Senate Bill sb2620
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Florida Senate - 2003 SB 2620
By Senator Saunders
37-83C-03
1 A bill to be entitled
2 An act relating to emergency health care
3 providers; amending s. 394.461, F.S.; providing
4 penalties for the failure of receiving
5 facilities to indemnify the state; amending s.
6 395.1041, F.S.; providing penalties for the
7 failure of hospitals to indemnify the state;
8 amending s. 401.411, F.S.; providing grounds
9 for which a licensed life support service or
10 certified emergency medical technician or
11 paramedic may be subject to discipline;
12 amending s. 456.072, F.S.; providing grounds
13 for which a health care practitioner may be
14 subject to discipline for failure to indemnify
15 the state; amending s. 627.912, F.S.; requiring
16 the Division of Risk Management of the
17 Department of Financial Services to report
18 certain claims to the Office of Insurance
19 Regulation; providing reporting requirements
20 for claims; requiring the Office of Insurance
21 Regulation to analyze the claims; requiring the
22 Office of Insurance Regulation to make
23 recommendations on a comprehensive risk
24 management plan and report to the Legislature;
25 amending s. 766.102, F.S.; redefining terms;
26 amending s. 766.203, F.S.; revising
27 requirements of expert witnesses used for
28 medical negligence claims subject to presuit
29 investigation for emergency services and care
30 claims; amending s. 768.13, F.S.; revising
31 requirements for extending immunity to civil
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1 liability for persons providing emergency care
2 or treatment; redefining terms; providing a
3 standard of conduct applicable to providers for
4 purposes of extending immunity to civil
5 liability for persons providing medical care or
6 services; providing legislative findings and
7 intent; amending s. 768.28, F.S.; redefining
8 terms for purposes of determining who is an
9 agent to which sovereign immunity is waived, to
10 include specified persons and entities;
11 providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
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15 Section 1. Subsection (5) is added to section 394.461,
16 Florida Statutes, to read:
17 394.461 Designation of receiving and treatment
18 facilities.--The department is authorized to designate and
19 monitor receiving facilities and treatment facilities and may
20 suspend or withdraw such designation for failure to comply
21 with this part and rules adopted under this part. Unless
22 designated by the department, facilities are not permitted to
23 hold or treat involuntary patients under this part.
24 (5) If the receiving facility fails to indemnify the
25 state after reasonable notice and written demand to indemnify
26 the state in accordance with s. 768.28(9), any state funds
27 payable to that facility shall be withheld until the facility
28 satisfies its obligation to indemnify the state or enters into
29 a repayment agreement. In addition, the department may suspend
30 or withdraw the facility's designation as a receiving facility
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1 for failure to satisfy its obligation for repayment under s.
2 768.28(9).
3 Section 2. Paragraph (g) is added to subsection (5) of
4 section 395.1041, Florida Statutes, to read:
5 395.1041 Access to emergency services and care.--
6 (5) PENALTIES.--
7 (g) If any hospital fails to indemnify the state after
8 reasonable notice and written demand to indemnify the state in
9 accordance with s. 768.28(9), any state funds payable to that
10 hospital shall be withheld until the facility satisfies its
11 obligation to indemnify the state or enters into a repayment
12 agreement. In addition, the agency shall impose an
13 administrative fine, not to exceed $10,000 per violation of
14 this section.
15 Section 3. Paragraph (m) is added to subsection (1) of
16 section 401.411, Florida Statutes, to read:
17 401.411 Disciplinary action; penalties.--
18 (1) The department may deny, suspend, or revoke a
19 license, certificate, or permit or may reprimand or fine any
20 licensee, certificateholder, or other person operating under
21 this part for any of the following grounds:
22 (m) Failing to perform any statutory or legal
23 obligation placed upon a licensee or certificateholder. For
24 purposes of this section, failing to indemnify the state in
25 accordance with s. 768.28(9) after reasonable notice and
26 written demand to indemnify the state or failure to enter a
27 repayment agreement constitutes a failure to perform a
28 statutory or legal obligation, and the minimum disciplinary
29 action imposed shall be a suspension of the license or
30 certificate until payment terms are agreed upon, followed by
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1 probation for the duration of the payment period, and a fine
2 equal to 10 percent of the defaulted payment amount.
3 Section 4. Paragraph (k) of subsection (1) of section
4 456.072, Florida Statutes, is amended to read:
5 456.072 Grounds for discipline; penalties;
6 enforcement.--
7 (1) The following acts shall constitute grounds for
8 which the disciplinary actions specified in subsection (2) may
9 be taken:
10 (k) Failing to perform any statutory or legal
11 obligation placed upon a licensee. For purposes of this
12 section, failing to repay a student loan issued or guaranteed
13 by the state or the Federal Government in accordance with the
14 terms of the loan or failing to comply with service
15 scholarship obligations shall be considered a failure to
16 perform a statutory or legal obligation, and the minimum
17 disciplinary action imposed shall be a suspension of the
18 license until new payment terms are agreed upon or the
19 scholarship obligation is resumed, followed by probation for
20 the duration of the student loan or remaining scholarship
21 obligation period, and a fine equal to 10 percent of the
22 defaulted loan amount. Fines collected shall be deposited
23 into the Medical Quality Assurance Trust Fund. For purposes of
24 this section, failing to indemnify the state in accordance
25 with s. 768.28(9) after reasonable notice and written demand
26 to indemnify the state or failure to enter a repayment
27 agreement constitutes a failure to perform a statutory or
28 legal obligation, and the minimum disciplinary action imposed
29 shall be a suspension of the license until payment terms are
30 agreed upon, followed by probation for the duration of the
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1 payment period, and a fine equal to 10 percent of the
2 defaulted payment amount.
3 Section 5. Subsection (6) is added to section 627.912,
4 Florida Statutes, to read:
5 627.912 Professional liability claims and actions;
6 reports by insurers.--
7 (6) Notwithstanding any other provision of law to the
8 contrary, the Division of Risk Management of the Department of
9 Financial Services must report in duplicate to the Office of
10 Insurance Regulation and the Department of Health any claim or
11 action for damages for personal injuries claimed to have been
12 caused by error, omission, or negligence in the performance of
13 professional services provided by an agent of the Agency for
14 Health Care Administration as provided in s. 768.13(9)(b)2.,
15 including practitioners of medicine licensed under chapter
16 458, practitioners of osteopathic medicine licensed under
17 chapter 459, podiatric physicians licensed under chapter 461,
18 and dentists licensed under chapter 466, or based on a claimed
19 performance of professional services without consent if the
20 claim resulted in a final judgment in any amount or a
21 settlement in any amount. The reports required by this section
22 must contain the information required by subsection (3) and
23 the name, address, and specialty of the agent of the state
24 whose performance or professional services are alleged in the
25 claim or action to have caused personal injury. The Office of
26 Insurance Regulation, in conjunction with the Department of
27 Financial Services, shall analyze and evaluate the nature,
28 causes, location, cost, and damages involved in such
29 professional liability cases and shall provide to the
30 Legislature an annual report of such claims which outlines
31 relevant statistical trends in the data and makes
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1 recommendations for the implementation of a comprehensive risk
2 management plan to reduce the number of claims per
3 practitioner whose negligence is covered under s.
4 768.13(9)(b)2.
5 Section 6. Subsection (6) of section 766.102, Florida
6 Statutes, is amended to read:
7 766.102 Medical negligence; standards of recovery.--
8 (6)(a) In any action for damages involving a claim of
9 negligence against a physician licensed under chapter 458,
10 osteopathic physician licensed under chapter 459, podiatric
11 physician licensed under chapter 461, or chiropractic
12 physician licensed under chapter 460 providing emergency
13 medical services and care in a hospital emergency department,
14 the court shall admit expert medical testimony only from
15 physicians, osteopathic physicians, podiatric physicians, and
16 chiropractic physicians who have had substantial professional
17 experience within the preceding 5 years while assigned to
18 provide emergency medical services and care in a hospital
19 emergency department.
20 (b) For the purposes of this subsection:
21 1. The term "emergency medical services and care"
22 means medical screening, examination, and evaluation by a
23 physician, or, to the extent permitted by applicable law, by
24 other appropriate personnel under the supervision of a
25 physician, to determine if an emergency medical condition
26 exists and, if it does, the care, treatment, or surgery by a
27 physician necessary to relieve or eliminate the emergency
28 medical condition those medical services required for the
29 immediate diagnosis and treatment of medical conditions which,
30 if not immediately diagnosed and treated, could lead to
31 serious physical or mental disability or death.
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1 2. "Substantial professional experience" shall be
2 determined by the custom and practice of the manner in which
3 emergency medical coverage is provided in hospital emergency
4 departments in the same or similar localities where the
5 alleged negligence occurred.
6 Section 7. Subsections (2) and (3) of section 766.203,
7 Florida Statutes, are amended to read:
8 766.203 Presuit investigation of medical negligence
9 claims and defenses by prospective parties.--
10 (2) Prior to issuing notification of intent to
11 initiate medical malpractice litigation pursuant to s.
12 766.106, the claimant shall conduct an investigation to
13 ascertain that there are reasonable grounds to believe that:
14 (a) Any named defendant in the litigation was
15 negligent in the care or treatment of the claimant; and
16 (b) Such negligence resulted in injury to the
17 claimant.
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19 Corroboration of reasonable grounds to initiate medical
20 negligence litigation shall be provided by the claimant's
21 submission of a verified written medical expert opinion from a
22 medical expert as defined in s. 766.202(5), and, with respect
23 to claims involving emergency services and care as defined in
24 s. 766.102, from an expert who has qualifications required
25 under s. 766.102, at the time the notice of intent to initiate
26 litigation is mailed, which statement shall corroborate
27 reasonable grounds to support the claim of medical negligence.
28 (3) Prior to issuing its response to the claimant's
29 notice of intent to initiate litigation, during the time
30 period for response authorized pursuant to s. 766.106, the
31 defendant or the defendant's insurer or self-insurer shall
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1 conduct an investigation to ascertain whether there are
2 reasonable grounds to believe that:
3 (a) The defendant was negligent in the care or
4 treatment of the claimant; and
5 (b) Such negligence resulted in injury to the
6 claimant.
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8 Corroboration of lack of reasonable grounds for medical
9 negligence litigation shall be provided with any response
10 rejecting the claim by the defendant's submission of a
11 verified written medical expert opinion from a medical expert
12 as defined in s. 766.202(5), and, with respect to claims
13 involving emergency services and care as defined in s.
14 766.102, from an expert who has qualifications required under
15 s. 766.102, at the time the response rejecting the claim is
16 mailed, which statement shall corroborate reasonable grounds
17 for lack of negligent injury sufficient to support the
18 response denying negligent injury.
19 Section 8. Subsection (2) of section 768.13, Florida
20 Statutes, is amended to read:
21 768.13 Good Samaritan Act; immunity from civil
22 liability.--
23 (2)(a) Any person, including those licensed to
24 practice medicine, who gratuitously and in good faith renders
25 emergency care or treatment either in direct response to
26 emergency situations related to and arising out of a public
27 health emergency declared pursuant to s. 381.00315, a state of
28 emergency which has been declared pursuant to s. 252.36 or at
29 the scene of an emergency outside of a hospital, doctor's
30 office, or other place having proper medical equipment,
31 without objection of the injured victim or victims thereof,
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1 shall not be held liable for any civil damages as a result of
2 such care or treatment or as a result of any act or failure to
3 act in providing or arranging further medical treatment unless
4 such care, treatment, or failure to act is proven to amount to
5 conduct demonstrating a reckless disregard for the life or
6 health of the victim where the person acts as an ordinary
7 reasonably prudent person would have acted under the same or
8 similar circumstances.
9 (b) Except as provided in paragraph (d), any licensed
10 or certified health care practitioner in a hospital who
11 provides medical care or treatment in a hospital to a patient
12 or person with whom the practitioner has no preexisting
13 provider-patient relationship, when such care or treatment is
14 necessitated by a sudden or unexpected situation or by an
15 occurrence that demands immediate medical attention, shall not
16 be held liable for any civil damages as a result of any act or
17 omission relative to that care or treatment, unless the care
18 or treatment is proven to amount to conduct demonstrating a
19 reckless disregard for the life or health of the victim.
20 (c) As used in this section, the term "reckless
21 disregard" means conduct that was so reckless and lacking in
22 care that it demonstrated a conscious disregard for the life
23 or safety of the person.
24 (d)1. In accordance with s. 768.28(9), an emergency
25 medical services provider, physician, hospital, or other
26 person or entity acting pursuant to obligations imposed by s.
27 395.1041 or s. 401.45, shall not be held liable for civil
28 damages as a result of such medical care or treatment, unless
29 it is proven that the emergency medical services provider,
30 physician, hospital, person, or entity acted in bad faith or
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1 with malicious purpose or in a manner exhibiting wanton and
2 willful disregard of human rights, safety, or property.
3 (b)1. Any hospital licensed under chapter 395, any
4 employee of such hospital working in a clinical area within
5 the facility and providing patient care, and any person
6 licensed to practice medicine who in good faith renders
7 medical care or treatment necessitated by a sudden, unexpected
8 situation or occurrence resulting in a serious medical
9 condition demanding immediate medical attention, for which the
10 patient enters the hospital through its emergency room or
11 trauma center, or necessitated by a public health emergency
12 declared pursuant to s. 381.00315 shall not be held liable for
13 any civil damages as a result of such medical care or
14 treatment unless such damages result from providing, or
15 failing to provide, medical care or treatment under
16 circumstances demonstrating a reckless disregard for the
17 consequences so as to affect the life or health of another.
18 2. The immunity provided by this paragraph does not
19 apply to damages as a result of any act or omission of
20 providing medical care or treatment:
21 a. Which occurs after the patient is stabilized and is
22 capable of receiving medical treatment as a nonemergency
23 patient, unless surgery is required as a result of the
24 emergency within a reasonable time after the patient is
25 stabilized, in which case the immunity provided by this
26 paragraph applies to any act or omission of providing medical
27 care or treatment which occurs prior to the stabilization of
28 the patient following the surgery; or
29 b. Unrelated to the original medical emergency.
30 3. For purposes of this paragraph, "reckless
31 disregard" as it applies to a given health care provider
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1 rendering emergency medical services shall be such conduct
2 which a health care provider knew or should have known, at the
3 time such services were rendered, would be likely to result in
4 injury so as to affect the life or health of another, taking
5 into account the following to the extent they may be present;
6 a. The extent or serious nature of the circumstances
7 prevailing.
8 b. The lack of time or ability to obtain appropriate
9 consultation.
10 c. The lack of a prior patient-physician relationship.
11 d. The inability to obtain an appropriate medical
12 history of the patient.
13 e. The time constraints imposed by coexisting
14 emergencies.
15 2.4. Every emergency care facility granted immunity
16 under this paragraph shall accept and treat all emergency care
17 patients within the operational capacity of such facility
18 without regard to ability to pay, including patients
19 transferred from another emergency care facility or other
20 health care provider pursuant to Pub. L. No. 99-272, s. 9121.
21 The failure of an emergency care facility to comply with this
22 subparagraph constitutes grounds for the department to
23 initiate disciplinary action against the facility pursuant to
24 chapter 395.
25 (c) Any person who is licensed to practice medicine,
26 while acting as a staff member or with professional clinical
27 privileges at a nonprofit medical facility, other than a
28 hospital licensed under chapter 395, or while performing
29 health screening services, shall not be held liable for any
30 civil damages as a result of care or treatment provided
31 gratuitously in such capacity as a result of any act or
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1 failure to act in such capacity in providing or arranging
2 further medical treatment, if such person acts as a reasonably
3 prudent person licensed to practice medicine would have acted
4 under the same or similar circumstances.
5 Section 9. Legislative findings and intent.--The
6 Legislature finds and declares it to be of vital importance
7 that emergency services and care be provided by hospitals,
8 physicians, and emergency medical services providers to every
9 person in need of such care. The Legislature finds that
10 emergency services and care providers are critical elements in
11 responding to disaster and emergency situations that might
12 affect our local communities, state, and country. The
13 Legislature recognizes the importance of maintaining a viable
14 system of providing for the emergency medical needs of the
15 state's residents and visitors. The Legislature and the
16 Federal Government have required such providers of emergency
17 medical services and care to provide emergency services and
18 care to all persons who present to hospitals seeking such
19 care. The Legislature finds that the Legislature has further
20 mandated that prehospital emergency medical treatment or
21 transport may not be denied by emergency medical services
22 providers to persons who have or are likely to have an
23 emergency medical condition. Such governmental requirements
24 have imposed a unilateral obligation for emergency services
25 and care providers to provide services to all persons seeking
26 emergency care without ensuring payment or other consideration
27 for provision of such care. The Legislature also recognizes
28 that emergency services and care providers provide a
29 significant amount of uncompensated emergency medical care in
30 furtherance of such governmental interest. The Legislature
31 finds that a significant proportion of the residents of this
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1 state who are uninsured or are Medicaid or Medicare recipients
2 are unable to access needed health care because health care
3 providers fear the increased risk of medical malpractice
4 liability. The Legislature finds that such patients, in order
5 to obtain medical care, are frequently forced to seek care
6 through providers of emergency medical services and care. The
7 Legislature finds that providers of emergency medical services
8 and care in this state have reported significant problems with
9 both the availability and affordability of professional
10 liability coverage. The Legislature finds that medical
11 malpractice liability insurance premiums have increased
12 dramatically, and a number of insurers have ceased providing
13 medical malpractice coverage for emergency medical services
14 and care in this state. This results in a functional
15 unavailability of malpractice coverage for some providers of
16 emergency medical services and care. The Legislature further
17 finds that certain specialist physicians have resigned from
18 serving on hospital staffs or have otherwise declined to
19 provide on-call coverage to hospital emergency departments due
20 to increased medical malpractice liability exposure created by
21 treating such emergency department patients. It is the intent
22 of the Legislature that hospitals, emergency medical services
23 providers, and physicians be able to ensure that patients who
24 might need emergency medical services treatment or
25 transportation or who present to hospitals for emergency
26 medical services and care have access to such needed services.
27 Section 10. Paragraph (b) of subsection (9) of section
28 768.28, Florida Statutes, is amended to read:
29 768.28 Waiver of sovereign immunity in tort actions;
30 recovery limits; limitation on attorney fees; statute of
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1 limitations; exclusions; indemnification; risk management
2 programs.--
3 (9)
4 (b) As used in this subsection, the term:
5 1. "Employee" includes any volunteer firefighter.
6 2. "Officer, employee, or agent" includes, but is not
7 limited to:,
8 a. Any health care provider when providing services
9 pursuant to s. 766.1115, any member of the Florida Health
10 Services Corps, as defined in s. 381.0302, who provides
11 uncompensated care to medically indigent persons referred by
12 the Department of Health, and any public defender or her or
13 his employee or agent, including, among others, an assistant
14 public defender and an investigator.
15 b. Any emergency health care provider acting pursuant
16 to obligations imposed by ss. 395.1041 and 401.45, except for
17 persons or entities that are otherwise covered under this
18 section. Emergency health care providers are considered agents
19 of the Agency for Health Care Administration and shall
20 indemnify the state for any judgments, settlement costs, or
21 other liabilities incurred, up to the liability limits set
22 forth in this chapter. In addition, such agents shall pay all
23 costs for investigation and litigation, including defense
24 attorney's fees and expenses, in defense of such claims
25 incurred by the state.
26 c. Any emergency health care provider who is licensed
27 by the state and who fails to indemnify the state after
28 reasonable notice and written demand to indemnify the state is
29 subject to an emergency suspension order of the regulating
30 authority having jurisdiction over the licensee.
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1 d. The Department of Health shall issue an emergency
2 order suspending the license of any licensee under its
3 jurisdiction or that of a regulatory board within the
4 Department of Health who, after 30 days following receipt of a
5 notice from the Division of Risk Management of the Department
6 of Financial Services that a licensee has failed to satisfy
7 his or her obligation to indemnify the state or enter into a
8 repayment agreement with the state for costs under this
9 section, has not complied. The terms of such agreement must
10 provide assurance of repayment of the obligation that is
11 satisfactory to the state. For licensees within the Division
12 of Medical Quality Assurance of the Department of Health,
13 failure to comply with this subsection constitutes grounds for
14 disciplinary action under each respective practice act and
15 under s. 456.072(1)(k). For licensees and certificateholders
16 under part III of chapter 401, failure to comply with this
17 subsection constitutes grounds for disciplinary action under
18 s. 401.411(1)(m).
19 e. If the emergency health care provider is licensed
20 under chapter 395 and has failed to indemnify the state after
21 reasonable notice and written demand to indemnify the state,
22 any state funds payable to the licensed facility shall be
23 withheld until the facility satisfies its obligation to
24 indemnify the state or enters into a repayment agreement. The
25 terms of such an agreement must provide assurance of repayment
26 of the obligation which is satisfactory to the state. In
27 addition, the Agency for Health Care Administration shall
28 impose an administrative fine, not to exceed $10,000 per
29 violation of this section.
30 f. This section does not apply to any emergency health
31 care provider that has failed after reasonable notice and
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1 written demand to indemnify the state or to enter into a
2 repayment agreement as provided in this section.
3 g. As used in this subsection, the term:
4 (I) "Emergency health care providers" includes all
5 persons and entities providing services pursuant to
6 obligations imposed by ss. 395.1041 and 401.45, except those
7 persons or entities that are otherwise covered under this
8 section. The term includes:
9 (A) An emergency medical services provider licensed
10 under chapter 401 and persons operating as employees or agents
11 of such an emergency medical services provider.
12 (B) A hospital licensed under chapter 395 and persons
13 operating as employees or agents of such a hospital.
14 (C) A physician licensed under chapter 458, chapter
15 459, chapter 460, or chapter 461.
16 (D) A physician assistant licensed under chapter 458
17 or chapter 459.
18 (E) An emergency medical technician or paramedic
19 certified under chapter 401.
20 (F) A registered nurse, nurse midwife, licensed
21 practical nurse, or advanced registered nurse practitioner
22 licensed or registered under part I of chapter 464.
23 (G) A midwife licensed under chapter 467.
24 (H) A health care professional association and its
25 employees or agents or a corporate medical group and its
26 employees or agents.
27 (I) Any student or medical resident who is enrolled in
28 an accredited program or licensed program that prepares the
29 student for licensure or certification in any one of the
30 professions listed in sub-sub-sub-subparagraphs (C)-(G), the
31 program that prepares the student for licensure or
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1 certification, and the entity responsible for training of the
2 student or medical resident.
3 (J) Any receiving facility designated under chapter
4 394 and persons operating as employees or agents of the
5 receiving facility when providing emergency treatment to a
6 person presented for evaluation in accordance with chapter
7 394.
8 (K) Any other person or entity that is providing
9 services pursuant to obligations imposed by s. 401.45 or s.
10 395.1041.
11 (II) "Emergency medical services" means ambulance
12 assessment, treatment, or transport services provided pursuant
13 to obligations imposed by s. 401.45 or s. 395.1041; all
14 screening, examination, and evaluation by a physician,
15 hospital, or other person or entity acting pursuant to
16 obligations imposed by s. 395.1041; and the care, treatment,
17 surgery, or other medical services provided, whether as an
18 outpatient or inpatient, to relieve or eliminate the emergency
19 medical condition, including all medical services to eliminate
20 the likelihood that the emergency medical condition will
21 deteriorate or recur without further medical attention within
22 a reasonable period of time.
23 Section 11. This act shall take effect upon becoming a
24 law, and applies to any cause of action accruing on or after
25 that date.
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2 SENATE SUMMARY
3 Amends provisions relating to health care providers.
Provides penalties for the failure of receiving
4 facilities to indemnify the state. Provides penalties for
the failure of hospitals to indemnify the state. Provides
5 grounds for which a licensed life support service or
certified emergency medical technician or paramedic may
6 be subject to discipline. Provides grounds for which a
health care practitioner may be subject to discipline for
7 failure to indemnify the state. Requires the Division of
Risk Management of the Department of Financial Services
8 to report certain claims to the Office of Insurance
Regulation. Provides reporting requirements for claims.
9 Requires the Office of Insurance Regulation to analyze
the claims. Requires the Office of Insurance Regulation
10 to make recommendations on a comprehensive risk
management plan and report to the Legislature. Revises
11 requirements of expert witnesses used for medical
negligence claims subject to presuit investigation for
12 emergency services and care claims. Revises requirements
for extending immunity to civil liability for persons
13 providing emergency care or treatment. Provides a
standard of conduct applicable to providers for purposes
14 of extending immunity to civil liability for persons
providing medical care or services. Provides legislative
15 findings and intent. Redefines terms for purposes of
determining who is an agent to which sovereign immunity
16 is waived, to include specified persons and entities.
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