HB 1083

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

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