HB 839

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

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