Florida Senate - 2011 SB 1676
By Senator Thrasher
8-00681A-11 20111676__
1 A bill to be entitled
2 An act relating to sovereign immunity; providing
3 legislative findings and intent; amending s. 766.1115,
4 F.S.; providing that specified provisions relating to
5 sovereign immunity for health care providers do not
6 apply to certain affiliation agreements or contracts
7 to provide certain comprehensive health care services;
8 amending s. 768.28, F.S.; expanding the definition of
9 the term “officer, employee, or agent” for purposes of
10 sovereign immunity to include certain health care
11 providers; providing that certain colleges and
12 universities that own or operate a medical school or
13 any of its employees or agents that have agreed in an
14 affiliation agreement to provide patient services as
15 agents of a teaching hospital that is owned or
16 operated by a governmental entity having health care
17 responsibilities, or a not-for-profit entity that
18 operates such facilities as an agent of that
19 governmental entity under a lease, are agents of the
20 state and are immune from certain liability for torts;
21 requiring the contract to provide for indemnification;
22 providing definitions; requiring that each patient, or
23 the patient’s legal representative, receive written
24 notice regarding the patient’s exclusive remedy for
25 injury or damage suffered; providing that an employee
26 providing patient services is not an employee or agent
27 of the state for purposes of workers’ compensation;
28 providing for application; providing an effective
29 date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. (1) The Legislature finds that access to
34 quality, affordable health care for residents of this state is a
35 necessary goal for the state and that public teaching hospitals
36 play an essential role in providing access to comprehensive
37 health care services.
38 (2) The Legislature finds that this state:
39 (a) Has the largest and fastest growing percentage of
40 citizens over the age of 65, who typically have their health
41 care needs increase as their age increases.
42 (b) Ranks fifth highest in the nation in the number of
43 citizens who are uninsured.
44 (c) Ranks eighth highest in the nation in active physicians
45 age 60 or older, with 25 percent of this state’s physicians over
46 the age of 65.
47 (d) Ranks third highest in the nation in the number of
48 active physicians who are international medical graduates,
49 creating a dependency on physicians educated and trained in
50 other states and countries.
51 (e) Has been impacted by medical malpractice, liability,
52 and reimbursement issues.
53 (3) The Legislature finds that the rapidly growing
54 population and changing demographics of this state make it
55 imperative that students continue to choose this state as the
56 place to receive their medical education and practice medicine.
57 (4) The Legislature finds that graduate medical education
58 is the process of comprehensive specialty training that a
59 medical school graduate undertakes to develop and refine skills.
60 Residents work under the direct supervision of medical faculty,
61 who provide guidance, training, and oversight, serving as role
62 models to young physicians. The vast majority of this care takes
63 place in large teaching hospitals, which serve as “safety nets”
64 to many indigent and underserved patients who otherwise might
65 not receive help. Resident training, including the supervision
66 component, is an important part of ensuring access to care by
67 residents and medical doctors in training who render appropriate
68 and quality care. Medical faculty provide the vital link between
69 access to quality care and balancing the demands of educating
70 and training residents. Physicians who assume this role are
71 often juggling the demands of patient care, teaching, research,
72 and policy and budgetary issues related to the programs they
73 administer.
74 (5) The Legislature finds that access to quality health
75 care at public teaching hospitals is enhanced when public
76 teaching hospitals affiliate and coordinate their common
77 endeavors with medical schools. The existing definition of a
78 teaching hospital in s. 408.07, Florida Statutes, contemplates
79 such affiliations between teaching hospitals and accredited
80 medical schools in this state. These affiliations are an
81 integral part of the delivery of more efficient and economical
82 health care services to patients in public teaching hospitals by
83 offering a single, high quality of care to all patients
84 regardless of income. These affiliations also provide quality
85 graduate medical education programs to resident physicians who
86 provide patient services at public teaching hospitals. These
87 affiliations ensure continued access to quality, comprehensive
88 health care services for residents of this state and, therefore,
89 should be encouraged in order to maintain and expand such
90 services.
91 (6)(a) The Legislature finds that s. 381.0403, Florida
92 Statutes, “The Community Hospital Education Act” (CHEP),
93 established programs “intended to provide additional outpatient
94 and inpatient services, a continuing supply of highly trained
95 physicians, and graduate medical education.” Section
96 381.0403(9), Florida Statutes, before its amendment by chapter
97 2010-161, Laws of Florida, required the Executive Office of the
98 Governor, the Department of Health, and the Agency for Health
99 Care Administration to collaborate in the establishment of a
100 committee to produce an annual report on graduate medical
101 education which addressed the role of residents and medical
102 faculty in the provision of health care; the relationship of
103 graduate medical education to the state’s physician workforce;
104 the costs of training medical residents for hospitals, medical
105 schools, teaching hospitals, including all hospital-medical
106 affiliations, practice plans at all of the medical schools, and
107 municipalities; the availability and adequacy of all sources of
108 revenue to support graduate medical education and recommended
109 alternative sources of funding for graduate medical education;
110 and the use of state and federal funds for graduate medical
111 education by hospitals receiving such funds.
112 (b) The Graduate Medical Education Committee submitted
113 Reports in 2009 and 2010 and, among other findings, determined
114 that graduate medical education training has a direct impact on
115 the quality and adequacy of the state’s physician specialty and
116 subspecialty workforce and the geographic distribution of
117 physicians; the support and expansion of residency programs in
118 critical need areas could result in more primary care
119 practitioners and specialists practicing in this state; medical
120 residents are more likely to practice in the state where they
121 completed their graduate medical education training than where
122 they went to medical school; quality, prestigious programs
123 attract the best students, who stay as practicing physicians;
124 medical residents act as “safety nets” to care for indigent,
125 uninsured, and underserved patients in this state; supporting
126 residency programs helps ensure this state’s ability to train
127 and retain the caliber of medical doctors its citizens and
128 visitors deserve; and ongoing strategic planning for the
129 expanded capacity of graduate medical education programs is
130 crucial in order for the state to meet its health care needs.
131 However, the January 2010 Annual Report of Graduate Medical
132 Education in Florida by the Graduate Medical Education Committee
133 indicated that the Association of American Medical Colleges
134 ranked Florida 43rd nationally in the number of resident
135 physicians in training per 100,000 population.
136 (7) The Legislature finds that ss. 28 and 29, chapter 2010
137 161, Laws of Florida, which amended ss. 381.0403 and 381.4018,
138 Florida Statutes, respectively, modified the existing law that
139 established the responsibility of the Department of Health for
140 physician workforce development and created a Physician
141 Workforce Advisory Council and a graduate medical education
142 innovation program. The legislative intent in s. 381.4018,
143 Florida Statutes, recognizes that “physician workforce planning
144 is an essential component of ensuring that there is an adequate
145 and appropriate supply of well-trained physicians to meet this
146 state’s future health care service needs as the general
147 population and elderly population of the state increase.”
148 According to the Council on Graduate Medical Education’s
149 sixteenth report entitled “Physician Workforce Policy Guidelines
150 for the United States, 2000-2010 (January 2005),” this country
151 could see shortages as high as 85,000 physicians by 2020.
152 (8) The Legislature finds, based upon the 2008 Florida
153 Physician Workforce Annual Report from the Department of Health,
154 that although the American Association of Medical Colleges
155 reports that this state ranks 15th nationally in the number of
156 active physicians per 100,000 population, these national-level
157 data do not take into account many factors that determine the
158 number of actively practicing physicians. Rather, additional
159 concerns impact this state’s physician workforce, including the
160 current practice environment for physicians. These concerns
161 include malpractice insurance and liability costs, reimbursement
162 rates, administrative burdens, and the impact of Amendment 8,
163 approved in November 2004, which created s. 26, Article X of the
164 State Constitution, which prohibits persons found to have
165 committed three or more incidents of medical malpractice from
166 being licensed by this state to provide health care services as
167 a medical doctor. As the department concluded, these service
168 delivery concerns may hinder the recruitment of doctors to this
169 state based on the real or perceived influence of the severity
170 of the medical liability climate in this state.
171 (9) The Legislature finds that when medical schools
172 affiliate or enter into contracts with public teaching hospitals
173 to provide patient services, but medical schools and their
174 employees do not have the same level of protection against
175 liability claims as public teaching hospitals and their public
176 employees when providing the same patient services to the same
177 patients, the exposure of these medical schools and their
178 employees to claims arising out of alleged medical malpractice
179 and other allegedly negligent acts is increased
180 disproportionately. With the recent growth in the availability
181 of state-established medical schools and medical education
182 programs and ongoing efforts to support, strengthen, and
183 increase the available residency training positions and medical
184 faculty in both existing and newly designated teaching
185 hospitals, this exposure and the consequent disparity will
186 continue to increase. This will add to the current crisis with
187 respect to the physician workforce in the state, which will be
188 alleviated only through legislative relief.
189 (10) The Legislature finds that the high cost of litigation
190 and unequal liability exposure have adversely impacted the
191 ability of some medical schools to provide or permit their
192 employees to provide patient services to patients in public
193 teaching hospitals. If corrective action is not taken, this
194 health care crisis will lead to the reduction of patient
195 services in public teaching hospitals. In addition, it will
196 reduce the ability of public teaching hospitals to further
197 support their public mission through the admission of patients
198 to their teaching services and reduce the ability of public
199 teaching hospitals to act as teaching sites for medical students
200 from private and public medical schools. It will also contribute
201 to a reduction in the high-quality medical care and training
202 provided through public teaching hospitals that are affiliated
203 with accredited medical schools as well as a reduction in
204 essential research, program development, and infrastructure
205 improvements in public teaching hospitals.
206 (11) The Legislature finds that the public will benefit
207 from corrective action to address the foregoing concerns.
208 Designating medical schools and their employees as agents of the
209 state who are subject to the protections of sovereign immunity
210 when providing patient services in public teaching hospitals
211 pursuant to an affiliation agreement or other written contract
212 will maintain and increase that public benefit.
213 (12) The Legislature finds that making high-quality health
214 care available to the residents of this state is an overwhelming
215 public necessity.
216 (13) The Legislature finds that ensuring that medical
217 schools and their employees are able continue to practice, treat
218 patients, supervise medical and graduate education, engage in
219 research, and provide administrative support and services in
220 public teaching hospitals is an overwhelming public necessity.
221 (14) It is the intent of the Legislature that medical
222 schools that provide or permit their employees to provide
223 patient services in public teaching hospitals pursuant to an
224 affiliation agreement or other contract be subject to sovereign
225 immunity protections under s. 768.28, Florida Statutes, in the
226 same manner and to the same extent as the state, its agencies,
227 and political subdivisions.
228 (15) It is the intent of the Legislature that employees of
229 medical schools who provide patient services in a public
230 teaching hospital and the employees of public teaching hospitals
231 be immune from lawsuits in the same manner and to the same
232 extent as employees and agents of the state, its agencies, and
233 political subdivisions and that they not be held personally
234 liable in tort or named as a party defendant in an action while
235 performing patient services, except as provided in s.
236 768.28(9)(a), Florida Statutes.
237 (16) The Legislature finds that there is an overwhelming
238 public necessity for this legislative action and that there is
239 no alternative method of meeting such public necessity.
240 Section 2. Subsection (11) of section 766.1115, Florida
241 Statutes, is amended to read:
242 766.1115 Health care providers; creation of agency
243 relationship with governmental contractors.—
244 (11) APPLICABILITY.—This section applies to incidents
245 occurring on or after April 17, 1992. This section does not
246 apply to any health care contract entered into by the Department
247 of Corrections which is subject to s. 768.28(10)(a). This
248 section does not apply to any affiliation agreement or other
249 contract which is subject to s. 768.28(10)(f). Nothing in this
250 section in any way reduces or limits the rights of the state or
251 any of its agencies or subdivisions to any benefit currently
252 provided under s. 768.28.
253 Section 3. Paragraph (b) of subsection (9) of section
254 768.28, Florida Statutes, is amended, and paragraph (f) is added
255 to subsection (10) of that section, to read:
256 768.28 Waiver of sovereign immunity in tort actions;
257 recovery limits; limitation on attorney fees; statute of
258 limitations; exclusions; indemnification; risk management
259 programs.—
260 (9)
261 (b) As used in this subsection, the term:
262 1. “Employee” includes any volunteer firefighter.
263 2. “Officer, employee, or agent” includes, but is not
264 limited to, any health care provider when providing services
265 pursuant to s. 766.1115;, any member of the Florida Health
266 Services Corps, as defined in s. 381.0302, who provides
267 uncompensated care to medically indigent persons referred by the
268 Department of Health; a Florida not-for-profit college,
269 university, or medical school and the employees or agents of
270 such college, university, or medical school pursuant to
271 paragraph (10)(f);, and any public defender or her or his
272 employee or agent, including, among others, an assistant public
273 defender and an investigator.
274 (10)
275 (f)1. For purposes of this section, any Florida not-for
276 profit college or university that owns or operates an accredited
277 medical school or any of its employees or agents that have
278 agreed in an affiliation agreement or other contract to provide
279 patient services as agents of a teaching hospital, as defined in
280 s. 408.07(45), which is owned or operated by the state, a
281 county, a municipality, a public health trust, a special taxing
282 district, any other governmental entity having health care
283 responsibilities, or a not-for-profit entity that operates such
284 facilities as an agent of that governmental entity under a lease
285 or other contract, are agents of the state and are immune from
286 liability for torts in the same manner and to the same extent as
287 a teaching hospital and its governmental owner or operator while
288 acting within the scope of and pursuant to guidelines
289 established in the contract.
290 2. The contract shall provide, to the extent permitted by
291 law, for the indemnification of the state by the agent for any
292 liability incurred up to the limits set forth in this chapter to
293 the extent caused by the negligence of the college, university,
294 or medical school or its employees or agents. As used in this
295 paragraph, the term “patient services” means any comprehensive
296 health care services, as defined in s. 641.19(4); the training
297 or supervision of medical students, interns, residents, or
298 fellows; access to or participation in medical research
299 protocols; or any related executive, managerial, or
300 administrative services provided according to an affiliation
301 agreement or other contract with the teaching hospital or its
302 governmental owner or operator. As used in this paragraph, the
303 term, “employee or agent of a college, university, or medical
304 school” means, but is not limited to, an officer, a member of
305 the faculty, a health care practitioner or licensee defined in
306 s. 456.001, or any other person who is directly or vicariously
307 liable. Such employee or agent of a college, university, or its
308 medical school is not personally liable in tort and may not be
309 named as a party defendant in any action arising from the
310 provision of any such patient services, except as provided in
311 paragraph (9)(a).
312 3. The public teaching hospital, the medical school, or its
313 employees or agents must provide written notice to each patient,
314 or the patient’s legal representative, the receipt of which must
315 be acknowledged in writing, that the medical school and its
316 employees are agents of the state and that the exclusive remedy
317 for injury or damage suffered as a result of any act or omission
318 of the public teaching hospital, the medical school, or an
319 employee or agent of the medical school while acting within the
320 scope of her or his duties pursuant to the affiliation agreement
321 or other contract is by commencement of an action under this
322 section.
323 4. This paragraph does not make an employee providing
324 patient services an employee or agent of the state for purposes
325 of chapter 440.
326 Section 4. This act shall take effect upon becoming a law,
327 and applies to all claims accruing on or after that date.