising from medical negligence of defendants other than

12  practitioners providing emergency services and care pursuant

13  to obligations imposed by ss. 395.1041 or 401.45, or

14  obligations imposed by 42 U.S.C. s. 1395dd to persons with

15  whom the practitioner does not have a then-existing health

16  care patient-practitioner relationship for that medical

17  condition:

18         (a)  Regardless of the number of such nonpractitioner

19  defendants, noneconomic damages shall not exceed $750,000 per

20  claimant.

21         (b)  Notwithstanding paragraph (a), the total

22  noneconomic damages recoverable by all claimants from all such

23  nonpractitioner defendants shall not exceed $1.5 million.

24         (c)  Nonpractitioner defendants may receive a full

25  setoff for payments made by practitioner defendants.

26  

27  The limitation provided by this subsection applies only to

28  noneconomic damages awarded as a result of any act or omission

29  of providing medical care or treatment, including diagnosis

30  that occurs prior to the time the patient is stabilized and is

31  capable of receiving medical treatment as a nonemergency


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    CS for SB 2-D                            First Engrossed (ntc)



 1  patient, unless surgery is required as a result of the

 2  emergency within a reasonable time after the patient is

 3  stabilized, in which case the limitation provided by this

 4  subsection applies to any act or omission of providing medical

 5  care or treatment which occurs prior to the stabilization of

 6  the patient following the surgery.

 7         (6)  SETOFF.--In any case in which the jury verdict for

 8  noneconomic damages exceeds the limits established by this

 9  section, the trial court shall reduce the award for

10  noneconomic damages within the same category of defendants in

11  accordance with this section after making any reduction for

12  comparative fault as required by s. 768.81 but before

13  application of a setoff in accordance with ss. 46.015 and

14  768.041. In the event of a prior settlement or settlements

15  involving one or more defendants subject to the limitations of

16  the same subsection applicable to a defendant remaining at

17  trial, the court shall make such reductions within the same

18  category of defendants as are necessary to ensure that the

19  total amount of noneconomic damages recovered by the claimant

20  does not exceed the aggregate limit established by the

21  applicable subsection. This subsection is not intended to

22  change current law relating to the setoff of economic damages.

23         (7)  ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.--This

24  section shall not apply to actions governed by s. 768.28.

25         Section 55.  The Legislature finds and declares it to

26  be of vital importance that emergency services and care be

27  provided by hospitals, physicians, and emergency medical

28  services providers to every person in need of such care. The

29  Legislature finds that providers of emergency medical services

30  and care are critical elements in responding to disaster and

31  emergency situations that might affect our local communities,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  state, and country. The Legislature recognizes the importance

 2  of maintaining a viable system of providing for the emergency

 3  medical needs of residents of this state and visitors to this

 4  state. The Legislature and the Federal Government have

 5  required such providers of emergency medical services and care

 6  to provide emergency services and care to all persons who

 7  present themselves to hospitals seeking such care. The

 8  Legislature has further mandated that prehospital emergency

 9  medical treatment or transport may not be denied by emergency

10  medical services providers to persons who have or are likely

11  to have an emergency medical condition. Such governmental

12  requirements have imposed a unilateral obligation for

13  providers of emergency medical services and care to provide

14  services to all persons seeking emergency care without

15  ensuring payment or other consideration for provision of such

16  care. The Legislature also recognizes that providers of

17  emergency medical services and care provide a significant

18  amount of uncompensated emergency medical care in furtherance

19  of such governmental interest. A significant proportion of the

20  residents of this state who are uninsured or are Medicaid or

21  Medicare recipients are unable to access needed health care

22  because health care providers fear the increased risk of

23  medical malpractice liability. Such patients, in order to

24  obtain medical care, are frequently forced to seek care

25  through providers of emergency medical services and care.

26  Providers of emergency medical services and care in this state

27  have reported significant problems with both the availability

28  and affordability of professional liability coverage. Medical

29  malpractice liability insurance premiums have increased

30  dramatically and a number of insurers have ceased providing

31  medical malpractice coverage for emergency medical services


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    CS for SB 2-D                            First Engrossed (ntc)



 1  and care in this state. This results in a functional

 2  unavailability of malpractice coverage for some providers of

 3  emergency medical services and care. The Legislature further

 4  finds that certain specialist physicians have resigned from

 5  serving on hospital staffs or have otherwise declined to

 6  provide on-call coverage to hospital emergency departments due

 7  to increased medical malpractice liability exposure created by

 8  treating such emergency department patients. It is the intent

 9  of the Legislature that hospitals, emergency medical services

10  providers, and physicians be able to ensure that patients who

11  might need emergency medical services treatment or

12  transportation or who present themselves to hospitals for

13  emergency medical services and care have access to such needed

14  services.

15         Section 56.  Section 766.1185, Florida Statutes, is

16  created to read:

17         766.1185  Bad faith actions.--In all actions for bad

18  faith against a medical malpractice insurer relating to

19  professional liability insurance coverage for medical

20  negligence, and in determining whether the insurer could and

21  should have settled the claim within the policy limits had it

22  acted fairly and honestly towards its insured with due regard

23  for her or his interest, whether under statute or common law:

24         (1)(a)  An insurer shall not be held in bad faith for

25  failure to pay its policy limits if it tenders its policy

26  limits and meets other reasonable conditions of settlement by

27  the earlier of either:

28         1.  The 210th day after service of the complaint in the

29  medical negligence action upon the insured. The time period

30  specified in this subparagraph shall be extended by an

31  additional 60 days if the court in the bad-faith action finds


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    CS for SB 2-D                            First Engrossed (ntc)



 1  that, at any time during such period and after the 150th day

 2  after service of the complaint, the claimant provided new

 3  information previously unavailable to the insurer relating to

 4  the identity or testimony of any material witnesses or the

 5  identity of any additional claimants or defendants, if such

 6  disclosure materially alters the risk to the insured of an

 7  excess judgment; or

 8         2.  The 60th day after the conclusion of all of the

 9  following:

10         a.  Deposition of all claimants named in the complaint

11  or amended complaint.

12         b.  Deposition of all defendants named in the complaint

13  or amended complaint, including, in the case of a corporate

14  defendant, deposition of a designated representative.

15         c.  Deposition of all of the claimants' expert

16  witnesses.

17         d.  The initial disclosure of witnesses and production

18  of documents.

19         e.  Mediation as provided in s. 766.108.

20         (b)  Either party may request that the court enter an

21  order finding that the other party has unnecessarily or

22  inappropriately delayed any of the events specified in

23  subparagraph (a)2. If the court finds that the claimant was

24  responsible for such unnecessary or inappropriate delay,

25  subparagraph (a)1. shall not apply to the insurer's tendering

26  of policy limits.  If the court finds that the defendant or

27  insurer was responsible for such unnecessary or inappropriate

28  delay, subparagraph (a)2. shall not apply to the insurer's

29  tendering of policy limits.

30         (c)  If any party to an action alleging medical

31  negligence amends its witness list after service of the


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    CS for SB 2-D                            First Engrossed (ntc)



 1  complaint in such action, that party shall provide a copy of

 2  the amended witness list to the insurer of the defendant

 3  health care provider.

 4         (d)  The fact that the insurer did not tender policy

 5  limits during the time periods specified in this paragraph is

 6  not presumptive evidence that the insurer acted in bad faith.

 7         (2)  When subsection (1) does not apply, the trier of

 8  fact, in determining whether an insurer has acted in bad

 9  faith, shall consider:

10         (a)  The insurer's willingness to negotiate with the

11  claimant in anticipation of settlement.

12         (b)  The propriety of the insurer's methods of

13  investigating and evaluating the claim.

14         (c)  Whether the insurer timely informed the insured of

15  an offer to settle within the limits of coverage, the right to

16  retain personal counsel, and the risk of litigation.

17         (d)  Whether the insured denied liability or requested

18  that the case be defended after the insurer fully advised the

19  insured as to the facts and risks.

20         (e)  Whether the claimant imposed any condition, other

21  than the tender of the policy limits, on the settlement of the

22  claim.

23         (f)  Whether the claimant provided relevant information

24  to the insurer on a timely basis.

25         (g)  Whether and when other defendants in the case

26  settled or were dismissed from the case.

27         (h)  Whether there were multiple claimants seeking, in

28  the aggregate, compensation in excess of policy limits from

29  the defendant or the defendant's insurer.

30  

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (i)  Whether the insured misrepresented material facts

 2  to the insurer or made material omissions of fact to the

 3  insurer.

 4         (j)  In addition to the foregoing the court shall allow

 5  consideration of such additional factors as the court

 6  determines to be relevant.

 7         (3)  The provisions of s. 624.155 shall be applicable

 8  in all cases brought pursuant to that section unless

 9  specifically controlled by this section.

10         (4)  An insurer that tenders policy limits shall be

11  entitled to a release of its insured if the claimant accepts

12  the tender.

13         Section 57.  Paragraphs (c) and (d) of subsection (1)

14  of section 766.201, Florida Statutes, are amended to read:

15         766.201  Legislative findings and intent.--

16         (1)  The Legislature makes the following findings:

17         (c)  The average cost of a medical negligence

18  malpractice claim has escalated in the past decade to the

19  point where it has become imperative to control such cost in

20  the interests of the public need for quality medical services.

21         (d)  The high cost of medical negligence malpractice

22  claims in the state can be substantially alleviated by

23  requiring early determination of the merit of claims, by

24  providing for early arbitration of claims, thereby reducing

25  delay and attorney's fees, and by imposing reasonable

26  limitations on damages, while preserving the right of either

27  party to have its case heard by a jury.

28         Section 58.  Section 766.202, Florida Statutes, is

29  amended to read:

30         766.202  Definitions; ss. 766.201-766.212.--As used in

31  ss. 766.201-766.212, the term:


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (1)  "Claimant" means any person who has a cause of

 2  action for damages based on personal injury or wrongful death

 3  arising from medical negligence.

 4         (2)  "Collateral sources" means any payments made to

 5  the claimant, or made on his or her behalf, by or pursuant to:

 6         (a)  The United States Social Security Act; any

 7  federal, state, or local income disability act; or any other

 8  public programs providing medical expenses, disability

 9  payments, or other similar benefits, except as prohibited by

10  federal law.

11         (b)  Any health, sickness, or income disability

12  insurance; automobile accident insurance that provides health

13  benefits or income disability coverage; and any other similar

14  insurance benefits, except life insurance benefits available

15  to the claimant, whether purchased by him or her or provided

16  by others.

17         (c)  Any contract or agreement of any group,

18  organization, partnership, or corporation to provide, pay for,

19  or reimburse the costs of hospital, medical, dental, or other

20  health care services.

21         (d)  Any contractual or voluntary wage continuation

22  plan provided by employers or by any other system intended to

23  provide wages during a period of disability.

24         (3)  "Economic damages" means financial losses that

25  which would not have occurred but for the injury giving rise

26  to the cause of action, including, but not limited to, past

27  and future medical expenses and 80 percent of wage loss and

28  loss of earning capacity to the extent the claimant is

29  entitled to recover such damages under general law, including

30  the Wrongful Death Act.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         (4)  "Health care provider" means any hospital,

 2  ambulatory surgical center, or mobile surgical facility as

 3  defined and licensed under chapter 395; a birth center

 4  licensed under chapter 383; any person licensed under chapter

 5  458, chapter 459, chapter 460, chapter 461, chapter 462,

 6  chapter 463, part I of chapter 464, chapter 466, chapter 467

 7  or chapter 486; a clinical lab licensed under chapter 483; a

 8  health maintenance organization certificated under part I of

 9  chapter 641; a blood bank; a plasma center; an industrial

10  clinic; a renal dialysis facility; or a professional

11  association partnership, corporation, joint venture, or other

12  association for professional activity by health care

13  providers.

14         (5)(4)  "Investigation" means that an attorney has

15  reviewed the case against each and every potential defendant

16  and has consulted with a medical expert and has obtained a

17  written opinion from said expert.

18         (6)(5)  "Medical expert" means a person duly and

19  regularly engaged in the practice of his or her profession who

20  holds a health care professional degree from a university or

21  college and who meets the requirements of an expert witness as

22  set forth in s. 766.102 has had special professional training

23  and experience or one possessed of special health care

24  knowledge or skill about the subject upon which he or she is

25  called to testify or provide an opinion.

26         (7)(6)  "Medical negligence" means medical malpractice,

27  whether grounded in tort or in contract.

28         (8)(7)  "Noneconomic damages" means nonfinancial losses

29  that which would not have occurred but for the injury giving

30  rise to the cause of action, including pain and suffering,

31  inconvenience, physical impairment, mental anguish,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  disfigurement, loss of capacity for enjoyment of life, and

 2  other nonfinancial losses to the extent the claimant is

 3  entitled to recover such damages under general law, including

 4  the Wrongful Death Act.

 5         (9)(8)  "Periodic payment" means provision for the

 6  structuring of future economic damages payments, in whole or

 7  in part, over a period of time, as follows:

 8         (a)  A specific finding of the dollar amount of

 9  periodic payments which will compensate for these future

10  damages after offset for collateral sources shall be made.

11  The total dollar amount of the periodic payments shall equal

12  the dollar amount of all such future damages before any

13  reduction to present value.

14         (b)  The defendant shall be required to post a bond or

15  security or otherwise to assure full payment of these damages

16  awarded.  A bond is not adequate unless it is written by a

17  company authorized to do business in this state and is rated

18  A+ by Best's. If the defendant is unable to adequately assure

19  full payment of the damages, all damages, reduced to present

20  value, shall be paid to the claimant in a lump sum.  No bond

21  may be canceled or be subject to cancellation unless at least

22  60 days' advance written notice is filed with the court and

23  the claimant.  Upon termination of periodic payments, the

24  security, or so much as remains, shall be returned to the

25  defendant.

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

27  periodic payments shall specify the recipient or recipients of

28  the payments, the dollar amounts of the payments, the interval

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

30  time over which payments shall be made.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         Section 59.  Section 766.2021, Florida Statutes, is

 2  created to read:

 3         766.2021  Limitation on damages against insurers,

 4  prepaid limited health service organizations, health

 5  maintenance organizations, or prepaid health clinics.--An

 6  entity licensed or certified under chapter 624, chapter 636,

 7  or chapter 641 shall not be liable for the medical negligence

 8  of a health care provider with whom the licensed or certified

 9  entity has entered into a contract in any amount greater than

10  the amount of damages that may be imposed by law directly upon

11  the health care provider, and any suits against such entity

12  shall be subject to all provisions and requirements of

13  evidence in this chapter and other requirements imposed by law

14  in connection with suits against health care providers for

15  medical negligence.

16         Section 60.  Section 766.203, Florida Statutes, is

17  amended to read:

18         766.203  Presuit investigation of medical negligence

19  claims and defenses by prospective parties.--

20         (1)  Application of presuit investigation.--Presuit

21  investigation of medical negligence claims and defenses

22  pursuant to this section and ss. 766.204-766.206 shall apply

23  to all medical negligence, including dental negligence, claims

24  and defenses.  This shall include:

25         (a)  Rights of action under s. 768.19 and defenses

26  thereto.

27         (b)  Rights of action involving the state or its

28  agencies or subdivisions, or the officers, employees, or

29  agents thereof, pursuant to s. 768.28 and defenses thereto.

30         (2)  Presuit investigation by claimant.--Prior to

31  issuing notification of intent to initiate medical negligence


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    CS for SB 2-D                            First Engrossed (ntc)



 1  malpractice litigation pursuant to s. 766.106, the claimant

 2  shall conduct an investigation to ascertain that there are

 3  reasonable grounds to believe that:

 4         (a)  Any named defendant in the litigation was

 5  negligent in the care or treatment of the claimant; and

 6         (b)  Such negligence resulted in injury to the

 7  claimant.

 8  

 9  Corroboration of reasonable grounds to initiate medical

10  negligence litigation shall be provided by the claimant's

11  submission of a verified written medical expert opinion from a

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

13  notice of intent to initiate litigation is mailed, which

14  statement shall corroborate reasonable grounds to support the

15  claim of medical negligence.

16         (3)  Presuit investigation by prospective

17  defendant.--Prior to issuing its response to the claimant's

18  notice of intent to initiate litigation, during the time

19  period for response authorized pursuant to s. 766.106, the

20  prospective defendant or the defendant's insurer or

21  self-insurer shall conduct an investigation as provided in s.

22  766.106(3) to ascertain whether there are reasonable grounds

23  to believe that:

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

25  treatment of the claimant; and

26         (b)  Such negligence resulted in injury to the

27  claimant.

28  

29  Corroboration of lack of reasonable grounds for medical

30  negligence litigation shall be provided with any response

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


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    CS for SB 2-D                            First Engrossed (ntc)



 1  verified written medical expert opinion from a medical expert

 2  as defined in s. 766.202(5), at the time the response

 3  rejecting the claim is mailed, which statement shall

 4  corroborate reasonable grounds for lack of negligent injury

 5  sufficient to support the response denying negligent injury.

 6         (4)  Presuit medical expert opinion.--The medical

 7  expert opinions required by this section are subject to

 8  discovery. The opinions shall specify whether any previous

 9  opinion by the same medical expert has been disqualified and

10  if so the name of the court and the case number in which the

11  ruling was issued.

12         Section 61.  Section 766.206, Florida Statutes, is

13  amended to read:

14         766.206  Presuit investigation of medical negligence

15  claims and defenses by court.--

16         (1)  After the completion of presuit investigation by

17  the parties pursuant to s. 766.203 and any informal discovery

18  pursuant to s. 766.106, any party may file a motion in the

19  circuit court requesting the court to determine whether the

20  opposing party's claim or denial rests on a reasonable basis.

21         (2)  If the court finds that the notice of intent to

22  initiate litigation mailed by the claimant is not in

23  compliance with the reasonable investigation requirements of

24  ss. 766.201-766.212, including a review of the claim and a

25  verified written medical expert opinion by an expert witness

26  as defined in s. 766.202, the court shall dismiss the claim,

27  and the person who mailed such notice of intent, whether the

28  claimant or the claimant's attorney, shall be personally

29  liable for all attorney's fees and costs incurred during the

30  investigation and evaluation of the claim, including the

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1  reasonable attorney's fees and costs of the defendant or the

 2  defendant's insurer.

 3         (3)  If the court finds that the response mailed by a

 4  defendant rejecting the claim is not in compliance with the

 5  reasonable investigation requirements of ss. 766.201-766.212,

 6  including a review of the claim and a verified written medical

 7  expert opinion by an expert witness as defined in s. 766.202,

 8  the court shall strike the defendant's pleading. response, and

 9  The person who mailed such response, whether the defendant,

10  the defendant's insurer, or the defendant's attorney, shall be

11  personally liable for all attorney's fees and costs incurred

12  during the investigation and evaluation of the claim,

13  including the reasonable attorney's fees and costs of the

14  claimant.

15         (4)  If the court finds that an attorney for the

16  claimant mailed notice of intent to initiate litigation

17  without reasonable investigation, or filed a medical

18  negligence claim without first mailing such notice of intent

19  which complies with the reasonable investigation requirements,

20  or if the court finds that an attorney for a defendant mailed

21  a response rejecting the claim without reasonable

22  investigation, the court shall submit its finding in the

23  matter to The Florida Bar for disciplinary review of the

24  attorney.  Any attorney so reported three or more times within

25  a 5-year period shall be reported to a circuit grievance

26  committee acting under the jurisdiction of the Supreme Court.

27  If such committee finds probable cause to believe that an

28  attorney has violated this section, such committee shall

29  forward to the Supreme Court a copy of its finding.

30         (5)(a)  If the court finds that the corroborating

31  written medical expert opinion attached to any notice of claim


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    CS for SB 2-D                            First Engrossed (ntc)



 1  or intent or to any response rejecting a claim lacked

 2  reasonable investigation or that the medical expert submitting

 3  the opinion did not meet the expert witness qualifications as

 4  set forth in s. 766.202(5), the court shall report the medical

 5  expert issuing such corroborating opinion to the Division of

 6  Medical Quality Assurance or its designee.  If such medical

 7  expert is not a resident of the state, the division shall

 8  forward such report to the disciplining authority of that

 9  medical expert.

10         (b)  The court shall may refuse to consider the

11  testimony or opinion attached to any notice of intent or to

12  any response rejecting a claim of such an expert who has been

13  disqualified three times pursuant to this section.

14         Section 62.  Subsection (7) of section 766.207, Florida

15  Statutes, is amended to read:

16         766.207  Voluntary binding arbitration of medical

17  negligence claims.--

18         (7)  Arbitration pursuant to this section shall

19  preclude recourse to any other remedy by the claimant against

20  any participating defendant, and shall be undertaken with the

21  understanding that damages shall be awarded as provided by

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

23  following limitations:

24         (a)  Net economic damages shall be awardable,

25  including, but not limited to, past and future medical

26  expenses and 80 percent of wage loss and loss of earning

27  capacity, offset by any collateral source payments.

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

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

30  percentage basis with respect to capacity to enjoy life, so

31  that a finding that the claimant's injuries resulted in a


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    CS for SB 2-D                            First Engrossed (ntc)



 1  50-percent reduction in his or her capacity to enjoy life

 2  would warrant an award of not more than $125,000 noneconomic

 3  damages.

 4         (c)  Damages for future economic losses shall be

 5  awarded to be paid by periodic payments pursuant to s.

 6  766.202(9) s. 766.202(8) and shall be offset by future

 7  collateral source payments.

 8         (d)  Punitive damages shall not be awarded.

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

10  of interest on all accrued damages with respect to which

11  interest would be awarded at trial.

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

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

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

15  reduced to present value.

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

17  arbitration proceeding and the fees of all the arbitrators

18  other than the administrative law judge.

19         (h)  Each defendant who submits to arbitration under

20  this section shall be jointly and severally liable for all

21  damages assessed pursuant to this section.

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

23  damages shall be for the purpose of arbitration under this

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

25  shall not be used in evidence or in argument during any

26  subsequent litigation of the claim following the rejection

27  thereof.

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

29  arbitrate shall not be admissible as evidence of liability in

30  any collateral or subsequent proceeding on the claim.

31  


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    CS for SB 2-D                            First Engrossed (ntc)



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

 2  to each defendant against whom the claimant has made a claim.

 3  Any offer by a defendant to arbitrate must be made to each

 4  claimant who has joined in the notice of intent to initiate

 5  litigation, as provided in s. 766.106.  A defendant who

 6  rejects a claimant's offer to arbitrate shall be subject to

 7  the provisions of s. 766.209(3). A claimant who rejects a

 8  defendant's offer to arbitrate shall be subject to the

 9  provisions of s. 766.209(4).

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

11  arbitrators, but a majority may determine any question of fact

12  and render a final decision.  The chief arbitrator shall

13  decide all evidentiary matters.

14  

15  The provisions of this subsection shall not preclude

16  settlement at any time by mutual agreement of the parties.

17         Section 63.  Paragraph (a) of subsection (3) of section

18  766.209, Florida Statutes, is amended to read:

19         766.209  Effects of failure to offer or accept

20  voluntary binding arbitration.--

21         (3)  If the defendant refuses a claimant's offer of

22  voluntary binding arbitration:

23         (a)  The claim shall proceed to trial without

24  limitation on damages, and the claimant, upon proving medical

25  negligence, shall be entitled to recover damages subject to

26  the limitations in s. 766.118, prejudgment interest, and

27  reasonable attorney's fees up to 25 percent of the award

28  reduced to present value.

29         Section 64.  Section 768.0981, Florida Statutes, is

30  created to read:

31  


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    CS for SB 2-D                            First Engrossed (ntc)



 1         768.0981  Limitation on actions against insurers,

 2  prepaid limited health service organizations, health

 3  maintenance organizations, or prepaid health clinics.--An

 4  entity licensed or certified under chapter 624, chapter 636,

 5  or chapter 641 shall not be liable for the medical negligence

 6  of a health care provider with whom the licensed or certified

 7  entity has entered into a contract, other than an employee of

 8  such licensed or certified entity, unless the licensed or

 9  certified entity expressly directs or exercises actual control

10  over the specific conduct that caused injury.

11         Section 65.  Subsection (2) of section 768.13, Florida

12  Statutes, is amended to read:

13         768.13 Good Samaritan Act; immunity from civil

14  liability.--

15         (2)(a)  Any person, including those licensed to

16  practice medicine, who gratuitously and in good faith renders

17  emergency care or treatment either in direct response to

18  emergency situations related to and arising out of a public

19  health emergency declared pursuant to s. 381.00315, a state of

20  emergency which has been declared pursuant to s. 252.36 or at

21  the scene of an emergency outside of a hospital, doctor's

22  office, or other place having proper medical equipment,

23  without objection of the injured victim or victims thereof,

24  shall not be held liable for any civil damages as a result of

25  such care or treatment or as a result of any act or failure to

26  act in providing or arranging further medical treatment where

27  the person acts as an ordinary reasonably prudent person would

28  have acted under the same or similar circumstances.

29         (b)1.  Any health care provider, including a hospital

30  licensed under chapter 395, providing emergency services

31  pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s.


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    CS for SB 2-D                            First Engrossed (ntc)



 1  395.401, s. 395.1041, or s. 401.45 any employee of such

 2  hospital working in a clinical area within the facility and

 3  providing patient care, and any person licensed to practice

 4  medicine who in good faith renders medical care or treatment

 5  necessitated by a sudden, unexpected situation or occurrence

 6  resulting in a serious medical condition demanding immediate

 7  medical attention, for which the patient enters the hospital

 8  through its emergency room or trauma center, or necessitated

 9  by a public health emergency declared pursuant to s. 381.00315

10  shall not be held liable for any civil damages as a result of

11  such medical care or treatment unless such damages result from

12  providing, or failing to provide, medical care or treatment

13  under circumstances demonstrating a reckless disregard for the

14  consequences so as to affect the life or health of another.

15         2.  The immunity provided by this paragraph applies

16  does not apply to damages as a result of any act or omission

17  of providing medical care or treatment, including diagnosis:

18         a.  Which occurs prior to the time after the patient is

19  stabilized and is capable of receiving medical treatment as a

20  nonemergency patient, unless surgery is required as a result

21  of the emergency within a reasonable time after the patient is

22  stabilized, in which case the immunity provided by this

23  paragraph applies to any act or omission of providing medical

24  care or treatment which occurs prior to the stabilization of

25  the patient following the surgery.; or

26         b.  Which is related Unrelated to the original medical

27  emergency.

28         3.  For purposes of this paragraph, "reckless

29  disregard" as it applies to a given health care provider

30  rendering emergency medical services shall be such conduct

31  that which a health care provider knew or should have known,


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    CS for SB 2-D                            First Engrossed (ntc)



 1  at the time such services were rendered, created an

 2  unreasonable risk of injury so as to affect the life or health

 3  of another, and such risk was substantially greater than that

 4  which is necessary to make the conduct negligent. would be

 5  likely to result in injury so as to affect the life or health

 6  of another, taking into account the following to the extent

 7  they may be present;

 8         a.  The extent or serious nature of the circumstances

 9  prevailing.

10         b.  The lack of time or ability to obtain appropriate

11  consultation.

12         c.  The lack of a prior patient physician relationship.

13         d.  The inability to obtain an appropriate medical

14  history of the patient.

15         e.  The time constraints imposed by coexisting

16  emergencies.

17         4.  Every emergency care facility granted immunity

18  under this paragraph shall accept and treat all emergency care

19  patients within the operational capacity of such facility

20  without regard to ability to pay, including patients

21  transferred from another emergency care facility or other

22  health care provider pursuant to Pub. L. No. 99-272, s. 9121.

23  The failure of an emergency care facility to comply with this

24  subparagraph constitutes grounds for the department to

25  initiate disciplinary action against the facility pursuant to

26  chapter 395.

27         (c)1.  Any health care practitioner as defined in s.

28  456.001(4) who is in a hospital attending to a patient of his

29  or her practice or for business or personal reasons unrelated

30  to direct patient care, and who voluntarily responds to

31  provide care or treatment to a patient with whom at that time


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    CS for SB 2-D                            First Engrossed (ntc)



 1  the practitioner does not have a then-existing health care

 2  patient-practitioner relationship, and when such care or

 3  treatment is necessitated by a sudden or unexpected situation

 4  or by an occurrence that demands immediate medical attention,

 5  shall not be held liable for any civil damages as a result of

 6  any act or omission relative to that care or treatment, unless

 7  that care or treatment is proven to amount to conduct that is

 8  willful and wanton and would likely result in injury so as to

 9  affect the life or health of another.

10         2.  The immunity provided by this paragraph does not

11  apply to damages as a result of any act or omission of

12  providing medical care or treatment unrelated to the original

13  situation that demanded immediate medical attention.

14         3.  For purposes of this paragraph, the Legislature's

15  intent is to encourage health care practitioners to provide

16  necessary emergency care to all persons without fear of

17  litigation as described in this paragraph.

18         (c)  Any person who is licensed to practice medicine,

19  while acting as a staff member or with professional clinical

20  privileges at a nonprofit medical facility, other than a

21  hospital licensed under chapter 395, or while performing

22  health screening services, shall not be held liable for any

23  civil damages as a result of care or treatment provided

24  gratuitously in such capacity as a result of any act or

25  failure to act in such capacity in providing or arranging

26  further medical treatment, if such person acts as a reasonably

27  prudent person licensed to practice medicine would have acted

28  under the same or similar circumstances.

29         Section 66.  Subsection (8) of section 768.21, Florida

30  Statutes, is amended to read:

31  


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 1         768.21  Damages.--All potential beneficiaries of a

 2  recovery for wrongful death, including the decedent's estate,

 3  shall be identified in the complaint, and their relationships

 4  to the decedent shall be alleged.  Damages may be awarded as

 5  follows:

 6         (8)  The damages specified in subsection (3) shall not

 7  be recoverable by adult children and the damages specified in

 8  subsection (4) shall not be recoverable by parents of an adult

 9  child with respect to claims for medical negligence

10  malpractice as defined by s. 766.106(1).

11         Section 67.  Present subsections (12) through (19) of

12  section 768.28, Florida Statutes, as amended by section 9 of

13  chapter 2003-159, Laws of Florida, by section 1903 of chapter

14  2003-261, Laws of Florida, and by section 1 of chapter

15  2003-290, Laws of Florida, are renumbered as subsections (13)

16  through (20), respectively, and a new subsection (12) is added

17  to that section to read:

18         768.28  Waiver of sovereign immunity in tort actions;

19  recovery limits; limitation on attorney fees; statute of

20  limitations; exclusions; indemnification; risk management

21  programs.--

22         (12)(a)  A health care practitioner, as defined in s.

23  456.001(4), who has contractually agreed to act as an agent of

24  a state university board of trustees to provide medical

25  services to a student-athlete for participation in or as a

26  result of intercollegiate athletics, to include team

27  practices, training, and competitions, shall be considered an

28  agent of the respective state university board of trustees,

29  for the purposes of this section, while acting within the

30  scope of and pursuant to guidelines established in that

31  contract. The contracts shall provide for the indemnification


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 1  of the state by the agent for any liabilities incurred up to

 2  the limits set out in this chapter.

 3         (b)  This subsection shall not be construed as

 4  designating persons providing contracted health care services

 5  to athletes as employees or agents of a state university board

 6  of trustees for the purposes of chapter 440.

 7         Section 68.  Section 768.77, Florida Statutes, is

 8  amended to read:

 9         768.77  Itemized verdict.--

10         (1)  Except as provided in subsection (2), in any

11  action to which this part applies in which the trier of fact

12  determines that liability exists on the part of the defendant,

13  the trier of fact shall, as a part of the verdict, itemize the

14  amounts to be awarded to the claimant into the following

15  categories of damages:

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

17  economic losses;

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

19  noneconomic losses; and

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

21  damages, if applicable.

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

23  or wrongful death arising out of medical malpractice, whether

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

25  trier of fact determines that liability exists on the part of

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

27  verdict, itemize the amounts to be awarded to the claimant

28  into the following categories of damages:

29         (a)  Amounts intended to compensate the claimant for:

30         1.  Past economic losses; and

31  


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 1         2.  Future economic losses, not reduced to present

 2  value, and the number of years or part thereof which the award

 3  is intended to cover;

 4         (b)  Amounts intended to compensate the claimant for:

 5         1.  Past noneconomic losses; and

 6         2.  Future noneconomic losses and the number of years

 7  or part thereof which the award is intended to cover; and

 8         (c)  Amounts awarded to the claimant for punitive

 9  damages, if applicable.

10         Section 69.  Nothing in this act constitutes a waiver

11  of sovereign immunity under section 768.28, Florida Statutes,

12  or contravenes the abrogation of joint and several liability

13  contained in section 766.112, Florida Statutes.

14         Section 70.  Paragraph (c) of subsection (2) of section

15  1006.20, Florida Statutes, as amended by section 2 of chapter

16  2003-129, Laws of Florida, is amended to read:

17         1006.20  Athletics in public K-12 schools.--

18         (2)  ADOPTION OF BYLAWS.--

19         (c)  The organization shall adopt bylaws that require

20  all students participating in interscholastic athletic

21  competition or who are candidates for an interscholastic

22  athletic team to satisfactorily pass a medical evaluation each

23  year prior to participating in interscholastic athletic

24  competition or engaging in any practice, tryout, workout, or

25  other physical activity associated with the student's

26  candidacy for an interscholastic athletic team. Such medical

27  evaluation can only be administered by a practitioner licensed

28  under the provisions of chapter 458, chapter 459, chapter 460,

29  or s. 464.012, and in good standing with the practitioner's

30  regulatory board. The bylaws shall establish requirements for

31  eliciting a student's medical history and performing the


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 1  medical evaluation required under this paragraph, which shall

 2  include a physical assessment of the student's physical

 3  capabilities to participate in interscholastic athletic

 4  competition as contained in a uniform preparticipation

 5  physical evaluation and history form. The evaluation form

 6  shall incorporate the recommendations of the American Heart

 7  Association for participation cardiovascular screening and

 8  shall provide a place for the signature of the practitioner

 9  performing the evaluation with an attestation that each

10  examination procedure listed on the form was performed by the

11  practitioner or by someone under the direct supervision of the

12  practitioner. The form shall also contain a place for the

13  practitioner to indicate if a referral to another practitioner

14  was made in lieu of completion of a certain examination

15  procedure. The form shall provide a place for the practitioner

16  to whom the student was referred to complete the remaining

17  sections and attest to that portion of the examination. The

18  preparticipation physical evaluation form shall advise

19  students to complete a cardiovascular assessment and shall

20  include information concerning alternative cardiovascular

21  evaluation and diagnostic tests. Practitioners administering

22  medical evaluations pursuant to this subsection must, at a

23  minimum, solicit all information required by, and perform a

24  physical assessment according to, the uniform preparticipation

25  form referred to in this paragraph and must certify, based on

26  the information provided and the physical assessment, that the

27  student is physically capable of participating in

28  interscholastic athletic competition. If the practitioner

29  determines that there are any abnormal findings in the

30  cardiovascular system, the student may not participate until a

31  further cardiovascular assessment, which may include an EKG,


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 1  is performed which indicates that the student is physically

 2  capable of participating in interscholastic athletic

 3  competition. Results of such medical evaluation must be

 4  provided to the school. No student shall be eligible to

 5  participate in any interscholastic athletic competition or

 6  engage in any practice, tryout, workout, or other physical

 7  activity associated with the student's candidacy for an

 8  interscholastic athletic team until the results of the medical

 9  evaluation clearing the student for participation has been

10  received and approved by the school.

11         Section 71.  (1)  The Department of Health shall study

12  and report to the Legislature as to whether medical review

13  panels should be included as part of the presuit process in

14  medical malpractice litigation. Medical review panels review a

15  medical malpractice case during the presuit process and make

16  judgements on the merits of the case based on established

17  standards of care with the intent of reducing the number of

18  frivolous claims. The panel's report could be used as

19  admissible evidence at trial or for other purposes.

20         (a)  The department's report should address:

21         1.  Historical use of medical review panels and similar

22  pretrial programs in this state, including the mediation

23  panels created by chapter 75-9, Laws of Florida.

24         2.  Constitutional issues relating to the use of

25  medical review panels.

26         3.  The use of medical review panels or similar

27  programs in other states.

28         4.  Whether medical review panels or similar panels

29  should be created for use during the presuit process.

30         5.  Other recommendations and information that the

31  department deems appropriate.


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 1         (b)  In submitting its report with respect to

 2  subparagraphs (a)1.-3., the department should identify at a

 3  minimum:

 4         1.  The percentage of medical malpractice claims

 5  submitted to the panels during the time period the panels were

 6  in existence.

 7         2.  The percentage of claims that were settled while

 8  the panels were in existence and the percentage of claims that

 9  were settled in the 3 years prior to the establishment of such

10  panels or, for each panel which no longer exists, 3 years

11  after the dissolution of such panels.

12         3.  In those states where panels have been

13  discontinued, whether additional safeguards have been

14  implemented to avoid the filing of frivolous lawsuits and what

15  those additional safeguards are.

16         4.  How the rates for medical malpractice insurance in

17  states utilizing such panels compares with the rates in states

18  not utilizing such panels.

19         5.  Whether, and to what extent, a finding by a panel

20  is subject to review and the burden of proof required to

21  overcome a finding by the panel.

22         (2)  If the department finds that medical review panels

23  or a similar structure should be created in this state, it

24  shall include draft legislation to implement its

25  recommendations in its report.

26         (3)  The department shall submit its report to the

27  Speaker of the House of Representatives and the President of

28  the Senate no later than December 31, 2003.

29         Section 72.  Subsection (1) of section 391.025, Florida

30  Statutes, as amended by section 409 of chapter 2003-261, Laws

31  of Florida, is amended to read:


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 1         391.025  Applicability and scope.--

 2         (1)  This act applies to health services provided to

 3  eligible individuals who are:

 4         (a)1.  Enrolled in the Medicaid program;

 5         2.(b)  Enrolled in the Florida Kidcare program; and

 6         3.(c)  Uninsured or underinsured, provided that they

 7  meet the financial eligibility requirements established in

 8  this act, and to the extent that resources are appropriated

 9  for their care; or.

10         (b)  Infants who receive an award of compensation under

11  s. 766.31(1).

12         Section 73.  Paragraph (f) is added to subsection (2)

13  of section 391.029, Florida Statutes, to read:

14         391.029  Program eligibility.--

15         (2)  The following individuals are financially eligible

16  for the program:

17         (f)  An infant who receives an award of compensation

18  under s. 766.31(1). The Florida Birth-Related Neurological

19  Injury Compensation Association shall reimburse the Children's

20  Medical Services Network the state's share of funding, which

21  must thereafter be used to obtain matching federal funds under

22  Title XXI of the Social Security Act.

23  

24  The department may continue to serve certain children with

25  special health care needs who are 21 years of age or older and

26  who were receiving services from the program prior to April 1,

27  1998.  Such children may be served by the department until

28  July 1, 2000.

29         Section 74.  Subsection (2) of section 766.303, Florida

30  Statutes, is amended to read:

31  


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 1         766.303  Florida Birth-Related Neurological Injury

 2  Compensation Plan; exclusiveness of remedy.--

 3         (2)  The rights and remedies granted by this plan on

 4  account of a birth-related neurological injury shall exclude

 5  all other rights and remedies of such infant, her or his

 6  personal representative, parents, dependents, and next of kin,

 7  at common law or otherwise, against any person or entity

 8  directly involved with the labor, delivery, or immediate

 9  postdelivery resuscitation during which such injury occurs,

10  arising out of or related to a medical negligence malpractice

11  claim with respect to such injury; except that a civil action

12  shall not be foreclosed where there is clear and convincing

13  evidence of bad faith or malicious purpose or willful and

14  wanton disregard of human rights, safety, or property,

15  provided that such suit is filed prior to and in lieu of

16  payment of an award under ss. 766.301-766.316.  Such suit

17  shall be filed before the award of the division becomes

18  conclusive and binding as provided for in s. 766.311.

19         Section 75.  Section 766.304, Florida Statutes, is

20  amended to read:

21         766.304  Administrative law judge to determine

22  claims.--The administrative law judge shall hear and determine

23  all claims filed pursuant to ss. 766.301-766.316 and shall

24  exercise the full power and authority granted to her or him in

25  chapter 120, as necessary, to carry out the purposes of such

26  sections. The administrative law judge has exclusive

27  jurisdiction to determine whether a claim filed under this act

28  is compensable. No civil action may be brought until the

29  determinations under s. 766.309 have been made by the

30  administrative law judge. If the administrative law judge

31  determines that the claimant is entitled to compensation from


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 1  the association, or if the claimant accepts an award issued

 2  under s. 766.31, no civil action may be brought or continued

 3  in violation of the exclusiveness of remedy provisions of s.

 4  766.303. If it is determined that a claim filed under this act

 5  is not compensable, neither the doctrine of collateral

 6  estoppel nor res judicata shall prohibit the claimant from

 7  pursuing any and all civil remedies available under common law

 8  and statutory law. The findings of fact and conclusions of law

 9  of the administrative law judge shall not be admissible in any

10  subsequent proceeding; however, the sworn testimony of any

11  person and the exhibits introduced into evidence in the

12  administrative case are admissible as impeachment in any

13  subsequent civil action only against a party to the

14  administrative proceeding, subject to the Rules of Evidence.

15  An award action may not be made or paid brought under ss.

16  766.301-766.316 if the claimant recovers under a settlement or

17  a final judgment is entered in a civil action. The division

18  may adopt rules to promote the efficient administration of,

19  and to minimize the cost associated with, the prosecution of

20  claims.

21         Section 76.  Subsections (1) and (2) of section

22  766.305, Florida Statutes, are amended, present subsections

23  (3), (4), (5), and (6) of that section are redesignated as

24  subsections (4), (5), (6), and (7), respectively, and a new

25  subsection (3) is added to that section to read:

26         766.305  Filing of claims and responses; medical

27  disciplinary review.--

28         (1)  All claims filed for compensation under the plan

29  shall commence by the claimant filing with the division a

30  petition seeking compensation.  Such petition shall include

31  the following information:


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 1         (a)  The name and address of the legal representative

 2  and the basis for her or his representation of the injured

 3  infant.

 4         (b)  The name and address of the injured infant.

 5         (c)  The name and address of any physician providing

 6  obstetrical services who was present at the birth and the name

 7  and address of the hospital at which the birth occurred.

 8         (d)  A description of the disability for which the

 9  claim is made.

10         (e)  The time and place the injury occurred.

11         (f)  A brief statement of the facts and circumstances

12  surrounding the injury and giving rise to the claim.

13         (g)  All available relevant medical records relating to

14  the birth-related neurological injury, and an identification

15  of any unavailable records known to the claimant and the

16  reasons for their unavailability.

17         (h)  Appropriate assessments, evaluations, and

18  prognoses, and such other records and documents as are

19  reasonably necessary for the determination of the amount of

20  compensation to be paid to, or on behalf of, the injured

21  infant on account of the birth-related neurological injury.

22         (i)  Documentation of expenses and services incurred to

23  date, which indicates any payment made for such expenses and

24  services, and by whom.

25         (j)  Documentation of any applicable private or

26  governmental source of services or reimbursement relative to

27  the impairments.

28         (2)  The claimant shall furnish the division with as

29  many copies of the petition as required for service upon the

30  association, any physician and hospital named in the petition,

31  and the Division of Medical Quality Assurance, along with a


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 1  $15 filing fee payable to the Division of Administrative

 2  Hearings. Upon receipt of the petition, the division shall

 3  immediately serve the association, by service upon the agent

 4  designated to accept service on behalf of the association, by

 5  registered or certified mail, and shall mail copies of the

 6  petition, by registered or certified mail, to any physician,

 7  health care provider, and hospital named in the petition, and

 8  shall furnish a copy by regular mail to the Division of

 9  Medical Quality Assurance, and the Agency for Health Care

10  Administration.

11         (3)  The claimant shall furnish to the Florida

12  Birth-Related Neurological Injury Compensation Association the

13  following information, which must be filed with the

14  association within 10 days after the filing of the petition as

15  set forth in s. 766.305(1):

16         (a)  All available relevant medical records relating to

17  the birth-related neurological injury and a list identifying

18  any unavailable records known to the claimant and the reasons

19  for the records' unavailability.

20         (b)  Appropriate assessments, evaluations, and

21  prognoses and such other records and documents as are

22  reasonably necessary for the determination of the amount of

23  compensation to be paid to, or on behalf of, the injured

24  infant on account of the birth-related neurological injury.

25         (c)  Documentation of expenses and services incurred to

26  date which identifies any payment made for such expenses and

27  services and the payor.

28         (d)  Documentation of any applicable private or

29  governmental source of services or reimbursement relative to

30  the impairments.

31  


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 1  The information required by (a)-(d) shall remain confidential

 2  and exempt under the provisions of s. 766.315(5)(b).

 3         Section 77.  Subsection (4) is added to section

 4  766.309, Florida Statutes, to read:

 5         766.309  Determination of claims; presumption; findings

 6  of administrative law judge binding on participants.--

 7         (4) If it is in the interest of judicial economy or if

 8  requested to by the claimant, the administrative law judge may

 9  bifurcate the proceeding addressing compensability and notice

10  pursuant to s. 766.316 first, and addressing an award pursuant

11  to s. 766.31, if any, in a separate proceeding. The

12  administrative law judge may issue a final order on

13  compensability and notice which is subject to appeal under s.

14  766.311, prior to issuance of an award pursuant to s. 766.31.

15         Section 78.  Subsection (1) of section 766.31, Florida

16  Statutes, is amended to read:

17         766.31  Administrative law judge awards for

18  birth-related neurological injuries; notice of award.--

19         (1)  Upon determining that an infant has sustained a

20  birth-related neurological injury and that obstetrical

21  services were delivered by a participating physician at the

22  birth, the administrative law judge shall make an award

23  providing compensation for the following items relative to

24  such injury:

25         (a)  Actual expenses for medically necessary and

26  reasonable medical and hospital, habilitative and training,

27  family residential or custodial care, professional

28  residential, and custodial care and service, for medically

29  necessary drugs, special equipment, and facilities, and for

30  related travel. However, such expenses shall not include:

31  


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 1         1.  Expenses for items or services that the infant has

 2  received, or is entitled to receive, under the laws of any

 3  state or the Federal Government, except to the extent such

 4  exclusion may be prohibited by federal law.

 5         2.  Expenses for items or services that the infant has

 6  received, or is contractually entitled to receive, from any

 7  prepaid health plan, health maintenance organization, or other

 8  private insuring entity.

 9         3.  Expenses for which the infant has received

10  reimbursement, or for which the infant is entitled to receive

11  reimbursement, under the laws of any state or the Federal

12  Government, except to the extent such exclusion may be

13  prohibited by federal law.

14         4.  Expenses for which the infant has received

15  reimbursement, or for which the infant is contractually

16  entitled to receive reimbursement, pursuant to the provisions

17  of any health or sickness insurance policy or other private

18  insurance program.

19  

20  Expenses included under this paragraph shall be limited to

21  reasonable charges prevailing in the same community for

22  similar treatment of injured persons when such treatment is

23  paid for by the injured person.

24         (b)1.  Periodic payments of an award to the parents or

25  legal guardians of the infant found to have sustained a

26  birth-related neurological injury, which award shall not

27  exceed $100,000. However, at the discretion of the

28  administrative law judge, such award may be made in a lump

29  sum.

30         2.  Death benefit for the infant in an amount of

31  $10,000 Payment for funeral expenses not to exceed $1,500.


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 1         (c)  Reasonable expenses incurred in connection with

 2  the filing of a claim under ss. 766.301-766.316, including

 3  reasonable attorney's fees, which shall be subject to the

 4  approval and award of the administrative law judge. In

 5  determining an award for attorney's fees, the administrative

 6  law judge shall consider the following factors:

 7         1.  The time and labor required, the novelty and

 8  difficulty of the questions involved, and the skill requisite

 9  to perform the legal services properly.

10         2.  The fee customarily charged in the locality for

11  similar legal services.

12         3.  The time limitations imposed by the claimant or the

13  circumstances.

14         4.  The nature and length of the professional

15  relationship with the claimant.

16         5.  The experience, reputation, and ability of the

17  lawyer or lawyers performing services.

18         6.  The contingency or certainty of a fee.

19  

20  Should there be a final determination of compensability, and

21  the claimants accept an award under this section, the

22  claimants shall not be liable for any expenses, including

23  attorney's fees, incurred in connection with the filing of a

24  claim under ss. 766.301-766.316 other than those expenses

25  awarded under this section.

26         Section 79.  Paragraph (a) and paragraph (c) of

27  subsection (4) of section 766.314, Florida Statutes, as

28  amended by section 4 of chapter 2003-258, Laws of Florida, and

29  by section 1901 of chapter 2003-261, Laws of Florida, are

30  amended, paragraph (d) is added to that subsection, and

31  


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 1  paragraph (a) of subsection (5) of that section is amended to

 2  read:

 3         766.314  Assessments; plan of operation.--

 4         (4)  The following persons and entities shall pay into

 5  the association an initial assessment in accordance with the

 6  plan of operation:

 7         (a)  On or before October 1, 1988, each hospital

 8  licensed under chapter 395 shall pay an initial assessment of

 9  $50 per infant delivered in the hospital during the prior

10  calendar year, as reported to the Agency for Health Care

11  Administration; provided, however, that a hospital owned or

12  operated by the state or a county, special taxing district, or

13  other political subdivision of the state shall not be required

14  to pay the initial assessment or any assessment required by

15  subsection (5).  The term "infant delivered" includes live

16  births and not stillbirths, but the term does not include

17  infants delivered by employees or agents of the board of

18  trustees of a state university Board of Regents or those born

19  in a teaching hospital as defined in s. 408.07. The initial

20  assessment and any assessment imposed pursuant to subsection

21  (5) may not include any infant born to a charity patient (as

22  defined by rule of the Agency for Health Care Administration)

23  or born to a patient for whom the hospital receives Medicaid

24  reimbursement, if the sum of the annual charges for charity

25  patients plus the annual Medicaid contractuals of the hospital

26  exceeds 10 percent of the total annual gross operating

27  revenues of the hospital.  The hospital is responsible for

28  documenting, to the satisfaction of the association, the

29  exclusion of any birth from the computation of the assessment.

30  Upon demonstration of financial need by a hospital, the

31  


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 1  association may provide for installment payments of

 2  assessments.

 3         (c)  On or before December 1, 1988, each physician

 4  licensed pursuant to chapter 458 or chapter 459 who wishes to

 5  participate in the Florida Birth-Related Neurological Injury

 6  Compensation Plan and who otherwise qualifies as a

 7  participating physician under ss. 766.301-766.316 shall pay an

 8  initial assessment of $5,000. However, if the physician is

 9  either a resident physician, assistant resident physician, or

10  intern in an approved postgraduate training program, as

11  defined by the Board of Medicine or the Board of Osteopathic

12  Medicine by rule, and is supervised in accordance with program

13  requirements established by the Accreditation Council for

14  Graduate Medical Education or the American Osteopathic

15  Association by a physician who is participating in the plan,

16  such resident physician, assistant resident physician, or

17  intern is deemed to be a participating physician without the

18  payment of the assessment.  Participating physicians also

19  include any employee of the board of trustees of a state

20  university Board of Regents who has paid the assessment

21  required by this paragraph and paragraph (5)(a), and any

22  certified nurse midwife supervised by such employee.

23  Participating physicians include any certified nurse midwife

24  who has paid 50 percent of the physician assessment required

25  by this paragraph and paragraph (5)(a) and who is supervised

26  by a participating physician who has paid the assessment

27  required by this paragraph and paragraph (5)(a). Supervision

28  for nurse midwives shall require that the supervising

29  physician will be easily available and have a prearranged plan

30  of treatment for specified patient problems which the

31  supervised certified nurse midwife may carry out in the


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    CS for SB 2-D                            First Engrossed (ntc)



 1  absence of any complicating features.  Any physician who

 2  elects to participate in such plan on or after January 1,

 3  1989, who was not a participating physician at the time of

 4  such election to participate and who otherwise qualifies as a

 5  participating physician under ss. 766.301-766.316 shall pay an

 6  additional initial assessment equal to the most recent

 7  assessment made pursuant to this paragraph, paragraph (5)(a),

 8  or paragraph (7)(b).

 9         (d)  Any hospital located in a county with a population

10  in excess of 1.1 million as of January 1, 2003, as determined

11  by the Agency for Health Care Administration under the Health

12  Care Responsibility Act, may elect to pay the fee for the

13  participating physician and the certified nurse midwife if the

14  hospital first determines that the primary motivating purpose

15  for making such payment is to ensure coverage for the

16  hospital's patients under the provisions of ss.

17  766.301-766.316; however, no hospital may restrict any

18  participating physician or nurse midwife, directly or

19  indirectly, from being on the staff of hospitals other than

20  the staff of the hospital making the payment. Each hospital

21  shall file with the association an affidavit setting forth

22  specifically the reasons why the hospital elected to make the

23  payment on behalf of each participating physician and

24  certified nurse midwife. The payments authorized under this

25  paragraph shall be in addition to the assessment set forth in

26  paragraph (5)(a).

27         (5)(a)  Beginning January 1, 1990, the persons and

28  entities listed in paragraphs (4)(b) and (c), except those

29  persons or entities who are specifically excluded from said

30  provisions, as of the date determined in accordance with the

31  plan of operation, taking into account persons licensed


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    CS for SB 2-D                            First Engrossed (ntc)



 1  subsequent to the payment of the initial assessment, shall pay

 2  an annual assessment in the amount equal to the initial

 3  assessments provided in paragraphs (4)(b) and (c). If payment

 4  of the annual assessment by a physician is received by the

 5  association by January 31 of any calendar year, the physician

 6  shall qualify as a participating physician for that entire

 7  calendar year. If the payment is received after January 31 of

 8  any calendar year, the physician shall qualify as a

 9  participating physician for that calendar year only from the

10  date the payment was received by the association. On January

11  1, 1991, and on each January 1 thereafter, the association

12  shall determine the amount of additional assessments necessary

13  pursuant to subsection (7), in the manner required by the plan

14  of operation, subject to any increase determined to be

15  necessary by the Department of Insurance pursuant to paragraph

16  (7)(b).  On July 1, 1991, and on each July 1 thereafter, the

17  persons and entities listed in paragraphs (4)(b) and (c),

18  except those persons or entities who are specifically excluded

19  from said provisions, shall pay the additional assessments

20  which were determined on January 1. Beginning January 1, 1990,

21  the entities listed in paragraph (4)(a), including those

22  licensed on or after October 1, 1988, shall pay an annual

23  assessment of $50 per infant delivered during the prior

24  calendar year.  The additional assessments which were

25  determined on January 1, 1991, pursuant to the provisions of

26  subsection (7) shall not be due and payable by the entities

27  listed in paragraph (4)(a) until July 1.

28         Section 80.  The Office of Program Policy Analysis and

29  Government Accountability shall complete a study of the

30  eligibility requirements for a birth to be covered under the

31  Florida Birth-Related Neurological Injury Compensation


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    CS for SB 2-D                            First Engrossed (ntc)



 1  Association and submit a report to the Legislature by January

 2  1, 2004, recommending whether or not the statutory criteria

 3  for a claim to qualify for referral to the Florida

 4  Birth-Related Neurological Injury Compensation Association

 5  under section 766.302, Florida Statutes, should be modified.

 6         Section 81.  The sum of $687,786 is appropriated from

 7  the Medical Quality Assurance Trust Fund to the Department of

 8  Health, and seven positions are authorized, for the purpose of

 9  implementing this act during the 2003-2004 fiscal year. The

10  sum of $1,629,994 is appropriated from the Health Care Trust

11  Fund to the Agency for Health Care Administration, and 11

12  positions are authorized, for the purpose of implementing this

13  act during the 2003-2004 fiscal year.

14         Section 82.  The sum of $1,450,000 is appropriated to

15  the Insurance Regulatory Trust Fund in the Department of

16  Financial Services to the Office of Insurance Regulation for

17  the purpose of implementing this act during the 2003-2004

18  fiscal year.

19         Section 83.  The sum of $850,000 in nonrecurring

20  general revenue funds is appropriated to the Agency for Health

21  Care Administration for the purpose of implementing patient

22  safety initiatives during the 2003-2004 fiscal year.

23         Section 84.  If any law that is amended by this act was

24  also amended by a law enacted at the 2003 Regular Session or a

25  2003 special session of the Legislature, such laws shall be

26  construed as if they had been enacted during the same session

27  of the Legislature, and full effect should be given to each if

28  that is possible.

29         Section 85.  If any provision of this act or its

30  application to any person or circumstance is held invalid, the

31  invalidity does not affect other provisions or applications of


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    CS for SB 2-D                            First Engrossed (ntc)



 1  the act which can be given effect without the invalid

 2  provision or application, and to this end the provisions of

 3  this act are severable.

 4         Section 86.  It is the intent of the Legislature to

 5  apply the provisions of this act to prior medical incidents,

 6  to the extent such application is not prohibited by the State

 7  Constitution or Federal Constitution, except that the changes

 8  to chapter 766, Florida Statutes, shall apply only to any

 9  medical incident for which a notice of intent to initiate

10  litigation is mailed on or after the effective date of this

11  act.

12         Section 87.  Except as otherwise expressly provided in

13  this act, this act shall take effect September 15, 2003.

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