CS/CS/CS/HB 479

1
A bill to be entitled
2An act relating to medical malpractice; creating ss.
3458.3175, 459.0066, and 466.005, F.S.; requiring the
4Department of Health to issue expert witness certificates
5to certain physicians and dentists licensed outside of the
6state; providing application and certification
7requirements; establishing application fees; providing for
8the validity and use of certifications; exempting
9physicians and dentists issued certifications from certain
10licensure and fee requirements; amending ss. 458.331,
11459.015, and 466.028, F.S.; providing additional acts that
12constitute grounds for denial of a license or disciplinary
13action to which penalties apply; providing construction
14with respect to the doctrine of incorporation by
15reference; amending ss. 458.351 and 459.026, F.S.;
16requiring the Board of Medicine and the Board of
17Osteopathic Medicine to adopt within a specified period
18certain patient forms specifying cataract surgery risks;
19specifying that an incident resulting from risks disclosed
20in the patient form is not an adverse incident; providing
21for the execution and admissibility of the patient forms
22in civil and administrative proceedings; creating a
23rebuttable presumption that a physician disclosed cataract
24surgery risks if the patient form is executed; amending s.
25627.4147, F.S.; deleting a requirement that medical
26malpractice insurance contracts contain a clause
27authorizing the insurer to make and conclude certain
28offers within policy limits over the insured's veto;
29amending s. 766.102, F.S.; defining terms; providing that
30certain insurance information is not admissible as
31evidence in medical negligence actions; establishing the
32burden of proof that a claimant must meet in certain
33damage claims against health care providers based on death
34or personal injury; requiring that certain expert
35witnesses who provide certain expert testimony meet
36certain licensure or certification requirements; excluding
37a health care provider's failure to comply with or breach
38of federal requirements from evidence in medical
39negligence cases in the state; amending s. 768.0981, F.S.;
40limiting the liability of hospitals related to certain
41medical negligence claims; providing an effective date.
42
43Be It Enacted by the Legislature of the State of Florida:
44
45     Section 1.  Section 458.3175, Florida Statutes, is created
46to read:
47     458.3175  Expert witness certificate.-
48     (1)(a)  The department shall issue a certificate
49authorizing a physician who holds an active and valid license to
50practice medicine in another state or a province of Canada to
51provide expert testimony in this state, if the physician submits
52to the department:
53     1.  A complete registration application containing the
54physician's legal name, mailing address, telephone number,
55business locations, the names of the jurisdictions where the
56physician holds an active and valid license to practice
57medicine, and the license number or other identifying number
58issued to the physician by the jurisdiction's licensing entity;
59and
60     2.  An application fee of $50.
61     (b)  The department shall approve an application for an
62expert witness certificate within 7 business days after receipt
63of the completed application and payment of the application fee
64if the applicant holds an active and valid license to practice
65medicine in another state or a province of Canada and has not
66had a previous expert witness certificate revoked by the board.
67An application is approved by default if the department does not
68act upon the application within the required period. A physician
69must notify the department in writing of his or her intent to
70rely on a certificate approved by default.
71     (c)  An expert witness certificate is valid for 2 years
72after the date of issuance.
73     (2)  An expert witness certificate authorizes the physician
74to whom the certificate is issued to do only the following:
75     (a)  Provide a verified written medical expert opinion as
76provided in s. 766.203.
77     (b)  Provide expert testimony about the prevailing
78professional standard of care in connection with medical
79negligence litigation pending in this state against a physician
80licensed under this chapter or chapter 459.
81     (3)  An expert witness certificate does not authorize a
82physician to engage in the practice of medicine as defined in s.
83458.305. A physician issued a certificate under this section who
84does not otherwise practice medicine in this state is not
85required to obtain a license under this chapter or pay any
86license fees, including, but not limited to, a neurological
87injury compensation assessment. An expert witness certificate
88shall be treated as a license in any disciplinary action, and
89the holder of an expert witness certificate shall be subject to
90discipline by the board.
91     Section 2.  Subsection (11) is added to section 458.331,
92Florida Statutes, paragraphs (oo) through (qq) of subsection (1)
93of that section are redesignated as paragraphs (pp) through
94(rr), respectively, and a new paragraph (oo) is added to that
95subsection, to read:
96     458.331  Grounds for disciplinary action; action by the
97board and department.-
98     (1)  The following acts constitute grounds for denial of a
99license or disciplinary action, as specified in s. 456.072(2):
100     (oo)  Providing misleading, deceptive, or fraudulent expert
101witness testimony related to the practice of medicine.
102     (11)  The purpose of this section is to facilitate uniform
103discipline for those acts made punishable under this section
104and, to this end, a reference to this section constitutes a
105general reference under the doctrine of incorporation by
106reference.
107     Section 3.  Subsection (6) of section 458.351, Florida
108Statutes, is renumbered as subsection (7), and a new subsection
109(6) is added to that section to read:
110     458.351  Reports of adverse incidents in office practice
111settings.-
112     (6)(a)  The board shall adopt rules establishing a standard
113informed consent form that sets forth the recognized specific
114risks related to cataract surgery. The board must propose such
115rules within 90 days after the effective date of this
116subsection.
117     (b)  Before formally proposing the rule, the board must
118consider information from physicians licensed under this chapter
119or chapter 459 regarding recognized specific risks related to
120cataract surgery and the standard informed consent forms adopted
121for use in the medical field by other states.
122     (c)  A patient's informed consent is not executed until the
123patient, or a person authorized by the patient to give consent,
124and a competent witness sign the form adopted by the board.
125     (d)  An incident resulting from recognized specific risks
126described in the signed consent form is not considered an
127adverse incident for purposes of s. 395.0197 and this section.
128     (e)  In a civil action or administrative proceeding against
129a physician based on his or her alleged failure to properly
130disclose the risks of cataract surgery, a patient's informed
131consent executed as provided in paragraph (c) on the form
132adopted by the board is admissible as evidence and creates a
133rebuttable presumption that the physician properly disclosed the
134risks.
135     Section 4.  Section 459.0066, Florida Statutes, is created
136to read:
137     459.0066  Expert witness certificate.-
138     (1)(a)  The department shall issue a certificate
139authorizing a physician who holds an active and valid license to
140practice osteopathic medicine in another state or a province of
141Canada to provide expert testimony in this state, if the
142physician submits to the department:
143     1.  A complete registration application containing the
144physician's legal name, mailing address, telephone number,
145business locations, the names of the jurisdictions where the
146physician holds an active and valid license to practice
147osteopathic medicine, and the license number or other
148identifying number issued to the physician by the jurisdiction's
149licensing entity; and
150     2.  An application fee of $50.
151     (b)  The department shall approve an application for an
152expert witness certificate within 7 business days after receipt
153of the completed application and payment of the application fee
154if the applicant holds an active and valid license to practice
155osteopathic medicine in another state or a province of Canada
156and has not had a previous expert witness certificate revoked by
157the board. An application is approved by default if the
158department does not act upon the application within the required
159period. A physician must notify the department in writing of his
160or her intent to rely on a certificate approved by default.
161     (c)  An expert witness certificate is valid for 2 years
162after the date of issuance.
163     (2)  An expert witness certificate authorizes the physician
164to whom the certificate is issued to do only the following:
165     (a)  Provide a verified written medical expert opinion as
166provided in s. 766.203.
167     (b)  Provide expert testimony about the prevailing
168professional standard of care in connection with medical
169negligence litigation pending in this state against a physician
170licensed under chapter 458 or this chapter.
171     (3)  An expert witness certificate does not authorize a
172physician to engage in the practice of osteopathic medicine as
173defined in s. 459.003. A physician issued a certificate under
174this section who does not otherwise practice osteopathic
175medicine in this state is not required to obtain a license under
176this chapter or pay any license fees, including, but not limited
177to, a neurological injury compensation assessment. An expert
178witness certificate shall be treated as a license in any
179disciplinary action, and the holder of an expert witness
180certificate shall be subject to discipline by the board.
181     Section 5.  Subsection (11) is added to section 459.015,
182Florida Statutes, paragraphs (qq) through (ss) of subsection (1)
183of that section are redesignated as paragraphs (rr) through
184(tt), respectively, and a new paragraph (qq) is added to that
185subsection, to read:
186     459.015  Grounds for disciplinary action; action by the
187board and department.-
188     (1)  The following acts constitute grounds for denial of a
189license or disciplinary action, as specified in s. 456.072(2):
190     (qq)  Providing misleading, deceptive, or fraudulent expert
191witness testimony related to the practice of osteopathic
192medicine.
193     (11)  The purpose of this section is to facilitate uniform
194discipline for those acts made punishable under this section
195and, to this end, a reference to this section constitutes a
196general reference under the doctrine of incorporation by
197reference.
198     Section 6.  Section 466.005, Florida Statutes, is created
199to read:
200     466.005  Expert witness certificate.-
201     (1)(a)  The department shall issue a certificate
202authorizing a dentist who holds an active and valid license to
203practice dentistry in another state or a province of Canada to
204provide expert testimony in this state, if the dentist submits
205to the department:
206     1.  A complete registration application containing the
207dentist's legal name, mailing address, telephone number,
208business locations, the names of the jurisdictions where the
209dentist holds an active and valid license to practice dentistry,
210and the license number or other identifying number issued to the
211dentist by the jurisdiction's licensing entity; and
212     2.  An application fee of $50.
213     (b)  The department shall approve an application for an
214expert witness certificate within 7 business days after receipt
215of the completed application and payment of the application fee
216if the applicant holds an active and valid license to practice
217dentistry in another state or a province of Canada and has not
218had a previous expert witness certificate revoked by the board.
219An application is approved by default if the department does not
220act upon the application within the required period. A dentist
221must notify the department in writing of his or her intent to
222rely on a certificate approved by default.
223     (c)  An expert witness certificate is valid for 2 years
224after the date of issuance.
225     (2)  An expert witness certificate authorizes the dentist
226to whom the certificate is issued to do only the following:
227     (a)  Provide a verified written medical expert opinion as
228provided in s. 766.203.
229     (b)  Provide expert testimony about the prevailing
230professional standard of care in connection with medical
231negligence litigation pending in this state against a dentist
232licensed under this chapter.
233     (3)  An expert witness certificate does not authorize a
234dentist to engage in the practice of dentistry as defined in s.
235466.003. A dentist issued a certificate under this section who
236does not otherwise practice dentistry in this state is not
237required to obtain a license under this chapter or pay any
238license fees. An expert witness certificate shall be treated as
239a license in any disciplinary action, and the holder of an
240expert witness certificate shall be subject to discipline by the
241board.
242     Section 7.  Subsection (8) is added to section 466.028,
243Florida Statutes, paragraph (ll) of subsection (1) of that
244section is redesignated as paragraph (mm), and a new paragraph
245(ll) is added to that subsection, to read:
246     466.028  Grounds for disciplinary action; action by the
247board.-
248     (1)  The following acts constitute grounds for denial of a
249license or disciplinary action, as specified in s. 456.072(2):
250     (ll)  Providing misleading, deceptive, or fraudulent expert
251witness testimony related to the practice of dentistry.
252     (8)  The purpose of this section is to facilitate uniform
253discipline for those acts made punishable under this section
254and, to this end, a reference to this section constitutes a
255general reference under the doctrine of incorporation by
256reference.
257     Section 8.  Subsection (6) of section 459.026, Florida
258Statutes, is renumbered as subsection (7), and a new subsection
259(6) is added to that section to read:
260     459.026  Reports of adverse incidents in office practice
261settings.-
262     (6)(a)  The board shall adopt rules establishing a standard
263informed consent form that sets forth the recognized specific
264risks related to cataract surgery. The board must propose such
265rules within 90 days after the effective date of this
266subsection.
267     (b)  Before formally proposing the rule, the board must
268consider information from physicians licensed under chapter 458
269or this chapter regarding recognized specific risks related to
270cataract surgery and the standard informed consent forms adopted
271for use in the medical field by other states.
272     (c)  A patient's informed consent is not executed until the
273patient, or a person authorized by the patient to give consent,
274and a competent witness sign the form adopted by the board.
275     (d)  An incident resulting from recognized specific risks
276described in the signed consent form is not considered an
277adverse incident for purposes of s. 395.0197 and this section.
278     (e)  In a civil action or administrative proceeding against
279a physician based on his or her alleged failure to properly
280disclose the risks of cataract surgery, a patient's informed
281consent executed as provided in paragraph (c) on the form
282adopted by the board is admissible as evidence and creates a
283rebuttable presumption that the physician properly disclosed the
284risks.
285     Section 9.  Paragraph (b) of subsection (1) of section
286627.4147, Florida Statutes, is amended to read:
287     627.4147  Medical malpractice insurance contracts.-
288     (1)  In addition to any other requirements imposed by law,
289each self-insurance policy as authorized under s. 627.357 or s.
290624.462 or insurance policy providing coverage for claims
291arising out of the rendering of, or the failure to render,
292medical care or services, including those of the Florida Medical
293Malpractice Joint Underwriting Association, shall include:
294     (b)1.  Except as provided in subparagraph 2., a clause
295authorizing the insurer or self-insurer to determine, to make,
296and to conclude, without the permission of the insured, any
297offer of admission of liability and for arbitration pursuant to
298s. 766.106, settlement offer, or offer of judgment, if the offer
299is within the policy limits. It is against public policy for any
300insurance or self-insurance policy to contain a clause giving
301the insured the exclusive right to veto any offer for admission
302of liability and for arbitration made pursuant to s. 766.106,
303settlement offer, or offer of judgment, when such offer is
304within the policy limits. However, any offer of admission of
305liability, settlement offer, or offer of judgment made by an
306insurer or self-insurer shall be made in good faith and in the
307best interests of the insured.
308     2.a.  With respect to dentists licensed under chapter 466,
309A clause clearly stating whether or not the insured has the
310exclusive right to veto any offer of admission of liability and
311for arbitration pursuant to s. 766.106, settlement offer, or
312offer of judgment if the offer is within policy limits. An
313insurer or self-insurer shall not make or conclude, without the
314permission of the insured, any offer of admission of liability
315and for arbitration pursuant to s. 766.106, settlement offer, or
316offer of judgment, if such offer is outside the policy limits.
317However, any offer for admission of liability and for
318arbitration made under s. 766.106, settlement offer, or offer of
319judgment made by an insurer or self-insurer shall be made in
320good faith and in the best interest of the insured.
321     2.b.  If the policy contains a clause stating the insured
322does not have the exclusive right to veto any offer or admission
323of liability and for arbitration made pursuant to s. 766.106,
324settlement offer or offer of judgment, the insurer or self-
325insurer shall provide to the insured or the insured's legal
326representative by certified mail, return receipt requested, a
327copy of the final offer of admission of liability and for
328arbitration made pursuant to s. 766.106, settlement offer or
329offer of judgment and at the same time such offer is provided to
330the claimant. A copy of any final agreement reached between the
331insurer and claimant shall also be provided to the insurer or
332his or her legal representative by certified mail, return
333receipt requested not more than 10 days after affecting such
334agreement.
335     Section 10.  Subsections (3), (4), and (5) of section
336766.102, Florida Statutes, are amended, subsection (12) of that
337section is renumbered as subsection (14), and new subsections
338(12) and (13) are added to that section, to read:
339     766.102  Medical negligence; standards of recovery; expert
340witness.-
341     (3)(a)  As used in this subsection, the term:
342     1.  "Insurer" means any public or private insurer,
343including the Centers for Medicare and Medicaid Services.
344     2.  "Reimbursement determination" means an insurer's
345determination of the amount that the insurer will reimburse a
346health care provider for health care services.
347     3.  "Reimbursement policies" means an insurer's policies
348and procedures governing its decisions regarding health
349insurance coverage and method of payment and the data upon which
350such policies and procedures are based, including, but not
351limited to, data from national research groups and other patient
352safety data as defined in s. 766.1016.
353     (b)  The existence of a medical injury does shall not
354create any inference or presumption of negligence against a
355health care provider, and the claimant must maintain the burden
356of proving that an injury was proximately caused by a breach of
357the prevailing professional standard of care by the health care
358provider. Any records, policies, or testimony of an insurer's
359reimbursement policies or reimbursement determination regarding
360the care provided to the plaintiff are not admissible as
361evidence in any medical negligence action. However, the
362discovery of the presence of a foreign body, such as a sponge,
363clamp, forceps, surgical needle, or other paraphernalia commonly
364used in surgical, examination, or diagnostic procedures, shall
365be prima facie evidence of negligence on the part of the health
366care provider.
367     (4)(a)  The Legislature is cognizant of the changing trends
368and techniques for the delivery of health care in this state and
369the discretion that is inherent in the diagnosis, care, and
370treatment of patients by different health care providers. The
371failure of a health care provider to order, perform, or
372administer supplemental diagnostic tests is shall not be
373actionable if the health care provider acted in good faith and
374with due regard for the prevailing professional standard of
375care.
376     (b)  In an action for damages based on death or personal
377injury which alleges that such death or injury resulted from the
378failure of a health care provider to order, perform, or
379administer supplemental diagnostic tests, the claimant has the
380burden of proving by clear and convincing evidence that the
381alleged actions of the health care provider represented a breach
382of the prevailing professional standard of care.
383     (5)  A person may not give expert testimony concerning the
384prevailing professional standard of care unless the that person
385is a licensed health care provider who holds an active and valid
386license and conducts a complete review of the pertinent medical
387records and meets the following criteria:
388     (a)  If the health care provider against whom or on whose
389behalf the testimony is offered is a specialist, the expert
390witness must:
391     1.  Specialize in the same specialty as the health care
392provider against whom or on whose behalf the testimony is
393offered; or specialize in a similar specialty that includes the
394evaluation, diagnosis, or treatment of the medical condition
395that is the subject of the claim and have prior experience
396treating similar patients; and
397     2.  Have devoted professional time during the 3 years
398immediately preceding the date of the occurrence that is the
399basis for the action to:
400     a.  The active clinical practice of, or consulting with
401respect to, the same or similar specialty that includes the
402evaluation, diagnosis, or treatment of the medical condition
403that is the subject of the claim and have prior experience
404treating similar patients;
405     b.  Instruction of students in an accredited health
406professional school or accredited residency or clinical research
407program in the same or similar specialty; or
408     c.  A clinical research program that is affiliated with an
409accredited health professional school or accredited residency or
410clinical research program in the same or similar specialty.
411     (b)  If the health care provider against whom or on whose
412behalf the testimony is offered is a general practitioner, the
413expert witness must have devoted professional time during the 5
414years immediately preceding the date of the occurrence that is
415the basis for the action to:
416     1.  The active clinical practice or consultation as a
417general practitioner;
418     2.  The instruction of students in an accredited health
419professional school or accredited residency program in the
420general practice of medicine; or
421     3.  A clinical research program that is affiliated with an
422accredited medical school or teaching hospital and that is in
423the general practice of medicine.
424     (c)  If the health care provider against whom or on whose
425behalf the testimony is offered is a health care provider other
426than a specialist or a general practitioner, the expert witness
427must have devoted professional time during the 3 years
428immediately preceding the date of the occurrence that is the
429basis for the action to:
430     1.  The active clinical practice of, or consulting with
431respect to, the same or similar health profession as the health
432care provider against whom or on whose behalf the testimony is
433offered;
434     2.  The instruction of students in an accredited health
435professional school or accredited residency program in the same
436or similar health profession in which the health care provider
437against whom or on whose behalf the testimony is offered; or
438     3.  A clinical research program that is affiliated with an
439accredited medical school or teaching hospital and that is in
440the same or similar health profession as the health care
441provider against whom or on whose behalf the testimony is
442offered.
443     (12)  If a physician licensed under chapter 458 or chapter
444459 or a dentist licensed under chapter 466 is the party against
445whom, or on whose behalf, expert testimony about the prevailing
446professional standard of care is offered, the expert witness
447must be licensed under chapter 458, chapter 459, or chapter 466
448or possess a valid expert witness certificate issued under s.
449458.3175, s. 459.0066, or s. 466.005.
450     (13)  A health care provider's failure to comply with or
451breach of any federal requirement is not admissible as evidence
452in any medical negligence case in this state.
453     Section 11.  Section 768.0981, Florida Statutes, is amended
454to read:
455     768.0981  Limitation on actions against insurers, prepaid
456limited health service organizations, health maintenance
457organizations, hospitals, or prepaid health clinics.-An entity
458licensed or certified under chapter 395, chapter 624, chapter
459636, or chapter 641 is shall not be liable for the medical
460negligence of a health care provider with whom the licensed or
461certified entity has entered into a contract, other than an
462employee of such licensed or certified entity, unless the
463licensed or certified entity expressly directs or exercises
464actual control over the specific conduct that caused injury.
465     Section 12.  This act shall take effect July 1, 2011.


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