Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
CHAMBER ACTION
Senate House
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11 The Committee on Health Care (Saunders) recommended the
12 following amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Section 456.50, Florida Statutes, is
19 created to read:
20 456.50 Repeated medical malpractice.--
21 (1) For purposes of s. 26, Art. X of the State
22 Constitution and ss. 458.331(1)(t), (4), and (5) and
23 459.015(1)(x), (4), and (5):
24 (a) "Board" means the Board of Medicine, in the case
25 of a physician licensed pursuant to chapter 458, or the Board
26 of Osteopathic Medicine, in the case of an osteopathic
27 physician licensed pursuant to chapter 459.
28 (b) "Final administrative agency decision" means a
29 final order of the licensing board following a hearing as
30 provided in s. 120.57(1) or (2) or s. 120.574 finding that the
31 licensee has violated s. 458.331(1)(t) or s. 459.015(1)(x).
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 (c) "Found to have committed" means the malpractice
2 has been found in a final judgment of a court of law, final
3 administrative agency decision, or decision of binding
4 arbitration.
5 (d) "Incident" means the wrongful act or occurrence
6 from which the medical malpractice arises, regardless of the
7 number of claimants or findings. For purposes of this section:
8 1. A single act of medical malpractice, regardless of
9 the number of claimants, shall count as only one incident.
10 2. Multiple findings of medical malpractice arising
11 from the same wrongful act or series of wrongful acts
12 associated with the treatment of the same patient shall count
13 as only one incident.
14 (e) "Level of care, skill, and treatment recognized in
15 general law related to health care licensure" means the
16 standard of care specified in s. 766.102.
17 (f) "Medical doctor" means a physician licensed
18 pursuant to chapter 458 or chapter 459.
19 (g) "Medical malpractice" means the failure to
20 practice medicine in accordance with the level of care, skill,
21 and treatment recognized in general law related to health care
22 licensure. Only for the purpose of finding repeated medical
23 malpractice pursuant to this section, any similar wrongful
24 act, neglect, or default committed in another state or country
25 which, if committed in this state, would have been considered
26 medical malpractice as defined in this paragraph, shall be
27 considered medical malpractice if the standard of care and
28 burden of proof applied in the other state or country equaled
29 or exceeded that used in this state.
30 (h) "Repeated medical malpractice" means three or more
31 incidents of medical malpractice found to have been committed
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 by a medical doctor. Only an incident occurring on or after
2 November 2, 2004, shall be considered an incident for purposes
3 of finding repeated medical malpractice under this section.
4 (2) For purposes of implementing s. 26, Art. X of the
5 State Constitution, the board shall not license or continue to
6 license a medical doctor found to have committed repeated
7 medical malpractice, the finding of which was based upon clear
8 and convincing evidence. In order to rely on an incident of
9 medical malpractice to determine whether a license must be
10 denied or revoked under this section, if the facts supporting
11 the finding of the incident of medical malpractice were
12 determined on a standard less stringent than clear and
13 convincing evidence, the board shall review the record of the
14 case and determine whether the finding would be supported
15 under a standard of clear and convincing evidence. Section
16 456.073 applies. The board may verify on a biennial basis an
17 out-of-state licensee's medical malpractice history using
18 federal, state, or other databases.
19 Section 2. Paragraph (t) of subsection (1) and
20 subsections (4), (5), and (10) of section 458.331, Florida
21 Statutes, are amended to read:
22 458.331 Grounds for disciplinary action; action by the
23 board and department.--
24 (1) The following acts constitute grounds for denial
25 of a license or disciplinary action, as specified in s.
26 456.072(2):
27 (t) Notwithstanding s. 456.072(2) but as specified in
28 s. 456.50(2):
29 1. Committing medical malpractice as defined in s.
30 456.50 Gross or repeated malpractice or the failure to
31 practice medicine with that level of care, skill, and
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 treatment which is recognized by a reasonably prudent similar
2 physician as being acceptable under similar conditions and
3 circumstances. The board shall give great weight to the
4 provisions of s. 766.102 when enforcing this paragraph. As
5 used in this paragraph, "repeated malpractice" includes, but
6 is not limited to, three or more claims for Medical
7 malpractice within the previous 5-year period resulting in
8 indemnities being paid in excess of $50,000 each to the
9 claimant in a judgment or settlement and which incidents
10 involved negligent conduct by the physician. As used in this
11 paragraph, "gross malpractice" or "the failure to practice
12 medicine with that level of care, skill, and treatment which
13 is recognized by a reasonably prudent similar physician as
14 being acceptable under similar conditions and circumstances,"
15 shall not be construed so as to require more than one
16 instance, event, or act.
17 2. Committing gross medical malpractice.
18 3. Committing repeated medical malpractice as defined
19 in s. 456.50. A person found by the board to have committed
20 repeated medical malpractice based on s. 456.50 may not be
21 licensed or continue to be licensed by this state to provide
22 health care services as a medical doctor in this state.
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24 Nothing in this paragraph shall be construed to require that a
25 physician be incompetent to practice medicine in order to be
26 disciplined pursuant to this paragraph. A recommended order by
27 an administrative law judge or a final order of the board
28 finding a violation under this paragraph shall specify whether
29 the licensee was found to have committed "gross medical
30 malpractice," "repeated medical malpractice," or "medical
31 malpractice," "failure to practice medicine with that level of
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 care, skill, and treatment which is recognized as being
2 acceptable under similar conditions and circumstances," or any
3 combination thereof, and any publication by the board must so
4 specify.
5 (4) The board shall not reinstate the license of a
6 physician, or cause a license to be issued to a person it
7 deems or has deemed unqualified, until such time as it is
8 satisfied that he or she has complied with all the terms and
9 conditions set forth in the final order and that such person
10 is capable of safely engaging in the practice of medicine.
11 However, the board may not issue a license to, or reinstate
12 the license of, any medical doctor found by the board to have
13 committed repeated medical malpractice based on s. 456.50,
14 regardless of the extent to which the licensee or prospective
15 licensee has complied with all terms and conditions set forth
16 in the final order and is capable of safely engaging in the
17 practice of medicine.
18 (5) The board shall by rule establish guidelines for
19 the disposition of disciplinary cases involving specific types
20 of violations. Such guidelines may include minimum and maximum
21 fines, periods of supervision or probation, or conditions of
22 probation or reissuance of a license. "Gross medical
23 malpractice," "repeated medical malpractice," and "medical
24 malpractice," "failure to practice medicine with that level of
25 care, skill, and treatment which is recognized as being
26 acceptable under similar circumstances" under paragraph (1)(t)
27 subsection (10) shall each be considered distinct types of
28 violations requiring specific individual guidelines.
29 (10) A recommended order by an administrative law
30 judge, or a final order of the board finding a violation under
31 this section shall specify whether the licensee was found to
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 have committed "gross malpractice," "repeated malpractice," or
2 "failure to practice medicine with that level of care, skill,
3 and treatment which is recognized as being acceptable under
4 similar conditions and circumstances" or any combination
5 thereof, and any publication by the board shall so specify.
6 Section 3. Paragraph (x) of subsection (1) and
7 subsections (4) and (5) of section 459.015, Florida Statutes,
8 are amended to read:
9 459.015 Grounds for disciplinary action; action by the
10 board and department.--
11 (1) The following acts constitute grounds for denial
12 of a license or disciplinary action, as specified in s.
13 456.072(2):
14 (x) Notwithstanding s. 456.072(2) but as specified in
15 s. 456.50(2):
16 1. Committing medical Gross or repeated malpractice as
17 defined in s. 456.50 or the failure to practice osteopathic
18 medicine with that level of care, skill, and treatment which
19 is recognized by a reasonably prudent similar osteopathic
20 physician as being acceptable under similar conditions and
21 circumstances. The board shall give great weight to the
22 provisions of s. 766.102 when enforcing this paragraph. As
23 used in this paragraph, "repeated malpractice" includes, but
24 is not limited to, three or more claims for Medical
25 malpractice within the previous 5-year period resulting in
26 indemnities being paid in excess of $50,000 each to the
27 claimant in a judgment or settlement and which incidents
28 involved negligent conduct by the osteopathic physician. As
29 used in this paragraph, "gross malpractice" or "the failure to
30 practice osteopathic medicine with that level of care, skill,
31 and treatment which is recognized by a reasonably prudent
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 similar osteopathic physician as being acceptable under
2 similar conditions and circumstances" shall not be construed
3 so as to require more than one instance, event, or act.
4 2. Committing gross medical malpractice.
5 3. Committing repeated medical malpractice as defined
6 in s. 456.50. A person found by the board to have committed
7 repeated medical malpractice based on s. 456.50 may not be
8 licensed or continue to be licensed by this state to provide
9 health care services as a medical doctor in this state.
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11 Nothing in this paragraph shall be construed to require that
12 an osteopathic physician be incompetent to practice
13 osteopathic medicine in order to be disciplined pursuant to
14 this paragraph. A recommended order by an administrative law
15 judge or a final order of the board finding a violation under
16 this paragraph shall specify whether the licensee was found to
17 have committed "gross medical malpractice," "repeated medical
18 malpractice," or "medical malpractice," "failure to practice
19 osteopathic medicine with that level of care, skill, and
20 treatment which is recognized as being acceptable under
21 similar conditions and circumstances," or any combination
22 thereof, and any publication by the board shall so specify.
23 (4) The board shall not reinstate the license or
24 certificate of an osteopathic physician, or cause a license or
25 certificate to be issued to a person it has deemed
26 unqualified, until such time as it is satisfied that he or she
27 has complied with all the terms and conditions set forth in
28 the final order and that such person is capable of safely
29 engaging in the practice of osteopathic medicine. However, the
30 board may not issue a license to, or reinstate the license of,
31 any medical doctor found by the board to have committed
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 repeated medical malpractice based on s. 456.50, regardless of
2 the extent to which the licensee or prospective licensee has
3 complied with all terms and conditions set forth in the final
4 order and is capable of safely engaging in the practice of
5 osteopathic medicine.
6 (5) The board shall, by rule, establish comprehensive
7 guidelines for the disposition of disciplinary cases involving
8 specific types of violations. Such guidelines shall establish
9 offenses and circumstances for which revocation will be
10 presumed to be appropriate, as well as offenses and
11 circumstances for which suspension for particular periods of
12 time will be presumed to be appropriate. The guidelines shall
13 also establish minimum and maximum fines, periods of
14 supervision or probation, or conditions of probation and
15 conditions for reissuance of a license with respect to
16 particular circumstances and offenses. "Gross medical
17 malpractice," "repeated medical malpractice," and "medical
18 malpractice," "failure to practice osteopathic medicine with
19 that level of care, skill, and treatment which is recognized
20 as being acceptable under similar conditions and
21 circumstances" under paragraph (1)(x) shall each be considered
22 distinct types of violations requiring specific individual
23 guidelines.
24 Section 4. This act shall take effect upon becoming a
25 law.
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28 ================ T I T L E A M E N D M E N T ===============
29 And the title is amended as follows:
30 Delete everything before the enacting clause
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 940 (941384)
Barcode 243786
1 and insert:
2 A bill to be entitled
3 An act relating to repeated medical
4 malpractice; creating s. 456.50, F.S.; defining
5 terms; prescribing acts that constitute
6 repeated medical malpractice; providing for
7 review of acts and determination by the Board
8 of Medicine and the Board of Osteopathic
9 Medicine; amending s. 458.331, F.S.; redefining
10 acts of medical malpractice, gross medical
11 malpractice, or repeated medical malpractice
12 which constitute grounds for disciplinary
13 action against a physician; amending s.
14 459.015, F.S.; redefining acts of medical
15 malpractice, gross medical malpractice, or
16 repeated medical malpractice which constitute
17 grounds for disciplinary action against an
18 osteopathic physician; providing an effective
19 date.
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