Senate Bill sb0560c2

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    Florida Senate - 2003    CS for CS for SB 560 & CS for SB 2080

    By the Committees on Judiciary; Health, Aging, and Long-Term
    Care; Banking and Insurance; and Senators Saunders and Peaden




    308-2317-03

  1                      A bill to be entitled

  2         An act relating to medical malpractice

  3         insurance; providing legislative findings;

  4         amending s. 624.462, F.S.; authorizing health

  5         care providers to form a commercial

  6         self-insurance fund; amending s. 627.062, F.S.;

  7         providing that an insurer may not require

  8         arbitration of a rate filing for medical

  9         malpractice; providing additional requirements

10         for medical malpractice insurance rate filings;

11         providing that portions of judgments and

12         settlements entered against a medical

13         malpractice insurer for bad-faith actions or

14         for punitive damages against the insurer, as

15         well as related taxable costs and attorney's

16         fees, may not be included in an insurer's base

17         rate; providing for review of rate filings by

18         the Office of Insurance Regulation for

19         excessive, inadequate, or unfairly

20         discriminatory rates; requiring insurers to

21         apply a discount based on the health care

22         provider's loss experience; amending s.

23         627.0645, F.S.; excepting medical malpractice

24         insurers from certain annual filings; amending

25         s. 627.4147, F.S.; revising certain

26         notification criteria for medical and

27         osteopathic physicians; requiring prior

28         notification of a rate increase; amending s.

29         627.912, F.S.; increasing the limit on a fine;

30         requiring the Office of Insurance Regulation to

31         adopt by rule requirements for reporting

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 1         financial information; creating s. 627.41491,

 2         F.S.; requiring the Office of Insurance

 3         Regulation to require health care providers to

 4         annually publish certain rate comparison

 5         information; creating s. 627.41493, F.S.;

 6         requiring a medical malpractice insurance rate

 7         rollback; providing for subsequent increases

 8         under certain circumstances; requiring approval

 9         for use of certain medical malpractice

10         insurance rates; creating s. 627.41492, F.S.;

11         requiring the Office of Insurance Regulation to

12         publish an annual medical malpractice report;

13         creating s. 627.41495, F.S.; providing for

14         consumer participation in review of medical

15         malpractice rate changes; providing for public

16         inspection; providing for adoption of rules by

17         the Office of Insurance Regulation; providing

18         for a mechanism to make effective the Florida

19         Medical Malpractice Insurance Fund in the event

20         the roll back of medical malpractice insurance

21         rates is not completed; creating the Florida

22         Medical Malpractice Insurance Fund; providing

23         purpose; providing governance by a board of

24         governors; providing for the fund to issue

25         medical malpractice policies to any physician

26         regardless of specialty; providing for

27         regulation by the Office of Insurance

28         Regulation of the Financial Services

29         Commission; providing applicability; providing

30         for initial funding; providing for tax-exempt

31         status; providing for initial capitalization;

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 1         providing for termination of the fund;

 2         providing that practitioners licensed under ch.

 3         458 or ch. 459, F.S., must, as a licensure

 4         requirement, obtain and maintain professional

 5         liability coverage; requiring the Office of

 6         Insurance Regulation to order insurers to make

 7         rate filings effective January 1, 2004, which

 8         reflect the impact of the act; providing

 9         criteria for such rate filing; amending s.

10         456.049, F.S.; requiring the Department of

11         Health to report certain liability claims to

12         the Office of Insurance Regulation; amending s.

13         627.357, F.S.; providing guidelines for the

14         formation and regulation of certain

15         self-insurance funds; creating s. 627.9121,

16         F.S.; requiring certain claims, judgments, or

17         settlements to be reported to the Office of

18         Insurance Regulation; providing penalties;

19         requiring the Office of Program Policy Analysis

20         and Government Accountability to study and

21         report to the Legislature on requirements for

22         coverage by the Florida Birth-Related

23         Neurological Injury Compensation Association;

24         authorizing health care facilities to apply to

25         the Department of Financial Services for

26         discounts in insurance rates after reducing

27         adverse incidents and serious events at the

28         facility; requiring health care facilities to

29         apply to the Department of Financial Services

30         for the certification of programs recommended

31         by the Florida Center for Excellence in Health

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 1         Care; requiring the Department of Financial

 2         Services to develop criteria for the

 3         certification; requiring insurers to file rates

 4         with the Department of Financial Services for

 5         review under specified circumstances; creating

 6         s. 627.3575, F.S.; creating the Health Care

 7         Professional Liability Insurance Mutual

 8         Facility; providing purpose; providing for

 9         governance by a board of governors; providing

10         for the facility to provide excess liability

11         insurance for certain health care

12         professionals; providing for premiums;

13         providing for regulation by the Office of

14         Insurance Regulation of the Financial Services

15         Commission; providing applicability; providing

16         for debt and regulation thereof; authorizing

17         the Office of Insurance Regulation to adopt

18         rules; providing for application of s.

19         627.3575, F.S., to medical malpractice

20         insurance policies issued after January 1,

21         2004; creating s. 627.0662, F.S.; providing

22         definitions; requiring each medical liability

23         insurer to report certain information to the

24         Office of Insurance Regulation; providing for

25         determination of whether excessive profit has

26         been realized; requiring return of excessive

27         amounts; amending s. 766.106, F.S.; providing

28         for application of common law principles of

29         good faith to an insurance company's bad-faith

30         actions arising out of medical malpractice

31         claims; providing that an insurer shall not be

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 1         held to have acted in bad faith for certain

 2         activities during the presuit period and for

 3         120 days after that period; requiring

 4         facilities licensed under ch. 395, F.S., to

 5         install a computerized prescription system by a

 6         specified date; providing for severability;

 7         providing a contingent effective date.

 8  

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

10  

11         Section 1.  Findings.--

12         (1)  The Legislature finds that Florida is in the midst

13  of a medical malpractice insurance crisis of unprecedented

14  magnitude.

15         (2)  The Legislature finds that this crisis threatens

16  the quality and availability of health care for all Florida

17  citizens.

18         (3)  The Legislature finds that the rapidly growing

19  population and the changing demographics of Florida make it

20  imperative that students continue to choose Florida as the

21  place they will receive their medical educations and practice

22  medicine.

23         (4)  The Legislature finds that Florida is among the

24  states with the highest medical malpractice insurance premiums

25  in the nation.

26         (5)  The Legislature finds that the cost of medical

27  malpractice insurance has increased dramatically during the

28  past decade and both the increase and the current cost are

29  substantially higher than the national average.

30         (6)  The Legislature finds that the increase in medical

31  malpractice liability insurance rates is forcing physicians to

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 1  practice medicine without professional liability insurance, to

 2  leave Florida, to not perform high-risk procedures, or to

 3  retire early from the practice of medicine.

 4         (7)  The Governor created the Governor's Select Task

 5  Force on Healthcare Professional Liability Insurance to study

 6  and make recommendations to address these problems.

 7         (8)  The Legislature has reviewed the findings and

 8  recommendations of the Governor's Select Task Force on

 9  Healthcare Professional Liability Insurance.

10         (9)  The Legislature finds that the Governor's Select

11  Task Force on Healthcare Professional Liability Insurance has

12  established that a medical malpractice insurance crisis exists

13  in the State of Florida which can be alleviated by the

14  adoption of comprehensive legislatively enacted reforms.

15         (10)  The Legislature finds that making high-quality

16  health care available to the citizens of this state is an

17  overwhelming public necessity.

18         (11)  The Legislature finds that ensuring that

19  physicians continue to practice in Florida is an overwhelming

20  public necessity.

21         (12)  The Legislature finds that ensuring the

22  availability of affordable professional liability insurance

23  for physicians is an overwhelming public necessity.

24         (13)  The Legislature finds, based upon the findings

25  and recommendations of the Governor's Select Task Force on

26  Healthcare Professional Liability Insurance, the findings and

27  recommendations of various study groups throughout the nation,

28  and the experience of other states, that the overwhelming

29  public necessities of making quality health care available to

30  the citizens of this state, of ensuring that physicians

31  continue to practice in Florida, and of ensuring that those

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 1  physicians have the opportunity to purchase affordable

 2  professional liability insurance cannot be met unless

 3  comprehensive legislation is adopted.

 4         (14)  The Legislature finds that the provisions of this

 5  act are naturally and logically connected to each other and to

 6  the purpose of making quality health care available to the

 7  citizens of Florida.

 8         Section 2.  Subsection (2) of section 624.462, Florida

 9  Statutes, is amended to read:

10         624.462  Commercial self-insurance funds.--

11         (2)  As used in ss. 624.460-624.488, "commercial

12  self-insurance fund" or "fund" means a group of members,

13  operating individually and collectively through a trust or

14  corporation, that must be:

15         (a)  Established by:

16         1.  A not-for-profit trade association, industry

17  association, or professional association of employers or

18  professionals which has a constitution or bylaws, which is

19  incorporated under the laws of this state, and which has been

20  organized for purposes other than that of obtaining or

21  providing insurance and operated in good faith for a

22  continuous period of 1 year;

23         2.  A self-insurance trust fund organized pursuant to

24  s. 627.357 and maintained in good faith for a continuous

25  period of 1 year for purposes other than that of obtaining or

26  providing insurance pursuant to this section.  Each member of

27  a commercial self-insurance trust fund established pursuant to

28  this subsection must maintain membership in the self-insurance

29  trust fund organized pursuant to s. 627.357; or

30         3.  A group of 10 or more health care providers, as

31  defined in s. 627.351(4)(h); or

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 1         4.3.  A not-for-profit group comprised of no less than

 2  10 condominium associations as defined in s. 718.103(2), which

 3  is incorporated under the laws of this state, which restricts

 4  its membership to condominium associations only, and which has

 5  been organized and maintained in good faith for a continuous

 6  period of 1 year for purposes other than that of obtaining or

 7  providing insurance.

 8         (b)1.  In the case of funds established pursuant to

 9  subparagraph (a)2. or subparagraph (a)4. subparagraph (a)3.,

10  operated pursuant to a trust agreement by a board of trustees

11  which shall have complete fiscal control over the fund and

12  which shall be responsible for all operations of the fund.

13  The majority of the trustees shall be owners, partners,

14  officers, directors, or employees of one or more members of

15  the fund.  The trustees shall have the authority to approve

16  applications of members for participation in the fund and to

17  contract with an authorized administrator or servicing company

18  to administer the day-to-day affairs of the fund.

19         2.  In the case of funds established pursuant to

20  subparagraph (a)1. or subparagraph (a)3., operated pursuant to

21  a trust agreement by a board of trustees or as a corporation

22  by a board of directors which board shall:

23         a.  Be responsible to members of the fund or

24  beneficiaries of the trust or policyholders of the

25  corporation;

26         b.  Appoint independent certified public accountants,

27  legal counsel, actuaries, and investment advisers as needed;

28         c.  Approve payment of dividends to members;

29         d.  Approve changes in corporate structure; and

30         e.  Have the authority to contract with an

31  administrator authorized under s. 626.88 to administer the

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 1  day-to-day affairs of the fund including, but not limited to,

 2  marketing, underwriting, billing, collection, claims

 3  administration, safety and loss prevention, reinsurance,

 4  policy issuance, accounting, regulatory reporting, and general

 5  administration.  The fees or compensation for services under

 6  such contract shall be comparable to the costs for similar

 7  services incurred by insurers writing the same lines of

 8  insurance, or where available such expenses as filed by

 9  boards, bureaus, and associations designated by insurers to

10  file such data. A majority of the trustees or directors shall

11  be owners, partners, officers, directors, or employees of one

12  or more members of the fund.

13         Section 3.  Paragraph (a) of subsection (6) of section

14  627.062, Florida Statutes, is amended, and subsection (7) is

15  added to that section, to read:

16         627.062  Rate standards.--

17         (6)(a)  After any action with respect to a rate filing

18  that constitutes agency action for purposes of the

19  Administrative Procedure Act, except for a rate filing for

20  medical malpractice, an insurer may, in lieu of demanding a

21  hearing under s. 120.57, require arbitration of the rate

22  filing. Arbitration shall be conducted by a board of

23  arbitrators consisting of an arbitrator selected by the

24  department, an arbitrator selected by the insurer, and an

25  arbitrator selected jointly by the other two arbitrators. Each

26  arbitrator must be certified by the American Arbitration

27  Association. A decision is valid only upon the affirmative

28  vote of at least two of the arbitrators. No arbitrator may be

29  an employee of any insurance regulator or regulatory body or

30  of any insurer, regardless of whether or not the employing

31  insurer does business in this state. The department and the

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 1  insurer must treat the decision of the arbitrators as the

 2  final approval of a rate filing. Costs of arbitration shall be

 3  paid by the insurer.

 4         (7)(a)  The provisions of this subsection apply only

 5  with respect to rates for medical malpractice insurance and

 6  shall control to the extent of any conflict with other

 7  provisions of this section.

 8         (b)  Any portion of a judgment entered or settlement

 9  paid as a result of a statutory or common-law bad-faith action

10  and any portion of a judgment entered which awards punitive

11  damages against an insurer may not be included in the

12  insurer's rate base, and shall not be used to justify a rate

13  or rate change. Any common-law bad-faith action identified as

14  such and any portion of a settlement entered as a result of a

15  statutory or portion of a settlement wherein an insurer agrees

16  to pay specific punitive damages may not be used to justify a

17  rate or rate change. The portion of the taxable costs and

18  attorney's fees which is identified as being related to the

19  bad faith and punitive damages in these judgments and

20  settlements may not be included in the insurer's rate base and

21  may not be utilized to justify a rate or rate change.

22         (c)  Upon reviewing a rate filing and determining

23  whether the rate is excessive, inadequate, or unfairly

24  discriminatory, the Office of Insurance Regulation shall

25  consider, in accordance with generally accepted and reasonable

26  actuarial techniques, past and present prospective loss

27  experience, either using loss experience solely for this state

28  or giving greater credibility to this state's loss data.

29         (d)  Rates shall be deemed excessive if, among other

30  standards established by this section, the rate structure

31  provides for replenishment of reserves or surpluses from

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 1  premiums when the replenishment is attributable to investment

 2  losses.

 3         (e)  The insurer must apply a discount or surcharge

 4  based on the health care provider's loss experience, or shall

 5  establish an alternative method giving due consideration to

 6  the provider's loss experience. The insurer must include in

 7  the filing a copy of the surcharge or discount schedule or a

 8  description of the alternative method used, and must provide a

 9  copy of such schedule or description, as approved by the

10  office, to policyholders at the time of renewal and to

11  prospective policyholders at the time of application for

12  coverage.

13         Section 4.  Subsections (1) and (2) of section

14  627.0645, Florida Statutes, are amended to read:

15         627.0645  Annual filings.--

16         (1)  Each rating organization filing rates for, and

17  each insurer writing, any line of property or casualty

18  insurance to which this part applies, except:

19         (a)  Workers' compensation and employer's liability

20  insurance; or

21         (b)  Commercial property and casualty insurance as

22  defined in s. 627.0625(1) other than commercial multiple line,

23  and commercial motor vehicle, and medical malpractice,

24  

25  shall make an annual base rate filing for each such line with

26  the department no later than 12 months after its previous base

27  rate filing, demonstrating that its rates are not inadequate.

28         (2)(a)  Deviations, except for medical malpractice,

29  filed by an insurer to any rating organization's base rate

30  filing are not subject to this section.

31  

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 1         (b)  The department, after receiving a request to be

 2  exempted from the provisions of this section, may, for good

 3  cause due to insignificant numbers of policies in force or

 4  insignificant premium volume, exempt a company, by line of

 5  coverage, from filing rates or rate certification as required

 6  by this section.

 7         Section 5.  Section 627.4147, Florida Statutes, is

 8  amended to read:

 9         627.4147  Medical malpractice insurance contracts.--

10         (1)  In addition to any other requirements imposed by

11  law, each self-insurance policy as authorized under s. 627.357

12  or insurance policy providing coverage for claims arising out

13  of the rendering of, or the failure to render, medical care or

14  services, including those of the Florida Medical Malpractice

15  Joint Underwriting Association, shall include:

16         (a)  A clause requiring the insured to cooperate fully

17  in the review process prescribed under s. 766.106 if a notice

18  of intent to file a claim for medical malpractice is made

19  against the insured.

20         (b)1.  Except as provided in subparagraph 2., a clause

21  authorizing the insurer or self-insurer to determine, to make,

22  and to conclude, without the permission of the insured, any

23  offer of admission of liability and for arbitration pursuant

24  to s. 766.106, settlement offer, or offer of judgment, if the

25  offer is within the policy limits. It is against public policy

26  for any insurance or self-insurance policy to contain a clause

27  giving the insured the exclusive right to veto any offer for

28  admission of liability and for arbitration made pursuant to s.

29  766.106, settlement offer, or offer of judgment, when such

30  offer is within the policy limits. However, any offer of

31  admission of liability, settlement offer, or offer of judgment

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 1  made by an insurer or self-insurer shall be made in good faith

 2  and in the best interests of the insured.

 3         2.a.  With respect to physicians licensed under chapter

 4  458 or chapter 459 or dentists licensed under chapter 466, a

 5  clause clearly stating whether or not the insured has the

 6  exclusive right to veto any offer of admission of liability

 7  and for arbitration pursuant to s. 766.106, settlement offer,

 8  or offer of judgment if the offer is within policy limits. An

 9  insurer or self-insurer shall not make or conclude, without

10  the permission of the insured, any offer of admission of

11  liability and for arbitration pursuant to s. 766.106,

12  settlement offer, or offer of judgment, if such offer is

13  outside the policy limits. However, any offer for admission of

14  liability and for arbitration made under s. 766.106,

15  settlement offer, or offer of judgment made by an insurer or

16  self-insurer shall be made in good faith and in the best

17  interest of the insured.

18         b.  If the policy contains a clause stating the insured

19  does not have the exclusive right to veto any offer or

20  admission of liability and for arbitration made pursuant to s.

21  766.106, settlement offer or offer of judgment, the insurer or

22  self-insurer shall provide to the insured or the insured's

23  legal representative by certified mail, return receipt

24  requested, a copy of the final offer of admission of liability

25  and for arbitration made pursuant to s. 766.106, settlement

26  offer or offer of judgment and at the same time such offer is

27  provided to the claimant. A copy of any final agreement

28  reached between the insurer and claimant shall also be

29  provided to the insurer or his or her legal representative by

30  certified mail, return receipt requested not more than 10 days

31  after affecting such agreement.

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 1         (c)  A clause requiring the insurer or self-insurer to

 2  notify the insured no less than 90 60 days prior to the

 3  effective date of cancellation of the policy or contract and,

 4  in the event of a determination by the insurer or self-insurer

 5  not to renew the policy or contract, to notify the insured no

 6  less than 90 60 days prior to the end of the policy or

 7  contract period. If cancellation or nonrenewal is due to

 8  nonpayment or loss of license, 10 days' notice is required.

 9         (d)  A clause requiring the insurer or self-insurer to

10  notify the insured no less than 60 days prior to the effective

11  date of a rate increase. The provisions of s. 627.4133 shall

12  apply to such notice and to the failure of the insurer to

13  provide such notice to the extent not in conflict with this

14  section.

15         (2)  Each insurer covered by this section may require

16  the insured to be a member in good standing, i.e., not subject

17  to expulsion or suspension, of a duly recognized state or

18  local professional society of health care providers which

19  maintains a medical review committee. No professional society

20  shall expel or suspend a member solely because he or she

21  participates in a health maintenance organization licensed

22  under part I of chapter 641.

23         (3)  This section shall apply to all policies issued or

24  renewed after October 1, 2003 1985.

25         Section 6.  Subsections (2) and (4) of section 627.912,

26  Florida Statutes, are amended to read:

27         627.912  Professional liability claims and actions;

28  reports by insurers.--

29         (2)  The reports required by subsection (1) shall

30  contain:

31  

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 1         (a)  The name, address, and specialty coverage of the

 2  insured.

 3         (b)  The insured's policy number.

 4         (c)  The date of the occurrence which created the

 5  claim.

 6         (d)  The date the claim was reported to the insurer or

 7  self-insurer.

 8         (e)  The name and address of the injured person. This

 9  information is confidential and exempt from the provisions of

10  s. 119.07(1), and must not be disclosed by the department

11  without the injured person's consent, except for disclosure by

12  the department to the Department of Health. This information

13  may be used by the department for purposes of identifying

14  multiple or duplicate claims arising out of the same

15  occurrence.

16         (f)  The date of suit, if filed.

17         (g)  The injured person's age and sex.

18         (h)  The total number and names of all defendants

19  involved in the claim.

20         (i)  The date and amount of judgment or settlement, if

21  any, including the itemization of the verdict, together with a

22  copy of the settlement or judgment.

23         (j)  In the case of a settlement, such information as

24  the department may require with regard to the injured person's

25  incurred and anticipated medical expense, wage loss, and other

26  expenses.

27         (k)  The loss adjustment expense paid to defense

28  counsel, and all other allocated loss adjustment expense paid.

29         (l)  The date and reason for final disposition, if no

30  judgment or settlement.

31  

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 1         (m)  A summary of the occurrence which created the

 2  claim, which shall include:

 3         1.  The name of the institution, if any, and the

 4  location within the institution at which the injury occurred.

 5         2.  The final diagnosis for which treatment was sought

 6  or rendered, including the patient's actual condition.

 7         3.  A description of the misdiagnosis made, if any, of

 8  the patient's actual condition.

 9         4.  The operation, diagnostic, or treatment procedure

10  causing the injury.

11         5.  A description of the principal injury giving rise

12  to the claim.

13         6.  The safety management steps that have been taken by

14  the insured to make similar occurrences or injuries less

15  likely in the future.

16         (n)  Any other information required by the office

17  department to analyze and evaluate the nature, causes,

18  location, cost, and damages involved in professional liability

19  cases. The Financial Services Commission shall adopt by rule

20  requirements for additional information to assist the office

21  in its analysis and evaluation of the nature, causes,

22  location, cost, and damages involved in professional liability

23  cases reported by insurers under this section.

24         (4)  There shall be no liability on the part of, and no

25  cause of action of any nature shall arise against, any insurer

26  reporting hereunder or its agents or employees or the

27  department or its employees for any action taken by them under

28  this section.  The department shall may impose a fine of $250

29  per day per case, but not to exceed a total of $10,000 $1,000

30  per case, against an insurer that violates the requirements of

31  

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 1  this section. This subsection applies to claims accruing on or

 2  after October 1, 1997.

 3         Section 7.  Section 627.41491, Florida Statutes, is

 4  created to read:

 5         627.41491  Medical malpractice rate comparison.--The

 6  Office of Insurance Regulation shall annually publish a

 7  comparison of the rate in effect for each medical malpractice

 8  insurer and self-insurer and the Florida Medical Malpractice

 9  Joint Underwriting Association. Such rate comparison shall be

10  made available to the public through the Internet and other

11  commonly used means of distribution no later than July 1 of

12  each year.

13         Section 8.  Section 627.41492, Florida Statutes, is

14  created to read:

15         627.41492  Annual medical malpractice report.--The

16  Office of Insurance Regulation shall prepare an annual report

17  by October 1 of each year, which shall be available to the

18  public and posted on the Internet, which includes the

19  following information:

20         (1)  A summary and analysis of the closed claim

21  information required to be reported pursuant to s. 627.912.

22         (2)  A summary and analysis of the annual and quarterly

23  financial reports filed by each insurer writing medical

24  malpractice insurance in this state.

25         Section 9.  Section 627.41493, Florida Statutes, is

26  created to read:

27         627.41493  Insurance rate rollback.--

28         (1)  For medical malpractice insurance policies issued

29  or renewed on or after July 1, 2003, every insurer, including

30  the Florida Medical Malpractice Joint Underwriting

31  

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 1  Association, shall reduce its rates and premiums to levels

 2  that were in effect on January 1, 2001.

 3         (2)  For medical malpractice insurance policies issued

 4  or renewed on or after July 1, 2003, and before July 1, 2004,

 5  rates and premiums reduced pursuant to subsection (1) may only

 6  be increased if the director of the Office of Insurance

 7  Regulation finds that an insurer or the Florida Medical

 8  Malpractice Joint Underwriting Association is unable to earn a

 9  fair rate of return. Any such increase must be approved by the

10  director of the Office of Insurance Regulation prior to being

11  used.

12         (3)  The provisions of this section control to the

13  extent of any conflict with the provision of s. 627.062.

14         Section 10.  If, as of July 1, 2004, the director of

15  the Office of Insurance Regulation determines that the rates

16  of medical malpractice insurers have been reduced to the level

17  in effect January 1, 2001, but have not remained at the level

18  for the previous year beginning July 1, 2003, and that the

19  medical malpractice insurers have proposed increases from the

20  January 1, 2001, level that are greater than 15 percent for

21  each of the next 2 years beginning July 1, 2004, then the

22  provisions of section 11 shall take effect.

23         Section 11.  Florida Medical Malpractice Insurance

24  Fund.--

25         (1)  FINDINGS AND PURPOSES.--The Legislature finds and

26  declares that there is a compelling state interest in

27  maintaining the availability and affordability of health care

28  services to the citizens of Florida. This state interest is

29  seriously threatened by the increased cost and decreased

30  availability of medical malpractice insurance to physicians.

31  To the extent that the private sector is unable to maintain a

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 1  viable and orderly market for medical malpractice insurance,

 2  state actions to maintain the availability and affordability

 3  of medical malpractice insurance are a valid and necessary

 4  exercise of the police power.

 5         (2)  DEFINITIONS.--As used in this section:

 6         (a)  "Fund" means the Florida Medical Malpractice

 7  Insurance Fund, as created pursuant to this section.

 8         (b)  "Physician" means a physician licensed under

 9  chapter 458 or chapter 459, Florida Statutes.

10         (3)  FLORIDA MEDICAL MALPRACTICE INSURANCE FUND

11  CREATED.--Effective October 1, 2003, there is created the

12  Florida Medical Malpractice Insurance Fund, which shall be

13  subject to the requirements of this section.

14         (a)  The fund shall be administered by a board of

15  governors consisting of seven members who are appointed as

16  follows:

17         1.  Three members by the Governor;

18         2.  Three members by the Chief Financial Officer; and

19         3.  One member by the other six board members.

20  

21  Board members shall serve at the pleasure of the appointing

22  authority. Two board members must be doctors licensed in this

23  state and the Governor and the Chief Financial Officer shall

24  each appoint one of these doctors.

25         (b)  The board shall submit a plan of operation, which

26  must be approved by the Office of Insurance Regulation of the

27  Financial Services Commission. The plan of operation and other

28  actions of the board shall not be considered rules subject to

29  the requirements of chapter 120, Florida Statutes.

30  

31  

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 1         (c)  Except as otherwise provided by this section, the

 2  fund shall be subject to the requirements of state law which

 3  apply to authorized insurers.

 4         (d)  Moneys in the fund may not be expended, loaned, or

 5  appropriated except to pay obligations of the fund arising out

 6  of medical malpractice insurance policies issued to physicians

 7  and the costs of administering the fund, including the

 8  purchase of reinsurance as the board deems prudent. The board

 9  shall enter into an agreement with the State Board of

10  Administration, which shall invest one-third of the moneys in

11  the fund pursuant to ss. 215.44-215.52, Florida Statutes. The

12  board shall enter into an agreement with the Division of

13  Treasury of the Department of Financial Services, which shall

14  invest two-thirds of the moneys in the fund pursuant to the

15  requirements for the investment of state funds in chapter 17,

16  Florida Statutes. Earnings from all investments shall be

17  retained in the fund, except as otherwise provided in this

18  section.

19         (e)  The fund may employ or contract with such staff

20  and professionals as the board deems necessary for the

21  administration of the fund.

22         (f)  There shall be no liability on the part of any

23  member of the board, its agents, or any employee of the state

24  for any action taken by them in the performance of their

25  powers and duties under this section. Such immunity does not

26  apply to any willful tort or to breach of any contract or

27  agreement.

28         (g)  The fund is not a member insurer of the Florida

29  Insurance Guaranty Association established pursuant to part II

30  of chapter 631, Florida Statutes.

31  

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 1         (4)  MEDICAL MALPRACTICE INSURANCE POLICIES.--The board

 2  must offer medical malpractice insurance to any physician,

 3  regardless of his or her specialty, but may adopt underwriting

 4  requirements, as specified in its plan of operation. The fund

 5  shall offer limits of coverage of $250,000 per claim/$500,000

 6  annual aggregate; $500,000 per claim/$1 million annual

 7  aggregate; and $1 million per claim/$2 million annual

 8  aggregate. The fund shall offer such other limits as specified

 9  in its plan of operation.

10         (5)  PREMIUM RATES.--The premium rates for coverage

11  offered by the fund must be actuarially sound and shall be

12  subject to the same requirements that apply to authorized

13  insurers issuing medical malpractice insurance, except that:

14         (a)  The rates shall not include any factor for

15  profits; and

16         (b)  The anticipated future investment income of the

17  fund, as projected in its rate filing, must be approximately

18  equal to the actual investment income that the fund has

19  earned, on average, for the prior 7 years. For those years of

20  the prior 7 years during which the fund was not in operation,

21  the anticipated future investment income must be approximately

22  equal to the actual average investment income earned by the

23  State Board of Administration for the moneys available for

24  investment under ss. 215.44-215.53, Florida Statutes, and the

25  average annual investment income earned by the Division of

26  Treasury of the Department of Financial Services for the

27  investment of state funds under chapter 17, Florida Statutes,

28  in the same proportion as specified in paragraph (3)(d).

29         (6)  TAX EXEMPTION.--The fund shall be a political

30  subdivision of the state and is exempt from the corporate

31  income tax under chapter 220, Florida Statutes, and the

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 1  premiums shall not be subject to the premium tax imposed by s.

 2  624.509, Florida Statutes. It is also the intent of the

 3  Legislature that the fund be exempt from federal income

 4  taxation. The Financial Services Commission and the fund shall

 5  seek an opinion from the Internal Revenue Service as to the

 6  tax-exempt status of the fund and shall make such

 7  recommendations to the Legislature as the board deems

 8  necessary to obtain tax-exempt status.

 9         (7)  INITIAL CAPITALIZATION.--The fund shall enter into

10  an agreement with the Florida Birth-Related Neurological

11  Injury Compensation (NICA) Fund for a loan of $100 million to

12  the fund. Repayment of the loan by the fund shall commence no

13  earlier than 3 years following the date of the agreement. In

14  the interim prior to the beginning of repayment, interest

15  shall accrue at a rate described in the agreement. The rate of

16  repayment shall be based on assumptions that ensure the proper

17  operation of the fund. The moneys loaned to the fund pursuant

18  to this subsection shall be considered admitted assets of the

19  fund for purposes of chapter 625, Florida Statutes.

20         (8)  RULES.--The Financial Services Commission may

21  adopt rules to implement and administer the provisions of this

22  section.

23         (9)  REVERSION OF FUND ASSETS UPON TERMINATION.--The

24  fund and the duties of the board under this section shall

25  stand repealed on January 1, 2013, unless reviewed and saved

26  from repeal through reenactment by the Legislature. Upon

27  termination of the fund, all assets of the fund shall revert

28  to the General Revenue Fund.

29         Section 12.  Notwithstanding any law to the contrary,

30  all practitioners licensed under chapter 458 or chapter 459,

31  Florida Statutes, as a condition of licensure shall be

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 1  required to maintain financial responsibility by obtaining and

 2  maintaining professional liability coverage in an amount not

 3  less than $250,000 per claim, with a minimum annual aggregate

 4  of not less than $500,000, from an authorized insurer as

 5  defined under section 624.09, Florida Statutes, from a surplus

 6  lines insurer as defined under section 629.914(2), Florida

 7  Statutes, from a risk retention group as defined under section

 8  627.942, Florida Statutes, from the Joint Underwriting

 9  Association established under section 627.357(4), Florida

10  Statutes, or through a plan of self-insurance as provided in

11  section 627.357, Florida Statutes, or from the Medical

12  Malpractice Insurance Fund.

13         (b)  Physicians and osteopathic physicians who are

14  exempt from the financial responsibility requirements under

15  section 458.320(5)(a),(b),(c),(d),(e) and (f) and section

16  459.0085(5)(a),(b),(c),(d),(e), and (f), Florida Statutes,

17  shall not be subject to the requirements of this section.

18         Section 13.  Section 627.41495, Florida Statutes, is

19  created to read:

20         627.41495  Public hearings for medical malpractice rate

21  filings.--

22         (1)  Upon the filing of a proposed rate change by a

23  medical malpractice insurer or self-insurance fund, which

24  filing would result in an average statewide increase of 25

25  percent, or more, pursuant to standards determined by the

26  office, the insurer or self-insurance fund shall mail notice

27  of such filing to each of its policyholders or members. The

28  notices shall also inform the policyholders and members that a

29  public hearing may be requested on the rate filing and the

30  procedures for requesting a public hearing, as established by

31  rule, by the Financial Services Commission.

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 1         (2)  The rate filing shall be available for public

 2  inspection. If any policyholder or member of an insurer or

 3  self-insurance fund that makes a rate filing described in

 4  subsection (1) requests the Office of Insurance Regulation to

 5  hold a hearing within 30 days after the mailing of the

 6  notification of the proposed rate changes to the insureds, the

 7  office shall hold a hearing within 30 days after such request.

 8  Any policyholder or member may participate in such hearing.

 9  The commission shall adopt rules implementing the provisions

10  of this section.

11         Section 14.  (1)  The Office of Insurance Regulation

12  shall order insurers to make a rate filing effective January

13  1, 2004, for medical malpractice which reduces rates by a

14  presumed factor that reflects the impact the changes contained

15  in all medical malpractice legislation enacted by the Florida

16  Legislature in 2003 will have on such rates, as determined by

17  the Office of Insurance Regulation. In determining the

18  presumed factor, the office shall use generally accepted

19  actuarial techniques and standards provided in section

20  627.062, Florida Statutes, in determining the expected impact

21  on losses, expenses, and investment income of the insurer.

22  Inclusion in the presumed factor of the expected impact of

23  such legislation shall be held in abeyance during the review

24  of such measure's validity in any proceeding by a court of

25  competent jurisdiction.

26         (2)  Any insurer or rating organization that contends

27  that the rate provided for in subsection (1) is excessive,

28  inadequate, or unfairly discriminatory shall separately state

29  in its filing the rate it contends is appropriate and shall

30  state with specificity the factors or data that it contends

31  should be considered in order to produce such appropriate

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 1  rate. The insurer or rating organization shall be permitted to

 2  use all of the generally accepted actuarial techniques, as

 3  provided in section 627.062, Florida Statutes, in making any

 4  filing pursuant to this subsection. The Office of Insurance

 5  Regulation shall review each such exception and approve or

 6  disapprove it prior to use. It shall be the insurer's burden

 7  to actuarially justify any deviations from the rates filed

 8  under subsection (1). Each insurer or rating organization

 9  shall include in the filing the expected impact of all

10  malpractice legislation enacted by the Florida Legislature in

11  2003 on losses, expenses, and rates. If any provision of this

12  act is held invalid by a court of competent jurisdiction, the

13  department shall permit an adjustment of all rates filed under

14  this section to reflect the impact of such holding on such

15  rates, so as to ensure that the rates are not excessive,

16  inadequate, or unfairly discriminatory.

17         Section 15.  Subsection (3) is added to section

18  456.049, Florida Statutes, to read:

19         456.049  Health care practitioners; reports on

20  professional liability claims and actions.--

21         (3)  The department must forward the information

22  collected under this section to the Office of Insurance

23  Regulation.

24         Section 16.  Subsection (10) of section 627.357,

25  Florida Statutes, is amended to read:

26         627.357  Medical malpractice self-insurance.--

27         (10)(a)1.  An application to form a self-insurance fund

28  under this section must be filed with the Office of Insurance

29  Regulation A self-insurance fund may not be formed under this

30  section after October 1, 1992.

31  

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 1         2.  The Financial Services Commission must ensure that

 2  self-insurance funds remain solvent and provide insurance

 3  coverage purchased by participants. The Financial Services

 4  Commission may adopt rules pursuant to ss. 120.536(1) and

 5  120.54 to implement this section.

 6         Section 17.  Section 627.9121, Florida Statutes, is

 7  created to read:

 8         627.9121  Required reporting of claims;

 9  penalties.--Each entity that makes payment under a policy of

10  insurance, self-insurance, or otherwise in settlement or

11  partial settlement of, or in satisfaction of a judgment in, a

12  medical malpractice action or claim that is required to report

13  information to the National Practitioner Data Bank under 42

14  U.S.C. section 11131 must also report the same information to

15  the Office of Insurance Regulation. The Office of Insurance

16  Regulation shall include such information in the data that it

17  compiles under s. 627.912. The office must compile and review

18  the data collected pursuant to this section and must assess an

19  administrative fine on any entity that fails to fully comply

20  with the requirements imposed by law.

21         Section 18.  The Office of Program Policy Analysis and

22  Government Accountability shall complete a study of the

23  eligibility requirements for a birth to be covered under the

24  Florida Birth-Related Neurological Injury Compensation

25  Association and submit a report to the Legislature by January

26  1, 2004, recommending whether or not the statutory criteria

27  for a claim to qualify for referral to the Florida

28  Birth-Related Neurological Injury Compensation Association

29  under section 766.302, Florida Statutes, should be modified.

30         Section 19.  Patient safety discount.--A health care

31  facility licensed pursuant to chapter 395, Florida Statutes,

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 1  may apply to the Department of Financial Services for

 2  certification of any program that is recommended by the

 3  Florida Center for Excellence in Health Care to reduce adverse

 4  incidents, as defined in section 395.0197, Florida Statutes,

 5  which result in the reduction of serious events at that

 6  facility. The department shall develop criteria for such

 7  certification. Insurers shall file with the department a

 8  discount in the rate or rates applicable for insurance

 9  coverage to reflect the effect of a certified program. A

10  health care facility shall receive a discount in the rate or

11  rates applicable for mandated basic insurance coverage

12  required by law. In reviewing filings under this section, the

13  department shall consider whether, and the extent to which,

14  the program certified under this section is otherwise covered

15  under a program of risk management offered by an insurance

16  company or exchange or self-insurance plan providing medical

17  professional liability coverage.

18         Section 20.  Section 627.3575, Florida Statutes, is

19  created to read:

20         627.3575  Health Care Professional Liability Mutual

21  Insurance Facility.--

22         (1)  FACILITY CREATED; PURPOSE; STATUS.--There is

23  created the Health Care Professional Liability Insurance

24  Facility. The facility is intended to meet ongoing

25  availability and affordability problems relating to liability

26  insurance for health care professionals by providing an

27  affordable, self-supporting source of excess insurance

28  coverage. The facility shall operate on a not-for-profit

29  basis. The facility is self-funding and is intended to serve a

30  public purpose but is not a state agency or program, and no

31  activity of the facility shall create any state liability.

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 1         (2)  GOVERNANCE; POWERS.--

 2         (a)  The facility shall operate under a seven-member

 3  board of governors consisting of the Secretary of Health,

 4  three members appointed by the Governor, and three members

 5  appointed by the Chief Financial Officer. The board shall be

 6  chaired by the Secretary of Health. The secretary shall serve

 7  by virtue of his or her office, and the other members of the

 8  board shall serve terms concurrent with the term of office of

 9  the official who appointed them. Any vacancy on the board

10  shall be filled in the same manner as the original

11  appointment. Members serve at the pleasure of the official who

12  appointed them. Members are not eligible for compensation for

13  their service on the board, but the facility may reimburse

14  them for per diem and travel expenses at the same levels as

15  are provided in s. 112.061 for state employees. The board

16  shall form a claims committee consisting of individuals having

17  experience in the management and disposition of medical

18  malpractice claims.

19         (b)  The facility shall have such powers as are

20  necessary to operate as an excess insurer, including the power

21  to:

22         1.  Hire such employees and retain such consultants,

23  attorneys, actuaries, and other professionals as it deems

24  appropriate.

25         2.  Contract with such service providers as it deems

26  appropriate.

27         3.  Maintain offices appropriate to the conduct of its

28  business.

29         4.  Take such other actions as are necessary or

30  appropriate in fulfillment of its responsibilities under this

31  section.

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 1         (3)  COVERAGE PROVIDED.--The facility shall provide

 2  excess liability insurance coverage for health care

 3  professionals licensed under chapter 458 and chapter 459. The

 4  facility shall allow policyholders to select from policies

 5  with deductibles of $100,000, $200,000, and $250,000; excess

 6  coverage limits of $250,000 per claim and $750,000 annual

 7  aggregate; $1 million per claim and $3 million annual

 8  aggregate; or $2 million and $4 million annual aggregate. To

 9  the greatest extent possible, the terms and conditions of the

10  policies shall be consistent with terms and conditions

11  commonly used by professional liability insurers. Since it is

12  the intent that the facility operate in all respects as an

13  excess insurer, the health care provider that elects to

14  self-insure for the chosen deductible shall be responsible for

15  the costs associated with the defense of a claim, including

16  attorney's fees. If the chosen deductible is to be satisfied

17  through commercial insurance, a self-insurance trust, or other

18  authorized insurance program, that entity shall be responsible

19  for the costs and fees associated with the defense of a claim.

20         (4)  COVERAGE REQUIRED.--

21         (a)  All health care professionals licensed under

22  chapter 458 or chapter 459 may purchase coverage provided by

23  the facility as a condition of licensure.

24         (b)  Such professional shall at all times maintain:

25         1.  An escrow account consisting of cash or assets

26  eligible for deposit under s. 625.52 in an amount equal to the

27  chosen deductible amount of the policy;

28         2.  An unexpired, irrevocable letter of credit,

29  established pursuant to chapter 675, in an amount not less

30  than the chosen deductible amount of the policy. The letter of

31  credit shall be payable to the health care professional as

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 1  beneficiary upon presentment of a final judgment indicating

 2  liability and awarding damages to be paid by the physician if

 3  no appeal has been taken or if an appeal has been finally

 4  disposed of, or upon presentment of a settlement agreement

 5  signed by all parties to such agreement when such final

 6  judgment or settlement is a result of a claim arising out of

 7  the rendering of, or the failure to render, medical care and

 8  services. Such letter of credit shall be nonassignable and

 9  nontransferable. Such letter of credit shall be issued by any

10  bank or savings association organized and existing under the

11  laws of this state or any bank or savings association

12  organized under the laws of the United States that has its

13  principal place of business in this state or has a branch

14  office which is authorized under the laws of this state or of

15  the United States to receive deposits in this state; or

16         3.  Professional liability coverage in an amount not

17  less than the chosen deductible amount of the policy offered

18  pursuant to this act from an authorized insurer as defined

19  under s. 624.09, from a surplus lines insurer as defined under

20  s. 626.914(2), from a risk retention group as defined under s.

21  627.942, from the Joint Underwriting Association established

22  under s. 627.351(4), or through a plan of self-insurance as

23  provided in s. 627.357.

24         (5)  PREMIUMS.--The facility shall charge the

25  actuarially indicated premium for the coverage provided and

26  shall retain the services of consulting actuaries to prepare

27  its rate filings. The rate filings shall have no more than

28  three rating categories by specialty and shall apply a

29  discount or surcharge based on the provider's loss experience.

30  The facility shall not provide dividends to policyholders,

31  and, to the extent that premiums are more than the amount

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 1  required to cover claims and expenses, such excess, as

 2  determined by the consulting actuaries, shall be retained by

 3  the facility for payment of future claims. If it is determined

 4  by the consulting actuaries that the premiums collected are

 5  more than sufficient for the payment of future claims, such

 6  excess funds may be distributed to the participants. In the

 7  event of dissolution of the facility, any amounts not required

 8  as a reserve for outstanding claims shall be transferred to

 9  the policyholders of record as of the last day of operation.

10         (6)  REGULATION; APPLICABILITY OF OTHER STATUTES.--

11         (a)  The facility shall operate pursuant to a plan of

12  operation approved by order of the Office of Insurance

13  Regulation of the Financial Services Commission. The board of

14  governors may at any time adopt amendments to the plan of

15  operation and submit the amendments to the Office of Insurance

16  Regulation for approval.

17         (b)  The facility is subject to regulation by the

18  Office of Insurance Regulation of the Financial Services

19  Commission in the same manner as other insurers and is exempt

20  from laws relating to a required surplus. Any required surplus

21  shall be determined by the Office of Insurance Regulation.

22         (c)  The facility is not subject to part II of chapter

23  631, relating to the Florida Insurance Guaranty Association.

24         (7)  STARTUP PROVISIONS.--

25         (a)  It is the intent of the Legislature that the

26  facility begin providing excess coverage no later than January

27  1, 2004.

28         (b)  The Governor and the Chief Financial Officer shall

29  make their appointments to the board of governors of the

30  facility no later than July 1, 2003. Until the board is

31  appointed, the Secretary of Health may perform ministerial

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 1  acts on behalf of the facility as chair of the board of

 2  governors.

 3         (c)  Until the facility is able to hire permanent staff

 4  and enter into contracts for professional services, the Office

 5  of Insurance Regulation shall provide support services to the

 6  facility.

 7         (d)  In order to provide startup funds for the

 8  facility, the board of governors may incur debt or enter into

 9  agreements for lines of credit, provided that the sole source

10  of funds for repayment of any debt is future premium revenues

11  of the facility. The amount of such debt or lines of credit

12  may not exceed $50 million.

13         (e)  The Office of Insurance Regulation is authorized

14  to adopt rules to implement the provisions of this act.

15         Section 21.  Any policy issued under section 627.3575,

16  Florida Statutes, shall take effect January 1, 2004, except

17  that if a health care provider holds a liability insurance

18  policy that commenced in 2003 and does not terminate until

19  after January 1, 2004, such provider must purchase coverage

20  under this act upon the termination date of that policy.

21         Section 22.  Section 627.0662, Florida Statutes, is

22  created to read:

23         627.0662  Excessive profits for medical liability

24  insurance prohibited.--

25         (1)  As used in this section:

26         (a)  "Medical liability insurance" means insurance that

27  is written on a professional liability insurance policy issued

28  to a health care practitioner or on a liability insurance

29  policy covering medical malpractice claims issued to a health

30  care facility.

31  

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 1         (b)  "Medical liability insurer" means any insurance

 2  company or group of insurance companies writing medical

 3  liability insurance in this state and does not include any

 4  self-insurance fund or other nonprofit entity writing such

 5  insurance.

 6         (2)  Each medical liability insurer shall file with the

 7  Office of Insurance Regulation, prior to July 1 of each year

 8  on forms prescribed by the office, the following data for

 9  medical liability insurance business in this state. The data

10  shall include both voluntary and joint underwriting

11  association business, as follows:

12         (a)  Calendar-year earned premium.

13         (b)  Accident-year incurred losses and loss adjustment

14  expenses.

15         (c)  The administrative and selling expenses incurred

16  in this state or allocated to this state for the calendar

17  year.

18         (d)  Policyholder dividends incurred during the

19  applicable calendar year.

20         (3)(a)  Excessive profit has been realized if there has

21  been an underwriting gain for the 10 most recent

22  calendar-accident years combined which is greater than the

23  anticipated underwriting profit plus 5 percent of earned

24  premiums for those calendar-accident years.

25         (b)  As used in this subsection with respect to any

26  10-year period, "anticipated underwriting profit" means the

27  sum of the dollar amounts obtained by multiplying, for each

28  rate filing of the insurer group in effect during such period,

29  the earned premiums applicable to such rate filing during such

30  period by the percentage factor included in such rate filing

31  for profit and contingencies, such percentage factor having

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 1  been determined with due recognition to investment income from

 2  funds generated by business in this state. Separate

 3  calculations need not be made for consecutive rate filings

 4  containing the same percentage factor for profits and

 5  contingencies.

 6         (4)  Each medical liability insurer shall also file a

 7  schedule of medical liability insurance loss in this state and

 8  loss adjustment experience for each of the 10 most recent

 9  accident years. The incurred losses and loss adjustment

10  expenses shall be valued as of March 31 of the year following

11  the close of the accident year, developed to an ultimate

12  basis, and at nine 12-month intervals thereafter, each

13  developed to an ultimate basis, to the extent that a total of

14  three evaluations is provided for each accident year. The

15  first year to be so reported shall be accident year 2004, such

16  that the reporting of 10 accident years will not take place

17  until accident years 2012 and 2013 have become available.

18         (5)  Each insurer group's underwriting gain or loss for

19  each calendar-accident year shall be computed as follows: the

20  sum of the accident-year incurred losses and loss adjustment

21  expenses as of March 31 of the following year, developed to an

22  ultimate basis, plus the administrative and selling expenses

23  incurred in the calendar year, plus policyholder dividends

24  applicable to the calendar year, shall be subtracted from the

25  calendar-year earned premium to determine the underwriting

26  gain or loss.

27         (6)  For the 10 most recent calendar-accident years,

28  the underwriting gain or loss shall be compared to the

29  anticipated underwriting profit.

30         (7)  If the medical liability insurer has realized an

31  excessive profit, the office shall order a return of the

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 1  excessive amounts to policyholders after affording the insurer

 2  an opportunity for hearing and otherwise complying with the

 3  requirements of chapter 120. Such excessive amounts shall be

 4  refunded to policyholders in all instances unless the insurer

 5  affirmatively demonstrates to the office that the refund of

 6  the excessive amounts will render the insurer or a member of

 7  the insurer group financially impaired or will render it

 8  insolvent.

 9         (8)  The excessive amount shall be refunded to

10  policyholders on a pro rata basis in relation to the final

11  compilation year earned premiums to the voluntary medical

12  liability insurance policyholders of record of the insurer

13  group on December 31 of the final compilation year.

14         (9)  Any return of excessive profits to policyholders

15  under this section shall be provided in the form of a cash

16  refund or a credit towards the future purchase of insurance.

17         (10)(a)  Cash refunds to policyholders may be rounded

18  to the nearest dollar.

19         (b)  Data in required reports to the office may be

20  rounded to the nearest dollar.

21         (c)  Rounding, if elected by the insurer group, shall

22  be applied consistently.

23         (11)(a)  Refunds to policyholders shall be completed as

24  follows:

25         1.  If the insurer elects to make a cash refund, the

26  refund shall be completed within 60 days after entry of a

27  final order determining that excessive profits have been

28  realized; or

29         2.  If the insurer elects to make refunds in the form

30  of a credit to renewal policies, such credits shall be applied

31  to policy renewal premium notices which are forwarded to

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 1  insureds more than 60 calendar days after entry of a final

 2  order determining that excessive profits have been realized.

 3  If an insurer has made this election but an insured thereafter

 4  cancels his or her policy or otherwise allows the policy to

 5  terminate, the insurer group shall make a cash refund not

 6  later than 60 days after termination of such coverage.

 7         (b)  Upon completion of the renewal credits or refund

 8  payments, the insurer shall immediately certify to the office

 9  that the refunds have been made.

10         (12)  Any refund or renewal credit made pursuant to

11  this section shall be treated as a policyholder dividend

12  applicable to the year in which it is incurred, for purposes

13  of reporting under this section for subsequent years.

14         Section 23.  Present subsections (5) through (12) of

15  section 766.106, Florida Statutes, are redesignated as

16  subsections (6) through (13), respectively, and a new

17  subsection (5) is added to that section, to read:

18         766.106  Notice before filing action for medical

19  malpractice; presuit screening period; offers for admission of

20  liability and for arbitration; informal discovery; review.--

21         (5)(a)  In regard to insurance company bad-faith

22  actions arising out of medical malpractice claims, common law

23  good-faith principles shall apply and not statutory good-faith

24  principles.

25         (b)  An insurer shall not be held to have acted in bad

26  faith for failure to timely pay its policy limits if it

27  tenders its policy limits and meets the reasonable conditions

28  of settlement prior to the conclusion of the presuit screening

29  period provided for in subsection (4); during an extension

30  provided for therein; during a period of 120 days thereafter;

31  or during a 60-day period after the filing of an amended

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 1  medical malpractice complaint alleging new facts previously

 2  unknown to the insurer.

 3         Section 24.  By July 1, 2006, each facility licensed

 4  under chapter 395, Florida Statutes, must install a

 5  computerized system for ordering and prescribing medications

 6  which is linked to software designed to prevent prescribing

 7  errors. This requirement shall be a condition of licensure for

 8  each facility. As a condition of hospital privileges, each

 9  health care practitioner authorized to order or prescribe

10  medications must use the facility's computerized system when

11  ordering or prescribing medications in a facility licensed

12  under chapter 395, Florida Statutes.

13         Section 25.  If any provision of this act or its

14  application to any person or circumstance is held invalid, the

15  invalidity does not affect other provisions or applications of

16  the act which can be given effect without the invalid

17  provision or application, and to this end the provisions of

18  this act are severable.

19         Section 26.  Except as otherwise provided in this act,

20  this act shall take effect upon becoming a law.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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    Florida Senate - 2003    CS for CS for SB 560 & CS for SB 2080
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                       Senate Bill CS 0560

 3                                 

 4  Provides that act relates to medical malpractice insurance;

 5  Contains elements of CS/SB 2080, relating to insurance,
    including the roll-back of medical malpractice insurance rates
 6  and public participation in rate reviews;

 7  Establishes the Florida Medical Malpractice Insurance Fund, a
    primary medical malpractice insurance carrier;
 8  
    Creates a trigger by which the Fund comes into operation if
 9  medical malpractice rates are not rolled-back to January 1,
    2001, levels and remain at that level for a period of one year
10  and that no rate is proposed for an increase of greater than
    15 percent;
11  
    Renames the Health Care Professional Liability Mutual
12  Insurance Facility and increases its debt ceiling from $10
    million to $50 million;
13  
    Provides for application of common law principles of good
14  faith against medical malpractice insurer actions when
    settling claims;
15  
    Requires each facility licensed under chapter 395, F.S., to
16  install a computerized system for ordering and prescribing
    medications which is linked to software designed to prevent
17  prescription errors;

18  Prohibits excessive profits gained from medical malpractice
    underwriting and provides for a mechanism for refunding or
19  rebating excessive profits to policy holders.

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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