Florida Senate - 2011 CS for SB 1590
By the Committee on Banking and Insurance; and Senators Hays and
Gaetz
597-04391-11 20111590c1
1 A bill to be entitled
2 An act relating to medical malpractice; creating ss.
3 458.3175, 459.0066, and 466.005, F.S.; requiring the
4 Department of Health to issue expert witness
5 certificates to certain physicians and dentists
6 licensed outside the state; providing application and
7 certification requirements; establishing application
8 fees; providing for the validity and use of
9 certifications; exempting physicians and dentists
10 issued certifications from certain licensure and fee
11 requirements; amending ss. 458.331, 459.015, and
12 466.028, F.S.; providing additional acts that
13 constitute grounds for denial of a license or
14 disciplinary action to which penalties apply;
15 providing construction with respect to the doctrine of
16 incorporation by reference; amending ss. 458.351 and
17 459.026, F.S.; requiring the Board of Medicine and the
18 Board of Osteopathic Medicine to adopt within a
19 specified period certain patient forms specifying
20 cataract surgery risks; specifying that an incident
21 resulting from risks disclosed in the patient form is
22 not an adverse incident; providing for the execution
23 and admissibility of the patient forms in civil and
24 administrative proceedings; creating a rebuttable
25 presumption that a physician disclosed cataract
26 surgery risks if the patient form is executed;
27 amending s. 627.4147, F.S.; deleting a requirement
28 that medical malpractice insurance contracts contain a
29 clause authorizing the insurer to make and conclude
30 certain offers within policy limits over the insured’s
31 veto; amending s. 766.102, F.S.; defining terms;
32 providing that certain insurance information is not
33 admissible as evidence in medical negligence actions;
34 establishing the burden of proof that a claimant must
35 meet in certain damage claims against health care
36 providers based on death or personal injury; requiring
37 that certain expert witnesses who provide certain
38 expert testimony meet certain licensure or
39 certification requirements; excluding a health care
40 provider’s failure to comply with or breach of federal
41 requirements from evidence in medical negligence cases
42 in the state; amending s. 766.106, F.S.; requiring
43 claimants for medical malpractice to execute an
44 authorization form; allowing prospective medical
45 malpractice defendants to interview a claimant’s
46 treating health care provider without notice to or the
47 presence of the claimant or the claimant’s legal
48 representative; authorizing prospective defendants to
49 take unsworn statements of a claimant’s health care
50 provider; creating s. 766.1065, F.S.; requiring that
51 presuit notice for medical negligence claims be
52 accompanied by an authorization for release of
53 protected health information; providing requirements
54 for the form of such authorization; amending s.
55 766.206, F.S.; requiring dismissal of a medical
56 malpractice claim if such authorization is not
57 completed in good faith; amending s. 768.0981, F.S.;
58 limiting the liability of hospitals related to certain
59 medical negligence claims; providing an effective
60 date.
61
62 Be It Enacted by the Legislature of the State of Florida:
63
64 Section 1. Section 458.3175, Florida Statutes, is created
65 to read:
66 458.3175 Expert witness certificate.—
67 (1)(a) The department shall issue a certificate authorizing
68 a physician who holds an active and valid license to practice
69 medicine in another state or a province of Canada to provide
70 expert testimony in this state, if the physician submits to the
71 department:
72 1. A complete registration application containing the
73 physician’s legal name, mailing address, telephone number,
74 business locations, the names of the jurisdictions where the
75 physician holds an active and valid license to practice
76 medicine, and the license number or other identifying number
77 issued to the physician by the jurisdiction’s licensing entity;
78 and
79 2. An application fee of $50.
80 (b) The department shall approve an application for an
81 expert witness certificate within 7 business days after receipt
82 of the completed application and payment of the application fee
83 if the applicant holds an active and valid license to practice
84 medicine in another state or a province of Canada and has not
85 had a previous expert witness certificate revoked by the board.
86 An application is approved by default if the department does not
87 act upon the application within the required period. A physician
88 must notify the department in writing of his or her intent to
89 rely on a certificate approved by default.
90 (c) An expert witness certificate is valid for 2 years
91 after the date of issuance.
92 (2) An expert witness certificate authorizes the physician
93 to whom the certificate is issued to do only the following:
94 (a) Provide a verified written medical expert opinion as
95 provided in s. 766.203.
96 (b) Provide expert testimony about the prevailing
97 professional standard of care in connection with medical
98 negligence litigation pending in this state against a physician
99 licensed under this chapter or chapter 459.
100 (3) An expert witness certificate does not authorize a
101 physician to engage in the practice of medicine as defined in s.
102 458.305. A physician issued a certificate under this section who
103 does not otherwise practice medicine in this state is not
104 required to obtain a license under this chapter or pay any
105 license fees, including, but not limited to, a neurological
106 injury compensation assessment. An expert witness certificate
107 shall be treated as a license in any disciplinary action, and
108 the holder of an expert witness certificate shall be subject to
109 discipline by the board.
110 Section 2. Subsection (11) is added to section 458.331,
111 Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
112 of that section are redesignated as paragraphs (pp) through
113 (rr), respectively, and a new paragraph (oo) is added to that
114 subsection, to read:
115 458.331 Grounds for disciplinary action; action by the
116 board and department.—
117 (1) The following acts constitute grounds for denial of a
118 license or disciplinary action, as specified in s. 456.072(2):
119 (oo) Providing misleading, deceptive, or fraudulent expert
120 witness testimony related to the practice of medicine.
121 (11) The purpose of this section is to facilitate uniform
122 discipline for those acts made punishable under this section
123 and, to this end, a reference to this section constitutes a
124 general reference under the doctrine of incorporation by
125 reference.
126 Section 3. Subsection (6) of section 458.351, Florida
127 Statutes, is renumbered as subsection (7), and a new subsection
128 (6) is added to that section to read:
129 458.351 Reports of adverse incidents in office practice
130 settings.—
131 (6)(a) The board shall adopt rules establishing a standard
132 informed consent form that sets forth the recognized specific
133 risks related to cataract surgery. The board must propose such
134 rules within 90 days after the effective date of this
135 subsection.
136 (b) Before formally proposing the rule, the board must
137 consider information from physicians licensed under this chapter
138 or chapter 459 regarding recognized specific risks related to
139 cataract surgery and the standard informed consent forms adopted
140 for use in the medical field by other states.
141 (c) A patient’s informed consent is not executed until the
142 patient, or a person authorized by the patient to give consent,
143 and a competent witness sign the form adopted by the board.
144 (d) An incident resulting from recognized specific risks
145 described in the signed consent form is not considered an
146 adverse incident for purposes of s. 395.0197 and this section.
147 (e) In a civil action or administrative proceeding against
148 a physician based on his or her alleged failure to properly
149 disclose the risks of cataract surgery, a patient’s informed
150 consent executed as provided in paragraph (c) on the form
151 adopted by the board is admissible as evidence and creates a
152 rebuttable presumption that the physician properly disclosed the
153 risks.
154 Section 4. Section 459.0066, Florida Statutes, is created
155 to read:
156 459.0066 Expert witness certificate.—
157 (1)(a) The department shall issue a certificate authorizing
158 a physician who holds an active and valid license to practice
159 osteopathic medicine in another state or a province of Canada to
160 provide expert testimony in this state, if the physician submits
161 to the department:
162 1. A complete registration application containing the
163 physician’s legal name, mailing address, telephone number,
164 business locations, the names of the jurisdictions where the
165 physician holds an active and valid license to practice
166 osteopathic medicine, and the license number or other
167 identifying number issued to the physician by the jurisdiction’s
168 licensing entity; and
169 2. An application fee of $50.
170 (b) The department shall approve an application for an
171 expert witness certificate within 7 business days after receipt
172 of the completed application and payment of the application fee
173 if the applicant holds an active and valid license to practice
174 osteopathic medicine in another state or a province of Canada
175 and has not had a previous expert witness certificate revoked by
176 the board. An application is approved by default if the
177 department does not act upon the application within the required
178 period. A physician must notify the department in writing of his
179 or her intent to rely on a certificate approved by default.
180 (c) An expert witness certificate is valid for 2 years
181 after the date of issuance.
182 (2) An expert witness certificate authorizes the physician
183 to whom the certificate is issued to do only the following:
184 (a) Provide a verified written medical expert opinion as
185 provided in s. 766.203.
186 (b) Provide expert testimony about the prevailing
187 professional standard of care in connection with medical
188 negligence litigation pending in this state against a physician
189 licensed under chapter 458 or this chapter.
190 (3) An expert witness certificate does not authorize a
191 physician to engage in the practice of osteopathic medicine as
192 defined in s. 459.003. A physician issued a certificate under
193 this section who does not otherwise practice osteopathic
194 medicine in this state is not required to obtain a license under
195 this chapter or pay any license fees, including, but not limited
196 to, a neurological injury compensation assessment. An expert
197 witness certificate shall be treated as a license in any
198 disciplinary action, and the holder of an expert witness
199 certificate shall be subject to discipline by the board.
200 Section 5. Subsection (11) is added to section 459.015,
201 Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
202 of that section are redesignated as paragraphs (rr) through
203 (tt), respectively, and a new paragraph (qq) is added to that
204 subsection, to read:
205 459.015 Grounds for disciplinary action; action by the
206 board and department.—
207 (1) The following acts constitute grounds for denial of a
208 license or disciplinary action, as specified in s. 456.072(2):
209 (qq) Providing misleading, deceptive, or fraudulent expert
210 witness testimony related to the practice of osteopathic
211 medicine.
212 (11) The purpose of this section is to facilitate uniform
213 discipline for those acts made punishable under this section
214 and, to this end, a reference to this section constitutes a
215 general reference under the doctrine of incorporation by
216 reference.
217 Section 6. Section 466.005, Florida Statutes, is created to
218 read:
219 466.005 Expert witness certificate.—
220 (1)(a) The department shall issue a certificate authorizing
221 a dentist who holds an active and valid license to practice
222 dentistry in another state or a province of Canada to provide
223 expert testimony in this state, if the dentist submits to the
224 department:
225 1. A complete registration application containing the
226 dentist’s legal name, mailing address, telephone number,
227 business locations, the names of the jurisdictions where the
228 dentist holds an active and valid license to practice dentistry,
229 and the license number or other identifying number issued to the
230 dentist by the jurisdiction’s licensing entity; and
231 2. An application fee of $50.
232 (b) The department shall approve an application for an
233 expert witness certificate within 7 business days after receipt
234 of the completed application and payment of the application fee
235 if the applicant holds an active and valid license to practice
236 dentistry in another state or a province of Canada and has not
237 had a previous expert witness certificate revoked by the board.
238 An application is approved by default if the department does not
239 act upon the application within the required period. A dentist
240 must notify the department in writing of his or her intent to
241 rely on a certificate approved by default.
242 (c) An expert witness certificate is valid for 2 years
243 after the date of issuance.
244 (2) An expert witness certificate authorizes the dentist to
245 whom the certificate is issued to do only the following:
246 (a) Provide a verified written medical expert opinion as
247 provided in s. 766.203.
248 (b) Provide expert testimony about the prevailing
249 professional standard of care in connection with medical
250 negligence litigation pending in this state against a dentist
251 licensed under this chapter.
252 (3) An expert witness certificate does not authorize a
253 dentist to engage in the practice of dentistry as defined in s.
254 466.003. A dentist issued a certificate under this section who
255 does not otherwise practice dentistry in this state is not
256 required to obtain a license under this chapter or pay any
257 license fees. An expert witness certificate shall be treated as
258 a license in any disciplinary action, and the holder of an
259 expert witness certificate shall be subject to discipline by the
260 board.
261 Section 7. Subsection (8) is added to section 466.028,
262 Florida Statutes, paragraph (ll) of subsection (1) of that
263 section is redesignated as paragraph (mm), and a new paragraph
264 (ll) is added to that subsection, to read:
265 466.028 Grounds for disciplinary action; action by the
266 board.—
267 (1) The following acts constitute grounds for denial of a
268 license or disciplinary action, as specified in s. 456.072(2):
269 (ll) Providing misleading, deceptive, or fraudulent expert
270 witness testimony related to the practice of dentistry.
271 (8) The purpose of this section is to facilitate uniform
272 discipline for those acts made punishable under this section
273 and, to this end, a reference to this section constitutes a
274 general reference under the doctrine of incorporation by
275 reference.
276 Section 8. Subsection (6) of section 459.026, Florida
277 Statutes, is renumbered as subsection (7), and a new subsection
278 (6) is added to that section to read:
279 459.026 Reports of adverse incidents in office practice
280 settings.—
281 (6)(a) The board shall adopt rules establishing a standard
282 informed consent form that sets forth the recognized specific
283 risks related to cataract surgery. The board must propose such
284 rules within 90 days after the effective date of this
285 subsection.
286 (b) Before formally proposing the rule, the board must
287 consider information from physicians licensed under chapter 458
288 or this chapter regarding recognized specific risks related to
289 cataract surgery and the standard informed consent forms adopted
290 for use in the medical field by other states.
291 (c) A patient’s informed consent is not executed until the
292 patient, or a person authorized by the patient to give consent,
293 and a competent witness sign the form adopted by the board.
294 (d) An incident resulting from recognized specific risks
295 described in the signed consent form is not considered an
296 adverse incident for purposes of s. 395.0197 and this section.
297 (e) In a civil action or administrative proceeding against
298 a physician based on his or her alleged failure to properly
299 disclose the risks of cataract surgery, a patient’s informed
300 consent executed as provided in paragraph (c) on the form
301 adopted by the board is admissible as evidence and creates a
302 rebuttable presumption that the physician properly disclosed the
303 risks.
304 Section 9. Paragraph (b) of subsection (1) of section
305 627.4147, Florida Statutes, is amended to read:
306 627.4147 Medical malpractice insurance contracts.—
307 (1) In addition to any other requirements imposed by law,
308 each self-insurance policy as authorized under s. 627.357 or s.
309 624.462 or insurance policy providing coverage for claims
310 arising out of the rendering of, or the failure to render,
311 medical care or services, including those of the Florida Medical
312 Malpractice Joint Underwriting Association, shall include:
313 (b)1. Except as provided in subparagraph 2., a clause
314 authorizing the insurer or self-insurer to determine, to make,
315 and to conclude, without the permission of the insured, any
316 offer of admission of liability and for arbitration pursuant to
317 s. 766.106, settlement offer, or offer of judgment, if the offer
318 is within the policy limits. It is against public policy for any
319 insurance or self-insurance policy to contain a clause giving
320 the insured the exclusive right to veto any offer for admission
321 of liability and for arbitration made pursuant to s. 766.106,
322 settlement offer, or offer of judgment, when such offer is
323 within the policy limits. However, any offer of admission of
324 liability, settlement offer, or offer of judgment made by an
325 insurer or self-insurer shall be made in good faith and in the
326 best interests of the insured.
327 2.a. With respect to dentists licensed under chapter 466, A
328 clause clearly stating whether or not the insured has the
329 exclusive right to veto any offer of admission of liability and
330 for arbitration pursuant to s. 766.106, settlement offer, or
331 offer of judgment if the offer is within policy limits. An
332 insurer or self-insurer shall not make or conclude, without the
333 permission of the insured, any offer of admission of liability
334 and for arbitration pursuant to s. 766.106, settlement offer, or
335 offer of judgment, if such offer is outside the policy limits.
336 However, any offer for admission of liability and for
337 arbitration made under s. 766.106, settlement offer, or offer of
338 judgment made by an insurer or self-insurer shall be made in
339 good faith and in the best interest of the insured.
340 2.b. If the policy contains a clause stating the insured
341 does not have the exclusive right to veto any offer or admission
342 of liability and for arbitration made pursuant to s. 766.106,
343 settlement offer or offer of judgment, the insurer or self
344 insurer shall provide to the insured or the insured’s legal
345 representative by certified mail, return receipt requested, a
346 copy of the final offer of admission of liability and for
347 arbitration made pursuant to s. 766.106, settlement offer or
348 offer of judgment and at the same time such offer is provided to
349 the claimant. A copy of any final agreement reached between the
350 insurer and claimant shall also be provided to the insurer or
351 his or her legal representative by certified mail, return
352 receipt requested not more than 10 days after affecting such
353 agreement.
354 Section 10. Subsections (3), (4), and (5) of section
355 766.102, Florida Statutes, are amended, subsection (12) of that
356 section is renumbered as subsection (14), and new subsections
357 (12) and (13) are added to that section, to read:
358 766.102 Medical negligence; standards of recovery; expert
359 witness.—
360 (3)(a) As used in this subsection, the term:
361 1. “Insurer” means any public or private insurer, including
362 the Centers for Medicare and Medicaid Services.
363 2. “Reimbursement determination” means an insurer’s
364 determination of the amount that the insurer will reimburse a
365 health care provider for health care services.
366 3. “Reimbursement policies” means an insurer’s policies and
367 procedures governing its decisions regarding health insurance
368 coverage and method of payment and the data upon which such
369 policies and procedures are based, including, but not limited
370 to, data from national research groups and other patient safety
371 data as defined in s. 766.1016.
372 (b) The existence of a medical injury does shall not create
373 any inference or presumption of negligence against a health care
374 provider, and the claimant must maintain the burden of proving
375 that an injury was proximately caused by a breach of the
376 prevailing professional standard of care by the health care
377 provider. Any records, policies, or testimony of an insurer’s
378 reimbursement policies or reimbursement determination regarding
379 the care provided to the plaintiff are not admissible as
380 evidence in any medical negligence action. However, the
381 discovery of the presence of a foreign body, such as a sponge,
382 clamp, forceps, surgical needle, or other paraphernalia commonly
383 used in surgical, examination, or diagnostic procedures, shall
384 be prima facie evidence of negligence on the part of the health
385 care provider.
386 (4)(a) The Legislature is cognizant of the changing trends
387 and techniques for the delivery of health care in this state and
388 the discretion that is inherent in the diagnosis, care, and
389 treatment of patients by different health care providers. The
390 failure of a health care provider to order, perform, or
391 administer supplemental diagnostic tests is shall not be
392 actionable if the health care provider acted in good faith and
393 with due regard for the prevailing professional standard of
394 care.
395 (b) In an action for damages based on death or personal
396 injury which alleges that such death or injury resulted from the
397 failure of a health care provider to order, perform, or
398 administer supplemental diagnostic tests, the claimant has the
399 burden of proving by clear and convincing evidence that the
400 alleged actions of the health care provider represented a breach
401 of the prevailing professional standard of care.
402 (5) A person may not give expert testimony concerning the
403 prevailing professional standard of care unless the that person
404 is a licensed health care provider who holds an active and valid
405 license and conducts a complete review of the pertinent medical
406 records and meets the following criteria:
407 (a) If the health care provider against whom or on whose
408 behalf the testimony is offered is a specialist, the expert
409 witness must:
410 1. Specialize in the same specialty as the health care
411 provider against whom or on whose behalf the testimony is
412 offered; or specialize in a similar specialty that includes the
413 evaluation, diagnosis, or treatment of the medical condition
414 that is the subject of the claim and have prior experience
415 treating similar patients; and
416 2. Have devoted professional time during the 3 years
417 immediately preceding the date of the occurrence that is the
418 basis for the action to:
419 a. The active clinical practice of, or consulting with
420 respect to, the same or similar specialty that includes the
421 evaluation, diagnosis, or treatment of the medical condition
422 that is the subject of the claim and have prior experience
423 treating similar patients;
424 b. Instruction of students in an accredited health
425 professional school or accredited residency or clinical research
426 program in the same or similar specialty; or
427 c. A clinical research program that is affiliated with an
428 accredited health professional school or accredited residency or
429 clinical research program in the same or similar specialty.
430 (b) If the health care provider against whom or on whose
431 behalf the testimony is offered is a general practitioner, the
432 expert witness must have devoted professional time during the 5
433 years immediately preceding the date of the occurrence that is
434 the basis for the action to:
435 1. The active clinical practice or consultation as a
436 general practitioner;
437 2. The instruction of students in an accredited health
438 professional school or accredited residency program in the
439 general practice of medicine; or
440 3. A clinical research program that is affiliated with an
441 accredited medical school or teaching hospital and that is in
442 the general practice of medicine.
443 (c) If the health care provider against whom or on whose
444 behalf the testimony is offered is a health care provider other
445 than a specialist or a general practitioner, the expert witness
446 must have devoted professional time during the 3 years
447 immediately preceding the date of the occurrence that is the
448 basis for the action to:
449 1. The active clinical practice of, or consulting with
450 respect to, the same or similar health profession as the health
451 care provider against whom or on whose behalf the testimony is
452 offered;
453 2. The instruction of students in an accredited health
454 professional school or accredited residency program in the same
455 or similar health profession in which the health care provider
456 against whom or on whose behalf the testimony is offered; or
457 3. A clinical research program that is affiliated with an
458 accredited medical school or teaching hospital and that is in
459 the same or similar health profession as the health care
460 provider against whom or on whose behalf the testimony is
461 offered.
462 (12) If a physician licensed under chapter 458 or chapter
463 459 or a dentist licensed under chapter 466 is the party against
464 whom, or on whose behalf, expert testimony about the prevailing
465 professional standard of care is offered, the expert witness
466 must be licensed under chapter 458, chapter 459, or chapter 466
467 or possess a valid expert witness certificate issued under s.
468 458.3175, s. 459.0066, or s. 466.005.
469 (13) A health care provider’s failure to comply with or
470 breach of any federal requirement is not admissible as evidence
471 in any medical negligence case in this state.
472 Section 11. Paragraph (a) of subsection (2), subsection
473 (5), and paragraph (b) of subsection (6) of section 766.106,
474 Florida Statutes, are amended to read:
475 766.106 Notice before filing action for medical negligence;
476 presuit screening period; offers for admission of liability and
477 for arbitration; informal discovery; review.—
478 (2) PRESUIT NOTICE.—
479 (a) After completion of presuit investigation pursuant to
480 s. 766.203(2) and prior to filing a complaint for medical
481 negligence, a claimant shall notify each prospective defendant
482 by certified mail, return receipt requested, of intent to
483 initiate litigation for medical negligence. Notice to each
484 prospective defendant must include, if available, a list of all
485 known health care providers seen by the claimant for the
486 injuries complained of subsequent to the alleged act of
487 negligence, all known health care providers during the 2-year
488 period prior to the alleged act of negligence who treated or
489 evaluated the claimant, and copies of all of the medical records
490 relied upon by the expert in signing the affidavit, and the
491 executed authorization form provided in s. 766.1065. The
492 requirement of providing the list of known health care providers
493 may not serve as grounds for imposing sanctions for failure to
494 provide presuit discovery.
495 (5) DISCOVERY AND ADMISSIBILITY.—A No statement,
496 discussion, written document, report, or other work product
497 generated by the presuit screening process is not discoverable
498 or admissible in any civil action for any purpose by the
499 opposing party. All participants, including, but not limited to,
500 physicians, investigators, witnesses, and employees or
501 associates of the defendant, are immune from civil liability
502 arising from participation in the presuit screening process.
503 This subsection does not prevent a physician licensed under
504 chapter 458 or chapter 459 or a dentist licensed under chapter
505 466 who submits a verified written expert medical opinion from
506 being subject to denial of a license or disciplinary action
507 under s. 458.331(1)(oo), s. 459.015(1)(qq), or s.
508 466.028(1)(ll).
509 (6) INFORMAL DISCOVERY.—
510 (b) Informal discovery may be used by a party to obtain
511 unsworn statements, the production of documents or things, and
512 physical and mental examinations, as follows:
513 1. Unsworn statements.—Any party may require other parties
514 to appear for the taking of an unsworn statement. Such
515 statements may be used only for the purpose of presuit screening
516 and are not discoverable or admissible in any civil action for
517 any purpose by any party. A party desiring to take the unsworn
518 statement of any party must give reasonable notice in writing to
519 all parties. The notice must state the time and place for taking
520 the statement and the name and address of the party to be
521 examined. Unless otherwise impractical, the examination of any
522 party must be done at the same time by all other parties. Any
523 party may be represented by counsel at the taking of an unsworn
524 statement. An unsworn statement may be recorded electronically,
525 stenographically, or on videotape. The taking of unsworn
526 statements is subject to the provisions of the Florida Rules of
527 Civil Procedure and may be terminated for abuses.
528 2. Documents or things.—Any party may request discovery of
529 documents or things. The documents or things must be produced,
530 at the expense of the requesting party, within 20 days after the
531 date of receipt of the request. A party is required to produce
532 discoverable documents or things within that party’s possession
533 or control. Medical records shall be produced as provided in s.
534 766.204.
535 3. Physical and mental examinations.—A prospective
536 defendant may require an injured claimant to appear for
537 examination by an appropriate health care provider. The
538 prospective defendant shall give reasonable notice in writing to
539 all parties as to the time and place for examination. Unless
540 otherwise impractical, a claimant is required to submit to only
541 one examination on behalf of all potential defendants. The
542 practicality of a single examination must be determined by the
543 nature of the claimant’s condition, as it relates to the
544 liability of each prospective defendant. Such examination report
545 is available to the parties and their attorneys upon payment of
546 the reasonable cost of reproduction and may be used only for the
547 purpose of presuit screening. Otherwise, such examination report
548 is confidential and exempt from the provisions of s. 119.07(1)
549 and s. 24(a), Art. I of the State Constitution.
550 4. Written questions.—Any party may request answers to
551 written questions, the number of which may not exceed 30,
552 including subparts. A response must be made within 20 days after
553 receipt of the questions.
554 5. Ex parte interviews of treating health care providers.—A
555 prospective defendant or his or her legal representative may
556 interview the claimant’s treating health care providers without
557 notice to or the presence of the claimant or the claimant’s
558 legal representative.
559 6.5. Unsworn statements of treating health care providers
560 Medical information release.—The claimant must execute a medical
561 information release that allows A prospective defendant or his
562 or her legal representative may also to take unsworn statements
563 of the claimant’s treating health care providers physicians. The
564 statements must be limited to those areas that are potentially
565 relevant to the claim of personal injury or wrongful death.
566 Subject to the procedural requirements of subparagraph 1., a
567 prospective defendant may take unsworn statements from a
568 claimant’s treating physicians. Reasonable notice and
569 opportunity to be heard must be given to the claimant or the
570 claimant’s legal representative before taking unsworn
571 statements. The claimant or claimant’s legal representative has
572 the right to attend the taking of such unsworn statements.
573 Section 12. Section 766.1065, Florida Statutes, is created
574 to read:
575 766.1065 Authorization for release of protected health
576 information.—
577 (1) Presuit notice of intent to initiate litigation for
578 medical negligence under s. 766.106(2) must be accompanied by an
579 authorization for release of protected health information in the
580 form specified by this section, authorizing the disclosure of
581 protected health information that is potentially relevant to the
582 claim of personal injury or wrongful death. The presuit notice
583 is void if this authorization does not accompany the presuit
584 notice and other materials required by s. 766.106(2).
585 (2) If the authorization required by this section is
586 revoked, the presuit notice under s. 766.106(2) is deemed
587 retroactively void from the date of issuance, and any tolling
588 effect that the presuit notice may have had on any applicable
589 statute-of-limitations period is retroactively rendered void.
590 (3) The authorization required by this section shall be in
591 the following form and shall be construed in accordance with the
592 “Standards for Privacy of Individually Identifiable Health
593 Information” in 45 C.F.R. parts 160 and 164:
594
595 AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION
596
597 A. I,_(...Name of patient or authorized
598 representative...) [hereinafter “Patient”], authorize
599 that (...Name of health care provider to whom the
600 presuit notice is directed...) and his/her/its
601 insurer(s), self-insurer(s), and attorney(s) may
602 obtain and disclose (within the parameters set out
603 below) the protected health information described
604 below for the following specific purposes:
605 1. Facilitating the investigation and evaluation
606 of the medical negligence claim described in the
607 accompanying presuit notice; or
608 2. Defending against any litigation arising out
609 of the medical negligence claim made on the basis of
610 the accompanying presuit notice.
611 B. The health information obtained, used, or
612 disclosed extends to, and includes, the verbal as well
613 as the written and is described as follows:
614 1. The health information in the custody of the
615 following health care providers who have examined,
616 evaluated, or treated the Patient in connection with
617 injuries complained of after the alleged act of
618 negligence: (List the name and current address of all
619 health care providers). This authorization extends to
620 any additional health care providers that may in the
621 future evaluate, examine, or treat the Patient for the
622 injuries complained of.
623 2. The health information in the custody of the
624 following health care providers who have examined,
625 evaluated, or treated the Patient during a period
626 commencing 2 years before the incident that is the
627 basis of the accompanying presuit notice.
628
629 (List the name and current address of such health care
630 providers, if applicable.)
631
632 C. This authorization does not apply to the
633 following list of health care providers possessing
634 health care information about the Patient because the
635 Patient certifies that such health care information is
636 not potentially relevant to the claim of personal
637 injury or wrongful death that is the basis of the
638 accompanying presuit notice.
639
640 (List the name of each health care provider to whom
641 this authorization does not apply and the inclusive
642 dates of examination, evaluation, or treatment to be
643 withheld from disclosure. If none, specify “none.”)
644
645 D. The persons or class of persons to whom the
646 Patient authorizes such health information to be
647 disclosed or by whom such health information is to be
648 used:
649 1. Any health care provider providing care or
650 treatment for the Patient.
651 2. Any liability insurer or self-insurer
652 providing liability insurance coverage, self
653 insurance, or defense to any health care provider to
654 whom presuit notice is given regarding the care and
655 treatment of the Patient.
656 3. Any consulting or testifying expert employed
657 by or on behalf of (name of health care provider to
658 whom presuit notice was given), his/her/its
659 insurer(s), self-insurer(s), or attorney(s) regarding
660 to the matter of the presuit notice accompanying this
661 authorization.
662 4. Any attorney (including secretarial, clerical,
663 or paralegal staff) employed by or on behalf of (name
664 of health care provider to whom presuit notice was
665 given) regarding the matter of the presuit notice
666 accompanying this authorization.
667 5. Any trier of the law or facts relating to any
668 suit filed seeking damages arising out of the medical
669 care or treatment of the Patient.
670 E. This authorization expires upon resolution of
671 the claim or at the conclusion of any litigation
672 instituted in connection with the matter of the
673 presuit notice accompanying this authorization,
674 whichever occurs first.
675 F. The Patient understands that, without
676 exception, the Patient has the right to revoke this
677 authorization in writing. The Patient further
678 understands that the consequence of any such
679 revocation is that the presuit notice under s.
680 766.106(2), Florida Statutes, is deemed retroactively
681 void from the date of issuance, and any tolling effect
682 that the presuit notice may have had on any applicable
683 statute-of-limitations period is retroactively
684 rendered void.
685 G. The Patient understands that signing this
686 authorization is not a condition for continued
687 treatment, payment, enrollment, or eligibility for
688 health plan benefits.
689 H. The Patient understands that information used
690 or disclosed under this authorization may be subject
691 to additional disclosure by the recipient and may not
692 be protected by federal HIPAA privacy regulations.
693
694 Signature of Patient/Representative: ....
695 Date: ....
696 Name of Patient/Representative: ....
697 Description of Representative’s Authority: ....
698 Section 13. Subsection (2) of section 766.206, Florida
699 Statutes, is amended to read:
700 766.206 Presuit investigation of medical negligence claims
701 and defenses by court.—
702 (2) If the court finds that the notice of intent to
703 initiate litigation mailed by the claimant does is not comply in
704 compliance with the reasonable investigation requirements of ss.
705 766.201-766.212, including a review of the claim and a verified
706 written medical expert opinion by an expert witness as defined
707 in s. 766.202, or that the authorization accompanying the notice
708 of intent required under s. 766.1065 is not completed in good
709 faith by the claimant, the court shall dismiss the claim, and
710 the person who mailed such notice of intent, whether the
711 claimant or the claimant’s attorney, shall be personally liable
712 for all attorney’s fees and costs incurred during the
713 investigation and evaluation of the claim, including the
714 reasonable attorney’s fees and costs of the defendant or the
715 defendant’s insurer.
716 Section 14. Section 768.0981, Florida Statutes, is amended
717 to read:
718 768.0981 Limitation on actions against insurers, prepaid
719 limited health service organizations, health maintenance
720 organizations, hospitals, or prepaid health clinics.—An entity
721 licensed or certified under chapter 395, chapter 624, chapter
722 636, or chapter 641 is shall not be liable for the medical
723 negligence of a health care provider with whom the licensed or
724 certified entity has entered into a contract, other than an
725 employee of such licensed or certified entity, unless the
726 licensed or certified entity expressly directs or exercises
727 actual control over the specific conduct that caused injury.
728 Section 15. This act shall take effect July 1, 2011.