House Bill hb0067Eer

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  2         An act relating to liability; amending s.

  3         762.112, F.S.; prescribing applicability of

  4         provisions relating to comparative fault to

  5         boards of trustees; amending s. 768.28, F.S.;

  6         providing venue in actions brought against

  7         boards of trustees; providing applicability of

  8         provisions relating to waiver of sovereign

  9         immunity to boards of trustees; amending s.

10         626.852, F.S.; providing inapplicability of

11         provisions relating to insurance adjusters to

12         employees and agents of a board of trustees;

13         amending s. 766.302, F.S.; defining the terms

14         "family member" and "family residential or

15         custodial care"; amending s. 766.31, F.S.;

16         authorizing compensation awards for

17         professional or family residential or custodial

18         care; amending s. 766.314, F.S.; revising

19         requirements for assessments used for certain

20         supervised personnel; providing for

21         construction of laws enacted at the 2002

22         Regular Session in relation to this act;

23         providing effective dates.

24

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

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27         Section 1.  Subsection (2) of section 766.112, Florida

28  Statutes, is amended to read:

29         766.112  Comparative fault.--

30         (2)  In an action for damages for personal injury or

31  wrongful death arising out of medical malpractice, whether in


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  1  contract or tort, when an apportionment of damages pursuant to

  2  s. 768.81 is attributed to a the board of trustees of a state

  3  university Regents, the court shall enter judgment against the

  4  board of trustees Regents on the basis of the board's such

  5  party's percentage of fault and not on the basis of the

  6  doctrine of joint and several liability. The sole remedy

  7  available to a claimant to collect a judgment or settlement

  8  against a board of trustees damages, subject to the provisions

  9  of this subsection, against the Board of Regents shall be

10  pursuant to s. 768.28.

11         Section 2.  Subsections (1) and (2) of section 768.28,

12  Florida Statutes, are amended to read:

13         768.28  Waiver of sovereign immunity in tort actions;

14  recovery limits; limitation on attorney fees; statute of

15  limitations; exclusions; indemnification; risk management

16  programs.--

17         (1)  In accordance with s. 13, Art. X of the State

18  Constitution, the state, for itself and for its agencies or

19  subdivisions, hereby waives sovereign immunity for liability

20  for torts, but only to the extent specified in this act.

21  Actions at law against the state or any of its agencies or

22  subdivisions to recover damages in tort for money damages

23  against the state or its agencies or subdivisions for injury

24  or loss of property, personal injury, or death caused by the

25  negligent or wrongful act or omission of any employee of the

26  agency or subdivision while acting within the scope of the

27  employee's office or employment under circumstances in which

28  the state or such agency or subdivision, if a private person,

29  would be liable to the claimant, in accordance with the

30  general laws of this state, may be prosecuted subject to the

31  limitations specified in this act. Any such action may be


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  1  brought in the county where the property in litigation is

  2  located or, if the affected agency or subdivision has an

  3  office in such county for the transaction of its customary

  4  business, where the cause of action accrued. However, any such

  5  action against a state university board of trustees shall be

  6  brought in the county in which that university's main campus

  7  is located or in the county in which the cause of action

  8  accrued if the university maintains therein a substantial

  9  presence for the transaction of its customary business.

10         (2)  As used in this act, "state agencies or

11  subdivisions" include the executive departments, the

12  Legislature, the judicial branch (including public defenders),

13  and the independent establishments of the state, including

14  state university boards of trustees; counties and

15  municipalities; and corporations primarily acting as

16  instrumentalities or agencies of the state, counties, or

17  municipalities, including the Spaceport Florida Authority.

18         Section 3.  Subsection (5) of section 626.852, Florida

19  Statutes, is amended to read:

20         626.852  Scope of this part.--

21         (5)  This part does not apply to any employee or agent

22  of a state university the board of trustees Regents providing

23  services in support of any self-insurance program created

24  under s. 240.213 or s. 1004.24 adopted by such Board of

25  Regents.

26         Section 4.  The amendments to sections 766.112(2) and

27  768.28(1) and (2) shall apply to causes of action arising on

28  or after January 7, 2003.

29         Section 5.  Subsections (9) and (10) are added to

30  section 766.302, Florida Statutes, to read:

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  1         766.302  Definitions; ss. 766.301-766.316.--As used in

  2  ss. 766.301-766.316, the term:

  3         (9)  "Family member" means a father, mother, or legal

  4  guardian.

  5         (10)  "Family residential or custodial care" means care

  6  normally rendered by trained professional attendants which is

  7  beyond the scope of child care duties, but which is provided

  8  by family members. Family members who provide nonprofessional

  9  residential or custodial care may not be compensated under

10  this act for care that falls within the scope of child care

11  duties and other services normally and gratuitously provided

12  by family members. Family residential or custodial care shall

13  be performed only at the direction and control of a physician

14  when such care is medically necessary. Reasonable charges for

15  expenses for family residential or custodial care provided by

16  a family member shall be determined as follows:

17         (a)  If the family member is not employed, the per-hour

18  value equals the federal minimum hourly wage.

19         (b)  If the family member is employed and elects to

20  leave that employment to provide such care, the per-hour value

21  of that care shall equal the rates established by Medicaid for

22  private-duty services provided by a home health aide. A family

23  member or a combination of family members providing care in

24  accordance with this definition may not be compensated for

25  more than a total of 10 hours per day. Family care is in lieu

26  of professional residential or custodial care, and no

27  professional residential or custodial care may be awarded for

28  the period of time during the day that family care is being

29  provided.

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  1         (c)  The award of family residential or custodial care

  2  as defined in this section shall not be included in the

  3  current estimates for purposes of s. 766.314(9)(c).

  4         Section 6.  Paragraph (a) of subsection (1) of section

  5  766.31, Florida Statutes, is amended to read:

  6         766.31  Administrative law judge awards for

  7  birth-related neurological injuries; notice of award.--

  8         (1)  Upon determining that an infant has sustained a

  9  birth-related neurological injury and that obstetrical

10  services were delivered by a participating physician at the

11  birth, the administrative law judge shall make an award

12  providing compensation for the following items relative to

13  such injury:

14         (a)  Actual expenses for medically necessary and

15  reasonable medical and hospital, habilitative and training,

16  family residential or custodial care, professional

17  residential, and custodial care and service, for medically

18  necessary drugs, special equipment, and facilities, and for

19  related travel. However, such expenses shall not include:

20         1.  Expenses for items or services that the infant has

21  received, or is entitled to receive, under the laws of any

22  state or the Federal Government, except to the extent such

23  exclusion may be prohibited by federal law.

24         2.  Expenses for items or services that the infant has

25  received, or is contractually entitled to receive, from any

26  prepaid health plan, health maintenance organization, or other

27  private insuring entity.

28         3.  Expenses for which the infant has received

29  reimbursement, or for which the infant is entitled to receive

30  reimbursement, under the laws of any state or the Federal

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  1  Government, except to the extent such exclusion may be

  2  prohibited by federal law.

  3         4.  Expenses for which the infant has received

  4  reimbursement, or for which the infant is contractually

  5  entitled to receive reimbursement, pursuant to the provisions

  6  of any health or sickness insurance policy or other private

  7  insurance program.

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  9  Expenses included under this paragraph shall be limited to

10  reasonable charges prevailing in the same community for

11  similar treatment of injured persons when such treatment is

12  paid for by the injured person.

13         Section 7.  Paragraph (c) of subsection (4) of section

14  766.314, Florida Statutes, is amended to read:

15         766.314  Assessments; plan of operation.--

16         (4)  The following persons and entities shall pay into

17  the association an initial assessment in accordance with the

18  plan of operation:

19         (c)  On or before December 1, 1988, each physician

20  licensed pursuant to chapter 458 or chapter 459 who wishes to

21  participate in the Florida Birth-Related Neurological Injury

22  Compensation Plan and who otherwise qualifies as a

23  participating physician under ss. 766.301-766.316 shall pay an

24  initial assessment of $5,000. However, if the physician is

25  either a resident physician, assistant resident physician, or

26  intern in an approved postgraduate training program, as

27  defined by the Board of Medicine or the Board of Osteopathic

28  Medicine by rule, and is supervised in accordance with program

29  requirements established by the Accreditation Council for

30  Graduate Medical Education or the American Osteopathic

31  Association by a physician who is participating in the plan,


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  1  such resident physician, assistant resident physician, or

  2  intern is deemed to be a participating physician without the

  3  payment of the assessment.  Participating physicians also

  4  include any employee of the Board of Regents who has paid the

  5  assessment required by this paragraph and paragraph (5)(a),

  6  and any certified nurse midwife supervised by such employee.

  7  Participating physicians include any certified nurse midwife

  8  who has paid 50 percent of the physician assessment required

  9  by this paragraph and paragraph (5)(a) and who is supervised

10  by a participating physician who has paid the assessment

11  required by this paragraph and paragraph (5)(a). Supervision

12  for nurse midwives shall require that the supervising

13  physician will be easily available and have a prearranged plan

14  of treatment for specified patient problems which the

15  supervised certified nurse midwife or physician may carry out

16  in the absence of any complicating features.  Any physician

17  who elects to participate in such plan on or after January 1,

18  1989, who was not a participating physician at the time of

19  such election to participate and who otherwise qualifies as a

20  participating physician under ss. 766.301-766.316 shall pay an

21  additional initial assessment equal to the most recent

22  assessment made pursuant to this paragraph, paragraph (5)(a),

23  or paragraph (7)(b).

24         Section 8.  If any law that is amended by this act was

25  also amended by a law enacted at the 2002 Regular Session of

26  the Legislature, such laws shall be construed as if they had

27  been enacted at the same session of the Legislature, and full

28  effect should be given to each if that is possible.

29         Section 9.  This act, except for this section and

30  sections 5, 6, 7, and 8, which shall take effect upon becoming

31  a law, shall take effect January 7, 2003.


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