Florida Senate - 2008 SB 1640
By Senator Baker
20-02636A-08 20081640__
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A bill to be entitled
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An act relating to emergency health care providers;
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providing legislative findings and intent; amending s.
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768.28, F.S.; providing that certain emergency health care
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providers are agents of the state for purposes of
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sovereign immunity when acting pursuant to specified
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statutory obligations; requiring certain indemnity for the
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state from providers; providing penalties; providing
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definitions; providing applicability; providing an
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effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Legislative findings and intent.--The
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Legislature finds and declares it to be of vital importance that
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emergency services and care be provided by hospitals, physicians,
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and emergency medical services providers to every person in need
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of such care. The Legislature finds that emergency services and
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care providers are critical elements in responding to disaster
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and emergency situations that might affect our local communities,
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state, and country. The Legislature recognizes the importance of
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maintaining a viable system of providing for the emergency
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medical needs of the state's residents and visitors. The
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Legislature and the Federal Government have required such
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providers of emergency medical services and care to provide
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emergency services and care to all persons who present themselves
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to hospitals seeking such care. The Legislature finds that the
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Legislature has further mandated that prehospital emergency
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medical treatment or transport may not be denied by emergency
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medical services providers to persons who have or are likely to
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have an emergency medical condition. Such governmental
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requirements have imposed a unilateral obligation for emergency
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services and care providers to provide services to all persons
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seeking emergency care without ensuring payment or other
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consideration for provision of such care. The Legislature also
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recognizes that emergency services and care providers provide a
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significant amount of uncompensated emergency medical care in
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furtherance of such governmental interest. The Legislature finds
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that a significant proportion of the residents of this state who
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are uninsured or are Medicaid or Medicare recipients are unable
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to access needed health care on an elective basis because health
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care providers fear the increased risk of medical malpractice
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liability. The Legislature finds that such patients, in order to
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obtain medical care, are frequently forced to seek care through
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providers of emergency medical services and care. The Legislature
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finds that providers of emergency medical services and care in
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this state have reported significant problems with affordability
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of professional liability insurance, which is more expensive in
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Florida than the national average. The Legislature further finds
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that a significant number of specialist physicians have resigned
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from serving on hospital staffs or have otherwise declined to
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provide on-call coverage to hospital emergency departments due to
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increased medical malpractice liability exposure created by
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treating such emergency department patients, creating a void that
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has an adverse impact on emergency patient care. It is the intent
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of the Legislature that hospitals, emergency medical services
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providers, and physicians be able to ensure that patients who
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might need emergency medical services treatment or transportation
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or who present themselves to hospitals for emergency medical
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services and care have access to such needed services.
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Section 2. Subsection (9) of section 768.28, Florida
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Statutes, is amended to read:
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768.28 Waiver of sovereign immunity in tort actions;
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recovery limits; limitation on attorney fees; statute of
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limitations; exclusions; indemnification; risk management
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programs.--
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(9)(a) No officer, employee, or agent of the state or of
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any of its subdivisions shall be held personally liable in tort
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or named as a party defendant in any action for any injury or
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damage suffered as a result of any act, event, or omission of
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action in the scope of her or his employment or function, unless
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such officer, employee, or agent acted in bad faith or with
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malicious purpose or in a manner exhibiting wanton and willful
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disregard of human rights, safety, or property. However, such
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officer, employee, or agent shall be considered an adverse
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witness in a tort action for any injury or damage suffered as a
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result of any act, event, or omission of action in the scope of
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her or his employment or function. The exclusive remedy for
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injury or damage suffered as a result of an act, event, or
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omission of an officer, employee, or agent of the state or any of
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its subdivisions or constitutional officers shall be by action
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against the governmental entity, or the head of such entity in
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her or his official capacity, or the constitutional officer of
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which the officer, employee, or agent is an employee, unless such
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act or omission was committed in bad faith or with malicious
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purpose or in a manner exhibiting wanton and willful disregard of
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human rights, safety, or property. The state or its subdivisions
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shall not be liable in tort for the acts or omissions of an
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officer, employee, or agent committed while acting outside the
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course and scope of her or his employment or committed in bad
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faith or with malicious purpose or in a manner exhibiting wanton
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and willful disregard of human rights, safety, or property.
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(b) As used in this subsection, the term:
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1. "Employee" includes any volunteer firefighter.
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2. "Officer, employee, or agent" includes, but is not
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limited to:,
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a. Any health care provider when providing services
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pursuant to s. 766.1115, any member of the Florida Health
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Services Corps, as defined in s. 381.0302, who provides
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uncompensated care to medically indigent persons referred by the
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Department of Health, and any public defender or her or his
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employee or agent, including, among others, an assistant public
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defender and an investigator.
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b. Any emergency health care provider acting pursuant to
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persons or entities that are otherwise covered under this
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section.
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(c)1. Emergency health care providers are considered agents
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of the state and shall indemnify the state for any judgments,
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settlement costs, or other liabilities incurred, only up to the
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liability limits in subsection (5).
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2. Any emergency health care provider who is licensed by
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the state and who fails to indemnify the state after reasonable
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notice and written demand to do so is subject to an emergency
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suspension order of the regulating authority having jurisdiction
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over the licensee.
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3. The Department of Health shall issue an emergency order
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suspending the license of any licensee under its jurisdiction or
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any licensee of a regulatory board within the Department of
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Health who, after 30 days following receipt of a notice from the
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Division of Risk Management of the Department of Financial
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Services that the licensee has failed to satisfy his or her
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obligation to indemnify the state or enter into a repayment
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agreement with the state for costs under this subsection, has not
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complied. The terms of such agreement must provide assurance of
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repayment of the obligation that is satisfactory to the state.
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For licensees within the Division of Medical Quality Assurance of
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the Department of Health, failure to comply with this paragraph
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constitutes grounds for disciplinary action under each respective
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practice act and under s. 456.072(l)(k). For licensees and
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certificateholders under part III of chapter 401, failure to
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comply with this paragraph constitutes grounds for disciplinary
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action by the Department of Health under s. 401.411.
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4. If the emergency health care provider is licensed under
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chapter 395 and has failed to indemnify the state after
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reasonable notice and written demand to do so, any state funds
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payable to the licensed facility shall be withheld until the
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facility satisfies its obligation to indemnify the state or
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enters into a repayment agreement. The terms of such an agreement
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must provide assurance of repayment of the obligation which is
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satisfactory to the state. In addition, the Agency for Health
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Care Administration shall impose an administrative fine, not to
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exceed $10,000 per violation of this paragraph.
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5. As used in this subsection, the term:
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a. "Emergency health care providers" includes all persons
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and entities providing services pursuant to obligations imposed
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that are otherwise covered under this section. The term includes:
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(I) An emergency medical services provider licensed under
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chapter 401 and persons operating as employees or agents of such
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an emergency medical services provider.
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(II) A hospital licensed under chapter 395 and persons
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operating as employees or agents of such a hospital.
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(III) A physician licensed under chapter 458, chapter 459,
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chapter 460, or chapter 461.
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(IV) A physician assistant licensed under chapter 458 or
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chapter 459.
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(V) An emergency medical technician or paramedic certified
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under chapter 401.
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(VI) A registered nurse, nurse midwife, licensed practical
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nurse, or advanced registered nurse practitioner licensed or
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registered under part I of chapter 464.
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(VII) A midwife licensed under chapter 467.
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(VIII) A health care professional association and its
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employees or agents or a corporate medical group and its
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employees or agents.
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(IX) Any student or medical resident who is enrolled in an
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accredited program or licensed program that prepares the student
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for licensure or certification in any one of the professions
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listed in sub-sub-subparagraphs (III)-(VII), the program that
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prepares the student for licensure or certification, and the
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entity responsible for training of the student or medical
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resident.
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(X) Any receiving facility designated under chapter 394 and
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persons operating as employees or agents of the receiving
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facility when providing emergency treatment to a person presented
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for evaluation in accordance with chapter 394.
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(XI) Any other person or entity that is providing services
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b. "Emergency medical services" means ambulance assessment,
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treatment, or transport services provided pursuant to obligations
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and evaluation by a physician, hospital, or other person or
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entity acting pursuant to obligations imposed by s. 395.1041 or
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s. 401.45; and the care, treatment, surgery, or other medical
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services provided, whether as an outpatient or inpatient, to
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relieve or eliminate the emergency medical condition, including
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all medical services to eliminate the likelihood that the
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emergency medical condition will deteriorate or recur without
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further medical attention within a reasonable period of time.
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(d)(c) For purposes of the waiver of sovereign immunity
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only, a member of the Florida National Guard is not acting within
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the scope of state employment when performing duty under the
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provisions of Title 10 or Title 32 of the United States Code or
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other applicable federal law; and neither the state nor any
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individual may be named in any action under this chapter arising
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from the performance of such federal duty.
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(e)(d) The employing agency of a law enforcement officer as
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defined in s. 943.10 is not liable for injury, death, or property
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damage effected or caused by a person fleeing from a law
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enforcement officer in a motor vehicle if:
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1. The pursuit is conducted in a manner that does not
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involve conduct by the officer which is so reckless or wanting in
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care as to constitute disregard of human life, human rights,
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safety, or the property of another;
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2. At the time the law enforcement officer initiates the
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pursuit, the officer reasonably believes that the person fleeing
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has committed a forcible felony as defined in s. 776.08; and
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3. The pursuit is conducted by the officer pursuant to a
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written policy governing high-speed pursuit adopted by the
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employing agency. The policy must contain specific procedures
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concerning the proper method to initiate and terminate high-speed
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pursuit. The law enforcement officer must have received
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instructional training from the employing agency on the written
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policy governing high-speed pursuit.
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Section 3. This act shall take effect upon becoming a law,
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and applies to any cause of action accruing on or after that
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date.
CODING: Words stricken are deletions; words underlined are additions.