Senate Bill sb0560e1

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  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; authorizing

29         the purchase of insurance by certain health

30         care providers; amending s. 627.912, F.S.;

31         increasing the limit on a fine; requiring the


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 1         Office of Insurance Regulation to adopt by rule

 2         requirements for reporting financial

 3         information; creating s. 627.41491, F.S.;

 4         requiring the Office of Insurance Regulation to

 5         require health care providers to annually

 6         publish certain rate comparison information;

 7         creating s. 627.41493, F.S.; requiring a

 8         medical malpractice insurance rate rollback;

 9         providing for subsequent increases under

10         certain circumstances; requiring approval for

11         use of certain medical malpractice insurance

12         rates; creating s. 627.41492, F.S.; requiring

13         the Office of Insurance Regulation to publish

14         an annual medical malpractice report; creating

15         s. 627.41495, F.S.; providing for consumer

16         participation in review of medical malpractice

17         rate changes; providing for public inspection;

18         providing for adoption of rules by the Office

19         of Insurance Regulation; providing for a

20         mechanism to make effective the Florida Medical

21         Malpractice Insurance Fund in the event the

22         roll back of medical malpractice insurance

23         rates is not completed; creating the Florida

24         Medical Malpractice Insurance Fund; providing

25         purpose; providing governance by a board of

26         governors; providing for the fund to issue

27         medical malpractice policies to any physician

28         regardless of specialty; providing for

29         regulation by the Office of Insurance

30         Regulation of the Financial Services

31         Commission; providing applicability; providing


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 1         for initial funding; providing for tax-exempt

 2         status; providing for initial capitalization;

 3         providing for termination of the fund;

 4         providing that practitioners licensed under ch.

 5         458 or ch. 459, F.S., must, as a licensure

 6         requirement, obtain and maintain professional

 7         liability coverage; requiring the Office of

 8         Insurance Regulation to order insurers to make

 9         rate filings effective January 1, 2004, which

10         reflect the impact of the act; providing

11         criteria for such rate filing; amending s.

12         456.049, F.S.; requiring the Department of

13         Health to report certain liability claims to

14         the Office of Insurance Regulation; amending s.

15         627.357, F.S.; providing guidelines for the

16         formation and regulation of certain

17         self-insurance funds; creating s. 627.9121,

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

19         settlements to be reported to the Office of

20         Insurance Regulation; providing penalties;

21         requiring the Office of Program Policy Analysis

22         and Government Accountability to study and

23         report to the Legislature on requirements for

24         coverage by the Florida Birth-Related

25         Neurological Injury Compensation Association;

26         authorizing health care facilities to apply to

27         the Department of Financial Services for

28         discounts in insurance rates after reducing

29         adverse incidents and serious events at the

30         facility; requiring health care facilities to

31         apply to the Department of Financial Services


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 1         for the certification of programs recommended

 2         by the Florida Center for Excellence in Health

 3         Care; requiring the Department of Financial

 4         Services to develop criteria for the

 5         certification; requiring insurers to file rates

 6         with the Department of Financial Services for

 7         review under specified circumstances; creating

 8         s. 627.0662, F.S.; providing definitions;

 9         requiring each medical liability insurer to

10         report certain information to the Office of

11         Insurance Regulation; providing for

12         determination of whether excessive profit has

13         been realized; requiring return of excessive

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

15         for application of common law principles of

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

17         actions arising out of medical malpractice

18         claims; providing that an insurer shall not be

19         held to have acted in bad faith for certain

20         activities during the presuit period and for

21         120 days after that period; providing

22         legislative intent; providing for severability;

23         providing a contingent effective date.

24  

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

26  

27         Section 1.  Findings.--

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

29  of a medical malpractice insurance crisis of unprecedented

30  magnitude.

31  


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 1         (2)  The Legislature finds that this crisis threatens

 2  the quality and availability of health care for all Florida

 3  citizens.

 4         (3)  The Legislature finds that the rapidly growing

 5  population and the changing demographics of Florida make it

 6  imperative that students continue to choose Florida as the

 7  place they will receive their medical educations and practice

 8  medicine.

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

10  states with the highest medical malpractice insurance premiums

11  in the nation.

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

13  malpractice insurance has increased dramatically during the

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

15  substantially higher than the national average.

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

17  malpractice liability insurance rates is forcing physicians to

18  practice medicine without professional liability insurance, to

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

20  retire early from the practice of medicine.

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

22  Force on Healthcare Professional Liability Insurance to study

23  and make recommendations to address these problems.

24         (8)  The Legislature has reviewed the findings and

25  recommendations of the Governor's Select Task Force on

26  Healthcare Professional Liability Insurance.

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

28  Task Force on Healthcare Professional Liability Insurance has

29  established that a medical malpractice insurance crisis exists

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

31  adoption of comprehensive legislatively enacted reforms.


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

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

 3  overwhelming public necessity.

 4         (11)  The Legislature finds that ensuring that

 5  physicians continue to practice in Florida is an overwhelming

 6  public necessity.

 7         (12)  The Legislature finds that ensuring the

 8  availability of affordable professional liability insurance

 9  for physicians is an overwhelming public necessity.

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

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

12  Healthcare Professional Liability Insurance, the findings and

13  recommendations of various study groups throughout the nation,

14  and the experience of other states, that the overwhelming

15  public necessities of making quality health care available to

16  the citizens of this state, of ensuring that physicians

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

18  physicians have the opportunity to purchase affordable

19  professional liability insurance cannot be met unless

20  comprehensive legislation is adopted.

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

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

23  the purpose of making quality health care available to the

24  citizens of Florida.

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

26  Statutes, is amended to read:

27         624.462  Commercial self-insurance funds.--

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

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

30  operating individually and collectively through a trust or

31  corporation, that must be:


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 1         (a)  Established by:

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

 3  association, or professional association of employers or

 4  professionals which has a constitution or bylaws, which is

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

 6  organized for purposes other than that of obtaining or

 7  providing insurance and operated in good faith for a

 8  continuous period of 1 year;

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

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

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

12  providing insurance pursuant to this section.  Each member of

13  a commercial self-insurance trust fund established pursuant to

14  this subsection must maintain membership in the self-insurance

15  trust fund organized pursuant to s. 627.357; or

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

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

18         4.3.  A not-for-profit group comprised of no less than

19  10 condominium associations as defined in s. 718.103(2), which

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

21  its membership to condominium associations only, and which has

22  been organized and maintained in good faith for a continuous

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

24  providing insurance.

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

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

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

28  which shall have complete fiscal control over the fund and

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

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

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


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

 2  applications of members for participation in the fund and to

 3  contract with an authorized administrator or servicing company

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

 5         2.  In the case of funds established pursuant to

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

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

 8  by a board of directors which board shall:

 9         a.  Be responsible to members of the fund or

10  beneficiaries of the trust or policyholders of the

11  corporation;

12         b.  Appoint independent certified public accountants,

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

14         c.  Approve payment of dividends to members;

15         d.  Approve changes in corporate structure; and

16         e.  Have the authority to contract with an

17  administrator authorized under s. 626.88 to administer the

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

19  marketing, underwriting, billing, collection, claims

20  administration, safety and loss prevention, reinsurance,

21  policy issuance, accounting, regulatory reporting, and general

22  administration.  The fees or compensation for services under

23  such contract shall be comparable to the costs for similar

24  services incurred by insurers writing the same lines of

25  insurance, or where available such expenses as filed by

26  boards, bureaus, and associations designated by insurers to

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

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

29  or more members of the fund.

30  

31  


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

 2  627.062, Florida Statutes, is amended, and subsection (7) is

 3  added to that section, to read:

 4         627.062  Rate standards.--

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

 6  that constitutes agency action for purposes of the

 7  Administrative Procedure Act, except for a rate filing for

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

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

10  filing. Arbitration shall be conducted by a board of

11  arbitrators consisting of an arbitrator selected by the

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

13  arbitrator selected jointly by the other two arbitrators. Each

14  arbitrator must be certified by the American Arbitration

15  Association. A decision is valid only upon the affirmative

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

17  an employee of any insurance regulator or regulatory body or

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

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

20  insurer must treat the decision of the arbitrators as the

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

22  paid by the insurer.

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

24  with respect to rates for medical malpractice insurance and

25  shall control to the extent of any conflict with other

26  provisions of this section.

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

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

29  and any portion of a judgment entered which awards punitive

30  damages against an insurer may not be included in the

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


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

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

 3  statutory or portion of a settlement wherein an insurer agrees

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

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

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

 7  bad faith and punitive damages in these judgments and

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

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

10         (c)  Upon reviewing a rate filing and determining

11  whether the rate is excessive, inadequate, or unfairly

12  discriminatory, the Office of Insurance Regulation shall

13  consider, in accordance with generally accepted and reasonable

14  actuarial techniques, past and present prospective loss

15  experience, either using loss experience solely for this state

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

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

18  standards established by this section, the rate structure

19  provides for replenishment of reserves or surpluses from

20  premiums when the replenishment is attributable to investment

21  losses.

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

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

24  establish an alternative method giving due consideration to

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

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

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

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

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

30  prospective policyholders at the time of application for

31  coverage.


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

 2  627.0645, Florida Statutes, are amended to read:

 3         627.0645  Annual filings.--

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

 5  each insurer writing, any line of property or casualty

 6  insurance to which this part applies, except:

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

 8  insurance; or

 9         (b)  Commercial property and casualty insurance as

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

11  and commercial motor vehicle, and medical malpractice,

12  

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

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

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

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

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

18  filing are not subject to this section.

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

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

21  cause due to insignificant numbers of policies in force or

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

23  coverage, from filing rates or rate certification as required

24  by this section.

25         Section 5.  Effective October 1, 2003, section

26  627.4147, Florida Statutes, is amended to read:

27         627.4147  Medical malpractice insurance contracts.--

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

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

30  or insurance policy providing coverage for claims arising out

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


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 1  services, including those of the Florida Medical Malpractice

 2  Joint Underwriting Association, shall include:

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

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

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

 6  against the insured.

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

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

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

10  offer of admission of liability and for arbitration pursuant

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

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

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

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

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

16  766.106, settlement offer, or offer of judgment, when such

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

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

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

20  and in the best interests of the insured.

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

22  458 or chapter 459 or dentists licensed under chapter 466, a

23  clause clearly stating whether or not the insured has the

24  exclusive right to veto any offer of admission of liability

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

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

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

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

29  liability and for arbitration pursuant to s. 766.106,

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

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


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 1  liability and for arbitration made under s. 766.106,

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

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

 4  interest of the insured.

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

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

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

 8  766.106, settlement offer or offer of judgment, the insurer or

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

10  legal representative by certified mail, return receipt

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

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

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

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

15  reached between the insurer and claimant shall also be

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

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

18  after affecting such agreement.

19         c.  Physicians licensed under chapter 458 or chapter

20  459 and dentists licensed under chapter 466 may purchase an

21  insurance policy pursuant to this subparagraph if such

22  policies are available. Insurers may offer such policies,

23  notwithstanding any other provision of law to the contrary.

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

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

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

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

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

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

30  contract period. If cancellation or nonrenewal is due to

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


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

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

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

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

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

 6  section.

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

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

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

10  local professional society of health care providers which

11  maintains a medical review committee. No professional society

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

13  participates in a health maintenance organization licensed

14  under part I of chapter 641.

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

16  renewed after October 1, 2003 1985.

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

18  Florida Statutes, are amended to read:

19         627.912  Professional liability claims and actions;

20  reports by insurers.--

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

22  contain:

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

24  insured.

25         (b)  The insured's policy number.

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

27  claim.

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

29  self-insurer.

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

31  information is confidential and exempt from the provisions of


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

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

 3  the department to the Department of Health. This information

 4  may be used by the department for purposes of identifying

 5  multiple or duplicate claims arising out of the same

 6  occurrence.

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

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

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

10  involved in the claim.

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

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

13  copy of the settlement or judgment.

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

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

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

17  expenses.

18         (k)  The loss adjustment expense paid to defense

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

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

21  judgment or settlement.

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

23  claim, which shall include:

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

25  location within the institution at which the injury occurred.

26         2.  The final diagnosis for which treatment was sought

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

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

29  the patient's actual condition.

30         4.  The operation, diagnostic, or treatment procedure

31  causing the injury.


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 1         5.  A description of the principal injury giving rise

 2  to the claim.

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

 4  the insured to make similar occurrences or injuries less

 5  likely in the future.

 6         (n)  Any other information required by the office

 7  department to analyze and evaluate the nature, causes,

 8  location, cost, and damages involved in professional liability

 9  cases. The Financial Services Commission shall adopt by rule

10  requirements for additional information to assist the office

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

12  location, cost, and damages involved in professional liability

13  cases reported by insurers under this section.

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

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

16  reporting hereunder or its agents or employees or the

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

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

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

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

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

22  after October 1, 1997.

23         Section 7.  Section 627.41491, Florida Statutes, is

24  created to read:

25         627.41491  Medical malpractice rate comparison.--The

26  Office of Insurance Regulation shall annually publish a

27  comparison of the rate in effect for each medical malpractice

28  insurer and self-insurer and the Florida Medical Malpractice

29  Joint Underwriting Association. Such rate comparison shall be

30  made available to the public through the Internet and other

31  


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

 2  each year.

 3         Section 8.  Section 627.41492, Florida Statutes, is

 4  created to read:

 5         627.41492  Annual medical malpractice report.--The

 6  Office of Insurance Regulation shall prepare an annual report

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

 8  public and posted on the Internet, which includes the

 9  following information:

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

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

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

13  financial reports filed by each insurer writing medical

14  malpractice insurance in this state.

15         Section 9.  Section 627.41493, Florida Statutes, is

16  created to read:

17         627.41493  Insurance rate rollback.--

18         (1)  For medical malpractice insurance policies issued

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

20  every insurer, including the Florida Medical Malpractice Joint

21  Underwriting Association, shall reduce its rates and premiums

22  to levels that were in effect on January 1, 2002.

23         (2)  For medical malpractice insurance policies issued

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

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

26  be increased if the director of the Office of Insurance

27  Regulation finds that the rate reduced pursuant to subsection

28  (1) would result in an inadequate rate. Any such increase must

29  be approved by the director of the Office of Insurance

30  Regulation prior to being used.

31  


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

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

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

 4  the Office of Insurance Regulation determines that the rates

 5  of the medical malpractice insurers with a combined market

 6  share of 50 percent or greater, as measured by net written

 7  premium in the state for medical malpractice for the most

 8  recent calendar year, have been reduced to the level in effect

 9  January 1, 2002, but have not remained at that level for the

10  previous year beginning July 1, 2003, or that such medical

11  malpractice insurers have proposed increases from the January

12  1, 2002, level that are greater than 15 percent for either of

13  the next 2 years beginning July 1, 2004, then the Florida

14  Medical Malpractice Insurance Fund established by section 11

15  of this act shall begin offering coverage.

16         Section 11.  Florida Medical Malpractice Insurance

17  Fund.--

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

19  declares that there is a compelling state interest in

20  maintaining the availability and affordability of health care

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

22  seriously threatened by the increased cost and decreased

23  availability of medical malpractice insurance to physicians.

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

25  viable and orderly market for medical malpractice insurance,

26  state actions to maintain the availability and affordability

27  of medical malpractice insurance are a valid and necessary

28  exercise of the police power.

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

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

31  Insurance Fund, as created pursuant to this section.


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

 2  chapter 458 or chapter 459, Florida Statutes.

 3         (3)  FLORIDA MEDICAL MALPRACTICE INSURANCE FUND

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

 5  Florida Medical Malpractice Insurance Fund, which shall be

 6  subject to the requirements of this section. However, the fund

 7  shall not begin providing or offering coverage until the date

 8  the director of the Office of Insurance Regulation makes the

 9  determination specified in section 10 of this act.

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

11  governors consisting of seven members who are appointed as

12  follows:

13         1.  Three members by the Governor;

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

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

16  

17  Board members shall serve at the pleasure of the appointing

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

19  state and the Governor and the Chief Financial Officer shall

20  each appoint one of these doctors.

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

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

23  Financial Services Commission. The plan of operation and other

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

25  the requirements of chapter 120, Florida Statutes.

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

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

28  apply to authorized insurers.

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

30  appropriated except to pay obligations of the fund arising out

31  of medical malpractice insurance policies issued to physicians


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 1  and the costs of administering the fund, including the

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

 3  shall enter into an agreement with the State Board of

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

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

 6  board shall enter into an agreement with the Division of

 7  Treasury of the Department of Financial Services, which shall

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

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

10  Florida Statutes. Earnings from all investments shall be

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

12  section.

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

14  and professionals as the board deems necessary for the

15  administration of the fund.

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

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

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

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

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

21  agreement.

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

23  Insurance Guaranty Association established pursuant to part II

24  of chapter 631, Florida Statutes. The fund is not subject to

25  sections 624.407, 624.408, 624.4095, and 624.411, Florida

26  Statutes.

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

28  must offer medical malpractice insurance to any physician,

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

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

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


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

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

 3  aggregate. The fund shall also allow policyholders to select

 4  from policies with deductibles of $100,000, $200,000, and

 5  $250,000; excess coverage limits of $250,000 per claim and

 6  $750,000 annual aggregate; $1 million per claim and $3 million

 7  annual aggregate; or $2 million and $4 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 to occur when the fund is established. Repayment of

13  the loan by the fund shall be in five equal annual payments,

14  each made no later than December 31, commencing during the

15  fourth year of operation of the fund after the fund begins to

16  offer medical malpractice insurance. Interest shall accrue on

17  the outstanding amount of the loan at an annual rate equal to

18  the annual rate of investment income earned by the NICA Fund.

19  The moneys loaned to the fund pursuant to this subsection

20  shall be considered admitted assets of the fund for purposes

21  of chapter 625, Florida Statutes.

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

23  adopt rules to implement and administer the provisions of this

24  section.

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

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

27  stand repealed on a date 10 years after the date the Florida

28  Medical Malpractice Insurance Fund begins offering coverage

29  pursuant to this section, unless reviewed and saved from

30  repeal through reenactment by the Legislature. Upon

31  


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

 2  to the General Revenue Fund.

 3         Section 12.  Notwithstanding any law to the contrary,

 4  if the Florida Medical Malpractice Insurance Fund begins

 5  offering coverage pursuant to section 11 of this act, all

 6  practitioners licensed under chapter 458 or chapter 459,

 7  Florida Statutes, as a condition of licensure shall be

 8  required to maintain financial responsibility by obtaining and

 9  maintaining professional liability coverage in an amount not

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

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

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

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

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

15  627.942, Florida Statutes, from the Joint Underwriting

16  Association established under section 627.357(4), Florida

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

18  section 627.357 or section 624.462, Florida Statutes, or from

19  the Medical Malpractice Insurance Fund.

20         (b)  Physicians and osteopathic physicians who are

21  exempt from the financial responsibility requirements under

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

23  459.0085(5)(a),(b),(c),(d),(e), and (f), Florida Statutes,

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

25         Section 13.  Section 627.41495, Florida Statutes, is

26  created to read:

27         627.41495  Public hearings for medical malpractice rate

28  filings.--

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

30  medical malpractice insurer or self-insurance fund, which

31  filing would result in an average statewide increase of 25


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

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

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

 4  notices shall also inform the policyholders and members that a

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

 6  procedures for requesting a public hearing, as established by

 7  rule, by the Financial Services Commission.

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

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

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

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

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

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

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

15  Any policyholder or member may participate in such hearing.

16  The commission shall adopt rules implementing the provisions

17  of this section.

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

19  shall order insurers to make a rate filing effective January

20  1, 2004, for medical malpractice which reduces rates by a

21  presumed factor that reflects the impact the changes contained

22  in all medical malpractice legislation enacted by the Florida

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

24  the Office of Insurance Regulation. In determining the

25  presumed factor, the office shall use generally accepted

26  actuarial techniques and standards provided in section

27  627.062, Florida Statutes, in determining the expected impact

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

29  Inclusion in the presumed factor of the expected impact of

30  such legislation shall be held in abeyance during the review

31  


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

 2  competent jurisdiction.

 3         (2)  Any insurer or rating organization that contends

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

 5  inadequate, or unfairly discriminatory shall separately state

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

 7  state with specificity the factors or data that it contends

 8  should be considered in order to produce such appropriate

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

10  use all of the generally accepted actuarial techniques, as

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

12  filing pursuant to this subsection. The Office of Insurance

13  Regulation shall review each such exception and approve or

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

15  to actuarially justify any deviations from the rates filed

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

17  shall include in the filing the expected impact of all

18  malpractice legislation enacted by the Florida Legislature in

19  2003 on losses, expenses, and rates. If any provision of this

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

21  department shall permit an adjustment of all rates filed under

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

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

24  inadequate, or unfairly discriminatory.

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

26  456.049, Florida Statutes, to read:

27         456.049  Health care practitioners; reports on

28  professional liability claims and actions.--

29         (3)  The department must forward the information

30  collected under this section to the Office of Insurance

31  Regulation.


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

 2  Florida Statutes, is amended to read:

 3         627.357  Medical malpractice self-insurance.--

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

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

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

 7  section after October 1, 1992.

 8         2.  The Financial Services Commission must ensure that

 9  self-insurance funds remain solvent and provide insurance

10  coverage purchased by participants. The Financial Services

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

12  120.54 to implement this section.

13         Section 17.  Section 627.9121, Florida Statutes, is

14  created to read:

15         627.9121  Required reporting of claims;

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

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

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

19  medical malpractice action or claim that is required to report

20  information to the National Practitioner Data Bank under 42

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

22  the Office of Insurance Regulation. The Office of Insurance

23  Regulation shall include such information in the data that it

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

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

26  administrative fine on any entity that fails to fully comply

27  with the requirements imposed by law.

28         Section 18.  The Office of Program Policy Analysis and

29  Government Accountability shall complete a study of the

30  eligibility requirements for a birth to be covered under the

31  Florida Birth-Related Neurological Injury Compensation


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 1  Association and submit a report to the Legislature by January

 2  1, 2004, recommending whether or not the statutory criteria

 3  for a claim to qualify for referral to the Florida

 4  Birth-Related Neurological Injury Compensation Association

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

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

 7  facility licensed pursuant to chapter 395, Florida Statutes,

 8  may apply to the Department of Financial Services for

 9  certification of any program that is recommended by the

10  Florida Center for Excellence in Health Care to reduce adverse

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

12  which result in the reduction of serious events at that

13  facility. The department shall develop criteria for such

14  certification. Insurers shall file with the department a

15  discount in the rate or rates applicable for insurance

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

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

18  rates applicable for mandated basic insurance coverage

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

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

21  the program certified under this section is otherwise covered

22  under a program of risk management offered by an insurance

23  company or exchange or self-insurance plan providing medical

24  professional liability coverage.

25         Section 20.  Section 627.0662, Florida Statutes, is

26  created to read:

27         627.0662  Excessive profits for medical liability

28  insurance prohibited.--

29         (1)  As used in this section:

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

31  is written on a professional liability insurance policy issued


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 1  to a health care practitioner or on a liability insurance

 2  policy covering medical malpractice claims issued to a health

 3  care facility.

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

 5  company or group of insurance companies writing medical

 6  liability insurance in this state and does not include any

 7  self-insurance fund or other nonprofit entity writing such

 8  insurance.

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

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

11  on forms adopted by the Financial Services Commission, the

12  following data for medical liability insurance business in

13  this state. The data shall include both voluntary and joint

14  underwriting association business, as follows:

15         (a)  Calendar-year earned premium.

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

17  expenses.

18         (c)  The administrative and selling expenses incurred

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

20  year.

21         (d)  Policyholder dividends incurred during the

22  applicable calendar year.

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

24  been an underwriting gain for the 10 most recent

25  calendar-accident years combined which is greater than the

26  anticipated underwriting profit plus 5 percent of earned

27  premiums for those calendar-accident years.

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

29  10-year period, "anticipated underwriting profit" means the

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

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


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 1  the earned premiums applicable to such rate filing during such

 2  period by the percentage factor included in such rate filing

 3  for profit and contingencies, such percentage factor having

 4  been determined with due recognition to investment income from

 5  funds generated by business in this state. Separate

 6  calculations need not be made for consecutive rate filings

 7  containing the same percentage factor for profits and

 8  contingencies.

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

10  schedule of medical liability insurance loss in this state and

11  loss adjustment experience for each of the 10 most recent

12  accident years. The incurred losses and loss adjustment

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

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

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

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

17  three evaluations is provided for each accident year. The

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

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

20  until accident years 2012 and 2013 have become available.

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

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

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

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

25  ultimate basis, plus the administrative and selling expenses

26  incurred in the calendar year, plus policyholder dividends

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

28  calendar-year earned premium to determine the underwriting

29  gain or loss.

30  

31  


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

 2  the underwriting gain or loss shall be compared to the

 3  anticipated underwriting profit.

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

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

 6  excessive amounts to policyholders after affording the insurer

 7  an opportunity for hearing and otherwise complying with the

 8  requirements of chapter 120. Such excessive amounts shall be

 9  refunded to policyholders in all instances unless the insurer

10  affirmatively demonstrates to the office that the refund of

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

12  the insurer group financially impaired or will render it

13  insolvent.

14         (8)  The excessive amount shall be refunded to

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

16  compilation year earned premiums to the voluntary medical

17  liability insurance policyholders of record of the insurer

18  group on December 31 of the final compilation year.

19         (9)  Any return of excessive profits to policyholders

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

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

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

23  to the nearest dollar.

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

25  rounded to the nearest dollar.

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

27  be applied consistently.

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

29  follows:

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

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


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 1  final order determining that excessive profits have been

 2  realized; or

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

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

 5  to policy renewal premium notices which are forwarded to

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

 7  order determining that excessive profits have been realized.

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

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

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

11  later than 60 days after termination of such coverage.

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

13  payments, the insurer shall immediately certify to the office

14  that the refunds have been made.

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

16  this section shall be treated as a policyholder dividend

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

18  of reporting under this section for subsequent years.

19         Section 21.  Present subsections (5) through (12) of

20  section 766.106, Florida Statutes, are redesignated as

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

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

23         766.106  Notice before filing action for medical

24  malpractice; presuit screening period; offers for admission of

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

26         (5)(a)  With regard to insurance company bad-faith

27  causes of action arising out of medical malpractice claims,

28  the action shall be brought pursuant to common law and not

29  pursuant to s. 624.155.

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

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


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 1  tenders its policy limits and meets the reasonable conditions

 2  of settlement prior to the conclusion of the presuit screening

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

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

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

 6  medical malpractice complaint alleging new facts previously

 7  unknown to the insurer.

 8         (c)  It is the intent of the Legislature to encourage

 9  all insurers, insureds, and their assigns and legal

10  representatives to act in good faith during a medical

11  negligence action, both during the presuit period and the

12  litigation.

13         Section 22.  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 23.  Except as otherwise provided herein, this

20  act shall take effect July 1, 2003, and the amendments to

21  section 766.106, Florida Statutes, in this act shall apply to

22  any action arising from a medical malpractice claim initiated

23  by a notice of intent to litigate received by a potential

24  defendant in a medical malpractice case on or after that date.

25  

26  

27  

28  

29  

30  

31  


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