HB 929

1	A bill to be entitled
2	An act relating to emergency health care providers;
3	providing legislative findings and intent; amending s.
4	768.28, F.S.; providing that certain emergency health care
5	providers are agents of the state for purposes of
6	sovereign immunity when acting pursuant to specified
7	statutory obligations; requiring certain indemnity for the
8	state from providers; providing penalties; providing
9	definitions; providing applicability; providing an
10	effective date.
11
12	Be It Enacted by the Legislature of the State of Florida:
13
14	Section 1.  Legislative findings and intent.--The
15	Legislature finds and declares it to be of vital importance that
16	emergency services and care be provided by hospitals,
17	physicians, and emergency medical services providers to every
18	person in need of such care. The Legislature finds that
19	emergency services and care providers are critical elements in
20	responding to disaster and emergency situations that might
21	affect our local communities, state, and country. The
22	Legislature recognizes the importance of maintaining a viable
23	system of providing for the emergency medical needs of the
24	state's residents and visitors. The Legislature and the Federal
25	Government have required such providers of emergency medical
26	services and care to provide emergency services and care to all
27	persons who present to hospitals seeking such care. The
28	Legislature finds that the Legislature has further mandated that
29	prehospital emergency medical treatment or transport may not be
30	denied by emergency medical services providers to persons who
31	have or are likely to have an emergency medical condition. Such
32	governmental requirements have imposed a unilateral obligation
33	for emergency services and care providers to provide services to
34	all persons seeking emergency care without ensuring payment or
35	other consideration for provision of such care. The Legislature
36	also recognizes that emergency services and care providers
37	provide a significant amount of uncompensated emergency medical
38	care in furtherance of such governmental interest. The
39	Legislature finds that a significant proportion of the residents
40	of this state who are uninsured or are Medicaid or Medicare
41	recipients are unable to access needed health care because
42	health care providers fear the increased risk of medical
43	malpractice liability. The Legislature finds that such patients,
44	in order to obtain medical care, are frequently forced to seek
45	care through providers of emergency medical services and care.
46	The Legislature finds that providers of emergency medical
47	services and care in this state have reported significant
48	problems with both the availability and affordability of
49	professional liability coverage. The Legislature finds that
50	medical malpractice liability insurance premiums have increased
51	dramatically, and a number of insurers have ceased providing
52	medical malpractice coverage for emergency medical services and
53	care in this state. This results in a significant unavailability
54	of malpractice coverage for providers of emergency medical
55	services and care. The Legislature further finds that a
56	significant number of specialist physicians have resigned from
57	serving on hospital staffs or have otherwise declined to provide
58	on-call coverage to hospital emergency departments due to
59	increased medical malpractice liability exposure created by
60	treating such emergency department patients, creating a void
61	that has an adverse impact on emergency patient care. It is the
62	intent of the Legislature that hospitals, emergency medical
63	services providers, and physicians be able to ensure that
64	patients who might need emergency medical services treatment or
65	transportation or who present to hospitals for emergency medical
66	services and care have access to such needed services.
67	Section 2.  Subsection (9) of section 768.28, Florida
68	Statutes, is amended to read:
69	768.28  Waiver of sovereign immunity in tort actions;
70	recovery limits; limitation on attorney fees; statute of
71	limitations; exclusions; indemnification; risk management
72	programs.--
73	(9)(a)  No officer, employee, or agent of the state or of
74	any of its subdivisions shall be held personally liable in tort
75	or named as a party defendant in any action for any injury or
76	damage suffered as a result of any act, event, or omission of
77	action in the scope of her or his employment or function, unless
78	such officer, employee, or agent acted in bad faith or with
79	malicious purpose or in a manner exhibiting wanton and willful
80	disregard of human rights, safety, or property. However, such
81	officer, employee, or agent shall be considered an adverse
82	witness in a tort action for any injury or damage suffered as a
83	result of any act, event, or omission of action in the scope of
84	her or his employment or function. The exclusive remedy for
85	injury or damage suffered as a result of an act, event, or
86	omission of an officer, employee, or agent of the state or any
87	of its subdivisions or constitutional officers shall be by
88	action against the governmental entity, or the head of such
89	entity in her or his official capacity, or the constitutional
90	officer of which the officer, employee, or agent is an employee,
91	unless such act or omission was committed in bad faith or with
92	malicious purpose or in a manner exhibiting wanton and willful
93	disregard of human rights, safety, or property. The state or its
94	subdivisions shall not be liable in tort for the acts or
95	omissions of an officer, employee, or agent committed while
96	acting outside the course and scope of her or his employment or
97	committed in bad faith or with malicious purpose or in a manner
98	exhibiting wanton and willful disregard of human rights, safety,
99	or property.
100	(b)  As used in this subsection, the term:
101	1.  "Employee" includes any volunteer firefighter.
102	2.  "Officer, employee, or agent" includes, but is not
103	limited to:,
104	a.  Any health care provider when providing services
105	pursuant to s. 766.1115, any member of the Florida Health
106	Services Corps, as defined in s. 381.0302, who provides
107	uncompensated care to medically indigent persons referred by the
108	Department of Health, and any public defender or her or his
109	employee or agent, including, among others, an assistant public
110	defender and an investigator.
111	b.  Any emergency health care provider acting pursuant to
112	obligations imposed by s. 395.1041 or s. 401.45, except for
113	persons or entities that are otherwise covered under this
114	section.
115	(c)1.  Emergency health care providers are considered
116	agents of the state and shall indemnify the state for any
117	judgments, settlement costs, or other liabilities incurred, only
118	up to the liability limits in subsection (5).
119	2.  Any emergency health care provider who is licensed by
120	the state and who fails to indemnify the state after reasonable
121	notice and written demand to indemnify the state is subject to
122	an emergency suspension order of the regulating authority having
123	jurisdiction over the licensee.
124	3.  The Department of Health shall issue an emergency order
125	suspending the license of any licensee under its jurisdiction or
126	any licensee of a regulatory board within the Department of
127	Health who, after 30 days following receipt of a notice from the
128	Division of Risk Management of the Department of Financial
129	Services that the licensee has failed to satisfy his or her
130	obligation to indemnify the state or enter into a repayment
131	agreement with the state for costs under this subsection, has
132	not complied. The terms of such agreement must provide assurance
133	of repayment of the obligation that is satisfactory to the
134	state. For licensees within the Division of Medical Quality
135	Assurance of the Department of Health, failure to comply with
136	this paragraph constitutes grounds for disciplinary action under
137	each respective practice act and under s. 456.072(l)(k). For
138	licensees and certificateholders under part III of chapter 401,
139	failure to comply with this paragraph constitutes grounds for
140	disciplinary action by the Department of Health under s.
141	401.411.
142	4.  If the emergency health care provider is licensed under
143	chapter 395 and has failed to indemnify the state after
144	reasonable notice and written demand to indemnify the state, any
145	state funds payable to the licensed facility shall be withheld
146	until the facility satisfies its obligation to indemnify the
147	state or enters into a repayment agreement. The terms of such an
148	agreement must provide assurance of repayment of the obligation
149	which is satisfactory to the state. In addition, the Agency for
150	Health Care Administration shall impose an administrative fine,
151	not to exceed $10,000 per violation of this paragraph.
152	5.  As used in this subsection, the term:
153	a.  "Emergency health care providers" includes all persons
154	and entities providing services pursuant to obligations imposed
155	by s. 395.1041 or s. 401.45, except those persons or entities
156	that are otherwise covered under this section. The term
157	includes:
158	(I)  An emergency medical services provider licensed under
159	chapter 401 and persons operating as employees or agents of such
160	an emergency medical services provider.
161	(II)  A hospital licensed under chapter 395 and persons
162	operating as employees or agents of such a hospital.
163	(III)  A physician licensed under chapter 458, chapter 459,
164	chapter 460, or chapter 461.
165	(IV)  A physician assistant licensed under chapter 458 or
166	chapter 459.
167	(V)  An emergency medical technician or paramedic certified
168	under chapter 401.
169	(VI)  A registered nurse, nurse midwife, licensed practical
170	nurse, or advanced registered nurse practitioner licensed or
171	registered under part I of chapter 464.
172	(VII)  A midwife licensed under chapter 467.
173	(VIII)  A health care professional association and its
174	employees or agents or a corporate medical group and its
175	employees or agents.
176	(IX)  Any student or medical resident who is enrolled in an
177	accredited program or licensed program that prepares the student
178	for licensure or certification in any one of the professions
179	listed in sub-sub-subparagraphs (III)-(VII), the program that
180	prepares the student for licensure or certification, and the
181	entity responsible for training of the student or medical
182	resident.
183	(X)  Any receiving facility designated under chapter 394
184	and persons operating as employees or agents of the receiving
185	facility when providing emergency treatment to a person
186	presented for evaluation in accordance with chapter 394.
187	(XI)  Any other person or entity that is providing services
188	pursuant to obligations imposed by s. 395.1041 or s. 401.45.
189	b.  "Emergency medical services" means ambulance
190	assessment, treatment, or transport services provided pursuant
191	to obligations imposed by s. 395.1041 or s. 401.45; all
192	screening, examination, and evaluation by a physician, hospital,
193	or other person or entity acting pursuant to obligations imposed
194	by s. 395.1041 or s. 401.45; and the care, treatment, surgery,
195	or other medical services provided, whether as an outpatient or
196	inpatient, to relieve or eliminate the emergency medical
197	condition, including all medical services to eliminate the
198	likelihood that the emergency medical condition will deteriorate
199	or recur without further medical attention within a reasonable
200	period of time.
201	(d)(c)  For purposes of the waiver of sovereign immunity
202	only, a member of the Florida National Guard is not acting
203	within the scope of state employment when performing duty under
204	the provisions of Title 10 or Title 32 of the United States Code
205	or other applicable federal law; and neither the state nor any
206	individual may be named in any action under this chapter arising
207	from the performance of such federal duty.
208	(e)(d)  The employing agency of a law enforcement officer
209	as defined in s. 943.10 is not liable for injury, death, or
210	property damage effected or caused by a person fleeing from a
211	law enforcement officer in a motor vehicle if:
212	1.  The pursuit is conducted in a manner that does not
213	involve conduct by the officer which is so reckless or wanting
214	in care as to constitute disregard of human life, human rights,
215	safety, or the property of another;
216	2.  At the time the law enforcement officer initiates the
217	pursuit, the officer reasonably believes that the person fleeing
218	has committed a forcible felony as defined in s. 776.08; and
219	3.  The pursuit is conducted by the officer pursuant to a
220	written policy governing high-speed pursuit adopted by the
221	employing agency. The policy must contain specific procedures
222	concerning the proper method to initiate and terminate high-
223	speed pursuit. The law enforcement officer must have received
224	instructional training from the employing agency on the written
225	policy governing high-speed pursuit.
226	Section 3.  This act shall take effect upon becoming a law,
227	and applies to any cause of action accruing on or after that
228	date.

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