Florida Senate - 2012                                     SB 614
       By Senator Bennett
       21-00689-12                                            2012614__
    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.
   15  Be It Enacted by the Legislature of the State of Florida:
   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 as
  162  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 apply to any cause of action accruing on or after that date.