HB 257

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
4	abortions be performed in a hospital; specifying that
5	the health exception to restrictions on performing third
6	trimester abortions relates to physical health;
7	providing for disciplinary action for violation of
8	specified provisions; requiring an ultrasound be
9	performed on any woman obtaining an abortion; specifying
10	who must perform an ultrasound; providing that the
11	ultrasound must be reviewed with the patient prior to
12	the woman giving informed consent; specifying who must
13	review the ultrasound with the patient; providing that
14	the woman must certify in writing that she declined to
15	review the ultrasound and did so of her own free will
16	and without undue influence; providing an exemption to
17	view the ultrasound for women who are the victims of
18	rape, incest, domestic violence, or human trafficking or
19	for women who have a serious medical condition
20	necessitating the abortion; revising requirements for
21	written materials; providing ban on physicians seeking
22	waivers of patients' rights to file complaints with
23	regulatory bodies or litigate causes of action;
24	requiring a 24-hour waiting period before a physician
25	may perform or induce an abortion on any patient;
26	providing for exception in the case of a medical
27	emergency; creating s. 390.01112, F.S.; providing for a
28	women's reproductive bill of rights; requiring abortion
29	clinics and physician abortion providers to adopt a
30	public statement of patients' rights and to treat
31	patients in accordance with that statement; providing
32	for required provisions in the statement to patients;
33	requiring clinics and physician abortion providers to
34	provide the information in their statement orally and in
35	writing to patients or their court-appointed guardians;
36	requiring that the statements be provided to staff
37	members; requiring staff training; providing for
38	disciplinary action for violation of patients' bill of
39	rights; providing for immunity to persons filing
40	complaints or testifying in proceedings, subject to
41	certain conditions; creating s. 390.01113, F.S.;
42	creating a private civil action against physicians,
43	clinics, or nurses for violation of a patients' rights;
44	providing persons who may file a cause of action;
45	providing venue; providing for actual and punitive
46	damages; providing for recovery of attorney's fees under
47	certain circumstances; providing criteria for recovering
48	attorney's fees; providing that a cause of action under
49	this section is not a claim for medical malpractice;
50	providing basis for punitive damages and exemptions from
51	other provisions of law governing punitive damages;
52	amending s. 390.01114, F.S.; revising provisions
53	relating to parental notice of abortion; providing
54	exceptions; providing for a cause of action under
55	certain circumstances for parents who do not receive
56	notice; providing for damages for cause of action;
57	requiring appointment of a guardian ad litem for a minor
58	petitioning for a waiver of the notice requirements;
59	specifying factors to be considered in determining
60	whether a minor is sufficiently mature to waive the
61	notice requirements; revising provisions relating to
62	confidentiality of hearings; requiring that an annual
63	report concerning waiver proceedings provide additional
64	information; creating s. 390.01117, F.S.; providing for
65	a cause of action in negligence for any injury or death
66	a patient suffers as a result of an abortion; providing
67	for who may bring a cause of action; providing for
68	survival and wrongful death damages if the patient dies;
69	providing for venue; providing for actual and punitive
70	damages; providing for attorney's fees to prevailing
71	party under certain circumstances; providing that
72	remedies are in addition to any other remedies provided
73	for in law; providing criteria for award of attorney's
74	fees; providing burden of proof; providing that a cause
75	of action is not strict liability; providing for legal
76	duties and standards of care for clinics, physicians, or
77	nurses; providing that cause of action under this
78	section is not a medical malpractice claim; providing
79	for exceptions from certain laws; providing standard for
80	award of punitive damages; providing for exceptions from
81	certain laws for punitive damage awards; creating s.
82	390.01118, F.S.; providing for a statute of limitations
83	and repose for specified causes of action; providing for
84	statute of limitations periods of actions that accrue
85	prior to the effective date of s. 390.01118, F.S.;
86	creating s. 390.01119, F.S.; prohibiting fraudulently
87	altering, defacing, or falsifying medical records
88	related to an abortion or for causing any of these
89	offenses; providing criminal penalties; providing for
90	professional licensure actions for the same violations;
91	amending s. 390.012, F.S.; providing that agency rules
92	promulgated shall prohibit the performance of abortions
93	in the third trimester other than in a hospital;
94	requiring that the agency rules provide that a clinic or
95	abortion provider cannot request or require a patient to
96	waive her rights to sue or file a complaint with a
97	disciplinary body; deleting references to conform;
98	requiring ultrasounds for all patients; requiring that
99	live ultrasound images be reviewed and explained to the
100	patient; requiring that all other provisions in s.
101	390.0111, F.S., must be complied with should the patient
102	decline to view her live ultrasound images; providing
103	that the patient may decline to review ultrasound
104	images; providing that any language of the act that
105	could be construed as infringing upon a court's powers
106	shall be construed as a request for rule change;
107	providing for severability; providing an effective date.
108
109	Be It Enacted by the Legislature of the State of Florida:
110
111	Section 1.  Subsections (1) and (3) of section 390.0111,
112	Florida Statutes, are amended, and subsection (12) is added to
113	that section, to read:
114	390.0111  Termination of pregnancies.--
115	(1)  TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.--No
116	termination of pregnancy shall be performed on any human being
117	in the third trimester of pregnancy unless:
118	(a)  The abortion is performed in a hospital; and
119	(b)1.  Two physicians certify in writing to the fact
120	that, to a reasonable degree of medical probability, the
121	termination of pregnancy is necessary to save the life or
122	preserve the physical health of the pregnant woman; or
123	2.(b)  The physician certifies in writing to the medical
124	necessity for legitimate emergency medical procedures for
125	termination of pregnancy in the third trimester, and another
126	physician is not available for consultation.
127	(c)  Violation of this subsection by a physician
128	constitutes grounds for disciplinary action under s. 458.331
129	or s. 459.015.
130	(3)  CONSENTS REQUIRED.--A termination of pregnancy may
131	not be performed or induced except with the voluntary and
132	informed written consent of the pregnant woman or, in the case
133	of a mental incompetent, the voluntary and informed written
134	consent of her court-appointed guardian.
135	(a)  Except in the case of a medical emergency, consent
136	to a termination of pregnancy is voluntary and informed only
137	if:
138	1.  The physician who is to perform the procedure, or the
139	referring physician, has, at a minimum, orally, in person,
140	informed the woman of:
141	a.  The nature and risks of undergoing or not undergoing
142	the proposed procedure that a reasonable patient would
143	consider material to making a knowing and willful decision of
144	whether to terminate a pregnancy.
145	b.  The probable gestational age of the fetus, verified
146	by an ultrasound, at the time the termination of pregnancy is
147	to be performed.
148	(I)  The ultrasound must be performed by the physician
149	who is to perform the abortion or by a person having
150	documented evidence that he or she has completed a course in
151	the operation of ultrasound equipment as prescribed by rule
152	and who is working in conjunction with the physician.
153	(II)  The person performing the ultrasound must allow the
154	woman to view the live ultrasound images, and a physician or a
155	registered nurse, licensed practical nurse, advanced
156	registered nurse practitioner, or physician assistant working
157	in conjunction with the physician must contemporaneously
158	review and explain the live ultrasound images to the woman,
159	prior to the woman giving informed consent to having an
160	abortion procedure performed. However, this sub-sub-
161	subparagraph does not apply if, at the time the woman
162	schedules or arrives for her appointment to obtain an
163	abortion, a copy of a restraining order, police report,
164	medical record, or other court order or documentation is
165	presented that evidences that the woman is obtaining the
166	abortion because the woman is a victim of rape, incest,
167	domestic violence, or human trafficking or that the woman has
168	been diagnosed with a condition that, on the basis of a
169	physician's good faith clinical judgment, would create a
170	serious risk of substantial and irreversible impairment of a
171	major bodily function if the woman delayed terminating her
172	pregnancy.
173	(III)  The woman has a right to decline to view the
174	ultrasound images after she is informed of her right and
175	offered an opportunity to view them. If the woman declines to
176	view the ultrasound images, the woman shall complete a form
177	acknowledging that she was offered an opportunity to view her
178	ultrasound but that she rejected that opportunity. The form
179	must also indicate that the woman's decision not to view the
180	ultrasound was not based on any undue influence from any third
181	party to discourage her from viewing the images and that she
182	declined to view the images of her own free will.
183	c.  The medical risks to the woman and fetus of carrying
184	the pregnancy to term.
185	2.  Printed materials prepared and provided by the
186	department have been provided to the pregnant woman, if she
187	chooses to view these materials, including:
188	a.  A description of the fetus, including a description
189	of the various stages of development.
190	b.  A list of entities agencies that offer alternatives
191	to terminating the pregnancy.
192	c.  Detailed information on the availability of medical
193	assistance benefits for prenatal care, childbirth, and
194	neonatal care.
195	3.  The woman acknowledges in writing, before the
196	termination of pregnancy, that the information required to be
197	provided under this subsection has been provided.
198
199	Nothing in this paragraph is intended to prohibit a physician
200	from providing any additional information which the physician
201	deems material to the woman's informed decision to terminate
202	her pregnancy.
203	(b)  In the event a medical emergency exists and a
204	physician cannot comply with the requirements for informed
205	consent, a physician may terminate a pregnancy if he or she
206	has obtained at least one corroborative medical opinion
207	attesting to the medical necessity for emergency medical
208	procedures and to the fact that to a reasonable degree of
209	medical certainty the continuation of the pregnancy would
210	threaten the life of the pregnant woman. In the event no
211	second physician is available for a corroborating opinion, the
212	physician may proceed but shall document reasons for the
213	medical necessity in the patient's medical records.
214	(c)  A physician shall not request or require a patient
215	to waive her ability to either file a complaint with any
216	disciplinary body or to litigate a cause of action based on
217	the care received related to an abortion or a violation of her
218	rights.
219	(d)(c)  Violation of this subsection by a physician
220	constitutes grounds for disciplinary action under s. 458.331
221	or s. 459.015. Substantial compliance or reasonable belief
222	that complying with the requirements of informed consent would
223	threaten the life or health of the patient is a defense to any
224	action brought under this paragraph.
225	(12)  WAITING PERIOD FOR ABORTION.--Except in the case of
226	a medical emergency, no physician shall perform or induce an
227	abortion on any woman unless, at least 24 hours prior thereto,
228	a treating physician has conferred with the woman, or her
229	court-appointed guardian if she is mentally incompetent,
230	pursuant to the requirements set forth in subsection (3).
231	Section 2.  Section 390.01112, Florida Statutes, is
232	created to read:
233	390.01112  Women's reproductive bill of rights.--
234	(1)  All abortion clinics and physician abortion
235	providers shall adopt and make public a statement of the
236	rights of patients seeking abortions and shall treat such
237	patients in accordance with the provisions of that statement.
238	The statement shall assure each patient all of the following:
239	(a)  That her abortion must be performed by a physician
240	as defined in s. 390.011.
241	(b)  That she has the right to know the name, function,
242	and qualifications of each health care provider who is
243	providing medical services to her. She may request this
244	information from the clinic or physician abortion provider.
245	(c)  That she is required to have an ultrasound and she
246	has the right to view the live ultrasound images and have them
247	contemporaneously reviewed and explained to her. She has the
248	right to decline to view the ultrasound after it is offered to
249	her to view.
250	(d)  That she is entitled to know the probable
251	gestational age of the fetus at the time the abortion is to be
252	performed, as verified by an ultrasound.
253	(e)  That, unless a medical emergency exists, she must
254	receive an ultrasound and be provided all the information
255	required under s. 390.0111(3) no less than 24 hours prior to
256	her abortion.
257	(f)  That, if she is in her third trimester of pregnancy,
258	any abortion must be performed in a hospital.
259	(g)  That either the patient, or her court-appointed
260	guardian if she is mentally incompetent, as set forth in s.
261	390.0111(3) is entitled to provide voluntary and informed,
262	written consent, unless a legal exception to obtaining
263	informed consent exists, before an abortion can be performed
264	or induced.
265	(h)  That, if she is a minor, her parent or legal
266	guardian as set forth in s. 390.01114(3) is entitled to
267	receive actual or constructive notice, unless a legal
268	exception to compliance with notice requirements exists,
269	before an abortion can be performed or induced.
270	(i)  That she is entitled to printed materials containing
271	a description of the fetus, a list of entities that offer
272	alternatives to terminating the pregnancy, and detailed
273	information on the availability of medical assistance benefits
274	for prenatal care, childbirth, and neonatal care.
275	(j)  That she is entitled to be notified of the medical
276	risks of undergoing or not undergoing the proposed procedure
277	that a reasonable patient would consider material to making a
278	knowing and willful decision of whether to terminate the
279	pregnancy.
280	(k)  That she is entitled to notification of the medical
281	risks to her and her fetus of carrying the pregnancy to term.
282	(l)  That the clinic, physician, or physician's office is
283	not allowed to request or require her to waive her right to
284	either file a complaint with any disciplinary body or to
285	litigate a cause of action based on the care received related
286	to an abortion or a violation of her rights in order to obtain
287	an abortion.
288	(m)  That she is entitled to have all medical records
289	pertaining to her abortion treatment made, protected, and
290	preserved by the physician abortion provider and clinic, and
291	that copies of her medical records shall be made available to
292	her, a representative of her estate, her court-appointed
293	guardian if she is mentally incompetent, her parent or legal
294	guardian pursuant to s. 390.01114(3)(d) if she is a minor, or
295	her legal representative upon request.
296	(n)  That she is entitled to any and all adequate,
297	necessary, and appropriate health care related to the
298	performance or inducement of an abortion, including any and
299	all adequate, necessary, and appropriate postabortion recovery
300	and medical care.
301	(o)  That, if she is in her second trimester of
302	pregnancy, she is entitled to receive care that meets all the
303	quality and safety standards set forth in this chapter,
304	including all requirements provided for in s. 390.012(3).
305	(p)  That she, or her court-appointed guardian if she is
306	mentally incompetent, has the right to refuse medication or
307	treatment and to be informed of the consequences of such
308	decisions. When the medication or treatment is refused, the
309	abortion clinic or physician must notify the patient or her
310	court-appointed guardian of the consequences of such decisions
311	and must document the decision in the patient's medical
312	record. The abortion clinic or physician must continue to
313	provide other services that the patient or her court-appointed
314	guardian agrees to in accordance with the patient's care or
315	treatment needs.
316	(q)  That she is entitled to have privacy in her
317	treatment and care, and that, except as provided herein or
318	elsewhere in law, her medical records shall remain
319	confidential pursuant to all applicable state and federal
320	laws.
321	(r)  That she has the right to a prompt and reasonable
322	response to any question she may have regarding her care or
323	treatment.
324	(s)  That she has the right to be treated courteously,
325	fairly, and with the fullest measure of dignity at all times
326	and upon all occasions.
327	(2)  All clinics and physician abortion providers shall
328	orally inform patients seeking abortions of their rights as
329	set forth herein and shall provide a copy of the statement as
330	provided in subsection (1) to each patient, or her court-
331	appointed guardian if the patient is mentally incompetent,
332	before performing an abortion. The statement shall itemize
333	each of the rights set forth in subsection (1) separately,
334	including each entitlement in s. 390.012 available to a
335	patient obtaining a second trimester abortion. The clinic or
336	physician practicing in a doctor's office shall provide a copy
337	of the patients' bill of reproductive rights to each staff
338	member of the clinic or physician's office. Each clinic or
339	physician shall prepare a written plan and provide appropriate
340	staff training to implement the provisions of this section.
341	The written statement of rights must include a statement that
342	a patient may file a complaint with the agency or department.
343	The statement must be in boldfaced, 14-point type and shall
344	include the website and telephone number of the agency and
345	department.
346	(3)  Any violation of a patient's rights as set forth in
347	this section by a clinic shall constitute grounds for action
348	by the agency under the provisions of ss. 390.012, 408.813,
349	408.814, and 408.815. Any violation of a patient's rights as
350	set forth in this section by a physician shall constitute
351	grounds for disciplinary action under s. 458.331 or s.
352	459.015.
353	(4)  Any person who submits or reports a complaint
354	concerning a suspected violation of the patient's rights or
355	concerning services or conditions in a clinic or physician's
356	office or who testifies in any administrative or judicial
357	proceeding arising from such complaint shall have immunity
358	from any criminal or civil liability therefor, unless that
359	person has committed perjury in his or her testimony or acted
360	in bad faith or with malicious purpose or if the court finds
361	that there was a complete absence of a justiciable issue of
362	either law or fact raised by the losing party.
363	Section 3.  Section 390.01113, Florida Statutes, is
364	created to read:
365	390.01113  Civil action for violations of patients'
366	rights; relief.--
367	(1)  Any patient whose rights as specified in s.
368	390.01112 are violated has a cause of action against any
369	physician, nurse, or clinic for the violation. The action may
370	be brought by the patient, her parent or legal guardian if the
371	patient is a minor, her court-appointed guardian if the
372	patient is mentally incompetent, or a personal representative
373	of the estate of the patient to enforce the right.
374	(2)  The action may be brought in any court of competent
375	jurisdiction to enforce such rights and to recover actual
376	damages and punitive damages when malicious, wanton, or
377	willful disregard of the rights of others can be shown. Any
378	plaintiff who prevails in any such action for any amount is
379	entitled to recover reasonable attorney's fees, costs of the
380	action, and damages, unless the court finds that the plaintiff
381	has acted in bad faith or with malicious purpose or that there
382	was a complete absence of a justiciable issue of either law or
383	fact. A prevailing defendant is entitled to recover reasonable
384	attorney's fees under s. 57.105 only if the court determines
385	that the plaintiff's claim involved a complete absence of
386	justiciable law or fact. The remedies provided in this section
387	are in addition to other legal and administrative remedies
388	available to a patient, her estate, or to the agency or
389	department.
390	(3)  Attorney's fees shall be based on the following
391	criteria:
392	(a)  The time and labor required.
393	(b)  The novelty and difficulty of the questions.
394	(c)  The skill requisite to perform the legal service
395	properly.
396	(d)  The preclusions of other employment by the attorney
397	due to the acceptance of the case.
398	(e)  The customary fee.
399	(f)  Whether the fee is fixed or contingent.
400	(g)  The amount involved or the results obtained.
401	(h)  The experience, reputation, and ability of the
402	attorney.
403	(i)  The costs expended to prosecute the claim.
404	(j)  The type of fee arrangement between the attorney and
405	the client.
406	(k)  Whether the relevant market requires a contingency
407	fee multiplier to obtain competent counsel.
408	(l)  Whether the attorney was able to mitigate the risk
409	of nonpayment in any way.
410	(4)  Any action brought under this section is not a claim
411	for medical malpractice and chapter 766 does not apply. The
412	provisions of s. 768.21(8) do not apply to a claim alleging
413	death of the patient.
414	(5)  For purposes of this section, punitive damages may
415	be awarded for conduct that is willful, wanton, gross or
416	flagrant, reckless, or consciously indifferent to the rights
417	of the patient. Sections 768.72, 768.725, and 768.73 do not
418	apply to any civil action filed under this section.
419	Section 4.  Subsection (3), paragraphs (a), (c), and (e)
420	of subsection (4), and subsection (6) of section 390.01114,
421	Florida Statutes, are amended to read:
422	390.01114  Parental Notice of Abortion Act.--
423	(3)  NOTIFICATION REQUIRED.--
424	(a)1.a.  Actual notice shall be provided by the physician
425	performing or inducing the termination of pregnancy before the
426	performance or inducement of the termination of the pregnancy
427	of a minor. The notice may be given by a referring physician.
428	The physician who performs or induces the termination of
429	pregnancy must receive the written statement of the referring
430	physician certifying that the referring physician has given
431	notice. If actual notice is provided by telephone, the
432	physician must actually speak with the parent or guardian and
433	must record in the minor's medical file the name of the parent
434	or guardian provided notice, the phone number dialed, and the
435	date and time of the call.
436	b.  If actual notice is not possible after a reasonable
437	effort has been made, the physician performing or inducing the
438	termination of pregnancy or the referring physician must give
439	constructive notice. If constructive notice is given, the
440	physician must document that notice by placing copies of any
441	document related to the constructive notice, including, but
442	not limited to, a copy of the letter and the return receipt,
443	in the minor's medical file.
444	2.  Notice given under this subsection by the physician
445	performing or inducing the termination of pregnancy must
446	include the name and address of the facility providing the
447	termination of pregnancy and the name of the physician
448	providing notice. Notice given under this subsection by a
449	referring physician must include the name and address of the
450	facility where he or she is referring the minor and the name
451	of the physician providing notice. If actual notice is
452	provided by telephone, the physician must actually speak with
453	the parent or guardian, and must record in the minor's medical
454	file the name of the parent or guardian provided notice, the
455	phone number dialed, and the date and time of the call. If
456	constructive notice is given, the physician must document that
457	notice by placing copies of any document related to the
458	constructive notice, including, but not limited to, a copy of
459	the letter and the return receipt, in the minor's medical
460	file.
461	(b)  Notice is not required if:
462	1.  In the physician's good faith clinical judgment, a
463	medical emergency exists and there is insufficient time for
464	the attending physician to comply with the notification
465	requirements. If a medical emergency exists, the physician may
466	proceed but must document reasons for the medical necessity in
467	the patient's medical records;
468	2.  Notice is waived in writing by the person who is
469	entitled to notice;
470	3.  Notice is waived by the minor who is or has been
471	married or has had the disability of nonage removed under s.
472	743.015 or a similar statute of another state;
473	4.  Notice is waived by the patient because the patient
474	has a minor child dependent on her; or
475	5.  Notice is waived under subsection (4).
476	(c)  Violation of this subsection by a physician
477	constitutes grounds for disciplinary action under s. 458.331
478	or s. 459.015.
479	(d)  Any parent or legal guardian of a minor upon whom a
480	termination of pregnancy has been performed or induced who did
481	not receive actual or constructive notice from the physician
482	who performed or induced the termination of pregnancy, where
483	an exception to notice pursuant to paragraph (b) did not
484	exist, may, in a civil action, obtain appropriate relief,
485	unless the pregnancy resulted from the parent or legal
486	guardian's criminal conduct.
487	(e)  In a civil action under paragraph (d), appropriate
488	relief includes:
489	1.  Monetary damages for all injuries, psychological and
490	physical, occasioned by the violation of paragraph(a); and
491	2.  Damages equal to three times the cost of the
492	abortion.
493	(f)  The damages provided for in paragraph (e) are in
494	addition to any other legal or administrative remedies that
495	may be available to the plaintiff or department.
496	(4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--
497	(a)  A minor may petition any circuit court in a judicial
498	circuit within the jurisdiction of the District Court of
499	Appeal in which she resides for a waiver of the notice
500	requirements of subsection (3) and may participate in
501	proceedings on her own behalf. The petition may be filed under
502	a pseudonym or through the use of initials, as provided by
503	court rule. The petition must include a statement that the
504	petitioner is pregnant and notice has not been waived. The
505	court shall advise the minor that she has a right to court-
506	appointed counsel and shall provide her with counsel upon her
507	request at no cost to the minor. The court shall appoint a
508	guardian ad litem for the minor.
509	(c)  If the court finds, by clear and convincing
510	evidence, that the minor is sufficiently mature to decide
511	whether to terminate her pregnancy, the court shall issue an
512	order authorizing the minor to consent to the performance or
513	inducement of a termination of pregnancy without the
514	notification of a parent or guardian.
515	1.  Factors a court shall consider when determining
516	whether a minor is sufficiently mature include, but are not
517	limited to, the following:
518	a.  Whether the minor is mature enough to make her
519	abortion decision, as evidenced by:
520	(I)  The minor's age.
521	(II)  The minor's credibility and demeanor as a witness.
522	(III)  The minor's emotional development; and
523	b.  Whether the minor is well informed enough to make the
524	decision on her own, as evidenced by:
525	(I)  The minor's ability to assess both the immediate and
526	long-range consequences of her choices.
527	(II)  The minor's ability to understand and explain the
528	nature and risks of undergoing or not undergoing a procedure
529	to terminate her pregnancy and to apply that understanding to
530	her decision.
531	2.  The court should also take into consideration whether
532	there has been any undue influence by another on the minor's
533	decision to have an abortion.
534
535	If the court does not make the finding specified in this
536	paragraph or paragraph (d), it must dismiss the petition.
537	(e)  A court that conducts proceedings under this section
538	shall:
539	1.  Provide for a written transcript of all testimony and
540	proceedings.
541	2.  Issue a written final order containing all factual
542	findings and legal conclusions, including factual findings and
543	legal conclusions as to whether the petitioner is sufficiently
544	mature based on the factors set forth in subparagraph(c)1.
545	3.  Order that a confidential record be maintained as
546	required under s. 390.01116. All hearings under this section,
547	including appeals, shall remain confidential and closed to the
548	public, as provided by court rule. A court that conducts
549	proceedings under this section shall provide for a written
550	transcript of all testimony and proceedings and issue written
551	and specific factual findings and legal conclusions supporting
552	its decision and shall order that a confidential record be
553	maintained, as required under s. 390.01116. At the hearing,
554	the court shall hear evidence relating to the emotional
555	development, maturity, intellect, and understanding of the
556	minor, and all other relevant evidence. All hearings under
557	this section, including appeals, shall remain confidential and
558	closed to the public, as provided by court rule.
559	(6)  REPORT.--The Supreme Court, through the Office of
560	the State Courts Administrator, shall report by February 1 of
561	each year to the Governor, the President of the Senate, and
562	the Speaker of the House of Representatives on the number of
563	petitions filed under subsection (4) for the preceding year,
564	and the timing and manner of disposal of such petitions by
565	each circuit court. For each petition, the report shall state
566	the judicial circuit within which the minor resided; whether
567	the petition was granted or denied based on the minor's
568	maturity or the best interest of the minor, or both; whether
569	the minor was represented by court-appointed or private
570	counsel; and the age of the minor.
571	Section 5.  Section 390.01117, Florida Statutes, is
572	created to read:
573	390.01117  Civil action for negligence; remedies.--
574	(1)  Any patient who suffers injury or death as a result
575	of an abortion shall have a cause of action for negligence.
576	The action may be brought by the patient, her parent or legal
577	guardian if the patient is a minor, her court-appointed
578	guardian if the patient is mentally incompetent, or a personal
579	representative of the estate of the patient regardless of the
580	cause of death to enforce the right. If the claim involves
581	negligence or injury to the patient that resulted in her
582	death, then the plaintiff shall be entitled to recover both
583	survival damages pursuant to s. 46.021 and wrongful death
584	damages pursuant to s. 768.21. If the action alleges a claim
585	for injury to the patient that did not cause her death, the
586	personal representative of the estate may recover damages for
587	negligence that caused injury to the patient.
588	(2)  The action may be brought in any court of competent
589	jurisdiction to enforce such rights and to recover actual
590	damages and punitive damages when malicious, wanton, or
591	willful disregard of the rights of others can be shown. Any
592	plaintiff who prevails in any such action for any amount is
593	entitled to recover reasonable attorney's fees, costs of the
594	action, and damages, unless the court finds that the plaintiff
595	has acted in bad faith or with malicious purpose or that there
596	was a complete absence of a justiciable issue of either law or
597	fact. A prevailing defendant is entitled to recover reasonable
598	attorney's fees under s. 57.105 only if the court determines
599	that the plaintiff's claim involved a complete absence of
600	justiciable law or fact. The remedies provided in this section
601	are in addition to other legal and administrative remedies
602	available to a patient, her estate, or to the agency or
603	department.
604	(3)  Attorney's fees shall be based on the following
605	criteria:
606	(a)  The time and labor required.
607	(b)  The novelty and difficulty of the questions.
608	(c)  The skill requisite to perform the legal service
609	properly.
610	(d)  The preclusions of other employment by the attorney
611	due to the acceptance of the case.
612	(e)  The customary fee.
613	(f)  Whether the fee is fixed or contingent.
614	(g)  The amount involved or the results obtained.
615	(h)  The experience, reputation, and ability of the
616	attorneys.
617	(i)  The costs expended to prosecute the claim.
618	(j)  The type of fee arrangement between the attorney and
619	the client.
620	(k)  Whether the relevant market requires a contingency
621	fee multiplier to obtain competent counsel.
622	(l)  Whether the attorney was able to mitigate the risk
623	of nonpayment in any way.
624	(4)  In any claim brought under this section, the
625	plaintiff shall have the burden of proving by a preponderance
626	of the evidence the following:
627	(a)  The defendant owed a duty to the patient.
628	(b)  The defendant breached the duty to the patient.
629	(c)  The breach of the duty was a legal cause of loss,
630	injury, death, or damage to the patient.
631	(d)  The patient sustained loss, injury, death, or damage
632	as a result of the breach.
633	(5)  Nothing in this section shall be interpreted to
634	create strict liability. Injury or death resulting to the
635	patient shall be evidence of negligence, but shall not be
636	negligence per se.
637	(6)  In any claim brought under this section, a clinic,
638	person, or entity shall have a duty to exercise reasonable
639	care. Reasonable care is that degree of care that a reasonably
640	careful clinic, person, or entity would use under like
641	circumstances.
642	(7)  In any claim for negligence by a physician, such
643	physician shall have the duty to exercise care consistent with
644	the prevailing professional standard of care for physicians.
645	The prevailing professional standard of care for physicians
646	shall be that level of care, skill, and treatment that, in
647	light of all relevant surrounding circumstances, is recognized
648	as acceptable and appropriate by reasonably prudent similar
649	physicians.
650	(8)  In any claim for negligence by a licensed practical
651	nurse, registered nurse, or advanced registered nurse
652	practitioner licensed under part I of chapter 464, such nurse
653	shall have the duty to exercise care consistent with the
654	prevailing professional standard of care for such a nurse. The
655	prevailing professional standard of care for such a nurse
656	shall be that level of care, skill, and treatment that, in
657	light of all relevant surrounding circumstances, is recognized
658	as acceptable and appropriate by reasonably prudent similar
659	nurses.
660	(9)  Any action brought pursuant to this section is not a
661	claim for medical malpractice, and chapter 766 does not apply.
662	The provisions of s. 768.21(8) do not apply to a claim
663	alleging death of the patient.
664	(10)  For purposes of this section, punitive damages may
665	be awarded for conduct that is willful, wanton, gross or
666	flagrant, reckless, or consciously indifferent to the rights
667	of the patient. Sections 768.72, 768.725, and 768.73 do not
668	apply to any civil action filed pursuant to this section.
669	Section 6.  Section 390.01118, Florida Statutes, is
670	created to read:
671	390.01118  Statute of limitations.--Any action for
672	damages brought under s. 390.01113, s. 390.01114(3)(d)-(f), or
673	s. 390.01117 shall be commenced within 2 years from the time
674	the incident giving rise to the action occurred or within 2
675	years from the time the incident is discovered or should have
676	been discovered with the exercise of due diligence. In those
677	actions covered by s. 390.01113, s. 390.01114(3)(d)-(f), or s.
678	390.01117 in which it can be shown that fraudulent concealment
679	or intentional misrepresentation of fact prevented discovery
680	of the injury, the period of limitations is extended forward 2
681	years from the time the injury is discovered with the exercise
682	of due diligence.
683	Section 7.  Section 390.01118, Florida Statutes, as
684	created by this act, shall apply to causes of action that have
685	accrued prior to the effective date of that section; however,
686	any such cause of action that would not have been barred under
687	prior law may be brought within the time allowed by prior law
688	or within 2 years after the effective date of that section,
689	whichever is earlier, and will be barred thereafter.
690	Section 8.  Section 390.01119, Florida Statutes, is
691	created to read:
692	390.01119  Medical records.--
693	(1)  Any person who fraudulently alters, defaces, or
694	falsifies any medical record related to an abortion or causes
695	or procures any of these offenses to be committed commits a
696	misdemeanor of the second degree, punishable as provided in s.
697	775.082 or s. 775.083.
698	(2)  A conviction under subsection (1) is also grounds
699	for disciplinary action under a licensee's applicable practice
700	act, which discipline may include restriction, suspension, or
701	termination of a licensee's privileges.
702	Section 9.  Subsection (1) and paragraph (d) of
703	subsection (3) of section 390.012, Florida Statutes, are
704	amended to read:
705	390.012  Powers of agency; rules; disposal of fetal
706	remains.--
707	(1)  The agency may develop and enforce rules pursuant to
708	ss. 390.011-390.018 390.001-390.018 and part II of chapter 408
709	for the health, care, and treatment of persons in abortion
710	clinics and for the safe operation of such clinics.
711	(a)  The rules shall be reasonably related to the
712	preservation of maternal health of the clients.
713	(b)  The rules shall be in accordance with s. 797.03 and
714	may not impose an unconstitutional burden on a woman's freedom
715	to decide whether to terminate her pregnancy.
716	(c)  The rules shall prohibit the performance of
717	abortions in the third trimester other than in a hospital.
718	(d)  The rules shall prohibit a clinic from requesting or
719	requiring a patient to waive her ability to either file a
720	complaint with any disciplinary body or to litigate a cause of
721	action based on the care received in the clinic or a violation
722	of her rights.
723	(e)(c)  The rules shall provide for:
724	1.  The performance of pregnancy termination procedures
725	only by a licensed physician.
726	2.  The making, protection, and preservation of patient
727	records, which shall be treated as medical records under
728	chapter 458.
729	(3)  For clinics that perform or claim to perform
730	abortions after the first trimester of pregnancy, the agency
731	shall adopt rules pursuant to ss. 120.536(1) and 120.54 to
732	implement the provisions of this chapter, including the
733	following:
734	(d)  Rules relating to the medical screening and
735	evaluation of each abortion clinic patient. At a minimum,
736	these rules shall require:
737	1.  A medical history including reported allergies to
738	medications, antiseptic solutions, or latex; past surgeries;
739	and an obstetric and gynecological history.
740	2.  A physical examination, including a bimanual
741	examination estimating uterine size and palpation of the
742	adnexa.
743	3.  The appropriate laboratory tests, including:
744	a.  For an abortion in which an ultrasound examination is
745	not performed before the abortion procedure, Urine or blood
746	tests for pregnancy performed before the abortion procedure.
747	b.  A test for anemia.
748	c.  Rh typing, unless reliable written documentation of
749	blood type is available.
750	d.  Other tests as indicated from the physical
751	examination.
752	4.  An ultrasound evaluation for all patients who elect
753	to have an abortion after the first trimester. The rules shall
754	require that if a person who is not a physician performs an
755	ultrasound examination, that person shall have documented
756	evidence that he or she has completed a course in the
757	operation of ultrasound equipment as prescribed in rule. The
758	physician, registered nurse, licensed practical nurse,
759	advanced registered nurse practitioner, or physician assistant
760	shall review and explain , at the request of the patient, the
761	live ultrasound images evaluation results, including an
762	estimate of the probable gestational age of the fetus, with
763	the patient before the abortion procedure is performed, unless
764	the patient declines pursuant to s. 390.0111. If the patient
765	declines to view the live ultrasound images, the rules shall
766	require that s. 390.0111 be complied with in all other
767	respects.
768	5.  That the physician is responsible for estimating the
769	gestational age of the fetus based on the ultrasound
770	examination and obstetric standards in keeping with
771	established standards of care regarding the estimation of
772	fetal age as defined in rule and shall write the estimate in
773	the patient's medical history. The physician shall keep
774	original prints of each ultrasound examination of a patient in
775	the patient's medical history file.
776	Section 10.  It is the intent of this act and the
777	Legislature to accord the utmost comity and respect to the
778	constitutional prerogatives of Florida's judiciary, and
779	nothing in this act should be construed as any effort to
780	impinge upon those prerogatives. To that end, should any court
781	of competent jurisdiction enter a final judgment concluding or
782	declaring that any provision of this act improperly encroaches
783	upon the authority of the Florida Supreme Court to determine
784	the rules of practice and procedure in Florida courts, the
785	Legislature hereby declares its intent that any such provision
786	be construed as a request for rule change pursuant to s. 2,
787	Art. V of the State Constitution and not as a mandatory
788	legislative directive.
789	Section 11.  If any provision of this act or the
790	application thereof to any person or circumstance is held
791	invalid, the invalidity does not affect other provisions or
792	applications of the act which can be given effect without the
793	invalid provision or application, and to this end the
794	provisions of this act are declared severable.
795	Section 12.  This act shall take effect July 1, 2008.

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