HB 1821

1	A bill to be entitled
2	An act relating to medical negligence; amending s.
3	395.0191, F.S.; expanding a hospital's authority to
4	discipline members of the medical staff of the hospital;
5	providing a presumption of reasonable action under certain
6	circumstances; specifying absence of monetary liability of
7	a licensed facility for certain disciplinary actions;
8	amending s. 415.1111, F.S.; requiring medical negligence
9	claims against certain health care providers to be brought
10	under medical malpractice provisions; amending s. 458.320,
11	F.S.; specifying that such section does not create any
12	duty or legal obligation for hospitals or ambulatory
13	surgical centers; creating ss. 458.3175, 459.0066, and
14	466.0115, F.S.; authorizing licensed physicians,
15	osteopathic physicians, and dentists to apply for an
16	expert medical testimony certificate for medical
17	negligence actions; providing for denial or revocation of
18	the certificates; providing construction; requiring the
19	board to adopt rules setting expert witness certificate
20	fees; providing for renewal of certificates; amending s.
21	627.4147, F.S.; deleting the requirement that medical
22	malpractice policies authorize the insurer to admit
23	liability or settle without the consent of the insured;
24	expanding application of a policy requirement relating to
25	a clause stating whether an insured has the exclusive
26	right to veto any offer of admission of liability,
27	arbitration, or settlement; amending s. 766.102, F.S.;
28	limiting expert testimony regarding the prevailing
29	professional standard of care by physicians or dentists to
30	licensed or certified medical experts; prohibiting
31	admissibility of certain testimony under certain
32	circumstances; amending s. 766.202, F.S.; revising the
33	definition of the term "periodic payment"; providing
34	requirements and procedures for periodic payments;
35	including application to future noneconomic damages;
36	revising bond or security requirements; amending s.
37	768.78, F.S.; including future noneconomic damages under
38	alternative methods of payment of damage awards;
39	authorizing defendants to elect to make lump-sum payments
40	rather than periodic payments for future economic or
41	future noneconomic damages; authorizing the payment of
42	certain losses for a shorter period of time under certain
43	circumstances; authorizing a defendant to contractually
44	obligate certain companies to make payments on behalf of
45	the defendant; authorizing claimants to petition the court
46	to include attorney's fees in such periodic payment
47	provisions; providing for modification of periodic
48	payments or for requiring additional security by order of
49	the court under certain circumstances; providing
50	requirements and procedures for making periodic payments;
51	providing legislative findings and intent relating to
52	providers of emergency services and care and public
53	hospitals and affiliations with not-for-profit colleges
54	and universities with medical schools and other health
55	care practitioner educational programs; amending s.
56	766.1115, F.S.; specifying nonapplicability to certain
57	affiliation agreements or contracts to provide certain
58	comprehensive health care services protected by sovereign
59	immunity; amending s. 768.28, F.S.; expanding a definition
60	of the term "employee" to include certain health care
61	providers; providing sovereign immunity protection to
62	certain colleges, universities, and medical schools
63	providing comprehensive health care services to patients
64	at public hospitals under certain circumstances; including
65	employees of medical schools under such immunity;
66	providing definitions; providing an exception; providing
67	that persons or entities providing emergency services and
68	care shall be agents of the state for purposes of
69	establishing personal immunity in certain situations;
70	requiring reimbursement of the state for certain costs and
71	payments under certain circumstances; providing sanctions;
72	creating s. 877.025, F.S.; prohibiting the solicitation of
73	specified legal business for a profit; providing criminal
74	penalties; prohibiting attorneys from advertising services
75	for business for a profit unless permitted by law;
76	providing a definition; prohibiting attorneys from
77	initiating contact for the purpose of soliciting legal
78	business for a profit; providing civil penalties;
79	providing for equitable relief; providing construction;
80	providing an effective date.
81
82	Be It Enacted by the Legislature of the State of Florida:
83
84	Section 1.  Subsections (7)-(10) of section 395.0191,
85	Florida Statutes, are renumbered as subsections (8)-(11),
86	respectively, a new subsection (7) is added to said section and
87	present subsection (7) is amended, to read:
88	395.0191  Staff membership and clinical privileges.--
89	(7)  A licensed facility shall establish internal protocols
90	for the revocation or suspension of staff privileges or other
91	disciplinary actions against a member of the medical staff,
92	relating to staff membership or clinical privileges. A licensed
93	facility acting in accordance with its internal protocols is
94	presumed to have acted reasonably under the circumstances absent
95	clear and convincing evidence to the contrary.
96	(8)(7)  There shall be no monetary liability on the part
97	of, and no cause of action for injunctive relief or damages
98	shall arise against, any licensed facility, its governing board
99	or governing board members, medical staff, or disciplinary board
100	or against its agents, investigators, witnesses, or employees,
101	or against any other person, for any action arising out of or
102	related to carrying out the provisions of this section including
103	the revocation or suspension of staff privileges or other
104	disciplinary action, absent intentional fraud.
105	Section 2.  Section 415.1111, Florida Statutes, is amended
106	to read:
107	415.1111  Civil actions.--A vulnerable adult who has been
108	abused, neglected, or exploited as specified in this chapter has
109	a cause of action against any perpetrator and may recover actual
110	and punitive damages for such abuse, neglect, or exploitation.
111	The action may be brought by the vulnerable adult, or that
112	person's guardian, by a person or organization acting on behalf
113	of the vulnerable adult with the consent of that person or that
114	person's guardian, or by the personal representative of the
115	estate of a deceased victim without regard to whether the cause
116	of death resulted from the abuse, neglect, or exploitation. The
117	action may be brought in any court of competent jurisdiction to
118	enforce such action and to recover actual and punitive damages
119	for any deprivation of or infringement on the rights of a
120	vulnerable adult. A party who prevails in any such action may be
121	entitled to recover reasonable attorney's fees, costs of the
122	action, and damages. The remedies provided in this section are
123	in addition to and cumulative with other legal and
124	administrative remedies available to a vulnerable adult.
125	Notwithstanding the foregoing, any civil action for damages
126	against any licensee or entity who establishes, controls,
127	conducts, manages, or operates a facility licensed under part II
128	of chapter 400 relating to its operation of the licensed
129	facility shall be brought pursuant to s. 400.023, or against any
130	licensee or entity who establishes, controls, conducts, manages,
131	or operates a facility licensed under part III of chapter 400
132	relating to its operation of the licensed facility shall be
133	brought pursuant to s. 400.429. Such licensee or entity shall
134	not be vicariously liable for the acts or omissions of its
135	employees or agents or any other third party in an action
136	brought under this section. Notwithstanding the provisions of
137	this section, any claim against a health care provider as
138	defined in s. 766.202(4) that qualifies as a claim for medical
139	negligence as defined in s. 766.106(1)(a) shall be brought
140	pursuant to chapter 766.
141	Section 3.  Subsection (9) of section 458.320, Florida
142	Statutes, is renumbered as subsection (10), and a new subsection
143	(9) is added to said section, to read:
144	458.320  Financial responsibility.--
145	(9)  Nothing in this section creates any duty or legal
146	obligation on the part of any entity licensed pursuant to
147	chapter 395.
148	Section 4.  Section 458.3175, Florida Statutes, is created
149	to read:
150	458.3175  Expert witness certificate.--
151	(1)  Any physician who holds a valid, active license to
152	practice medicine in any other state, who pays an application
153	fee in an amount set by the board, and who has not had a
154	previous expert witness certificate revoked by the board may
155	apply for a certificate to provide expert medical testimony in
156	connection with any medical negligence litigation pending in
157	this state.
158	(2)  The board shall approve an expert witness certificate
159	for any physician who holds a valid, active license to practice
160	medicine in another state, but may deny an expert witness
161	certificate for an applicant if the board determines the
162	applicant has been disciplined in another state by the medical
163	licensing entity for fraud, dishonesty, deception, coercion,
164	intimidation, undue influence, incompetence, or substance abuse.
165	Once an expert medical certificate is granted, the board may
166	revoke the expert witness certificate if the board finds the
167	certificateholder has been disciplined in another state by the
168	medical licensing entity for fraud, dishonesty, deception,
169	coercion, intimidation, undue influence, incompetence, or
170	substance abuse or if the board finds the certificateholder has
171	committed these acts while testifying in a medical negligence
172	proceeding in this state.
173	(3)  Nothing in this section may be construed to authorize
174	a physician who is not licensed to practice medicine in this
175	state to qualify for or otherwise engage in the practice of
176	medicine in this state.
177	(4)  The board shall adopt rules to implement this section,
178	including rules setting the amount of the expert witness
179	certificate application fee. The application fees for expert
180	witness certificates may not exceed the cost to administer the
181	certification program. An expert witness certificate is subject
182	to renewal, upon payment of applicable fees, every 2 years.
183	Section 5.  Section 459.0066, Florida Statutes, is created
184	to read:
185	459.0066  Expert witness certificate.--
186	(1)  Any osteopathic physician who holds a valid, active
187	license to practice osteopathic medicine in any other state, who
188	pays an application fee in an amount set by the board, and who
189	has not had a previous expert witness certificate revoked by the
190	board may apply for a certificate to provide expert medical
191	testimony in connection with any medical negligence litigation
192	pending in this state.
193	(2)  The board shall approve an expert witness certificate
194	for any osteopathic physician who holds a valid, active license
195	to practice medicine in another state, but may deny an expert
196	witness certificate for an applicant if the board determines the
197	applicant has been disciplined in another state by the medical
198	licensing entity for fraud, dishonesty, deception, coercion,
199	intimidation, undue influence, incompetence, or substance abuse.
200	Once an expert medical certificate is granted, the board may
201	revoke the expert witness certificate if the board finds the
202	certificateholder has been disciplined in another state by the
203	medical licensing entity for fraud, dishonesty, deception,
204	coercion, intimidation, undue influence, incompetence, or
205	substance abuse or if the board finds the certificateholder has
206	committed these acts while testifying in a medical negligence
207	proceeding in this state.
208	(3)  Nothing in this section may be construed to authorize
209	an osteopathic physician who is not licensed to practice
210	osteopathic medicine in this state to qualify for or otherwise
211	engage in the practice of osteopathic medicine in this state.
212	(4)  The board shall adopt rules to implement this section,
213	including rules setting the amount of the expert witness
214	certificate application fee. The application fees for expert
215	witness certificates may not exceed the cost to administer the
216	certification program. An expert witness certificate is subject
217	to renewal, upon payment of applicable fees, every 2 years.
218	Section 6.  Section 466.0115, Florida Statutes, is created
219	to read:
220	466.0115  Expert witness certificate --
221	(1)  Any dentist who holds a valid, active license to
222	practice dentistry in any other state, who pays an application
223	fee in an amount set by the board, and who has not had a
224	previous expert witness certificate revoked by the board may
225	apply for a certificate to provide expert dental testimony in
226	connection with any medical negligence litigation pending in
227	this state.
228	(2)  The board shall approve an expert witness certificate
229	for any dentist who holds a valid, active license to practice
230	dentistry in another state, but may deny an expert witness
231	certificate for an applicant if the board determines the
232	applicant has been disciplined in another state by the dentistry
233	licensing entity for fraud, dishonesty, deception, coercion,
234	intimidation, undue influence, incompetence, or substance abuse.
235	Once an expert medical certificate is granted, the board may
236	revoke the expert witness certificate if the board finds the
237	certificateholder has been disciplined in another state by the
238	dentistry licensing entity for fraud, dishonesty, deception,
239	coercion, intimidation, undue influence, incompetence, or
240	substance abuse or if the board finds the certificateholder has
241	committed these acts while testifying in a medical negligence
242	proceeding in this state.
243	(3)  Nothing in this section may be construed to authorize
244	a dentist who is not licensed to practice dentistry in this
245	state to qualify for or otherwise engage in the practice of
246	dentistry in this state.
247	(4) The board shall adopt rules to implement this section,
248	including rules setting the amount of the expert witness
249	certificate application fee.
250	Section 7.  Subsection (1) of section 627.4147, Florida
251	Statutes, is amended to read:
252	627.4147  Medical malpractice insurance contracts.--
253	(1)  In addition to any other requirements imposed by law,
254	each self-insurance policy as authorized under s. 627.357 or s.
255	624.462 or insurance policy providing coverage for claims
256	arising out of the rendering of, or the failure to render,
257	medical care or services, including those of the Florida Medical
258	Malpractice Joint Underwriting Association, shall include:
259	(a)  A clause requiring the insured to cooperate fully in
260	the review process prescribed under s. 766.106 if a notice of
261	intent to file a claim for medical malpractice is made against
262	the insured.
263	(b)1.  Except as provided in subparagraph 2., a clause
264	authorizing the insurer or self-insurer to determine, to make,
265	and to conclude, without the permission of the insured, any
266	offer of admission of liability and for arbitration pursuant to
267	s. 766.106, settlement offer, or offer of judgment, if the offer
268	is within the policy limits. It is against public policy for any
269	insurance or self-insurance policy to contain a clause giving
270	the insured the exclusive right to veto any offer for admission
271	of liability and for arbitration made pursuant to s. 766.106,
272	settlement offer, or offer of judgment, when such offer is
273	within the policy limits. However, any offer of admission of
274	liability, settlement offer, or offer of judgment made by an
275	insurer or self-insurer shall be made in good faith and in the
276	best interests of the insured.
277	2.a.  With respect to dentists licensed under chapter 466,
278	A clause clearly stating whether or not the insured has the
279	exclusive right to veto any offer of admission of liability and
280	for arbitration pursuant to s. 766.106, settlement offer, or
281	offer of judgment if the offer is within policy limits. An
282	insurer or self-insurer shall not make or conclude, without the
283	permission of the insured, any offer of admission of liability
284	and for arbitration pursuant to s. 766.106, settlement offer, or
285	offer of judgment, if such offer is outside the policy limits.
286	However, any offer for admission of liability and for
287	arbitration made under s. 766.106, settlement offer, or offer of
288	judgment made by an insurer or self-insurer shall be made in
289	good faith and in the best interest of the insured.
290	2.b.  If the policy contains a clause stating the insured
291	does not have the exclusive right to veto any offer or admission
292	of liability and for arbitration made pursuant to s. 766.106,
293	settlement offer or offer of judgment, the insurer or self-
294	insurer shall provide to the insured or the insured's legal
295	representative by certified mail, return receipt requested, a
296	copy of the final offer of admission of liability and for
297	arbitration made pursuant to s. 766.106, settlement offer or
298	offer of judgment and at the same time such offer is provided to
299	the claimant. A copy of any final agreement reached between the
300	insurer and claimant shall also be provided to the insurer or
301	his or her legal representative by certified mail, return
302	receipt requested not more than 10 days after affecting such
303	agreement.
304	(c)  A clause requiring the insurer or self-insurer to
305	notify the insured no less than 90 days prior to the effective
306	date of cancellation of the policy or contract and, in the event
307	of a determination by the insurer or self-insurer not to renew
308	the policy or contract, to notify the insured no less than 90
309	days prior to the end of the policy or contract period. If
310	cancellation or nonrenewal is due to nonpayment or loss of
311	license, 10 days' notice is required.
312	(d)  A clause requiring the insurer or self-insurer to
313	notify the insured no less than 60 days prior to the effective
314	date of a rate increase. The provisions of s. 627.4133 shall
315	apply to such notice and to the failure of the insurer to
316	provide such notice to the extent not in conflict with this
317	section.
318	Section 8.  Subsection (12) of section 766.102, Florida
319	Statutes, is renumbered as subsection (13), and a new subsection
320	(12) is added to said section to read:
321	766.102  Medical negligence; standards of recovery; expert
322	witness.--
323	(12)  If the party against whom or on whose behalf the
324	expert testimony concerning the prevailing professional standard
325	of care is offered is a physician licensed under chapter 458 or
326	chapter 459 or is a dentist licensed under chapter 466, the
327	expert witness must be licensed in this state under chapter 458,
328	chapter 459, or chapter 466 or hold an expert witness
329	certificate as provided in s. 458.3175, s. 459.0066, or s.
330	466.0115. Expert testimony shall not be admissible unless the
331	expert providing such testimony holds a license issued by this
332	state or an expert witness certificate.
333	Section 9.  Subsection (9) of section 766.202, Florida
334	Statutes, is amended to read:
335	766.202  Definitions; ss. 766.201-766.212.--As used in ss.
336	766.201-766.212, the term:
337	(9)  "Periodic payment" means provision for the structuring
338	of future economic and future noneconomic damages payments, in
339	whole or in part, over a period of time, as follows:
340	(a)  A specific finding must be made of the dollar amount
341	of periodic payments which will compensate for these future
342	damages and future noneconomic damages after offset for
343	collateral sources and after having been reduced to present
344	value shall be made. A periodic payment must be structured to
345	last as long as the claimant lives or the condition of the
346	claimant for which the award was made persists, whichever may be
347	shorter, but without regard for the number of years awarded The
348	total dollar amount of the periodic payments shall equal the
349	dollar amount of all such future damages before any reduction to
350	present value.
351	(b)  A defendant that elects to make periodic payments of
352	either or both future economic damages or future noneconomic
353	damages may contractually obligate a company authorized to do
354	business in this state and rated "A+" or higher by A.M. Best
355	Company to make those periodic payments on behalf of the
356	defendant. Upon a joint petition by the defendant and the
357	company that is contractually obligated to make the periodic
358	payments, the court shall discharge the defendant from any
359	further  obligations to the claimant for those future economic
360	and future noneconomic damages that are to be paid by such
361	company by periodic payments The defendant shall be required to
362	post a bond or security or otherwise to assure full payment of
363	these damages awarded. A bond is not adequate unless it is
364	written by a company authorized to do business in this state and
365	is rated A+ by Best's. If the defendant is unable to adequately
366	assure full payment of the damages, all damages, reduced to
367	present value, shall be paid to the claimant in a lump sum. No
368	bond may be canceled or be subject to cancellation unless at
369	least 60 days' advance written notice is filed with the court
370	and the claimant. Upon termination of periodic payments, the
371	security, or so much as remains, shall be returned to the
372	defendant.
373	(c)  A bond or security may not be required of any
374	defendant or company that is obligated to make periodic payments
375	pursuant to this section. However, if, upon petition by a
376	claimant who is receiving periodic payments pursuant to this
377	section, the court finds there is competent, substantial
378	evidence that the defendant responsible for the periodic
379	payments cannot adequately ensure full and continuous payments
380	thereof or the company that is obligated to make the payments
381	has been rated "B+" or lower by A.M. Best Company and that doing
382	so is in the best interest of the claimant, the court may
383	require the defendant or the company that is obligated to make
384	the periodic payments to provide such additional financial
385	security as the court determines to be reasonable under the
386	circumstances The provision for payment of future damages by
387	periodic payments shall specify the recipient or recipients of
388	the payments, the dollar amounts of the payments, the interval
389	between payments, and the number of payments or the period of
390	time over which payments shall be made.
391	(d)  The provision for the periodic payments must specify
392	the recipient or recipients of the payments, the address to which
393	the payments are to be delivered, and the dollar amount and
394	intervals of the payments. However, in any one year, any payment
395	or payments may not exceed the dollar amount intended by the
396	trier of fact to be awarded each year, after offset for
397	collateral sources. A periodic payment may not be accelerated,
398	deferred, increased, or decreased except by court order based
399	upon the mutual consent and agreement of the claimant, the
400	defendant, whether or not discharged, and the company that is
401	obligated to make the periodic payments, if any, nor may the
402	claimant sell, mortgage, encumber, or anticipate the periodic
403	payments or any part thereof, by assignment or otherwise.
404	Section 10.  Subsection (2) of section 768.78, Florida
405	Statutes, is amended to read:
406	768.78  Alternative methods of payment of damage awards.--
407	(2)(a)  In any action for damages based on personal injury
408	or wrongful death arising out of medical malpractice, whether in
409	tort or contract, in which the trier of fact makes an award to
410	compensate the claimant for future economic or future
411	noneconomic losses, payment of amounts intended to compensate
412	the claimant for these future losses shall be made by one of the
413	following means:
414	1.  The defendant may elect to make a lump-sum payment for
415	either or both of the all damages so assessed, with future
416	economic or future noneconomic losses after offset for
417	collateral sources and after having been and expenses reduced to
418	present value by the court based upon competent, substantial
419	evidence presented to the court by both parties; or
420	2.  The defendant, if determined by the court to be
421	financially capable or adequately insured, may elect to use
422	periodic payments to satisfy in whole or in part the assessed
423	future economic and future noneconomic losses awarded by the
424	trier of fact after offset for collateral sources for as long as
425	the claimant lives or the condition for which the award was made
426	persists, whichever period may be shorter, but without regard
427	for the number of years awarded by the trier of fact. The court
428	shall review and, unless clearly unresponsive to the future
429	needs of the claimant, approve the amounts and schedule of the
430	periodic payments proposed by the defendant. Upon motion of the
431	defendant, whether or not discharged from any obligation to make
432	the payments pursuant to paragraph (b), and the establishment by
433	competent, substantial evidence that the claimant has died or
434	that the condition for which the award was made no longer
435	persists, the court shall enter an order terminating the
436	periodic payments effective the date of the death of the
437	claimant or the date the condition for which the award was made
438	no longer persisted The court shall, at the request of either
439	party, enter a judgment ordering future economic damages, as
440	itemized pursuant to s. 768.77, to be paid by periodic payments
441	rather than lump sum.
442	(b)  A defendant electing to make periodic payments of
443	either or both future economic or future noneconomic damages may
444	contractually obligate a company authorized to do business in
445	this state and rated "A+" or higher by A.M. Best Company to make
446	those periodic payments on behalf of the defendant. Upon a joint
447	petition by the defendant and the company contractually
448	obligated to make the periodic payments, the court shall
449	discharge the defendant from any further obligations to the
450	claimant for those future economic and future noneconomic
451	damages that are to be paid by such company by periodic
452	payments.
453	(c)  Upon notice of a defendant's election to make periodic
454	payments pursuant this subsection, the claimant may request the
455	court modify the periodic payments to reasonably provide for
456	attorney's fees. However, no such modification may be made by
457	the court that would increase the amount the defendant would
458	have been obligated to pay had no such adjustment been made.
459	(d)  A bond or security may not be required of any
460	defendant or company obligated to make periodic payments
461	pursuant to this subsection. However, if, upon petition by a
462	claimant receiving periodic payments pursuant to this
463	subsection, the court finds there is competent, substantial
464	evidence that the defendant responsible for the periodic
465	payments cannot adequately ensure full and continuous payments
466	thereof or the company obligated to make the payments has been
467	rated "B+" or lower by A.M. Best Company and that doing so is in
468	the best interest of the claimant, the court may require the
469	defendant or the company obligated to make the periodic payments
470	to provide such additional financial security as the court may
471	determine reasonable under the circumstances.
472	(e)  The provision for the periodic payments shall specify
473	the recipient or recipients of the payments, the address to
474	which the payments are to be delivered, and the dollar amount
475	and intervals of the payments. However, in no year shall any
476	payment or payments exceed the dollar amount intended by the
477	trier of fact to be awarded each year, after offset for
478	collateral sources. No periodic payment may be accelerated,
479	deferred, increased, or decreased except by court order based
480	upon the mutual consent and agreement of the claimant, the
481	defendant, whether or not discharged, and the company obligated
482	to make the periodic payments, if any, nor shall the claimant
483	have the power to sell, mortgage, encumber, or anticipate the
484	periodic payments or any part thereof, by assignment or
485	otherwise.
486	(f)(b)  For purposes of this subsection, "periodic payment"
487	means the payment of money or delivery of other property to the
488	claimant at regular intervals provision for the spreading of
489	future economic damage payments, in whole or in part, over a
490	period of time, as follows:
491	1.  A specific finding of the dollar amount of periodic
492	payments which will compensate for these future damages after
493	offset for collateral sources shall be made. The total dollar
494	amount of the periodic payments shall equal the dollar amount of
495	all such future damages before any reduction to present value.
496	2.  The defendant shall be required to post a bond or
497	security or otherwise to assure full payment of these damages
498	awarded. A bond is not adequate unless it is written by a
499	company authorized to do business in this state and is rated A+
500	by Best's. If the defendant is unable to adequately assure full
501	payment of the damages, all damages, reduced to present value,
502	shall be paid to the claimant in a lump sum. No bond may be
503	canceled or be subject to cancellation unless at least 60 days'
504	advance written notice is filed with the court and the claimant.
505	Upon termination of periodic payments, the security, or so much
506	as remains, shall be returned to the defendant.
507	3.  The provision for payment of future damages by periodic
508	payments shall specify the recipient or recipients of the
509	payments, the dollar amounts of the payments, the interval
510	between payments, and the number of payments or the period of
511	time over which payments shall be made.
512	(g)  It is the intent of the Legislature to authorize and
513	encourage the payment of awards for future economic and
514	noneconomic losses by periodic payments to meet the continuing
515	needs of the patient while eliminating the misdirection of such
516	funds for purposes not intended by the trier of fact.
517	Section 11.  Legislative findings and intent.--
518	(1)  EMERGENCY SERVICES AND CARE.--
519	(a)  The Legislature finds and declares it to be of vital
520	importance that emergency services and care be provided by
521	hospitals, physicians, and emergency medical services providers
522	to every person in need of such care.
523	(b)  The Legislature finds that emergency services and care
524	providers are critical elements in responding to disaster and
525	emergency situations that might affect our local communities,
526	state, and country.
527	(c)  The Legislature recognizes the importance of
528	maintaining a viable system of providing for the emergency
529	medical needs of the state's residents and visitors.
530	(d)  The Legislature and the Federal Government have
531	required such providers of emergency medical services and care
532	to provide emergency services and care to all persons who
533	present themselves to hospitals seeking such care.
534	(e)  The Legislature finds that the Legislature has further
535	mandated that prehospital emergency medical treatment or
536	transport may not be denied by emergency medical services
537	providers to persons who have or are likely to have an emergency
538	medical condition.
539	(f)  Such governmental requirements have imposed a
540	unilateral obligation for emergency services and care providers
541	to provide services to all persons seeking emergency care
542	without ensuring payment or other consideration for provision of
543	such care.
544	(g)  The Legislature also recognizes that emergency
545	services and care providers provide a significant amount of
546	uncompensated emergency medical care in furtherance of such
547	governmental interest.
548	(h)  The Legislature finds that a significant proportion of
549	the residents of this state who are uninsured or are Medicaid or
550	Medicare recipients are unable to access needed health care
551	because health care providers fear the increased risk of medical
552	malpractice liability.
553	(i)  The Legislature finds that such patients, in order to
554	obtain medical care, are frequently forced to seek care through
555	providers of emergency medical services and care.
556	(j)  The Legislature finds that providers of emergency
557	medical services and care in this state have reported
558	significant problems with both the availability and
559	affordability of professional liability coverage.
560	(k)  The Legislature finds that medical malpractice
561	liability insurance premiums have increased dramatically and a
562	number of insurers have ceased providing medical malpractice
563	insurance coverage for emergency medical services and care in
564	this state. This has resulted in a functional unavailability of
565	medical malpractice insurance coverage for some providers of
566	emergency medical services and care.
567	(l)  The Legislature further finds that certain specialist
568	physicians have resigned from serving on hospital staffs or have
569	otherwise declined to provide on-call coverage to hospital
570	emergency departments due to increased medical malpractice
571	liability exposure created by treating such emergency department
572	patients.
573	(m)  It is the intent of the Legislature that hospitals,
574	emergency medical services providers, and physicians be able to
575	ensure that patients who might need emergency medical services
576	treatment or transportation or who present themselves to
577	hospitals for emergency medical services and care have access to
578	such needed services.
579	(2)  PUBLIC HOSPITALS AND AFFILIATIONS WITH NOT-FOR-PROFIT
580	COLLEGES AND UNIVERSITIES WITH MEDICAL SCHOOLS AND OTHER HEALTH
581	CARE PRACTITIONER EDUCATIONAL PROGRAMS.--
582	(a)  The Legislature finds that access to quality,
583	affordable health care for all residents of this state is a
584	necessary goal for the state and that public hospitals play an
585	essential role in providing access to comprehensive health care
586	services.
587	(b)  The Legislature further finds that access to quality
588	health care at public hospitals is enhanced when public hospitals
589	affiliate and coordinate their common endeavors with medical
590	schools. These affiliations have proven to be an integral part of
591	the delivery of more efficient and economical health care
592	services to patients of public hospitals by offering quality
593	graduate medical education programs to resident physicians who
594	provide patient services at public hospitals. These affiliations
595	ensure continued access to quality comprehensive health care
596	services for residents of this state and therefore should be
597	encouraged in order to maintain and expand such services.
598	(c)  The Legislature finds that when medical schools
599	affiliate or enter into contracts with public hospitals to
600	provide comprehensive health care services to patients of public
601	hospitals, they greatly increase their exposure to claims arising
602	out of alleged medical malpractice and other allegedly negligent
603	acts because some colleges and universities and their medical
604	schools and employees do not have the same level of protection
605	against liability claims as governmental entities and their
606	public employees providing the same patient services to the same
607	public hospital patients.
608	(d)  The Legislature finds that the high cost of litigation,
609	unequal liability exposure, and increased medical malpractice
610	insurance premiums have adversely impacted the ability of some
611	medical schools to permit their employees to provide patient
612	services to patients of public hospitals. This finding is
613	consistent with the report issued in April 2002 by the American
614	Medical Association declaring this state to be one of 12 states
615	in the midst of a medical liability insurance crisis. The crisis
616	in the availability and affordability of medical malpractice
617	insurance is a contributing factor in the reduction of access to
618	quality health care in this state. In the past 15 years, the
619	number of public hospitals in this state has declined
620	significantly. In 1988, 33 hospitals were owned or operated by
621	the state and local governments or established as taxing
622	districts. In 1991, that number dropped to 28. In 2001, only 18
623	remained, 7 of these concentrated in 1 county. Thus, 11 public
624	hospitals serve the other 66 counties of this state. If no
625	corrective action is taken, this health care crisis will lead to
626	a continued reduction of patient services in public hospitals.
627	(e)  The Legislature finds that the public is better served
628	and will benefit from corrective action to address the foregoing
629	concerns. It is imperative that the Legislature further the
630	public benefit by conferring sovereign immunity upon colleges and
631	universities, their medical schools, and their employees when,
632	pursuant to an affiliation agreement or a contract to provide
633	comprehensive health care services, they provide patient services
634	to patients of public hospitals.
635	(f)  It is the intent of the Legislature that colleges and
636	universities that affiliate with public hospitals be granted
637	sovereign immunity protection under s. 768.28, Florida Statutes,
638	in the same manner and to the same extent as the state and its
639	agencies and political subdivisions. It is also the intent of the
640	Legislature that employees of colleges and universities who
641	provide patient services to patients of a public hospital be
642	immune from lawsuits in the same manner and to the same extent as
643	employees and agents of the state and its agencies and political
644	subdivisions and, further, that they not be held personally
645	liable in tort or named as a party defendant in an action while
646	performing patient services except as provided in s.
647	768.28(9)(a), Florida Statutes.
648	Section 12.  Subsection (11) of section 766.1115, Florida
649	Statutes, is amended to read:
650	766.1115  Health care providers; creation of agency
651	relationship with governmental contractors.--
652	(11)  APPLICABILITY.--This section applies to incidents
653	occurring on or after April 17, 1992. This section does not
654	apply to any health care contract entered into by the Department
655	of Corrections which is subject to s. 768.28(10)(a). This
656	section does not apply to any affiliation agreement or contract
657	entered into by a medical school to provide comprehensive health
658	care services to patients at public hospitals which affiliation
659	agreement or contract is subject to s. 768.28(10)(f). Nothing in
660	this section in any way reduces or limits the rights of the
661	state or any of its agencies or subdivisions to any benefit
662	currently provided under s. 768.28.
663	Section 13.  Paragraph (b) of subsection (9) of section
664	768.28, Florida Statutes, is amended, and paragraphs (f) and (g)
665	are added to subsection (10) of said section, to read:
666	768.28  Waiver of sovereign immunity in tort actions;
667	recovery limits; limitation on attorney fees; statute of
668	limitations; exclusions; indemnification; risk management
669	programs.--
670	(9)
671	(b)  As used in this subsection, the term:
672	1.  "Employee" includes any volunteer firefighter.
673	2.  "Officer, employee, or agent" includes, but is not
674	limited to:,
675	a.  Any health care provider when providing services
676	pursuant to s. 766.1115.,
677	b.  Any member of the Florida Health Services Corps, as
678	defined in s. 381.0302, who provides uncompensated care to
679	medically indigent persons referred by the Department of
680	Health., and
681	c.  Any public defender or her or his employee or agent,
682	including, among others, an assistant public defender and an
683	investigator.
684	d.(I)  Any college or university or its medical school that
685	enters into an affiliation agreement or a contract to allow its
686	employees to provide comprehensive health care services to
687	patients treated at public statutory teaching hospitals, any
688	other health care facilities owned or used by a governmental
689	entity, or any other locations under contract with the
690	governmental entity to provide comprehensive health care services
691	to public hospital patients pursuant to paragraph (10)(f).
692	(II)  Any faculty member or other health care professional,
693	practitioner, or ancillary caregiver or employee of a college or
694	university or its medical school that enters into an affiliation
695	agreement or a contract to provide comprehensive health care
696	services with a public hospital or its governmental owner and who
697	provides such services to patients of public hospitals pursuant
698	to paragraph (10)(f).
699	(10)
700	(f)1.  Any medical school that has entered into an
701	affiliation agreement or contract to allow employees of the
702	medical school to provide patient services to patients treated at
703	a public hospital, together with such employees, shall be deemed
704	agents of the governmental entity for purposes of this section
705	and shall be immune from liability for torts in the same manner
706	and to the same extent as the state and its agencies and
707	subdivisions while providing patient services.
708	2.  For purposes of this paragraph, the term:
709	a.  "Employees" means faculty, health care professionals,
710	practitioners, and ancillary caregivers and employees of a
711	medical school.
712	b.  "Medical school" means any not-for-profit college or
713	university with a medical, dental, or nursing school, or any
714	other academic programs of medical education accredited by any
715	association, agency, council, commission, or accrediting body
716	recognized by this state as a condition for licensure of its
717	graduates.
718	c.  "Patient services" means:
719	(I)  Any comprehensive health care services, as defined in
720	s. 641.19(4), including related administrative services to
721	patients of a public hospital.
722	(II)  Supervision of interns, residents, and fellows
723	providing any patient services to patients of a public hospital.
724	(III)  Access to participation in medical research
725	protocols.
726	d.  "Public hospital" means a statutory teaching hospital
727	and any other health care facility owned or used by the state, a
728	county, a municipality, a public authority, a special taxing
729	district with health care responsibilities, or any other local
730	governmental entity, or at any location under contract with the
731	governmental entity.
732	3.  No such employee or agent of such colleges or
733	universities or their medical schools shall be personally liable
734	in tort or named as a party defendant in any action arising from
735	the provision of any patient services to patients of a public
736	hospital, except as provided in paragraph (9)(a).
737	(g)  Except for persons or entities that are otherwise
738	covered under this section, any emergency medical technician,
739	paramedic, or licensee as defined in 401.23, or any health care
740	provider as defined in s. 766.202(4) providing emergency
741	services and care pursuant to s. 395.1041, s. 395.401, or s.
742	401.45 shall be considered agents of the state and the
743	Department of Health, and shall reimburse the state for the
744	actual costs of defending any claim and for any amounts paid by
745	the state in payment of a settlement or judgment arising out of
746	the claim up to the liability limits set forth in this section.
747	Any person or entity who fails to reimburse the state as
748	required shall be subject to license revocation and shall be
749	responsible for all subsequent payments by the state in
750	resolving the underlying cause of action, including any amounts
751	paid pursuant to a claims bill, and for all costs and attorney
752	fees incurred by the state in recovering the original
753	reimbursement amount due and the subsequent payments owed.
754	Section 14.  Section 877.025, Florida Statutes, is created
755	to read:
756	877.025  Solicitation of for-profit legal services relating
757	to medical negligence or retainers therefor; penalty.--
758	(1)  The Legislature has determined that legal advertising
759	that solicits business by inciting a person to file a suit
760	alleging medical negligence destroys the personal responsibility
761	of individuals, fosters frivolous litigation, and demeans the
762	practice of law. This form of solicitation has created a crisis
763	in the state's judicial system, thus creating a compelling state
764	interest in the limited regulation of advertising as set forth
765	in this section.
766	(2)  It is unlawful for any person or her or his agent,
767	employee, or any person acting on her or his behalf to solicit
768	or procure through solicitation, directly or indirectly, legal
769	business for a profit, relating to the filing of a claim of
770	medical negligence, or to solicit or procure through
771	solicitation a retainer, written or oral, or any agreement
772	authorizing an attorney to perform or render legal service for a
773	profit, or to make it a business to solicit or procure such
774	business, retainers, or agreements.
775	(3)  It is unlawful for any person in the employ of or in
776	any capacity attached to any hospital, sanitarium, police
777	department, wrecker service or garage, prison, or court, or for
778	persons authorized to furnish bail bonds, investigators,
779	photographers, or insurance or public adjusters, to communicate
780	directly or indirectly with any attorney or person acting on
781	such attorney's behalf for the purpose of aiding, assisting, or
782	abetting such attorney in the solicitation of legal business for
783	a profit or the procurement through solicitation of a retainer,
784	written or oral, or any agreement authorizing the attorney to
785	perform or render legal services for a profit relating to
786	allegations of medical negligence.
787	(4)  It is unlawful to advertise, using any form of
788	electronic or other media, in a manner that solicits legal
789	business for a profit by urging a person to consider bringing
790	legal action relating to medical negligence.
791	(5)  The term "solicit" means to entreat, request, or
792	incite another to use the services of an attorney or a law firm.
793	In any advertisement subject to this section, the term "solicit"
794	does not mean, include, or prohibit a statement by the attorney,
795	or an appearance, picture, or voice of the attorney who states
796	in such advertisement only the following information:
797	(a)  The name of an attorney or a law firm;
798	(b)  The field of practice of such attorney or law firm,
799	including the prices charged, so long as expressly permitted by
800	rule 4-7.2 of the rules regulating The Florida Bar;
801	(c)  The right of an injured or aggrieved person to seek
802	redress if such person's rights have been violated;
803	(d)  A public service type announcement, so long as it does
804	not entreat, request, or urge another to use the services of an
805	attorney or law firm for the purpose of bringing legal action
806	against another; or
807	(e)  Those matters expressly permitted by rule 4-7.2(c)(11)
808	of the rules regulating the Florida Bar.
809	(6)(a)  Except for violations of subsection (2), any person
810	violating any provision of this section commits a misdemeanor of
811	the first degree, punishable as provided in s. 775.082 or s.
812	775.083.
813	(b)  A person violating subsection (2) shall be liable for
814	a civil penalty of $1,000 for the first offense and $10,000 for
815	each subsequent offense and shall be subject to imposition of
816	injunctive relief based on a presumption that there is no
817	adequate remedy at law available to the public. For purposes of
818	this paragraph, an offense is a single advertisement published
819	in a single print publication or through a single electronic
820	media outlet, regardless of the number of times or in how many
821	issues the advertisement is republished in the same publication
822	or through the same media outlet. The Florida Bar and the
823	Attorney General shall have standing to enforce such penalties
824	and, upon prevailing in such action, shall recover costs and
825	reasonable attorney's fees.
826	(7)  This section shall be taken to be cumulative and shall
827	not be construed to amend or repeal any other valid law, code,
828	ordinance, rule, or penalty now in effect.
829	Section 15.  This act shall take effect upon becoming a
830	law.

CODING: Words stricken are deletions; words underlined are additions.