1 | A bill to be entitled |
2 | An act relating to sovereign immunity; providing |
3 | legislative findings and intent; amending s. 768.28, |
4 | F.S.; providing sovereign immunity to emergency health |
5 | care providers acting pursuant to obligations imposed |
6 | by specified statutes; providing an exception; |
7 | providing that emergency health care providers are |
8 | agents of the state and requiring them to indemnify |
9 | the state up to the specified liability limits; |
10 | providing for sanctions against emergency health care |
11 | providers who fail to comply with indemnification |
12 | obligations; providing definitions; providing |
13 | applicability; providing an effective date. |
14 |
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15 | Be It Enacted by the Legislature of the State of Florida: |
16 |
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17 | Section 1. Legislative findings and intent.- |
18 | (1) The Legislature finds and declares it to be of vital |
19 | importance that emergency services and care be provided by |
20 | hospitals, physicians, and emergency medical services providers |
21 | to every person in need of such care. The Legislature finds that |
22 | providers of emergency services and care are critical elements |
23 | in responding to disaster and emergency situations that may |
24 | affect local communities, the state, and the country. The |
25 | Legislature recognizes the importance of maintaining a viable |
26 | system of providing for the emergency medical needs of the |
27 | state's residents and visitors. The Legislature and the Federal |
28 | Government have required such providers of emergency medical |
29 | services and care to provide emergency services and care to all |
30 | persons who present themselves to hospitals seeking such care. |
31 | (2) The Legislature has further mandated that emergency |
32 | medical treatment may not be denied by emergency medical |
33 | services providers to persons who have or are likely to have an |
34 | emergency medical condition. Such governmental requirements have |
35 | imposed a unilateral obligation for providers of emergency |
36 | services and care to provide services to all persons seeking |
37 | emergency care without ensuring payment or other consideration |
38 | for provision of such care. The Legislature also recognizes that |
39 | providers of emergency services and care provide a significant |
40 | amount of uncompensated emergency medical care in furtherance of |
41 | such governmental interest. |
42 | (3) The Legislature finds that a significant proportion of |
43 | the residents of this state who are uninsured or are Medicaid or |
44 | Medicare recipients are unable to access needed health care on |
45 | an elective basis because health care providers fear the |
46 | increased risk of medical malpractice liability. The Legislature |
47 | finds that such patients, in order to obtain medical care, are |
48 | frequently forced to seek care through providers of emergency |
49 | medical services and care. |
50 | (4) The Legislature finds that providers of emergency |
51 | medical services and care in this state have reported |
52 | significant problems with respect to the affordability of |
53 | professional liability insurance, which is more expensive in |
54 | this state than the national average. The Legislature further |
55 | finds that a significant number of specialist physicians have |
56 | resigned from serving on hospital staffs or have otherwise |
57 | declined to provide on-call coverage to hospital emergency |
58 | departments due to the increased exposure to medical malpractice |
59 | liability created by treating such emergency department |
60 | patients, thereby creating a void that has an adverse effect on |
61 | emergency patient care. |
62 | (5) It is the intent of the Legislature that hospitals, |
63 | emergency medical services providers, and physicians be able to |
64 | ensure that patients who may need emergency medical treatment |
65 | and who present themselves to hospitals for emergency medical |
66 | services and care have access to such needed services. |
67 | Section 2. Subsection (9) of section 768.28, Florida |
68 | Statutes, is amended to read: |
69 | 768.28 Waiver of sovereign immunity in tort actions; |
70 | recovery limits; limitation on attorney fees; statute of |
71 | limitations; exclusions; indemnification; risk management |
72 | programs.- |
73 | (9)(a) No officer, employee, or agent of the state or of |
74 | any of its subdivisions shall be held personally liable in tort |
75 | or named as a party defendant in any action for any injury or |
76 | damage suffered as a result of any act, event, or omission of |
77 | action in the scope of her or his employment or function, unless |
78 | such officer, employee, or agent acted in bad faith or with |
79 | malicious purpose or in a manner exhibiting wanton and willful |
80 | disregard of human rights, safety, or property. However, such |
81 | officer, employee, or agent shall be considered an adverse |
82 | witness in a tort action for any injury or damage suffered as a |
83 | result of any act, event, or omission of action in the scope of |
84 | her or his employment or function. The exclusive remedy for |
85 | injury or damage suffered as a result of an act, event, or |
86 | omission of an officer, employee, or agent of the state or any |
87 | of its subdivisions or constitutional officers shall be by |
88 | action against the governmental entity, or the head of such |
89 | entity in her or his official capacity, or the constitutional |
90 | officer of which the officer, employee, or agent is an employee, |
91 | unless such act or omission was committed in bad faith or with |
92 | malicious purpose or in a manner exhibiting wanton and willful |
93 | disregard of human rights, safety, or property. The state or its |
94 | subdivisions shall not be liable in tort for the acts or |
95 | omissions of an officer, employee, or agent committed while |
96 | acting outside the course and scope of her or his employment or |
97 | committed in bad faith or with malicious purpose or in a manner |
98 | exhibiting wanton and willful disregard of human rights, safety, |
99 | or property. |
100 | (b) As used in this subsection, the term: |
101 | 1. "Employee" includes any volunteer firefighter. |
102 | 2. "Officer, employee, or agent" includes, but is not |
103 | limited to:, |
104 | a. Any health care provider when providing services |
105 | pursuant to s. 766.1115; any member of the Florida Health |
106 | Services Corps, as defined in s. 381.0302, who provides |
107 | uncompensated care to medically indigent persons referred by the |
108 | Department of Health; any nonprofit independent college or |
109 | university located and chartered in this state which owns or |
110 | operates an accredited medical school, and its employees or |
111 | agents, when providing patient services pursuant to paragraph |
112 | (10)(f); and any public defender or her or his employee or |
113 | agent, including, among others, an assistant public defender and |
114 | an investigator. |
115 | b. Any emergency health care provider acting pursuant to |
116 | obligations imposed by s. 395.1041 or s. 401.45, except for |
117 | persons or entities that are otherwise covered under this |
118 | section. |
119 | (c)1. Emergency health care providers are agents of the |
120 | state and shall indemnify the state for any judgments, |
121 | settlement costs, or other liabilities incurred, only up to the |
122 | liability limits in subsection (5). |
123 | 2. Any emergency health care provider who is licensed by |
124 | the state and who fails to indemnify the state after reasonable |
125 | notice and written demand to do so is subject to an emergency |
126 | suspension order of the regulating authority having jurisdiction |
127 | over the licensee. |
128 | 3. The Department of Health shall issue an emergency order |
129 | suspending the license of any licensee under its jurisdiction or |
130 | any licensee of a regulatory board within the Department of |
131 | Health who fails to comply within 30 days after receipt by the |
132 | department of a notice from the Division of Risk Management of |
133 | the Department of Financial Services that the licensee has |
134 | failed to satisfy her or his obligation to indemnify the state |
135 | or enter into a repayment agreement with the state for costs |
136 | under this subsection. The terms of such agreement must provide |
137 | assurance of repayment of the obligation which is satisfactory |
138 | to the state. For licensees within the Division of Medical |
139 | Quality Assurance of the Department of Health, failure to comply |
140 | with this paragraph constitutes grounds for disciplinary action |
141 | under each respective practice act and under s. 456.072(l)(k). |
142 | 4. As used in this subsection, the term: |
143 | a. "Emergency health care provider" means a physician |
144 | licensed under chapter 458 or chapter 459. |
145 | b. "Emergency medical services" means all screenings, |
146 | examinations, and evaluations by a physician, hospital, or other |
147 | person or entity acting pursuant to obligations imposed by s. |
148 | 395.1041 or s. 401.45, and the care, treatment, surgery, or |
149 | other medical services provided to relieve or eliminate the |
150 | emergency medical condition, including all medical services to |
151 | eliminate the likelihood that the emergency medical condition |
152 | will deteriorate or recur without further medical attention |
153 | within a reasonable period of time. |
154 | (d)(c) For purposes of the waiver of sovereign immunity |
155 | only, a member of the Florida National Guard is not acting |
156 | within the scope of state employment when performing duty under |
157 | the provisions of Title 10 or Title 32 of the United States Code |
158 | or other applicable federal law; and neither the state nor any |
159 | individual may be named in any action under this chapter arising |
160 | from the performance of such federal duty. |
161 | (e)(d) The employing agency of a law enforcement officer |
162 | as defined in s. 943.10 is not liable for injury, death, or |
163 | property damage effected or caused by a person fleeing from a |
164 | law enforcement officer in a motor vehicle if: |
165 | 1. The pursuit is conducted in a manner that does not |
166 | involve conduct by the officer which is so reckless or wanting |
167 | in care as to constitute disregard of human life, human rights, |
168 | safety, or the property of another; |
169 | 2. At the time the law enforcement officer initiates the |
170 | pursuit, the officer reasonably believes that the person fleeing |
171 | has committed a forcible felony as defined in s. 776.08; and |
172 | 3. The pursuit is conducted by the officer pursuant to a |
173 | written policy governing high-speed pursuit adopted by the |
174 | employing agency. The policy must contain specific procedures |
175 | concerning the proper method to initiate and terminate high- |
176 | speed pursuit. The law enforcement officer must have received |
177 | instructional training from the employing agency on the written |
178 | policy governing high-speed pursuit. |
179 | Section 3. This act shall take effect upon becoming a law, |
180 | and shall apply to any cause of action accruing on or after that |
181 | date. |