HB 585

1	A bill to be entitled
2	An act relating to patient safety; creating the Patient
3	Safety and Provider Liability Act; providing legislative
4	findings; amending s. 766.110, F.S.; specifying certain
5	authorized insurers who may make available liability
6	insurance; amending s. 766.118, F.S.; providing a
7	limitation on noneconomic damages for a hospital facility
8	that complies with certain patient safety measures;
9	creating s. 766.401, F.S.; providing definitions; creating
10	s. 766.402, F.S.; authorizing an eligible hospital to
11	petition the agency for an order certifying the hospital
12	as a certified patient safety facility; providing
13	requirements for certification as a patient safety
14	facility; authorizing the agency to conduct onsite
15	examinations; providing for revocation of an order
16	certifying approval of a certified patient safety
17	facility; providing that an order certifying the approval
18	of a certified patient safety facility is conclusive
19	evidence of compliance with statutory patient safety
20	requirements; providing that evidence of noncompliance is
21	not admissible for any action for medical malpractice;
22	creating s. 766.403, F.S.; providing requirements for a
23	hospital to demonstrate that it is engaged in a common
24	enterprise for the care and treatment of patients;
25	specifying required patient safety measures; prohibiting a
26	report or document generated under the act from being
27	admissible or discoverable as evidence; creating s.
28	766.404, F.S.; requiring a certified patient safety
29	facility to submit an annual report to the agency and the
30	Legislature; providing requirements for the annual report;
31	providing that the annual report may include certain
32	information from the Office of Insurance Regulation within
33	the Department of Financial Services; providing that the
34	annual report is subject to public records requirements
35	but is not admissible as evidence in a legal proceeding;
36	creating s. 766.405, F.S.; providing for limitations on
37	damages for eligible hospitals that are certified for
38	compliance with certain patient safety measures and
39	certain faculty physicians on staff at those hospitals;
40	creating s. 766.406, F.S.; providing rulemaking authority;
41	providing for severability; providing an appropriation;
42	providing an effective date.
43
44	Be It Enacted by the Legislature of the State of Florida:
45
46	Section 1.  (1)  This act may be cited as the "Patient
47	Safety and Provider Liability Act."
48	Section 2.  Legislative findings.--
49	(1)  The Legislature finds that this state is in the midst
50	of a prolonged medical malpractice insurance crisis that has
51	serious adverse effects on patients, practitioners, licensed
52	health care facilities, and all residents of this state.
53	(2)  The Legislature finds that hospitals are central
54	components of the modern health care delivery system.
55	(3)  The Legislature finds that the medical malpractice
56	insurance crisis in this state can be alleviated by the adoption
57	of innovative approaches for patient safety in teaching
58	hospitals, which can lead to a reduction in medical errors
59	together with a limitation on noneconomic damages that can be
60	awarded against a teaching hospital that implements such
61	innovative approaches.
62	(4)  The Legislature finds statutory incentives are
63	necessary to facilitate innovative approaches for patient safety
64	in hospitals and that such incentives and patient safety
65	measures will benefit all persons seeking health care services
66	in this state.
67	(5)  The Legislature finds that coupling patient safety
68	measures and a limitation on provider liability in teaching
69	hospitals will lead to a reduction in the frequency and severity
70	of incidents of medical malpractice in hospitals.
71	(6)  The Legislature finds that there is no alternative
72	method that addresses the overwhelming public necessity to
73	implement patient safety measures and limit provider liability.
74	(7)  The Legislature finds that making high-quality health
75	care available to the residents of this state is an overwhelming
76	public necessity.
77	(8)  The Legislature finds that medical education in this
78	state is an overwhelming public necessity.
79	(9)  The Legislature finds that statutory teaching
80	hospitals are essential for high-quality medical care and
81	medical education in this state.
82	(10)  The Legislature finds that teaching hospitals are
83	appropriate health care facilities for the implementation of
84	innovative approaches to enhancing patient safety and limiting
85	provider liability.
86	(11)  The Legislature finds an overwhelming public
87	necessity to impose reasonable limitations on actions for
88	medical malpractice against teaching hospitals in furtherance of
89	the critical public interest in promoting access to high-quality
90	medical care, medical education, and innovative approaches to
91	patient safety and provider liability.
92	(12)  The Legislature finds an overwhelming public
93	necessity for teaching hospitals to implement innovative
94	measures for patient safety and limit provider liability in
95	order to generate empirical data for state policymakers
96	concerning the effectiveness of these measures. Such data may
97	lead to broader application of these measures in a wider array
98	of hospitals after a reasonable period of evaluation and review.
99	(13)  The Legislature finds an overwhelming public
100	necessity to promote the academic mission of teaching hospitals.
101	Furthermore, the Legislature finds that the academic mission of
102	these medical facilities is materially enhanced by statutory
103	authority for the implementation of innovative approaches to
104	promoting patient safety and limiting provider liability. Such
105	approaches can be carefully studied and learned by medical
106	students, medical school faculty, and affiliated physicians in
107	appropriate clinical settings, thereby enlarging the body of
108	knowledge concerning patient safety and provider liability that
109	is essential for advancement of patient safety, reduction of
110	expenses inherent in the medical liability system, and
111	curtailment of the medical malpractice insurance crisis in this
112	state.
113	Section 3.  Subsection (2) of section 766.110, Florida
114	Statutes, is amended to read:
115	766.110  Liability of health care facilities.--
116	(2)  Every hospital licensed under chapter 395 may carry
117	liability insurance or adequately insure itself in an amount of
118	not less than $1.5 million per claim, $5 million annual
119	aggregate to cover all medical injuries to patients resulting
120	from negligent acts or omissions on the part of those members of
121	its medical staff who are covered thereby in furtherance of the
122	requirements of ss. 458.320 and 459.0085. Self-insurance
123	Coverage extended hereunder to a member of a hospital's medical
124	staff meets the financial responsibility requirements of ss.
125	458.320 and 459.0085 if the physician's coverage limits are not
126	less than the minimum limits established in ss. 458.320 and
127	459.0085 and the hospital is a verified trauma center that has
128	extended self-insurance coverage continuously to members of its
129	medical staff for activities both inside and outside of the
130	hospital. Any authorized insurer, approved insurer as defined in
131	s. 626.914(2), risk retention group as defined in s. 627.942, or
132	joint underwriting association established under s. 627.351(4)
133	that is authorized or approved to write casualty insurance may
134	make available, but is shall not be required to write, any such
135	coverage authorized under this subsection. The hospital may
136	assess on an equitable and pro rata basis the following
137	individuals to whom it extends coverage pursuant to this section
138	professional health care providers for a portion of the total
139	hospital insurance cost for this coverage: physicians licensed
140	under chapter 458, osteopathic physicians licensed under chapter
141	459, podiatric physicians licensed under chapter 461, dentists
142	licensed under chapter 466, and nurses licensed under part I of
143	chapter 464. The hospital may provide for a deductible amount to
144	be applied against any individual health care provider found
145	liable in a law suit in tort or for breach of contract. The
146	legislative intent in providing for the deductible to be applied
147	to individual health care providers found negligent or in breach
148	of contract is to instill in each individual health care
149	provider the incentive to avoid the risk of injury to the
150	fullest extent and ensure that the citizens of this state
151	receive the highest quality health care obtainable.
152	Notwithstanding s. 626.901 or any other provision of this
153	section, a certified patient safety facility, as defined in s.
154	766.401, may extend insurance or self-insurance coverage to some
155	or all members of its medical staff, including, but not limited
156	to, physicians who are not employees or agents of the hospital,
157	and any incorporated or unincorporated organization,
158	association, or group of persons liable for the medical
159	negligence of such physicians, and some or all medical, nursing,
160	or allied health professionals or students affiliated with the
161	hospital, other than persons exempt from liability due to
162	sovereign immunity under s. 768.28. Such coverage must be
163	limited to legal liability arising out of medical negligence
164	within the hospital premises as defined under s. 766.401. A
165	certified patient safety facility may assess individuals to whom
166	it extends coverage for a portion of the total hospital
167	insurance cost for this coverage on an equitable and pro rata
168	basis, and may provide for a deductible amount to be applied
169	against any covered health care provider found liable in a law
170	suit in tort or for breach of contract.
171	Section 4.  Subsections (6) and (7) of section 766.118,
172	Florida Statutes, are renumbered as subsections (7) and (8),
173	respectively, and a new subsection (6) is added to that section,
174	to read:
175	766.118  Determination of noneconomic damages.--
176	(6)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF
177	CERTAIN HOSPITALS.--Notwithstanding any other provision of this
178	section, with respect to liability for personal injury or
179	wrongful death arising from medical negligence, within a
180	certified safety facility, as defined in s. 766.401, by
181	employees or agents of the certified patient safety facility or
182	by the employees or agents of a nonprofit medical school whose
183	faculty comprises at least 50 percent of the certified patient
184	safety facility's medical staff, noneconomic damages shall not
185	exceed $500,000, regardless of the number of claimants, number
186	of claims, or theory of liability, including vicarious
187	liability, arising from the same nucleus of operative fact.
188	Section 5.  Section 766.401, Florida Statutes, is created
189	to read:
190	766.401  Definitions.--As used in this section and ss.
191	766.402-766.405, the term:
192	(1)  "Adverse medical incident" has the same meaning as
193	provided in s. 381.028 and has the same meaning as "adverse
194	incident" provided in ss. 381.0271, 395.0197, 458.351, and
195	459.026.
196	(2)  "Affected patient" means a patient of a certified
197	patient safety facility.
198	(3)  "Affected practitioner" means any person, including a
199	physician, who is credentialed by the eligible hospital to
200	provide health care services in a certified patient safety
201	facility.
202	(4)  "Agency" means the Agency for Health Care
203	Administration.
204	(5)  "Certified patient safety facility" means any eligible
205	hospital that, in accordance with an order from the Agency for
206	Health Care Administration, has adopted a patient safety plan.
207	(6)  "Eligible hospital" or "licensed facility" means a
208	statutory teaching hospital, as defined in s. 408.07, that
209	maintains at least seven different accredited programs in
210	graduate medical education and has 100 or more full-time
211	equivalent resident physicians.
212	(7)  "Health care provider" or "provider" means:
213	(a)  An eligible hospital.
214	(b)  A physician or a physician assistant licensed under
215	chapter 458.
216	(c)  An osteopathic physician or an osteopathic physician
217	assistant licensed under chapter 459.
218	(d)  A registered nurse, nurse midwife, licensed practical
219	nurse, or advanced registered nurse practitioner licensed or
220	registered under part I of chapter 464 or any facility that
221	employs nurses licensed or registered under part I of chapter
222	464 to supply all or part of the care delivered by that
223	facility.
224	(e)  A health care professional association and its
225	employees or a corporate medical group and its employees.
226	(f)  Any other medical facility the primary purpose of
227	which is delivering human medical diagnostic services or
228	nonsurgical human medical treatment, including an office
229	maintained by a provider.
230	(g)  A free clinic that delivers only medical diagnostic
231	services or nonsurgical medical treatment free of charge to low-
232	income persons not otherwise covered by Medicaid or other
233	programs for low-income persons.
234	(h)  Any other health care professional, practitioner, or
235	provider, including a student enrolled in an accredited program,
236	who prepares the student for licensure as any one of the
237	professionals listed in this subsection.
238	(i)  Any person, organization, or entity that is
239	vicariously liable under the theory of respondeat superior or
240	any other theory of legal liability for medical negligence
241	committed by any licensed professional listed in this
242	subsection.
243	(j)  Any nonprofit corporation qualified as exempt from
244	federal income taxation under s. 501(a) of the Internal Revenue
245	Code and described in s. 501(c) of the Internal Revenue Code,
246	including any university or medical school that employs licensed
247	professionals listed in this subsection or that delivers health
248	care services provided by licensed professionals listed in this
249	subsection, any federally funded community health center, and
250	any volunteer corporation or volunteer health care provider that
251	delivers health care services.
252	(8)  "Health care practitioner" or "practitioner" means any
253	person, entity, or organization identified in subsection (7),
254	except for a hospital.
255	(9)  "Medical negligence" means medical malpractice,
256	whether grounded in tort or in contract, arising out of the
257	rendering of or failure to render medical care or services.
258	(10)  "Person" means any individual, partnership,
259	corporation, association, or governmental unit.
260	(11)  "Premises" means those buildings, beds, and equipment
261	located at the address of the licensed facility and all other
262	buildings, beds, and equipment for the provision of the
263	hospital, ambulatory surgical, mobile surgical care, primary
264	care, or comprehensive health care under the dominion and
265	control of the licensee, including offices and locations where
266	the licensed facility offers medical care and treatment to
267	affected patients.
268	(12)  "Statutory teaching hospital" or "teaching hospital"
269	has the same meaning as provided in s. 408.07.
270	Section 6.  Section 766.402, Florida Statutes, is created
271	to read:
272	766.402  Agency approval of patient safety plans.--
273	(1)  An eligible hospital that has adopted a patient safety
274	plan may petition the agency to enter an order certifying
275	approval of the hospital as a certified patient safety facility.
276	(2)  In accordance with chapter 120, the agency shall enter
277	an order certifying approval of the certified patient safety
278	facility upon a showing that, in furtherance of an approach to
279	patient safety, the petitioner:
280	(a)  Has established safety measures for the care and
281	treatment of patients.
282	(b)  Satisfies the requirements for patient protection
283	measures specified in s. 766.403.
284	(c)  Satisfies all other requirements of ss. 766.401-
285	766.405.
286	(3)  Upon entry of an order approving the petition, the
287	agency may conduct onsite examinations of the licensed facility
288	to ensure continued compliance with the terms and conditions of
289	the order.
290	(4)  The order approving a petition under this section
291	remains in effect until revoked. The agency may revoke the order
292	upon reasonable notice to the eligible hospital that it fails to
293	comply with material requirements of s. 766.403 and that the
294	hospital has failed to cure the stated deficiencies within a
295	reasonable time after receipt of the initial notice from the
296	agency that delineated the specific deficiencies to be cured by
297	the hospital. Revocation of an agency order pursuant to s.
298	766.403 applies prospectively to any cause of action for medical
299	negligence that arises on or after the effective date of the
300	order of revocation.
301	(5)  An order approving a petition under this section is,
302	as a matter of law, conclusive evidence that the hospital
303	complies with the applicable patient safety requirements of s.
304	766.403. A hospital's noncompliance with the requirements of s.
305	766.403 does not affect the limitations on damages conferred by
306	this section. Evidence of noncompliance with s. 766.403 is not
307	admissible for any purpose in any action for medical
308	malpractice. This section, or any portion thereof, may not give
309	rise to an independent cause of action for damages against any
310	hospital.
311	Section 7.  Section 766.403, Florida Statutes, is created
312	to read:
313	766.403  Patient safety plans.--
314	(1)  In order to satisfy the requirements of s. 766.402,
315	the licensed facility shall have a patient safety plan, which
316	provides that the facility shall:
317	(a)  Have in place a process, either through the facility's
318	patient safety committee or a similar body, for coordinating the
319	quality control, risk management, and patient-relations
320	functions of the facility and for reporting to the facility's
321	governing board at least quarterly regarding such efforts.
322	(b)  Establish within the facility a system for reporting
323	near misses and agree to submit any information collected to the
324	Florida Patient Safety Corporation. Such information must be
325	submitted by the facility and made available by the Patient
326	Safety Corporation in accordance with s. 381.0271(7).
327	(c)  Design and make available to facility staff, including
328	medical staff, a patient safety curriculum that provides lecture
329	and web-based training on recognized patient safety principles,
330	which may include training in communication skills, team
331	performance assessment and training, risk prevention strategies,
332	and best practices and evidence-based medicine. The licensed
333	facility shall report annually the programs presented to the
334	agency.
335	(d)  Implement a program to identify health care providers
336	on the facility's staff who may be eligible for an early
337	intervention program that provides additional skills assessment
338	and training and offer such training to the staff on a voluntary
339	and confidential basis with established mechanisms to assess
340	program performance and results.
341	(e)  Implement a simulation-based program for skills
342	assessment, training, and retraining of a facility's staff in
343	those tasks and activities that the agency identifies by rule.
344	(f)  Designate a patient advocate who coordinates with
345	members of the medical staff and the facility's chief medical
346	officer regarding the disclosure of adverse medical incidents to
347	patients. In addition, the patient advocate shall establish an
348	advisory panel consisting of providers, patients or their
349	families, and other health care consumers or consumer groups to
350	review general patient safety concerns and other issues
351	regarding relations between patients and providers and to
352	identify areas where additional education and program
353	development may be appropriate.
354	(g)  Establish a procedure to biennially review the
355	facility's patient safety program and its compliance with the
356	requirements of this section. Such review shall be conducted by
357	an independent patient safety organization as defined in s.
358	766.1016(1) or other professional organization approved by the
359	agency. The organization performing the review shall prepare a
360	written report that contains detailed findings and
361	recommendations. The report shall be forwarded to the facility's
362	risk manager or patient safety officer, who may make written
363	comments in response. The report and any written comments shall
364	be presented to the governing board of the licensed facility. A
365	copy of the report and any of the facility's responses to the
366	findings and recommendations shall be provided to the agency
367	within 60 days after the date that the governing board reviewed
368	the report. The report is confidential and exempt from
369	production or discovery in any civil action. Likewise, the
370	report and the information contained therein are not admissible
371	as evidence for any purpose in any action for medical
372	negligence.
373	(h)  Establish a system for the trending and tracking of
374	quality and patient safety indicators that the agency may
375	identify by rule and a method for review of the data at least
376	semiannually by the facility's patient safety committee.
377	(2)  This section does not constitute an applicable
378	standard of care in any action for medical negligence or
379	otherwise create a private right of action, and evidence of
380	noncompliance with this section is not admissible for any
381	purpose in any action for medical negligence against any health
382	care provider.
383	(3)  This section does not prohibit the licensed facility
384	from implementing other measures for promoting patient safety
385	within the premises. This section does not relieve the licensed
386	facility from the duty to implement any other patient safety
387	measure that is required by state law. The Legislature intends
388	that the patient safety measures specified in this section are
389	in addition to all other patient safety measures required by
390	state law, federal law, and applicable accreditation standards
391	for licensed facilities.
392	(4)  A review, report, or other document created, produced,
393	delivered, or discussed pursuant to this section is not
394	discoverable or admissible as evidence in any legal action.
395	Section 8.  Section 766.404, Florida Statutes, is created
396	to read:
397	766.404  Annual report.--
398	(1)  Each certified patient safety facility shall submit an
399	annual report to the agency containing information and data
400	reasonably required by the agency to evaluate performance and
401	effectiveness of its patient safety plan. However, information
402	may not be submitted or disclosed in violation of any patient's
403	right to privacy under state or federal law.
404	(2)  The agency shall aggregate information and data
405	submitted by all certified patient safety facilities and, each
406	year, on or before March 1, the agency shall submit a report to
407	the President of the Senate and the Speaker of the House of
408	Representatives that evaluates the performance and effectiveness
409	of the approach to enhancing patient safety and limiting
410	provider liability in certified patient safety facilities. The
411	report shall include, but need not be limited to, pertinent data
412	concerning:
413	(a)  The number and names of certified patient safety
414	facilities;
415	(b)  The number and types of patient-protection measures
416	currently in effect in these facilities;
417	(c)  The number of affected patients;
418	(d)  The number of surgical procedures on affected
419	patients;
420	(e)  The number of adverse medical incidents, claims of
421	medical malpractice, and claims resulting in indemnity;
422	(f)  The average time for resolution of contested and
423	uncontested claims of medical malpractice;
424	(g)  The percentage of claims that result in civil trials;
425	(h)  The percentage of civil trials that result in adverse
426	judgments against affected facilities;
427	(i)  The number and average amount of an indemnity paid to
428	claimants;
429	(j)  The estimated liability expense, inclusive of medical
430	liability insurance premiums; and
431	(k)  The percentage of medical liability expense, inclusive
432	of medical liability insurance premiums, that is borne by
433	affected practitioners in certified patient safety facilities.
434
435	The report may also include other information and data that the
436	agency deems appropriate to gauge the cost and benefit of
437	patient safety plans.
438	(3)  The agency's annual report to the President of the
439	Senate and the Speaker of the House of Representatives may
440	include relevant information and data obtained from the Office
441	of Insurance Regulation within the Department of Financial
442	Services concerning the availability and affordability of
443	enterprise-wide medical liability insurance coverage for
444	affected facilities and the availability and affordability of
445	insurance policies for individual practitioners that contain
446	coverage exclusions for acts of medical negligence in facilities
447	that indemnify health practitioners. The Office of Insurance
448	Regulation shall cooperate with the agency in the reporting of
449	information and data specified in this subsection.
450	(4)  Reports submitted to the agency by certified patient
451	safety facilities pursuant to this section are public records
452	under chapter 119. However, these reports, and the information
453	contained therein, are not admissible as evidence in a court of
454	law in any action.
455	Section 9.  Section 766.405, Florida Statutes, is created
456	to read:
457	766.405  Damages in malpractice actions against certain
458	hospitals and faculty physicians that meet patient safety
459	requirements; agency approval of patient safety measures.--
460	(1)  Upon entry of an order pursuant to s. 766.402 and for
461	the entire period of time that the order remains in effect, the
462	damages recoverable from an eligible hospital covered by the
463	order and from its physician employees, the eligible hospital's
464	nonphysician employees, the eligible hospital's agents, a
465	nonprofit medical school whose physicians comprise of at least
466	50 percent of the medical staff of the eligible hospital, and
467	the physicians of such a nonprofit medical school in actions
468	arising from medical negligence on the premises of the eligible
469	hospital shall be determined in accordance with the following
470	provisions:
471	(a)  Noneconomic damages shall be limited to a maximum of
472	$500,000, regardless of the number of claimants, number of
473	claims, or the theory of liability pursuant to s. 766.118(6).
474	(b)  Awards of economic damages shall be offset by payments
475	from collateral sources, as defined by s. 766.202(2), and any
476	set offs available under ss. 46.015 and 768.041. Awards for
477	future economic losses shall be offset by future collateral
478	source payments.
479	(c)  Awards of future economic damages, after being offset
480	by collateral sources, shall, at the option of the eligible
481	hospital, be reduced by the court to present value and paid in
482	full or be paid by means of periodic payments in the form of
483	annuities or reversionary trusts. Periodic payments of future
484	economic damages attributable to the medical care, health care,
485	and personal care of the claimant shall be payable until the end
486	of the life of the claimant, at which time the obligation to
487	make such payments terminates. A company that underwrites an
488	annuity to pay future economic damages shall have rating of "A"
489	or higher by A.M. Best Company. The court shall approve the
490	terms of the periodic payments, which shall identify the amount
491	of the payment that is attributable to future medical care,
492	health care, and personal care. Court approval shall not be
493	unreasonably withheld.
494	(2)  The limitations on liability provided by this section
495	apply to causes of action that accrue while an eligible facility
496	is a certified patient safety facility.
497	Section 10.  Section 766.406, Florida Statutes, is created
498	to read:
499	766.406  Rulemaking authority.--The agency may adopt rules
500	to administer ss. 766.401-766.405.
501	Section 11.  Paragraph (a) of subsection (2) of section
502	768.77, Florida Statutes, is amended to read:
503	768.77  Itemized verdict.--
504	(2)  In any action for damages based on personal injury or
505	wrongful death arising out of medical malpractice, whether in
506	tort or contract, to which this part applies in which the trier
507	of fact determines that liability exists on the part of the
508	defendant, the trier of fact shall, as a part of the verdict,
509	itemize the amounts to be awarded to the claimant into the
510	following categories of damages:
511	(a)  Amounts intended to compensate the claimant for:
512	1.  Past economic losses; and
513	2.  Future economic losses, with a separate item indicating
514	the amount attributable to health care, medical care, and
515	personal care, not reduced to present value, and the number of
516	years or part thereof which the award is intended to cover;
517	Section 12.  The sum of $226,984 in recurring funds from
518	the Health Care Trust Fund and the sum of $72,057 in
519	nonrecurring funds from the Health Care Trust Fund are
520	appropriated, and 3 full time equivalent positions and
521	associated salary rate of $127,817 are authorized to the Agency
522	for Health Care Administration for the 2006-2007 fiscal year,
523	for the purpose of implementing the provisions of this act.
524	Section 13.  If any provision of this act or its
525	application to any person or circumstance is held invalid, the
526	invalidity shall not affect other provisions or applications of
527	the act that can be given effect without the invalid provision
528	or application, and to this end, the provisions of this act are
529	severable.
530	Section 14.  This act shall take effect upon becoming a
531	law.

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