Senate Bill sb0564c2

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    Florida Senate - 2003 CS for CS for SB 564 & SB 2120 & SB 2620

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




    308-2315-03

  1                      A bill to be entitled

  2         An act relating to medical malpractice;

  3         providing legislative findings; amending s.

  4         46.015, F.S.; revising requirements for set

  5         offs against damages in medical malpractice

  6         actions if there is a written release or

  7         covenant not to sue; amending s. 456.057, F.S.;

  8         authorizing the release of medical information

  9         to defendant health care practitioners in

10         medical malpractice actions under specified

11         circumstances; amending s. 766.102, F.S;

12         revising requirements for health care providers

13         providing expert testimony in medical

14         negligence actions; prohibiting contingency

15         fees for an expert witness; amending s.

16         766.106, F.S.; revising requirements for

17         presuit notice and insurer or self-insurer

18         response to a claim; permitting written

19         questions during informal discovery; requiring

20         a claimant to execute a medical release to

21         authorize defendants in medical negligence

22         actions to take unsworn statements from a

23         claimant's treating physicians; imposing limits

24         on such statements; amending s. 766.108, F.S.;

25         providing for mandatory mediation; amending s.

26         766.202, F.S.; redefining the terms "economic

27         damages," "medical expert," "noneconomic

28         damages," amending s. 766.206, F.S.; providing

29         for dismissal of a claim under certain

30         circumstances; requiring the court to make

31         certain reports concerning a medical expert who

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 1         fails to meet qualifications; amending s.

 2         766.207, F.S.; providing for the applicability

 3         of the Wrongful Death Act and general law to

 4         arbitration awards; amending s. 768.041, F.S.;

 5         revising requirements for set offs against

 6         damages in medical malpractice actions if there

 7         is a written release or covenant not to sue;

 8         providing legislative intent and findings with

 9         respect to the provision of emergency medical

10         services and care by care providers; amending

11         s. 768.13, F.S.; extending immunity from

12         liability to certain health care practitioners

13         in response to an emergency in a hospital;

14         amending s. 768.28, F.S.; extending sovereign

15         immunity to specified health care providers as

16         agents of the state when providing emergency

17         services pursuant to state and federal imposed

18         obligations; amending s. 768.77, F.S.;

19         prescribing a method for itemization of

20         specific categories of damages awarded in

21         medical malpractice actions; amending s.

22         768.81, F.S.; requiring the trier of fact to

23         apportion total fault solely among the claimant

24         and joint tortfeasors as parties to an action;

25         providing for severability; providing effective

26         dates.

27  

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

29  

30         Section 1.  Findings.--

31  

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

 2  of a medical malpractice insurance crisis of unprecedented

 3  magnitude.

 4         (2)  The Legislature finds that this crisis threatens

 5  the quality and availability of health care for all Florida

 6  citizens.

 7         (3)  The Legislature finds that the rapidly growing

 8  population and the changing demographics of Florida make it

 9  imperative that students continue to choose Florida as the

10  place they will receive their medical educations and practice

11  medicine.

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

13  states with the highest medical malpractice insurance premiums

14  in the nation.

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

16  malpractice insurance has increased dramatically during the

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

18  substantially higher than the national average.

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

20  malpractice liability insurance rates is forcing physicians to

21  practice medicine without professional liability insurance, to

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

23  retire early from the practice of medicine.

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

25  Force on Healthcare Professional Liability Insurance to study

26  and make recommendations to address these problems.

27         (8)  The Legislature has reviewed the findings and

28  recommendations of the Governor's Select Task Force on

29  Healthcare Professional Liability Insurance.

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

31  Task Force on Healthcare Professional Liability Insurance has

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 1  established that a medical malpractice insurance crisis exists

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

 3  adoption of comprehensive legislatively enacted reforms.

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

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

 6  overwhelming public necessity.

 7         (11)  The Legislature finds that ensuring that

 8  physicians continue to practice in Florida is an overwhelming

 9  public necessity.

10         (12)  The Legislature finds that ensuring the

11  availability of affordable professional liability insurance

12  for physicians is an overwhelming public necessity.

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

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

15  Healthcare Professional Liability Insurance, the findings and

16  recommendations of various study groups throughout the nation,

17  and the experience of other states, that the overwhelming

18  public necessities of making quality health care available to

19  the citizens of this state, of ensuring that physicians

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

21  physicians have the opportunity to purchase affordable

22  professional liability insurance cannot be met unless

23  comprehensive legislation is adopted.

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

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

26  the purpose of making quality health care available to the

27  citizens of Florida.

28         Section 2.  Subsection (4) is added to section 46.015,

29  Florida Statutes, to read:

30         46.015  Release of parties.--

31  

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 1         (4)(a)  At trial pursuant to a suit filed under chapter

 2  766 or pursuant to s. 766.209, if any defendant shows the

 3  court that the plaintiff, or his or her legal representative,

 4  has delivered a written release or covenant not to sue to any

 5  person in partial satisfaction of the damages sued for, the

 6  court shall set off this amount from the total amount of the

 7  damages set forth in the verdict and before entry of the final

 8  judgment.

 9         (b)  The amount of any set off under this subsection

10  shall include all sums received by the plaintiff, including

11  economic and noneconomic damages, costs, and attorney's fees.

12         Section 3.  Subsection (6) of section 456.057, Florida

13  Statutes, is amended to read:

14         456.057  Ownership and control of patient records;

15  report or copies of records to be furnished.--

16         (6)  Except in a medical negligence action or

17  administrative proceeding when a health care practitioner or

18  provider is or reasonably expects to be named as a defendant,

19  information disclosed to a health care practitioner by a

20  patient in the course of the care and treatment of such

21  patient is confidential and may be disclosed only to other

22  health care practitioners and providers involved in the care

23  or treatment of the patient, or if permitted by written

24  authorization from the patient or compelled by subpoena at a

25  deposition, evidentiary hearing, or trial for which proper

26  notice has been given or by a medical information release

27  executed pursuant to s. 766.106(13) which permits the taking

28  of unsworn statements.

29         Section 4.  Section 766.102, Florida Statutes, is

30  amended to read:

31  

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 1         766.102  Medical negligence; standards of recovery;

 2  expert witness.--

 3         (1)  In any action for recovery of damages based on the

 4  death or personal injury of any person in which it is alleged

 5  that such death or injury resulted from the negligence of a

 6  health care provider as defined in s. 766.101(1)(b) s.

 7  768.50(2)(b), the claimant shall have the burden of proving by

 8  the greater weight of evidence that the alleged actions of the

 9  health care provider represented a breach of the prevailing

10  professional standard of care for that health care provider.

11  The prevailing professional standard of care for a given

12  health care provider shall be that level of care, skill, and

13  treatment which, in light of all relevant surrounding

14  circumstances, is recognized as acceptable and appropriate by

15  reasonably prudent similar health care providers.

16         (2)(a)  If the health care provider whose negligence is

17  claimed to have created the cause of action is not certified

18  by the appropriate American board as being a specialist, is

19  not trained and experienced in a medical specialty, or does

20  not hold himself or herself out as a specialist, a "similar

21  health care provider" is one who:

22         1.  Is licensed by the appropriate regulatory agency of

23  this state;

24         2.  Is trained and experienced in the same discipline

25  or school of practice; and

26         3.  Practices in the same or similar medical community.

27         (b)  If the health care provider whose negligence is

28  claimed to have created the cause of action is certified by

29  the appropriate American board as a specialist, is trained and

30  experienced in a medical specialty, or holds himself or

31  

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 1  herself out as a specialist, a "similar health care provider"

 2  is one who:

 3         1.  Is trained and experienced in the same specialty;

 4  and

 5         2.  Is certified by the appropriate American board in

 6  the same specialty.

 7  

 8  However, if any health care provider described in this

 9  paragraph is providing treatment or diagnosis for a condition

10  which is not within his or her specialty, a specialist trained

11  in the treatment or diagnosis for that condition shall be

12  considered a "similar health care provider."

13         (c)  The purpose of this subsection is to establish a

14  relative standard of care for various categories and

15  classifications of health care providers.  Any health care

16  provider may testify as an expert in any action if he or she:

17         1.  Is a similar health care provider pursuant to

18  paragraph (a) or paragraph (b); or

19         2.  Is not a similar health care provider pursuant to

20  paragraph (a) or paragraph (b) but, to the satisfaction of the

21  court, possesses sufficient training, experience, and

22  knowledge as a result of practice or teaching in the specialty

23  of the defendant or practice or teaching in a related field of

24  medicine, so as to be able to provide such expert testimony as

25  to the prevailing professional standard of care in a given

26  field of medicine.  Such training, experience, or knowledge

27  must be as a result of the active involvement in the practice

28  or teaching of medicine within the 5-year period before the

29  incident giving rise to the claim.

30         (2)(3)(a)  If the injury is claimed to have resulted

31  from the negligent affirmative medical intervention of the

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 1  health care provider, the claimant must, in order to prove a

 2  breach of the prevailing professional standard of care, show

 3  that the injury was not within the necessary or reasonably

 4  foreseeable results of the surgical, medicinal, or diagnostic

 5  procedure constituting the medical intervention, if the

 6  intervention from which the injury is alleged to have resulted

 7  was carried out in accordance with the prevailing professional

 8  standard of care by a reasonably prudent similar health care

 9  provider.

10         (b)  The provisions of this subsection shall apply only

11  when the medical intervention was undertaken with the informed

12  consent of the patient in compliance with the provisions of s.

13  766.103.

14         (3)(4)  The existence of a medical injury shall not

15  create any inference or presumption of negligence against a

16  health care provider, and the claimant must maintain the

17  burden of proving that an injury was proximately caused by a

18  breach of the prevailing professional standard of care by the

19  health care provider. However, the discovery of the presence

20  of a foreign body, such as a sponge, clamp, forceps, surgical

21  needle, or other paraphernalia commonly used in surgical,

22  examination, or diagnostic procedures, shall be prima facie

23  evidence of negligence on the part of the health care

24  provider.

25         (4)(5)  The Legislature is cognizant of the changing

26  trends and techniques for the delivery of health care in this

27  state and the discretion that is inherent in the diagnosis,

28  care, and treatment of patients by different health care

29  providers.  The failure of a health care provider to order,

30  perform, or administer supplemental diagnostic tests shall not

31  be actionable if the health care provider acted in good faith

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 1  and with due regard for the prevailing professional standard

 2  of care.

 3         (5)  A person may not give expert testimony concerning

 4  the prevailing professional standard of care unless that

 5  person is a licensed health care provider and meets the

 6  following criteria:

 7         (a)  If the party against whom or on whose behalf the

 8  testimony is offered is a specialist, the expert witness must:

 9         1.  Specialize in the same specialty as the party

10  against whom or on whose behalf the testimony is offered; or 

11         2.  Specialize in a similar speciality that includes

12  the evaluation, diagnosis, or treatment of the medical

13  condition that is the subject of the claim and have prior

14  experience treating similar patients.

15         (b)  Have devoted professional time during the 3 years

16  immediately preceding the date of the occurrence that is the

17  basis for the action to:

18         1.  The active clinical practice of, or consulting with

19  respect to, the same or similar health profession as the

20  health care provider against whom or on whose behalf the

21  testimony is offered and, if that health care provider is a

22  specialist, the active clinical practice of, or consulting

23  with respect to, the same or similar specialty that includes

24  the evaluation, diagnosis, or treatment of the medical

25  condition that is the subject of the claim and have prior

26  experience treating similar patients;

27         2.  The instruction of students in an accredited health

28  professional school or accredited residency program in the

29  same or similar health profession in which the health care

30  provider against whom or on whose behalf the testimony is

31  offered and, if that health care provider is a specialist, an

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 1  accredited health professional school or accredited residency

 2  or clinical research program in the same or similar specialty;

 3  or

 4         3.  A clinical research program that is affiliated with

 5  an accredited medical school or teaching hospital and that is

 6  in the same or similar health profession as the health care

 7  provider against whom or on whose behalf the testimony is

 8  offered and, if that health care provider is a specialist, a

 9  clinical research program that is affiliated with an

10  accredited health professional school or accredited residency

11  or clinical research program in the same or similar specialty.

12         (c)  If the party against whom or on whose behalf the

13  testimony is offered is a general practitioner, the expert

14  witness must have devoted professional time during the 5 years

15  immediately preceding the date of the occurrence that is the

16  basis for the action to:

17         1.  Active clinical practice or consultation as a

18  general practitioner;

19         2.  Instruction of students in an accredited health

20  professional school or accredited residency program in the

21  general practice of medicine; or

22         3.  A clinical research program that is affiliated with

23  an accredited medical school or teaching hospital and that is

24  in the general practice of medicine.

25         (6)  A physician licensed under chapter 458 or chapter

26  459 who qualifies as an expert witness under subsection (5)

27  and who, by reason of active clinical practice or instruction

28  of students, has knowledge of the applicable standard of care

29  for nurses, nurse practitioners, certified registered nurse

30  anesthetists, certified registered nurse midwives, physician

31  assistants, or other medical support staff may give expert

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 1  testimony in a medical malpractice action with respect to the

 2  standard of care of such medical support staff.

 3         (7)  Notwithstanding subsection (5), in a medical

 4  malpractice action against a hospital, a health care facility,

 5  or medical facility, a person may give expert testimony on the

 6  appropriate standard of care as to administrative and other

 7  nonclinical issues if the person has substantial knowledge, by

 8  virtue of his or her training and experience, concerning the

 9  standard of care among hospitals, health care facilities, or

10  medical facilities of the same type as the hospital, health

11  care facility, or medical facility whose acts or omissions are

12  the subject of the testimony and which are located in the same

13  or similar communities at the time of the alleged act giving

14  rise to the cause of action.

15         (8)  If a health care provider described in subsection

16  (5), subsection (6), or subsection (7) is providing

17  evaluation, treatment, or diagnosis for a condition that is

18  not within his or her specialty, a specialist trained in the

19  evaluation, treatment, or diagnosis for that condition shall

20  be considered a similar health care provider.

21         (9)(6)(a)  In any action for damages involving a claim

22  of negligence against a physician licensed under chapter 458,

23  osteopathic physician licensed under chapter 459, podiatric

24  physician licensed under chapter 461, or chiropractic

25  physician licensed under chapter 460 providing emergency

26  medical services in a hospital emergency department, the court

27  shall admit expert medical testimony only from physicians,

28  osteopathic physicians, podiatric physicians, and chiropractic

29  physicians who have had substantial professional experience

30  within the preceding 5 years while assigned to provide

31  emergency medical services in a hospital emergency department.

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 1         (b)  For the purposes of this subsection:

 2         1.  The term "emergency medical services" means those

 3  medical services required for the immediate diagnosis and

 4  treatment of medical conditions which, if not immediately

 5  diagnosed and treated, could lead to serious physical or

 6  mental disability or death.

 7         2.  "Substantial professional experience" shall be

 8  determined by the custom and practice of the manner in which

 9  emergency medical coverage is provided in hospital emergency

10  departments in the same or similar localities where the

11  alleged negligence occurred.

12         (10)  In any action alleging medical malpractice, an

13  expert witness may not testify on a contingency fee basis.

14         (11)  Any attorney who proffers a person as an expert

15  witness pursuant to this section must certify that such person

16  has not been found guilty of fraud or perjury in any

17  jurisdiction.

18         (12)  This section does not limit the power of the

19  trial court to disqualify or qualify an expert witness on

20  grounds other than the qualifications in this section.

21         Section 5.  Effective October 1, 2003, and applicable

22  to notices of intent to litigate sent on or after that date,

23  subsection (2), paragraphs (a) and (b) of subsection (3), and

24  subsection (7) of section 766.106, Florida Statutes, are

25  amended, and subsection (13) is added to that section, to

26  read:

27         766.106  Notice before filing action for medical

28  malpractice; presuit screening period; offers for admission of

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

30         (2)(a)  After completion of presuit investigation

31  pursuant to s. 766.203 and prior to filing a claim for medical

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 1  malpractice, a claimant shall notify each prospective

 2  defendant by certified mail, return receipt requested, of

 3  intent to initiate litigation for medical malpractice. Notice

 4  to each prospective defendant must include, if available, a

 5  list of all known health care providers seen by the claimant

 6  for the injuries complained of subsequent to the alleged act

 7  of malpractice, all known health care providers during the

 8  2-year period prior to the alleged act of malpractice who

 9  treated or evaluated the claimant, and copies of all of the

10  medical records relied upon by the expert in signing the

11  affidavit. The requirement of providing the list of known

12  health care providers may not serve as grounds for imposing

13  sanctions for failure to provide presuit discovery.

14         (b)  Following the initiation of a suit alleging

15  medical malpractice with a court of competent jurisdiction,

16  and service of the complaint upon a defendant, the claimant

17  shall provide a copy of the complaint to the Department of

18  Health. The requirement of providing the complaint to the

19  Department of Health does not impair the claimant's legal

20  rights or ability to seek relief for his or her claim. The

21  Department of Health shall review each incident and determine

22  whether it involved conduct by a licensee which is potentially

23  subject to disciplinary action, in which case the provisions

24  of s. 456.073 apply.

25         (3)(a)  No suit may be filed for a period of 90 days

26  after notice is mailed to any prospective defendant. During

27  the 90-day period, the prospective defendant's insurer or

28  self-insurer shall conduct a review to determine the liability

29  of the defendant.  Each insurer or self-insurer shall have a

30  procedure for the prompt investigation, review, and evaluation

31  

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 1  of claims during the 90-day period.  This procedure shall

 2  include one or more of the following:

 3         1.  Internal review by a duly qualified claims

 4  adjuster;

 5         2.  Creation of a panel comprised of an attorney

 6  knowledgeable in the prosecution or defense of medical

 7  malpractice actions, a health care provider trained in the

 8  same or similar medical specialty as the prospective

 9  defendant, and a duly qualified claims adjuster;

10         3.  A contractual agreement with a state or local

11  professional society of health care providers, which maintains

12  a medical review committee;

13         4.  Any other similar procedure which fairly and

14  promptly evaluates the pending claim.

15  

16  Each insurer or self-insurer shall investigate the claim in

17  good faith, and both the claimant and prospective defendant

18  shall cooperate with the insurer in good faith.  If the

19  insurer requires, a claimant shall appear before a pretrial

20  screening panel or before a medical review committee and shall

21  submit to a physical examination, if required.  Unreasonable

22  failure of any party to comply with this section justifies

23  dismissal of claims or defenses. There shall be no civil

24  liability for participation in a pretrial screening procedure

25  if done without intentional fraud.

26         (b)  At or before the end of the 90 days, the insurer

27  or self-insurer shall provide the claimant with a response:

28         1.  Rejecting the claim;

29         2.  Making a settlement offer; or

30         3.  Making an offer to arbitrate in which liability is

31  deemed admitted and arbitration will be held only of admission

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 1  of liability and for arbitration on the issue of damages.

 2  This offer may be made contingent upon a limit of general

 3  damages.

 4         (7)  Informal discovery may be used by a party to

 5  obtain unsworn statements, the production of documents or

 6  things, and physical and mental examinations, as follows:

 7         (a)  Unsworn statements.--Any party may require other

 8  parties to appear for the taking of an unsworn statement. Such

 9  statements may be used only for the purpose of presuit

10  screening and are not discoverable or admissible in any civil

11  action for any purpose by any party. A party desiring to take

12  the unsworn statement of any party must give reasonable notice

13  in writing to all parties.  The notice must state the time and

14  place for taking the statement and the name and address of the

15  party to be examined.  Unless otherwise impractical, the

16  examination of any party must be done at the same time by all

17  other parties.  Any party may be represented by counsel at the

18  taking of an unsworn statement. An unsworn statement may be

19  recorded electronically, stenographically, or on videotape.

20  The taking of unsworn statements is subject to the provisions

21  of the Florida Rules of Civil Procedure and may be terminated

22  for abuses.

23         (b)  Documents or things.--Any party may request

24  discovery of documents or things.  The documents or things

25  must be produced, at the expense of the requesting party,

26  within 20 days after the date of receipt of the request.  A

27  party is required to produce discoverable documents or things

28  within that party's possession or control.

29         (c)  Physical and mental examinations.--A prospective

30  defendant may require an injured prospective claimant to

31  appear for examination by an appropriate health care provider.

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 1  The defendant shall give reasonable notice in writing to all

 2  parties as to the time and place for examination. Unless

 3  otherwise impractical, a prospective claimant is required to

 4  submit to only one examination on behalf of all potential

 5  defendants. The practicality of a single examination must be

 6  determined by the nature of the potential claimant's

 7  condition, as it relates to the liability of each potential

 8  defendant. Such examination report is available to the parties

 9  and their attorneys upon payment of the reasonable cost of

10  reproduction and may be used only for the purpose of presuit

11  screening. Otherwise, such examination report is confidential

12  and exempt from the provisions of s. 119.07(1) and s. 24(a),

13  Art. I of the State Constitution.

14         (d)  Written questions.--Any party may request answers

15  to written questions, which may not exceed 30, including

16  subparts. A response must be made within 20 days after receipt

17  of the questions.

18         (13)  The claimant must execute a medical information

19  release that allows a defendant or his or her legal

20  representative to obtain unsworn statements of the claimant's

21  treating physicians, which statements must be limited to those

22  areas that are potentially relevant to the claim of personal

23  injury or wrongful death.

24         Section 6.  Section 766.108, Florida Statutes, is

25  amended to read:

26         766.108  Mandatory mediation and mandatory settlement

27  conference in medical malpractice actions.--

28         (1)  Within 120 days after suit for medical malpractice

29  is filed, the parties shall engage in mandatory mediation in

30  accordance with s. 44.102, if the parties have not agreed to

31  binding arbitration under s. 766.207. The Florida Rules of

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 1  Civil Procedure apply to mediation held pursuant to this

 2  section.

 3         (2)(a)(1)  In any action for damages based on personal

 4  injury or wrongful death arising out of medical malpractice,

 5  whether in tort or contract, the court shall require a

 6  settlement conference at least 3 weeks before the date set for

 7  trial.

 8         (b)(2)  Attorneys who will conduct the trial, parties,

 9  and persons with authority to settle shall attend the

10  settlement conference held before the court unless excused by

11  the court for good cause.

12         Section 7.  Subsections (3), (5), and (7), of section

13  766.202, Florida Statutes, are amended to read:

14         766.202  Definitions; ss. 766.201-766.212.--As used in

15  ss. 766.201-766.212, the term:

16         (3)  "Economic damages" means financial losses that

17  which would not have occurred but for the injury giving rise

18  to the cause of action, including, but not limited to, past

19  and future medical expenses and 80 percent of wage loss and

20  loss of earning capacity, to the extent the claimant is

21  entitled to recover such damages under general law, including

22  the Wrongful Death Act.

23         (5)  "Medical expert" means a person duly and regularly

24  engaged in the practice of his or her profession who holds a

25  health care professional degree from a university or college

26  and who meets the requirements of an expert witness as set

27  forth in s. 766.102 has had special professional training and

28  experience or one possessed of special health care knowledge

29  or skill about the subject upon which he or she is called to

30  testify or provide an opinion.

31  

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 1         (7)  "Noneconomic damages" means nonfinancial losses

 2  which would not have occurred but for the injury giving rise

 3  to the cause of action, including pain and suffering,

 4  inconvenience, physical impairment, mental anguish,

 5  disfigurement, loss of capacity for enjoyment of life, and

 6  other nonfinancial losses, to the extent the claimant is

 7  entitled to recover such damages under general law, including

 8  the Wrongful Death Act.

 9         Section 8.  Effective upon this act becoming a law and

10  applicable to all causes of action accruing on or after that

11  date, section 766.206, Florida Statutes, is amended to read:

12         766.206  Presuit investigation of medical negligence

13  claims and defenses by court.--

14         (1)  After the completion of presuit investigation by

15  the parties pursuant to s. 766.203 and any informal discovery

16  pursuant to s. 766.106, any party may file a motion in the

17  circuit court requesting the court to determine whether the

18  opposing party's claim or denial rests on a reasonable basis.

19         (2)  If the court finds that the notice of intent to

20  initiate litigation mailed by the claimant is not in

21  compliance with the reasonable investigation requirements of

22  ss. 766.201-766.212, including a review of the claim and a

23  verified written medical expert opinion by an expert witness

24  as defined in s. 766.202, the court shall dismiss the claim,

25  and the person who mailed such notice of intent, whether the

26  claimant or the claimant's attorney, shall be personally

27  liable for all attorney's fees and costs incurred during the

28  investigation and evaluation of the claim, including the

29  reasonable attorney's fees and costs of the defendant or the

30  defendant's insurer.

31  

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 1         (3)  If the court finds that the response mailed by a

 2  defendant rejecting the claim is not in compliance with the

 3  reasonable investigation requirements of ss.766.201-766.212,

 4  including a review of the claim and a verified written medical

 5  expert opinion by an expert witness as defined in s. 766.202,

 6  the court shall strike the defendant's pleading. response, and

 7  The person who mailed such response, whether the defendant,

 8  the defendant's insurer, or the defendant's attorney, shall be

 9  personally liable for all attorney's fees and costs incurred

10  during the investigation and evaluation of the claim,

11  including the reasonable attorney's fees and costs of the

12  claimant.

13         (4)  If the court finds that an attorney for the

14  claimant mailed notice of intent to initiate litigation

15  without reasonable investigation, or filed a medical

16  negligence claim without first mailing such notice of intent

17  which complies with the reasonable investigation requirements,

18  or if the court finds that an attorney for a defendant mailed

19  a response rejecting the claim without reasonable

20  investigation, the court shall submit its finding in the

21  matter to The Florida Bar for disciplinary review of the

22  attorney.  Any attorney so reported three or more times within

23  a 5-year period shall be reported to a circuit grievance

24  committee acting under the jurisdiction of the Supreme Court.

25  If such committee finds probable cause to believe that an

26  attorney has violated this section, such committee shall

27  forward to the Supreme Court a copy of its finding.

28         (5)(a)  If the court finds that the corroborating

29  written medical expert opinion attached to any notice of claim

30  or intent or to any response rejecting a claim lacked

31  reasonable investigation, or that the medical expert

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 1  submitting the opinion did not meet the expert witness

 2  qualifications as set forth in s. 766.202(5), the court shall

 3  report the medical expert issuing such corroborating opinion

 4  to the Division of Medical Quality Assurance or its designee.

 5  If such medical expert is not a resident of the state, the

 6  division shall forward such report to the disciplining

 7  authority of that medical expert.

 8         (b)  The court shall may refuse to consider the

 9  testimony or opinion attached to any notice of intent or to

10  any response rejecting a claim of such an expert who has been

11  disqualified three times pursuant to this section.

12         Section 9.  Subsection (7) of section 766.207, Florida

13  Statutes, is amended to read:

14         766.207  Voluntary binding arbitration of medical

15  negligence claims.--

16         (7)  Arbitration pursuant to this section shall

17  preclude recourse to any other remedy by the claimant against

18  any participating defendant, and shall be undertaken with the

19  understanding that damages shall be awarded as provided by

20  general law, including the Wrongful Death Act, subject to the

21  following limitations:

22         (a)  Net economic damages shall be awardable,

23  including, but not limited to, past and future medical

24  expenses and 80 percent of wage loss and loss of earning

25  capacity, offset by any collateral source payments.

26         (b)  Noneconomic damages shall be limited to a maximum

27  of $250,000 per incident, and shall be calculated on a

28  percentage basis with respect to capacity to enjoy life, so

29  that a finding that the claimant's injuries resulted in a

30  50-percent reduction in his or her capacity to enjoy life

31  

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 1  would warrant an award of not more than $125,000 noneconomic

 2  damages.

 3         (c)  Damages for future economic losses shall be

 4  awarded to be paid by periodic payments pursuant to s.

 5  766.202(8) and shall be offset by future collateral source

 6  payments.

 7         (d)  Punitive damages shall not be awarded.

 8         (e)  The defendant shall be responsible for the payment

 9  of interest on all accrued damages with respect to which

10  interest would be awarded at trial.

11         (f)  The defendant shall pay the claimant's reasonable

12  attorney's fees and costs, as determined by the arbitration

13  panel, but in no event more than 15 percent of the award,

14  reduced to present value.

15         (g)  The defendant shall pay all the costs of the

16  arbitration proceeding and the fees of all the arbitrators

17  other than the administrative law judge.

18         (h)  Each defendant who submits to arbitration under

19  this section shall be jointly and severally liable for all

20  damages assessed pursuant to this section.

21         (i)  The defendant's obligation to pay the claimant's

22  damages shall be for the purpose of arbitration under this

23  section only.  A defendant's or claimant's offer to arbitrate

24  shall not be used in evidence or in argument during any

25  subsequent litigation of the claim following the rejection

26  thereof.

27         (j)  The fact of making or accepting an offer to

28  arbitrate shall not be admissible as evidence of liability in

29  any collateral or subsequent proceeding on the claim.

30         (k)  Any offer by a claimant to arbitrate must be made

31  to each defendant against whom the claimant has made a claim.

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 1  Any offer by a defendant to arbitrate must be made to each

 2  claimant who has joined in the notice of intent to initiate

 3  litigation, as provided in s. 766.106.  A defendant who

 4  rejects a claimant's offer to arbitrate shall be subject to

 5  the provisions of s. 766.209(3). A claimant who rejects a

 6  defendant's offer to arbitrate shall be subject to the

 7  provisions of s. 766.209(4).

 8         (l)  The hearing shall be conducted by all of the

 9  arbitrators, but a majority may determine any question of fact

10  and render a final decision.  The chief arbitrator shall

11  decide all evidentiary matters.

12  

13  The provisions of this subsection shall not preclude

14  settlement at any time by mutual agreement of the parties.

15         Section 10.  Subsection (4) is added to section

16  768.041, Florida Statutes, to read:

17         768.041  Release or covenant not to sue.--

18         (4)(a)  At trial pursuant to a suit filed under chapter

19  766, or at trial pursuant to s. 766.209, if any defendant

20  shows the court that the plaintiff, or his or her legal

21  representative, has delivered a written release or covenant

22  not to sue to any person in partial satisfaction of the

23  damages sued for, the court shall set off this amount from the

24  total amount of the damages set forth in the verdict and

25  before entry of the final judgment.

26         (b)  The amount of the set off pursuant to this

27  subsection shall include all sums received by the plaintiff,

28  including economic and noneconomic damages, costs, and

29  attorney's fees.

30         Section 11.  Legislative findings and intent.--The

31  Legislature finds and declares it to be of vital importance

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 1  that emergency services and care be provided by hospitals,

 2  physicians, and emergency medical services providers to every

 3  person in need of such care. The Legislature finds that

 4  emergency services and care providers are critical elements in

 5  responding to disaster and emergency situations that might

 6  affect our local communities, state, and country. The

 7  Legislature recognizes the importance of maintaining a viable

 8  system of providing for the emergency medical needs of the

 9  state's residents and visitors. The Legislature and the

10  Federal Government have required such providers of emergency

11  medical services and care to provide emergency services and

12  care to all persons who present to hospitals seeking such

13  care. The Legislature finds that the Legislature has further

14  mandated that prehospital emergency medical treatment or

15  transport may not be denied by emergency medical services

16  providers to persons who have or are likely to have an

17  emergency medical condition. Such governmental requirements

18  have imposed a unilateral obligation for emergency services

19  and care providers to provide services to all persons seeking

20  emergency care without ensuring payment or other consideration

21  for provision of such care. The Legislature also recognizes

22  that emergency services and care providers provide a

23  significant amount of uncompensated emergency medical care in

24  furtherance of such governmental interest. The Legislature

25  finds that a significant proportion of the residents of this

26  state who are uninsured or are Medicaid or Medicare recipients

27  are unable to access needed health care because health care

28  providers fear the increased risk of medical malpractice

29  liability. The Legislature finds that such patients, in order

30  to obtain medical care, are frequently forced to seek care

31  through providers of emergency medical services and care. The

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 1  Legislature finds that providers of emergency medical services

 2  and care in this state have reported significant problems with

 3  both the availability and affordability of professional

 4  liability coverage. The Legislature finds that medical

 5  malpractice liability insurance premiums have increased

 6  dramatically, and a number of insurers have ceased providing

 7  medical malpractice insurance coverage for emergency medical

 8  services and care in this state. This results in a functional

 9  unavailability of medical malpractice insurance coverage for

10  some providers of emergency medical services and care. The

11  Legislature further finds that certain specialist physicians

12  have resigned from serving on hospital staffs or have

13  otherwise declined to provide on-call coverage to hospital

14  emergency departments due to increased medical malpractice

15  liability exposure created by treating such emergency

16  department patients. It is the intent of the Legislature that

17  hospitals, emergency medical services providers, and

18  physicians be able to ensure that patients who might need

19  emergency medical services treatment or transportation or who

20  present to hospitals for emergency medical services and care

21  have access to such needed services.

22         Section 12.  Paragraph (b) of subsection (2) of section

23  768.13, Florida Statutes, is amended, present paragraphs (c)

24  and (d) of that subsection are redesignated as paragraphs (f)

25  and (g), respectively, and new paragraphs (c), (d), and (e)

26  are added to that subsection, to read:

27         768.13  Good Samaritan Act; immunity from civil

28  liability.--

29         (2)

30         (b)1.  Any hospital licensed under chapter 395, any

31  employee of such hospital working in a clinical area within

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 1  the facility and providing patient care, and any person

 2  licensed to practice medicine who in good faith renders

 3  medical care or treatment necessitated by a sudden, unexpected

 4  situation or occurrence resulting in a serious medical

 5  condition demanding immediate medical attention, for which the

 6  patient enters the hospital through its emergency room or

 7  trauma center, or necessitated by a public health emergency

 8  declared pursuant to s. 381.00315 shall not be held liable for

 9  any civil damages as a result of such medical care or

10  treatment unless such damages result from providing, or

11  failing to provide, medical care or treatment under

12  circumstances demonstrating a reckless disregard for the

13  consequences so as to affect the life or health of another.

14         (c)  Any health care practitioner as defined in s.

15  456.001 (4), while in the hospital for any reason, who in good

16  faith responds and renders medical care or treatment in a

17  hospital to a patient with whom the practitioner has no

18  preexisting provider-patient relationship, when such care or

19  treatment is necessitated by a sudden, unexpected situation or

20  occurrence resulting in a serious medical condition demanding

21  immediate medical attention, shall not be held liable for any

22  civil damages as a result of any act or omission relative to

23  that care or treatment unless the care or treatment is proven

24  to amount to conduct demonstrating a reckless disregard for

25  the life or health of the victim.

26         (d)1.2.  The immunity provided by paragraphs (b) and

27  (c) this paragraph does not apply to damages as a result of

28  any act or omission of providing medical care, or treatment,

29  or services:

30         a.  Which occurs after the patient is stabilized and is

31  capable of receiving medical treatment as a nonemergency

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 1  patient, unless surgery is required as a result of the

 2  emergency within a reasonable time after the patient is

 3  stabilized, in which case the immunity provided by this

 4  paragraph applies to any act or omission of providing medical

 5  care or treatment which occurs prior to the stabilization of

 6  the patient following the surgery; or

 7         b.  unrelated to the original medical emergency.

 8         2.3.  For purposes of paragraphs (b) and (c) this

 9  paragraph, "reckless disregard" as it applies to a given

10  health care provider rendering emergency medical care or

11  treatment means services shall be such conduct that which a

12  health care provider knew or should have known, at the time

13  such services were rendered, would be likely to result in

14  injury so as to affect the life or health of another, taking

15  into account the following to the extent they may be present:

16         a.  The extent or serious nature of the circumstances

17  prevailing.

18         b.  The lack of time or ability to obtain appropriate

19  consultation.

20         c.  The lack of a prior patient-physician relationship.

21         d.  The inability to obtain an appropriate medical

22  history of the patient.

23         e.  The time constraints imposed by coexisting

24  emergencies.

25         (e)4.  Every emergency care facility granted immunity

26  under this paragraph (b) shall accept and treat all emergency

27  care patients within the operational capacity of such facility

28  without regard to ability to pay, including patients

29  transferred from another emergency care facility or other

30  health care provider pursuant to Pub. L. No. 99-272, s. 9121.

31  The failure of an emergency care facility to comply with this

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 1  subparagraph constitutes grounds for the department to

 2  initiate disciplinary action against the facility pursuant to

 3  chapter 395.

 4         Section 13.  Paragraph (b) of subsection (9) of section

 5  768.28, Florida Statutes, is amended to read:

 6         768.28  Waiver of sovereign immunity in tort actions;

 7  recovery limits; limitation on attorney fees; statute of

 8  limitations; exclusions; indemnification; risk management

 9  programs.--

10         (9)

11         (b)  As used in this subsection, the term:

12         1.  "Employee" includes any volunteer firefighter.

13         2.a.  "Officer, employee, or agent" includes, but is

14  not limited to, any health care provider when providing

15  services pursuant to s. 766.1115;, any member of the Florida

16  Health Services Corps, as defined in s. 381.0302, who provides

17  uncompensated care to medically indigent persons referred by

18  the Department of Health;, and any public defender or her or

19  his employee or agent, including, among others, an assistant

20  public defender and an investigator.

21         b. Any health care provider providing emergency

22  services pursuant to obligations imposed by 42 U.S.C. s.

23  1395dd, s. 395.1041, s. 394.401, s. 401.45, or s. 768.13. Such

24  health care provider shall be considered an agent of the

25  state, or its applicable agency or subdivision for purposes of

26  immunity under s. 768.28, and shall indemnify the state for

27  any liabilities incurred up to the limits set out in this

28  chapter or the limits of available insurance coverage of the

29  health care provider, whichever is greater. Emergency services

30  under this subparagraph means ambulance assessments,

31  treatment, or transport services provided pursuant to

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 1  obligations imposed by s. 401.45 or s. 395.1041; and all

 2  screening, examination, and evaluation by a physician,

 3  hospital, or other person or entity acting pursuant to

 4  obligations imposed by ss. 395.1041, 395.401, and 42 U.S.C. s.

 5  1395dd; as well as care, treatment, surgery, or other medical

 6  services provided to relieve or eliminate and to stabilize the

 7  emergency medical condition in accordance with s. 395.1041 and

 8  42 U.S.C. s. 1395dd; including all medical services to

 9  eliminate the likelihood that the emergency medical condition

10  will deteriorate or recur without further medical attention

11  within a reasonable period of time. Notwithstanding the waiver

12  of sovereign immunity provided in this subparagraph, claims

13  hereunder may be settled and judgments entered and satisfied

14  up to the limits of the available coverage of the health care

15  provider without the requirement of filing a claim bill. A

16  health care provider under this subparagraph does not include

17  a licensed healthcare practitioner who is providing emergency

18  services to a person with whom the practitioner has an

19  established provider-patient relationship outside of the

20  emergency room setting.

21         Section 14.  Section 768.77, Florida Statutes, is

22  amended to read:

23         768.77  Itemized verdict.--

24         (1)  Except as provided in subsection (2), in any

25  action to which this part applies in which the trier of fact

26  determines that liability exists on the part of the defendant,

27  the trier of fact shall, as a part of the verdict, itemize the

28  amounts to be awarded to the claimant into the following

29  categories of damages:

30         (a)(1)  Amounts intended to compensate the claimant for

31  economic losses;

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 1         (b)(2)  Amounts intended to compensate the claimant for

 2  noneconomic losses; and

 3         (c)(3)  Amounts awarded to the claimant for punitive

 4  damages, if applicable.

 5         (2)  In any action for damages based on personal injury

 6  or wrongful death arising out of medical malpractice, whether

 7  in tort or contract, to which this part applies in which the

 8  trier of fact determines that liability exists on the part of

 9  the defendant, the trier of fact shall, as a part of the

10  verdict, itemize the amounts to be awarded to the claimant

11  into the following categories of damages:

12         (a)  Amounts intended to compensate the claimant for:

13         1.  Past economic losses; and

14         2.  Future economic losses, not reduced to present

15  value, and the number of years or part thereof which the award

16  is intended to cover;

17         (b)  Amounts intended to compensate the claimant for:

18         1.  Past noneconomic losses; and

19         2.  Future noneconomic losses and the number of years

20  or part thereof which the award is intended to cover; and

21         (c)  Amounts awarded to the claimant for punitive

22  damages, if applicable.

23         Section 15.  Subsection (5) of section 768.81, Florida

24  Statutes, is amended to read:

25         768.81  Comparative fault.--

26         (5)  Notwithstanding any provision of anything in law

27  to the contrary, in an action for damages for personal injury

28  or wrongful death arising out of medical malpractice, whether

29  in contract or tort, the trier of fact shall apportion the

30  total fault only among the claimant and all the joint

31  tortfeasors when the case is submitted to the jury for

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 1  deliberation and rendition of the verdict when an

 2  apportionment of damages pursuant to this section is

 3  attributed to a teaching hospital as defined in s. 408.07, the

 4  court shall enter judgment against the teaching hospital on

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

 6  basis of the doctrine of joint and several liability.

 7         Section 16.  If any provision of this act or its

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

 9  invalidity does not affect other provisions or applications of

10  the act which can be given effect without the invalid

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

12  this act are severable.

13         Section 17.  Except as otherwise expressly provided in

14  this act, this act shall take effect upon becoming a law.

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

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31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                        Senate Bill CS0564

 3                                 

 4  -Provides legislative findings relating to comprehensive
    medical malpractice reform.
 5  
    -Revises provisions governing expert witnesses including the
 6  criteria for who can qualify or testify as an expert witness
    regarding the prevailing professional standard of care in
 7  actions to require in-kind experience, training, practice and
    expertise as the party against whom or on whose behalf the
 8  testimony is offered.

 9  -Prohibits contingency fees for expert witnesses.

10  - Requires attorney to certify expert witness has no criminal
    history of perjury or fraud.
11  
    -Eliminates provisions requiring certificates of expert
12  witness.

13  -Revises the scope of informal discovery during presuit to
    require a claimant to execute a medical information release,
14  to restore the authority only to take unsworn testimony, and
    to permit 30 written questions to be submitted and answered.
15  
    -Eliminates provisions governing bad faith action against a
16  professional liability insurer.

17  -Eliminates the procedure and process for voluntary presuit
    mediation.
18  
    -Requires the claimant's presuit notice to include certain
19  additional information regarding health care provider history
    preceding and predating the medical malpractice incident and
20  to include medical records relied upon by the claimant's
    presuit expert witness.
21  
    -Eliminates the requirement for set-off for economic and
22  noneconomic damages, costs, and attorney's fees against awards
    in medical malpractice arbitration proceedings when there is
23  an executed written release or covenant not to sue.

24  -Eliminates aggregate caps for award of noneconomic damages in
    cases involving multiple claimants for claims arising out of
25  the same incident to $250,000 in a voluntary arbitration
    proceeding, and to $350,000 at trial following a rejection of
26  an offer to enter voluntary arbitration.

27  -Eliminates the defendant's option to elect to make lump sum
    or periodic payments of either or both future economic and
28  noneconomic losses awarded.

29  -Eliminates the language that redefined "periodic payments"
    which made such methodology applicable to future noneconomic
30  damages,  prohibited the sale or assignment of a claimant's
    payments, removed the bond requirements and limited payment to
31  the duration of the claimant's life or the claimant's
    condition.
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 1  -Expands the factors of consideration under which the court
    shall dismiss a claimant's suit, strike a defendant's
 2  pleading, report a medical expert disqualification to the
    Division of Medical Quality Assurance, or refuse to consider
 3  the testimony or statement of a medical expert.

 4  -Revises the comparative fault provisions to require
    apportionment of fault and damages solely against the claimant
 5  and the named joint-tortfeasors at the time the case is
    submitted to the jury.
 6  
    -Provides legislative findings regarding the need for
 7  emergency services and immunity for providers of such
    services.
 8  
    -Revises provisions governing civil immunity under the "Good
 9  Samaritan Act" extended to hospitals under emergency scenarios
    and to health care practitioners who in good faith respond and
10  render emergency medical care or treatment.

11  -Extends the waiver of sovereign immunity by conferring state
    "agent" status on certain health care practitioners when
12  acting in accordance with federal and state law obligations to
    provide emergency services.
13  

14  

15  

16  

17  

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19  

20  

21  

22  

23  

24  

25  

26  

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31  

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