Senate Bill sb1084

    Florida Senate - 2001                                  SB 1084

    By Senator Villalobos





    37-830-01

  1                      A bill to be entitled

  2         An act relating to medical malpractice presuit

  3         investigations; amending s. 766.104, F.S.;

  4         authorizing the release of certain records

  5         relating to medical care and treatment of a

  6         decedent upon the request of certain persons;

  7         providing an effective date.

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  9  Be It Enacted by the Legislature of the State of Florida:

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11         Section 1.  Section 766.104, Florida Statutes, is

12  amended to read:

13         766.104  Pleading in medical negligence cases; claim

14  for punitive damages; authorization for release of records for

15  investigation.--

16         (1)  No action shall be filed for personal injury or

17  wrongful death arising out of medical negligence, whether in

18  tort or in contract, unless the attorney filing the action has

19  made a reasonable investigation as permitted by the

20  circumstances to determine that there are grounds for a good

21  faith belief that there has been negligence in the care or

22  treatment of the claimant.  The complaint or initial pleading

23  shall contain a certificate of counsel that such reasonable

24  investigation gave rise to a good faith belief that grounds

25  exist for an action against each named defendant.  For

26  purposes of this section, good faith may be shown to exist if

27  the claimant or his or her counsel has received a written

28  opinion, which shall not be subject to discovery by an

29  opposing party, of an expert as defined in s. 766.102 that

30  there appears to be evidence of medical negligence.  If the

31  court determines that such certificate of counsel was not made

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    Florida Senate - 2001                                  SB 1084
    37-830-01




  1  in good faith and that no justiciable issue was presented

  2  against a health care provider that fully cooperated in

  3  providing informal discovery, the court shall award attorney's

  4  fees and taxable costs against claimant's counsel, and shall

  5  submit the matter to The Florida Bar for disciplinary review

  6  of the attorney.

  7         (2)  Upon petition to the clerk of the court where the

  8  suit will be filed and payment to the clerk of a filing fee,

  9  not to exceed $25, established by the chief judge, an

10  automatic 90-day extension of the statute of limitations shall

11  be granted to allow the reasonable investigation required by

12  subsection (1).  This period shall be in addition to other

13  tolling periods. No court order is required for the extension

14  to be effective.  The provisions of this subsection shall not

15  be deemed to revive a cause of action on which the statute of

16  limitations has run.

17         (3)  For purposes of completing the investigation

18  required by this section, and notwithstanding any other

19  provision of law to the contrary, subsequent to the death of a

20  person and prior to the administration of such person's

21  estate, copies of all medical reports and records, including

22  bills, films, and any other records, relating to the care and

23  treatment of such person which are in the possession of a

24  health care practitioner as defined in s. 456.011, shall be

25  made available, upon request, to the spouse, parent, or child

26  who has reached majority; the guardian; the surrogate; the

27  proxy; the attorney in fact of the deceased; or any of the

28  foregoing persons. A health care practitioner complying in

29  good faith with the provisions of this subsection is not

30  liable for any civil damages attributable to the disclosure of

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    Florida Senate - 2001                                  SB 1084
    37-830-01




  1  such records and is not subject to any disciplinary action

  2  based on such disclosure.

  3         Section 2.  This act shall take effect July 1, 2001.

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  6                          SENATE SUMMARY

  7    Authorizes the release, in medical malpractice presuit
      investigations, of certain records relating to medical
  8    care and treatment of a decedent upon the request of
      specified persons. Provides persons who comply with the
  9    requirement with immunity from civil damages or
      disciplinary action.
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CODING: Words stricken are deletions; words underlined are additions.