Florida Senate - 2014 SB 1128 By Senator Richter 23-00729B-14 20141128__ 1 A bill to be entitled 2 An act relating to damages in negligence actions; 3 creating s. 768.755, F.S.; providing that a claimant 4 in certain negligence actions may recover damages for 5 the cost of medical or health care services only if 6 such services are medically necessary; providing a 7 methodology to calculate an award of damages for the 8 cost of such medical or health care services; 9 specifying evidence that is admissible and 10 inadmissible in determining the award of damages; 11 requiring an alternative calculation of damages if 12 certain insurers file a lien or subrogation claim in 13 the action; prohibiting the use of a finding of 14 medical necessity for certain purposes; providing 15 applicability; providing a directive to the Division 16 of Law Revision and Information; providing an 17 effective date. 18 19 Be It Enacted by the Legislature of the State of Florida: 20 21 Section 1. Section 768.755, Florida Statutes, is created to 22 read: 23 768.755 Damages recoverable for cost of medical or health 24 care services; evidence of amount of damages; applicability.— 25 (1) In any personal injury or wrongful death action to 26 which this part applies, damages for the cost of medical or 27 health care services provided to a claimant may be recovered 28 only for medical or health care services that are determined, by 29 a preponderance of the evidence, to be medically necessary. A 30 defendant is not liable for damages arising from or related to 31 the rendering of medical or health care services determined to 32 be medically unnecessary. The award of damages shall be 33 calculated as follows: 34 (a) For such medical or health care services provided to 35 the claimant which are paid for by the claimant and for which an 36 outstanding balance is not due the provider, the actual amount 37 remitted to the provider is the maximum amount recoverable. Any 38 difference between the amount originally billed by the provider 39 and the actual amount remitted to the provider is not 40 recoverable or admissible into evidence. 41 (b) For such medical or health care services provided to 42 the claimant which are paid for by a governmental or commercial 43 insurance payor and for which an outstanding balance is not due 44 the provider, other than a copay or deductible owed by the 45 claimant, the actual amount remitted to the provider by the 46 governmental or commercial insurance payor and any copay or 47 deductible owed by the claimant is the maximum amount 48 recoverable. Any difference between the amount originally billed 49 by the provider and the actual amount remitted to the provider 50 or due from the claimant for a copay or deductible is not 51 recoverable or admissible into evidence. 52 (c) For such medical or health care services provided to 53 the claimant for which an outstanding balance is claimed to be 54 due the provider, the parties may introduce into evidence: 55 1. The usual and customary charges of providers in the same 56 geographic area for identical or substantially similar medical 57 or health care services; 58 2. Amounts billed by the provider for the services provided 59 to the claimant, including those amounts billed under an 60 agreement between the provider and the claimant or the 61 claimant’s representative; 62 3. Amounts the provider received in compensation, if any, 63 for the sale of the agreement between the provider and the 64 claimant or the claimant’s representative under which the 65 medical or health care services were provided to the claimant; 66 and 67 4. Other relevant evidence. 68 (2) Individual contracts between providers and licensed 69 commercial insurers or licensed health maintenance 70 organizations, other than those applicable to the claimant, are 71 not subject to discovery or disclosure in any action under this 72 part, nor is such information admissible into evidence in any 73 action to which this section applies. This subsection also 74 applies to any lien or subrogation claim asserted for the cost 75 of medical or health care services in the action, except for a 76 lien or subrogation claim described in subsection (3). 77 (3) Notwithstanding any provision of this section to the 78 contrary, if Medicaid, Medicare, or a payor regulated under the 79 Florida Insurance Code has covered or is covering the cost of a 80 claimant’s medical or health care services and has given notice 81 of assertion of a lien or subrogation claim for past medical 82 expenses in the action, the amount of the lien or subrogation 83 claim, in addition to the amount of any copayments or 84 deductibles paid or payable by the claimant, is the maximum 85 amount recoverable and admissible into evidence with respect to 86 the covered services. 87 (4) This section applies only to those actions for personal 88 injury or wrongful death to which this part applies arising on 89 or after the effective date of this act and has no other 90 application or effect regarding compensation paid to providers 91 of medical or health care services. A determination as to 92 medical necessity under this section may not be used by any 93 person in an effort or action to recoup or recover payment made 94 by a payor to a provider for medical or health care services or 95 in any malpractice, disciplinary, or regulatory action or other 96 proceeding against the provider. 97 Section 2. The Division of Law Revision and Information is 98 directed to replace the phrase “the effective date of this act” 99 wherever it occurs in s. 768.755, Florida Statutes, with the 100 date this act becomes a law. 101 Section 3. This act shall take effect upon becoming a law.