Senate Bill sb1916c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                           CS for SB 1916

    By the Committee on Health Care; and Senator Saunders





    587-2176-05

  1                      A bill to be entitled

  2         An act relating to medical malpractice

  3         insurance; creating the Enterprise Act for

  4         Patient Protection and Provider Liability;

  5         providing legislative findings; amending s.

  6         395.0197, F.S., relating to internal risk

  7         management programs; conforming provisions to

  8         changes made by the act; amending ss. 458.320

  9         and 459.0085, F.S.; exempting certain

10         allopathic and osteopathic physicians who

11         perform surgery in certain patient safety

12         facilities from the requirement to establish

13         financial responsibility; requiring a licensed

14         physician who is covered for medical negligence

15         claims by a hospital that assumes liability

16         under the act to prominently post notice or

17         provide a written statement to patients;

18         requiring a licensed allopathic physician or a

19         licensed osteopathic physician who meets

20         certain requirements for payment or settlement

21         of a medical malpractice claim and who is

22         covered for medical negligence claims by a

23         hospital that assumes liability under the act

24         to prominently post notice or provide a written

25         statement to patients; creating s. 627.41485,

26         F.S.; authorizing insurers to offer liability

27         insurance coverage to physicians which has an

28         exclusion for certain acts of medical

29         negligence under certain conditions;

30         authorizing the Department of Health to adopt

31         rules; amending s. 766.316, F.S.; requiring

                                  1

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         hospitals that assume liability for affected

 2         physicians under the act to provide notice to

 3         obstetrical patients regarding the limited

 4         no-fault alternative to birth-related

 5         neurological injuries; amending s. 766.110,

 6         F.S.; requiring hospitals that assume liability

 7         for acts of medical negligence under the act to

 8         carry insurance; requiring the hospital's

 9         policy regarding medical liability insurance to

10         satisfy certain statutory

11         financial-responsibility requirements;

12         authorizing an insurer who is authorized to

13         write casualty insurance to write such

14         coverage; authorizing certain hospitals to

15         indemnify certain medical staff for legal

16         liability of loss, damages, or expenses arising

17         from medical malpractice within hospital

18         premises; requiring a hospital to acquire a

19         policy of professional liability insurance or a

20         fund for malpractice coverage; requiring an

21         annual certified financial statement to the

22         Agency for Health Care Administration;

23         authorizing certain hospitals to charge

24         physicians a fee for malpractice coverage;

25         creating s. 766.401, F.S.; providing

26         definitions; creating s. 766.402, F.S.;

27         authorizing an eligible hospital to petition

28         the Agency for Health Care Administration to

29         enter an order certifying the hospital as a

30         patient safety facility; providing requirements

31         for certification as a patient safety facility;

                                  2

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         creating s. 766.403, F.S.; providing

 2         requirements for a hospital to demonstrate that

 3         it is engaged in a common enterprise for the

 4         care and treatment of patients; specifying

 5         required patient safety measures; prohibiting a

 6         report or document generated under the act,

 7         from being admissible or discoverable as

 8         evidence; creating s. 766.404, F.S.;

 9         authorizing the agency to enter an order

10         certifying a hospital as a patient safety

11         facility and providing that the hospital bears

12         liability for acts of medical negligence for

13         its health care providers or an agent of the

14         hospital; providing that certain persons or

15         entities are not liable for medically negligent

16         acts occurring in a certified patient safety

17         facility; requiring that an affected

18         practitioner prominently post notice regarding

19         exemption from personal liability; requiring an

20         affected physician who is covered by an

21         enterprise plan in a licensed facility that

22         receives sovereign immunity to prominently post

23         notice regarding exemption from personal

24         liability; providing that an agency order

25         certifying approval of an enterprise plan is

26         evidence of a hospital's compliance with

27         applicable patient safety requirements;

28         providing circumstances in which notice is not

29         required; providing that the order certifying

30         approval of an enterprise plan applies

31         prospectively to causes of action for medical

                                  3

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         negligence; authorizing the agency to conduct

 2         onsite examinations of a licensed facility;

 3         providing circumstances under which the agency

 4         may revoke its order certifying approval of an

 5         enterprise plan; providing that an employee or

 6         agent of a certified patient safety facility

 7         may not be joined as a defendant in an action

 8         for medical negligence; requiring an affected

 9         physician to cooperate in good faith in an

10         investigation of a claim for medical

11         malpractice; providing a cause of action for

12         failure of a physician to act in good faith;

13         providing that strict liability or liability

14         without fault is not imposed for medical

15         incidents that occur in the affected facility;

16         providing requirements that a claimant must

17         prove to demonstrate medical negligence by an

18         employee, agent, or medical staff of a licensed

19         facility; providing that the act does not

20         create an independent cause of action or waive

21         sovereign immunity; creating s. 766.405, F.S.;

22         requiring an eligible hospital to execute an

23         enterprise plan; requiring certain conditions

24         to be contained within an enterprise plan;

25         creating s. 766.406, F.S.; requiring a

26         certified patient safety facility to report

27         medical incidents occurring on its premises and

28         adverse findings of medical negligence to the

29         Department of Health; authorizing a certified

30         patient safety facility to continue to perform

31         certain peer review activities; creating s.

                                  4

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         766.407, F.S.; providing that an enterprise

 2         plan may require practitioners with clinical

 3         privileges to share in the cost of liability

 4         insurance premiums and require certain

 5         organizations to share in the cost of omnibus

 6         medical liability insurance premiums subject to

 7         certain conditions; authorizing a licensed

 8         facility to impose a reasonable assessment

 9         against an affected practitioner who commits

10         medical negligence; providing for the

11         revocation of clinical privileges for failure

12         to pay the assessment; exempting certain

13         employees and agents from such assessments;

14         creating s. 766.408, F.S.; requiring a

15         certified patient safety facility to submit an

16         annual report to the agency and the

17         Legislature; providing requirements for the

18         annual report; providing that the annual report

19         may include certain information from the Office

20         of Insurance Regulation within the Department

21         of Financial Services; providing that the

22         annual report is subject to public-records

23         requirements, but is not admissible as evidence

24         in a legal proceeding; creating s. 766.409,

25         F.S.; providing rulemaking authority; creating

26         s. 766.410, F.S.; authorizing certain teaching

27         hospitals and eligible hospitals to petition

28         the agency for certification; providing for

29         limitations on damages for eligible hospitals

30         that are certified for compliance with certain

31         patient safety measures; authorizing the agency

                                  5

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         to conduct onsite examinations of certified

 2         eligible hospitals; authorizing the agency to

 3         revoke its order certifying approval of an

 4         enterprise plan; providing that an agency order

 5         certifying approval of an enterprise plan is

 6         evidence of a hospital's compliance with

 7         applicable patient safety requirements;

 8         providing that evidence of noncompliance is

 9         inadmissible in any action for medical

10         malpractice; providing that entry of the

11         agency's order does not impose enterprise

12         liability on the licensed facility for acts or

13         omissions of medical negligence; providing that

14         a hospital may not be approved for

15         certification for both enterprise liability and

16         limitations on damages; amending s. 768.28,

17         F.S.; providing limitations on payment of a

18         claim or judgment for an action for medical

19         negligence within a certified patient safety

20         facility that is covered by sovereign immunity;

21         providing definitions; providing that a

22         certified patient safety facility is an agent

23         of a state university board of trustees to the

24         extent that the licensed facility is solely

25         liable for acts of medical negligence of

26         physicians providing health care services

27         within the licensed facility; providing for

28         severability; providing for broad statutory

29         view of the act; providing for self-execution

30         of the act; providing an effective date.

31  

                                  6

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

 2  

 3         Section 1.  Short title.--This act may be cited as the

 4  "Enterprise Act for Patient Protection and Provider

 5  Liability."

 6         Section 2.  Legislative findings.--

 7         (1)  The Legislature finds that this state is in the

 8  midst of a prolonged medical malpractice insurance crisis that

 9  has serious adverse effects on patients, practitioners,

10  licensed healthcare facilities, and all residents of this

11  state.

12         (2)  The Legislature finds that hospitals are central

13  components of the modern health care delivery system.

14         (3)  The Legislature finds that many of the most

15  serious incidents of medical negligence occur in hospitals,

16  where the most seriously ill patients are treated and where

17  surgical procedures are performed.

18         (4)  The Legislature finds that modern hospitals are

19  complex organizations, that medical care and treatment in

20  hospitals is a complex process, and that, increasingly,

21  medical care and treatment in hospitals is a common enterprise

22  involving an array of responsible employees, agents, and other

23  persons, such as physicians, who are authorized to exercise

24  clinical privileges within the premises.

25         (5)  The Legislature finds that an increasing number of

26  medical incidents in hospitals involve a combination of acts

27  and omissions by employees, agents, and other persons, such as

28  physicians, who are authorized to exercise clinical privileges

29  within the premises.

30         (6)  The Legislature finds that the medical malpractice

31  insurance crisis in this state can be alleviated by the

                                  7

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  adoption of innovative approaches for patient protection in

 2  hospitals which can lead to a reduction in medical errors.

 3         (7)  The Legislature finds statutory incentives are

 4  necessary to facilitate innovative approaches for patient

 5  protection in hospitals.

 6         (8)  The Legislature finds that an enterprise approach

 7  to patient protection and provider liability in hospitals will

 8  lead to a reduction in the frequency and severity of incidents

 9  of medical malpractice in hospitals.

10         (9)  The Legislature finds that a reduction in the

11  frequency and severity of incidents of medical malpractice in

12  hospitals will reduce attorney's fees and other expenses

13  inherent in the medical liability system.

14         (10)  The Legislature finds that making high-quality

15  health care available to the residents of this state is an

16  overwhelming public necessity.

17         (11)  The Legislature finds that medical education in

18  this state is an overwhelming public necessity.

19         (12)  The Legislature finds that statutory teaching

20  hospitals and hospitals owned by and operated by universities

21  that maintain accredited medical schools are essential for

22  high-quality medical care and medical education in this state.

23         (13)  The Legislature finds that the critical mission

24  of statutory teaching hospitals and hospitals owned and

25  operated by universities that maintain accredited medical

26  schools is severely undermined by the ongoing medical

27  malpractice crisis.

28         (14)  The Legislature finds that statutory teaching

29  hospitals and hospitals owned and operated by universities

30  that maintain accredited medical schools are appropriate

31  

                                  8

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  health care facilities for the implementation of innovative

 2  approaches to patient protection and provider liability.

 3         (15)  The Legislature finds an overwhelming public

 4  necessity to impose reasonable limitations on actions for

 5  medical malpractice against statutory teaching hospitals and

 6  hospitals that are owned and operated by universities that

 7  maintain accredited medical schools, in furtherance of the

 8  critical public interest in promoting access to high-quality

 9  medical care, medical education, and innovative approaches to

10  patient protection.

11         (16)  The Legislature finds an overwhelming public

12  necessity for statutory teaching hospitals and hospitals owned

13  and operated by universities that maintain accredited medical

14  schools to implement innovative measures for patient

15  protection and provider liability in order to generate

16  empirical data for state policymakers on the effectiveness of

17  these measures. Such data may lead to broader application of

18  these measures in a wider array of hospitals after a

19  reasonable period of evaluation and review.

20         (17)  The Legislature finds an overwhelming public

21  necessity to promote the academic mission of statutory

22  teaching hospitals and hospitals owned and operated by

23  universities that maintain accredited medical schools.

24  Furthermore, the Legislature finds that the academic mission

25  of these medical facilities is materially enhanced by

26  statutory authority for the implementation of innovative

27  approaches to patient protection and provider liability. Such

28  approaches can be carefully studied and learned by medical

29  students, medical school faculty, and affiliated physicians in

30  appropriate clinical settings, thereby enlarging the body of

31  knowledge concerning patient protection and provider liability

                                  9

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  which is essential for advancement of patient safety,

 2  reduction of expenses inherent in the medical liability

 3  system, and curtailment of the medical malpractice insurance

 4  crisis in this state.

 5         Section 3.  Subsection (3) of section 395.0197, Florida

 6  Statutes, is amended to read:

 7         395.0197  Internal risk management program.--

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

 9  section, other innovative approaches intended to reduce the

10  frequency and severity of medical malpractice and patient

11  injury claims shall be encouraged and their implementation and

12  operation facilitated. Such additional approaches may include

13  extending internal risk management programs to health care

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

15  licensed health care facility for acts or omissions occurring

16  within the licensed facility pursuant to the Enterprise Act

17  for Patient Protection and Provider Liability, inclusive of

18  ss. 766.401-766.409. Each licensed facility shall annually

19  report to the agency and the Department of Health the name and

20  judgments entered against each health care practitioner for

21  which it assumes liability. The agency and Department of

22  Health, in their respective annual reports, shall include

23  statistics that report the number of licensed facilities that

24  assume such liability and the number of health care

25  practitioners, by profession, for whom they assume liability.

26         Section 4.  Subsection (2) and paragraphs (f) and (g)

27  of subsection (5) of section 458.320, Florida Statutes, are

28  amended to read:

29         458.320  Financial responsibility.--

30         (2)  Physicians who perform surgery in an ambulatory

31  surgical center licensed under chapter 395 and, as a

                                  10

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  continuing condition of hospital staff privileges, physicians

 2  who have staff privileges must also establish financial

 3  responsibility 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 which meets the conditions

19  specified for satisfying financial responsibility in s.

20  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 irrevocable

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

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

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

27  The letter of credit must be payable to the physician as

28  beneficiary upon presentment of a final judgment indicating

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

30  upon presentment of a settlement agreement signed by all

31  parties to such agreement when such final judgment or

                                  11

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

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

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

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

 5  claim. The letter of credit must be nonassignable and

 6  nontransferable. The letter of credit must be issued by any

 7  bank or savings association organized and existing under the

 8  laws of this state or any bank or savings association

 9  organized under the laws of the United States which has its

10  principal place of business in this state or has a branch

11  office that is authorized under the laws of this state or of

12  the United States to receive deposits in this state.

13  

14  This subsection shall be inclusive of the coverage in

15  subsection (1). A physician who only performs surgery or who

16  has only clinical privileges or admitting privileges in one or

17  more certified patient safety facilities, which health care

18  facility or facilities are legally liable for medical

19  negligence of affected practitioners, pursuant to the

20  Enterprise Act for Patient Protection and Provider Liability,

21  inclusive of ss. 766.401-766.409, is exempt from the

22  requirements of this subsection.

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

24  do not apply to:

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

26  chapter who meets all of the following criteria:

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

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

29  more than 15 years.

30  

31  

                                  12

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         2.  The licensee has either retired from the practice

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

 3  1,000 patient contact hours per year.

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

 5  medical malpractice resulting in an indemnity exceeding

 6  $25,000 within the previous 5-year period.

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

 8  guilty or nolo contendere to, any criminal violation specified

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

10  state.

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

12  10 years of practice to license revocation or suspension for

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

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

15  chapter or the medical practice act of another jurisdiction.

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

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

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

19  the filing of administrative charges against the physician's

20  license, constitutes action against the physician's license

21  for the purposes of this paragraph.

22         6.  The licensee has submitted a form supplying

23  necessary information as required by the department and an

24  affidavit affirming compliance with this paragraph.

25         7.  The licensee must submit biennially to the

26  department certification stating compliance with the

27  provisions of this paragraph. The licensee must, upon request,

28  demonstrate to the department information verifying compliance

29  with this paragraph.

30  

31  

                                  13

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  A licensee who meets the requirements of this paragraph must

 2  post notice in the form of a sign prominently displayed in the

 3  reception area and clearly noticeable by all patients or

 4  provide a written statement to any person to whom medical

 5  services are being provided. The sign or statement must read

 6  as follows: "Under Florida law, physicians are generally

 7  required to carry medical malpractice insurance or otherwise

 8  demonstrate financial responsibility to cover potential claims

 9  for medical malpractice. However, certain part-time physicians

10  who meet state requirements are exempt from the financial

11  responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND

12  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This

13  notice is provided pursuant to Florida law." In addition, a

14  licensee who is covered for claims of medical negligence

15  arising from care and treatment of patients in a hospital that

16  assumes sole and exclusive liability for all such claims

17  pursuant to the Enterprise Act for Patient Protection and

18  Provider Liability, inclusive of ss. 766.401-766.409, shall

19  post notice in the form of a sign prominently displayed in the

20  reception area and clearly noticeable by all patients or

21  provide a written statement to any person for whom the

22  physician may provide medical care and treatment in any such

23  hospital in accordance with the requirements of s. 766.404.

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

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

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

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

28  medical malpractice either in contract or tort, or from

29  noncompliance with the terms of a settlement agreement arising

30  from a claim of medical malpractice either in contract or

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

                                  14

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

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

 3  this chapter but does not maintain hospital staff privileges,

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

 5  chapter and maintains hospital staff privileges, within 60

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

 7  execution, unless otherwise mutually agreed to in writing by

 8  the parties. Such adverse final judgment shall include any

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

10  contribution arising from the claim of medical malpractice.

11  Upon notification of the existence of an unsatisfied judgment

12  or payment pursuant to this subparagraph, the department shall

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

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

15  date of mailing, he or she either:

16         a.  Shows proof that the unsatisfied judgment has been

17  paid in the amount specified in this subparagraph; or

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

19  filed notice of appeal and either:

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

21  the amount required by law; or

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

23  staying execution on the final judgment pending disposition of

24  the appeal.

25         2.  The Department of Health shall issue an emergency

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

27  days following receipt of a notice from the Department of

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

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

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

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

                                  15

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

 2  order from a court of competent jurisdiction staying execution

 3  on the final judgment pending disposition of the appeal.

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

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

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

 7  make a determination of whether probable cause exists to take

 8  disciplinary action against the licensee pursuant to

 9  subparagraph 1.

10         4.  If the board determines that the factual

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

12  disciplinary action as it deems appropriate against the

13  licensee. Such disciplinary action shall include, at a

14  minimum, probation of the license with the restriction that

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

16  schedule determined by the board to be reasonable and within

17  the financial capability of the physician. Notwithstanding any

18  other disciplinary penalty imposed, the disciplinary penalty

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

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

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

22  on the license.

23         5.  The licensee has completed a form supplying

24  necessary information as required by the department.

25  

26  A licensee who meets the requirements of this paragraph shall

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

28  prominently displayed in the reception area and clearly

29  noticeable by all patients or to provide a written statement

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

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

                                  16

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  physicians are generally required to carry medical malpractice

 2  insurance or otherwise demonstrate financial responsibility to

 3  cover potential claims for medical malpractice. YOUR DOCTOR

 4  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This

 5  is permitted under Florida law subject to certain conditions.

 6  Florida law imposes penalties against noninsured physicians

 7  who fail to satisfy adverse judgments arising from claims of

 8  medical malpractice.  This notice is provided pursuant to

 9  Florida law." In addition, a licensee who meets the

10  requirements of this paragraph and who is covered for claims

11  of medical negligence arising from care and treatment of

12  patients in a hospital that assumes sole and exclusive

13  liability for all such claims pursuant to the Enterprise Act

14  for Patient Protection and Provider Liability, inclusive of

15  ss. 766.401-766.409, shall post notice in the form of a sign

16  prominently displayed in the reception area and clearly

17  noticeable by all patients or provide a written statement to

18  any person for whom the physician may provide medical care and

19  treatment in any such hospital. The sign or statement must

20  adhere to the requirements of s. 766.404.

21         Section 5.  Subsection (2) and paragraphs (f) and (g)

22  of subsection (5) of section 459.0085, Florida Statutes, are

23  amended to read:

24         459.0085  Financial responsibility.--

25         (2)  Osteopathic physicians who perform surgery in an

26  ambulatory surgical center licensed under chapter 395 and, as

27  a continuing condition of hospital staff privileges,

28  osteopathic physicians who have staff privileges must also

29  establish financial responsibility by one of the following

30  methods:

31  

                                  17

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (a)  Establishing and maintaining an escrow account

 2  consisting of cash or assets eligible for deposit in

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

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

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

 6  fees for the defense of any medical malpractice claim.

 7         (b)  Obtaining and maintaining professional liability

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

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

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

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

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

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

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

15  through a plan of self-insurance that meets the conditions

16  specified for satisfying financial responsibility in s.

17  766.110. The required coverage amount set forth in this

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

19  fees for the defense of any medical malpractice claim.

20         (c)  Obtaining and maintaining an unexpired,

21  irrevocable letter of credit, established pursuant to chapter

22  675, in an amount not less than $250,000 per claim, with a

23  minimum aggregate availability of credit of not less than

24  $750,000. The letter of credit must be payable to the

25  osteopathic physician as beneficiary upon presentment of a

26  final judgment indicating liability and awarding damages to be

27  paid by the osteopathic physician or upon presentment of a

28  settlement agreement signed by all parties to such agreement

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

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

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

                                  18

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

 2  of any medical malpractice claim. The letter of credit must be

 3  nonassignable and nontransferable. The letter of credit must

 4  be issued by any bank or savings association organized and

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

 6  association organized under the laws of the United States

 7  which has its principal place of business in this state or has

 8  a branch office that is authorized under the laws of this

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

10  state.

11  

12  This subsection shall be inclusive of the coverage in

13  subsection (1). A physician who only performs surgery or who

14  has only clinical privileges or admitting privileges in one or

15  more certified patient safety facilities, which health care

16  facility or facilities are legally liable for medical

17  negligence of affected practitioners, pursuant to the

18  Enterprise Act for Patient Protection and Provider Liability,

19  inclusive of ss. 766.401-766.409, is exempt from the

20  requirements of this subsection.

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

22  do not apply to:

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

24  chapter who meets all of the following criteria:

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

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

27  more than 15 years.

28         2.  The licensee has either retired from the practice

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

30  1,000 patient contact hours per year.

31  

                                  19

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

 2  medical malpractice resulting in an indemnity exceeding

 3  $25,000 within the previous 5-year period.

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

 5  guilty or nolo contendere to, any criminal violation specified

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

 7  state.

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

 9  10 years of practice to license revocation or suspension for

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

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

12  chapter or the medical practice act of another jurisdiction.

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

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

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

16  the filing of administrative charges against the physician's

17  license, constitutes action against the physician's license

18  for the purposes of this paragraph.

19         6.  The licensee has submitted a form supplying

20  necessary information as required by the department and an

21  affidavit affirming compliance with this paragraph.

22         7.  The licensee must submit biennially to the

23  department certification stating compliance with the

24  provisions of this paragraph. The licensee must, upon request,

25  demonstrate to the department information verifying compliance

26  with this paragraph.

27  

28  A licensee who meets the requirements of this paragraph must

29  post notice in the form of a sign prominently displayed in the

30  reception area and clearly noticeable by all patients or

31  provide a written statement to any person to whom medical

                                  20

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  services are being provided. The sign or statement must read

 2  as follows: "Under Florida law, physicians are generally

 3  required to carry medical malpractice insurance or otherwise

 4  demonstrate financial responsibility to cover potential claims

 5  for medical malpractice. However, certain part-time physicians

 6  who meet state requirements are exempt from the financial

 7  responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND

 8  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This

 9  notice is provided pursuant to Florida law." In addition, a

10  licensee who is covered for claims of medical negligence

11  arising from care and treatment of patients in a hospital that

12  assumes sole and exclusive liability for all such claims

13  pursuant to the Enterprise Act for Patient Protection and

14  Provider Liability, inclusive of ss. 766.401-766.409, shall

15  post notice in the form of a sign prominently displayed in the

16  reception area and clearly noticeable by all patients or

17  provide a written statement to any person for whom the

18  physician may provide medical care and treatment in any such

19  hospital in accordance with the requirements of s. 766.404.

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

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

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

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

24  medical malpractice either in contract or tort, or from

25  noncompliance with the terms of a settlement agreement arising

26  from a claim of medical malpractice either in contract or

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

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

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

30  this chapter but does not maintain hospital staff privileges,

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

                                  21

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  chapter and maintains hospital staff privileges, within 60

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

 3  execution, unless otherwise mutually agreed to in writing by

 4  the parties. Such adverse final judgment shall include any

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

 6  contribution arising from the claim of medical malpractice.

 7  Upon notification of the existence of an unsatisfied judgment

 8  or payment pursuant to this subparagraph, the department shall

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

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

11  date of mailing, he or she either:

12         a.  Shows proof that the unsatisfied judgment has been

13  paid in the amount specified in this subparagraph; or

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

15  filed notice of appeal and either:

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

17  the amount required by law; or

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

19  staying execution on the final judgment pending disposition of

20  the appeal.

21         2.  The Department of Health shall issue an emergency

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

23  days following receipt of a notice from the Department of

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

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

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

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

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

29  order from a court of competent jurisdiction staying execution

30  on the final judgment pending disposition of the appeal.

31  

                                  22

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




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

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

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

 4  make a determination of whether probable cause exists to take

 5  disciplinary action against the licensee pursuant to

 6  subparagraph 1.

 7         4.  If the board determines that the factual

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

 9  disciplinary action as it deems appropriate against the

10  licensee. Such disciplinary action shall include, at a

11  minimum, probation of the license with the restriction that

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

13  schedule determined by the board to be reasonable and within

14  the financial capability of the physician. Notwithstanding any

15  other disciplinary penalty imposed, the disciplinary penalty

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

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

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

19  on the license.

20         5.  The licensee has completed a form supplying

21  necessary information as required by the department.

22  

23  A licensee who meets the requirements of this paragraph shall

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

25  prominently displayed in the reception area and clearly

26  noticeable by all patients or to provide a written statement

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

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

29  physicians are generally required to carry medical malpractice

30  insurance or otherwise demonstrate financial responsibility to

31  cover potential claims for medical malpractice. YOUR DOCTOR

                                  23

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This

 2  is permitted under Florida law subject to certain conditions.

 3  Florida law imposes penalties against noninsured physicians

 4  who fail to satisfy adverse judgments arising from claims of

 5  medical malpractice.  This notice is provided pursuant to

 6  Florida law." In addition, a licensee who meets the

 7  requirements of this paragraph and who is covered for claims

 8  of medical negligence arising from care and treatment of

 9  patients in a hospital that assumes sole and exclusive

10  liability for all such claims pursuant to the Enterprise Act

11  for Patient Protection and Provider Liability, inclusive of

12  ss. 766.401-766.409, shall 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 for whom the physician may provide medical care and

16  treatment in any such hospital. The sign or statement must

17  adhere to the requirements of s. 766.404.

18         Section 6.  Section 627.41485, Florida Statutes, is

19  created to read:

20         627.41485  Medical malpractice insurers; optional

21  coverage exclusion for insureds who are covered by an

22  enterprise plan for patient protection and provider

23  liability.--

24         (1)  An insurer issuing policies of professional

25  liability coverage for claims arising out of the rendering of,

26  or the failure to render, medical care or services may make

27  available to physicians licensed under chapter 458 and to

28  osteopathic physicians licensed under chapter 459 coverage

29  having an appropriate exclusion for acts of medical negligence

30  occurring within:

31  

                                  24

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (a)  A certified patient safety facility that bears

 2  sole and exclusive liability for acts of medical negligence

 3  pursuant to the Enterprise Act for Patient Protection and

 4  Provider Liability, inclusive of ss. 766.401-766.409, subject

 5  to the usual underwriting standards; or

 6         (b)  A statutory teaching hospital that has agreed to

 7  indemnify physicians or osteopathic physicians for legal

 8  liability pursuant to s. 766.110(2)(c), subject to the usual

 9  underwriting standards.

10         Section 7.  Section 766.316, Florida Statutes, is

11  amended to read:

12         766.316  Notice to obstetrical patients of

13  participation in the plan.--Each hospital with a participating

14  physician on its staff, each hospital that assumes liability

15  for affected physicians pursuant to the Enterprise Act for

16  Patient Protection and Provider Liability, inclusive of ss.

17  766.401-766.409, and each participating physician, other than

18  residents, assistant residents, and interns deemed to be

19  participating physicians under s. 766.314(4)(c), under the

20  Florida Birth-Related Neurological Injury Compensation Plan

21  shall provide notice to the obstetrical patients as to the

22  limited no-fault alternative for birth-related neurological

23  injuries. Such notice shall be provided on forms furnished by

24  the association and shall include a clear and concise

25  explanation of a patient's rights and limitations under the

26  plan. The hospital or the participating physician may elect to

27  have the patient sign a form acknowledging receipt of the

28  notice form. Signature of the patient acknowledging receipt of

29  the notice form raises a rebuttable presumption that the

30  notice requirements of this section have been met. Notice need

31  not be given to a patient when the patient has an emergency

                                  25

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  medical condition as defined in s. 395.002(9)(b) or when

 2  notice is not practicable.

 3         Section 8.  Subsection (2) of section 766.110, Florida

 4  Statutes, is amended to read:

 5         766.110  Liability of health care facilities.--

 6         (2)(a)  Every hospital licensed under chapter 395 may

 7  carry liability insurance or adequately insure itself in an

 8  amount of not less than $1.5 million per claim, $5 million

 9  annual aggregate to cover all medical injuries to patients

10  resulting from negligent acts or omissions on the part of

11  those members of its medical staff who are covered thereby in

12  furtherance of the requirements of ss. 458.320 and 459.0085.

13  Self-insurance coverage extended hereunder to a member of a

14  hospital's medical staff meets the financial responsibility

15  requirements of ss. 458.320 and 459.0085 if the physician's

16  coverage limits are not less than the minimum limits

17  established in ss. 458.320 and 459.0085 and the hospital is a

18  verified trauma center that has extended self-insurance

19  coverage continuously to members of its medical staff for

20  activities both inside and outside of the hospital. Any

21  insurer authorized to write casualty insurance may make

22  available, but is shall not be required to write, such

23  coverage.  The hospital may assess on an equitable and pro

24  rata basis the following professional health care providers

25  for a portion of the total hospital insurance cost for this

26  coverage:  physicians licensed under chapter 458, osteopathic

27  physicians licensed under chapter 459, podiatric physicians

28  licensed under chapter 461, dentists licensed under chapter

29  466, and nurses licensed under part I of chapter 464. The

30  hospital may provide for a deductible amount to be applied

31  against any individual health care provider found liable in a

                                  26

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  law suit in tort or for breach of contract.  The legislative

 2  intent in providing for the deductible to be applied to

 3  individual health care providers found negligent or in breach

 4  of contract is to instill in each individual health care

 5  provider the incentive to avoid the risk of injury to the

 6  fullest extent and ensure that the citizens of this state

 7  receive the highest quality health care obtainable.

 8         (b)  Except with regard to hospitals that receive

 9  sovereign immunity under s. 768.28, each hospital licensed

10  under chapter 395 which assumes sole and exclusive liability

11  for acts of medical negligence by affected providers pursuant

12  to the Enterprise Act for Patient Protection and Provider

13  Liability, inclusive of ss. 766.401-766.409, shall carry

14  liability insurance or adequately insure itself in an amount

15  of not less than $2.5 million per claim, $7.5 million annual

16  aggregate to cover all medical injuries to patients resulting

17  from negligent acts or omissions on the part of affected

18  physicians and practitioners who are covered by an enterprise

19  plan for patient protection and provider liability. The

20  hospital's policy of medical liability insurance or

21  self-insurance must satisfy the financial-responsibility

22  requirements of ss. 458.320(2) and 459.0085(2) for affected

23  providers. Any authorized insurer as defined under s. 624.09,

24  surplus lines insurer as defined under s. 626.914(2), risk

25  retention group as defined under s. 627.942, joint

26  underwriting association established under s. 627.351(4), or

27  plan of self-insurance as provided in s. 627.387, which has

28  authority to write casualty insurance may make available, but

29  is not required to write, such coverage.

30         (c)  Notwithstanding any provision in the Insurance

31  Code to the contrary, a statutory teaching hospital, as

                                  27

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  defined in s. 408.07, other than a hospital that receives

 2  sovereign immunity under s. 768.28, which complies with the

 3  patient safety measures specified in s. 766.403 and all other

 4  requirements of s. 766.410, including approval by the Agency

 5  for Health Care Administration, may agree to indemnify some or

 6  all members of its medical staff, including, but not limited

 7  to, physicians having clinical privileges who are not

 8  employees or agents of the hospital and any organization,

 9  association, or group of persons liable for the negligent acts

10  of such physicians, whether incorporated or unincorporated,

11  and some or all medical, nursing, or allied health students

12  affiliated with the hospital, collectively known as covered

13  persons, other than persons exempt from liability due to

14  sovereign immunity under s. 768.28, for legal liability of

15  such covered persons for loss, damages, or expense arising out

16  of medical negligence within the hospital premises, as defined

17  in s. 766.401, thereby providing limited malpractice coverage

18  for such covered persons. Any hospital that agrees to provide

19  malpractice coverage for covered persons pursuant to this

20  section shall acquire an appropriate policy of professional

21  liability insurance or establish and maintain a fund from

22  which such malpractice coverage is provided, in accordance

23  with usual underwriting standards. Such insurance or fund may

24  be separate and apart from any insurance or fund maintained by

25  or on behalf of the hospital or combined in a single policy of

26  insurance or a fund maintained by or on behalf of the

27  hospital. Any hospital that provides malpractice coverage to

28  covered persons defined under this paragraph through a fund or

29  a self-insurance fund providing any such malpractice coverage,

30  shall annually provide a certified financial statement

31  containing actuarial projections as to the soundness of

                                  28

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  reserves to the Agency for Health Care Administration. The

 2  indemnity agreements or malpractice coverage provided by this

 3  section shall be in amounts that, at a minimum, meet the

 4  financial responsibility requirements of ss. 458.320 and

 5  459.0085 for affected providers. Any such indemnity agreement

 6  or malpractice coverage in such amounts satisfies the

 7  financial responsibility requirements of ss. 458.320 and

 8  459.0085 for affected providers. Any statutory teaching

 9  hospital that agrees to indemnify physicians or other covered

10  persons for medical negligence on the premises pursuant to

11  this section may charge such physicians or other covered

12  persons a reasonable fee for malpractice coverage,

13  notwithstanding any provision in the Insurance Code to the

14  contrary. Such fee shall be based on appropriate actuarial

15  criteria. This paragraph does not constitute a waiver of

16  sovereign immunity under s. 768.28. This section does not

17  limit a hospital's ability to indemnify members of its medical

18  staff to the extent that such indemnification is allowed by

19  law.

20         Section 9.  Section 766.401, Florida Statutes, is

21  created to read:

22         766.401  Definitions.--As used in ss. 766.401-766.410,

23  the term:

24         (1)  "Affected facility" means a certified patient

25  safety facility.

26         (2)  "Affected patient" means a patient of a certified

27  patient safety facility.

28         (3)  "Affected physician" means a medical staff member

29  who is covered by an enterprise plan for patient protection

30  and provider liability in a certified patient safety facility.

31  

                                  29

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (4)  "Affected practitioner" means any person,

 2  including a physician, who is credentialed by the eligible

 3  hospital to provide health care services and who is covered by

 4  an enterprise plan for patient protection and provider

 5  liability in a certified patient safety facility.

 6         (5)  "Agency" means the Agency for Health Care

 7  Administration.

 8         (6)  "Certified patient safety facility" means any

 9  eligible hospital that, in accordance with an agency order, is

10  solely and exclusively liable for medical negligence within

11  the licensed facility by affected physicians and affected

12  practitioners who are employees and agents of an accredited

13  medical school and the employees and agents of the hospital.

14         (7)  "Clinical privileges" means the privileges granted

15  to a physician or other licensed health care practitioner to

16  render patient care services in a hospital.

17         (8)  "Eligible hospital" or "licensed facility" means:

18         (a)  A statutory teaching hospital as defined by s.

19  408.07; or

20         (b)  A hospital licensed in accordance with chapter 395

21  which is wholly owned by a university based in this state

22  which  maintains an accredited medical school.

23         (9)  "Enterprise plan" means a document adopted by the

24  governing board of an eligible hospital and the executive

25  committee of the medical staff of the eligible hospital,

26  however defined, or the board of trustees of a state

27  university, manifesting concurrence and setting forth certain

28  rights, duties, privileges, obligations, and responsibilities

29  of the health care facility and its medical staff or its

30  affiliated medical school in furtherance of seeking and

31  maintaining its status as a certified patient safety facility.

                                  30

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (10)  "Health care provider" or "provider" means:

 2         (a)  An eligible hospital.

 3         (b)  A physician or physician assistant licensed under

 4  chapter 458.

 5         (c)  An osteopathic physician or osteopathic physician

 6  assistant licensed under chapter 459.

 7         (d)  A registered nurse, nurse midwife, licensed

 8  practical nurse, or advanced registered nurse practitioner

 9  licensed or registered under part I of chapter 464 or any

10  facility that employs nurses licensed or registered under part

11  I of chapter 464 to supply all or part of the care delivered

12  by that facility.

13         (e)  A health care professional association and its

14  employees or a corporate medical group and its employees.

15         (f)  Any other medical facility the primary purpose of

16  which is to deliver human medical diagnostic services or which

17  delivers nonsurgical human medical treatment, including an

18  office maintained by a provider.

19         (g)  A free clinic that delivers only medical

20  diagnostic services or nonsurgical medical treatment free of

21  charge to all low-income recipients.

22         (h)  Any other health care professional, practitioner,

23  or provider, including a student enrolled in an accredited

24  program that prepares the student for licensure as any one of

25  the professionals listed in this subsection.

26  

27  The term includes any person, organization, or entity that is

28  vicariously liable under the theory of respondent superior or

29  any other theory of legal liability for medical negligence

30  committed by any licensed professional listed in this

31  subsection. The term also includes any nonprofit corporation

                                  31

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  qualified as exempt from federal income taxation under s.

 2  501(a) of the Internal Revenue Code, and described in s.

 3  501(c) of the Internal Revenue Code, including any university

 4  or medical school that employs licensed professionals listed

 5  in this subsection or that delivers health care services

 6  provided by licensed professionals listed in this subsection,

 7  any federally funded community health center, and any

 8  volunteer corporation or volunteer health care provider that

 9  delivers health care services.

10         (11)  "Health care practitioner" or "practitioner"

11  means any person, entity, or organization identified in

12  subsection (9), except for a hospital.

13         (12)  "Medical incident" or "adverse incident" has the

14  same meaning as provided in ss. 381.0271, 395.0197, 458.351,

15  and 459.026.

16         (13)  "Medical negligence" means medical malpractice,

17  whether grounded in tort or in contract, including statutory

18  claims arising out of any act or omission related to the

19  rendering or failure to render medical or nursing care. The

20  term does not include intentional acts.

21         (14)  "Medical staff" means a physician licensed under

22  chapter 458 or chapter 459 having clinical privileges and

23  active status in a licensed facility. The term includes any

24  affected physician or affected practitioner having clinical

25  privileges as approved by a licensed facility's governing

26  board. The term includes any affected physician, regardless of

27  his or her status as an employee, agent, or independent

28  contractor with regard to the licensed facility.

29         (15)  "Person" means any individual, partnership,

30  corporation, association, or governmental unit.

31  

                                  32

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (16)  "Premises" means those buildings, beds, and

 2  equipment located at the address of the licensed facility and

 3  all other buildings, beds, and equipment for the provision of

 4  hospital, ambulatory surgical, mobile surgical care, primary

 5  care, or comprehensive health care under the dominion and

 6  control of the licensee, including offices and locations where

 7  the licensed facility provides medical care and treatment to

 8  affected patients.

 9         (17)  "Statutory teaching hospital" or "teaching

10  hospital" has the same meaning as provided in s. 408.07.

11         (18)  "Within the licensed facility" or "within the

12  premises" means anywhere on the premises of the licensed

13  facility or the premises of any office, clinic, or ancillary

14  facility that is owned, leased and operated, or controlled by

15  the licensed facility.

16         Section 10.  Section 766.402, Florida Statutes, is

17  created to read:

18         766.402  Agency approval of enterprise plans for

19  patient protection and provider liability.--

20         (1)  An eligible hospital in conjunction with either

21  the executive committee of its medical staff, or the board of

22  trustees of a state university, if applicable, which has

23  adopted an enterprise plan in accordance with s. 766.404 may

24  petition the Agency for Health Care Administration to enter an

25  order certifying approval of the hospital as a certified

26  patient safety facility.

27         (2)  In accordance with chapter 120, the agency shall

28  enter an order certifying approval of the certified patient

29  safety facility upon a showing that, in furtherance of an

30  enterprise approach to patient protection and provider

31  liability:

                                  33

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (a)  The petitioners have established enterprise-wide

 2  safety measures for the care and treatment of patients;

 3         (b)  The petitioners satisfy requirements for patient

 4  protection measures, as specified in s. 766.403;

 5         (c)  The petitioners acknowledge and agree to

 6  enterprise liability for medical negligence within the

 7  premises, as specified in s. 766.404;

 8         (d)  The petitioners have adopted an enterprise plan,

 9  as specified in s. 766.405;

10         (e)  The petitioners satisfy requirements for

11  professional accountability of affected practitioners, as

12  specified in s. 766.406;

13         (f)  The petitioners satisfy requirements for financial

14  accountability of affected practitioners, as specified in s.

15  766.407; and

16         (g)  The petitioners satisfy all other requirements of

17  ss. 766.401-766.410.

18         Section 11.  Section 766.403, Florida Statutes, is

19  created to read:

20         766.403  Enterprise-wide patient safety measures.--

21         (1)  In order to satisfy the requirements of s.

22  766.402(2)(a) or s. 766.410, the licensed facility shall:

23         (a)  Have in place a process, either through the

24  facility's patient safety committee or a similar body, for

25  coordinating the quality control, risk management, and patient

26  relations functions of the facility and for reporting to the

27  facility's governing board at least quarterly regarding such

28  efforts.

29         (b)  Establish within the facility a system for

30  reporting near misses and agree to submit any information

31  collected to the Florida Patient Safety Corporation. Such

                                  34

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  information must be submitted by the facility and made

 2  available by the Patient Safety Corporation in accordance with

 3  s. 381.0271(7).

 4         (c)  Design and make available to facility staff,

 5  including medical staff, a patient safety curriculum that

 6  provides lecture and web-based training on recognized patient

 7  safety principles, which may include communication-skills

 8  training, team-performance assessment and training,

 9  risk-prevention strategies, and best practices and

10  evidence-based medicine. The licensed facility shall report

11  annually to the agency the programs presented.

12         (d)  Implement a program to identify health care

13  providers on the facility's staff who may be eligible for an

14  early-intervention program providing additional skills

15  assessment and training and offer such training to the staff

16  on a voluntary and confidential basis with established

17  mechanisms to assess program performance and results.

18         (e)  Implement a simulation-based program for skills

19  assessment, training, and retraining of a facility's staff in

20  those tasks and activities that the agency identifies by rule.

21         (f)  Designate a patient advocate who coordinates with

22  members of the medical staff and the facility's chief medical

23  officer regarding disclosure of medical incidents to patients.

24  In addition, the patient advocate shall establish an advisory

25  panel, consisting of providers, patients or their families,

26  and other health care consumer or consumer groups to review

27  general patient safety concerns and other issues related to

28  relations among and between patients and providers and to

29  identify areas where additional education and program

30  development may be appropriate.

31  

                                  35

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (g)  Establish a procedure to biennially review the

 2  facility's patient safety program and its compliance with

 3  requirements of this section. Such review shall be conducted

 4  by an independent patient safety organization as defined in s.

 5  766.1016(1) or other professional organization approved by the

 6  agency. The organization performing the review shall prepare a

 7  written report with detailed findings and recommendations. The

 8  report shall be forwarded to the facility's risk manager or

 9  patient safety officer, who may make written comments in

10  response thereto. The report and any written comments shall be

11  presented to the governing board of the licensed facility. A

12  copy of the report and any of the facilities' responses to the

13  findings and recommendations shall be provided to the agency

14  within 60 days after the date that the governing board

15  reviewed the report. The report is confidential and may not be

16  produced or discovered in any civil action. Likewise, the

17  report, and the information contained therein, is not

18  admissible as evidence for any purpose in any action for

19  medical negligence.

20         (h)  Establish a system for the trending and tracking

21  of quality and patient safety indicators that the agency may

22  identify by rule, and a method for review of the data at least

23  semiannually by the facility's patient safety committee.

24         (i)  Provide assistance to affected physicians, upon

25  request, regarding implementation and evaluation of individual

26  risk-management, patient-safety, and incident-reporting

27  systems in clinical settings outside the premises of the

28  licensed facility. Provision of such assistance may not be the

29  basis for finding or imposing any liability on the licensed

30  facility for the medical negligence of the affected physician

31  

                                  36

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  in clinical settings outside the premises of the licensed

 2  facility.

 3         (2)  This section does not constitute an applicable

 4  standard of care in any action for medical negligence or

 5  otherwise create a private right of action, and evidence of

 6  noncompliance with this section is not admissible for any

 7  purpose in any action for medical negligence against an

 8  affected facility or any other health care provider.

 9         (3)  This section does not prohibit the licensed

10  facility from implementing other measures for promoting

11  patient safety within the premises. This section does not

12  relieve the licensed facility from the duty to implement any

13  other patient safety measure that is required by state law.

14  The Legislature intends that the patient safety measures

15  specified in this section are in addition to all other patient

16  safety measures required by state law, federal law, and

17  applicable accreditation standards for licensed facilities.

18         (4)  A review, report, or other document created,

19  produced, delivered, or discussed pursuant to this section is

20  not discoverable or admissible as evidence in any legal

21  action.

22         Section 12.  Section 766.404, Florida Statutes, is

23  created to read:

24         766.404  Enterprise liability in certain health care

25  facilities.--

26         (1)  Subject to the requirements of ss.

27  766.401-766.409, the agency may enter an order certifying the

28  petitioner-hospital as a certified patient safety facility and

29  providing that the hospital bears sole and exclusive liability

30  for any and all acts of medical negligence within the licensed

31  facility by affected physicians and affected practitioners who

                                  37

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  are employees and agents of an accredited medical school when

 2  such medical negligence causes damage to affected patients.

 3         (2)  In any action for personal injury or wrongful

 4  death, whether in contract or tort or predicated on a

 5  statutory cause of action, arising out of medical negligence

 6  within the premises resulting in damages to a patient of a

 7  certified patient safety facility, the licensed facility bears

 8  sole and exclusive liability for the medical negligence of

 9  affected physicians and affected practitioners who are

10  employees or agents of an accredited medical school and the

11  employees and agents of the hospital. Any other provider,

12  person, organization, or entity that commits medical

13  negligence within the premises resulting in damages to a

14  patient, and any other provider, person, organization, or

15  entity that is vicariously liable for medical negligence

16  within the premises of an affected practitioner under the

17  theory of respondent superior or otherwise, may not be named

18  as a defendant in any such action and any such provider,

19  person, organization, or entity is not liable for the medical

20  negligence of an affected practitioner. This subsection does

21  not impose liability or confer immunity on any other provider,

22  person, organization, or entity for acts of medical

23  malpractice committed on any person in clinical settings other

24  than the premises of the affected facility.

25         (3)  An affected practitioner shall post an applicable

26  notice or provide an appropriate written statement as follows:

27         (a)  An affected practitioner shall post notice in the

28  form of a sign prominently displayed in the reception area and

29  clearly noticeable by all patients or provide a written

30  statement to any person to whom medical services are being

31  provided. The sign or statement must read as follows: "In

                                  38

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  general, physicians in the State of Florida are personally

 2  liable for acts of medical negligence, subject to certain

 3  limitations. However, physicians who perform medical services

 4  within a certified patient safety facility are exempt from

 5  personal liability because the licensed hospital bears sole

 6  and exclusive liability for acts of medical negligence within

 7  the health care facility pursuant to an administrative order

 8  of the Agency for Health Care Administration entered in

 9  accordance with the Enterprise Act for Patient Protection and

10  Provider Liability. YOUR DOCTOR HOLDS CLINICAL STAFF

11  PRIVILEGES IN A CERTIFIED PATIENT SAFETY FACILITY. UNDER

12  FLORIDA LAW, ANY CLAIM FOR MEDICAL NEGLIGENCE WITHIN THE

13  HEALTH CARE FACILITY MUST BE INITIATED AGAINST THE HOSPITAL

14  AND NOT AGAINST YOUR DOCTOR, BECAUSE THE HOSPITAL IS SOLELY

15  RESPONSIBLE FOR ALL ACTS OF PROFESSIONAL NEGLIGENCE WITHIN THE

16  PREMISES. THIS PROVISION DOES NOT AFFECT YOUR PHYSICIAN'S

17  LIABILITY FOR ACTS OF MEDICAL NEGLIGENCE IN OTHER CLINICAL

18  SETTINGS. IF YOU DO NOT UNDERSTAND, PLEASE DISCUSS WITH YOUR

19  DOCTOR BEFORE YOUR CONSULTATION. This notice is provided

20  pursuant to Florida law."

21         (b)  If an affected practitioner is covered by an

22  enterprise plan for patient protection and provider liability

23  in one or more licensed facilities that receive sovereign

24  immunity, and one or more other licensed facilities, the

25  affected practitioner shall post notice in the form of a sign

26  prominently displayed in the reception area and clearly

27  noticeable by all patients or provide a written statement to

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

29  sign or statement must read as follows: "In general,

30  physicians in the state of Florida are personally liable for

31  acts of medical negligence, subject to certain limitations

                                  39

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  such as sovereign immunity. However, physicians who perform

 2  medical services within a certified patient safety facility

 3  are exempt from personal liability because the licensed

 4  hospital bears sole and exclusive liability for acts of

 5  medical negligence within the affected facility pursuant to an

 6  administrative order of the Agency for Health Care

 7  Administration entered in accordance with the Enterprise Act

 8  for Patient Protection and Provider Liability. YOUR DOCTOR

 9  HOLDS CLINICAL STAFF PRIVILEGES IN ONE OR MORE CERTIFIED

10  PATIENT SAFETY FACILITIES. AT LEAST ONE OF THESE HOSPITALS IS

11  SUBJECT TO SOVEREIGN IMMUNITY. UNDER FLORIDA LAW, ANY CLAIM

12  FOR MEDICAL NEGLIGENCE WITHIN THE HEALTH CARE FACILITY MUST BE

13  INITIATED AGAINST THE HOSPITAL AND NOT AGAINST YOUR DOCTOR,

14  BECAUSE THE HOSPITAL IS SOLELY RESPONSIBLE FOR ALL ACTS OF

15  PROFESSIONAL NEGLIGENCE WITHIN THE PREMISES. MOREOVER,

16  RECOVERY AGAINST THE HOSPITAL MAY BE LIMITED, DUE TO FLORIDA'S

17  SOVEREIGN IMMUNITY LAW. THESE PROVISIONS DO NOT AFFECT YOUR

18  PHYSICIAN'S LIABILITY FOR ACTS OF MEDICAL NEGLIGENCE IN OTHER

19  CLINICAL SETTINGS. IF YOU DO NOT UNDERSTAND, PLEASE DISCUSS

20  WITH YOUR DOCTOR BEFORE YOUR CONSULTATION. This notice is

21  provided pursuant to Florida law."

22         (c) Notice need not be given to a patient when:

23         1.  The patient has an emergency medical condition as

24  defined in s. 395.002;

25         2.  The practitioner is an employee or agent of a

26  governmental entity and is immune from liability and suit

27  under s. 768.28; or

28         3.  Notice is not practicable.

29         (d)  This subsection is directory in nature. An agency

30  order certifying approval of an enterprise plan for patient

31  protection and provider liability shall, as a matter of law,

                                  40

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  constitute conclusive evidence that the hospital complies with

 2  all applicable patient safety requirements of s. 766.403 and

 3  all other requirements of ss. 766.401-766.409. Evidence of

 4  noncompliance with s. 766.403 or any other provision of ss.

 5  766.401-766.409 may not be admissible for any purpose in any

 6  action for medical malpractice. Failure to comply with the

 7  requirements of this subsection does not affect the

 8  liabilities or immunities conferred by ss. 766.401-766.409.

 9  This subsection does not give rise to an independent cause of

10  action for damages.

11         (4)  The agency order certifying approval of an

12  enterprise plan for patient protection and provider liability

13  applies prospectively to causes of action for medical

14  negligence that arise on or after the effective date of the

15  order.

16         (5)  Upon entry of an order approving the petition, the

17  agency may conduct onsite examinations of the licensed

18  facility to assure continued compliance with the terms and

19  conditions of the order.

20         (6)  The agency order certifying approval of an

21  enterprise plan for patient protection remains in effect until

22  revoked. The agency shall revoke the order upon the unilateral

23  request of the licensed facility, the executive committee of

24  the medical staff, or the affiliated medical school, whichever

25  is applicable. The agency may revoke the order upon reasonable

26  notice to the affected facility that it fails to comply with

27  material requirements of ss. 766.401-766.409 or material

28  conditions of the order certifying approval of the enterprise

29  plan and further upon a determination that the licensed

30  facility has failed to cure stated deficiencies upon

31  reasonable notice. An administrative order revoking approval

                                  41

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  of an enterprise plan for patient protection and provider

 2  liability terminates the plan on January 1 of the year

 3  following entry of the order or 6 months after entry of the

 4  order, whichever is longer. Revocation of an agency order

 5  certifying approval of an enterprise plan for patient

 6  protection and provider liability applies prospectively to

 7  causes of action for medical negligence which arise on or

 8  after the effective date of termination.

 9         (7)  This section does not exempt a licensed facility

10  from liability for acts of medical negligence committed by

11  employees and agents thereof; although employees and agents of

12  a certified patient safety facility may not be joined as

13  defendants in any action for medical negligence because the

14  licensed facility bears sole and exclusive liability for acts

15  of medical negligence within the premises of the licensed

16  facility, including acts of medical negligence by such

17  employees and agents.

18         (8)  Affected practitioners shall cooperate in good

19  faith with an affected facility in the investigation and

20  defense of any claim for medical malpractice. An affected

21  facility shall have a cause of action for damages against an

22  affected practitioner for bad-faith refusal to cooperate in

23  the investigation and defense of any claim of medical

24  negligence against the licensed facility.

25         (9)  Sections 766.401-766.409 do not impose strict

26  liability or liability without fault for medical incidents

27  that occur within an affected facility. To maintain a cause of

28  action against an affected facility pursuant to ss.

29  766.401-766.409, the claimant must allege and prove that an

30  employee or agent of the licensed facility, or an affected

31  practitioner who is covered by an approved enterprise plan for

                                  42

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  patient protection and provider liability, committed medical

 2  negligence within the premises of the licensed facility, even

 3  though an active tortfeasor is not named or joined as a party

 4  defendant in the lawsuit.

 5         (10)  Sections 766.401-766.409 do not create an

 6  independent cause of action against any health care provider

 7  and do not impose enterprise liability on any health care

 8  provider, except as expressly provided, and may not be

 9  construed to support any cause of action other than an action

10  for medical negligence as expressly provided against any

11  person, organization, or entity.

12         (11)  Sections 766.401-766.409 do not waive sovereign

13  immunity, except as expressly provided in s. 768.28.

14         Section 13.  Section 766.405, Florida Statutes, is

15  created to read:

16         766.405  Enterprise plans.--

17         (1)  It is the intent of the Legislature that

18  enterprise plans for patient protection are elective and not

19  mandatory for eligible hospitals. It is further the intent of

20  the Legislature that the medical staff or affiliated medical

21  school of an eligible hospital must concur with the

22  development and implementation of an enterprise plan for

23  patient protection and provider liability. It is further the

24  intent of the Legislature that the licensed facility and

25  medical staff or affiliated medical school be accorded wide

26  latitude in formulating enterprise plans, consistent with the

27  underlying purpose of ss. 766.401-766.409 to encourage

28  innovative, systemic measures for patient protection and

29  quality assurance in licensed facilities, especially in

30  clinical settings where surgery is performed. Adoption of an

31  

                                  43

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  enterprise plan is a necessary condition for agency approval

 2  of a certified patient safety facility.

 3         (2)  An eligible hospital and the executive committee

 4  of its medical staff or affiliated medical school, if

 5  applicable, shall adopt an enterprise plan as a necessary

 6  condition to agency approval of a certified patient safety

 7  facility. An affirmative vote of approval by the regularly

 8  constituted executive committee of the medical staff, however

 9  named or constituted, is sufficient to manifest approval by

10  the medical staff of the enterprise plan. Once approved,

11  affected physicians and affected practitioners are subject to

12  the enterprise plan. The plan may be conditioned on agency

13  approval of an enterprise plan for patient protection and

14  provider liability for the affected facility. For eligible

15  hospitals meeting the requirements of s. 768.28(12)(c)3., the

16  enterprise plan shall be limited to affected physicians and

17  affected practitioners who are employees or agents of a state

18  university. At a minimum, the enterprise plan must contain

19  provisions covering:

20         (a)  Compliance with a patient protection plan;

21         (b)  Internal review of medical incidents;

22         (c)  Timely reporting of medical incidents to state

23  agencies;

24         (d)  Professional accountability of affected physicians

25  and affected practitioners; and

26         (e)  Financial accountability of affected physicians

27  and affected practitioners.

28         (3)  This section does not prohibit a patient safety

29  facility from including other provisions relating to the

30  enterprise plan in a separate agreement, as a condition of

31  

                                  44

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  staff privileges, or by way of contract with an organization

 2  providing medical staff for the licensed facility.

 3         (4)  This section does not limit the power of any

 4  licensed facility to enter into other agreements with members

 5  of its medical staff or otherwise impose restrictions,

 6  requirements, or conditions on clinical privileges, as

 7  authorized by law.

 8         (5)  If multiple campuses share one license, the

 9  enterprise plan shall be limited to the primary campus or the

10  campus having the largest number of beds and, if applicable,

11  associated outpatient ancillary facilities. If the enterprise

12  plan is so limited, it must specify the campus and any

13  outpatient ancillary facilities that will constitute the

14  enterprise.

15         Section 14.  Section 766.406, Florida Statutes, is

16  created to read:

17         766.406  Professional accountability of affected

18  practitioners.--

19         (1)  A certified patient safety facility shall report

20  medical incidents occurring in the affected facility to the

21  Department of Health, in accordance with s. 395.0197.

22         (2)  A certified patient safety facility shall report

23  adverse findings of medical negligence or failure to adhere to

24  applicable standards of professional responsibility by

25  affected practitioners to the Department of Health.

26         (3)  A certified patient safety facility shall continue

27  to perform all peer review functions pursuant to s. 395.0193.

28         Section 15.  Section 766.407, Florida Statutes, is

29  created to read:

30         766.407  Financial accountability of affected

31  practitioners.--

                                  45

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (1)  An enterprise plan may provide that any affected

 2  member of the medical staff or any affected practitioner

 3  having clinical privileges, other than an employee of the

 4  licensed facility, and any organization that contracts with

 5  the licensed facility to provide practitioners to treat

 6  patients within the licensed facility, shall share equitably

 7  in the cost of omnibus medical liability insurance premiums

 8  covering the certified patient safety facility, similar

 9  self-insurance expense, or other expenses reasonably related

10  to risk management and adjustment of claims of medical

11  negligence, subject to the following conditions. This

12  subsection does not permit a licensed facility and any

13  affected practitioner to agree on charges for an equitable

14  share of medical liability expense based on the number of

15  patients admitted to the hospital by individual practitioners,

16  patient revenue for the licensed facility generated by

17  individual practitioners, or overall profit or loss sustained

18  by the certified patient safety facility in a given fiscal

19  period.

20         (2)  Pursuant to an enterprise plan for patient

21  protection and provider liability, a licensed facility may

22  impose a reasonable assessment against an affected

23  practitioner that commits medical negligence resulting in

24  injury and damages to an affected patient of the health care

25  facility, upon a determination of failure to adhere to

26  acceptable standards of professional responsibility by an

27  internal peer review committee. A schedule of assessments,

28  criteria for the levying of assessments, procedures for

29  levying assessments, and due process rights of an affected

30  practitioner must be agreed to by the executive committee of

31  the medical staff or affiliated medical school, as applicable,

                                  46

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  and the licensed facility. The legislative intent in providing

 2  for assessments against an affected physician is to instill in

 3  each individual health care practitioner the incentive to

 4  avoid the risk of injury to the fullest extent and ensure that

 5  the residents of this state receive the highest quality health

 6  care obtainable. Failure to pay an assessment constitutes

 7  grounds for suspension of clinical privileges by the licensed

 8  facility. Assessments may be enforced as bona fide debts in a

 9  court of law. The licensed facility may exempt its employees

10  and agents from all such assessments. Employees and agents of

11  the state, its agencies, and subdivisions, as defined by s.

12  768.28, are exempt from all such assessments.

13         (3)  An assessment levied pursuant to this section is

14  not discoverable or admissible as evidence in any legal

15  action.

16         Section 16.  Section 766.408, Florida Statutes, is

17  created to read:

18         766.408  Data collection and reports.--

19         (1)  Each certified patient safety facility shall

20  submit an annual report to the agency containing information

21  and data reasonably required by the agency to evaluate

22  performance and effectiveness of the facility's enterprise

23  plan for patient protection and provider liability. However,

24  information may not be submitted or disclosed in violation of

25  any patient's right to privacy under state or federal law.

26         (2)  The agency shall aggregate information and data

27  submitted by all affected facilities and each year, on or

28  before March 1, the agency shall submit a report to the

29  Legislature which evaluates the performance and effectiveness

30  of the enterprise approach to patient safety and provider

31  liability in certified patient safety facilities, which

                                  47

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  reports must include, but are not limited to, pertinent data

 2  on:

 3         (a)  The number and names of affected facilities;

 4         (b)  The number and types of patient protection

 5  measures currently in effect in these facilities;

 6         (c)  The number of affected practitioners;

 7         (d)  The number of affected patients;

 8         (e)  The number of surgical procedures by affected

 9  practitioners on affected patients;

10         (f)  The number of medical incidents, claims of medical

11  malpractice, and claims resulting in indemnity;

12         (g)  The average time for resolution of contested and

13  uncontested claims of medical malpractice;

14         (h)  The percentage of claims that result in civil

15  trials;

16         (i)  The percentage of civil trials resulting in

17  adverse judgments against affected facilities;

18         (j)  The number and average size of an indemnity paid

19  to claimants;

20         (k)  The number and average size of assessments imposed

21  on affected practitioners;

22         (l)  The estimated liability expense, inclusive of

23  medical liability insurance premiums; and

24         (m)  The percentage of medical liability expense,

25  inclusive of medical liability insurance premiums, which is

26  borne by affected practitioners in affected health care

27  facilities.

28  

29  Such reports to the Legislature may also include other

30  information and data that the agency deems appropriate to

31  

                                  48

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  gauge the cost and benefit of enterprise plans for patient

 2  protection and provider liability.

 3         (3)  The agency's annual report to the Legislature may

 4  include relevant information and data obtained from the Office

 5  of Insurance Regulation within the Department of Financial

 6  Services on the availability and affordability of

 7  enterprise-wide medical liability insurance coverage for

 8  affected facilities and the availability and affordability of

 9  insurance policies for individual practitioners which contain

10  coverage exclusions for acts of medical negligence in

11  certified patient safety facilities. The Office of Insurance

12  Regulation within the Department of Financial Services shall

13  cooperate with the agency in the reporting of information and

14  data specified in this subsection.

15         (4)  Reports submitted to the agency by affected

16  facilities pursuant to this section are public records under

17  chapter 119. However, these reports, and the information

18  contained therein, are not admissible as evidence in a court

19  of law in any action.

20         Section 17.  Section 766.409, Florida Statutes, is

21  created to read:

22         766.409  Rulemaking authority.--The agency may adopt

23  rules to administer ss. 766.401-766.410.

24         Section 18.  Section 766.410, Florida Statutes, is

25  created to read:

26         766.410  Damages in malpractice actions against certain

27  hospitals that meet patient safety requirements; agency

28  approval of patient safety measures.--

29         (1)  In recognition of their essential role in training

30  future health care providers and in providing innovative

31  medical care for this state's residents, in recognition of

                                  49

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  their commitment to treating indigent patients, and further in

 2  recognition that all teaching hospitals, as defined in s.

 3  408.07, both public and private, and hospitals licensed under

 4  chapter 395 which are owned and operated by a university that

 5  maintains an accredited medical school, collectively defined

 6  as eligible hospitals in s. 766.401(8), provide benefits to

 7  the residents of this state through their roles in improving

 8  the quality of medical care, training health care providers,

 9  and caring for indigent patients, the limits of liability for

10  medical malpractice arising out of the rendering of, or the

11  failure to render, medical care by all such hospitals, shall

12  be determined in accordance with the requirements of this

13  section, notwithstanding any other provision of state law.

14         (2)  Except as otherwise provided in subsections (9)

15  and (10), any eligible hospital may petition the agency to

16  enter an order certifying that the licensed facility complies

17  with patient safety measures specified in s. 766.403.

18         (3)  In accordance with chapter 120, the agency shall

19  enter an order approving the petition upon a showing that the

20  eligible hospital complies with the patient safety measures

21  specified in s. 766.403. Upon entry of the agency order, and

22  for the entire period of time that the order remains in

23  effect, the limits of liability for medical malpractice

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

25  medical care by the hospital covered by the order and its

26  employees and agents shall be up to $500,000 in the aggregate

27  for all related claims or judgments for noneconomic damages

28  arising out of the same incident or occurrence. Claims or

29  judgments for noneconomic damages and awards of past economic

30  damages shall be offset by collateral sources, and paid in

31  full at the time of final settlement. Awards of future

                                  50

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  economic damages, after being offset by collateral sources,

 2  shall, at the option of the teaching hospital, be reduced by

 3  the court to present value and paid in full or paid by means

 4  of periodic payments in the form of annuities or reversionary

 5  trusts, such payments to be paid for the life of the claimant

 6  or for so long as the condition for which the award was made

 7  persists, whichever is shorter, without regard to the number

 8  of years awarded by the trier of fact, at which time the

 9  obligation to make such payments terminates. A company that

10  underwrites an annuity to pay future economic damages shall

11  have a Best Company rating of not less than A. The terms of a

12  reversionary instrument used to periodically pay future

13  economic damages must be approved by the court, such approval

14  may not be unreasonably withheld.

15         (4)  The limitations on damages in subsection (3) apply

16  prospectively to causes of action for medical negligence that

17  arise on or after the effective date of the order.

18         (5)  Upon entry of an order approving the petition, the

19  agency may conduct onsite examinations of the licensed

20  facility to assure continued compliance with terms and

21  conditions of the order.

22         (6)  The agency order certifying approval of a petition

23  under this section remains in effect until revoked. The agency

24  may revoke the order upon reasonable notice to the affected

25  hospital that it fails to comply with material requirements of

26  ss. 766.401-766.410 or material conditions of the order

27  certifying compliance with required patient safety measures

28  and that the hospital has failed to cure stated deficiencies

29  upon reasonable notice. Revocation of an agency order

30  certifying approval of an enterprise plan for patient

31  protection and provider liability applies prospectively to

                                  51

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  causes of action for medical negligence that arise on or after

 2  the effective date of the order of revocation.

 3         (7)  An agency order certifying approval of an

 4  enterprise plan for patient protection under this section

 5  shall, as a matter of law, constitute conclusive evidence that

 6  the hospital complies with all applicable patient safety

 7  requirements of s. 766.403. A hospital's noncompliance with

 8  the requirements of s. 766.403 may not affect the limitations

 9  on damages conferred by this section. Evidence of

10  noncompliance with s. 766.403 may not be admissible for any

11  purpose in any action for medical malpractice. This section,

12  or any portion thereof, may not give rise to an independent

13  cause of action for damages against any hospital.

14         (8)  The entry of an agency order pursuant to this

15  section does not impose enterprise liability, or sole and

16  exclusive liability, on the licensed facility for acts or

17  omissions of medical negligence within the premises.

18         (9)  An eligible hospital may petition the agency for

19  an order pursuant to this section or an order pursuant to s.

20  766.404. However, a hospital may not be approved for both

21  enterprise liability under s. 766.404 and the limitations on

22  damages under this section.

23         (10)  This section may not apply to hospitals that are

24  subject to sovereign immunity under s. 768.28.

25         Section 19.  Subsections (5) and (12) of section

26  768.28, Florida Statutes, are amended to read:

27         768.28  Waiver of sovereign immunity in tort actions;

28  recovery limits; limitation on attorney fees; statute of

29  limitations; exclusions; indemnification; risk management

30  programs.--

31  

                                  52

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         (5)(a)  The state and its agencies and subdivisions

 2  shall be liable for tort claims in the same manner and to the

 3  same extent as a private individual under like circumstances,

 4  but liability does shall not include punitive damages or

 5  interest for the period before judgment.

 6         (b)  Except as provided in paragraph (c), neither the

 7  state or nor its agencies or subdivisions are shall be liable

 8  to pay a claim or a judgment by any one person which exceeds

 9  the sum of $100,000 or any claim or judgment, or portions

10  thereof, which, when totaled with all other claims or

11  judgments paid by the state or its agencies or subdivisions

12  arising out of the same incident or occurrence, exceeds the

13  sum of $200,000.  However, a judgment or judgments may be

14  claimed and rendered in excess of these amounts and may be

15  settled and paid pursuant to this act up to $100,000 or

16  $200,000, as the case may be; and that portion of the judgment

17  that exceeds these amounts may be reported to the Legislature,

18  but may be paid in part or in whole only by further act of the

19  Legislature. Notwithstanding the limited waiver of sovereign

20  immunity provided herein, the state or an agency or

21  subdivision thereof may agree, within the limits of insurance

22  coverage provided, to settle a claim made or a judgment

23  rendered against it without further action by the Legislature,

24  but the state or agency or subdivision thereof shall not be

25  deemed to have waived any defense of sovereign immunity or to

26  have increased the limits of its liability as a result of its

27  obtaining insurance coverage for tortious acts in excess of

28  the $100,000 or $200,000 waiver provided above.  The

29  limitations of liability set forth in this subsection shall

30  apply to the state and its agencies and subdivisions whether

31  

                                  53

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  or not the state or its agencies or subdivisions possessed

 2  sovereign immunity before July 1, 1974.

 3         (c)  In any action for medical negligence within a

 4  certified patient safety facility that is covered by sovereign

 5  immunity, given that the licensed health care facility bears

 6  sole and exclusive liability for acts of medical negligence

 7  pursuant to the Enterprise Act for Patient Protection and

 8  Provider Liability, inclusive of ss. 766.401-766.409, neither

 9  the state or its agencies or subdivisions are liable to pay a

10  claim or a judgment by any one person which exceeds the sum of

11  $150,000 or any claim or judgment, or portions thereof, which,

12  when totaled with all other claims or judgments paid by the

13  state or its agencies or subdivisions arising out of the same

14  incident or occurrence, exceeds the sum of $300,000. However,

15  a judgment may be claimed and rendered in excess of these

16  amounts and may be settled and paid up to $150,000 or

17  $300,000, as the case may be. That portion of the judgment

18  which exceeds these amounts may be reported to the

19  Legislature, but may be paid in part or in whole only by

20  further act of the Legislature. Notwithstanding the limited

21  waiver of sovereign immunity provided in this paragraph, the

22  state or an agency or subdivision thereof may agree, within

23  the limits of insurance coverage provided, to settle a claim

24  made or a judgment rendered against it without further action

25  by the Legislature, but the state or agency or subdivision

26  thereof does not waive any defense of sovereign immunity or

27  increase limits of its liability as a result of its obtaining

28  insurance coverage for tortious acts in excess of the $150,000

29  waiver or the $300,000 waiver provided in this paragraph. The

30  limitations of liability set forth in this paragraph apply to

31  the state and its agencies and subdivisions whether or not the

                                  54

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  state or its agencies or subdivisions possessed sovereign

 2  immunity before July 1, 1974.

 3         (12)(a)  A health care practitioner, as defined in s.

 4  456.001(4), who has contractually agreed to act as an agent of

 5  a state university board of trustees to provide medical

 6  services to a student athlete for participation in or as a

 7  result of intercollegiate athletics, to include team

 8  practices, training, and competitions, is shall be considered

 9  an agent of the respective state university board of trustees,

10  for the purposes of this section, while acting within the

11  scope of and pursuant to guidelines established in that

12  contract. The contracts shall provide for the indemnification

13  of the state by the agent for any liabilities incurred up to

14  the limits set out in this chapter.

15         (b)  This subsection shall not be construed as

16  designating persons providing contracted health care services

17  to athletes as employees or agents of a state university board

18  of trustees for the purposes of chapter 440.

19         (c)1.  For purposes of this subsection, the terms

20  "certified patient safety facility," "medical staff," and

21  "medical negligence" have the same meanings as provided in s.

22  766.401.

23         2.  A certified patient safety facility, wherein a

24  minimum of 90 percent of the members of the medical staff

25  consist of physicians are employees or agents of a state

26  university, is an agent of the respective state university

27  board of trustees for purposes of this section only to the

28  extent that the licensed facility, in accordance with an

29  enterprise plan for patient protection and provider liability,

30  inclusive of ss. 766.401-766.409, approved by the Agency for

31  Health Care Administration, is solely and exclusively liable

                                  55

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  for acts of medical negligence of physicians providing health

 2  care services within the licensed facility.

 3         3.  A statutory teaching hospital as defined in s.

 4  408.07 which has been found to be an agent of the state for

 5  other purposes and which has adopted an enterprise plan for

 6  patient protection and provider liability for the sole and

 7  exclusive liability for acts of medical negligence of affected

 8  physicians and affected practitioners who are employees and

 9  agents of the affiliated state university board of trustees

10  and its own hospital employees and agents, inclusive of ss.

11  766.401-766.409, approved by the Agency for Health Care

12  Administration, is an agent of the respective state university

13  board of trustees only for purposes of this section.

14         4.  Subject to the acceptance of the Florida Board of

15  Governors and a state university board of trustees, a licensed

16  facility as defined by this subsection may secure the limits

17  of liability protection described in paragraph (5)(c) from a

18  self-insurance program created pursuant to s. 1004.24. A

19  notice of intent to commence an action for medical negligence

20  arising from the care or treatment of a patient in a statutory

21  teaching hospital as defined in s. 408.07 having an approved

22  enterprise plan subject to the provisions of this subsection

23  shall be sent to the licensed facility, as the statutory agent

24  created pursuant to an enterprise plan of the related board of

25  trustees of a state university for the limited purposes of

26  administering an enterprise plan for patient protection and

27  provider liability. A complaint alleging medical negligence

28  resulting in damages to a patient in a statutory teaching

29  hospital as defined in s. 408.07 having an approved enterprise

30  plan subject to the provisions of this paragraph shall be

31  commenced against the applicable board of trustees of a state

                                  56

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  university on the relation of the licensed facility, and the

 2  doctrines of res judicata and collateral estoppel shall apply.

 3  The complaint shall be served on the licensed facility. Any

 4  notice of intent mailed to the licensed facility, any legal

 5  process served on the licensed facility, and any other notice,

 6  paper, or pleading that is served, sent, or delivered to the

 7  licensed facility pertaining to a claim of medical negligence,

 8  shall have the same legal force and effect as mailing,

 9  service, or delivery to a duly authorized agent of the board

10  of trustees of the respective state university,

11  notwithstanding any provision of law to the contrary. Upon

12  receipt of any such notice of intent, complaint for damages,

13  or other notice, paper, or pleading pertaining to a claim of

14  medical negligence, a licensed facility subject to the

15  provisions of this paragraph shall give timely notice to the

16  related board of trustees of the state university, except that

17  failure to give timely notice does not affect the legal

18  sufficiency of the notice of intent, service of process, or

19  other notice, paper, or pleading. A final judgment or binding

20  arbitration award against the board of trustees of a state

21  university on the relation of a licensed facility, arising

22  from a claim of medical negligence resulting in damages to a

23  patient in a certified patient safety facility subject to the

24  provisions of this paragraph, may be enforced in the same

25  manner, and is subject to the same limitations on enforcement

26  or recovery, as any final judgment for damages or binding

27  arbitration award against the board of trustees of a state

28  university, notwithstanding any provision of law to the

29  contrary. Any settlement agreement executed by the board of

30  trustees of a state university on the relation of a licensed

31  facility arising from a claim of medical negligence resulting

                                  57

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1  in damages to a patient in a statutory teaching hospital as

 2  defined in s. 407.08 having an approved enterprise plan

 3  subject to the provisions of this paragraph may be enforced in

 4  the same manner, and is subject to the same limitations, as a

 5  settlement agreement executed by an authorized agent of the

 6  board of trustees. The board of trustees of a state university

 7  may make payment to a claimant, in whole or in part, only as

 8  provided in paragraph (5)(c) if, any portion of a final

 9  judgment or binding arbitration award against the board of

10  trustees of a state university on the relation of a licensed

11  facility, or if any portion of a settlement of a claim for

12  medical negligence arising from a statutory teaching hospital

13  as defined in s. 408.07 having an approved enterprise plan

14  subject to the provisions of this paragraph, exceeds the

15  amounts of the limited waiver of sovereign immunity specified

16  in paragraph (5)(c).

17         Section 20.  If any provision of this act or its

18  application to any person or circumstance is held invalid, the

19  invalidity does not affect other provisions or applications of

20  the act which can be given effect without the invalid

21  provision or application, and to this end, the provisions of

22  this act are severable.

23         Section 21.  If a conflict between any provision of

24  this act and section 817.505, section 456.052, section

25  456.053, section 456.054, section 458.331, or section 459.015,

26  Florida Statutes, the provisions of this act shall govern. The

27  provisions of this act should be broadly construed in

28  furtherance of the overriding legislative intent to facilitate

29  innovative approaches for patient protection and provider

30  liability in eligible hospitals.

31  

                                  58

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






    Florida Senate - 2005                           CS for SB 1916
    587-2176-05




 1         Section 22.  It is the intention of the Legislature

 2  that the provisions of this act are self-executing.

 3         Section 23.  This act shall take effect upon becoming a

 4  law.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 1916

 8                                 

 9  The committee substitute exempts, from the financial
    responsibility requirements for licensure and licensure
10  renewal, osteopathic physicians who only perform surgery or
    who have only clinic privileges or admitting privileges in one
11  or more certified patient safety facilities which are legally
    liable for medical negligence of affected practitioners
12  pursuant to the Enterprise Act for Patient Protection and
    Provider Liability.
13  
    The committee substitute corrects requirements for insurers to
14  provide insurance to physicians to meet financial
    responsibility requirements and the Department of Health no
15  longer must adopt administrative rules for medical malpractice
    insurers to do so.
16  
    The requirements for certain hospitals providing malpractice
17  coverage under an enterprise plan to submit a certified
    financial statement regarding the soundness of the reserve
18  funds is revised.

19  Definitions are revised for purposes of the Enterprise Act for
    Patient Protection and Provider Liability. Requirements for
20  enterprise plans are revised.

21  The committee substitute deletes provisions that authorize the
    Florida Patient Safety Corporation to intervene as a party in
22  administrative actions related to patient safety in licensed
    health care facilities, including hospitals.
23  
    The committee substitute provides a procedure for malpractice
24  litigants to serve notice of intent to sue on teaching
    hospitals that have executed an enterprise plan and procedures
25  for settlements and final judgments to be enforced.

26  

27  

28  

29  

30  

31  

                                  59

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