Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. SB 972
                        Barcode 643804
                            CHAMBER ACTION
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11  The Committee on Health Care (Jones) recommended the following
12  amendment:
13  
14         Senate Amendment (with title amendment) 
15         On page 2, line 15, through
16            page 21, line 28, delete those lines
17  
18  and insert:  
19         (1)  As a condition of licensing and maintaining an
20  active license, and prior to the issuance or renewal of an
21  active license or reactivation of an inactive license for the
22  practice of medicine, an applicant must by one of the
23  following methods demonstrate to the satisfaction of the board
24  and the department financial responsibility to pay claims and
25  costs ancillary thereto arising out of the rendering of, or
26  the failure to render, medical care or services:
27         (a)  Establishing and maintaining an escrow account
28  consisting of cash or assets eligible for deposit in
29  accordance with s. 625.52 in an amount sufficient to meet the
30  minimum annual aggregate claim amount the per claim amounts
31  specified in paragraph (b). The escrow account must be payable
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Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 to the physician as beneficiary upon presentment of a final 2 judgment indicating liability and awarding damages to be paid 3 by the physician or upon presentment of a settlement agreement 4 signed by all parties to such agreement when such final 5 judgment or settlement is a result of a claim arising out of 6 the rendering of, or the failure to render, medical care and 7 services. 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. The 10 escrow account must be nonassignable and nontransferable. 11 Such escrow account must be made with and held by the trust 12 department of a bank or savings association organized and 13 existing under the laws of this state or a bank or savings 14 association organized under the laws of the United States 15 which has its principal place of business in this state or has 16 a branch office that is authorized under the laws of this 17 state or of the United States to receive deposits in this 18 state. 19 (b) Obtaining and maintaining professional liability 20 coverage in an amount not less than $100,000 per claim, with a 21 minimum annual aggregate of not less than $300,000, from an 22 authorized insurer as defined under s. 624.09, from a surplus 23 lines insurer as defined under s. 626.914(2), from a risk 24 retention group as defined under s. 627.942, from the Joint 25 Underwriting Association established under s. 627.351(4), or 26 through a plan of self-insurance as provided in s. 627.357. 27 The required coverage amount set forth in this paragraph may 28 not be used for litigation costs or attorney's fees for the 29 defense of any medical malpractice claim. 30 (c) Obtaining and maintaining an unexpired, 31 irrevocable letter of credit, established pursuant to chapter 2 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 675, in an amount sufficient to meet the minimum annual 2 aggregate claim amount specified in paragraph (b) not less 3 than $100,000 per claim, with a minimum aggregate availability 4 of credit of not less than $300,000. The letter of credit must 5 be payable to the physician as beneficiary upon presentment of 6 a final judgment indicating liability and awarding damages to 7 be paid by the physician or upon presentment of a settlement 8 agreement signed by all parties to such agreement when such 9 final judgment or settlement is a result of a claim arising 10 out of the rendering of, or the failure to render, medical 11 care and services. The letter of credit may not be used for 12 litigation costs or attorney's fees for the defense of any 13 medical malpractice claim. The letter of credit must be 14 nonassignable and nontransferable. Such letter of credit must 15 be issued by any bank or savings association organized and 16 existing under the laws of this state or any bank or savings 17 association organized under the laws of the United States 18 which has its principal place of business in this state or has 19 a branch office that is authorized under the laws of this 20 state or of the United States to receive deposits in this 21 state. 22 (2) Physicians who perform surgery in an ambulatory 23 surgical center licensed under chapter 395 and, as a 24 continuing condition of hospital staff privileges, physicians 25 who have staff privileges must also establish financial 26 responsibility by one of the following methods: 27 (a) Establishing and maintaining an escrow account 28 consisting of cash or assets eligible for deposit in 29 accordance with s. 625.52 in an amount sufficient to meet the 30 minimum annual aggregate claim amount the per claim amounts 31 specified in paragraph (b). The escrow account must be payable 3 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 to the physician as beneficiary upon presentment of a final 2 judgment indicating liability and awarding damages to be paid 3 by the physician or upon presentment of a settlement agreement 4 signed by all parties to such agreement when such final 5 judgment or settlement is a result of a claim arising out of 6 the rendering of, or the failure to render, medical care and 7 services. 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. The 10 escrow account must be nonassignable and nontransferable. 11 Such escrow account must be made with and held by the trust 12 department of a bank or savings association organized and 13 existing under the laws of this state or a bank or savings 14 association organized under the laws of the United States 15 which has its principal place of business in this state or has 16 a branch office that is authorized under the laws of this 17 state or of the United States to receive deposits in this 18 state. 19 (b) Obtaining and maintaining professional liability 20 coverage in an amount not less than $250,000 per claim, with a 21 minimum annual aggregate of not less than $750,000 from an 22 authorized insurer as defined under s. 624.09, from a surplus 23 lines insurer as defined under s. 626.914(2), from a risk 24 retention group as defined under s. 627.942, from the Joint 25 Underwriting Association established under s. 627.351(4), 26 through a plan of self-insurance as provided in s. 627.357, or 27 through a plan of self-insurance which meets the conditions 28 specified for satisfying financial responsibility in s. 29 766.110. The required coverage amount set forth in this 30 paragraph may not be used for litigation costs or attorney's 31 fees for the defense of any medical malpractice claim. 4 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 (c) Obtaining and maintaining an unexpired irrevocable 2 letter of credit, established pursuant to chapter 675, in an 3 amount sufficient to meet the minimum annual aggregate claim 4 amount specified in paragraph (b) not less than $250,000 per 5 claim, with a minimum aggregate availability of credit of not 6 less than $750,000. The letter of credit must be payable to 7 the physician as beneficiary upon presentment of a final 8 judgment indicating liability and awarding damages to be paid 9 by the physician or upon presentment of a settlement agreement 10 signed by all parties to such agreement when such final 11 judgment or settlement is a result of a claim arising out of 12 the rendering of, or the failure to render, medical care and 13 services. The letter of credit may not be used for litigation 14 costs or attorney's fees for the defense of any medical 15 malpractice claim. The letter of credit must be nonassignable 16 and nontransferable. The letter of credit must be issued by 17 any bank or savings association organized and existing under 18 the laws of this state or any bank or savings association 19 organized under the laws of the United States which has its 20 principal place of business in this state or has a branch 21 office that is authorized under the laws of this state or of 22 the United States to receive deposits in this state. 23 24 This subsection shall be inclusive of the coverage in 25 subsection (1). 26 (3)(a) Meeting the financial responsibility 27 requirements of this section or the criteria for any exemption 28 from such requirements must be established at the time of 29 issuance or renewal of a license. 30 (b) Any person may, at any time, submit to the 31 department a request for an advisory opinion regarding such 5 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 person's qualifications for exemption. 2 (4)(a) If financial responsibility requirements are 3 met by maintaining professional liability insurance as 4 provided for in this section, the physician shall, at the time 5 of applying for or renewing a license, and within 10 days 6 after any such insurance coverage is instituted, submit to the 7 department a sworn statement identifying the insurer and 8 certifying that the coverage meets the requirements of this 9 section. The statement must be accompanied by a copy of the 10 certificate of insurance which shall be deemed to be 11 incorporated in the statement. Each insurer, self-insurer, 12 risk retention group, or Joint Underwriting Association must 13 promptly notify the department of cancellation or nonrenewal 14 of insurance required by this section. Unless the physician 15 demonstrates that he or she is otherwise in compliance with 16 the requirements of this section, the department shall suspend 17 the license of the physician pursuant to ss. 120.569 and 18 120.57 and notify all health care facilities licensed under 19 chapter 395 of such action. Any suspension under this 20 subsection remains in effect until the physician demonstrates 21 compliance with the requirements of this section. If any 22 judgments or settlements are pending at the time of 23 suspension, those judgments or settlements must be paid in 24 accordance with this section unless otherwise mutually agreed 25 to in writing by the parties. This paragraph does not abrogate 26 a judgment debtor's obligation to satisfy the entire amount of 27 any judgment. 28 (b) 1. If financial responsibility requirements are 29 met by maintaining an escrow account as provided for in this 30 section, the physician shall, at the time of applying for or 31 renewing a license, and within 10 days after any such escrow 6 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 account is opened, submit to the department a sworn statement 2 identifying the assets held in escrow and their value; 3 identifying the financial institution that is holding the 4 escrow; affirming that the account is nonassignable, 5 nontransferable, and not encumbered or pledged to a purpose 6 other than meeting the financial responsibility requirements 7 of this section; and granting such authorization as is 8 necessary for the department to verify such information with 9 the financial institution. A copy of the escrow agreement and 10 a recent statement from the institution reflecting the value 11 of the assets in the escrow account must accompany the 12 statement and shall be deemed to be incorporated in the 13 statement. 14 2. If financial responsibility requirements are met by 15 maintaining a letter of credit as provided for in this 16 section, the physician shall, at the time of applying for or 17 renewing a license, and within 10 days after any such letter 18 of credit is issued, submit to the department a sworn 19 statement identifying the financial institution that issued 20 the letter of credit; affirming that the letter of credit is 21 nonassignable, nontransferable, otherwise meets the 22 requirements of this section, and is not encumbered or pledged 23 to a purpose other than meeting the financial responsibility 24 requirements in this section; and granting such authorization 25 as is necessary for the department to verify such information 26 with the financial institution. A copy of the letter of 27 credit must accompany the statement and shall be deemed to be 28 incorporated in the statement. 29 3. If financial responsibility requirements are met by 30 maintaining an escrow account or letter of credit as provided 31 in this section, upon the entry of an adverse final judgment 7 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 arising from a medical malpractice arbitration award, from a 2 claim of medical malpractice either in contract or tort, or 3 from noncompliance with the terms of a settlement agreement 4 arising from a claim of medical malpractice either in contract 5 or tort, the licensee shall pay the entire amount of the 6 judgment together with all accrued interest, or the amount 7 maintained in the escrow account or provided in the letter of 8 credit as required by this section, whichever is less, within 9 60 days after the date such judgment became final and subject 10 to execution, unless otherwise mutually agreed to in writing 11 by the parties. If timely payment is not made by the 12 physician, the department shall suspend the license of the 13 physician pursuant to procedures set forth in paragraphs 14 (6)(c) and (d) subparagraphs (5)(g)3., 4., and 5. Nothing in 15 This paragraph does not shall abrogate a judgment debtor's 16 obligation to satisfy the entire amount of any judgment. 17 (c)1. Each insurer, self-insurer, risk retention 18 group, or joint underwriting association must promptly notify 19 the department of the cancellation or nonrenewal of insurance 20 that is required by this section. Each bank or savings 21 association must promptly notify the department of the closing 22 or transfer of an escrow account, or the cancellation or 23 expiration of a letter of credit, which account or letter is 24 required by this section. 25 2. Within 10 days after the cancellation or nonrenewal 26 of professional liability insurance, the closing or transfer 27 of an escrow account, or the cancellation or expiration of a 28 letter of credit being used by a physician to meet the 29 financial responsibility requirements of this section, such 30 physician shall notify the department of such cancellation or 31 nonrenewal of the insurance coverage, closing or transfer of 8 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 the escrow account, or cancellation or expiration of the 2 letter of credit, and submit the sworn statement required by 3 paragraph (a) or paragraph (b) reflecting the institution of 4 professional liability insurance coverage, the opening of an 5 escrow account, or the issuance of a letter of credit, as 6 applicable, to otherwise meet the financial responsibility 7 requirements of this section. The department shall suspend, 8 pursuant to ss. 120.569 and 120.57, the license of a physician 9 whose liability insurance is cancelled or not renewed, whose 10 escrow account is closed or transferred, or whose letter of 11 credit is cancelled or expires, and who does not notify the 12 department of such action and submit the sworn statement 13 required by this subsection demonstrating that he or she is 14 otherwise in compliance with the requirements of this section. 15 The department shall notify all health care facilities 16 licensed under chapter 395 of such suspension action. A 17 suspension under this subparagraph must remain in effect until 18 the physician demonstrates compliance with the requirements of 19 this section. If any judgements or settlements are pending at 20 the time of suspension, those judgments or settlements must be 21 paid in accordance with this section unless otherwise agreed 22 in writing by the parties. This paragraph does not abrogate a 23 judgment debtor's obligation to satisfy the entire amount of 24 any judgment. 25 (d) The sworn statement required by paragraph (a) or 26 paragraph (b) must include the following declaration: "Under 27 penalties of perjury, I declare that I have read the foregoing 28 statement and that the facts stated in it are true." The 29 declaration must be printed or typed at the end of the 30 statement and above the signature of the physician making the 31 declaration. A physician who knowingly makes a false 9 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 declaration under this paragraph, in addition to being subject 2 to discipline as otherwise authorized by this chapter, commits 3 the crime of perjury by false written declaration, a felony of 4 the third degree, punishable as provided in s. 775.082, s. 5 775.083, or s. 775.084. 6 (e) A physician who fails to timely file a statement 7 required by paragraph (a) or paragraph (b) or the notice 8 required by paragraph (c) commits a misdemeanor of the first 9 degree, punishable as provided in s. 775.082 or s. 775.083. 10 (5) The requirements of subsections (1), (2), and (3) 11 do not apply to: 12 (a) Any person licensed under this chapter who 13 practices medicine exclusively as an officer, employee, or 14 agent of the Federal Government or of the state or its 15 agencies or its subdivisions. For the purposes of this 16 subsection, an agent of the state, its agencies, or its 17 subdivisions is a person who is eligible for coverage under 18 any self-insurance or insurance program authorized by the 19 provisions of s. 768.28(16). 20 (b) Any person whose license has become inactive under 21 this chapter and who is not practicing medicine in this state. 22 Any person applying for reactivation of a license must show 23 either that such licensee maintained tail insurance coverage 24 which provided liability coverage for incidents that occurred 25 on or after January 1, 1987, or the initial date of licensure 26 in this state, whichever is later, and incidents that occurred 27 before the date on which the license became inactive; or such 28 licensee must submit an affidavit stating that such licensee 29 has no unsatisfied medical malpractice judgments or 30 settlements at the time of application for reactivation. 31 (c) Any person holding a limited license pursuant to 10 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 s. 458.317 and practicing under the scope of such limited 2 license. 3 (d) Any person licensed or certified under this 4 chapter who practices only in conjunction with his or her 5 teaching duties at an accredited medical school or in its main 6 teaching hospitals. Such person may engage in the practice of 7 medicine to the extent that such practice is incidental to and 8 a necessary part of duties in connection with the teaching 9 position in the medical school. 10 (e) Any person holding an active license under this 11 chapter who is not practicing medicine in this state. If such 12 person initiates or resumes any practice of medicine in this 13 state, he or she must notify the department of such activity 14 and fulfill the financial responsibility requirements of this 15 section before resuming the practice of medicine in this 16 state. 17 (f) Any person holding an active license under this 18 chapter who meets all of the following criteria: 19 1. The licensee has held an active license to practice 20 in this state or another state or some combination thereof for 21 more than 15 years. 22 2. The licensee has either retired from the practice 23 of medicine or maintains a part-time practice of no more than 24 1,000 patient contact hours per year. 25 3. The licensee has had no more than two claims for 26 medical malpractice resulting in an indemnity exceeding 27 $25,000 within the previous 5-year period. 28 4. The licensee has not been convicted of, or pled 29 guilty or nolo contendere to, any criminal violation specified 30 in this chapter or the medical practice act of any other 31 state. 11 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 5. The licensee has not been subject within the last 2 10 years of practice to license revocation or suspension for 3 any period of time; probation for a period of 3 years or 4 longer; or a fine of $500 or more for a violation of this 5 chapter or the medical practice act of another jurisdiction. 6 The regulatory agency's acceptance of a physician's 7 relinquishment of a license, stipulation, consent order, or 8 other settlement, offered in response to or in anticipation of 9 the filing of administrative charges against the physician's 10 license, constitutes action against the physician's license 11 for the purposes of this paragraph. 12 6. The licensee has submitted a form supplying 13 necessary information as required by the department and an 14 affidavit affirming compliance with this paragraph. 15 7. The licensee must submit biennially to the 16 department certification stating compliance with the 17 provisions of this paragraph. The licensee must, upon request, 18 demonstrate to the department information verifying compliance 19 with this paragraph. 20 21 A licensee who meets the requirements of this paragraph must 22 post notice in the form of a sign prominently displayed in the 23 reception area and clearly noticeable by all patients or 24 provide a written statement to any person to whom medical 25 services are being provided. The sign or statement must read 26 as follows: "Under Florida law, physicians are generally 27 required to carry medical malpractice insurance or otherwise 28 demonstrate financial responsibility to cover potential claims 29 for medical malpractice. However, certain part-time physicians 30 who meet state requirements are exempt from the financial 31 responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND 12 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This 2 notice is provided pursuant to Florida law." 3 (g) Any person holding an active license under this 4 chapter who agrees to meet all of the following criteria: 5 (6)1. Upon the entry of an adverse final judgment 6 arising from a medical malpractice arbitration award, from a 7 claim of medical malpractice either in contract or tort, or 8 from noncompliance with the terms of a settlement agreement 9 arising from a claim of medical malpractice either in contract 10 or tort, a licensee required to maintain financial 11 responsibility under this section the licensee shall pay the 12 judgment creditor the lesser of the entire amount of the 13 judgment with all accrued interest or either $100,000, if the 14 physician is licensed pursuant to this chapter but does not 15 maintain hospital staff privileges, or $250,000, if the 16 physician is licensed pursuant to this chapter and maintains 17 hospital staff privileges, within 60 days after the date such 18 judgment became final and subject to execution, unless 19 otherwise mutually agreed to in writing by the parties. Such 20 adverse final judgment shall include any cross-claim, 21 counterclaim, or claim for indemnity or contribution arising 22 from the claim of medical malpractice. 23 (a) Upon notification of the existence of an 24 unsatisfied judgment or payment pursuant to this subsection 25 subparagraph, the department shall notify the licensee by 26 certified mail that he or she shall be subject to disciplinary 27 action unless, within 30 days from the date of mailing, he or 28 she either: 29 1.a. Shows proof that the unsatisfied judgment has 30 been paid in the amount specified in this subsection 31 subparagraph; or 13 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 2.b. Furnishes the department with a copy of a timely 2 filed notice of appeal and either: 3 a.(I) A copy of a supersedeas bond properly posted in 4 the amount required by law; or 5 b.(II) An order from a court of competent jurisdiction 6 staying execution on the final judgment pending disposition of 7 the appeal. 8 (b)2. The Department of Health shall issue an 9 emergency order suspending the license of any licensee who, 10 after 30 days following receipt of a notice from the 11 Department of Health, has failed to: satisfy a medical 12 malpractice claim against him or her; furnish the Department 13 of Health a copy of a timely filed notice of appeal; furnish 14 the Department of Health a copy of a supersedeas bond properly 15 posted in the amount required by law; or furnish the 16 Department of Health an order from a court of competent 17 jurisdiction staying execution on the final judgment pending 18 disposition of the appeal. 19 (c)3. Upon the next meeting of the probable cause 20 panel of the board following 30 days after the date of mailing 21 the notice of disciplinary action to the licensee, the panel 22 shall make a determination of whether probable cause exists to 23 take disciplinary action against the licensee pursuant to 24 paragraph (a) subparagraph 1. 25 (d)4. If the board determines that the factual 26 requirements of this subsection subparagraph 1. are met, it 27 shall take disciplinary action as it deems appropriate against 28 the licensee. Such disciplinary action shall include, at a 29 minimum, probation of the license with the restriction that 30 the licensee must make payments to the judgment creditor on a 31 schedule determined by the board to be reasonable and within 14 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 the financial capability of the physician. Notwithstanding any 2 other disciplinary penalty imposed, the disciplinary penalty 3 may include suspension of the license for a period not to 4 exceed 5 years. In the event that an agreement to satisfy a 5 judgment has been met, the board shall remove any restriction 6 on the license. 7 5. The licensee has completed a form supplying 8 necessary information as required by the department. 9 10 A licensee who meets the requirements of this paragraph shall 11 be required either to post notice in the form of a sign 12 prominently displayed in the reception area and clearly 13 noticeable by all patients or to provide a written statement 14 to any person to whom medical services are being provided. 15 Such sign or statement shall state: "Under Florida law, 16 physicians are generally required to carry medical malpractice 17 insurance or otherwise demonstrate financial responsibility to 18 cover potential claims for medical malpractice. YOUR DOCTOR 19 HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This 20 is permitted under Florida law subject to certain conditions. 21 Florida law imposes penalties against noninsured physicians 22 who fail to satisfy adverse judgments arising from claims of 23 medical malpractice. This notice is provided pursuant to 24 Florida law." 25 (7)(6) Any deceptive, untrue, or fraudulent 26 representation by the licensee with respect to any provision 27 of this section shall result in permanent disqualification 28 from any exemption to mandated financial responsibility as 29 provided in this section and shall constitute grounds for 30 disciplinary action under s. 458.331. 31 (8)(7) Any licensee who relies on any exemption from 15 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 the financial responsibility requirement shall notify the 2 department, in writing, of any change of circumstance 3 regarding his or her qualifications for such exemption and 4 shall demonstrate that he or she is in compliance with the 5 requirements of this section. 6 (9)(8) Notwithstanding any other provision of this 7 section, the department shall suspend the license of any 8 physician against whom has been entered a final judgment, 9 arbitration award, or other order or who has entered into a 10 settlement agreement to pay damages arising out of a claim for 11 medical malpractice, if all appellate remedies have been 12 exhausted and payment up to the amounts required by this 13 section has not been made within 30 days after the entering of 14 such judgment, award, or order or agreement, until proof of 15 payment is received by the department or a payment schedule 16 has been agreed upon by the physician and the claimant and 17 presented to the department. This subsection does not apply to 18 a physician who has met the financial responsibility 19 requirements in paragraphs (1)(b) and (2)(b). 20 (10) The department shall verify that the licensee has 21 the required financial responsibility in accordance with 22 subsections (1) and (2) before a license is granted or 23 renewed. 24 (11)(9) The board shall adopt rules to implement the 25 provisions of this section. 26 Section 2. Section 459.0085, Florida Statutes, is 27 amended to read: 28 459.0085 Financial responsibility.-- 29 (1) As a condition of licensing and maintaining an 30 active license, and prior to the issuance or renewal of an 31 active license or reactivation of an inactive license for the 16 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 practice of osteopathic medicine, an applicant must by one of 2 the following methods demonstrate to the satisfaction of the 3 board and the department financial responsibility to pay 4 claims and costs ancillary thereto arising out of the 5 rendering of, or the failure to render, medical care or 6 services: 7 (a) Establishing and maintaining an escrow account 8 consisting of cash or assets eligible for deposit in 9 accordance with s. 625.52 in an amount sufficient to meet the 10 minimum annual aggregate claim amount the per-claim amounts 11 specified in paragraph (b). The escrow account must be payable 12 to the osteopathic physician as beneficiary upon presentment 13 of a final judgment indicating liability and awarding damages 14 to be paid by the osteopathic physician or upon presentment of 15 a settlement agreement signed by all parties to such agreement 16 when such final judgment or settlement is a result of a claim 17 arising out of the rendering of, or the failure to render, 18 medical care and services. The required escrow amount set 19 forth in this paragraph may not be used for litigation costs 20 or attorney's fees for the defense of any medical malpractice 21 claim. The escrow account must be nonassignable and 22 nontransferable. Such escrow account must be made with and 23 held by the trust department of a bank or savings association 24 organized and existing under the laws of this state or a bank 25 or savings association organized under the laws of the United 26 States which has its principal place of business in this state 27 or has a branch office that is authorized under the laws of 28 this state or of the United States to receive deposits in this 29 state. 30 (b) Obtaining and maintaining professional liability 31 coverage in an amount not less than $100,000 per claim, with a 17 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 minimum annual aggregate of not less than $300,000, from an 2 authorized insurer as defined under s. 624.09, from a surplus 3 lines insurer as defined under s. 626.914(2), from a risk 4 retention group as defined under s. 627.942, from the Joint 5 Underwriting Association established under s. 627.351(4), or 6 through a plan of self-insurance as provided in s. 627.357. 7 The required coverage amount set forth in this paragraph may 8 not be used for litigation costs or attorney's fees for the 9 defense of any medical malpractice claim. 10 (c) Obtaining and maintaining an unexpired, 11 irrevocable letter of credit, established pursuant to chapter 12 675, in an amount sufficient to meet the minimum annual 13 aggregate claim amount specified in paragraph (b) not less 14 than $100,000 per claim, with a minimum aggregate availability 15 of credit of not less than $300,000. The letter of credit must 16 be payable to the osteopathic physician as beneficiary upon 17 presentment of a final judgment indicating liability and 18 awarding damages to be paid by the osteopathic physician or 19 upon presentment of a settlement agreement signed by all 20 parties to such agreement when such final judgment or 21 settlement is a result of a claim arising out of the rendering 22 of, or the failure to render, medical care and services. The 23 letter of credit may not be used for litigation costs or 24 attorney's fees for the defense of any medical malpractice 25 claim. The letter of credit must be nonassignable and 26 nontransferable. Such letter of credit must be issued by any 27 bank or savings association organized and existing under the 28 laws of this state or any bank or savings association 29 organized under the laws of the United States which has its 30 principal place of business in this state or has a branch 31 office that is authorized under the laws of this state or of 18 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 the United States to receive deposits in this state. 2 (2) Osteopathic physicians who perform surgery in an 3 ambulatory surgical center licensed under chapter 395 and, as 4 a continuing condition of hospital staff privileges, 5 osteopathic physicians who have staff privileges must also 6 establish financial responsibility by one of the following 7 methods: 8 (a) Establishing and maintaining an escrow account 9 consisting of cash or assets eligible for deposit in 10 accordance with s. 625.52 in an amount sufficient to meet the 11 minimum annual aggregate claim amount the per-claim amounts 12 specified in paragraph (b). The escrow account must be payable 13 to the osteopathic physician as beneficiary upon presentment 14 of a final judgment indicating liability and awarding damages 15 to be paid by the osteopathic physician or upon presentment of 16 a settlement agreement signed by all parties to such agreement 17 when such final judgment or settlement is a result of a claim 18 arising out of the rendering of, or the failure to render, 19 medical care and services. The required escrow amount set 20 forth in this paragraph may not be used for litigation costs 21 or attorney's fees for the defense of any medical malpractice 22 claim. The escrow account must be nonassignable and 23 nontransferable. Such escrow account must be made with and 24 held by the trust department of a bank or savings association 25 organized and existing under the laws of this state or a bank 26 or savings association organized under the laws of the United 27 States which has its principal place of business in this state 28 or has a branch office that is authorized under the laws of 29 this state or of the United States to receive deposits in this 30 state. 31 (b) Obtaining and maintaining professional liability 19 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 coverage in an amount not less than $250,000 per claim, with a 2 minimum annual aggregate of not less than $750,000 from an 3 authorized insurer as defined under s. 624.09, from a surplus 4 lines insurer as defined under s. 626.914(2), from a risk 5 retention group as defined under s. 627.942, from the Joint 6 Underwriting Association established under s. 627.351(4), 7 through a plan of self-insurance as provided in s. 627.357, or 8 through a plan of self-insurance that meets the conditions 9 specified for satisfying financial responsibility in s. 10 766.110. The required coverage amount set forth in this 11 paragraph may not be used for litigation costs or attorney's 12 fees for the defense of any medical malpractice claim. 13 (c) Obtaining and maintaining an unexpired, 14 irrevocable letter of credit, established pursuant to chapter 15 675, in an amount sufficient to meet the minimum annual 16 aggregate claim amount specified in paragraph (b) not less 17 than $250,000 per claim, with a minimum aggregate availability 18 of credit of not less than $750,000. The letter of credit must 19 be payable to the osteopathic physician as beneficiary upon 20 presentment of a final judgment indicating liability and 21 awarding damages to be paid by the osteopathic physician or 22 upon presentment of a settlement agreement signed by all 23 parties to such agreement when such final judgment or 24 settlement is a result of a claim arising out of the rendering 25 of, or the failure to render, medical care and services. The 26 letter of credit may not be used for litigation costs or 27 attorney's fees for the defense of any medical malpractice 28 claim. The letter of credit must be nonassignable and 29 nontransferable. The letter of credit must be issued by any 30 bank or savings association organized and existing under the 31 laws of this state or any bank or savings association 20 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 organized under the laws of the United States which has its 2 principal place of business in this state or has a branch 3 office that is authorized under the laws of this state or of 4 the United States to receive deposits in this state. 5 6 This subsection shall be inclusive of the coverage in 7 subsection (1). 8 (3)(a) Meeting the financial responsibility 9 requirements of this section or the criteria for any exemption 10 from such requirements must be established at the time of 11 issuance or renewal of a license. 12 (b) Any person may, at any time, submit to the 13 department a request for an advisory opinion regarding such 14 person's qualifications for exemption. 15 (4)(a) If financial responsibility requirements are 16 met by maintaining professional liability insurance as 17 provided for in this section, the osteopathic physician shall, 18 at the time of applying for or renewing a license, and within 19 10 days after any such insurance coverage is instituted, 20 submit to the department a sworn statement identifying the 21 insurer and certifying that the coverage meets the 22 requirements of this section. The statement must be 23 accompanied by a copy of the certificate of insurance which 24 shall be deemed to be incorporated in the statement. Each 25 insurer, self-insurer, risk retention group, or joint 26 underwriting association must promptly notify the department 27 of cancellation or nonrenewal of insurance required by this 28 section. Unless the osteopathic physician demonstrates that he 29 or she is otherwise in compliance with the requirements of 30 this section, the department shall suspend the license of the 31 osteopathic physician pursuant to ss. 120.569 and 120.57 and 21 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 notify all health care facilities licensed under chapter 395, 2 part IV of chapter 394, or part I of chapter 641 of such 3 action. Any suspension under this subsection remains in effect 4 until the osteopathic physician demonstrates compliance with 5 the requirements of this section. If any judgments or 6 settlements are pending at the time of suspension, those 7 judgments or settlements must be paid in accordance with this 8 section unless otherwise mutually agreed to in writing by the 9 parties. This paragraph does not abrogate a judgment debtor's 10 obligation to satisfy the entire amount of any judgment. 11 (b)1. If financial responsibility requirements are met 12 by maintaining an escrow account as provided for in this 13 section, the physician shall, at the time of applying for or 14 renewing a license, and within 10 days after any such escrow 15 account is opened, submit to the department a sworn statement 16 identifying the assets held in escrow and their value; 17 identifying the financial institution that is holding the 18 escrow; affirming that the account is nonassignable, 19 nontransferable, and not encumbered or pledged to a purpose 20 other than meeting the financial responsibility requirements 21 of this section; and granting such authorization as is 22 necessary for the department to verify such information with 23 the financial institution. A copy of the escrow agreement and 24 a recent statement from the institution reflecting the value 25 of the assets in the escrow account must accompany the 26 statement and shall be deemed to be incorporated by reference 27 therein. 28 2. If financial responsibility requirements are met by 29 maintaining a letter of credit as provided for in this 30 section, the physician shall, at the time of applying for or 31 renewing a license, and within 10 days after any such letter 22 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 of credit is issued, submit to the department a sworn 2 statement identifying the financial institution that issued 3 the letter of credit; affirming that the letter of credit is 4 nonassignable, nontransferable, otherwise meets the 5 requirements of this section, and is not encumbered or pledged 6 to a purpose other than meeting the financial responsibility 7 requirements in this section; and granting such authorization 8 as is necessary for the department to verify such information 9 with the financial institution. A copy of the letter of credit 10 must accompany the statement and shall be deemed to be 11 incorporated therein by reference. 12 3. If financial responsibility requirements are met by 13 maintaining an escrow account or letter of credit as provided 14 in this section, upon the entry of an adverse final judgment 15 arising from a medical malpractice arbitration award, from a 16 claim of medical malpractice either in contract or tort, or 17 from noncompliance with the terms of a settlement agreement 18 arising from a claim of medical malpractice either in contract 19 or tort, the licensee shall pay the entire amount of the 20 judgment together with all accrued interest or the amount 21 maintained in the escrow account or provided in the letter of 22 credit as required by this section, whichever is less, within 23 60 days after the date such judgment became final and subject 24 to execution, unless otherwise mutually agreed to in writing 25 by the parties. If timely payment is not made by the 26 osteopathic physician, the department shall suspend the 27 license of the osteopathic physician pursuant to procedures 28 set forth in paragraphs (6)(c) and (d) subparagraphs (5)(g)3., 29 4., and 5. Nothing in This paragraph does not shall abrogate a 30 judgment debtor's obligation to satisfy the entire amount of 31 any judgment. 23 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 (c)1. Each insurer, self-insurer, risk retention 2 group, or joint underwriting association must promptly notify 3 the department of the cancellation or nonrenewal of insurance 4 that is required by this section. Each bank or savings 5 association must promptly notify the department of the closing 6 or transfer of an escrow account, or the cancellation or 7 expiration of a letter of credit, which account or letter is 8 required by this section. 9 2. Within 10 days after the cancellation or nonrenewal 10 of professional liability insurance, the closing or transfer 11 of an escrow account, or the cancellation or expiration of a 12 letter of credit being used by an osteopathic physician to 13 meet the financial responsibility requirements of this 14 section, such osteopathic physician shall notify the 15 department of such cancellation or nonrenewal of the insurance 16 coverage, closing or transfer of the escrow account, or 17 cancellation or expiration of the letter of credit, and submit 18 the sworn statement required by paragraph (a) or paragraph (b) 19 reflecting the institution of professional liability insurance 20 coverage, the opening of an escrow account, or the issuance of 21 a letter of credit, as applicable, to otherwise meet the 22 financial responsibility requirements of this section. The 23 department shall suspend, pursuant to ss. 120.569 and 120.57, 24 the license of an osteopathic physician whose liability 25 insurance is cancelled or not renewed, whose escrow account is 26 closed or transferred, or whose letter of credit is cancelled 27 or expires, and who does not notify the department of such 28 action and submit the sworn statement required by this 29 subsection demonstrating that he or she is otherwise in 30 compliance with the requirements of this section. The 31 department shall notify all health care facilities licensed 24 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 under chapter 395 of such suspension action. A suspension 2 under this subparagraph must remain in effect until the 3 osteopathic physician demonstrates compliance with the 4 requirements of this section. If any judgements or settlements 5 are pending at the time of suspension, those judgments or 6 settlements must be paid in accordance with this section 7 unless otherwise agreed in writing by the parties. This 8 paragraph does not abrogate a judgment debtor's obligation to 9 satisfy the entire amount of any judgment. 10 (d) The sworn statement required by paragraph (a) or 11 paragraph (b) must include the following declaration: "Under 12 penalties of perjury, I declare that I have read the foregoing 13 statement and that the facts stated in it are true." The 14 declaration must be printed or typed at the end of the 15 statement and above the signature of the osteopathic physician 16 making the declaration. An osteopathic physician who knowingly 17 makes a false declaration under this paragraph, in addition to 18 being subject to discipline as otherwise authorized by this 19 chapter, commits the crime of perjury by false written 20 declaration, a felony of the third degree, punishable as 21 provided in s. 775.082, s. 775.083, or s. 775.084. 22 (e) An osteopathic physician who fails to timely file 23 a statement required by paragraph (a) or paragraph (b) or the 24 notice required by paragraph (c) commits a misdemeanor of the 25 first degree, punishable as provided in s. 775.082 or s. 26 775.083. 27 (5) The requirements of subsections (1), (2), and (3) 28 do not apply to: 29 (a) Any person licensed under this chapter who 30 practices medicine exclusively as an officer, employee, or 31 agent of the Federal Government or of the state or its 25 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 agencies or its subdivisions. For the purposes of this 2 subsection, an agent of the state, its agencies, or its 3 subdivisions is a person who is eligible for coverage under 4 any self-insurance or insurance program authorized by the 5 provisions of s. 768.28(16). 6 (b) Any person whose license has become inactive under 7 this chapter and who is not practicing medicine in this state. 8 Any person applying for reactivation of a license must show 9 either that such licensee maintained tail insurance coverage 10 that provided liability coverage for incidents that occurred 11 on or after January 1, 1987, or the initial date of licensure 12 in this state, whichever is later, and incidents that occurred 13 before the date on which the license became inactive; or such 14 licensee must submit an affidavit stating that such licensee 15 has no unsatisfied medical malpractice judgments or 16 settlements at the time of application for reactivation. 17 (c) Any person holding a limited license pursuant to 18 s. 459.0075 and practicing under the scope of such limited 19 license. 20 (d) Any person licensed or certified under this 21 chapter who practices only in conjunction with his or her 22 teaching duties at a college of osteopathic medicine. Such 23 person may engage in the practice of osteopathic medicine to 24 the extent that such practice is incidental to and a necessary 25 part of duties in connection with the teaching position in the 26 college of osteopathic medicine. 27 (e) Any person holding an active license under this 28 chapter who is not practicing osteopathic medicine in this 29 state. If such person initiates or resumes any practice of 30 osteopathic medicine in this state, he or she must notify the 31 department of such activity and fulfill the financial 26 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 responsibility requirements of this section before resuming 2 the practice of osteopathic medicine in this state. 3 (f) Any person holding an active license under this 4 chapter who meets all of the following criteria: 5 1. The licensee has held an active license to practice 6 in this state or another state or some combination thereof for 7 more than 15 years. 8 2. The licensee has either retired from the practice 9 of osteopathic medicine or maintains a part-time practice of 10 osteopathic medicine of no more than 1,000 patient contact 11 hours per year. 12 3. The licensee has had no more than two claims for 13 medical malpractice resulting in an indemnity exceeding 14 $25,000 within the previous 5-year period. 15 4. The licensee has not been convicted of, or pled 16 guilty or nolo contendere to, any criminal violation specified 17 in this chapter or the practice act of any other state. 18 5. The licensee has not been subject within the last 19 10 years of practice to license revocation or suspension for 20 any period of time, probation for a period of 3 years or 21 longer, or a fine of $500 or more for a violation of this 22 chapter or the medical practice act of another jurisdiction. 23 The regulatory agency's acceptance of an osteopathic 24 physician's relinquishment of a license, stipulation, consent 25 order, or other settlement, offered in response to or in 26 anticipation of the filing of administrative charges against 27 the osteopathic physician's license, constitutes action 28 against the physician's license for the purposes of this 29 paragraph. 30 6. The licensee has submitted a form supplying 31 necessary information as required by the department and an 27 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 affidavit affirming compliance with this paragraph. 2 7. The licensee must submit biennially to the 3 department a certification stating compliance with this 4 paragraph. The licensee must, upon request, demonstrate to the 5 department information verifying compliance with this 6 paragraph. 7 8 A licensee who meets the requirements of this paragraph must 9 post notice in the form of a sign prominently displayed in the 10 reception area and clearly noticeable by all patients or 11 provide a written statement to any person to whom medical 12 services are being provided. The sign or statement must read 13 as follows: "Under Florida law, osteopathic physicians are 14 generally required to carry medical malpractice insurance or 15 otherwise demonstrate financial responsibility to cover 16 potential claims for medical malpractice. However, certain 17 part-time osteopathic physicians who meet state requirements 18 are exempt from the financial responsibility law. YOUR 19 OSTEOPATHIC PHYSICIAN MEETS THESE REQUIREMENTS AND HAS DECIDED 20 NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is 21 provided pursuant to Florida law." 22 (g) Any person holding an active license under this 23 chapter who agrees to meet all of the following criteria. 24 (6)1. Upon the entry of an adverse final judgment 25 arising from a medical malpractice arbitration award, from a 26 claim of medical malpractice either in contract or tort, or 27 from noncompliance with the terms of a settlement agreement 28 arising from a claim of medical malpractice either in contract 29 or tort, a licensee required to maintain financial 30 responsibility under this section the licensee shall pay the 31 judgment creditor the lesser of the entire amount of the 28 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 judgment with all accrued interest or either $100,000, if the 2 osteopathic physician is licensed pursuant to this chapter but 3 does not maintain hospital staff privileges, or $250,000, if 4 the osteopathic physician is licensed pursuant to this chapter 5 and maintains hospital staff privileges, within 60 days after 6 the date such judgment became final and subject to execution, 7 unless otherwise mutually agreed to in writing by the parties. 8 Such adverse final judgment shall include any cross-claim, 9 counterclaim, or claim for indemnity or contribution arising 10 from the claim of medical malpractice. 11 12 13 ================ T I T L E A M E N D M E N T =============== 14 And the title is amended as follows: 15 On page 1, lines 5-16, delete those lines 16 17 and insert: 18 providing additional requirements, relating to 19 licensure, for professional liability insurance 20 coverage, an escrow account, and an irrevocable 21 letter of credit; revising the amounts required 22 through the escrow account or letter of credit; 23 providing for submittal, to the Department of 24 Health, by a physician or an osteopathic 25 physician of a sworn statement and 26 documentation relating to the liability 27 insurance coverage, the escrow account, or the 28 letter of credit; providing for notification of 29 the department by a bank or savings association 30 when the escrow account is closed or 31 transferred or the letter of credit is 29 4:54 PM 03/23/05 s0972c-he13-c8h
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 972 Barcode 643804 1 cancelled or expires; removing provisions 2 governing license suspension following 3 cancellation or nonrenewal of professional 4 liability insurance; providing for notification 5 of the department and requiring a sworn 6 statement by the physician or osteopathic 7 physician when the professional liability 8 insurance is cancelled or not renewed, the 9 escrow account is closed or transferred, or the 10 letter of credit is cancelled or expires; 11 providing for license suspension following such 12 termination of insurance, escrow account, or 13 letter of credit; providing criminal penalties 14 for a physician or an osteopathic physician who 15 fails to submit a required notice or statement 16 or who knowingly makes a false declaration in 17 the sworn statement; removing provisions 18 19 20 21 22 23 24 25 26 27 28 29 30 31 30 4:54 PM 03/23/05 s0972c-he13-c8h