CS/HB 1497

1	A bill to be entitled
2	An act relating to abortion; amending s. 390.0111, F.S.;
3	clarifying the requirement that third trimester abortions
4	be performed in a hospital; providing for disciplinary
5	action for violation of specified provisions; requiring an
6	ultrasound be performed on any woman obtaining an
7	abortion; specifying who must perform an ultrasound;
8	providing that the ultrasound must be reviewed with the
9	patient prior to the woman giving informed consent;
10	specifying who must review the ultrasound with the
11	patient; providing that the woman must certify in writing
12	that she declined to review the ultrasound and did so of
13	her own free will and without undue influence; revising
14	requirements for written materials; providing ban on
15	physicians seeking waivers of patients' rights to file
16	complaints with regulatory bodies or litigate causes of
17	action; requiring a 24-hour waiting period before a
18	physician may perform or induce an abortion on an adult or
19	on certain minor patients; providing for exception in the
20	case of a medical emergency; creating s. 390.01112, F.S.;
21	providing for a women's reproductive bill of rights;
22	requiring abortion clinics and physician abortion
23	providers to adopt a public statement of patients' rights
24	and to treat patients in accordance with that statement;
25	providing for required provisions in the statement to
26	patients; requiring clinics and physician abortion
27	providers to provide the information in their statement
28	orally and in writing to patients or their court-appointed
29	guardians; requiring that the statements be provided to
30	staff members; requiring staff training; providing for
31	disciplinary action for violation of patients' bill of
32	rights; providing for immunity to persons filing
33	complaints or testifying in proceedings unless acting in
34	bad faith; creating s. 390.01113, F.S.; creating a private
35	civil action against clinics, nurses, or physicians or
36	violation of a patients' rights; providing persons who may
37	file a cause of action; providing venue; providing for
38	actual and punitive damages; providing for recovery of
39	attorneys fees; providing criteria for recovering
40	attorney's fees; providing that a cause of action under
41	this section is not a claim for medical malpractice;
42	providing basis for punitive damages and exemptions from
43	other provisions of law governing punitive damages;
44	amending s. 390.01114, F.S.; revising provisions relating
45	to parental notice of abortion; providing exceptions;
46	providing for a cause of action under certain
47	circumstances for parents who do not receive notice;
48	providing for damages for cause of action; requiring
49	appointment of a guardian ad litem for a minor petitioning
50	for a waiver of the notice requirements; specifying
51	factors to be considered in determining whether a minor is
52	sufficiently mature to waive the notice requirements;
53	revising provisions relating to confidentiality of
54	hearings;  creating s. 390.01117, F.S.; providing for a
55	cause of action in negligence for any injury or death a
56	patient suffers as a result of an abortion; providing for
57	who may bring a cause of action; providing for survival
58	and wrongful death damages if the patient dies; providing
59	for venue; providing for actual and punitive damages;
60	providing for attorney's fees to prevailing party under
61	certain circumstances; providing that remedies are in
62	addition to any other remedies provided for in law;
63	providing criteria for award of attorney's fees; providing
64	burden of proof; providing that a cause of action is not
65	strict liability; providing for legal duties and standards
66	of care for clinics, physicians, or nurses; providing that
67	cause of action under this section is not a medical
68	malpractice claim; providing for exceptions from certain
69	laws; providing standard for award of punitive damages;
70	providing for exceptions from certain laws for punitive
71	damage awards; creating s. 390.01118, F.S.; providing for
72	a statute of limitations and repose for specified causes
73	of action; providing for statute of limitations periods of
74	actions that accrue prior to the effective date of s.
75	390.01118, F.S.; creating s. 390.01119, F.S.; providing
76	for a misdemeanor of the second degree for fraudulently
77	altering, defacing, or falsifying medical records related
78	to an abortion or for causing any of these offenses;
79	providing for professional licensure actions for the same
80	violations; amending s. 390.012, F.S.; providing that
81	agency rules promulgated shall prohibit the performance of
82	abortions in the third trimester other than in a hospital;
83	requiring that the agency rules provide that a clinic or
84	abortion provider cannot request a patient to waive her
85	rights to sue or file a complaint with a disciplinary
86	body; deleting references to conform; requiring
87	ultrasounds for all patients; requiring that live
88	ultrasound images be reviewed and explained to the
89	patient; providing that the patient may decline to review
90	ultrasound images; providing that any language of the act
91	that could be construed as infringing upon a court's
92	powers shall be construed as a request for rule change;
93	providing for severability; providing an effective date.
94
95	Be It Enacted by the Legislature of the State of Florida:
96
97	Section 1.  Subsections (1) and (3) of section 390.0111,
98	Florida Statutes, are amended, and subsection (12) is added to
99	that section, to read:
100	390.0111  Termination of pregnancies.--
101	(1)  TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.--No
102	termination of pregnancy shall be performed on any human being
103	in the third trimester of pregnancy unless:
104	(a)  The abortion is performed in a hospital; and
105	(b)1.  Two physicians certify in writing to the fact that,
106	to a reasonable degree of medical probability, the termination
107	of pregnancy is necessary to save the life or preserve the
108	health of the pregnant woman; or
109	2.(b)  The physician certifies in writing to the medical
110	necessity for legitimate emergency medical procedures for
111	termination of pregnancy in the third trimester, and another
112	physician is not available for consultation.
113	(c)  Violation of this subsection by a physician
114	constitutes grounds for disciplinary action under s. 458.331 or
115	s. 459.015.
116	(3)  CONSENTS REQUIRED.--A termination of pregnancy may not
117	be performed or induced except with the voluntary and informed
118	written consent of the pregnant woman or, in the case of a
119	mental incompetent, the voluntary and informed written consent
120	of her court-appointed guardian.
121	(a)  Except in the case of a medical emergency, consent to
122	a termination of pregnancy is voluntary and informed only if:
123	1.  The physician who is to perform the procedure, or the
124	referring physician, has, at a minimum, orally, in person,
125	informed the woman of:
126	a.  The nature and risks of undergoing or not undergoing
127	the proposed procedure that a reasonable patient would consider
128	material to making a knowing and willful decision of whether to
129	terminate a pregnancy.
130	b.  The probable gestational age of the fetus, verified by
131	an ultrasound, at the time the termination of pregnancy is to be
132	performed.
133	(I)  The ultrasound must be performed by the physician who
134	is to perform the abortion or person having documented evidence
135	that he or she has completed a course in the operation of
136	ultrasound equipment as prescribed by rule and who is working in
137	conjunction with the physician.
138	(II)  The person performing the ultrasound must allow the
139	woman to view the live ultrasound images and a physician, or a
140	registered nurse, licensed practical nurse, advanced registered
141	nurse practitioner, or physician assistant working in
142	conjunction with the physician, must contemporaneously review
143	and explain the live ultrasound images to the woman prior to the
144	woman giving informed consent to having an abortion procedure
145	performed.
146	(III)  The woman has a right to decline to view the
147	ultrasound images after she is informed of her right to view
148	them. If the woman declines to view the ultrasound images, the
149	woman shall complete a form acknowledging that she was offered
150	an opportunity to view her ultrasound but that she rejected that
151	opportunity. The form must also indicate that the woman's
152	decision not to view the ultrasound was not based on any undue
153	influence from any third party to discourage her from viewing
154	the images and that she declined to view the images of her own
155	free will.
156	c.  The medical risks to the woman and fetus of carrying
157	the pregnancy to term.
158	2.  Printed materials prepared and provided by the
159	department have been provided to the pregnant woman, if she
160	chooses to view these materials, including:
161	a.  A description of the fetus, including a description of
162	the various stages of development.
163	b.  A list of entities agencies that offer alternatives to
164	terminating the pregnancy.
165	c.  Detailed information on the availability of medical
166	assistance benefits for prenatal care, childbirth, and neonatal
167	care.
168	3.  The woman acknowledges in writing, before the
169	termination of pregnancy, that the information required to be
170	provided under this subsection has been provided.
171
172	Nothing in this paragraph is intended to prohibit a physician
173	from providing any additional information which the physician
174	deems material to the woman's informed decision to terminate her
175	pregnancy.
176	(b)  In the event a medical emergency exists and a
177	physician cannot comply with the requirements for informed
178	consent, a physician may terminate a pregnancy if he or she has
179	obtained at least one corroborative medical opinion attesting to
180	the medical necessity for emergency medical procedures and to
181	the fact that to a reasonable degree of medical certainty the
182	continuation of the pregnancy would threaten the life of the
183	pregnant woman. In the event no second physician is available
184	for a corroborating opinion, the physician may proceed but shall
185	document reasons for the medical necessity in the patient's
186	medical records.
187	(c)  A physician shall not request a patient to waive her
188	ability to either file a complaint with any disciplinary body or
189	to litigate a cause of action based on the care received related
190	to an abortion or a violation of her rights.
191	(d)  Violation of this subsection by a physician
192	constitutes grounds for disciplinary action under s. 458.331 or
193	s. 459.015. Substantial compliance or reasonable belief that
194	complying with the requirements of informed consent would
195	threaten the life or health of the patient is a defense to any
196	action brought under this paragraph.
197	(12)  WAITING PERIOD FOR ABORTION.--No physician shall
198	perform or induce an abortion on a minor patient where notice is
199	not required pursuant to s. 390.01114(3)(b) or on an adult
200	patient unless, at least 24 hours prior thereto, a treating
201	physician has conferred with the patient, or her court-appointed
202	guardian if she is mentally incompetent, pursuant to the
203	requirements set forth in subsection (3). If a medical emergency
204	as defined in s. 390.01114(2)(d) exists, then this subsection
205	shall not apply.
206	Section 2.  Section 390.01112, Florida Statutes, is created
207	to read:
208	390.01112  Women's reproductive bill of rights.--
209	(1)  All abortion clinics and physician abortion providers
210	shall adopt and make public a statement of the rights of
211	patients seeking abortions and shall treat such patients in
212	accordance with the provisions of that statement. The statement
213	shall assure each patient all of the following:
214	(a)  That her abortion must be performed by a physician as
215	defined in s. 390.0111.
216	(b)  That she has the right to know the name, function, and
217	qualifications of each health care provider who is providing
218	medical services to the her. She may request this information
219	from the clinic or physician abortion provider.
220	(c)  That she is entitled to know the probable gestational
221	age of the fetus at the time the abortion is to be performed.
222	(d)  That if she is in her third trimester of pregnancy,
223	any abortion must be performed at a hospital.
224	(e)  That either the patient, or her court appointed
225	guardian if she is mentally incompetent, as set forth in s.
226	390.0111(3) is entitled to provide voluntary and informed,
227	written consent, unless a legal exception to obtaining informed
228	consent exists, before an abortion can be performed or induced.
229	(f)  That if she is a minor, her parent or legal guardian
230	as set forth in s. 390.01114(3) is entitled to receive actual or
231	constructive notice, unless a legal exception to compliance with
232	notice requirements exists, before an abortion can be performed
233	or induced.
234	(g)  That she is entitled to printed materials containing a
235	description of the fetus, a list of agencies that offer
236	alternatives to terminating the pregnancy, and detailed
237	information on the availability of medical assistance benefits
238	for prenatal care, childbirth, and neonatal care.
239	(h)  That she is entitled to be notified of the medical
240	risks of undergoing or not undergoing the proposed procedure
241	that a reasonable patient would consider material to making a
242	knowing and willful decision of whether to terminate the
243	pregnancy.
244	(i)  That she is entitled to notification of the medical
245	risks to her and her fetus of carrying the pregnancy to term.
246	(j)  That the clinic, physician, or physician's office is
247	not allowed to require her to waive her right to either file a
248	complaint with any disciplinary body or to litigate a cause of
249	action based on the care received related to an abortion or a
250	violation of her rights in order to obtain an abortion.
251	(k)  That she is entitled to have all medical records
252	pertaining to her abortion treatment made, protected, and
253	preserved by the physician abortion provider and clinic, and
254	that copies of her medical records shall be made available to
255	her, a representative of her estate, her court appointed
256	guardian if she is mentally incompetent, or her parent or legal
257	guardian pursuant to s. 390.01114(3)(d), or her legal
258	representative upon request.
259	(l)  That she is entitled to any and all adequate,
260	necessary, and appropriate health care related to the
261	performance or inducement of an abortion, including any and all
262	adequate, necessary, and appropriate post-abortion recovery and
263	medical care.
264	(m)  That, if she is in her second trimester of pregnancy,
265	she is entitled to receive care that meets all the quality and
266	safety standards set forth in this chapter, including all
267	requirements provided for in s. 390.012(3).
268	(n)  That she, or her court-appointed guardian if she is
269	mentally incompetent, has the right to refuse medication or
270	treatment and to be informed of the consequences of such
271	decisions. When the medication or treatment is refused, the
272	abortion clinic or physician must notify the patient or her
273	court-appointed guardian of the consequences of such decisions
274	and must document the decision in the patient's medical record.
275	The abortion clinic or physician must continue to provide other
276	services that the patient or her court-appointed guardian agrees
277	to in accordance with the patient's care or treatment needs.
278	(o)  That she is entitled to have privacy in her treatment
279	and care, and that, except as provided herein or elsewhere in
280	law, her medical records shall remain confidential pursuant to
281	all applicable state and federal laws.
282	(p)  That she has the right to a prompt and reasonable
283	response to any question she may have regarding her care or
284	treatment.
285	(q)  That she has the right to be treated courteously,
286	fairly, and with the fullest measure of dignity at all times and
287	upon all occasions.
288	(2)  All clinics and physician abortion providers shall
289	orally inform patients seeking abortions of their rights as set
290	forth herein and shall provide a copy of the statement as
291	provided in subsection (1) to each patient, or her court-
292	appointed guardian if the patient is mentally incompetent,
293	before performing an abortion. The statement shall itemize each
294	of the rights set forth in subsection (1) separately, including
295	each entitlement in s. 390.012 available to a patient obtaining
296	a second trimester abortion. The clinic or physician practicing
297	in a doctor's office shall provide a copy of the patients' bill
298	of reproductive rights to each staff member of the clinic or
299	physician's office. Each clinic or physician shall prepare a
300	written plan and provide appropriate staff training to implement
301	the provisions of this section. The written statement of rights
302	must include a statement that a patient may file a complaint
303	with the agency or department. The statement must be in
304	boldfaced, 14-point type and shall include the address and
305	telephone number of the agency or department.
306	(3)  Any violation of a patient's rights as set forth in
307	this section by a clinic shall constitute grounds for action by
308	the agency under the provisions of ss. 390.012, 408.813,
309	408.814, and 408.815. Any violation of a patient's rights as set
310	forth in this section by a physician shall constitute grounds
311	for disciplinary action under s. 458.331 or s. 459.015.
312	(4)  Any person who submits or reports a complaint
313	concerning a suspected violation of the patient's rights or
314	concerning services or conditions in a clinic or physician's
315	office or who testifies in any administrative or judicial
316	proceeding arising from such complaint shall have immunity from
317	any criminal or civil liability therefor, unless that person has
318	acted in bad faith or with malicious purpose or if the court
319	finds that there was a complete absence of a justiciable issue
320	of either law or fact raised by the losing party.
321	Section 3.  Section 390.01113, Florida Statutes, is created
322	to read:
323	390.01113  Civil action for violations of patients' rights;
324	relief.--
325	(1)  Any patient whose rights as specified in s. 390.01112
326	are violated has a cause of action against any physician, nurse,
327	or clinic for violation of her rights. The action may be brought
328	by the patient, her parent, court-appointed or legal guardian,
329	or by personal representative of the estate of the patient
330	regardless of the cause of death to enforce the right.
331	(2)  The action may be brought in any court of competent
332	jurisdiction to enforce such rights and to recover actual
333	damages, and punitive damages when malicious, wanton, or willful
334	disregard of the rights of others can be shown. Any plaintiff
335	who prevails in any such action for any amount is entitled to
336	recover reasonable attorney's fees, costs of the action, and
337	damages, unless the court finds that the plaintiff has acted in
338	bad faith or with malicious purpose or that there was a complete
339	absence of a justiciable issue of either law or fact. A
340	prevailing defendant is entitled to recover reasonable
341	attorney's fees under s. 57.105. The remedies provided in this
342	section are in addition to other legal and administrative
343	remedies available to a patient, her estate, or to the agency or
344	department.
345	(3)  Attorney's fees shall be based on the following
346	criteria:
347	(a)  The time and labor required.
348	(b)  The novelty and difficulty of the questions.
349	(c)  The skill requisite to perform the legal service
350	properly.
351	(d)  The preclusions of other employment by the attorney
352	due to the acceptance of the case.
353	(e)  The customary fee.
354	(f)  Whether the fee is fixed or contingent.
355	(g)  The amount involved or the results obtained.
356	(h)  The experience, reputation, and ability of the
357	attorneys.
358	(i)  The costs expended to prosecute the claim.
359	(j)  The type of fee arrangement between the attorney and
360	the client.
361	(k)  Whether the relevant market requires a contingency fee
362	multiplier to obtain competent counsel.
363	(l)  Whether the attorney was able to mitigate the risk of
364	nonpayment in any way.
365	(4)  Any action brought under this section is not a claim
366	for medical malpractice, and chapter 766 does not apply. The
367	provisions of s. 768.21(8) do not apply to a claim alleging
368	death of the patient.
369	(5)  For purposes of this section, punitive damages may be
370	awarded for conduct that is willful, wanton, gross or flagrant,
371	reckless, or consciously indifferent to the rights of the
372	patient. Sections 768.72, 768.725, and 768.73 do not apply to
373	any civil action filed under this section.
374	Section 4.  Subsection (3) and paragraphs (a), (c), and (e)
375	of subsection (4) of section 390.01114, Florida Statutes, are
376	amended to read:
377	390.01114  Parental Notice of Abortion Act.--
378	(3)  NOTIFICATION REQUIRED.--
379	(a)1.a.  Actual notice shall be provided by the physician
380	performing or inducing the termination of pregnancy before the
381	performance or inducement of the termination of the pregnancy of
382	a minor. The notice may be given by a referring physician. The
383	physician who performs or induces the termination of pregnancy
384	must receive the written statement of the referring physician
385	certifying that the referring physician has given notice. If
386	actual notice is provided by telephone, the physician must
387	actually speak with the parent or guardian and must record in
388	the minor's medical file the name of the parent or guardian
389	provided notice, the phone number dialed, and the date and time
390	of the call.
391	b.  If actual notice is not possible after a reasonable
392	effort has been made, the physician performing or inducing the
393	termination of pregnancy or the referring physician must give
394	constructive notice. If constructive notice is given, the
395	physician must document that notice by placing copies of any
396	document related to the constructive notice, including, but not
397	limited to, a copy of the letter and the return receipt, in the
398	minor's medical file.
399	2.  Notice given under this subsection by the physician
400	performing or inducing the termination of pregnancy must include
401	the name and address of the facility providing the termination
402	of pregnancy and the name of the physician providing notice.
403	Notice given under this subsection by a referring physician must
404	include the name and address of the facility where he or she is
405	referring the minor and the name of the physician providing
406	notice. If actual notice is provided by telephone, the physician
407	must actually speak with the parent or guardian, and must record
408	in the minor's medical file the name of the parent or guardian
409	provided notice, the phone number dialed, and the date and time
410	of the call. If constructive notice is given, the physician must
411	document that notice by placing copies of any document related
412	to the constructive notice, including, but not limited to, a
413	copy of the letter and the return receipt, in the minor's
414	medical file.
415	(b)  Notice is not required if:
416	1.  In the physician's good faith clinical judgment, a
417	medical emergency exists and there is insufficient time for the
418	attending physician to comply with the notification
419	requirements. If a medical emergency exists, the physician may
420	proceed but must document reasons for the medical necessity in
421	the patient's medical records;
422	2.  Notice is waived in writing by the person who is
423	entitled to notice;
424	3.  Notice is waived by the minor who is or has been
425	married or has had the disability of nonage removed under s.
426	743.015 or a similar statute of another state;
427	4.  Notice is waived by the patient because the patient has
428	a minor child dependent on her; or
429	5.  Notice is waived under subsection (4).
430	(c)  Violation of this subsection by a physician
431	constitutes grounds for disciplinary action under s. 458.331 or
432	s. 459.015.
433	(d)  Any parent or legal guardian of a minor upon whom a
434	termination of pregnancy has been performed or induced who does
435	not receive actual or constructive notice from the physician
436	performing or inducing the termination of pregnancy, where an
437	exception to notice pursuant to paragraph (b) does not exist,
438	may, in a civil action, obtain appropriate relief, unless the
439	pregnancy resulted from the parent or legal guardian's criminal
440	conduct.
441	(e)  In a civil action under paragraph (d), appropriate
442	relief includes:
443	1.  Monetary damages for all injuries, psychological and
444	physical, occasioned by the violation of paragraph(a); and
445	2.  Damages equal to three times the cost of the abortion.
446	(f)  The damages provided for in paragraph (e) are in
447	addition to any other legal or administrative remedies that may
448	be available to the plaintiff or department.
449	(4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--
450	(a)  A minor may petition any circuit court in a judicial
451	circuit within the jurisdiction of the District Court of Appeal
452	in which she resides for a waiver of the notice requirements of
453	subsection (3) and may participate in proceedings on her own
454	behalf. The petition may be filed under a pseudonym or through
455	the use of initials, as provided by court rule. The petition
456	must include a statement that the petitioner is pregnant and
457	notice has not been waived. The court shall advise the minor
458	that she has a right to court-appointed counsel and shall
459	provide her with counsel upon her request at no cost to the
460	minor. The court shall appoint a guardian ad litem for the
461	minor.
462	(c)  If the court finds, by clear and convincing evidence,
463	that the minor is sufficiently mature to decide whether to
464	terminate her pregnancy, the court shall issue an order
465	authorizing the minor to consent to the performance or
466	inducement of a termination of pregnancy without the
467	notification of a parent or guardian.
468	1.  Factors a court shall consider when determining whether
469	a child is sufficiently mature include, but are not limited to,
470	the following:
471	a.  Whether the minor is mature enough to make her abortion
472	decision, as evidenced by:
473	(I)  The minor's age.
474	(II)  The minor's credibility and demeanor as a witness.
475	(III)  The minor's ability to accept responsibility; and
476	b.  Whether the minor is well informed enough to make the
477	decision on her own, as evidenced by the minor's:
478	(I)  Overall intelligence.
479	(II)  Emotional development.
480	(III)  Ability to assess both the immediate and long range
481	consequences of her choices.
482	(IV)  Ability to understand and explain the medical
483	consequences of terminating her pregnancy and to apply that
484	understanding to her decision.
485	2.  The court should also take into consideration whether
486	there has been any undue influence by another on the minor's
487	decision to have an abortion.
488
489	If the court does not make the finding specified in this
490	paragraph or paragraph (d), it must dismiss the petition.
491	(e)  A court that conducts proceedings under this section
492	shall:
493	1.  Provide for a written transcript of all testimony and
494	proceedings.
495	2.  Issue a written final order containing all factual
496	findings and legal conclusions, including factual findings and
497	legal conclusions as to whether the petitioner is sufficiently
498	mature based on the factors set forth in subparagraph(c)1.
499	3.  Order that a confidential record be maintained as
500	required under s. 390.01116. All hearings under this section,
501	including appeals, shall remain confidential and closed to the
502	public, as provided by court rule A court that conducts
503	proceedings under this section shall provide for a written
504	transcript of all testimony and proceedings and issue written
505	and specific factual findings and legal conclusions supporting
506	its decision and shall order that a confidential record be
507	maintained, as required under s. 390.01116. At the hearing, the
508	court shall hear evidence relating to the emotional development,
509	maturity, intellect, and understanding of the minor, and all
510	other relevant evidence. All hearings under this section,
511	including appeals, shall remain confidential and closed to the
512	public, as provided by court rule.
513	Section 5.  Section 390.01117, Florida Statutes, is created
514	to read:
515	390.01117  Civil action for negligence; remedies.--
516	(1)  Any patient who suffers injury or death as a result of
517	an abortion shall have a cause of action for negligence. The
518	action may be brought by the patient, her parent, court-
519	appointed or legal guardian, or by a personal representative of
520	the estate of the patient regardless of the cause of death to
521	enforce the right. If the claim involves negligence or injury to
522	the patient that resulted in her death, then the plaintiff shall
523	be entitled to recover both survival damages pursuant to s.
524	46.021 and wrongful death damages pursuant to s. 768.21. If the
525	action alleges a claim for injury to the patient that did not
526	cause her death, the personal representative of the estate may
527	recover damages for negligence that caused injury to the
528	patient.
529	(2)  The action may be brought in any court of competent
530	jurisdiction to enforce such rights and to recover actual
531	damages, and punitive damages when malicious, wanton, or willful
532	disregard of the rights of others can be shown. Any plaintiff
533	who prevails in any such action for any amount is entitled to
534	recover reasonable attorney's fees, costs of the action, and
535	damages, unless the court finds that the plaintiff has acted in
536	bad faith or with malicious purpose or that there was a complete
537	absence of a justiciable issue of either law or fact. A
538	prevailing defendant is entitled to recover reasonable
539	attorney's fees pursuant to s. 57.105. The remedies provided in
540	this section are in addition to other legal and administrative
541	remedies available to a patient, her estate, or to the agency or
542	department.
543	(3)  Attorney's fees shall be based on the following
544	criteria:
545	(a)  The time and labor required.
546	(b)  The novelty and difficulty of the questions.
547	(c)  The skill requisite to perform the legal service
548	properly.
549	(d)  The preclusions of other employment by the attorney
550	due to the acceptance of the case.
551	(e)  The customary fee.
552	(f)  Whether the fee is fixed or contingent.
553	(g)  The amount involved or the results obtained.
554	(h)  The experience, reputation, and ability of the
555	attorneys.
556	(i)  The costs expended to prosecute the claim.
557	(j)  The type of fee arrangement between the attorney and
558	the client.
559	(k)  Whether the relevant market requires a contingency fee
560	multiplier to obtain competent counsel.
561	(l)  Whether the attorney was able to mitigate the risk of
562	nonpayment in any way.
563	(4)  In any claim brought under this section, the plaintiff
564	shall have the burden of proving by a preponderance of the
565	evidence, the following:
566	(a)  The defendant owed a duty to the patient.
567	(b)  The defendant breached the duty to the patient.
568	(c)  The breach of the duty was a legal cause of loss,
569	injury, death, or damage to the patient.
570	(d)  The patient sustained loss, injury, death, or damage
571	as a result of the breach.
572	(5)  Nothing in this section shall be interpreted to create
573	strict liability. Injury or death resulting to the patient shall
574	be evidence of negligence, but shall not be negligence per se.
575	(6)  In any claim brought under this section, a clinic,
576	person, or entity shall have a duty to exercise reasonable care.
577	Reasonable care is that degree of care which a reasonably
578	careful clinic, person, or entity would use under like
579	circumstances.
580	(7)  In any claim for negligence by a physician, such
581	physician shall have the duty to exercise care consistent with
582	the prevailing professional standard of care for physicians. The
583	prevailing professional standard of care for physicians shall be
584	that level of care, skill, and treatment which, in light of all
585	relevant surrounding circumstances, is recognized as acceptable
586	and appropriate by reasonably prudent similar physicians.
587	(8)  In any claim for negligence by a nurse licensed under
588	part I of chapter 464, such nurse shall have the duty to
589	exercise care consistent with the prevailing professional
590	standard of care for a nurse. The prevailing professional
591	standard of care for a nurse shall be that level of care, skill,
592	and treatment which, in light of all relevant surrounding
593	circumstances, is recognized as acceptable and appropriate by
594	reasonably prudent similar nurses.
595	(9)  Any action brought pursuant to this section is not a
596	claim for medical malpractice, and chapter 766 does not apply.
597	The provisions of s. 768.21(8) do not apply to a claim alleging
598	death of the patient.
599	(10)  For purposes of this section, punitive damages may be
600	awarded for conduct that is willful, wanton, gross or flagrant,
601	reckless or consciously indifferent to the rights of the
602	patient. Sections 768.72, 768.725, and 768.73 do not apply to
603	any civil action filed pursuant to this section.
604	Section 6.  Section 390.01118, Florida Statutes, is created
605	to read:
606	390.01118  Statute of limitations.--Any action for damages
607	brought under ss. 390.01113, 390.01114(3)(d)-(f), and 390.01117
608	shall be commenced within 2 years from the time the incident
609	giving rise to the action occurred or within 2 years from the
610	time the incident is discovered or should have been discovered
611	with the exercise of due diligence.
612	(1)  In those actions covered by ss. 390.01113,
613	390.01114(3)(d)-(f), and 390.01117 in which it can be shown that
614	fraudulent concealment or intentional misrepresentation of fact
615	prevented discovery of the injury, the period of limitations is
616	extended forward 2 years from the time the injury is discovered
617	with the exercise of due diligence.
618	(2)  In actions where it can be shown that fraudulent
619	concealment or intentional misrepresentation of fact prevented
620	the discovery of the injury, the period of limitations is
621	extended forward 2 years from the time that the injury is
622	discovered with the exercise of due diligence.
623	Section 7.  Section 390.01118, Florida Statutes, as created
624	by this act, shall apply to causes of action that have accrued
625	prior to the effective date of that section; however, any such
626	cause of action that would not have been barred under prior law
627	may be brought within the time allowed by prior law or within 2
628	years after the effective date of that section, whichever is
629	earlier, and will be barred thereafter.
630	Section 8.  Section 390.01119, Florida Statutes, is created
631	to read:
632	390.01119  Medical records.--
633	(1)  Any person who fraudulently alters, defaces, or
634	falsifies any medical record related to an abortion or causes or
635	procures any of these offenses to be committed, commits a
636	misdemeanor of the second degree, punishable as provided in s.
637	775.082 or s. 775.083.
638	(2)  A conviction under subsection (1) is also grounds for
639	restriction, suspension, or termination of the license
640	privileges of a professional licensee.
641	Section 9.  Subsection (1) and paragraph (d) of subsection
642	(3) of section 390.012, Florida Statutes, are amended to read:
643	390.012  Powers of agency; rules; disposal of fetal
644	remains.--
645	(1)  The agency shall have the authority to develop and
646	enforce rules for the health, care, and treatment of persons in
647	abortion clinics and for the safe operation of such clinics.
648	(a)  The rules shall be reasonably related to the
649	preservation of maternal health of the clients.
650	(b)  The rules shall be in accordance with s. 797.03 and
651	may not impose an unconstitutional burden on a woman's freedom
652	to decide whether to terminate her pregnancy.
653	(c)  The rules shall prohibit the performance of abortions
654	in the third trimester other than in a hospital.
655	(d)  The rules shall prohibit a clinic from requesting a
656	patient to waive her ability to either file a complaint with any
657	disciplinary body or to litigate a cause of action based on the
658	care received in the clinic or a violation of her rights.
659	(e)(c)  The rules shall provide for:
660	1.  The performance of pregnancy termination procedures
661	only by a licensed physician.
662	2.  The making, protection, and preservation of patient
663	records, which shall be treated as medical records under chapter
664	458.
665	(3)  For clinics that perform or claim to perform abortions
666	after the first trimester of pregnancy, the agency shall adopt
667	rules pursuant to ss. 120.536(1) and 120.54 to implement the
668	provisions of this chapter, including the following:
669	(d)  Rules relating to the medical screening and evaluation
670	of each abortion clinic patient. At a minimum, these rules shall
671	require:
672	1.  A medical history including reported allergies to
673	medications, antiseptic solutions, or latex; past surgeries; and
674	an obstetric and gynecological history.
675	2.  A physical examination, including a bimanual
676	examination estimating uterine size and palpation of the adnexa.
677	3.  The appropriate laboratory tests, including:
678	a.  For an abortion in which an ultrasound examination is
679	not performed before the abortion procedure, Urine or blood
680	tests for pregnancy performed before the abortion procedure.
681	b.  A test for anemia.
682	c.  Rh typing, unless reliable written documentation of
683	blood type is available.
684	d.  Other tests as indicated from the physical examination.
685	4.  An ultrasound evaluation for all patients who elect to
686	have an abortion after the first trimester. The rules shall
687	require that if a person who is not a physician performs an
688	ultrasound examination, that person shall have documented
689	evidence that he or she has completed a course in the operation
690	of ultrasound equipment as prescribed in rule. The physician,
691	registered nurse, licensed practical nurse, advanced registered
692	nurse practitioner, or physician assistant shall review and
693	explain, at the request of the patient, the live ultrasound
694	images evaluation results, including an estimate of the probable
695	gestational age of the fetus, with the patient before the
696	abortion procedure is performed, unless the patient declines
697	pursuant to s. 390.0111.
698	5.  That the physician is responsible for estimating the
699	gestational age of the fetus based on the ultrasound examination
700	and obstetric standards in keeping with established standards of
701	care regarding the estimation of fetal age as defined in rule
702	and shall write the estimate in the patient's medical history.
703	The physician shall keep original prints of each ultrasound
704	examination of a patient in the patient's medical history file.
705	Section 10.  It is the intent of this act and the
706	Legislature to accord the utmost comity and respect to the
707	constitutional prerogatives of Florida's judiciary, and nothing
708	in this act should be construed as any effort to impinge upon
709	those prerogatives. To that end, should any court of competent
710	jurisdiction enter a final judgment concluding or declaring that
711	any provision of this act improperly encroaches upon the
712	authority of the Florida Supreme Court to determine the rules of
713	practice and procedure in Florida courts, the Legislature hereby
714	declares its intent that any such provision be construed as a
715	request for rule change pursuant to s. 2, Art. V of the State
716	Constitution and not as a mandatory legislative directive.
717	Section 11.  If any provision of this act or the
718	application thereof to any person or circumstance is held
719	invalid, the invalidity does not affect other provisions or
720	applications of the act which can be given effect without the
721	invalid provision or application, and to this end the provisions
722	of this act are declared severable.
723	Section 12.  This act shall take effect July 1, 2007.

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