Florida Senate - 2008 SB 1640

By Senator Baker

20-02636A-08 20081640__

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, physicians,

17

and emergency medical services providers to every person in need

18

of such care. The Legislature finds that emergency services and

19

care providers are critical elements in responding to disaster

20

and emergency situations that might affect our local communities,

21

state, and country. The Legislature recognizes the importance of

22

maintaining a viable system of providing for the emergency

23

medical needs of the state's residents and visitors. The

24

Legislature and the Federal Government have required such

25

providers of emergency medical services and care to provide

26

emergency services and care to all persons who present themselves

27

to hospitals seeking such care. The Legislature finds that the

28

Legislature has further mandated that prehospital emergency

29

medical treatment or transport may not be denied by emergency

30

medical services providers to persons who have or are likely to

31

have an emergency medical condition. Such governmental

32

requirements have imposed a unilateral obligation for emergency

33

services and care providers to provide services to all persons

34

seeking emergency care without ensuring payment or other

35

consideration for provision of such care. The Legislature also

36

recognizes that emergency services and care providers provide a

37

significant amount of uncompensated emergency medical care in

38

furtherance of such governmental interest. The Legislature finds

39

that a significant proportion of the residents of this state who

40

are uninsured or are Medicaid or Medicare recipients are unable

41

to access needed health care on an elective basis because health

42

care providers fear the increased risk of medical malpractice

43

liability. The Legislature finds that such patients, in order to

44

obtain medical care, are frequently forced to seek care through

45

providers of emergency medical services and care. The Legislature

46

finds that providers of emergency medical services and care in

47

this state have reported significant problems with affordability

48

of professional liability insurance, which is more expensive in

49

Florida than the national average. The Legislature further finds

50

that a significant number of specialist physicians have resigned

51

from serving on hospital staffs or have otherwise declined to

52

provide on-call coverage to hospital emergency departments due to

53

increased medical malpractice liability exposure created by

54

treating such emergency department patients, creating a void that

55

has an adverse impact on emergency patient care. It is the intent

56

of the Legislature that hospitals, emergency medical services

57

providers, and physicians be able to ensure that patients who

58

might need emergency medical services treatment or transportation

59

or who present themselves to hospitals for emergency medical

60

services and care have access to such needed services.

61

     Section 2.  Subsection (9) of section 768.28, Florida

62

Statutes, is amended to read:

63

     768.28  Waiver of sovereign immunity in tort actions;

64

recovery limits; limitation on attorney fees; statute of

65

limitations; exclusions; indemnification; risk management

66

programs.--

67

     (9)(a)  No officer, employee, or agent of the state or of

68

any of its subdivisions shall be held personally liable in tort

69

or named as a party defendant in any action for any injury or

70

damage suffered as a result of any act, event, or omission of

71

action in the scope of her or his employment or function, unless

72

such officer, employee, or agent acted in bad faith or with

73

malicious purpose or in a manner exhibiting wanton and willful

74

disregard of human rights, safety, or property. However, such

75

officer, employee, or agent shall be considered an adverse

76

witness in a tort action for any injury or damage suffered as a

77

result of any act, event, or omission of action in the scope of

78

her or his employment or function. The exclusive remedy for

79

injury or damage suffered as a result of an act, event, or

80

omission of an officer, employee, or agent of the state or any of

81

its subdivisions or constitutional officers shall be by action

82

against the governmental entity, or the head of such entity in

83

her or his official capacity, or the constitutional officer of

84

which the officer, employee, or agent is an employee, unless such

85

act or omission was committed in bad faith or with malicious

86

purpose or in a manner exhibiting wanton and willful disregard of

87

human rights, safety, or property. The state or its subdivisions

88

shall not be liable in tort for the acts or omissions of an

89

officer, employee, or agent committed while acting outside the

90

course and scope of her or his employment or committed in bad

91

faith or with malicious purpose or in a manner exhibiting wanton

92

and willful disregard of human rights, safety, or property.

93

     (b)  As used in this subsection, the term:

94

     1.  "Employee" includes any volunteer firefighter.

95

     2.  "Officer, employee, or agent" includes, but is not

96

limited to:,

97

     a. Any health care provider when providing services

98

pursuant to s. 766.1115, any member of the Florida Health

99

Services Corps, as defined in s. 381.0302, who provides

100

uncompensated care to medically indigent persons referred by the

101

Department of Health, and any public defender or her or his

102

employee or agent, including, among others, an assistant public

103

defender and an investigator.

104

     b. Any emergency health care provider acting pursuant to

105

obligations imposed by s. 395.1041 or s. 401.45, except for

106

persons or entities that are otherwise covered under this

107

section.

108

     (c)1. Emergency health care providers are considered agents

109

of the state and shall indemnify the state for any judgments,

110

settlement costs, or other liabilities incurred, only up to the

111

liability limits in subsection (5).

112

     2. Any emergency health care provider who is licensed by

113

the state and who fails to indemnify the state after reasonable

114

notice and written demand to do so is subject to an emergency

115

suspension order of the regulating authority having jurisdiction

116

over the licensee.

117

     3. The Department of Health shall issue an emergency order

118

suspending the license of any licensee under its jurisdiction or

119

any licensee of a regulatory board within the Department of

120

Health who, after 30 days following receipt of a notice from the

121

Division of Risk Management of the Department of Financial

122

Services that the licensee has failed to satisfy his or her

123

obligation to indemnify the state or enter into a repayment

124

agreement with the state for costs under this subsection, has not

125

complied. The terms of such agreement must provide assurance of

126

repayment of the obligation that is satisfactory to the state.

127

For licensees within the Division of Medical Quality Assurance of

128

the Department of Health, failure to comply with this paragraph

129

constitutes grounds for disciplinary action under each respective

130

practice act and under s. 456.072(l)(k). For licensees and

131

certificateholders under part III of chapter 401, failure to

132

comply with this paragraph constitutes grounds for disciplinary

133

action by the Department of Health under s. 401.411.

134

     4. If the emergency health care provider is licensed under

135

chapter 395 and has failed to indemnify the state after

136

reasonable notice and written demand to do so, any state funds

137

payable to the licensed facility shall be withheld until the

138

facility satisfies its obligation to indemnify the state or

139

enters into a repayment agreement. The terms of such an agreement

140

must provide assurance of repayment of the obligation which is

141

satisfactory to the state. In addition, the Agency for Health

142

Care Administration shall impose an administrative fine, not to

143

exceed $10,000 per violation of this paragraph.

144

     5. As used in this subsection, the term:

145

     a. "Emergency health care providers" includes all persons

146

and entities providing services pursuant to obligations imposed

147

by s. 395.1041 or s. 401.45, except those persons or entities

148

that are otherwise covered under this section. The term includes:

149

     (I) An emergency medical services provider licensed under

150

chapter 401 and persons operating as employees or agents of such

151

an emergency medical services provider.

152

     (II) A hospital licensed under chapter 395 and persons

153

operating as employees or agents of such a hospital.

154

     (III) A physician licensed under chapter 458, chapter 459,

155

chapter 460, or chapter 461.

156

     (IV) A physician assistant licensed under chapter 458 or

157

chapter 459.

158

     (V) An emergency medical technician or paramedic certified

159

under chapter 401.

160

     (VI) A registered nurse, nurse midwife, licensed practical

161

nurse, or advanced registered nurse practitioner licensed or

162

registered under part I of chapter 464.

163

     (VII) A midwife licensed under chapter 467.

164

     (VIII) A health care professional association and its

165

employees or agents or a corporate medical group and its

166

employees or agents.

167

     (IX) Any student or medical resident who is enrolled in an

168

accredited program or licensed program that prepares the student

169

for licensure or certification in any one of the professions

170

listed in sub-sub-subparagraphs (III)-(VII), the program that

171

prepares the student for licensure or certification, and the

172

entity responsible for training of the student or medical

173

resident.

174

     (X) Any receiving facility designated under chapter 394 and

175

persons operating as employees or agents of the receiving

176

facility when providing emergency treatment to a person presented

177

for evaluation in accordance with chapter 394.

178

     (XI) Any other person or entity that is providing services

179

pursuant to obligations imposed by s. 395.1041 or s. 401.45.

180

     b. "Emergency medical services" means ambulance assessment,

181

treatment, or transport services provided pursuant to obligations

182

imposed by s. 395.1041 or s. 401.45; all screening, examination,

183

and evaluation by a physician, hospital, or other person or

184

entity acting pursuant to obligations imposed by s. 395.1041 or

185

s. 401.45; and the care, treatment, surgery, or other medical

186

services provided, whether as an outpatient or inpatient, to

187

relieve or eliminate the emergency medical condition, including

188

all medical services to eliminate the likelihood that the

189

emergency medical condition will deteriorate or recur without

190

further medical attention within a reasonable period of time.

191

     (d)(c) For purposes of the waiver of sovereign immunity

192

only, a member of the Florida National Guard is not acting within

193

the scope of state employment when performing duty under the

194

provisions of Title 10 or Title 32 of the United States Code or

195

other applicable federal law; and neither the state nor any

196

individual may be named in any action under this chapter arising

197

from the performance of such federal duty.

198

     (e)(d) The employing agency of a law enforcement officer as

199

defined in s. 943.10 is not liable for injury, death, or property

200

damage effected or caused by a person fleeing from a law

201

enforcement officer in a motor vehicle if:

202

     1.  The pursuit is conducted in a manner that does not

203

involve conduct by the officer which is so reckless or wanting in

204

care as to constitute disregard of human life, human rights,

205

safety, or the property of another;

206

     2.  At the time the law enforcement officer initiates the

207

pursuit, the officer reasonably believes that the person fleeing

208

has committed a forcible felony as defined in s. 776.08; and

209

     3.  The pursuit is conducted by the officer pursuant to a

210

written policy governing high-speed pursuit adopted by the

211

employing agency. The policy must contain specific procedures

212

concerning the proper method to initiate and terminate high-speed

213

pursuit. The law enforcement officer must have received

214

instructional training from the employing agency on the written

215

policy governing high-speed pursuit.

216

     Section 3.  This act shall take effect upon becoming a law,

217

and applies to any cause of action accruing on or after that

218

date.

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