Florida Senate - 2024                        COMMITTEE AMENDMENT
       Bill No. SB 248
       
       
       
       
       
       
                                Ì932842*Î932842                         
       
                              LEGISLATIVE ACTION                        
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       The Committee on Judiciary (Yarborough) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (9) of section 400.023, Florida
    6  Statutes, is amended to read:
    7         400.023 Civil enforcement.—
    8         (9) An action under this part for a violation of rights or
    9  negligence recognized herein is not a claim for medical
   10  malpractice, and s. 768.21(8) does not apply to a claim alleging
   11  death of the resident.
   12         Section 2. Section 400.0235, Florida Statutes, is amended
   13  to read:
   14         400.0235 Certain provisions not applicable to actions under
   15  this part.—An action under this part for a violation of rights
   16  or negligence recognized under this part is not a claim for
   17  medical malpractice, and the provisions of s. 768.21(8) do not
   18  apply to a claim alleging death of the resident.
   19         Section 3. Section 429.295, Florida Statutes, is amended to
   20  read:
   21         429.295 Certain provisions not applicable to actions under
   22  this part.—An action under this part for a violation of rights
   23  or negligence recognized herein is not a claim for medical
   24  malpractice, and the provisions of s. 768.21(8) do not apply to
   25  a claim alleging death of the resident.
   26         Section 4. Section 766.118, Florida Statutes, is amended to
   27  read:
   28         766.118 Determination of noneconomic damages.—
   29         (1) DEFINITIONS.—As used in this section, the term:
   30         (a) “Catastrophic injury” means a permanent impairment
   31  constituted by:
   32         1. Spinal cord injury involving severe paralysis of an arm,
   33  a leg, or the trunk;
   34         2. Amputation of an arm, a hand, a foot, or a leg involving
   35  the effective loss of use of that appendage;
   36         3. Severe brain or closed-head injury as evidenced by:
   37         a. Severe sensory or motor disturbances;
   38         b. Severe communication disturbances;
   39         c. Severe complex integrated disturbances of cerebral
   40  function;
   41         d. Severe episodic neurological disorders; or
   42         e. Other severe brain and closed-head injury conditions at
   43  least as severe in nature as any condition provided in sub
   44  subparagraphs a.-d.;
   45         4. Second-degree or third-degree burns of 25 percent or
   46  more of the total body surface or third-degree burns of 5
   47  percent or more to the face and hands;
   48         5. Blindness, defined as a complete and total loss of
   49  vision; or
   50         6. Loss of reproductive organs which results in an
   51  inability to procreate.
   52         (b) “Noneconomic damages” means noneconomic damages as
   53  defined in s. 766.202(8).
   54         (b)(c) “Practitioner” means any person licensed under
   55  chapter 458, chapter 459, chapter 460, chapter 461, chapter 462,
   56  chapter 463, chapter 466, chapter 467, chapter 486, or s.
   57  464.012 or registered under s. 464.0123. “Practitioner” also
   58  means any association, corporation, firm, partnership, or other
   59  business entity under which such practitioner practices or any
   60  employee of such practitioner or entity acting in the scope of
   61  his or her employment. For the purpose of determining the
   62  limitations on noneconomic damages set forth in this section,
   63  the term “practitioner” includes any person or entity for whom a
   64  practitioner is vicariously liable and any person or entity
   65  whose liability is based solely on such person or entity being
   66  vicariously liable for the actions of a practitioner.
   67         (2) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A
   68  PRACTITIONER PRACTITIONERS.—
   69         (a) With respect to a cause of action for personal injury
   70  or wrongful death arising from medical negligence of a
   71  practitioner practitioners, regardless of the number of such
   72  practitioner defendants, noneconomic damages may shall not
   73  exceed $500,000 per claimant. No practitioner shall be liable
   74  for more than $500,000 in noneconomic damages, regardless of the
   75  number of practitioners who are liable for a claimant’s damages
   76  claimants.
   77         (b) Notwithstanding paragraph (a), if the negligence
   78  resulted in a permanent vegetative state or death, the total
   79  noneconomic damages recoverable from all practitioners,
   80  regardless of the number of claimants, under this paragraph
   81  shall not exceed $1 million. In cases that do not involve death
   82  or permanent vegetative state, the patient injured by medical
   83  negligence may recover noneconomic damages not to exceed $1
   84  million if:
   85         1. The trial court determines that a manifest injustice
   86  would occur unless increased noneconomic damages are awarded,
   87  based on a finding that because of the special circumstances of
   88  the case, the noneconomic harm sustained by the injured patient
   89  was particularly severe; and
   90         2. The trier of fact determines that the defendant’s
   91  negligence caused a catastrophic injury to the patient.
   92         (c) The total noneconomic damages recoverable by all
   93  claimants from all practitioner defendants under this subsection
   94  shall not exceed $1 million in the aggregate.
   95         (3) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A
   96  NONPRACTITIONER DEFENDANTS.—
   97         (a) With respect to a cause of action for personal injury
   98  or wrongful death arising from medical negligence of a
   99  nonpractitioner nonpractitioners, regardless of the number of
  100  such nonpractitioner defendants, noneconomic damages may shall
  101  not exceed $750,000 per claimant, regardless of the number of
  102  nonpractitioners who are liable for a claimant’s damages.
  103         (b) Notwithstanding paragraph (a), if the negligence
  104  resulted in a permanent vegetative state or death, the total
  105  noneconomic damages recoverable by such claimant from all
  106  nonpractitioner defendants under this paragraph shall not exceed
  107  $1.5 million. The patient injured by medical negligence of a
  108  nonpractitioner defendant may recover noneconomic damages not to
  109  exceed $1.5 million if:
  110         1. The trial court determines that a manifest injustice
  111  would occur unless increased noneconomic damages are awarded,
  112  based on a finding that because of the special circumstances of
  113  the case, the noneconomic harm sustained by the injured patient
  114  was particularly severe; and
  115         2. The trier of fact determines that the defendant’s
  116  negligence caused a catastrophic injury to the patient.
  117         (c)A nonpractitioner is defendants are subject to the cap
  118  on noneconomic damages provided in this subsection regardless of
  119  the theory of liability, including vicarious liability.
  120         (d) The total noneconomic damages recoverable by all
  121  claimants from all nonpractitioner defendants under this
  122  subsection shall not exceed $1.5 million in the aggregate.
  123         (4) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A
  124  PRACTITIONER PRACTITIONERS PROVIDING EMERGENCY SERVICES AND
  125  CARE.—Notwithstanding subsections (2) and (3), with respect to a
  126  cause of action for personal injury or wrongful death arising
  127  from medical negligence of a practitioner who provided
  128  practitioners providing emergency services and care, as defined
  129  in s. 395.002(9), or provided providing services as provided in
  130  s. 401.265, or provided providing services pursuant to
  131  obligations imposed by 42 U.S.C. s. 1395dd to a person persons
  132  with whom the practitioner did does not have a then-existing
  133  health care patient-practitioner relationship for that medical
  134  condition:
  135         (a) Regardless of the number of such practitioner
  136  defendants, noneconomic damages may shall not exceed $150,000
  137  per claimant, regardless of the number of practitioners who are
  138  liable for a claimant’s damages.
  139         (b) Notwithstanding paragraph (a), the total noneconomic
  140  damages recoverable by all claimants from all such practitioners
  141  shall not exceed $300,000. The limitation provided by this
  142  subsection applies only to noneconomic damages awarded as a
  143  result of any act or omission of providing medical care or
  144  treatment, including diagnosis that occurs prior to the time the
  145  patient is stabilized and is capable of receiving medical
  146  treatment as a nonemergency patient, unless surgery is required
  147  as a result of the emergency within a reasonable time after the
  148  patient is stabilized, in which case the limitation provided by
  149  this subsection applies to any act or omission of providing
  150  medical care or treatment which occurs prior to the
  151  stabilization of the patient following the surgery.
  152         (5) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A
  153  NONPRACTITIONER DEFENDANTS PROVIDING EMERGENCY SERVICES AND
  154  CARE.—Notwithstanding subsections (2) and (3), with respect to a
  155  cause of action for personal injury or wrongful death arising
  156  from medical negligence of a nonpractitioner defendants other
  157  than a practitioner who provided practitioners providing
  158  emergency services and care pursuant to obligations imposed by
  159  s. 395.1041 or s. 401.45, or obligations imposed by 42 U.S.C. s.
  160  1395dd to a person persons with whom the practitioner did does
  161  not have a then-existing health care patient-practitioner
  162  relationship for that medical condition:
  163         (a) Regardless of the number of such nonpractitioner
  164  defendants, Noneconomic damages may shall not exceed $750,000
  165  per claimant, regardless of the number of nonpractitioners who
  166  are liable for a claimant’s damages.
  167         (b) Notwithstanding paragraph (a), the total noneconomic
  168  damages recoverable by all claimants from all such
  169  nonpractitioner defendants shall not exceed $1.5 million.
  170         (c)A nonpractitioner defendants may receive a full setoff
  171  for payments made by a practitioner defendants.
  172  
  173  The limitation provided by this subsection applies only to
  174  noneconomic damages awarded as a result of any act or omission
  175  of providing medical care or treatment, including a diagnosis
  176  that occurs before prior to the time the patient is stabilized
  177  and is capable of receiving medical treatment as a nonemergency
  178  patient, unless surgery is required as a result of the emergency
  179  within a reasonable time after the patient is stabilized, in
  180  which case the limitation provided by this subsection applies to
  181  any act or omission of providing medical care or treatment which
  182  occurs before prior to the stabilization of the patient
  183  following the surgery.
  184         (6) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A
  185  PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID
  186  RECIPIENT.—Notwithstanding subsections (2), (3), and (5), with
  187  respect to a cause of action for personal injury or wrongful
  188  death arising from medical negligence of a practitioner
  189  committed in the course of providing medical services and
  190  medical care to a Medicaid recipient, regardless of the number
  191  of such practitioner defendants providing the services and care,
  192  noneconomic damages may not exceed $300,000 per claimant,
  193  regardless of the number of practitioners who are liable for a
  194  claimant’s damages, unless the claimant pleads and proves, by
  195  clear and convincing evidence, that the practitioner acted in a
  196  wrongful manner. A practitioner providing medical services and
  197  medical care to a Medicaid recipient is not liable for more than
  198  $200,000 in noneconomic damages, regardless of the number of
  199  claimants, unless the claimant pleads and proves, by clear and
  200  convincing evidence, that the practitioner acted in a wrongful
  201  manner. The fact that a claimant proves that a practitioner
  202  acted in a wrongful manner does not preclude the application of
  203  the limitation on noneconomic damages prescribed elsewhere in
  204  this section. For purposes of this subsection:
  205         (a) The terms “medical services,” “medical care,” and
  206  “Medicaid recipient” have the same meaning as provided in s.
  207  409.901.
  208         (b) The term “practitioner,” in addition to the meaning
  209  prescribed in subsection (1), includes any hospital or
  210  ambulatory surgical center as defined and licensed under chapter
  211  395.
  212         (c) The term “wrongful manner” means in bad faith or with
  213  malicious purpose or in a manner exhibiting wanton and willful
  214  disregard of human rights, safety, or property, and shall be
  215  construed in conformity with the standard set forth in s.
  216  768.28(9)(a).
  217         (7) SETOFF.—In any case in which the jury verdict for
  218  noneconomic damages exceeds the limits established by this
  219  section, the trial court shall reduce the award for noneconomic
  220  damages within the same category of defendants in accordance
  221  with this section after making any reduction for comparative
  222  fault as required by s. 768.81 but before application of a
  223  setoff in accordance with ss. 46.015 and 768.041. In the event
  224  of a prior settlement or settlements involving one or more
  225  defendants subject to the limitations of the same subsection
  226  applicable to a defendant remaining at trial, the court shall
  227  make such reductions within the same category of defendants as
  228  are necessary to ensure that the total amount of noneconomic
  229  damages recovered by the claimant do does not exceed the
  230  aggregate limit established by the applicable subsection. This
  231  subsection is not intended to change current law relating to the
  232  setoff of economic damages.
  233         (8) ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.—This
  234  section does shall not apply to actions governed by s. 768.28.
  235         Section 5. Subsection (8) of section 768.21, Florida
  236  Statutes, is amended, and subsections (3) and (4) of that
  237  section are republished, to read:
  238         768.21 Damages.—All potential beneficiaries of a recovery
  239  for wrongful death, including the decedent’s estate, shall be
  240  identified in the complaint, and their relationships to the
  241  decedent shall be alleged. Damages may be awarded as follows:
  242         (3) Minor children of the decedent, and all children of the
  243  decedent if there is no surviving spouse, may also recover for
  244  lost parental companionship, instruction, and guidance and for
  245  mental pain and suffering from the date of injury. For the
  246  purposes of this subsection, if both spouses die within 30 days
  247  of one another as a result of the same wrongful act or series of
  248  acts arising out of the same incident, each spouse is considered
  249  to have been predeceased by the other.
  250         (4) Each parent of a deceased minor child may also recover
  251  for mental pain and suffering from the date of injury. Each
  252  parent of an adult child may also recover for mental pain and
  253  suffering if there are no other survivors.
  254         (8)The damages specified in subsection (3) shall not be
  255  recoverable by adult children and the damages specified in
  256  subsection (4) shall not be recoverable by parents of an adult
  257  child with respect to claims for medical negligence as defined
  258  by s. 766.106(1).
  259         Section 6. (1)Every medical malpractice insurer and every
  260  medical malpractice insurer rate filing made with the Office of
  261  Insurance Regulation on or after January 1, 2025, must reflect
  262  the projected changes in claim frequency, claim severity, and
  263  loss adjustment expenses, including for attorney fees, and any
  264  other change actuarially indicated, due to the combined effect
  265  of the applicable provisions of this act in order to ensure that
  266  rates for such insurance accurately reflect the risk of
  267  providing such insurance.
  268         (2) The Office of Insurance Regulation shall consider in
  269  its review of rate filings made on or after January 1, 2025, the
  270  projected changes in costs associated with the amendments to ss.
  271  766.118 and 768.21(8), Florida Statutes, by this act. The office
  272  may develop methodology and data that incorporate generally
  273  accepted actuarial techniques and standards to be used in its
  274  review of rate filings governed by this section. The methodology
  275  must account for the expected losses, by class, of insureds
  276  covered by a medical malpractice insurance, provided the
  277  methodology is consistent with generally accepted actuarial
  278  techniques and standards. Such methodology and data are not
  279  intended to create a mandatory rate increase or decrease for all
  280  medical malpractice insurers, but rather to ensure that the
  281  rates for such coverage meet the requirements of s. 627.062,
  282  Florida Statutes, and thus, are not inadequate, excessive, or
  283  unfairly discriminatory and allow such insurers a reasonable
  284  rate of return.
  285         Section 7. (1) The Office of Program Policy Analysis and
  286  Government Accountability shall study the efficacy of the
  287  statutory caps imposed by this act on noneconomic damages in
  288  actions for personal injury or wrongful death arising from
  289  medical negligence. The office may retain experts as are
  290  reasonably necessary to complete the study. The study must
  291  include, but need not be limited to, an evaluation of the
  292  current, historical, and forecast data of the following:
  293         (a) The availability, affordability, and volatility of
  294  professional liability insurance coverage for medical
  295  negligence.
  296         (b) The per capita supply of licensed physicians in this
  297  state, including those in high-risk specialties that may
  298  include, but are not limited to, internal medicine, general
  299  surgery, and obstetrics and gynecology.
  300         (c) The extent to which physicians in this state are forced
  301  to practice medicine without professional liability insurance,
  302  leave the state, refrain from practice in high-risk specialties,
  303  or retire early from the practice of medicine.
  304         (d) Evidence of the relationship between the statutory caps
  305  and changes in the matters addressed in paragraphs (a), (b), and
  306  (c).
  307         (2) By December 31, 2029, the office shall submit a report
  308  to the Governor, the President of the Senate, and the Speaker of
  309  the House of Representatives which includes findings from its
  310  study and recommendations as to whether the statutory caps on
  311  noneconomic damages should be retained, modified, or eliminated.
  312         Section 8. For the purpose of incorporating the amendment
  313  made by this act to section 766.118, Florida Statutes, in a
  314  reference thereto, paragraph (a) of subsection (3) of section
  315  766.209, Florida Statutes, is reenacted to read:
  316         766.209 Effects of failure to offer or accept voluntary
  317  binding arbitration.—
  318         (3) If the defendant refuses a claimant’s offer of
  319  voluntary binding arbitration:
  320         (a) The claim shall proceed to trial, and the claimant,
  321  upon proving medical negligence, shall be entitled to recover
  322  damages subject to the limitations in s. 766.118, prejudgment
  323  interest, and reasonable attorney’s fees up to 25 percent of the
  324  award reduced to present value.
  325         Section 9. This act applies to causes of action that accrue
  326  on or after July 1, 2024.
  327         Section 10. This act shall take effect July 1, 2024.
  328  
  329  ================= T I T L E  A M E N D M E N T ================
  330  And the title is amended as follows:
  331         Delete everything before the enacting clause
  332  and insert:
  333                        A bill to be entitled                      
  334         An act relating to medical negligence; amending ss.
  335         400.023, 400.0235, and 429.295, F.S.; conforming
  336         provisions to changes made by the act; amending s.
  337         766.118, F.S.; deleting the definition of the term
  338         “catastrophic injury”; revising the limits on
  339         noneconomic damages for personal injury or wrongful
  340         death arising from medical negligence; making
  341         technical changes; amending s. 768.21, F.S.; deleting
  342         a provision that prohibits adult children and parents
  343         of adult children from recovering certain damages in
  344         medical negligence suits; requiring that medical
  345         malpractice insurer rate filings reflect certain
  346         changes in costs and expenses; requiring the Office of
  347         Insurance Regulation to consider such changes in its
  348         review of rate filings; authorizing the Office of
  349         Insurance Regulation to develop certain methodology
  350         and data in reviewing rate filings by medical
  351         malpractice insurers; requiring the Office of Program
  352         Policy Analysis and Government Accountability to study
  353         the efficacy of caps on noneconomic damages and to
  354         report its findings and recommendations to the
  355         Governor and the Legislature by a specified date;
  356         reenacting s. 766.209(3)(a), F.S., relating to effects
  357         of failure to offer or accept voluntary binding
  358         arbitration, to incorporate the amendment made to s.
  359         766.118, F.S., in a reference thereto; providing
  360         applicability; providing an effective date.
  361  
  362         WHEREAS, the Legislature finds that expanding the right to
  363  recover noneconomic damages for wrongful death caused by medical
  364  negligence furthers an important state interest of promoting
  365  accountability and adherence to the applicable standards of
  366  care, and
  367         WHEREAS, the Legislature further recognizes that the
  368  expansion of the right to recover damages must be balanced
  369  against the important state interests of minimizing increases in
  370  the cost of malpractice insurance and promoting the availability
  371  of quality health care services, and
  372         WHEREAS, the Legislature finds that limitations on
  373  noneconomic damages in medical negligence cases further the
  374  critical state interest in promoting the affordability and
  375  availability of health care services, and
  376         WHEREAS, the Legislature finds that the cases of Estate of
  377  McCall v. United States, 134 So. 3d 894 (Fla. 2014) and North
  378  Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017),
  379  which invalidated limits on noneconomic damages, were decided
  380  contrary to legislative intent and prior case law interpreting
  381  the equal protection clauses of the United States Constitution
  382  and the State Constitution, and
  383         WHEREAS, the cases of Estate of McCall v. United States and
  384  North Broward Hospital District v. Kalitan are inconsistent with
  385  the decisions of other courts addressing limits on damages, and
  386         WHEREAS, the Legislature finds that the state has the
  387  highest medical malpractice insurance premiums in the nation and
  388  is in a sustained and continuing crisis of affordability with
  389  respect to the price of medical malpractice insurance, and
  390         WHEREAS, the Legislature finds that having the highest
  391  medical malpractice insurance premiums in the nation is causing
  392  physicians to practice medicine without malpractice insurance,
  393  begin medical careers in other states, pursue opportunities to
  394  practice in other states, abstain from performing high-risk
  395  procedures in this state, or retire early from the practice of
  396  medicine, and
  397         WHEREAS, the Legislature finds that the crisis of having
  398  the highest medical malpractice insurance premiums in the nation
  399  threatens the quality and availability of health care services
  400  for everyone in this state, and
  401         WHEREAS, the Legislature finds that the rapidly growing
  402  population and the changing demographics of this state make it
  403  imperative for the state to have a legal environment that helps
  404  to attract and retain physicians, and
  405         WHEREAS, the Legislature finds that there is an
  406  overpowering public necessity to ensure that physicians practice
  407  medicine in this state, and
  408         WHEREAS, the Legislature finds that there is also an
  409  overpowering public necessity to enact policies that prevent
  410  medical malpractice insurance premiums from being unaffordable
  411  and continuing at crisis levels, and
  412         WHEREAS, the Legislature finds that limitations on
  413  noneconomic damages in medical negligence cases further the
  414  public necessities of making quality health care available to
  415  the residents of this state, ensuring that physicians practice
  416  medicine in this state, and ensuring that those physicians have
  417  the opportunity to purchase affordable medical malpractice
  418  insurance, NOW, THEREFORE,