CS/CS/HB 479

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

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